INCLUSION OF 356- FOR OR AGAINST

As a member of the drafting committee for the constitution of Gilead, it is my responsibility to

oppose or favour a provision that appears a misfit or on the other hand an accurate fit for the
Constitution of Gilead. As per the consensus that has been reached, Gilead is aiming for a federal
set-up, it is important for the States to possess independence without out-weighing the Centre.
Provisions which violate or try to curb the powers or rights of the State should not be a part of the
constitution. Following the same thread of argument, provisions which grant the Centre, Supreme
authority and control over the States should not find a place in the Constitution. A.V. Dicey stated
that the hallmark of a federal form is that the people "must desire union, and must not desire unity."
If they unite, then there is no basis for a federal form because it then becomes a unitary government.
Thus, there are two contradictory forces involved: the federating units desire national unity while
retaining individual independence. The need to maintain a balance between the two is often a bone
of contention. Gilead in all respects, bears a close resemblance to India. Ivor Jennings was of the
view that the Indian Constitution is quasi-federal and not completely federal since it amalgamates
features of both a federal and unitary set-up. It is however important to note that despite having
such a set-up, The Indian Constitution entails strict division of powers between the Centre and the
States. This is indicative of the fact that a federal set-up essentially requires such a division so as
to ensure that the powers of the State are not curtailed by the Centre.

In regards to inclusion of a provision similar to Article 356 of the Indian Constitution, I vehemently
oppose the inclusion of such a provision. Before we delve into the why’s and how’s of the
aforementioned statement, it is important to know the constituents of such a provision.

Article 356(1) of the Indian Constitution states that, “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 the Constitution”, he has
three recourses,

a) He can assume all the functions of the Government of the State and all or any powers vested
in the Governor or any other authority in the State other than the State legislature.
b) Or, he can declare that the powers of the legislature of the State shall be exercisable by or
under the authority of the Parliament.
c) He is empowered to make such incidental and consequential provisions as the President
sees fit to give effect to the Proclamation thus made by himself. The provisions thus made
would include provisions for suspending in whole or in part the operations of any
provisions of the Indian Constitution relating to any body or authority in the State, provided
that such a provision does not vest in the President any powers vested in or exercisable by
the High Courts.

There have been various instances of abuse of Constitutional power in India, wherein the
Parliament or to be more specific, the party in power at the Centre has misused or abused the
power granted to the President and the Parliament under Article 356. The propriety of the
wholesome use of Article 356 first in 1977, and again in 1980, has been widely questioned.
These proclamations made by the President were not based on any report from the Governors
of the States concerned. Commenting upon the use of Article 356(1) in a wholesale manner in
these cases, the Sarkaria Commission has observed:

“In our opinion, these 18 cases are typical instances of wholesale misuse of Article 356 for
political purposes, extraneous to the one for which the power has been conferred by the
Constitution.”

The observation of the Sarkaria Commission is implicative of the fact that the misuse of such
a provision is inevitable. Upto the year 2000, Article 356 had been revoked as many as 100
times.

Introducing the Emergency provisions of the Draft Constitution, B.R. Ambedkar commented
on the consequences thus:

All federal systems including the American are placed in a tight mould of federalism. No matter
what the circumstances, it cannot change its form and shape. It can never be unitary. On the
other hand the Draft Constitution (of India) can be both unitary as well as federal according to
the requirements of time and circumstances. In normal times, it is framed to work as a federal
system. But in times of war it is so designed to make it work as though it was a unitary system.
Once the President issues a proclamation, the whole scene can become transformed and the
State becomes a unitary State.
 Yet the use of these powers, particularly under Article 356, had belied the intentions of the
founding fathers.1 Keeping aside the power of judicial Review for a moment, such a provision
gives the President or the Parliament for that matter an unfair edge or advantage to subvert the
Constitution or by way of misuse violate the basic principles of Federalism. The
aforementioned words of Dr. B.R. Ambedkar are indicative of the intention of the drafting
Committee which was in essence to provide a way out in emergency situations, where the
President would have no other alternative but to dissolve the Constitutional machinery of the
State. The forefathers, however failed to realize that giving such an unfettered discretion to a
constitutional functionary could hamper the basic federal set-up. The word satisfaction is
subjective. The President is also prone to influence and gullibility. How do we ensure that the
discretion and decision of the President would always be on fair and reasonable grounds?
Judicial Review is one way, but does the Constitution expressly mention such a power on the
Courts? The answer to this question would be a big fat “NO”.

The possibility of such mischief had been foreseen even in the Constituent Assembly. To quote
H.V. Kamath: "I fear that by this single Chapter we are seeking to lay the foundation of a
totalitarian State, a police State, a State completely opposed to all the ideals and principles that
we have held aloft during the last few decades, a State where the rights and liberties of millions
of innocent men and women will be in continuous jeopardy, a State where if there be peace, it
will be the peace of the grave and in the void of the desert.” Most importantly, such a provision
would leave the State and its Government with no sense of security.