The news to invoke Article 356 of the Indian Constitution for imposition of president rule in a state was in circulation once again over the last few months. The states in news were first Arunachal Pradesh and then Uttarakhand. In both the cases, the news for the imposition of president rule emerged due to withdrawal of ruling party lawmakers and the resulting political crisis. Even now, the legal battle in the case of Arunachal Pradesh is going on in the Supreme Court, while in the case of Uttarakhand it is going on in the High Court.
In this context, it is necessary to understand Article 356, its uses and the ways in which the ruling parties have often misused it.
Article 356 for Emergency Provision
Article 356 is an Article in part XVIII (Articles 352–360) for imposition of the emergency provisions of the Indian Constitution. The Article originated from Section 93 of the Government of India Act 1935, which was constituted for the accession of the provincial government by the governor.
The National Commission to Review the Working of the Constitution in a consultation paper on Article 356 of the Constitution states in Clause 1, Section 1.4 of the Emergency Provisions of the Constitution that if the President, on receipt of a report from the Governor of a State 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 this Constitution, the President may by Proclamation—
(a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State.
(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
(c) Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.
The constitution-makers’ intention was to invoke Article 356 only for an emergency provision, similar to ordinances. Dr. Ambedkar asserted during the constituent assembly debates that “Whether there is good government or not in the province (state) is not for the Centre to determine”; he further expressed a hope that Article 356 would remain a ‘dead letter
The Misuse of Article 356
However, in reality, even a casual glance at the data show huge contradiction from the assumption made by Dr. Ambedkar. A report by Sarkaria Commission found that since independence, it has been used over 100 times.
Even the absolutely justifiable state governments have bore the brunt of being fired to either make them conform to the union government or to provide the ruling party a chance to obtain power in the state. To prove the authenticity of its decision, Union governments have taken up exactly the same role Dr. Ambedkar feared of—that of centre interfering and deciding on the quality of governance in the states.
The most vindictive use of Article 356 was made in Indian politics in 1970s and 1980s. It was invoked 59 times from 1971 to 1984, with maximum use in the period 1977–1979 during the rule of Morarji Desai government. It was invoked by the post-emergency union government as political grudge against Congress-ruled state governments. Later, Indira Gandhi played the revenge politics after coming back to power in 1980 and invoked it 17 times during the period 1980–1984 till her party was in power.
Even Pandit Jawaharlal Nehru misused Article 356 by invoking it to displace the majority Communist government of Kerala. However, Indira Gandhi is identified of having exploited it as a weapon to settle political scores over opposition-ruled state governments. Moreover, there was sharp increase in Article 356 being invoked post- 1967 after the defeat of Congress party in several states of India.
In reality, Indira Gandhi imposed Article 356 through the 38th Constitutional Amendment during emergency barring judicial review of even the Presidential order. Fortunately, the Morarji Desai-led government brought forth the 44th Constitutional Amendment Act in 1978, restoring the original Article 356, as visualised by Dr. Ambedkar.
Article 356 has been invoked the most number of times in Manipur. The state is going through profoundly disintegrated internal politics and violence for long periods that have often been the cause behind the Union government’s imposing its decree on the state.
The politically significant states of Uttar Pradesh and Bihar, other than Manipur, with their disintegrated polity, have been under the watchful eyes of the government in centre.
Fall in the Misuse of Article 356
There has been a great reduction in the frequency of invoking Article 356 since mid- 1990s despite the opposition ruling in an increasingly large number of states.
Two factors are responsible for this reversal: strengthening of regional parties and Supreme Court’s intervention.
Rise of Regional
Parties A significant change was observed in the nature of union governments in the mid 1990s. Prior to the 1990s, even when coalition governments were bestowed the power in Delhi, the government was mainly dominated by a few national parties.
The mid-1990s in Indian politics witnessed the rise of regional parties that changed the nature of government giving an increasingly diplomatic and elusive character to Indian polity. Now the national parties were constantly looking to seek new regional allies for coalition, and hence were cautious towards invoking Article 356 against their governments.
In addition to registering their presence in the governance system and thus causing direct political impact, the strengthening of regional parties also led to reinvigoration of institutional safeguards like courts and the President to challenge any discriminatory imposition of Article 356.
Supreme Court Intervention
The Supreme Court passed the notable SR Bommai judgement in 1994, when the Court deliberated upon the provisions of Article 356 and related issues. This case proved to have remarkable effect on Centre-State relations. This judgement turned crucial in preventing the misuse of Article 356.
In the Bommai case, the apex court pointed out the rise of regional parties to conclude that determining the governance quality in states was no longer the privilege of union government, and dissolution of an opposition-led state government cannot be held valid.
Guidelines Laid Down by the Supreme Court
In the aforementioned case, the Supreme Court set certain guidelines to prohibit the misuse of Article 356 of the constitution.
1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
2. Centre should give a warning to the state and a time period of one week to reply.
3. The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only:
(a) Is there any material behind the proclamation?
(b) Is the material relevant?
(c) Was there any mala fide use of power?
4. If there is improper use of A 356, then the court will provide remedy.
5. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament, i.e. he shall not dissolve the assembly.
6. Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery.
7. Article 356 shall be used sparingly by the centre; otherwise, it is likely to destroy the constitutional structure between the centre and the states