By Sarvesh Kumar ShahiBy Sarvesh Kumar Shahi
These words were expressed by the then Chairman of Drafting Committee, Dr. B.R. Ambedkar. The above passage indicates that Dr Ambedkar was not in high spirits at the inclusion of Article 356 of the Constitution. But, as the Chairman of the Drafting Committee he had no choice but to support the article. He even expressed a hope that such articles will never be called into operation and that they will remain a dead letter. Hence he said in the Constituent Assembly that the power under Article 356 must not be used by the Union Government for political purposes.
He further expressed that if at all they are brought into operation, the President, who is endowed with these powers, will have to take proper precautions before actually suspending the administration of the Provinces. The Indian judiciary, from time to time, has shown its concern over the abuse of Article 356 of the Constitution and considered that it was the intolerant and dictatorial attitude of the party in power at the Centre that was at the root of the use of Article 356.
The Constitution does not provide a specific remedy against the abuse of power or mala fide use of power but the Proclamation made by the President can be reviewed by the judiciary. If the satisfaction of the President is mala fide or based on extraneous or irrelevant grounds, the Proclamation would be justiciable.
The very instance of S.R. Bommai, who was the Chief Minister of Karnataka, is proof of such abuse. In spite of his asking the Governor to allow him to prove his majority, within a very short period, on the floor of the Assembly, the Governor did not give him that opportunity and recommended the dismissal of his ministry.
The first thing he is expected to do is to issue 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. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article.
However, his hopes were dashed to pieces by all political parties that wielded power at the Centre. Either it is Nehru era (6 cases), in Lal Bahadur Shastri era (2 cases), in Indira Gandhi era (28 cases), in Janata government rule (12 cases) or the present BJP rule (Uttarakhand state emergency imposed by President on March 26th, 2016.). The latest figure about the use of Article 356 is more.
In S.R. Bommai Case [S. R. Bommai v. Union of India (AIR 1994 SC 1918)], Justice P.B. Sawant opined that:
‘The provisions under Article 356 require that the material before the President must be sufficient to indicate that unless a proclamation is issued, it is not possible to carry on the affairs of the State as per the provisions of the Constitution. It is not every situation arising in the State but a situation which shows that the constitutional Government has become an impossibility, which alone will entitle the President to issue the proclamation. These parameters of the condition precedent to the issuance of the proclamation indicate both the extent of and the limitations on, the power of the judicial review of the proclamation issued.’
As far as Article 356 is concerned, this article confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head.
The satisfaction contemplated by the article is subjective in nature. The power conferred by Art.356 upon the President is a conditioned power. It is not an absolute power. The existence of material – which may comprise of or include the report(s) of the Governor – is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Art.356 do merit serious consideration at the hands of all concerned.
In Harish Rawat Case, a high voltage political excitement, the Centre brought Uttarakhand under President’s rule citing a constitutional breakdown in the wake of a rebellion in the ruling Congress, which slammed the decision calling it a ‘murder of democracy’ and a ‘black’ day. The use of Article 356 was almost erased from our collective political memory. All the unpleasant institutional memories of a distant past are now being revived with a vengeance by a floundering regime.
However, in the midst of all this excitement, it needs to be remembered that only the spirit of ‘co-operative federalism’ can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority.
Under our constitutional system, no single entity can claim sovereignty over another. An unusual and extraordinary power like the one contained in Article 356 cannot be employed for furthering the prospects of a political party or to destabilize a duly elected government and a duly constituted Legislative Assembly. The consequences of such improper use may not be evident immediately. But those do not go without any effect and their consequences become evident in the long run and may be irreversible.
The primary thing pertaining to the nation and the Union Government is ‘to maintain the Constitution’. If the import of that expression is fully realised, it will be noticed that there cannot be any intention to interfere with the provincial constitution, because the provincial constitution is a part of the Constitution of the Union. If the Constitution is worked in a proper manner in the provinces or in the States, that is, if responsible government as contemplated by the Constitution functions properly, the Union will not and cannot interfere.
Last but not the least, the author likes to quote few lines from Constituent Assembly Debates, Vol. IX, p. 133 – ‘The invasion must not be an invasion which is wanton, arbitrary and unauthorised by law.’