Article 356 - The Ultimate Power

“ARTICLE 356”: THE ULTIMATE POWER

‘power tends to corrupt, absolute power corrupts absolutely’.
Loard Acton.

Ironical would it appear that article 356, evidently intended very much to remain a dead letter by none other than the Chairman of the Constituent Assembly himself during the course of the Debates – has in fact turned out to be a Democles’ sword ever hanging over those states which generally had gone hostile to the party/parties in power at the Centre. Strictly speaking, till date imposition of President’s rule on more than a hundred and odd occasions has proved beyond any trace of doubt – the fear expressed by those against this Article more valid and real than the fond hope expressed by those who favoured it on the ground that it would be invoked ‘most sparingly’ – that too only after exhausting a series of remedial measures as contemplated by the Founding Fathers (Anyway, the crux of the issue with the Constituent Assembly with regard to Article 356 was that a similar provision was found in the Government of India Act, 1935 – and the same found favour with the Assembly – as the problem of protecting the unity, integrity and sovereignty weighed very heavily with the Founding Fathers’. The problems like:

a)      the communal frenzy preceding and accompanying partition;
b)      the administrative tasks created by partition;
c)      transfer of power and resettlement of refugees;
d)      tackling the food and economic crisis; and
e)      the problem of the Princely States etc., - evidently, caused such a deep sense of insecurity in the minds of the framers of the Constitution that they did not hesitate to go on their earlier promise to work out a true federal model of government for free India. Loaded with several Articles that granted more powers to the Centre to the disadvantage of the States, the Constitution ultimately emerged as one that is more Unitary than Federal.

Ever since independence, Article 356 has really become a potent weapon in the hands of the Union Government and many a state government had become the casualty due to unlawful invocations of the Article. In fact, as one carefully goes through the history of its implementation, one would certainly arrive at the conclusion that, Article 356 as has finally emerged has become the ultimate weapon of final assault by the Union Government on those state governments which have fallen from the grace of the party/parties that ruled at the Centre during any given point of time. At the same time, it is not as if the Article was not strongly opposed in the Constituent Assembly. Reputed provincialists like, H.V. Kamath, Shibban Lal Saksena, Pandit Kunzru, P. S. Deshmukh and a host of others vehemently criticised and opposed its incorporation as the said Article would grant unlimited power to the Union Government that could arbitrarily be exercised to the utmost disadvantage of the state governments.

Precisely, as if to prove their predicaments true, the exercise of power under Article 356 all these years of independence has caused so much of damage to the federal scheme - which has so very carefully been built into the Constitution - that it has come out as not only the most extensively debated, discussed and commended upon Article of the Constitution - but also the one demanded to be deleted from the Constitution time and again. Evidently, the Article has always been invoked by political parties to gain short term (and short-sighted) political benefits than to consolidate the gains of freedom and to fulfill the wishes of the framers of the Constitution. Now that India has definitely entered an era of coalitional politics and the issue of deletion of this Article from the Constitution did not find favour with either the Inter-State Council or the Sarkaria Commission, necessarily the Article deserves a close and fresh look on the implications that it has gathered around it in the past one decade or so.

This highly controversial Article, in fact has its genesis in Sections 45 and 93 of the Government of India Act, 1935, the former dealing with the failure of the constitutional government at the Centre and the latter dealing with a similar failure in the Provinces. At the time of introducing Draft Article 278 - which was on the lines of the above provisions (and presently Article 356) - a very interesting debate took place on the floor of the Constituent Assembly. The debate specially requires and deserves to be appreciated for the following two specific reasons:

a)                  the manner in which the Article has been invoked for exclusively political purposes; and
b)                  the line of thinking that was taken by the Indian National Congress on Article 356, violating its own arguments against Sections 45 and 93 of the Government of India Act, 1935.

The concept of “failure of constitutional machinery” as found in Government of India Act 1935, under Sections 45 and 93 was aimed at taking over of the administration of the Federal Government by the Governor – General, and to dissolve the Provincial Assembly through the Governor of Province. This was condemned by the Indian National Congress. And it has gone to the extent of extracting an assurance from the then Governor - General of India, Linlithgow – ­stating that the governor of a Province would not be allowed to exercise powers under Section 93. However, having failed in their attempt to get such an assurance (even after a personal intervention by Mahatma Gandhi), the Congress had decided to fight against those provisions from within the Legislatures. The Congress even promised that it would not incorporate such provisions in the Constitution of independent India. But ultimately the Constituent Assembly decided to incorporate provisions on the same lines as Section 93 (but not Section 45, for various reasons). Main arguments against the Draft Article 278 (now Article 356) were centred round certain specific usages occurring in the Article. viz.,

a)      ‘in accordance with the provisions of the Constitution’;
b)      ‘failure of the Constitutional machinery’; and
c)      ‘on the report of the Governor or otherwise’, - especially, “or otherwise”.

The main contention of those who expressed themselves against these usages was that these expressions were vague and did not lend themselves to any clearly definable limits of power to be exercised by the Union. Considering Article 356 as more draconian than Section 93 of the Government of India Act, 1935, H. V. Kamath had said that: “Public Order had been made expressly a responsibility of the State Government, now, the crux of the matter is this; you say that the State must maintain public order. But through a new Article 277 – A, you say that the Union Government shall protect every State against internal disturbance. Let us be honest about what we are going to do. It is no use having mental reservations on this important point. If we are going to whittle down political autonomy, let us say so in the Constitution. Let us make no bones out of it. It is dishonest on our part to say in one Article that public order shall be responsibility of the State and then in another Article to confer powers upon the Union to intervene in the internal affairs of the State on the slightest pretext of any internal disturbance.’

The highly ticklish nature of the issues to be resolved, put the Chairman of the Constituent Assembly in a very uncomfortable and inconvenient position. Questioned by Pandit Kunzru on the scope of the usage, “The provisions of the Constitution” – and his idea of the meaning of the phrase – “in accordance with the provisions of the Constitution”, ­Ambedkar in an evasive manner replied that:

“It would take me very long now to go into a detailed examination of the whole thing and, referring to each Article, say, this is the principle established in it and say, if any Government or any legislature of a province does not act in accordance with it, that would act as a ‘failure of machinery’, I find has been used in the Government of India Act, 1935. Everybody must be quite familiar, therefore, with its de facto and de jure meaning. I do not think further explanation is necessary”.

In addition to all the above, pungently criticising yet another highly complicated usage, “or otherwise” – H. V. Kamath could foresee the possible end of democracy in India in the form of a Hitler-like take-over by the Union Government and noted that, “‘Otherwise’ is a diabolical word in this context and I pray to God that it will be deleted from this Article” (C.A.D., Vol. IX, P.140). Pandit Kunzru, P. S. Deshmukh, Shibban Lal Saksena and a host of others expressed serious objections to granting such sweeping power to the Union Government on similar lines as H. V. Kamath.

Significantly, as Ambedkar brushed aside the objections raised by H.V. Kamath ­saying that he would reply only to those amendments which he considered as of any significance and substance - Dr. Rajendra Prasad intervened by observing that, Dr. Ambedkar was entitled to give his reply in his own way to the Assembly. And then Ambedkar made a very significant statement which explains to a large extent the working scope and modalities of Article 356. According to Ambedkar’s understanding the position with respect to the working of Article 356 should have been on the following lines: - ­“In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed forpolitical purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the provinces. In fact, I share the sentiments expressed by my honorable friend Mr. Gupta yesterday that the proper thing we ought to expect is that such articles will never be called in to operation and that they would remain a dead letter. If at all, they are brought into operation, I hope that the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I think the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If the warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article. It is only in those circumstances he would resort to this Article. I do not think we could then say that these articles were incorporated in vain or that the President had acted wantonly” (C.A.D., Vol. IX, P.I77).

That being the position taken by the Constituent Assembly on the working modality of Article 356, in the past fifty years of our independence and in all the hundred and odd times the Article was invoked – no attempt was ever made to follow the course of action as prescribed by Ambedkar. Above all, the power, under Article 356 has always been invoked to settle political scores by political parties in the most arbitrary, undemocratic and unethical manner possible, As a result – we could not develop any constitutional conventions, precedents, usages and practices that are so vital for the successful working of a parliamentary mode, as expected by the Founding Fathers. Over the years successive governments, by not contributing to the growth of a healthy democratic environment, did not allow any smooth working of the parliamentary system possible, nor the President’s office to evolve to check the misuse of this Article.

However, misuse of the provisions relating to President’s rule in the very first few years of the operation of the new constitution (even by Jawaharlal Nehru) had exceeded all such limits of constitutional propriety to such an extent that Ambedkar himself was rather compelled to observe as long as on September 16, 1953 that, “The people have got a very legitimate ground for suspicion that the government is manipulating the Articles in the Constitution for the purpose of maintaining their own party in office in all parts of India. This is the rape of the Constitution”. Political Parties of all hues always entertained biased views on the provisions relating to President’s rule and mercilessly invoked the same unhesitatingly till the Supreme Court delivered its judgment in the case of, - S.R. Bommai Vs. State of Raiasthan - which has brought the arbitrary exercise of this power under reasonable limits of control.

The Supreme Court of India while delivering its judgment that ran into more than two hundred pages, for the first time very significantly held that the issue of proclamation of President’s Rule under Article 356 would be subject to ‘judicial review’ – and had imposed several restrictions on the invocation of this Article. Those restrictions can be briefly stated as given below:

-         that the power under article 356 is an extra-ordinary power and must be used sparingly;
-         that the federal scheme is an inherent and essential feature of the Constitution and so no state government enjoying people’s confidence should be arbitrarily dealt with;
-         that the power should be used only as a last resort - that too only after exhausting all other remedies available under Article 355 in restoring normalcy, and unless urgent steps become imperative;
-         the power can not be exercised as long as a duly constituted government is in power enjoying majority support, on the pretext of providing a good government.
-         the power should not be invoked to dislodge any state government or party in power, on the ground that the party ruling at the state level did not fare well in the Lok Sabha elections. If such a thing were to happen it should be treated as a clear case of unconstitutionality.
-         The power to suspend any state government should certainly precede a warning to be issued by the President to the erring state so as to give it an opportunity to correct itself. However such a warning can be avoided in a case of extreme urgency, if it might otherwise lead to disastrous consequences.

The Apex Court has also categorically observed that the Article 356 should not be invoked:

-         if any state corrects itself on receiving a warning from the President;
-         to grant relief to any state from a situation of stringent financial exigencies or due to serious allegations of corruption;
-         to settle political disputes, internal differences and intra-party problems of the ruling party/parties;
-         to gain political advantage by a party in a power at the centre to the disadvantage of any state government;
-         to disturb the democratic and federal fabric of the constitutional scheme;
-         unless a situation of armed rebellion arises and not a simple condition of internal disturbance.

Moreover, the judgment made it crystal clear that “the provisions of clause (3) of Article 356 are obviously meant to be checked by Parliament on the powers of the President under clause (1) of the said Article. The check would be meaningless and rendered ineffective, if the President takes irreversible action while exercising his powers under Sub Clauses (a), (b) and (c) of Clause (1) of the said Article”. Furthermore, the Court also noted that the power to dissolve any state legislature can be exercised by the President only after both Houses of Parliament had approved the proclamation and not before such an approval. Finally, to avoid all ambiguity the Court also noted that, “the dissolution of the Assembly prior to the approval of the proclamation by the Parliament under Clause (3) of the said Article would be per se invalid”;

Thus, to give effect to the proclamation of the President’s Rule and Article 356, the approval of both the houses of Parliament has become a precoi1dition and hence it appears as if a situation of arbitrary exercise of this power would no more be available to any Government at the Centre. (As a fitting case of example to prove this point one may look into the details relating to the recommendation made by the United Front Government on imposition of President’s rule in Uttar Pradesh under Kalyan Singh’s Chief Ministership – and the President’s reluctance to go by such an advice). But at the same time, the fact that India has entered the era of coalitional politics remains an irrefutable fact. And hence the incidents of demand for the imposition of President’s Rule from one or the other ally of the coalitional government by applying techniques of political blackmailing are likely to increase as it has been happening in the recent past. That the present government at the Centre fortunately didn’t yield or succumb to such a pressure is certainly an appreciable development. And one hopes to see that in the highly perturbing political situation in the country - keeping in mind the various strictures passed by the Judiciary and the recommendations made by the Sarkaria Commission - political parties do not venture into creating all atmosphere of chaos and disorder through unreasonable demand for imposition of President’s Rule.