Misuse Of Article 356 63511h

PROJECT ON CONSTITUTIONAL GOVERNENCE (CG II)

FAILURE OF CONSTITUTIONAL MACHINERY IN THE STATE - ROLE OF UNION GOVERNMENT – A CRITIQUE SUBMITTED BY:

SUBMITTED

TO:

Parikshit Shukla

Ms. Aakanksha Kumar

II SEMESTER (1281)

(FACULTY OF LAW)

Word Count - 5102 NATIONAL LAW UNIVERSITY, JODHPUR WINTER SEMESTER

Page 2 TABLE OF CONTENT



TABLE OF CONTENT........................................................................................................... 2 ACKNOLEDGEMENT........................................................................................................... 3 SCOPE ...................................................................................................................................... 4 RESEARCH METHODOLOGY ........................................................................................... 5 INTRODUCTION ................................................................................................................... 6 ROLE OF THE UNION ........................................................................................................ 11 GENESIS AND DEVELOPMENT OF ARTICLE 356 ..................................................... 12 A.

THE GOVERNMENT OF INDIA ACT 1935 ........................................................................ 12

B.

DRAFTING COMMITTEE OF THE CONSTITUENT ASSEMBLY ........................................... 12

C.

THE SARKARIA COMMISSION REPORT,1987 ................................................................. 13

D.

S. R. BOMMAI V. UNION OF INDIA................................................................................. 15

MISUSE OF ARTICLE 356 ................................................................................................. 17 CONCLUSION ...................................................................................................................... 21 INDEX OF AUTHORITIES ................................................................................................. 23

Page 3 ACKNOLEDGEMENT On the completion of this project, I take up the opportunity to thank people without whom this project would have never seen the light of the day. I also thank god for giving me the strength and life which is the reason why I could complete the project. I extend my heartfelt gratitude to, my mentor and teacher, Miss. Aakanksha Kumar, Faculty of Law, NLU Jodhpur whose continuous guidance and provided me with the muchneeded impetus and gave me a better insight into the topic. I am grateful to the IT Staff for providing all necessary facilities for carrying out this work. I thank all of the Library Staff for providing me the assistance anytime needed. I also thank my friends and batch mates for providing me the much needed aid whenever needed. Most importantly, I would like to thank my parents for providing me the much-needed force for completing this project.

Page 4 SCOPE This project talks about the development of Article 356 since the making of the constitution and it throws light on the misuse of this Article in India by the central government. It also talks about the how the misuse of this article has gone down with the help of few contemporary examples.

Page 5 RESEARCH METHODOLOGY Subject: Constitutional Governance II Topic: Failure of constitutional machinery in the state- role of Union government-A critique The research method which I opted for doing this project is Doctrinal research from primary and secondary sources. I researched on web database having articles and reports related to my topic. In addition to that, I also referred books available on Article 356.

Page 6

INTRODUCTION India is not purely federal. When we compare it with federalism which is in America, India's federalism is similar and distinct to the federalism of America at the same time. Unlike America, it is a distributed entity that derives its power from a single source - the Union. Sovereignty and the powers of governance are distributed and shared by several entities and organs within the Indian constitutional system.1 Dr. Babasaheb Ambedkar, who chaired the Drafting Committee of the Constituent Assembly, stressed the importance of describing India as a 'Union of States' rather than a 'Federation of States.' He said: ' what is important is that the use of the word “Union” is deliberate .Though the country and the people may be divided into different States for convenience of istration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. India is a federation but with unitary bias, this is how one would describe Centre-state relations of India. Unitary bias is always present in India but, in times of emergencies, Centre have these extraordinary powers over all the states. In case of State emergency, when the state government fails to function as per the Constitution, state comes under direct control of the central government. The Indian Constitution has strong centralizing features. Article 356 empowers the central government to dismiss elected state governments and impose direct rule in the states. The framers of the Constitution had hoped that this emergency provision would be used as a last resort, invoked only if the constitutional machinery in a state had failed.2 If there is

1

National Commission to Review the Working of the Constitution, A Consultation Paper on

Article 356 of the Constitution, II, ¶ 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b25.htm 2

Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha

Secretariat, 1949), p. 177 [Hereinafter Constituent Assembly Debate].

Page 7 one article of the constitution that has been much abused, and as much maligned, it is article 356 of the Indian Constitution.3 The article provides 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 the constitution, the president may by proclamation Article 356 is one among the nine Articles, beginning from Art. 352 and ending with Art. 360, known as Emergency Provisions, enumerated in Chapter XVIII of the Constitution. Art. 356 was introduced as Draft Article 278, on August 3, 1949 by the then Union Law Minister, Dr. B.R. Ambedkar, in the Constituent Assembly, and was cleared by it the subsequent day.4 Article 356 is one of the major tools in the hands of the Union Government enabling it to check any disruptive and separatist tendencies in their infancy. In order to keep our unique Federal system with its strong Unitary features in fact this potent medicine cannot be dispensed with.5 To prevent the article’s arbitrary use, several institutional safeguards were set in place. First, the president of India, who makes the official proclamation of central rule in the states, can return the central cabinet’s recommendation for the imposition of central rule back to the cabinet for reconsideration if he or she finds the invocation of the emergency provision

3

Khanna, H.R., Use and Misuse of Article 356, BAXI, UPENDRA(ED.), RECONSTRUCTING THE

REPUBLIC, (New Delhi: Haranand Publications), 1999, p. 154. 4

Hande, H.V., Limitations of Article 356, THE HINDU, May 6, 2003 as available on

http://www.hindu.com/thehindu/op/2003/05/06/stories/2003050600010200.htm (Last visited on 1/3/16) 5

Prasad, Janardhan, ARTICLE 356 of the Constitution of India, JANARDHAN PRASAD D V

S as available on http://www.janardhanprasaddvs.com/article-356.html (Last visited on 1/3/16)

Page 8 unreasonable.6 Such a presidential response is seen in India as politically embarrassing to the central government—it signals to the wider public that federal officials are misusing constitutional provisions.7 Second, the government, having secured presidential assent, must get the proclamation of central rule ed in both houses of Parliament within two months, failing which the proclamation ceases to be effective. This provision gives parliamentarians an opportunity to question the government’s decision and, if they find it arbitrary, vote down the proclamation. Finally, a government decision to impose central rule in any state can be challenged in the courts. None of these safeguards, however, prevented successive central governments from imposing Article 356 in the states 108 times over nearly six decades. In a large number of these cases, invocation of the emergency provision was arbitrary. Article 356, and the way it has been put to use in recent years, is a matter of debate. This article was referred to as dead letter by B. R. Ambedkar, Chairman of the Drafting Committee.8 He intended it to be used only as the last resort, but it has hardly ever been so. Article 356 not only negates the federal character of the Indian Political System, but also militates against the democratic doctrine of “popular sovereignty” since an elected government is suspended whenever President’s rule is enforced. Judicial review of President’s rule clamping Article 356 was completely shut out during the emergency by the 38th Amendment. However, it was revoked by the 44th Amendment. A time came when judiciary had to intervene to interpret the

6

This safeguard was introduced in 1978. The president, however, cannot overrule a cabinet

recommendation. Further, if the cabinet sends the president the recommendation a second time, the president is obliged to assent to it. The president can return a recommendation only once. 7

Rudolph & Rudolph, Redoing the Constitutional Design: From an Interventionist to a

Regulatory State in ATUL KOHLI (ED.), THE SUCCESS Cambridge University Press, 2001), p. 143 8

CONSTITUENT ASSEMBLY DEBATE, Supra note 2

OF INDIA’S

DEMOCRACY (New York:

Page 9 scope of Article 356, and it happened when the Supreme Court made its ruling in S. R. Bommai v. Union of India9 case(1994). The apex court made it clear that the President’s rule is justiciable. The Supreme Court or the High Court can strike down the proclamation if it finds it to be malafide. Also, powers of the President under Article 356 are not absolute – he must have taken the decision based on some pre-condition. As far as the advice of the Council of Ministers is concerned, the advice itself cannot be reviewed BUT the material on which the advice is given can be scrutinized. The court can also invalidate a proclamation if it finds suitable reasons for doing so and can also overrule Parliament if need be. Thus we can say that because of the arbitrariness to which Article 356 has been subjected to over the years, it has defeated the very purpose for which it was included in our Constitution. And at the same time, judiciary has made it clear that the scope of Article 356 is limited and it should only be used when there is no other option. “No provision of the Constitution has been so often used, misused, and abused as Article 356, 108 times since 1954”. -

D.D. Basu10

Article 35611 of the Constitution was most keenly discussed and debated in the Constituent Assembly. The Founding Fathers apprehended that, if and when it would be misused, it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of

9

S.R. Bommai v. Union of India, (1994) 3 SCC 1

10

D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483

11

G. AUSTIN, THE INDIAN CONSTITUTION — CORNERSTONE

OF A

NATION, (Delhi: Oxford

University Press), 1999, p.187; See WHEARE, K.C., MODERN GOVERNMENT, (United Kingdom: Oxford University Press), 1971, p.18; See JENNINGS, G., SOME CHARACTERISTICS INDIAN CONSTITUTION, (Oxford University Process), 1953 ,p. 55;

OF THE

Page 10 the article would not be used to strengthen the corporative federalism12 but it would be used in resolving the ministerial crisis in the State. As observed by Shiban Lal Saxena “… I feel that by these articles we are reducing the autonomy of the States to a farce. These articles will reduce the State Governments to great subservience to the Central Government. But what could they do, they placed a hope in an apologetic manner that” … “[the] articles will never be called into operation and that they would remain a dead letter”. Here, it has to be seen in the context of hope of “rarest of the rare” use, that Article 356 has been used more than 120 times, calculating an average more than two times in a year. According to the Sarkaria Commission’s Report13, which analysed 75 cases of President’s Rule from June 1951 to May 1987 and found in 52 cases out of 75, Article 356 has been used not meant for. Thus the use of the article for political purposes is to uproot the federal character and democratic principle which is guaranteed by the judiciary as basic structure of the Constitution.14 Further it is mentionable that there are four institutions surrounding this Article 356, they are, the President—the creature of the Constitution i.e. the constitutional head, the protector of the Constitution, the State Governor—the constitutional office but seen as pawn on political chessboard, Parliament and the ultimate one is Judiciary. However, it is seen that despite all these and presence of the Constitution, Article 356 is not only misused but abused as well.

12

CONSTITUENT ASSEMBLY DEBATE, Supra note 4 at p.141.

13

National Commission to Review the Working of the Constitution, A Consultation Paper on

Article

356

of

the

constitution,

II,

¶

2.1

(2002),

as

available

on

http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited March 10, 2016) [Hereinafter NCWRC]. 14

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Page 11 ROLE OF THE UNION Article 355 imposes an obligation upon the Centre to ensure that each State Government is carried on in accordance with the Constitution and Article 356 is designed to strengthen the hands of the Centre to discharge this obligation and to protect a State, the framers of the Constitution felt it necessary not to bind the Centre to act under Article 356 on Governor's report.15Article 357 confers powers to the Parliament to exercise at the time of President's rule. When the proclamation under Article 356(1) is declared then the powers of the State Legislature are to be exercised by or under the authority of Parliament, Parliament can then confer on the President the power of the State Legislature to make laws. The President may also be authorised by Parliament to delegate the power conferred on him, to any other authority specified by him subject to such conditions as he may impose. The President may authorise, when the Lok Sabha is not un session, expenditure from the State Consolidated Fund pending its sanction by Parliament. A law made under these provisions by the Parliament or the President, or the authority in which the power to make laws is vested under Article 357(1) (b). Such a law continues to have effect, to the extent it could not have been made but for the issue of the proclamation under Art.356(1), even after the proclamation ceases. Such a law may be altered, repealed or amended by the State Legislature. The Law does not come to an end automatically as soon as the proclamation is revoked This means that though the power of the Union to make laws for the State concerned on the subject within the state list ceases as soon as the proclamation under Article 356(1) comes to end, the laws made during the existence of the proclamation continue to remain in force until they are altered or repealed by the State Legislature.

15

M.P Jain, Indian Constitutional Law,7th ed., ¶ 713

Page 12 GENESIS AND DEVELOPMENT OF ARTICLE 356

a.

THE GOVERNMENT OF INDIA ACT 1935

This Act first introduced the concept of 'Division of Powers' in British India. It was an experiment where the British Government entrusted limited powers to the Provinces. But since there was very little faith lost between the British and the Indian people, the British took precautions to keep a sufficient check on the powers given to the Provinces. These precautions were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where the Governor General and the Governor, under extraordinary circumstances, exercised near absolute control over the Provinces.16 b.

DRAFTING COMMITTEE OF THE CONSTITUENT ASSEMBLY

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635 amendments tabled.17 When it was suggested in the Drafting Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act, 1935, upon the President, many of that eminent committee vociferously opposed that idea. Dr. Babasaheb Ambedkar then pacified the stating: “In fact I share the sentiments expressed by my Hon'ble 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. If at all they are brought into operation, I hope the

16

NCWRC First Day in the Constituent Assembly, as available http://parliamentofindia.nic.in/debates/facts.htm (last visited March 5th, 2016). 17

on

Page 13 President, who is endowed with these powers, will take proper precautions before actually suspending the istration of the provinces.” He added: “I hope the first thing he will do would be to issue a clear 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.”18 By virtue of this earnest advice given by the prime architect of the Indian Constitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events. A good Constitution must provide for all conceivable exigencies. Therefore this Article is like a safety valve to counter disruption of political machinery in a State. c. THE SARKARIA COMMISSION REPORT,1987 In spite of the precautions laid down in Article 356, the Article was invoked on several occasions by the Centre due to ambiguities in its wording. It was only in 1987 when the Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356 was cleared. The Sarkaria Commission recommended extremely rare use of Article 356. The Commission observed that, although the age, '. . . the government of the State cannot be carried on in accordance with the provisions of this Constitution . . .' is vague, each and every breach and infraction of constitutional provisions, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery. According to the Commission, Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report discourages a literal construction of Article 356(1).19

18 19

NCWRC, supra note 13 The Sarkaria Commission Report, (1987).

Page 14 The Commission decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions of Article 356, all attempts should be made to resolve the crisis at State level.20 The report further recommended that a warning be issued to the errant State, in specific that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into . However, this may not be possible in a situation in which not taking immediate action would lead to disastrous consequences.21 In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority in the Assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without delay, the report recommends that the Governor request the outgoing Ministry to continue as a caretaker government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of malistration or corruption and agrees to continue.22 The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate.23During the interim period, the caretaker government should merely carry on the day-to-day government and should desist from taking any major policy decision.24 Every Proclamation of Emergency is to be laid before each House of Parliament at the earliest, in any case before the expiry of the two-month period stated in Article 356(3)25

20

Id. Id. 22 Id. 23 Id. 24 Id. 25 Id. 21

Page 15 The State Legislative Assembly should not be dissolved either by the Governor or the President before a Proclamation issued under Article 356(1) has been laid before Parliament and the latter has had an opportunity to consider it. The Commission's report recommends amending Article 356 suitably to ensure this.26The report also recommends using safeguards that would enable the Parliament to review continuance in force of a Proclamation.27 The Governor's Report, which moves the President to action under Article 356, should be a 'speaking document, containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356.' The Commission's report also recommends giving wide publicity in all media to the Governor's Report. d.

S. R. BOMMAI V. UNION OF INDIA

S. R. Bommai v. Union of India was a landmark in the history of the Indian Constitution. It was in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 was to function. 'After the Supreme Court's judgment in the S. R. Bommai case, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an ime and the constitutional machinery in a State has collapsed.'28 Supreme Court set out in the case of S.R Bommai v. Union Of India the limitations of Article 356. The Court said any Presidential order clamping Art. 356 had to be ratified by both the Houses of Parliament. In addition, the powers of the Judiciary to review the bona fide or mala fide nature of the Presidential order were reiterated.

26

Id. Id. 28 Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996. 27

Page 16 What Bommai29 did was to lay down certain guidelines and certain standards in exercising power under Article 356. In fact, it is the case where we elucidated the meaning of the Article, consistent with the spirit of the Constitution and the background in which the Article was enacted. It was brought to the notice of the Supreme Court, and it was an undeniable fact, that the Article was used indiscriminately, or misused as one may call it, on a number of occasions, before the judgment in the Bommai case. Even at that time, it was said that on more than 90 cases, the power was exercised; and in most of the cases, it appeared to be of doubtful constitutional validity. That power was exercised to dismiss the State Governments controlled by a political party opposed to the ruling party at the Centre. The Supreme Court wanted to introduce certain clarity to regulate the power, by defining the power, by laying down standards according to which the power is to be exercised. Since the judgment of the Supreme Court becomes the law of the land, it is obvious that the Central Government is bound by the judgment. It is therefore clear that after the Bommai case, the governments have been more careful, more on guard, more wary of exercising this power, lest their exercise should be set aside by the Courts. As we all know, in the case of the dismissal of the Uttar Pradesh Government, the proclamation by the President was set aside by the Allahabad High Court following the Bommai judgment. But for the Bommai judgment, it is obvious the High Court could not have set aside the order of the President. That is the difference between pre-Bommai and post-Bommai.30

29

BOMMAI CASE, supra note 9. Jeevan Reddy, B.P., Bommai verdict has checked misuse of Article 356, FRONTLINE, 15(4) as available on http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited on 10/3/16) 30

Page 17 MISUSE OF ARTICLE 356 Article 356 deserves to be abrogated. The founding fathers were under the impression that this provision would be used only in the rarest of rare cases, that it would be virtually a sword which would never be taken out of its sheath, except in a flagrant case under Article 365. This latter Article states that if any particular State defies a Central direction validly given, it shall be lawful for the President that is the Cabinet, to hold that the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation arises, Article 356 may be attracted. But the Court will go into the question whether the direction given by the Union to the State was itself valid. Only in a case of such valid direction within the competence of the Union being ignored by the State, can Article 356 come into operation. In over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a legitimate use of Article 356. If the temptation to use this presidential power is perennial, as is seen by its continual abuse, the time has come for a change in constitutional perspective. In short, Article 356 should be kept in cold storage, or even formally abolished.31 Justice V.R. Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and original constitutional thinkers since Independence. In an interview32, he opined that, “Before the Bommai decision was rendered, the constitutional position was understood to mean excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now the law is clear that it is possible for the court, it is proper for the judges, to examine whether the relevant power has been misused in the sense that it is arbitrary, mala fide or such that there is no reasonable material to such a conclusion as the breakdown of the Constitution. Indeed it must be acknowledged that even the Pakistan Court has taken a

31 32

Id. KHANNA, H.R., Supra note 3.

Page 18 somewhat similar, view, even earlier than the Indian Court. Now, therefore, it is clear that reckless exercise of Article 356 power will meet with its Waterloo in the Court.” The daring way in which the AIK is demanding the dismissal of the DMK Ministry in Tamil Nadu under Article 356 shows that political terrorism is apt to overpower constitutional propriety. What is still more shocking is that the AIK alleges an earlier agreement with the BJP that, if the latter came to power, President's Rule would be imposed in Tamil Nadu. This very statement is sufficient to hold that any exercise of Article 356 by the Centre is utterly untenable. The Sarkaria Commission has condemned the exercise of Article 356 power as almost always motivated or induced by extraneous considerations. It is time Article 356 power was handcuffed in the way Sarkaria has suggested, although personally I might go further to hold that only after Parliament es a resolution in both Houses should President's Rule be used against a State. Why? Because it is a sabotage of federalism to usurp State power by the Centre and such a grave frustration of the basic structure of the Constitution needs strong limitations to be put on the exercise of the power. So it is that I demand a prior resolution by both Houses as a check on misuse. The Bommai33 ruling is a severe warning to the Union Government. It must be open to the affected or intimidated State to move the Supreme Court by a quia timet action to stay hasty intervention in case there is clear indication of such a proposed action. It must be ed that the State Cabinet is answerable to the State legislature and so long as it commands its confidence the pleasure of the Governor is a mere constitutional euphemism. The powers of the Governor as well as of the President have been explained at some length in Shamser Singh's

33

S.R. Bommai v. Union of India, (1994) 3 SCC 1

Page 19 case34. The President as well as the Governor are bound by the Cabinet's advice and to act in excess of such advice is to violate the Constitution and invite the Court's interdict. Demands by regional or even national parties to overthrow State-level democracy under Article 356 cannot be acceded by the Centre. This is not a matter of political vendetta or hostility or estrangement. Constitutional values must regulate the President's conscience when exercising Article 356 power. Noises made by regional parties or others cannot affect the voice of the Constitution. This applies to the Tamil Nadu party's demand as well as the clamour made against the West Bengal Government.35 The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial figure as the head of the State and has solemn functions in that capacity. Some of them are really effective powers. As a rule, the Governor is bound by the advice of his Cabinet. He cannot be Janus-faced, looking in both directions. He cannot be a Central spy or an agent to carry out the Union's mandate. Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to the State Cabinet, he can be a pathetic functionary sometimes asked to perform pathetic measures by the Centre. He has to be an independent authority, his allegiance being wholly to the Constitutional obligations to act on the advice of the Council of Ministers. He may, as in England, caution, encourage, or otherwise give advice, but ultimately must abide by his Cabinet's recommendation for action. That is why sometimes it has been said that a Governor is a glorified cipher. So is the President. But this is not wholly true. They have power to ask for information, explanation and reconsideration. Wisely used, these functions plus the power to refer Bills to the President, for consideration and assent, may make the Governor a factor to be reckoned with. So it can be

34 35

Shamsher Singh v. State of Punjab, 1974 AIR 2192 KHANNA, H.R., Supra note 3.

Page 20 said that the Governor is more than a glorified cipher. He reigns, but does not rule. He advises, but is bound by the advice of his Ministers. He is an elder statesman but not an authority as the executive head of the State. Such is the delicate constitutional balance.36

36

KHANNA, H.R., Supra note 3.

Page 21 CONCLUSION Article 356 of the Constitution was most keenly discussed and debated in the Constituent Assembly. The Founding Fathers apprehended that, if and when it would be misused, it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of the article would not be used to strengthen the corporative federalism1 but it would be used in resolving the ministerial crisis in the State.37 As observed by Shiban Lal Saxena “… I feel that by these articles we are reducing the autonomy of the States to a farce. These articles will reduce the State Governments to great subservience to the Central Government.38 But what could they do, they placed a hope in an apologetic manner that” … “[the] articles will never be called into operation and that they would remain a dead letter”.39 It has to be borne in mind that the success or failure of constitutional provisions depends on the final analysis not upon the elegance of the language in which they are couched, important though that be, it depends more upon the way they are actually worked. Used properly and in the right spirit, article 356 can subserve national interests, be misused and abused for ulterior purposes, it would operate as an instrument of oppression.40 It is evident that there is a lack of effective safeguards against the abuse of Article 356 of the Indian Constitution. The safeguard of 'parliamentary approval' - outlined in Article 356(3) - of a Proclamation under Article 356(1) could be biased because the Party that is in power at the Center generally dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring a particular imposition (or failure to impose) of President's Rule to be wrongful cannot undo the damage already done. Presently, in India there is lack of safeguards against abuse of Article 356 of Constitution of

37

CONSTITUENT ASSEMBLY DEBATE, Supra note 2 at p.141. Id at p. 143. 39 Id, at p. 177. 40 KHANNA, H.R., Supra note 3. 38

Page 22 India. Though, in Article 356 (3), a safeguard of "parliamentary approval" is mentioned but Proclamation under Article 356(1) could be biased as party who is at the center, generally dominates the will of the Parliament because of the majority and because of this, abuse of Article 356 is still very much prevalent. However, as we have observed, since the S.R Bommai decision, the original intent behind the inclusion of this Article is being fulfilled now. Moreover, the role of the central government is still the same but the arbitrariness has gone down. So we will have to suffice for now with occasional outcries against the Union Executive unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called Article 356.

Page 23 INDEX OF AUTHORITIES CASES Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. ------------------------------------- 10 S.R. Bommai v. Union of India, (1994) 3 SCC ------------------------------------------------------- 9 Shamsher Singh v. State of Punjab, 1974 AIR 2192 ----------------------------------------------- 19 OTHER AUTHORITIES First Day in the Constituent Assembly, as available on http://parliamentofindia.nic.in/debates/facts.htm (last visited March 5th, 2016). ----------- 12 Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996 ----------------------------------------------------------------------------------------------- 15 TREATISES D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483 ------------------------- 9 M.P Jain, Indian Constitutional Law,7th ed., ¶ 713------------------------------------------------ 11 REPORTS Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p. 177 [Hereinafter Constituent Assembly Debate]. ----------------------- 6 National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the Constitution, II, ¶ 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm ----------------------------------------------- 6 Rudolph & Rudolph, Redoing the Constitutional Design: From an Interventionist to a Regulatory State in ATUL KOHLI (ED.), THE SUCCESS OF INDIA’S DEMOCRACY (New York: Cambridge University Press, 2001), p. 143 -------------------------------------------------------- 8 The Sarkaria Commission Report, (1987 ------------------------------------------------------------ 13

Page 24 ARTICLES G. AUSTIN, THE INDIAN CONSTITUTION — CORNERSTONE OF A NATION, (Delhi: Oxford University Press), 1999, p.187; See WHEARE, K.C., MODERN GOVERNMENT, (United Kingdom: Oxford University Press), 1971, p.18; See JENNINGS, G., SOME CHARACTERISTICS OF THE INDIAN CONSTITUTION, (Oxford University Process), 1953 ,p. 55 ----------------------------------------------------------------------------------------------------------- 9 Hande, H.V., Limitations of Article 356, THE HINDU, May 6, 2003 as available on http://www.hindu.com/thehindu/op/2003/05/06/stories/2003050600010200.htm (Last visited on 1/3/16) -------------------------------------------------------------------------------------- 7 Jeevan Reddy, B.P., Bommai verdict has checked misuse of Article 356, FRONTLINE, 15(4) as available on http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited on 10/3/16) ----------------------------------------------------------------------------------------------- 16 Khanna, H.R., Use and Misuse of Article 356, BAXI, UPENDRA(ED.), RECONSTRUCTING THE REPUBLIC, (New Delhi: Haranand Publications), 1999, p. 154. --------------------------------- 7 Prasad, Janardhan, ARTICLE 356 of the Constitution of India, JANARDHAN PRASAD D V S as available on http://www.janardhanprasaddvs.com/article-356.html (Last visited on 1/3/16) --------------------------------------------------------------------------------------------------- 7 CONSULTATION PAPER National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the constitution, II, ¶ 2.1 (2002), as available on http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited March 10, 2016) [Hereinafter NCWRC]. ----------------------------------------------------------------------------- 10