Article 365: A threat to Cooperative Federalism - Seeker's Thoughts

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Saturday, 1 September 2018

Article 365: A threat to Cooperative Federalism


Introduction- In the draft constitution of India, many provisions enabling the Union Government to issue directions to the states during normal times as well as during emergency were proposed to be included. But the draft was silent as to the nature and extent of the power to be conferred on the Union Government.                                  
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.
 Article 365 says, where any state has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the central government under any of the provisions of the constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution.
Precisely, article 365 imposes a restriction on states to follow executive authority of center.
This Article can be validly be invoked only if:
Any direction is given by Union Government in the valid exercise of its power under any of the provisions of the constitution and such directions have not been compiled with or given effect by the state.
President can only act in such conditions
1- The president should exercise this drastic power in a reasonable manner with due care and circumstances, including the response, if any, of the state government to the direction. In response to the direction the state government might satisfy the president that the direction has been issued on wrong facts or misinformation, or that the required correction has been affected.
2- The president should also keep in mind that every insignificant deviation from the constitutional path or technical contravention of constitutional provisions by the functionaries of the state government would not necessarily and reasonably lead one to hold that the government in the state.
3- The extra ordinary powers under Article 365 are necessary but should be exercised with great caution and in only in extreme cases.
Parliamentary Approval
Every proclamation to impose president rule shall be laid down before each house of parliament and must get approval in two months from date is issue.
Provided that at the time of proclamation the Lok Sabha has been dissolved or dissolution of Lok Sabha takes place in mean time (i.e. within two months from date of issue) then it must get approval of Rajya Sabha within 2 months. But such proclamation shall cease to operate after 20 days from first sitting of Lok Sabha and after its reconstitution if the proclamation does not get approval of Lok Sabha in 30 days.
Duration of President Rule
1-     If approved by both houses of parliament then president rule shall continue for 6 months and can be renewed for maximum of 3 years by approval of parliament after every 6 months.
2-    For Renewal it must be passed by both houses of parliament by simple majority.
3-    Termination – the president rule can be revoked by president anytime he thinks fir before it ceases to operate.
4-    44th Constitutional Amendment 1978 – it introduced some constraints to impose president rule beyond period of 1 year. The president rule can’t be imposed in any state beyond 1 year unless a proclamation of national emergency is in operation in the whole of India. Or, The case may be in the whole or any part of the state at the time of the passing of such resolution.

Explaining the meaning of Article 365 Sawant, J. in S.R. Bommai v. Union of India
It is observed that Article 365 is more in the nature of a deeming provision. It further stated that failure to comply with or to give effect to the directions given by the Union under any of the provisions of the Constitution is one of the situations contemplated by the expression "Government of the State cannot be carried on in accordance with the provisions of this Constitution" occurring in Article 356.
Conclusion
It needs to be remembered that only the spirit of "cooperative federalism" can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority. Under our constitutional system, no single entity can claim superiority. Sovereignty doesn't lie in any one institution or in any one wing of the government. The power of governance is distributed in several organs and institutions - a sine qua non for good governance.