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Limitations of Article 356
ARTICLE 356 is one among the nine Articles, beginning from Art. 352 and ending with Art. 360, known as Emergency Provisions, enumerated in Chapter XVIII of the Constitution. Art. 356 was introduced as Draft Article 278, on August 3, 1949 by the then Union Law Minister, Dr. B.R. Ambedkar, in the Constituent Assembly, and was cleared by it the subsequent day.
Under Article 356, the President can dismiss a State Government or dissolve a State Assembly or keep it under suspended animation in the event of a failure of the constitutional machinery in that State. The Article owes its genesis to Section 93 of the Government of India Act 1935, a section which essentially dealt with the "taking over of the Provincial Government by the Governor."
During the discussion that took place in the Constituent Assembly on August 4, 1949, the following debate took place:
Pandit Hirday Nath Kunzru (United Provinces: General): May I ask my honourable friend to make one point clear? Is it the purpose of Articles 278 and 278A (Articles 356 and 357) to enable the Central Government to intervene in Provincial affairs for the sake of good government of the Provinces?
Dr. Ambedkar: No, No. The Centre is not given that authority.
Pandit Hirday Nath Kunzru: Or only when there is such mis-government in the Province to endanger public peace?
Dr. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional governance of the Provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point... I share the sentiments expressed by my honourable friend, Mr. Gupta, yesterday that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter.
Misused
In spite of the assurance given by Dr. Ambedkar, Article 356 was continually misused, for 50 years, by the Centre. And, this was strongly objected to by several leaders right from Kerala to U.P.
Judicial review of a Presidential order clamping Article 356 was totally shut out during the Emergency, by the 38th Constitutional Amendment. It added clause (5) to Article 356, stating, "Notwithstanding anything in the Constitution, the satisfaction of the President mentioned in Clause (I) shall be final and conclusive and shall not be questioned on any ground." However, thanks to the 44th Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article 356, as envisaged by Dr. Ambedkar, was restored.
On March 24, 1983, in response to the shrill demand by several Opposition leaders, Indira Gandhi appointed a commission headed by Justice R.S. Sarkaria to go into the Centre-State relationship. After five years of deliberations, the Sarkaria Commission gave its report in 1988. A series of concrete steps to strengthen federalism and prevent the misuse of Article 356 were given by the commission. But these recommendations were not given any statutory form. It was only because of this anomalous situation that several State Governments could be summarily dismissed even after 1988 by the Union Governments headed by Chandra Shekhar and P.V. Narasimha Rao.
However, in 1994, a Bench of the Supreme Court consisting of nine Judges gave its judgment in the case of "S.R. Bommai vs. Union of India," setting out in clear terms the limitations of Article 356. The Court said any Presidential order clamping Art. 356 had to be ratified by both the Houses of Parliament. In addition, the powers of the Judiciary to review the bona fide or mala fide nature of the Presidential order were reiterated. As a rider, the Bench gave a list of ten situations which did not amount to "failure of constitutional machinery." One of them was "(1) A situation of maladministration in a State where a duly constituted ministry enjoys the support of the Assembly." As on date, the judgment given by the Bench in the "S.R. Bommai vs. Union of India" stays. It is only for this reason, that strong attempts to dismiss a duly elected BJP Government in U.P. failed in 1998.
H.V. HANDE
Former Minister,
Government of Tamil Nadu
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