The long story of Article 356

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  The long story of Article 356

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1. SC stays AP HC order: In January 2021, India's Supreme Court had stayed the Andhra Pradesh High Court order that sought to convene a suo moto judicial inquiry into whether there is a “constitutional breakdown” in the Andhra Pradesh Government. SC considered it a case of 'judicial overreach' by the A.P. High Court. 
2. What is this breakdown: The question of a “constitutional breakdown” or the failure of constitutional machinery is dealt with under Article 356 of the Constitution, whose invoking comes under the prerogative of the executive and not the judiciary. Though the SC rightfully intervened in a tussle between the judiciary and the elected government, the A.P High court’s order opens up the possibility of use or even misuse of Article 356 by the judiciary.
3. Background of this Article: No liberal democratic Constitution in the world  (except the Constitution of Pakistan) has a provision such as India's Article 356 that gives the central government the power to dismiss a democratically-elected State government. It is a hangover from the Government of India Act, 1935 (Section 93). The leaders of the Indian freedom struggle had forced the British government to suspend it. But it came into existence after freedom!
4. Article 356's misuse: Dr. B.R. Ambedkar had assured that it would remain a dead letter, Article 356 has been used/misused more than 125 times till date. In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States. Former Prime Minister Indira Gandhi used Article 356 as many as 27 times, in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc. In retaliation, the Janata government removed nine state Congress governments, when for the first time they formed the government in 1977. Then Indira Gandhi on her return to power in 1980, removed nine Opposition majority governments at one go. It made a mockery of democracy in India.
5. Article 356's safeguards: The 1994 Supreme Court (S.R. Bommai case) majority decision, in essence, overturned a long tradition that the use of Article 356 was not really subject to review by courts, a doctrine articulated in a landmark 1977 case, State of Rajasthan vs Union of India. The Bommai case verdict laid down the conditions under which State governments may be dismissed, and mechanisms for that process. In the S.R. Bommai case, a nine-member bench of the Supreme Court construed the scope of Article 356, which also allows the imposition of President’s Rule in the States, with stringent conditions. 
6. Road ahead: The judiciary must realise that Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself. The governor also must act judiciously, impartially and efficiently while exercising his discretion and personal judgment. The recommendations of the Sarkaria Commission and Punchhi Commission should be followed in true spirit. The 'procedure for appointment of governors should be clearly laid down' and conditions of appointment must also be laid down and must assure a fixed tenure for the governor. The President under the Indian constitution is bound by the aid and advice of the Indian Constitution. However, the President can use its suspensive veto in case of malicious application of Article 356. Former president K.R. Narayanan 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.

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