UNIVERSITY OF NIVERSITY OF PETROLEUM & ENERGY S STUDIES COLLEGE OF LEGAL STUDIES B.A., LL.B. (HONS.) SEMESTER III ACADEMIC YEAR: 2014 -15
SESSION: JULY-DECEMBER
ART. 356 MISUSE OF ART
Constitutiona La! "II #LLBL222$ Un%' t( Su)'*ision o+ A. A . A'a*in%an #TO BE FILLED
NAME,
BY THE STUDENT
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PRAS-ANT SINGSAP NO,
5/051 ROLL NO,
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Acknowledgement:I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and this organization. I would like to extend my sincere thanks to all of them. I am highly indebted to Prof. A. Aravindan for his guidance and constant supervision as well as for providing necessary information regarding the project & also for his support in completing my project Misuse of Art. 356!. "y thanks and appreciations also go to my classmates in developing the project and people who have willingly helped me out with their abilities. I am also thankful to the I# $epartment of %'( and the library as well as without them the making of this project would have been next to impossible. I am thankful to and fortunate enough to get constant encouragement, support and guidance from my parents and friends who helped me in successfully completing this project.
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Table o content! (.no *.+ /.+ 1.+ .+ .+
Introduction History of 0rt. 12 4ase (tudies 4onclusion 6ibliography
age )o. - 2-3 5-*/ *1 *
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#nt$od%ct&on 0rticle 12 of the Indian 4onstitution has ac7uired 7uite some notoriety due to its alleged misuse. #he essence of the 0rticle is that upon the breach of a certain defined state of affairs, as ascertained and reported by the 8overnor of the (tate concerned 9or otherwise+, the resident concludes that the :constitutional machinery; in the (tate has failed. #hereupon the resident makes a :roclamation of 'mergency,; dismissing the (tate
ther factors include the loss of majority, break down of law and order, indecisive outcome of elections, no alternate claimant to form the government, insurgency, defections and break-up of coalition. It can be imposed initially for a period of six months. #he state comes under the direct control of the 4entral government.
#he authority shifts from the 4hief "inister and the council of ministers to the 8overnor. #he assembly is kept in suspended animation 9temporary cessation+. #he 8overnor gets the power to appoint retired civil
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servants and some administrators to assist him who will take on the role and responsibilities of the 4ouncil of "inisters. #here was widespread belief that imposition of resident;s rule was more to do with the priorities of the 4entral government than the constitutional crisis. #he judgement of the (upreme 4ourt in *55 gave a clear definition as to when the resident;s rule can be imposed on a state thereby paving the way for the state governments to challenge the 4entre if it feels that it has been unduly removed. #he (upreme 4ourt held that a state government could be dismissed only under justifying circumstances and laid down guidelines for the same. #his judgement is called the 6ommai judgement after the former ?arnataka 4hief "inister ( @ 6ommai whose government was dismissed by the 4entre and the resident;s rule was imposed. #he verdict was in response to his challenging the dismissal. #hereafter further pronouncements by the (upreme 4ourt helped limit the number of cases where the resident;s rule is imposed drastically.
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H&!to$ o A$t&cle "5 Having just gained independence after a long and continuous struggle, the people of India would naturally have the greatest interest in preserving all the freedoms envisioned in a democratic society. If the members of the $rafting 4ommittee of the 4onstitution included a provision that permits a 8overnment to dismiss a duly elected representative body of the people and suspend those freedoms in violation of even the crudest interpretation of a :separation of powers,; then common sense suggests that it is only to deal with the direst of circumstances and nothing less. 6ut it seems that the remedial nature of the 0rticle has been perverted to impose the domination of the 4entral 8overnment upon a (tate 8overnment that does not subscribe to its views. 4entral control over regional governments is essential for the integrity of nations that have federal systems of government, and 0rticle 12 was designed to preserve this integrity, but what remains to be seen is whether it is being used at the cost of sacrificing the interests democratic freedom. #he development of 0rt. 12 can be assessed with help of these few instruments and incidentsA The Government of India Act, 1935
#his 0ct first introduced the concept of :$ivision of owers; in 6ritish India. It was an experiment where the 6ritish 8overnment entrusted limited powers to the rovinces. 6ut since there was very little faith lost between the 6ritish and the Indian people, the 6ritish took precautions to keep a sufficient check on the powers given to the rovinces. #hese precautions were manifested in the form of emergency powers under (ections 51 and of this 0ct, where the 8overnor 8eneral and the 8overnor, under extraordinary circumstances, exercised near absolute control over the rovinces. * Drafting ommittee of the onstituent Assem!"#
>n 0ugust /5, *5B, a $rafting 4ommittee was set up by the 4onstituent 0ssembly. %nder the chairmanship of $r. 6.@. 0mbedkar, it was to prepare a draft 4onstitution for India. In the course of about two years, the 0ssembly discussed /,B1 amendments out of a total of B,21 amendments tabled. / Chen it was suggested in the $rafting 4ommittee to confer similar powers of emergency as had been held by the 8overnor-8eneral under the 8overnment of India 0ct, *51, upon the resident, many members of that eminent committee vociferously opposed that idea. $r. 6abasaheb 0mbedkar then pacified the members statingA
:In fact I share the sentiments expressed by my Hon;ble friend "r. 8upte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a
1 See *a&n +., ag&, The Constitution of India (1/50). 2 See a3an, 4aee3 6 *acob,Al&ce, Indian Constitution (1/70).
dead letter. If at all they are brought into operation, I hope the resident, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces.; He addedA :I hope the first thing he will do would be to issue a clear warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the 4onstitution.; 6y virtue of this earnest advice given by the prime architect of the Indian 4onstitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events. 0 good 4onstitution must provide for all conceivable exigencies. #herefore this 0rticle is like a safety valve to counter disruption of political machinery in a (tate. 0rticle 1 statesA :It shall be the duty of the %nion to protect every (tate against external aggression and internal disturbance and to ensure that the government of every (tate is carried on in accordance with the provisions of this 4onstitution.; #he word :otherwise; in 0rticle 129*+ was not included in the original draftD it was later introduced through an amendment, despite protests from members of the original $rafting 4ommittee, stating that it was an open invitation to abuse the 0rticle. $r. 0mbedkar justified its introduction saying that 0rticle /BB0 9now 0rticle 1, cited above+ imposed a duty upon the 4enter to ensure that the (tates are governed in accordance with constitutional provisions and that hence it would not be proper for the resident to base his decision solely on the report of the 8overnor of the (tate. An ana"og# !et$een Artic"e 356 and %ections &5 and 93 of the Government of India Act, 1935
#here are certain differences in the provision relating to the failure of the constitutional machinery under the present 4onstitution and the powers dealt with in (ections and 51 of the 8overnment of India 0ct, *51. Eirstly, the *51 0ct empowered the 8overnor-8eneral to deal with a failure of the constitutional machinery at the 4enter 9(ection +. It also empowered the 8overnor-8eneral to deal with a similar situation in a rovince 9(ection 51+. #he present 4onstitution, however, does not intend to suspend the 4onstitution of a (tate, but empowers the resident to take steps in this regard, though he shall have to act on the report of the 8overnor or @uler of the (tate. (econdly, under (ection 51 of the *51 0ct, the executive and legislative powers of a (tate could be assumed by the 8overnor, acting at his discretion. #he present 4onstitution has separated the two powersA the resident, assuming executive powers, and the %nion arliament, assuming legislative powers. 'ecommendations of %ar(aria ommission 'egarding Artic"e 356
#he (arkaria 4ommission recommended extremely rare use of 0rticle 12. #he 4ommission observed that, although the passage, :. . . the government of the (tate cannot be carried on in accordance with the provisions of this 4onstitution . . .; is vague, each and every breach and infraction of constitutional provisions, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery.
0ccording to the 4ommission, 0rticle 12 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a (tate. 0ny abuse or misuse of this drastic power would damage the democratic fabric of the 4onstitution. #he report discourages a literal construction of
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0rticle 129*+. 1 #he 4ommission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that 0rticle 12 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a (tate. 6efore taking recourse to the provisions of 0rticle 12, all attempts should be made to resolve the crisis at (tate level.
" Ha!an, 8oa 6 9. S$&da$an, India's Living Constitution: Ideas, Practices,Controversies, (22). 0
a!e St%d&e! 6efore analyzing the re and ost 6ommai 'ra cases or incidents one needs to be aware of the landmark case of (.@ 6ommai v. %nion of India. (. @. 6ommai v. %nion of India was a landmark in the history of the Indian 4onstitution. It was in this case that the (upreme 4ourt boldly marked out the paradigm and limitations within which 0rticle 12 was to function. In the words of (oli (orabjee, eminent jurist and former (olicitor-8eneral of India, :0fter the (upreme 4ourt;s judgment in the (. @. 6ommai case, it is well settled that 0rticle 12 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a (tate has collapsed.; #he views expressed by the various judges of the (upreme 4ourt in this case concur mostly with the recommendations of the (arkaria 4ommission and hence need not be set out in extenso. However, the summary of the conclusions of the illustrious judges deciding the case, given in paragraph 1 of the lengthy judgment deserves mentionA )1* 0rticle 12 of the 4onstitution confers a power upon the resident to be exercised only where he is satisfied that a situation has arisen where the 8overnment of a (tate cannot be carried on in accordance with the provisions of the 4onstitution. %nder our 4onstitution, the power is really that of the %nion 4ouncil of "inisters with the rime "inister at its head. #he satisfaction contemplated by the article is subjective in nature. )+* #he power conferred by 0rticle 12 upon the resident is a conditioned power. It is not an absolute power. #he existence of material - which may comprise of or include the report9s+ of the 8overnor - is a pre-condition. #he satisfaction must be formed on relevant material. #he recommendations of the (arkaria 4ommission with respect to the exercise of power under 0rticle 12 do merit serious consideration at the hands of all concerned. )3* #hough the power of dissolving of the
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)5* 9a+ 4lause 91+ of 0rticle 12 is conceived as a check on the power of the resident and also as a safeguard against abuse. In case both Houses of arliament disapprove or do not approve the roclamation, the roclamation lapses at the end of the two-month period. In such a case, 8overnment which was dismissed revives. #he
9b+ However, if the roclamation is approved by both the Houses within two months, the 8overnment 9which was dismissed+ does not revive on the expiry of period of the proclamation or on its revocation. (imilarly, if the
'Ibid. 1
#hus it can be seen from the conclusions of this 6ench of the (upreme 4ourt that the resident;s power under 0rticle 12 is not absolute or arbitrary. #he resident cannot impose 4entral rule on a (tate at his whim, without reasonable cause. #he present situation in India shows that the :dead-letter; provision - as $r. 0mbedkar hoped it would be has become a fre7uently invoked, not-so-dead 0rticleD it has been activated more than a hundred times till today. #he )ational 4ommission to @eview the Corking of the 4onstitution 9)4@C4+, which was established on Eebruary //, /KKK, on the basis of a joint resolution of the 8overnment of India, "inistry of ffice of the 8overnor. 0nother example of misuse of 0rticle 12 was the imposition of resident;s @ule in the (tate of 8ujarat from (eptember*552 to >ctober *552, following the incidents of violence indulged in by members of the 8ujarat
5 ;lee, +.<, Our Constitution Government & Politics , (22). Ba!%, %$gada!, ommenta$ on te on!t&t%t&on o #nd&a, (1/0/). 7Ibid. 0 See$3a&,H.+, Constitutional La of India, (1//).
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0ssembly and thereby prompting improper invocation of 0rticle 12. 5 #he correct procedure to be followed in such a situation is to pass suitable legislation for dis7ualifying the guilty legislators.
>n the other extreme of misuse of 0rticle 12 was the failure of the %nion 'xecutive G which was of the same political belief as the 8overnment of )arendra "odi in 8ujarat - to invoke 0rticle 12 during the carnage following the 8odhra train incident on Eebruary /B, /KK/, in the (tate of 8ujarat. #o 7uote the words of Eali )ariman, noted lawyer and nominated member of the %pper House 9@ajya (abha+ of the Indian arliament during a parliamentary debateA :Mital statistics tells us that there are more than *KKKKK persons in refugee camps and more than 1K,KKK people have been chargesheeted. 0re these figures not enough to compel the 8overnment to take action under articles 1 and 12N; Eali )ariman also rightly pointed out in an interview with a newspaper correspondent that the 4onstitution may not have envisaged a situation where an emergency has arisen in a (tate where the ruling party is of the same political persuasion as the one at the 4enter and, hence, the 4enter might be biased against dissolving that government by invoking 0rticle 12 *K. He also pointed out that the word :otherwise; in the text of 0rticle 12 becomes instrumental in such a situation to allow the resident to act without waiting for the :8overnor;s @eport.
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1 (orabjee, (oli L., Law & Justice An anthology, 9/KK2+. 12
oncl%!&on It is evident that there is a lack of effective safeguards against the abuse of 0rticle 12 of the Indian 4onstitution. #he safeguard of :parliamentary approval; - outlined in 0rticle 1291+ - of a roclamation under 0rticle 129*+ could be biased because the arty that is in power at the 4enter generally dominates arliament by a majority vote. Eurthermore, even a vote in arliament declaring a particular imposition 9or failure to impose+ of resident;s @ule to be wrongful cannot undo the damage already done. However, the repeal of 0rticle 12 is not advisable because the Indian polity is rife with crises and there has to be some contingency against a constitutional deadlock in a (tate. #he )4@C4 also advised against the repeal of 0rticle 12, stating that this would create an imbalance in %nion-(tate relations in upholding constitutional governance throughout India and that in many more instances than not the use of 0rticle 12 was inevitable. 0nother option is to introduce further checks on the exercise of power under 0rticle 12, by amendment. 'ven this is not advisable because it defeats the very purpose of the 0rticle of dealing expeditiously with emergencies of constitutional failure in a (tate. #herefore, the most practical course left open may be to let history take its course. 'ventually, the public opinion in India, we fervently hope, will awaken to the fact that 0rticle 12 may veritably have become a noose that is slowly tightening around the neck of democracy in India, suffocating the right of the people under the 4onstitution. In the meantime, to nurture budding public opinion we do have a resource not to be underestimated, which is the power of judicial review of the (upreme 4ourt, which has on more than one occasion shown that it is a power to be reckoned with. (o we will have to suffice for now with occasional outcries against the %nion 'xecutive unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called 0rticle 12.
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