Article 356: Is the SR Bommai case only a perceived guard against the use of this power?

Picture Courtesy: https://thenortheasttoday.com/wp-content/uploads/2016/01/PRR.jpg

THIS ARTICLE WAS WRITTEN BY WAFA JALLU, A STUDENT OF OP JINDAL GLOBAL UNIVERSITY.

Article 356 of the Constitution of India, that deals with presidents discretionary powers of emergency, has for the longest been a controversial topic of political discussion and has also at times caused anger amongst the intellectual lot of the country. It authorizes the president of India with the power to impose state emergency if either the governor reports that the state isn’t functioning as it should or if the president feels that the constitutional machinery of the state has broken down, in lieu of the provision mentioned in the constitution. The president then has the power to terminate the State Legislature as well as the Executive. Any part or provision of the constitution, which goes against the fundamental principles on which the constitution is based, would cause disbelief and distrust amongst the people regarding the government chosen by them.

Power contained in Article 356 is clearly peculiar and arbitrary. While the provision was being included in the constitution the framers had clearly laid down guidelines for its usage. B.R. Ambedkar clearly stated that this power must only be used as the last resort, according to him the criteria’s involved firstly issuing a warning to the state with respect to its unconstitutional behavior, secondly holding fresh elections in the disputed state, only if neither of these criteria’s help should the power provided by Article 356 be used[1]. Even though the intentions of the drafters were very clearly stated, blatant misuse of this presidential power has been observed, especially in cases wherein the central government tries to suppress the state government that do not obey or comply with the opinions of the central government. There has been a considerable decrease in number when it comes to misuse of this power since the mid 1990’s when compared prior to it, and this probably a result of the guidelines laid down in the S R Bommai v. Union Of India case, but the misuse of this provision is still prevalent. In the recent past several instances of unconstitutional use of this power has been observed, an article, which was made to protect the integrity of the nation, is being used at the cost of democratic freedom.

Article 356 has seen a considerably long history of evolution. The Sarkaria commission, the Punchi report both laying down recommendations and stating 356 to be the last resort and finally the S R Bommai case which is considered to be the landmark case with respect to not just the provision but also Indian judiciary. The case is basically regarding the discharge of four state governments by the then Prime Minister due to the destruction of the Babri Masjid. This dismissal along with previous decisions and guidelines came into light in the judgment, which was decided by a 9-judge bench. It was held that Presidents satisfaction leading to invocation of the power can be inquired into and also that the presidents is expected to work only on objective material. It was also held that this power can be resorted to only when there’s no other alternative and as the last resort only when there is a clear breakdown of constitutional machinery and not otherwise. The court also held that an approval from the parliament is essential for dissolving a state assembly and that a test of numerical strength can only be conducted on the floor of the assembly and not outside it.[2]

I would like to quote Lord Aldon here, “Power tends to corrupt and absolute power corrupts absolutely”.

The Country’s federal system is widely affected when the central government overthrows the state by means of this power, weakening centre state relations and democracy. Prior to the Bommai case there was barely any check on the indiscriminate use of this power which has been controlled to a certain extent due to the increasing number of regional parties in the parliament as well as the central cabinet, this has enabled the revival of the institutional safeguards framed by the members of the constituent assembly, which places some resistance on the centre.

Another extreme is the inability of the centre to impose the presidential rule, for instance the Godhra train accident during Modi’s rule in Gujarat, it posed a major question on the center as several people were affected, whether the number of people involved was enough reason for the application of this power, or whether the governors report is essential even then, “otherwise” as mentioned in the provision becomes instrumental. One can easily observe a deficiency when it comes to efficacy of the safeguards provided against misuse of Article 356. Since the party in power at the centre usually dominates the Parliament by a majority vote there could be biasness in the proclamation. No vote against the proclamation could bring any fruitful. Article 356 should ideally not be repealed as it could cause imbalance amongst the centre and state relations, since there is an inevitable use of Article 356. According to me, the Sarkaria and Punchi committee recommendations must be implemented s they are way more feasible to apply, wherein a governor should in the truest sense be made politically neutral.  A more localized implementation, wherein instead of an entire state the disputed district or city can be brought under central rule and for a limited period of time.

The implementation in only rarest of rare cases must be stringently followed, to avoid the country’s federal nature from being trampled, a spirit of co-operative federalism could help maintain balance in center state relations and federalism of the nation must be strengthened so as to prevent disintegration of the nation through anarchy.  This can help prevent issues as that in Arunnachal Pradesh and Uttarakhand from arising.

The Bommai case along with the rest of the commissions have brought in considerable change, the power of judicial review of the Supreme court has been laid, it all depends on the willingness of the judiciary and the use of these guidelines in correct sense keeping in mind the best interests of the people, so as to reduce the misuse of the power.

[1] https://www.ejcl.org/81/art81-4.PDF

[2] 1994 AIR 1918; S R Bommai v. Union Of India