article 356 is the most and federal provision of the constitution of india. It should be scrapped." comment
Answers
Answer:
Explanation:
Justice V.R. Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and original constitutional thinkers since Independence. He was interviewed by R. Krishnakumar in Thiruvananthapuram:
*The Supreme Court's majority judgment of March 11, 1994 in the Bommai case is considered a landmark judgment with respect to Centre-State relations in general and Article 356 in particular. What, in your assessment, is the essential difference between the situation pre-Bommai and post-Bommai?
Before the Bommai decision was rendered, the constitutional position was understood to mean excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now the law is clear that it is possible for the court, it is proper for the judges, to examine whether the relevant power has been misused in the sense that it is arbitrary, mala fide or such that there is no reasonable material to support such a conclusion as the breakdown of the Constitution.
Indeed it must be acknowledged that even the Pakistan Court has taken a somewhat similar, view, even earlier than the Indian Court. Now, therefore, it is clear that reckless exercise of Article 356 power will meet with its Waterloo in the Court.
* Since experience, even in the post-Bommai period, suggests that few Central governments are able to resist the temptation to misuse the exceptional power conferred by Article 356 (and also related powers), do you think Article 356 should be abolished?
Speaking for myself, Article 356 deserves to be abrogated. The founding fathers were under the impression that this provision would be used only in the rarest of rare cases, that it would be virtually a sword which would never be taken out of its sheath, except in a flagrant case under Article 365. This latter Article states that if any particular State defies a Central direction validly given, it shall be lawful for the President, that is the Cabinet, to hold that the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation arises, Article 356 may be attracted. But the Court will go into the question whether the direction given by the Union to the State was itself valid. Only in a case of such valid direction within the competence of the Union being ignored by the State, can Article 356 come into operation.
My submission is that in over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a legitimate use of Article 356. If the temptation to use this presidential power is perennial, as is seen by its continual abuse, the time has come for a change in constitutional perspective. In short, Article 356 should be kept in cold storage, or even formally abolished.
Jul 17, 1998 - This latter Article states that if any particular State defies a Central direction validly given, it shall be lawful for the President, that is the Cabinet, to hold that the government of the State cannot be carried on in accordance with the provisions of the Constitution.