Constitutional Governance - II Article 356 Eluting the ambiguity Term Term paper submitted in partial fulfilment of assessment asses sment in the subject of Constitutional Governance - II
Submitted by:
Submitted to:
Dhruva Sareen !55"
#ro$% Dr%" Dr%" &%'% (hatia
#urav shah !63"
)aculty o$ 'a*
Submitted on +arch ,! ./,0 ACKNOWLEDGEMENT
The note of acknowledgment is an indispensable part of the paper. The authors would like to give due credit to the people who have helped him through the course of this project.
The authors would like to thank the faculty of ‘Constituti ‘Constitutional onal Governance Governance – II! "rof. #$r.% &.'. (hatia for allotting them the very engaging and fascinating topic of ‘ Article ‘ Article 356 – Elutin the Ambiuit!" . The authors would like to e)tend their heartfelt gratitude to him for his pedagogy which has been instrumental instr umental in enhancing the authors a uthors learning. The authors would also like to thank the library staff which has been of immense help to them in their research work.
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INTRODUCTION There are times when even justice brings harm with it. -
Sophocles
If there is one article of the constitution that has been much abused! and as much maligned! it is article ,- of the Indian Constitution. / The article provides that if the president! on receipt of a report from the Governor of a 0tate or otherwise! is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution! the president may by proclamation 1rticle ,- is one among the nine 1rticles! beginning from 1rt. ,-* and ending with 1rt. ,2! known as 3mergency "rovisions! enumerated in Chapter 45III of the Constitution. 1rt. ,- was introduced as $raft 1rticle *67! on 1ugust ,! /898 by the then :nion 'aw ;inister! $r. (.<. 1mbedkar! in the Constituent 1ssembly! and was cleared by it the subse=uent day. * 1rticle ,- is one of the major tools in the hands of the :nion Government enabling it to check any disruptive and separatist tendencies in their infancy. In order to keep our uni=ue >ederal system with its strong :nitary features in fact this potent medicine cannot be dispensed with., The Indian Constitution has strong centrali?ing features. 1rticle ,- empowers the central government to dismiss elected state governments and impose direct rule in the states. The / &hanna! @.<.! #se and $isuse of Article 356 ! (14I! :"3A$<1#3$.%! < 3CBA0T<:CTIAG T@3 < 3":('IC! #Aew $elhi @aranand "ublications%! /888! p. /-9.
* @ande! @.5.! %imitations of Article 356 ! T@3 @IA$:! ;ay ! *22, as available on httpDDwww.hindu.comDthehinduDopD*22,D2-D2DstoriesD*22,2-2222/2*22.htm #'ast visited on /D,D/9%
, "rasad! Eanardhan! A&TIC%E 356 of the Constitution of India ! E1A1<$@1A "<101$ $ 5 0 as available on httpDDwww.janardhanprasaddvs.comDarticleF,-.html #'ast visited on /D,D/9% ,+"age
framers of the Constitution had hoped that this emergency provision would be used as a last resort, invoked only if the constitutional machinery in a state had failed .9 To prevent the
articles arbitrary use! several institutional safeguards were set in place. >irst! the president of India! who makes the official proclamation of central rule in the states! can return the central cabinets recommendation for the imposition of central rule back to the cabinet for reconsideration if he or she finds the invocation of the emergency provision unreasonable. 0uch a presidential response is seen in India as politically embarrassing to the central governmentit signals to the wider public that federal officials are misusing constitutional provisions. 0econd! the government! having secured presidential assent! must get the proclamation of central rule passed in both houses of "arliament within two months! failing which the proclamation ceases to be effective. This provision gives parliamentarians an opportunity to =uestion the governments decision and! if they find it arbitrary! vote down the proclamation. >inally! a government decision to impose central rule in any state can be challenged in the courts. Aone of these safeguards! however! prevented successive central governments from imposing 1rticle ,- in the states /27 times over nearly si) decades. In a large number of these cases! invocation of the emergency provision was arbitrary. 1rticle ,-! and the way it has been put to use in recent years! is a matter of debate. This article was referred to as dead letter by (. <. 1mbedkar! Chairman of the $rafting 9 Government of India! Constituent Assembl! 'ebates! 5ol. I4 #Aew $elhi 'ok 0abha 0ecretariat! /898%! p. /66 H@ereinafter Constituent 1ssembly $ebate.
- This safeguard was introduced in /867. The president! however! cannot overrule a cabinet recommendation. >urther! if the cabinet sends the president the recommendation a second time! the president is obliged to assent to it. The president can return a recommendation only once.
I A$I10 $3;BC<1CK #Aew Kork Cambridge :niversity "ress! *22/%! p. /9, 9+"age
Committee.6 @e intended it to be used only as the last resort! but it has hardly ever been so. 1rticle ,- not only negates the federal character of the Indian "olitical 0ystem! but also militates against the democratic doctrine of Lpopular sovereigntyM since an elected government is suspended whenever "residents rule is enforced. Eudicial review of "residents rule clamping 1rticle ,- was completely shut out during the emergency by the ,7th 1mendment. @owever! it was revoked by the 99th 1mendment. 1 time came when judiciary had to intervene to interpret the scope of 1rticle ,-! and it happened when the 0upreme Court made its ruling in 0. <. (ommai v. :nion of India 7 case#/889%. The ape) court made it clear that the "residents rule is justiciable. The 0upreme Court or the @igh Court can strike down the proclamation if it finds it to be malafide. 1lso! powers of the "resident under 1rticle ,- are not absolute – he must have taken the decision based on some preFcondition . As far as the advice of the Council of Ministers is concerned, the advice itself cannot be reviewed BT the material on which the advice is given can be scrutini!ed. The court can also invalidate a proclamation if it finds suitable reasons for doing
so and can also overrule "arliament if need be. Thus we can say that because of the arbitrariness to which 1rticle ,- has been subjected to over the years! it has defeated the very purpose for which it was included in our Constitution. 1nd at the same time! judiciary has made it clear that the scope of 1rticle ,- is limited and it should only be used when there is no other option. +,o provision of the Constitution has been so often used misused and abused as Article 356 ./0 times since .1524 -
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1rticle ,- of the Indian Constitution has ac=uired =uite some notoriety due to its alleged misuse. The essence of the 1rticle is that upon the breach of certain defined state of affairs! as ascertained and reported by the Governor of the 0tate concerned #or otherwise% the "resident 6 CBA0TIT:3AT 1003;('K $3(1T3! *upra note 9 at p./9/.
7 0.<. (ommai v. :nion of India! #/889% , 0CC /
8 $.$. (10:! I AT I A$I1! /8th ed.! p. 97, -+"age
concludes that the Nconstitutional machineryN in the 0tate has failed. Thereupon the "resident makes a N"roclamation of 3mergency!N dismissing the 0tate 'egislature and 3)ecutive. $uring a state of emergency! the "resident is vested with tremendous discretionary powers. 1ny legislation or constitutional provision that abrogates any of the basic principles of democratic freedom is anathema to most people and the more so to the people of the largest democracy in the world. @aving 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 $rafting Committee of the Constitution included a provision that permits a Government to dismiss a duly elected representative body of the people and suspend those freedoms in violation of even the crudest interpretation of a Nseparation of powers!N then common sense suggests that it is only to deal with the direst of circumstances and nothing less. (ut! it seems that the remedial nature of the Article has been perverted to impose the domination of the Central "overnment upon a #tate "overnment that does not subscribe to its views. Central control over regional governments is essential for the integrity of nations
that have federal systems of government! and 1rticle ,- was designed to preserve this integrity! but what remains to be seen is whether it is being used at the cost of sacrificing the interests of democratic freedom. 1rticle ,-/2 of the Constitution was most keenly discussed and debated in the Constituent 1ssembly. The >ounding >athers apprehended that! if and when it would be misused! it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of the article would not be used to strengthen the corporative federalism // but it would be /2 G. 1:0TIA! T@3 I A$I1A CBA0TIT:TIBA CB 1 A1TIBA! #$elhi B)ford :niversity "ress%! /888! p./76O *ee P@31<3! &.C.! ;B$3 T@3 I A$I1A CBA0TIT:TIBA!