Sunday, April 7, 2013

Article 356 of the Indian Constitution

The discretionary powers of the Governor-General and Governor of Section 93 of the 1935 act were done away with in the Indian Independence Act of 1947. But the Indian Constituent Assembly debated and introduced something similar in Article 356 of the Indian Constitution.

We are told:[1]

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635 amendments tabled.

When it was suggested in the Drafting Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act, 1935, upon the President, many members of that eminent committee vociferously opposed that idea. Dr. Babasaheb Ambedkar then pacified the members stating:

'In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte 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 dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces.'

He added: '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 Constitution.'
 S.R. Bommai v. Union of India, 1994, (Wiki), when the Supreme Court of India set strict boundaries,  stopped the previous abuse of this provision of the Constitution.

[1] EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA: A Comparative Critique K. Jayasudha Reddy and Joy V. Joseph, EJCL Volume 8.1, March 2004

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