Article 356 and an activist judiciary

Article 356 and an activist judiciary

The A.P. High Court’s recent order is worrisome — it opens up the possibility of judicial use or misuse of the Article.

‘In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself,’ said James Madison. Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself as it would encourage the government to appoint committed judges. Sometimes even the collegium’s recommendations on transfer of judges and chief justices today looks more like an executive order transferring IAS officers.

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’ is shocking as it opens up the possibility of use or even misuse of Article 356 by the judiciary. Though the Supreme Court of India has stayed the order, we need to go deeper into this observation and look at the controversial provision of Article 356 because of which the High Court could make such an observation. The devil is in the provision itself.

Behind the inclusion

No liberal democratic Constitution in the world has a provision such as Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of Pakistan. Both India and Pakistan borrowed this provision from the Government of India Act, 1935. Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it; thus, Section 93 of the Government of India Act, 1935 was never brought into effect. The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.

On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power. By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre. Govind Ballabh Pant did say that by mere elections, Governors will not become all wise. G.B. Pant and Hirday Nath Kunzru opposed it and termed it as virtual reproduction of the 1935 Act. H.N. Kunzru defied the whip and voted against it. Laxmi Kant Maitra and Tangutri Prakasam said that Indian Governors would not behave like British Governors who acted as agents of the Centre. Alladi Krishnaswami justified the provision in the name of representative government at the Centre. Subsequent decades proved all of them wrong both in respect of Governors as well as the central government.

The power of a word

After several revisions, provision became Article 278 (now Article 356). H.V. Kamath termed it as a surgical operation for a mere cold. He criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means. As the Governor had been made a nominee of the Centre by this time, he asked why the President could not have confidence in his own nominees. He went on to say: “if he cannot have confidence in his own nominees, let us wind up this Assembly and go home.” ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state. Though Shibban Lal Saksena was happy about Parliament’s power to ratify President’s Rule in States, he did concede that this was a ‘retrograde step’ and that ‘we are reducing the autonomy of the states to a farce.’ P.S. Deshmukh too favoured deletion of the term ‘otherwise’. Naziruddin Ahmad said that “I think we are drifting, perhaps unconsciously, towards dictatorship. Democracy will flourish only in a democratic atmosphere and under democratic condition.” In a strongly worded observation, he said the drafting committee had become a ‘Drifting Committee’ as it had gone against the original draft. ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state.

The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’. But for this word which negates the ideals of constitutionalism by giving unlimited powers to the Centre, the High Court could not have overstepped the line as it did. But this is not the first instance of judicial overreach on this issue. On August 13, 1997, a Patna High Court Bench of Chief Justice B.M. Lal and Justice S.K. Singh while disapproving the functioning of the Rabri Devi government had observed that the Governor’s report was not conclusive regarding the invocation of Article 356, and the High Court could also report to the President about the breakdown of constitutional machinery in the State.

The record

Article 356 has been used/misused more than 125 times though B.R. Ambedkar had assured that it would remain a dead letter. Both on Article 356 and the Governor, experience has proven Ambedkar wrong. In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States. All Presidents signed presidential proclamations without demur except K.R. Narayanan who twice returned the cabinet’s recommendation on October 22, 1997 in respect of the Kalyan Singh government in Uttar Pradesh which had just won the controversial confidence vote and stating that imposition of President’s Rule would be constitutional impropriety. He also returned the cabinet’s recommendation on September 25, 1998 in respect of the Rabri Devi government in Bihar, and in an unprecedented detailed note, rebutted all the charges made by the Governor Sunder Singh Bhandari.

Inflicting more wounds

In the very first invocation of Article 356 in 1951, Jawaharlal Nehru removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority. In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala and Governor B. Ramakrishna Rao in his report argued that the government had lost ‘support of [the] overwhelming majority of people’ and belittled the fact of it enjoying the confidence of [the] House which he said was an important consideration at the time of formation of government not its continuance. Strange logic indeed.

Indira Gandhi has the dubious distinction of using Article 356 as many as 27 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc. She did not spare even Chief Ministers of her own party. But the Janata government did worse than Mrs Gandhi by removing nine majority Congress governments in one stroke on April 30, 1977. The Supreme Court of India upheld it in State of Rajasthan v. Union of India (1977). Mrs Gandhi replied in the same currency on her return to power in 1980 by removing nine Opposition majority governments at one go. Subsequent governments too acted in similar fashion including the Narendra Modi government which invoked Article 356 in Arunachal Pradesh on Republic Day itself, in 2016.

The most notable case of non-use of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid on December 6, 1992 as in the draft Constitution, emergency power could be used to safeguard the ‘legitimate interests of minorities’ and the government was fully aware of a breakdown of constitutional machinery in Uttar Pradesh. However, the subsequent dismissal of three Bharatiya Janata Party governments in Madhya Pradesh, Rajasthan and Himachal Pradesh, though upheld by the Supreme Court in S.R. Bommai v. Union of India (1994) was wrong as the Rashtriya Swayamsevak Sangh ban was better implemented in these States and much greater violence had taken place in the Congress-ruled States of Gujarat and Maharashtra.

Today, when many constitutional experts are of the view that the judiciary is increasingly becoming more executive-minded than the executive itself, the observations of the Andhra Pradesh High Court are a worrisome sign. Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.