Constitution Law Project on Misuse of Article 356

UNIVERSITY OF NIVERSITY  OF PETROLEUM & ENERGY  S  STUDIES COLLEGE OF LEGAL STUDIES B.A., LL.B. (HONS.) SEMESTER III  ACADEMIC YEAR: 2014 -15

SESSION: JULY-DECEMBER

ART. 356 MISUSE OF ART

Constitutiona La! "II  #LLBL222$ Un%' t( Su)'*ision o+ A. A . A'a*in%an #TO BE FILLED

NAME,

BY THE STUDENT

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PRAS-ANT SINGSAP NO,

5/051 ROLL NO,

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Acknowledgement:I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and this organization. I would like to extend my sincere thanks to all of them. I am highly indebted to Prof. A. Aravindan for his guidance and constant supervision as well as for  providing necessary information regarding the project & also for his support in completing my project Misuse of Art. 356!. "y thanks and appreciations also go to my classmates in developing the project and people who have willingly helped me out with their abilities. I am also thankful to the I# $epartment of %'( and the library as well as without them the making of this project would have been next to impossible.  I am thankful to and fortunate enough to get constant encouragement, support and guidance from my  parents and friends who helped me in successfully completing this project.

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 Table o content! (.no *.+ /.+ 1.+ .+ .+

Introduction History of 0rt. 12 4ase (tudies 4onclusion 6ibliography

age )o. - 2-3 5-*/ *1 *

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#nt$od%ct&on 0rticle 12 of the Indian 4onstitution has ac7uired 7uite some notoriety due to its alleged misuse. #he essence of the 0rticle is that upon the breach of a certain defined state of affairs, as ascertained and reported by the 8overnor of the (tate concerned 9or otherwise+, the resident concludes that the :constitutional machinery; in the (tate has failed. #hereupon the resident makes a :roclamation of  'mergency,; dismissing the (tate n 0ugust /5, *5B, a $rafting 4ommittee was set up by the 4onstituent 0ssembly. %nder the chairmanship of $r. 6.@. 0mbedkar, it was to prepare a draft 4onstitution for India. In the course of about two years, the 0ssembly discussed /,B1 amendments out of a total of B,21 amendments tabled. / Chen it was suggested in the $rafting 4ommittee to confer similar powers of emergency as had been held by the 8overnor-8eneral under the 8overnment of India 0ct, *51, upon the resident, many members of  that eminent committee vociferously opposed that idea. $r. 6abasaheb 0mbedkar then pacified the members statingA

:In fact I share the sentiments expressed by my Hon;ble friend "r. 8upte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a

1 See *a&n +., ag&, The Constitution of India (1/50). 2 See a3an, 4aee3 6 *acob,Al&ce, Indian Constitution (1/70). 

dead letter. If at all they are brought into operation, I hope the resident, who is endowed with these  powers, will take proper precautions before actually suspending the administration of the provinces.; He addedA :I hope the first thing he will do would be to issue a clear warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the 4onstitution.; 6y virtue of this earnest advice given by the prime architect of the Indian 4onstitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events. 0 good 4onstitution must provide for all conceivable exigencies. #herefore this 0rticle is like a safety valve to counter  disruption of political machinery in a (tate. 0rticle 1 statesA :It shall be the duty of the %nion to protect every (tate against external aggression and internal disturbance and to ensure that the government of  every (tate is carried on in accordance with the provisions of this 4onstitution.; #he word :otherwise; in 0rticle 129*+ was not included in the original draftD it was later introduced through an amendment, despite protests from members of the original $rafting 4ommittee, stating that it was an open invitation to abuse the 0rticle. $r. 0mbedkar justified its introduction saying that 0rticle /BB0 9now 0rticle 1, cited above+ imposed a duty upon the 4enter to ensure that the (tates are governed in accordance with constitutional provisions and that hence it would not be proper for the resident to base his decision solely on the report of the 8overnor of the (tate. An ana"og# !et$een Artic"e 356 and %ections &5 and 93 of the Government of India Act, 1935

#here are certain differences in the provision relating to the failure of the constitutional machinery under  the present 4onstitution and the powers dealt with in (ections  and 51 of the 8overnment of India 0ct, *51. Eirstly, the *51 0ct empowered the 8overnor-8eneral to deal with a failure of the constitutional machinery at the 4enter 9(ection +. It also empowered the 8overnor-8eneral to deal with a similar  situation in a rovince 9(ection 51+. #he present 4onstitution, however, does not intend to suspend the 4onstitution of a (tate, but empowers the resident to take steps in this regard, though he shall have to act on the report of the 8overnor or @uler of the (tate. (econdly, under (ection 51 of the *51 0ct, the executive and legislative powers of a (tate could be assumed by the 8overnor, acting at his discretion. #he present 4onstitution has separated the two powersA the resident, assuming executive powers, and the %nion arliament, assuming legislative powers. 'ecommendations of %ar(aria ommission 'egarding Artic"e 356

#he (arkaria 4ommission recommended extremely rare use of 0rticle 12. #he 4ommission observed that, although the passage, :. . . the government of the (tate cannot be carried on in accordance with the  provisions of this 4onstitution . . .; is vague, each and every breach and infraction of constitutional  provisions, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery.

0ccording to the 4ommission, 0rticle 12 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a (tate. 0ny abuse or misuse of this drastic power  would damage the democratic fabric of the 4onstitution. #he report discourages a literal construction of 

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0rticle 129*+. 1 #he 4ommission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that 0rticle 12 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a (tate. 6efore taking recourse to the provisions of 0rticle 12, all attempts should be made to resolve the crisis at (tate level.

" Ha!an, 8oa 6 9. S$&da$an, India's Living Constitution: Ideas, Practices,Controversies, (22). 0

a!e St%d&e! 6efore analyzing the re and ost 6ommai 'ra cases or incidents one needs to be aware of the landmark  case of (.@ 6ommai v. %nion of India. (. @. 6ommai v. %nion of India was a landmark in the history of  the Indian 4onstitution. It was in this case that the (upreme 4ourt boldly marked out the paradigm and limitations within which 0rticle 12 was to function. In the words of (oli (orabjee, eminent jurist and former (olicitor-8eneral of India, :0fter the (upreme 4ourt;s judgment in the (. @. 6ommai case, it is well settled that 0rticle 12 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a (tate has collapsed.; #he views expressed by the various judges of the (upreme 4ourt in this case concur mostly with the recommendations of the (arkaria 4ommission and hence need not be set out in extenso. However, the summary of the conclusions of the illustrious judges deciding the case, given in paragraph 1 of the lengthy judgment deserves mentionA )1* 0rticle 12 of the 4onstitution confers a power upon the resident to be exercised only where he is satisfied that a situation has arisen where the 8overnment of a (tate cannot be carried on in accordance with the provisions of the 4onstitution. %nder our 4onstitution, the power is really that of the %nion 4ouncil of "inisters with the rime "inister at its head. #he satisfaction contemplated by the article is subjective in nature. )+* #he power conferred by 0rticle 12 upon the resident is a conditioned power. It is not an absolute  power. #he existence of material - which may comprise of or include the report9s+ of the 8overnor - is a  pre-condition. #he satisfaction must be formed on relevant material. #he recommendations of the (arkaria 4ommission with respect to the exercise of power under 0rticle 12 do merit serious consideration at the hands of all concerned. )3* #hough the power of dissolving of the %@  4>)(#I#%#I>)  8>M'@)"')# & >)(#I#%#I>) >E I )$I0 , 94alcuttaA $ebidas 6asu, *535+. B.+ 6akshi, .", #H' 4>)(#I#%#I>) >E I )$I0, 9$elhiA %niversal )(#I#%#I>)0<  HI(#>@P >E I )$I0 *2KK-*51 , 94@0#I4  4>)(#I#%#I>) A #H' I )$I0) 'Q'@I')4' , 9$elhiA >%, *555+.

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