From UPSC perspective, the following things are important :
Prelims level : Article 356
Mains level : Paper 2- Misuse of article 356
Article 356 and the word ‘otherwise’ in it has led to the recent Andhra Pradesh High Court order. The order raises several questions. The article deal with this issue.
Controversial High Court order
- Recently the Andhra Pradesh High Court directed the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’.
- The order opens up the possibility of use or even misuse of Article 356 by the judiciary.
- The Supreme Court of India has stayed the order.
- However, we need to go deeper into this observation and look at the controversial provision of Article 356 due to which the High Court could make such an observation.
Historical background of the article
- 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.
- The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
- 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.
- After several revisions, provision became Article 278 (now Article 356).
The issue with the word ‘otherwise’
- H.V. Kamath 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.
- ‘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’.
- This word negates the ideals of constitutionalism by giving unlimited powers to the Centre, also allowed the High Court to overstepped the line.
- But this is not the first instance of judicial overreach on this issue.
- On August 13, 1997, a Patna High Court had observed that the High Court could also report to the President about the breakdown of constitutional machinery in the State.
Repeated misuse of Article 356
- In the very first invocation of Article 356 in 1951, central government 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.
- Indira Gandhi used Article 356 as many as 27 times.
- 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.
Consider the question “Examine the contest in which the word ‘otherwise’ in Article 356 leads to judiciary exercising its powers. What are the concerns in such case?”
Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.