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Beyond Constitutional Realm: Article 356

By Afroz Alam

19 April, 2016
Countercurrents.org

While following the Congress footsteps, BJP government has imposed President’s rule in Arunachal Pradesh and Uttarakhand. Historically, instead of being used only in times of grave constitutional crises, Article 356 has been randomly invoked to suit the purpose of ruling party at the Centre. This randomness not only creates a deep crisis of constitutionalism but also lead us to a situation rightly called ‘undemocratic’ and ‘authoritarian’. It was the first invocation of Article 356 in the year 1951 against Punjab that set the tone of its subsequent misuse. The very provision haunted the health of Indian democracy 126 times like a ‘living monster’. It is mostly because of themisuse of Article 356, K.C. Wheareargued that “what makes one doubt that the Constitution of India is strictly and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament”.

Similar apprehensions were raised by S.L. Saksena, H.V. Kamath, P.S. Deshmukh and Pandit H.N. Kunzru on the floor of the Constituent Assembly regarding the provisions (then Article 278 and 278A) dealing with ‘President’s rule’.In the opinion of S.L. Saksena these provisions were ‘far too sweeping’, thus having the potential to reduce ‘provincial autonomy to a farce.’ H.V. Kamath foresaw the ‘possible end of democracy’ in India in the form of a Hitler-like takeover by the Union Government. These provisions were ‘unfederal’ in the eyes of P.S. Deshmukh. The strongest opposition came from PanditHridayNathKunzru who believed that the power to redress bad government should rest with the electors and they should be made to feel their responsibilities. G.B. Pant supported the argument of Kunzru and joined him in submitting an amendment to delete the provision dealing with President’s rule.

But none of these opinions were given due consideration. A.K. Ayyar, K. Sanathanam and Dr. B.R. Ambedkar powerfully defended these provisions. For Ayyar, these provisions were not so ‘horrific’ as it might appear. The raison d’etre of these provisions would be the ‘grave and difficult times’ facing the nation. While expressing hope in Centre working impartially, Sanathanam argued that in cases where government in a state could not be carried on, the Union would see to it that the legislature was dissolved and new elections held, thus giving the province a second chance to manage its own affairs before the Union intervened. Dr.Ambedkar was in total agreement of Ayyar and Sanathanam and thus rejected the contention of those who were opposing the provisions dealing with President’s rule. He was of the view that: “I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political 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 honourable friend Mr Gupte 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 dead letter.”Ambedkar also said that before assuming its functions, the “first thing the President 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....” and then order an election, thus “allowing the people of the province to settle matters by themselves.But sadly the ways ruling parties at centre invoke Article 356 simply turn the assurances of Dr. Ambedkar and other members of the constituent Assembly meaningless.

The very spirit of cooperative federalism appear to have been mortgaged when the BJP run Central government has successfully placed Uttarakhand under President rule and the Assembly was kept under suspended animation on grounds of ‘breakdown of governance’ at a time when the Harish Rawat government was about to prove its majority on the floor of the Assembly. Seemingly, BJP appeared to have made necessary preparations in advance like Arunachal Pradesh to impose President’s rule in the situation of 9 rebellious MLAs of the Congress disqualified by the Speaker using Anti-defection laws.

The classical anti-norm of ‘either my government, or no government’ was adopted. BJP engineered an emergency like situation calling Uttarakhand a “textbook example of breakdown of governance” while citing the passing of Appropriation Bill without a division of vote. Written reports were received from Governor K.K. Paul stating the volatility of political situation and possibility of pandemonium during the scheduled day of trust vote. Prime Minister had to cut short his visit to Assam to convene an emergency meeting of the cabinet at night to advise President to proclaim President Rule in Uttarakhand. Everything in haste!
Before assenting to the advice of government which appear mala fide in first instance, the President should have acted independentlyto ‘preserve, protect and defend the Constitution and the law of India’ as made part of his oath underArticle 60 of our constitution. As a responsible Executive of the State, President should have returned the Cabinet’s recommendation to ‘Proclaim President’s rule’ for reconsideration using his power under Article 74(1) as it has been responsibly exercised by the former President K.R. Narayanan in the case such recommendation to invoke Article 356 in Uttar Pradesh in 1997. But nothing of this sort happened. President has consented to impose President’s rule in Uttarakhand.

In circumstances where the President is unwilling to refuse the Council of Minister’s advice even for once, such proclamation will always be used as procedural device at the hand of ruling party against the states run by the opposition. The most recent example is Arunachal Pradesh where the situations were more or less similar when President Rule was declared. Interestingly enough, Speaker and Governors are also working beyond their constitutional mandate. There is clear but unique contest between Governor and the Speaker to act as the agent of the Centre and state respectively. It point towards a new trend that party loyalties are getting precedence over the discharge of constitutional duties. It is certainly disappointing to see how flouting of democratic decency is fast becoming the norm in our country.

Over the last six and half decades we have grown morepartisan, politically and otherwise. As a result the constitutional principles, parliamentary decency and federal values become less effective. The political parties including Congress and BJP have been in death match to demonise each other and habitually putting the blame on other side. But that’s only part of the problem. The more destructive problem is the way ruling parties engage in political machinations of Article 356 to stymie the opposition and thus causing constitutional gridlock. In fact each event or acts are looked upon with a prism of simplistic duality, which trivializes everything. But what is interesting is to note that both Congress and BJP have managed to create a mostly unbroken set of uniform policies at the expense of democratic principles and without bothering about ‘we the people’.

When political parties are rhetorically and theoretically at odd with one another, it is only Supreme Courtwhich can provide meaningful interventions in such cases to restore the faith of people in the idea of constitutionalism. The Supreme Court did its best to restrain the misuse of Article 356 initially by carving out ‘narrowly subtle space’ for judicial review in its seven-judge bench decision in the State of Rajasthan v. Union of India, 1977 and later subjecting the proclamation of Article 356 to judicial review on mala fide ground in the nine-judge bench of the Supreme Court in S.R. Bommai v. Union of India, 1994. In the State of Rajasthan v. Union of India judgment, Justices P.N. Bhagwati and A.C. Gupta brilliantly questioned the ‘holy sanctity’ of the Presidential rule by stating that “merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. ... merely because a question has a political colour, the Court cannot fold its hands in despair and declare ‘judicial hands off’”. In Bommai case the Supreme Court argued that Article 356 can be invoked only in cases where non-compliance with the Constitution is of such a nature that it results in situations which create an impasse and are not capable of being remedied and where governance of the State has become impossible. But, surprisingly, in this case the apex Court failed to extend the scope of judicial review to inquire into the ‘truth and correctness of the basic facts relied upon’ to support the proclamation of Presidential rule. Similarly, in 2006 judgment of the Supreme Court in Rameshwar Prasad and Others v. Union of India failed to give immediate relief to the state concerned despite upholding the constitutional principles set in earlier cases.

In an entirely new development, Uttarakhand High Court initially came out with the idea of organising ‘floor test’ under the supervision of its own Registrar-General and later stayed it due to certain constitutional questions. But it was the second instance when judiciary came out with the idea of floor test. Earlier it happened in the case of Uttar Pradesh in 1998 when Supreme Court ordered composite floor test. But in the recent case of Uttarakhand, the High Court should have first declared the President rule unconstitutional and taken note of 9 disqualified MLAs under Anti-defection laws before ordering floor test.

The need of the hour is new judicial pro-activism. It will establish welcoming trends. First, this effective and timely relief will certainly guard Article 356 from further misuse. It will also set strong and clear legal position based on sound legal reasoningpertaining to Presidential rule. Second, the recommendation of Sarkaria Commission will actually be judicially achieved which says that Article 356 must be used “very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state.”Third, the very recourse to compulsory floor test will discourage 'floor-crossing' and defections. Finally, the excessive intervention of the Centre in the domain of state using Governor will be drastically reduced. The autonomy of the states will not be easily sacrificed and consequently federal character of India will not be hold in absolute abeyance.

Afroz Alam, Ph.D., Associate Professor of Political Science, Department of Political Science, Maulana Azad National Urdu University, Hyderabad E-mail: [email protected]




 



 

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