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ARTICLE 356: MISUSING FOR POLITICAL EXISTENCE

Author: Rimika chauhan, III year of LL.B.(Hons.) from Galgotias university


Power tends to corrupt and absolute power corrupts absolutely”.

–Lord Aldon

Introduction

No liberal democratic Constitution within the world incorporates a provision such as an Article 356 that has provides the central government with the power to dismiss a democratically-elected authority except the Constitution of Pakistan. The provision was borrowed by both India and Pakistan from the Government of India Act, 1935. The leaders of the Indian freedom struggle were therefore terribly hostile to this provision that they forced the British government to suspend it Section 93 of the Government of India Act, 1935 was never brought into effect. However, the provision that we tend to have opposed throughout our freedom struggle was incorporated within the Constitution for the preservation of democracy, federalism and stability within the post-independent era.


Article 356 of the Constitution of India i.e. refers to State Emergency i.e. President's Rule. Proclamation of State emergency and its open misuse by the ruling party. It refers to the emergency imposed in the state because of the report of the governor, ensuing to that of the state functions according to the President.


Article 356 And Its Misuse

President's Rule has been forced over multiple times in our nation since 1950. On average, twice a year! Further, in some events, the President's Rule has been forced arbitrarily for political or individual reasons. Hence, article 356 has gotten one in all the foremost polemic and scrutinized arrangements of the Constitution. According to the critics, the first use of Article 356 was itself a great misuse. Nehru, unhappy with Punjab C. M. Gopichand Bhargava in 1951, dismissed him even though, he enjoyed a majority within the assembly. Historian Granville Austin writes during this case:


Congress has blended its interest with questionable national needs to take over a state government. On paper, much like section 93[1], Article 356 is mere to be used in the case of failure of Constitutional machinery. However, it is not surprising to know that it has been used most often to guard the interest of the ruling party.


The significant explanations for the abuse of President's Rule in India are because the Governor has no authoritative to counsel the Cabinet of Ministers while planning and sending the report to the president. Critics also include the case of 1977, once the Janata party was in power headed by Morarji Desai, he imposed President's Rule in 9 states where Congress was in power a two-year term of Morarji Desai from 1977-79 saw the provision being imposed for 16thtimes. Even though B.R. Ambedkar had assured that it would remain a dead letter, Article 356 has been used/misused more than 125 times. In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States. Former Prime Minister Indira Gandhi used 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 and when Indira Gandhi on her return to power in 1980, removed nine Opposition majority governments at one goal that’s the reason behind why Article 356 has been repeatedly abused, before the judgement of Bommai case.


The 1994 Supreme Court (S.R. Bommai case) majority decision, in essence, overturned a long tradition that the use of Article 356 was not subject to review by courts, a doctrine articulated in a landmark 1977 case, State of Rajasthan vs Union of India.[2]


Supreme court intervention

S. R. Bommai[3] case is one among the foremost considered cases when concerning the President's Rule. On March 11, 1994, a nine-judge Constitution bench of SC issued the historic order, which in a way put an end to the discretion dismissal of State Governments under the article 356 by spelling out restrictions. From the verdict, we concluded that the power of the President to dismiss a State government is not absolute.


One of the vital issues decided by the majority is that State legislative assembly cannot be dissolved merely upon the issue of Presidential proclamation and before Parliamentary approval is accorded. The majority further held that until Parliament grants approval the legislative assembly can be suspended by suspending the provisions of Constitution relating to the legislative assembly under sub-clause (c) of clause (1).


The dissolution of the Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation, the Court aforesaid. Hence, the Bommai Case brought led to the modification that checked blatant misuse of article 356 to an extent.


Parliamentary Approval and Duration

A proclamation imposing President's Rule should be approved by both the houses of parliament within two months from the date of issue. If approved by both the houses of Parliament, the President's Rule may be extended for six months and might be extended for a maximum period of three years. Well, the resolution approving the proclamation of President's Rule can be passed by either house of parliament only by a simple majority. A new provision was introduced by the 44th Amendment Act of 1978 to put restrain on the power of Parliament to extend a proclamation of President's Rule beyond one year. Thus, provided to that, beyond one year, the President's Rule can be extended by six months at a time only when following conditions are fulfilled: a proclamation of National Emergency should be in operation in the whole of India, or any part of the state; the Election Commission must certify that the general elections to the legislative assembly of concerned state cannot be held in the account of difficulties.


A proclamation of President's Rule could also be revoked by the president at any time obtain a subsequent proclamation; such a proclamation doesn’t need parliamentary approval.


Conclusion

Allowing an unelected governor to dismiss elected state governments has led to a weakening of ideology and democracy in India. Dr. B. R. Ambedkar, whereas replying to the critics of this provision within the Constituent Assembly, hoped that the forceful power presented by article 356 would remain a Dead Letter and would be used only as a measure of last resort. However, what was hoped to be a dead letter of the Constitution, has turned to be a Deadly Weapon against many state governments and legislative assemblies.



[1]Government of India act, 1935

[2]http://lawtimesjournal.in/constitution-and-article-356-of-the-indian-constitution/

[3] 1994 AIR 1918, 1994 SCC (3) 1