Debating Article 356

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When the Uttarakhand High Court quashed the Centre’s decision to impose President’s Rule in that state, it brought Article 356 back in focus. Prof. Avinash Kolhe gives us the background to this controversial Article and the busy use it’s been put to since Independence.

IIn the last week of April 2016, the Uttarakhand High Court quashed the Centre’s decision to impose Presidents’ rule in the state. Not only this, the High court observed that such decisions amount to undermining the foundation of federalism in our country.

Though India has been practising the democratic model of governance, we are yet to imbibe the spirit of democracy.

Consequently, no political party, be it the BJP or the Congress, can tolerate a state government of the opposition party. The ruling party at the Centre, whether BJP or Congress would find something or other to use the dreaded Article 356 and dismiss the democratically elected state government just to ensure that their party comes to power in the state. India has witnessed many Uttarakhands in the last 60-odd years.

It must be remembered that Uttarakhand is just a year away from Assembly elections and the state would be going to poll sometimes in 2017. In the Assembly elections held in 2012, Congress came to power. The BJP won 26 seats in the house of 70 seats and was the main opposition party. It tempted nine MLAs of Congress and staged a palace coup to topple the Rawat ministry.

The people of India are disappointed in President Pranab Mukherjee, a senior politician. He could have returned the advice of the Council of Minister. He has this power given to the President of India under the 44th amendment, 1978, which empowers the President to return the advice of the Council of Minister once. If the same advice comes back a second time, he must act on it. Many presidents before him, have used this power often, and saved the day.

No more ‘rarest of rare’
This also raises, once again, the question about the use of Article 356 which was expected to be used in the rarest of rare situations. And look at how we have used it over a hundred times after Independence. It is also necessary to recall that such an article was an important part of the Government of India Act, 1935. This act, on one hand, granted provincial autonomy to the provinces, but on the other hand, allowed the British or British-appointed Governors to dismiss the elected provincial governments. This provision was unacceptable to the Congress party which was set to form governments in many provinces. After a lot of haggling, Congress agreed to take power. The Congress ministries were in power for about 22 months and had resigned when the UK declared India’s participation in the World War II without consulting Indian leaders. So the question of use or misuse of this article then did not arise.

When Article 356 was being debated in the Constituent Assembly, many members were uncomfortable with the highly undemocratic nature of the said article. Dr. Ambedkar however knew that in our country where linguistic, religious and ethnic passions could run high, some control over the state government is necessary. And he defended Article 356 but expressed hope that it would remain a dead letter one, never to be used. Unfortunately, right from the Pandit Nehru government to the Atal Bihari government to the Modi government, all have used this article for narrow political ends. What surprised many in the 1950s was that a thorough-bred democrat like Pandit Nehru too succumbed to the pressure. He was under tremendous pressure from Indira Gandhi, the then Congress President and Govind Vallabh Pant, the then Union Home Minister.

The Non-Congress government of DMK in Tamil Nadu in 1969, the Left Front government in West Bengal in 1977 and the Akali Dal in its Anandpur Sahib session in 1973 had called for the repeal of this article as these non-Congress forces realised that Article 356 could be used against them. Then came Justice Sarkaria commission appointed by Indira Gandhi in 1984. The Sarkaria commission had observed that the article should not be dropped, but should be used in the rarest of the rare cases. But this too turned out to be just a fond hope.

Can we control the misuse of Article 356?
Now we are back to once again debating the Article 356. The real issue is the efficacy of Article 356 and how to control its blatant misuse. The Supreme Court decision given in the S.R. Bommai case in 1994 laid down some clear norms about the dismissal of a state government. It clearly stated that the floor test in the House is the only way to ascertain the situation about who has the majority support. Despite this, we still have instances like Arunachal Pradesh and Uttarakhand. While delivering the Bommai judgment in 1994, Justice P.B. Sawant extensively quoted Dr. Ambedkar to prove that the ‘Emergency Provisions’ including Article 356 were not supposed to be wantonly used by the Central government. In the Constituent Assembly debate
Dr. Ambedkar had to pacify angry members as he wanted to retain article 356. He had said, “The article ought to remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with all these powers, will take proper precaution before actually suspending the administration of the provinces.” Lofty ideals and words indeed!

In fact, the Constitution is clear about the use of 356. It can be only invoked if a ‘situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution’. But so far, defections were engineered, rebellions were created and state governments were reduced to an artificial minority to create an illusion of a Constitutional crisis, to get a hostile state government sacked. The usual ploy of the Central government is to create a situation wherein a state government is reduced to a minority and then sack it using article 356. In fact, the Constitution does not create an obligation that the political party forming the minority should necessarily have a majority in the legislature. Minority governments are not unknown. What is necessary is that the government should enjoy the confidence of the House.
Despite the Bommai judgment, the cases of misuse of Article 356 have not come down. This only shows that the Bommai judgement has outlived its utility, and time has come to debate the issue afresh.

A provision like Article 356 is not to be found in the constitutions of democratic countries like the US. But then, India is a unique society in more ways than one. The purpose of Article 356 is quite laudable and valid even in 2016. We do need some mechanism to check the state governments in case they run amok. But Article 356 in its present form does not answer that need and neither is the Bommai judgement. Let us take this opportunity to start a national debate and find some solution.


Avinash-Kole

Prof. Avinash Kolhe

Prof. Avinash Kolhe, Asst. Professor in Political Science at D. G. Ruparel College, Mumbai.

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