Article 356 and an activist judiciary
NEWS The recent order of the Andhra Pradesh High Court directing the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’ is shocking as it opens up the possibility of use or even misuse of Article 356 by the judiciary. The Supreme Court of India has stayed the order.
ISSUE The High Court could pass such an order due to the presence of a controversial provision in Article 356 i.e. the term ‘otherwise’.
STORY BEHIND THE INCLUSION OF ARTICLE 356
- No liberal democratic Constitution in the world has a provision such as Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of India and Pakistan.
- Both of them borrowed this provision from the Government of India Act, 1935.
- During the freedom struggle, the leaders of India were in so much opposition to this provision that they forced the British government to suspend it.
- But after Independence, the same was incorporated in the Constitution of India, in the name of democracy, federalism and stability.
- On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power.
THE WORD “OTHERWISE”
- According to Article 356 of the Constitution, the President on receipt of a report from the governor of a State or otherwise, that the government of the State is not being carried according to constitutional provisions, can impose the emergency situations as provided under the Article.
- The word ‘otherwise’ was criticised because it can include anything.
- Thus, inclusion of article 356 was called a ‘retrograde step’ that would reduce the autonomy of the states to a farce.
Article 356 has been used/misused more than 125 times though B.R. Ambedkar had assured that it would remain a dead letter. In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States.
INSTANCES OF USE OF ARTICLE 356
- In the very first invocation of Article 356 in 1951, Jawaharlal Nehru removed the Gopi Chand Bhargava Ministry in Punjab though he enjoyed the majority.
- In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala and Governor B. Ramakrishna Rao in his report argued that the government had lost ‘support of overwhelming majority of people’ and belittled the fact of it enjoying the confidence of the House.
- Indira Gandhi has the dubious distinction of using Article 356 as many as 27 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc.
- But the Janata government did worse than Mrs Gandhi by removing nine majority Congress governments in one stroke on April 30, 1977.
- Mrs Gandhi replied in the same currency on her return to power in 1980 by removing nine Opposition majority governments at one go.
- Subsequent governments too acted in similar fashion including the Narendra Modi government which invoked Article 356 in Arunachal Pradesh on Republic Day itself, in 2016.
- The most notable case of non-use of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid on December 6, 1992 as in the draft Constitution, emergency power could be used to safeguard the ‘legitimate interests of minorities’ and the government was fully aware of a breakdown of constitutional machinery in Uttar Pradesh.
- Today, when many constitutional experts are of the view that the judiciary is increasingly becoming more executive-minded than the executive itself, the observations of the Andhra Pradesh High Court are a worrisome sign.
- The word ‘otherwise’ should be deleted from Article 356 and the provision should be used only sparingly and to never remove a majority government.
- Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself as it would encourage the government to appoint committed judges.