Article 356 and an Activist Judiciary

Context: The recent order of the Andhra Pradesh High Court directing the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’, opens up the possibility of use or even misuse of Article 356 by the judiciary.

Article 356 of the Constitution:

• Borrowed from the Government of India Act, 1935 (like Pakistan): ironically the original Act itself was opposed by the leaders of the freedom struggle and forced the British government to suspend it.
  • Constituent assembly was divided over the use of emergency powers by the Governor.
  • Parliamentary approval of the president’s rule was provided to avoid misuse.
• Use/misuse of Article 356 by Central government:
  • Not a dead letter as assured by B.R Ambedkar: It has been used/misused more than 125 times.
  • First invocation of Article 356: used in 1951 to remove a majority government in Punjab
  • Misuse on the grounds of Political stability, absence of clear mandate or withdrawal of support, etc.: By Indira Gandhi government and later by Janata government as well.
  • Recent example: Central government invoking the Art 356 in Arunachal Pradesh on Republic Day itself, in 2016.
  • Non-use of Art 356: prior to the demolition of the Babri Masjid.
• Restraining its misuse: by Former President of India- K.R Narayanan
  • Refused to impose President’s Rule as it would amount to constitutional impropriety: twice returned the cabinet’s recommendation, to invoke Article 356 against a majority government in Uttar Pradesh.
  • He also returned the cabinet’s recommendation in respect of the Rabri Devi government in Bihar while rebutting the charges made by the concerned Governor.
• Judicial overreach on Article 356: as it comes under Executive Domain of the Central Government.
  • In 1997, a Patna High Court Bench observed that it could also report to the President about the breakdown of constitutional machinery in the State of Bihar.
  • Recent order of Andhra Pradesh High Court suggesting invoking provisions of Art 356 against the state government which was later stayed by the Supreme Court.

Conclusion: In order to ensure Constitutionalism, federalism and democracy, the provisions of the Article 356 should be used only in exceptional circumstances against the state governments as directed by Supreme Court in S.R Bommai case.