Article 356 and an activist judiciary

Context

• The Supreme Court quite rightly stayed an Andhra Pradesh High Court order that sought to convene a judicial inquiry into whether there is a “constitutional breakdown” in the Y.S. Jagan Mohan Reddy-led government in the State. 

The recent order of A.P. High Court

• The recent order of the Andhra Pradesh High Court directing the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’.

Why the judgment is being criticized?

• It is said that it opens up the possibility of use or even misuse of Article 356 by the judiciary.
• The order impinges the doctrine of separation of powers since it is the President of India who is empowered to go into question of ‘breakdown of constitutional machinery’ under Article 356 of the Constitution and not the judiciary.

How the similar judicial overreach has been done in the past?

• On August 13, 1997, a Patna High Court Bench of Chief Justice B.M. Lal and Justice S.K. Singh while disapproving the functioning of the Rabri Devi government had observed that the Governor’s report was not conclusive regarding the invocation of Article 356.
• The order said that the High Court could also report to the President about the breakdown of constitutional machinery in the State.

What is Article 356?

• Under Article 356 of the Constitution of India, in the event that a state government is unable to function according to Constitutional provisions, the Union government can take direct control of the state machinery.
• According to Article 356, President’s Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery.
• If the President receives a report from the state’s Governor or otherwise is convinced or satisfied that the state’s situation is such that the state government cannot carry on the governance according to the provisions of the Constitution.
• It is also called ‘State Emergency’ or ‘Constitutional Emergency’.
• Subsequently, executive authority is exercised through the centrally appointed governor, who has the authority to appoint other administrators to assist them.

Inclusion of Article 356 in the Constitution

• Indian constitution borrowed this provision from the Government of India Act, 1935.
• On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power.
• By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.