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Amending Article 356

THE BROAD CONSENSUS that emerged at the Inter-State Council meeting over what is arguably the Constitution's most contentious provision — Article 356 — is a most welcome thing. The spirit of cooperative federalism has raised the hope of a constitutional amendment that will build safeguards into this emergency provision to prevent its misuse. The Union Law Minister, Arun Jaitley's press briefing suggested that these safeguards will incorporate the essence of the Supreme Court's landmark 1994 judgment in the S.R. Bommai vs Union of India case and include recommendations made by bodies such as the Sarkaria Commission and the National Commission to Review the Working of the Constitution (NCRWC). Article 356 gives the Centre the power to take over the functions of a State Government in the event of a failure of the constitutional machinery in that State. However, the history of its use clearly reveals that it was invoked more often to fix politically inconvenient State Governments, precipitate fresh elections and for other reasons that have no relevance to the purpose of the Article.

In recent years, the judgment in the Bommai case has served as a salutary check — and indeed bar — against such misuse. The Court's ruling that the Centre cannot dissolve State legislatures unless the proclamation under Article 356 (1) is approved by the Lok Sabha and the Rajya Sabha has served as an effective restraint during a period when no party or combination of parties has enjoyed a majority in both Houses of Parliament. The Court also held that any such proclamation is open to judicial review to the extent of examining whether it was issued on the basis of relevant material or whether it was a mala fide exercise of power. This pronouncement has deterred the use of the Article for narrow, political ends. Between 1950 and 1994, when the Bommai judgment was delivered, Article 356 was used on more than 90 occasions. In many cases, State Governments were dismissed even when they enjoyed a majority in the Assembly and in other cases, without being given an opportunity to prove their strength on the floor of the House. Instances of such misuse have all but vanished in recent years, but it is important to strengthen and institutionalise the safeguards through a constitutional amendment.

Among other things, such an amendment must ensure that, if used at all, the recourse to Article 356 must be a last resort — one that is embraced after exhausting the options provided by other Articles in the Constitution such as 256, 257 and, more importantly, 355. Other measures, such as the condition that the Centre must formally communicate to a State the facts and reasons for proposing to bring it under President's Rule and give the State an opportunity to reply, are essentially intended to ensure that the proposed use of Article 356 is based on a rigorous method. Mr. Jaitley's suggestion that the Governor's report recommending President's Rule should be in the nature of a "speaking order" is virtually identical to the recommendation made by the NCRWC. This was that such a report should contain "a precise and clear statement of all the material facts and grounds, on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356." Like some other emergency provisions in the Constitution, Article 356 was introduced as an extraordinary safeguard, not something that is invoked in non-extreme circumstances. During the Constituent Assembly debates, Dr. B.R. Ambedkar even hoped it would be a "dead letter," something that would "never be called into operation." The purpose of the proposed constitutional amendment should be to ensure that this democratic vision of cooperative federalism comes true, however late in the day.

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