Article 355 : An obligation/duty upon the Central Govt
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Th Kamini Kumar Singh
Various comments regarding the need for issuing a notification before exercise of the duty by the Central Government under Article 355 of the Constitution remind the parable of the blind men and an elephant where each blind man described the elephant as looking like the part he touched. But what he described does not describe an elephant. Only a sighted man can fully describe what an elephant looks like. The morals behind this story illustrate how different individuals form their own opinion based on what he perceives or thinks right. There are various opinions in circulation relating to Article 355 of the Constitution. Most of the commonly shared opinion is that the Central Government shall issue a formal order in this regard as a condition precedent before exercise of the obligation/duty under article 355. Therefore, any discussion on the common perception relating to article 355 will be a contentious issue. Under the constitutional schemes, it is not disputed that for imposing the President's rule under the article 356, the President is required to issue a Proclamation inasmuch as article 356 provides for issuing of a Proclamation. In absence of such Proclamation, the President can't exercise the power vested upon him under article 356.
To settle the issue, it is, therefore, necessary to examine whether Article 355 mandates the Central Government to issue a notification to perform the obligations upon the Central Government. Before entering into this issue, it will be interesting to examine some of the Constitutional schemes regarding the federal structure ie relation between the Centre and the States. The Constitution provides for a federal form with clearly defined spheres of authorities between the Union and the States. In several provisions of the Constitution, the centralising tendency is eminent. The executive power of the Union under article 73 of the Constitution extends to the matters with respect to which Parliament has power to make laws. In other words, the Union ie the Central Government can exercise its executive function on matters to which Parliament has power to make laws. Unless expressly provided in the Constitution or in any law made by Parliament, the executive power of the Union shall not extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Similarly the executive power of the State under article 162 of the Constitution extends to the matters with respect to which Legislature of the State has power to make laws. This executive power of the State is subject to the provisions of the Constitution.
In any matter where both Parliament and the State Legislature have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or any law made by Parliament upon the Union or authorities. The law-making power of Parliament and the State Legislature are clearly defined under article 246 read with the Seventh Schedule to the Constitution. The power of Parliament to make laws with respect to any of the matters enumerated in List I (Union List) of the Seventh Schedule is exclusive.
However the exclusive power of the State Legislature to make laws with respect to any of the matters in List II (State List) is subject to clauses (1) and (2) of article 246. Both Parliament and the State Legislature have power to make laws with respect to any of the matters enumerated in List III (Concurrent List). It may be pertinent to point out that there are certain Constitutional provisions for making laws by Parliament in any of the matters enumerated in the State List. Under article 249, Parliament can make laws with respect to a matter enumerated in the State List in the national interest.
Under article 250, when a proclamation of emergency is in operation, Parliament has power to make laws for the whole or any part of the territory of India with respect to any matter in the State List. Under article 252, Parliament can make laws relating to State subjects for such States if the legislatures of two or more States passed by resolution. Under article 254, whenever there is repugnancy between a provision of a law made by Parliament and a provision of a law made by the State Legislature, such a provision of law made by Parliament shall prevail and the law made by the State Legislature shall to the extent of repugnancy shall be void. The power to amend the Constitution is available only with Parliament in accordance with the provisions of article 368.
The States have no power to make a separate Constitution for its own, or to amend the Constitution. So far as the administrative relations between the States and the Union are concerned, the executive power of the Union extends to the giving of such directions to a State as may appear to the Government of India to be necessary for the purpose to ensure compliance with the laws made by Parliament and any existing laws which apply in the State.
The Government of India in exercise of the executive power of the Union can give directions to a State to exercise the executive power of the State so as not to impede or prejudice the exercise of the executive power of the Union. From these provisions of the Constitution, it is not exaggerating to say that the Constitution provides for more power to the Union. Coming to the aforementioned contentious issue, it may be relevant to reproduce the provisions of article 355: “ 355. Duty of the Union to protect States against external aggression and internal disturbance.- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” What is transpired from the provisions of article 355 is that it is an obligation/duty cast upon the Central Government to swing into action immediately without further delay to protect a State against external aggression and internal disturbance and to ensure that the Government of the State is carried on in accordance with the provisions of the Constitution. It becomes an inherent power of the Central Government by virtue of article 355.
To perform the mandates of article 355, it is incumbent upon the Central Government to form an opinion and also to satisfy that the situations prevailing in the State are so serious that it requires immediate intervention by the Central Government.
The whole or a part of the State is so deeply disturbed by external aggression and internal disturbance that it becomes a great difficulty for the Government of the State to carry on in accordance with the provisions of the Constitution. Article 355 doesn't specify the specific actions required to be done by the Central Government but left at the wisdom of the Central Government to perform the mandates of article 355. It becomes the obligation/duty of the Central Government to take immediate action to ensure that the Government of the State runs in accordance with the provisions of the Constitution. In article 355, there is no express or implied provision for issuance of a proclamation or an order before the performance of the mandatory duty cast upon the Central Government. Under item 2A of List I of the Seventh Schedule, Parliament is empower to make laws for deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on duty.
The Union has, in exercise its executive power as provided under article 73, power to deploy the armed forces of the Union or any other force subject to the control of the Union in any State in aid of civil power to perform the obligations under article 355. Even in such an eventuality where the armed forces of the Union are deployed in a State in aid of civil power under article 355, the law and order and public order is still under the exclusive domain of the State. Before the forty-fourth amendment of the Constitution, “internal disturbance” is a ground for imposition of the emergency under article 352 by making a proclamation by the President. Since the substitution of “internal disturbance” by “armed rebellion” in article 352, internal disturbance is no more a ground for imposition of emergency.
During the period of external aggression and internal disturbance in a State, the Central Government may take actions as it deems fit to protect the State from external aggression and internal disturbance and to ensure the State Government carries on in accordance with the provisions of the Constitution. But this situation does not empower the Central Government to assume the functions and powers of the State Government. If the Central Government satisfies that the situation of external aggression and internal disturbance in the State is so grave and extensive that the assumption of functions and powers of the Central Government is necessary, the Central Government may invoke the provisions of article 356. Once article 356 is invoked, the maintenance of law and order and public order of the State shall be within the purview of the Central Government. It is, therefore, submitted that there is no legal basis to conclude that the Central Government shall issue a notification for exercising the obligations under article 355. Let it settle down the contentious issue on article 355.
The writer is an Advocate and Former Secretary (Law), Government of Manipur
Various comments regarding the need for issuing a notification before exercise of the duty by the Central Government under Article 355 of the Constitution remind the parable of the blind men and an elephant where each blind man described the elephant as looking like the part he touched. But what he described does not describe an elephant. Only a sighted man can fully describe what an elephant looks like. The morals behind this story illustrate how different individuals form their own opinion based on what he perceives or thinks right. There are various opinions in circulation relating to Article 355 of the Constitution. Most of the commonly shared opinion is that the Central Government shall issue a formal order in this regard as a condition precedent before exercise of the obligation/duty under article 355. Therefore, any discussion on the common perception relating to article 355 will be a contentious issue. Under the constitutional schemes, it is not disputed that for imposing the President's rule under the article 356, the President is required to issue a Proclamation inasmuch as article 356 provides for issuing of a Proclamation. In absence of such Proclamation, the President can't exercise the power vested upon him under article 356.
To settle the issue, it is, therefore, necessary to examine whether Article 355 mandates the Central Government to issue a notification to perform the obligations upon the Central Government. Before entering into this issue, it will be interesting to examine some of the Constitutional schemes regarding the federal structure ie relation between the Centre and the States. The Constitution provides for a federal form with clearly defined spheres of authorities between the Union and the States. In several provisions of the Constitution, the centralising tendency is eminent. The executive power of the Union under article 73 of the Constitution extends to the matters with respect to which Parliament has power to make laws. In other words, the Union ie the Central Government can exercise its executive function on matters to which Parliament has power to make laws. Unless expressly provided in the Constitution or in any law made by Parliament, the executive power of the Union shall not extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Similarly the executive power of the State under article 162 of the Constitution extends to the matters with respect to which Legislature of the State has power to make laws. This executive power of the State is subject to the provisions of the Constitution.
In any matter where both Parliament and the State Legislature have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or any law made by Parliament upon the Union or authorities. The law-making power of Parliament and the State Legislature are clearly defined under article 246 read with the Seventh Schedule to the Constitution. The power of Parliament to make laws with respect to any of the matters enumerated in List I (Union List) of the Seventh Schedule is exclusive.
However the exclusive power of the State Legislature to make laws with respect to any of the matters in List II (State List) is subject to clauses (1) and (2) of article 246. Both Parliament and the State Legislature have power to make laws with respect to any of the matters enumerated in List III (Concurrent List). It may be pertinent to point out that there are certain Constitutional provisions for making laws by Parliament in any of the matters enumerated in the State List. Under article 249, Parliament can make laws with respect to a matter enumerated in the State List in the national interest.
Under article 250, when a proclamation of emergency is in operation, Parliament has power to make laws for the whole or any part of the territory of India with respect to any matter in the State List. Under article 252, Parliament can make laws relating to State subjects for such States if the legislatures of two or more States passed by resolution. Under article 254, whenever there is repugnancy between a provision of a law made by Parliament and a provision of a law made by the State Legislature, such a provision of law made by Parliament shall prevail and the law made by the State Legislature shall to the extent of repugnancy shall be void. The power to amend the Constitution is available only with Parliament in accordance with the provisions of article 368.
The States have no power to make a separate Constitution for its own, or to amend the Constitution. So far as the administrative relations between the States and the Union are concerned, the executive power of the Union extends to the giving of such directions to a State as may appear to the Government of India to be necessary for the purpose to ensure compliance with the laws made by Parliament and any existing laws which apply in the State.
The Government of India in exercise of the executive power of the Union can give directions to a State to exercise the executive power of the State so as not to impede or prejudice the exercise of the executive power of the Union. From these provisions of the Constitution, it is not exaggerating to say that the Constitution provides for more power to the Union. Coming to the aforementioned contentious issue, it may be relevant to reproduce the provisions of article 355: “ 355. Duty of the Union to protect States against external aggression and internal disturbance.- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” What is transpired from the provisions of article 355 is that it is an obligation/duty cast upon the Central Government to swing into action immediately without further delay to protect a State against external aggression and internal disturbance and to ensure that the Government of the State is carried on in accordance with the provisions of the Constitution. It becomes an inherent power of the Central Government by virtue of article 355.
To perform the mandates of article 355, it is incumbent upon the Central Government to form an opinion and also to satisfy that the situations prevailing in the State are so serious that it requires immediate intervention by the Central Government.
The whole or a part of the State is so deeply disturbed by external aggression and internal disturbance that it becomes a great difficulty for the Government of the State to carry on in accordance with the provisions of the Constitution. Article 355 doesn't specify the specific actions required to be done by the Central Government but left at the wisdom of the Central Government to perform the mandates of article 355. It becomes the obligation/duty of the Central Government to take immediate action to ensure that the Government of the State runs in accordance with the provisions of the Constitution. In article 355, there is no express or implied provision for issuance of a proclamation or an order before the performance of the mandatory duty cast upon the Central Government. Under item 2A of List I of the Seventh Schedule, Parliament is empower to make laws for deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on duty.
The Union has, in exercise its executive power as provided under article 73, power to deploy the armed forces of the Union or any other force subject to the control of the Union in any State in aid of civil power to perform the obligations under article 355. Even in such an eventuality where the armed forces of the Union are deployed in a State in aid of civil power under article 355, the law and order and public order is still under the exclusive domain of the State. Before the forty-fourth amendment of the Constitution, “internal disturbance” is a ground for imposition of the emergency under article 352 by making a proclamation by the President. Since the substitution of “internal disturbance” by “armed rebellion” in article 352, internal disturbance is no more a ground for imposition of emergency.
During the period of external aggression and internal disturbance in a State, the Central Government may take actions as it deems fit to protect the State from external aggression and internal disturbance and to ensure the State Government carries on in accordance with the provisions of the Constitution. But this situation does not empower the Central Government to assume the functions and powers of the State Government. If the Central Government satisfies that the situation of external aggression and internal disturbance in the State is so grave and extensive that the assumption of functions and powers of the Central Government is necessary, the Central Government may invoke the provisions of article 356. Once article 356 is invoked, the maintenance of law and order and public order of the State shall be within the purview of the Central Government. It is, therefore, submitted that there is no legal basis to conclude that the Central Government shall issue a notification for exercising the obligations under article 355. Let it settle down the contentious issue on article 355.
The writer is an Advocate and Former Secretary (Law), Government of Manipur