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ARTICLE 356: AGAINST PRINCIPLE OF CONSTITUTIONALISM

Author: Alok singh, II year of B.A.,LL.B. from University of Petroleum and Energy Studies


Meaning of constitutionalism: Before going into the arguments, we need to understand the meaning of constitutionalism. Constituionalism means that the power of the government should be limited and their actions should be free of arbitrariness, unfairness, and unreasonableness. There should be a negative restriction on the powers of the state. Then only can we say that a country is a welfare state. For good and democratic governance, it is very important to have the “rule of law” instead of rule by law. Then only can we say that the government is following the principle of constitutionalism. It is not important to have a constitution, but it is important to have “constitutionalism” because many countries have constitutions but there is still discrimination going on within their territory . Countries like Pakistan and China have the constitution but still have minorities within their countries being oppressed just because they do not have constitutionalism.


When president rule can be Invoked by article 356: Whenever president upon report of governor or otherwise is satisfied that constitution machinery in state has been failed then the president is having the power to impose president rule in a state.


History of article 356: Article 356 of India constitution traces its origin from section 93 of government of India act,1935.Britishers were also having the same power when they enacted the government of India act,1935.But after the independence of India framers of our constitution enumerated this provision into our constitution.


Against the principle of constitutionalism: Now let’s talk about article 356 and how it is acting as an instrument of misuse and why it is against the principle of constitutionalism. Article 356 is all about the imposition of president’s rule whenever the constitutional machinery of a state fails, but the question here is how we will determine the situation where constitutional machinery has failed.


Many times we have seen that the central government has not given any proper reason against the imposition of president’s rule in a state.


In 1951, this provision was misused by the Nehru led government when they dismissed the government of Punjab Gopichand Bhargava even though they had a majority of states and there was no failure of constitutional machinery, but due to this vague government, they took an unfair advantage.


In the 1970’s and 80’s, it was very common for the government to impose president’s rule in opposition rules states on the ground of this vague term, i.e., “failure of constitutional machinery”.


Historically, this provision was highly misused during the regime of Indira Gandhi. When the Janta Party came into power and when they formed a government in the centre, they also imposed president’s rule on 12 congress-ruled states. When Indira Gandhi came back to power, she again imposed president’s rule on different states which were governed by janta party.This shows that article 356 has been a tool for political rivalry.


By looking at these instances, we can say that article 356 is a provision which is against the principle of constitutionalism because it does not limit the power of the government but rather gives the government authority to act in an arbitrary manner. When a provision is used by a government to exact political retribution, it means that the government has the authority to act arbitrarily.


Article 356 also gives the power to the government to “rule by law”, which is not acceptable in a democratic country. A democratic country needs the “rule of law” to sustain constitutionalism.


Sakaria commission gave its report in which they mentioned about the ground of imposing article 356 or president rule but the government always wanted to act in a arbitrary manner that is why they never accepted the their recommendations and their action shows that the never to enhance constitutionalism.


According to article 51a of the Indian constitution, citizens of India are required to fulfil certain fundamental duties, one of which states that “we should respect the ideas that played a crucial role in our struggle for independence,” and article 356 is incompatible with this fundamental duty because our freedom fighters never supported this type of provision, as a result of which the British government suspended section 93 of the Government of India.And by imposing such a kind of provision, we are not cherishing the ideas of our free leaders.


Which again shows that this provision is against the principle of constitutionalism.


References

(1) Article 356 of Indian constitution

(2) Article 51 A of Indian constitution

(3) https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/

(4) https://youtu.be/pD0vegRztHM