Why we should amend Article 356
Imposing President’s rule in a State is an exclusive purview of the executive and not of the judiciary
On December 18, 2020, while hearing a petition between The State of Andhra Pradesh & Ors vs Reddi Govinda Rao, the Supreme Court of India stayed the order passed by the Andhra Pradesh High Court. With regard to this order, the Bar and Bench reported that “in any case, have you seen an order like this? As an apex court, we find it disturbing. Issue notice, stay. List immediately after vacation”.
In this context, it is necessary to put forth the facts of the case. On October 1, the Andhra Pradesh High Court had passed an order mentioning “on the next date, learned senior counsel appearing on behalf of the State may come prepared to assist the Court as to whether in the circumstances, which are prevailing in the State of Andhra Pradesh, the Court can record a finding that there is constitutional breakdown in the State or not”.
The High Court passed this order while hearing more than 15 habeas corpus petitions questioning the illegal detention of the persons by the police in the State under Article 226 of the Constitution. The petitioners prayed for producing the persons before the court by the police. The matter is primarily about the police excesses in the State and is executive in nature.
Set against this backdrop, certain pertinent questions arise — whether the Courts are permitted to make observations on the constitutional breakdown in the State? Whether this is a case of judicial review or overreach? How can the learned judges pass such an order and on what basis?
Proclaiming Emergency
It seems to appear that the High Court of Andhra Pradesh made the observations on the basis of Article 356, ie, imposition of President’s rule in certain situations as part of emergency provisions. It is uncommon for a high court to make observations on the status of constitutional breakdown in a State.
Only the President of India upon the receipt of report from Governor of the State is empowered to proclaim emergency in case of failure of constitutional machinery in State. Article 356 (1) reads “If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution…”
The word “otherwise” in the above-mentioned provision is left undefined and provides scope for the use or misuse of the powers by the constitutional authorities to regulate the State acts. In the present case, neither there is a report from the Governor of Andhra Pradesh nor has any other material to support the claims of constitutional breakdown in the State reached the office of the President.
No doubt, the illegal detention of the persons is directly related the violation of Fundamental Rights of the citizens and the courts are empowered to intervene in such cases. Seen from this perspective, vide Article 226, the jurisdiction of writs of high courts is wider than that of the Supreme Court.
Writ Powers
But the writ powers of the courts are not without limitations. These are to be exercised in coherence with the “rule of law” and within the ambit of the doctrine of separation of powers. Article 356 needs to be seen in conjunction with other such Articles 352-359 and 360 (financial emergency) and not alone. In the context of judicial control, the courts do not have suo moto power to extend the scope of judicial review for promulgating or imposing President’s rule in the State.
While arguing the case of Griswold v. Connecticut, 381 U.S. 479, 501 (1965), Justice Harlan expressed the need for judicial self-restraint, “Specific” provisions of the Constitution, no less than “due process” lend themselves as readily to personal interpretations by judges whose constitutional outlook is simple to keep the Constitution in supposed “tune with the times.”….
The AP High Court order in this particular case is an indication of non-self-restraint judiciary as it appears to have crossed the ‘Laxman rekha’ of the Constitution by entering into the domain of the executive. It equated the police excesses with constitutional failure, which is factually incorrect.
The original draft of the Constitution did not contain the word “otherwise”. It is worthwhile to recollect the Constituent Assembly Debates on Article 278, ie, present Article 356. The Constituent Assembly was not happy with this Article, especially HV Kamath who objected to the word “otherwise” in the provision and moved an amendment to delete the word. He observed that if the amendment was not accepted “we are laying ourselves open to snare traps in our path wherein we shall be caught beyond any rescue”.
Language Matters
The AP High Court order is a consequence of not heeding the observations of Kamath. In the case of State of Rajasthan v. Union of India, AIR 1977 SC 1361, the then Chief Justice Hameedullah Beg observed that “our difficulty is that the language of Article 356 is so wide and loose that to circumscribe and confine it within a straitjacket will not be just interpreting or construing it but will be Constitution-making legislation which, again, does not strictly speaking, lie in our domain”.
Since 1950, Article 356 has been misused for the political purposes in more than 120 instances. The ambiguity of the word “otherwise” in the provision has been misused by many of the Governors to dissolve the majority governments in the States.
The imposition of President’s rule in a State is an exclusive purview of the executive and not of the judiciary. The AP High Court order stands in violation of the doctrine of the separation of powers and federal governance. The time has come to remove the word “otherwise” in Article 356 through constitutional amendment.
(The author is PhD Fellow & Guest Faculty, Institute for Social and Economic Change and University Law College, Bangalore University. Views are personal)
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