(Sample Material) Study Kit on Current Affairs for UPSC Mains
Polity, Governance and Social Justice: Article 356
‘India is a Federation with a unitary bias’, Discuss. So went
the examination question in the mid-Fifties. This was even before Jawaharlal
Nehru blotted his copybook by removing the duly elected Communist government of
Things have gone from bad to worse since. Indira Gandhi used to remove state
governments routinely. Eventually the Supreme Court did put its foot down in the
Federalism and democracy are the twin pillars which have to be honoured.
The origins of Article 356 are in the Government of India Act
1935 and reflect the superior powers of the governor general over the elected
provincial governments. The powers of the Executive were in place before
democracy came to India and are still there. The difference is that now the
President is elected and acts on the advice of the Council of Ministers, who
represent the people.
But then if the federal government is elected, so is the
state government. The conditions for removal are the loss of confidence in the
legislature plus the previous one of ‘mis-governance’. The complications for the
former are due to the anti-defection law. This has strengthened the powers of
the leaders of parties and, by implications, those of the Speaker. Thus
interests of leaders of a political party dominate democratic rights of elected
legislators who may disagree with their party.
Thus we get into a potential conflict between rival elected governments, one
higher than the other.
Add intra-political party differences, and you have a recipe
for trouble. The more powerful Centre can only be stopped by the Judiciary. But
then there are higher courts and lower courts and as we find in the Uttarakhand
case, small benches and large benches.
The disputes over Article 356 have pointed to a problem with
the Constitution. It is unclear as to where the final authority lies. The
President’s decision to invoke Article 356 can be declared unconstitutional by
the Supreme Court. (As we saw in the NJAC case, the Judiciary can strike down a
decision of the elected chambers of Parliament even when it concerns matters in
which it has interest. Thus the Judiciary can prevent its own reform.)
These problems are not specific to this government or any
past government. They arise because India did not evolve into a federation by
independent states coming together, as the US and Australia did. It is a
top-down Union with federal features and democracy added after Independence. The
Constitution gives the Centre powers to create new states, alter their
boundaries etc. In the US, the federal government has no power to dismiss a
state government or to alter its boundaries.
The result for Uttarakhand will come in due course. But the problem of
ultimate authority remains.
If an elected government at the state level can be removed by the government
at the Centre, and that decision can be overturned by the Judiciary, where lies
the final authority?
The government at the Centre however can only be removed by a
vote of confidence in Parliament. There is no President’s Rule at the Centre. So
democracy rules at the Centre but not in the states. A debate about 356 is
urgent. If India is a democracy, all legislatures are equal. If it is a
federation, the Centre has to respect the states equally.