Opinion - News Analysis

Use of Article 355

By K.K. Katyal

NEW DELHI MAY 3. Come to think of it, Article 355 of the Constitution, one of the three important emergency provisions — and a less drastic one — has never been used by any Central Government so far. It enjoins on "the Union to protect every State against external aggression and internal disturbances and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution''.

Its use, for the first time, is on the cards now that the Government has accepted the Opposition plea on the subject in the context of the situation in Gujarat.

The other two emergency provisions have been used in the past — and had acquired considerable notoriety. For instance, the powers under Article 356, to dismiss the Government of a State and to take over its administration, had been exercised nearly 110 times, although they were meant to be used sparingly.

And the other extreme, drastic step — the proclamation of Emergency under Article 352 — was taken by Indira Gandhi in June 1975, with disastrous consequences for the country and for herself.

There is no valid explanation as to why the powers under the less drastic provision — Article 355 — have never been exercised. Those who had opposed its use relied on a flimsy technicality — that the Central forces can go to the assistance of any part of a State only on receipt of a request from the District Magistrate or that it was virtually an enabling provision or a first step towards Emergency.

Unlike the other two provisions, Article 355 has not undergone any amendment. No change in it was suggested by the Sarkaria Commission on Centre-State relations. The only point in the Commission's recommendation that could have a bearing on its use is this one — It is entirely for the Union to decide, suo motu, whether the situation in a State calls for deployment of the Central forces, though "it is desirable to consult the State concerned, whenever feasible, before deploying its armed forces, otherwise than at the request of the State''.

During the debates in the Constituent Assembly, B.R. Ambedkar, the then Union Law Minister and the chief architect of the Constitution, based the rationale of this provision on the need for Central action without resorting to extreme steps like the imposition of the Central rule. He explained its purpose thus: "It shall be the duty of the Union to protect every unit and also to maintain the Constitution.'' His elaboration: "So far as such obligation is concerned, it will be found that it is not our Constitution alone which is going to create this duty and this obligation. Similar clauses appear in the American Constitution.

They also occur in the Australian Constitution, which, in express terms, provides that it shall be the duty of the Central Government to protect the units or the States from external aggression or internal commotion.

All that we propose to do is to add one more clause to the principle enunciated in the American and Australian Constitutions, namely, that it shall be the duty of the Union to maintain the Constitution as enacted by this law.''

In reply to queries, he clarified that this power was not meant to be used to intervene in provincial affairs "for the sake of good government of the provinces".

It was meant to be exercised "only when the Government is not carried on in consonance with the provisions laid down for the Constitutional government of the provinces''.

How the Centre will make use of these powers in Gujarat is not clear. The action will need to be credible so as not to expose the Union Government to the charge that it had accepted the Opposition plea on Article 355 merely to get out of a difficult situation in the Rajya Sabha, where the ruling side is heavily outnumbered.

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