IASbhai Daily Editorial Hunt | 26th Dec
“To live a creative life, we must lose our fear of being wrong.” – Anonymous
EDITORIAL HUNT #284 :“ARTICLE 365 and its Misuse | UPSC ”
ARTICLE 365 and its Misuse | UPSC
Faizan Mustafa is Vice-Chancellor, the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad.
The A.P. High Court’s recent order is worrisome — it opens up the possibility of judicial use or misuse of the Article
SYLLABUS COVERED: GS 2 : Judiciary
Article 365 has a bitter history of misuse and corrupt practises. Substantiate -(GS 2)
- Judicial activism
- Article 365
- Reason of inclusion
- The record
- Way Forward
- JUDICIAL OVERREACH : Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself as it would encourage the state to appoint committed judges.
- ROLE OF COLLEGIUM : Sometimes even the collegium’s recommendations on transfer of judges and chief justices today looks more like an executive order transferring IAS officers.
- Article 365 is an extension to emergency powers of president.
- The constitution of India has provided the president of India the power to impose emergency using article 352 and article 365 on two different accounts.
- In first condition, if the state does not follow the Indian constitution, the emergency can be declared.
BEHIND THE INCLUSION
- ARTICLE 365 IS AN EXCEPTION : No liberal democratic Constitution in the world has a provision such as Article 356 that gives the central government the power to dismiss a democratically-elected State government except the Constitution of Pakistan.
- COLONIAL REFERENCE : Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
- FREEDOM FIGHTERS OPPOSED ARTICLE 365 : Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it.
- SECTION 93 OF GOI ACT 1935 : The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
- ROLE OF GOVERNOR : On June 11, 1947, it was agreed in the Constituent Assembly that the Governor could use this emergency power.
- REACTIONS IN CONSTITUENT ASSEMBLY : G.B. Pant and Hirday Nath Kunzru opposed it and termed it as virtual reproduction of the 1935 Act. H.N. Kunzru defied the whip and voted against it.
- B.R. AMBEDKAR AND ARTICLE 356 : Article 356 has been used/misused more than 125 times though B.R. Ambedkar had assured that it would remain a dead letter.
- CONSTITUTIONAL BREAKDOWN : In almost all cases it was used for political considerations rather than any genuine breakdown of constitutional machinery in the States.
INFLICTING MORE WOUNDS
- FIRST IMPLEMENTATION : In the very first invocation of Article 356 in 1951, Jawaharlal Nehru removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority.
- DUBIOUS INTERPRETION : Indira Gandhi has the dubious distinction of using Article 356 as many as 27 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc.
- MORE WORSE : The Janata government did worse than Mrs Gandhi by removing nine majority Congress governments in one stroke on April 30, 1977.
‘In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place oblige it to control itself,’ -James Madison.
SOURCES: THE HINDU EDITORIAL HUNT | ARTICLE 365 and its Misuse | UPSC