By JAVID AHMAD AHANGER
Article 356 is the most controversial and misused provision of the Indian Constitution. The origin of Article 356 lies in the Government of India Act, 1935, which reflects the superior powers of the Governor General over the elected governments of provinces. Since the inauguration of the republic of India, the central government has used this Article for partisan advantage of the ruling party. The unusual power under the Article in a multi-party polity like India can easily be used against opposition-run state governments. Indira Gandhi even used it against her own party governments in states.
Since the 1950s, presidential rule has been imposed on more than a hundred occasions and has been imposed in an arbitrary manner for political or personal reasons. So it has become the most controversial and criticised provision of the Constitution of India. Hence, a debate about Article 356 gains some urgency.
This Article imposes a duty on the Centre to ensure that the government of every state is carried out in accordance with provisions of the Constitution. It is this duty in the performance of which the Centre takes over the government of the state under Article 356 in case of failure of the constitutional machinery in a state. This is called President’s Rule or state emergency or a constitutional emergency. Article 356 empowers the President to issue a proclamation, if he or she is satisfied that a situation has arisen in which the government of a state cannot be carried out in accordance with the provisions of the Constitution. Notably, the President can act on a report from the Governor.
Article 356 also says that whenever a state fails to comply with, or to give effect to, any direction from the Centre, it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried out in accordance with the provisions of the Constitution.
With the dismissed chief minister of Uttarakhand, Harish Rawat, moving the High Court, the legality and constitutionality of the centre’s decision to impose President rule in Uttarakhand is said to face the test of the Bommai judgement (1994), in which a nine judge bench of the Supreme Court observed that the powers under Article 356 are extraordinary and should never be used for political gain for the party in power at the Centre. While reiterating the Sarkaria Commission’s observations, it brought the Article under judicial review.
The 1998 Sarkaria Commission report on Centre state-relations commented on the arbitrariness with which the provision was used: only 26 out of 75 cases until then were “just” it said, in the rest, the Centre had intervened either to prevent a party from forming the government or dismissed a state government even when it had a majority. But whatever the Congress had done, the ruling BJP is now trying to outdo it. The Morarji Desai and Charan Singh governments dismissed as many as 12 state governments. When the Congress party returned to power in 1980, it did the same by imposing Presidential rule in nine states under PM Indira Gandhi.
In his 2012 paper, “Bridling Central Tyranny in India”, social scientist Anoop Sadanandan noted that Article 356 was invoked on 40 occasions in the fifteen years before the Bommai judgement and only 11 times in the 15 years after 1994. A combination of factors, including the emergence of coalition governments with regional parties and an assertive President’s office and judiciary, checked the trend. Justice Sawat and Kuldip Singh observed that the President should resort to all other measures, including issuance of a warning to chief ministers, to try to restore the constitutional machinery in a state before invoking Article 356. Even some of the members of the constituent assembly opposed the Article vehemently. HV Kamath argued “Let us wind up this assembly and go home”. Nizruddin Ahmad said that “I think we are drifting, perhaps unconsciously, towards a dictatorship”.
Dr Ambedkar, while replying to the critics of this provision in the constituent assembly, “hoped that the drastic power conferred by Article 356 would remain a dead letter, and would be used only as a measure of last resort”.
But Article 356 has turned a deadly weapon against a number of state governments, so in this context a member of the constituent assembly H V Kamath commented a decade ago: “Dr. Ambedkar is dead and Article 356 is very much alive”. Only a strong judiciary can stop a more powerful Centre.
—The writer is a research scholar at the department of political science, Aligarh Muslim University