In layman’s language, according to Article 356 of the Indian Constitution, the Union government may directly take control of the state apparatus if a state government is unable to operate in accordance with constitutional requirements.
So does it give the Union government a superiority over the state? Who shall decide un-arbitrarily whether there was indeed a failure of constitutional machinery? And most importantly, Is this clause still necessary for India's Constitution now, 70 years after gaining its independence, especially in its current form?
We shall answer all these questions below.
The Union's power granted under Art. 356 has occasionally come under scrutiny from the Indian Supreme Court. One such instance is the historic ruling rendered by a nine-judge panel in the SR Bommai case, which unquestionably contributed significantly to harshly restricting the constitutional authority conferred by Art. 356 by establishing the required checks. If one compares the time periods 15 years before Bommai, or before 1994, in which Art. 356 was invoked 40 times, and 15 years after Bommai, in which it was only cited 11 times, it is evident that Bommai has had a favorable impact on the political and constitutional landscape. However, it has been suggested that Art. 356 is a symptom of a problem that needs a more comprehensive legal solution than what was established in SR Bommai. It has been held in multiple cases that Art.
356 must be imposed only as a matter of ‘last resort’.The useful last-resort doctrine is founded on the idea that when the President enforces Art. 356 he creates an un-remediable situation; a fait accompli; and as a result, such extraordinary powers must be employed as a final resort. This hasn't stopped the Union from enforcing Art. 356 in a given state, though. They have frequently invoked Article 356 as a "first instinct" as opposed to a "last option.”
The last-resort theory shakily rests on having unwavering confidence in the Union to act morally. This is due to the Court's assertion that Dr. Ambedkar held out hope that Art. 356 "would never be put into operation and would be a dead letter," which is the justification for employing it as a last resort. The goal is to resolve a contingency without using the stick of Article 356 and by first exhausting all other options.
The political experience in India has provided us with a different view of how Art. 356 has been (mis)used, and this is unquestionably not what has occurred.
The question of whether Art. 356 was ever necessary in the first place and if Modern India, 70 years after its independence, still requires such a clause to be part of its Constitution naturally emerges. In paragraph 45 of its ruling in the recent case of Harish Chandra Rawat v. Union of India, the Uttarakhand High Court noted that Art. 356 was a "foray into the pure form of federalism" because in an ideal pure form of federalism, like that of the United States of America, the Union would not have any authority to interfere in the affairs of the State Government. This was a crucial finding given that the Bench questioned the validity of Art. 356 itself. However, the clause was lazily rationalized in the very next sentence, which said that since "our founding ancestors in their wisdom" thought it appropriate to include this provision, it should not be questioned.
Art. 356 and its related provisions have been used 111 times, earning it the nicknames "a hammer that all Governments love" and "a provision that is over a hundred blows old." Even while the misuse of Article 356 has been held in check by court decisions like S. R. Bommai, its use still falls short of how our ever-optimistic Founding Fathers expected the Union to behave. According to H.M. Seervai, the powers granted by Art. 356 "have been grossly exploited" and that in order to stop or lessen such misuse and abuse, constitutional revisions would be required eventually.
In the hands of the Union, Article 356 symbolizes an extreme power that, if used, has the ability to "disrupt the constitutional equilibrium between the Union and the State." It has been referred to as "one of an unfortunate legacy from British rule."
The so-called "dead letters" of the Constitution, which were only supposed to be utilized in the most extreme circumstances, have been exploited to expand the authority of state governments. Through examining the declaration of an emergency in five states, it has been discovered that President control has frequently occurred without any justifiable justification, and that this is the dark side of Indian politics. In their respective fields, both the federal government and state governments are unrivaled, and none of them can assert superiority. There is no practical way to prevent the union government from abusing Article 356 because of its ambiguous language. According to the court's recommendations in the Bommai case, Article 356 must be changed in order to save India's federal system.
In my personal opinion the reasonable use of Art. 356 was after Kejriwal and his cabinet of ministers resigned from their positions as chief minister in response to his government's failure to pass the Lokpal Bill in the house to combat corruption, president rule took effect in Delhi's capital.
After his resignation, the state's political position became unstable because the AAP held the majority in the parliament. No party had previously needed a majority in the house to establish a rival at that time. Therefore, the Lt. Governor made a report to the President, and the President, on the advice of the cabinet, imposed President rule in the state and kept the legislative assembly in order to protect the state from the breakdown of law and order in the absence of an elected government and to maintain its stability.
The researcher believed that using the Presidential rule in this particular situation was just and acceptable. The report that was provided to the President did not contain a preponderance of any irrational justifications intended to serve the political objectives of the union administration.
Dr. Bhimrao Ambedkar’s vision of Art. 356 being a dead letter has not been fulfilled in any manner as can be interpreted from the above texts. History is proof of the misuse and specifically political misuse of the so-called dead letter. The framers shall take stringent actions against the unnecessary usage and misuse for personal and political gain.
This article is written by Yugakshi Khodke of Symbiosis Law School, Pune.