Article 355

Context:

Congress party in West Bengal has demanded that the law and order situation in West Bengal is completely broken and Article 355 should be invoked to ensure the State is governed as per the provisions of the Constitution.

What is Article 355?

 “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.”

ARTICLE 355 MERELY JUSTIFIES ACTION UNDER ARTICLES 352 AND 356

The rationale given by Dr. Ambedkar for including Art. 355 in the Constitution is along these lines: that the Constitution is a federal Constitution and thus the States have been assigned sovereignty within their own field, as well as plenary powers to secure peace, order and good government for themselves (barring the provisions which permit the Union to override any legislation that may be passed by the States); it is therefore necessary to provide that if any invasion is made into the States’ domain, as is permitted by Art. 356, it is carried out in virtue of an obligation which the Constitution imposes upon the Union, in the absence of which such invasion would be a wanton, arbitrary, and unauthorised act.9Clearly, it is for this reason that Art. 355 has been placed specifically in Part XVIII which is sets out ‘Emergency Provisions’

Article 355 of the Constitution Explained

Article 355 entrusts the duty upon Union to protect the states against “external aggression” and “internal disturbance” to ensure that the government of every State is carried on in accordance with the provisions of Constitution. Over the period, this article has gained a different texture. There are several angles to the second part of this duty – to ensure that Government of every State is carried on in accordance with the provisions of Constitution. First is the law & order angle. We know that the “public order” and “police” are state subject and states have exclusive power to legislate on these matters. These subjects were entrusted to states because states would be in better position to handle any law and order problem. Management of Police by states was also seen as administratively convenient and efficient. However, there might be some circumstances where states are unable to maintain public order and protect people. In such situation, centre can invoke article 355 and take measures such as taking law and order of state under its own hand, deployment of military etc. This article thus comes handy when there are communal violence incidents.

Second angle is alleged justification of emergency.  Although this article has been seldom used; it is seen as an instrument to justify imposition of emergency under articles 352 and 356. Here, we need to pay attention to two words viz. “internal disturbance” and “armed rebellion”. While article 352 empowers the centre to impose emergency when an armed rebellion occurs, such proclamation cannot be for internal disturbance – thus said SC in SR Bommai Case. So, Supreme Court interpretation was that article 355 itself does not give power to centre to impose emergency because mere internal disturbance short of armed rebellion cannot justify a proclamation of emergency under Art. 352 nor can such disturbance justify issuance of proclamation under Art. 356, unless it disables or prevents carrying on of the Government of the State in accordance with the provisions of the Constitution. On the basis of this, the constitutional validity of AFSPA was upheld which allows the centre to send armed forces in disturbed area. Court observed that this law was enacted in order to enable the Union to discharge the obligation imposed on it under Art. 355. Further, Sarkaria Commission also expressed view that article 355 not only imposes duty on the Union but also grants it, by necessary implication, the power of doing all such acts and employing such means as are reasonably necessary for the effective perfor­mance of that duty. Thus saying that Article 355 merely justifies action under articles 352 and 356 is not justified. In fact, despite being in Part XVIII {Emergency Provisions}, this article is not seen exactly as an emergency provision. It provides for a broad legal standard which justifies a range of centre’s actions in situations that are not so grave as to warrant emergency measures but are yet of immediate and pressing concern enough as should justify the taking of alternative statutory and constitutional measures {not amounting to emergency action}

Cases for its invocation

• This article thus comes handy when there are communal violence incidents. Over the period, this article has gained a different texture.
• We know that the “public order” and “police” are state subject and states have exclusive power to legislate on these matters.
• These subjects were entrusted to states because states would be in better position to handle any law and order problem.
• Management of Police by states was also seen as administratively convenient and efficient.
• However, there might be some circumstances where states are unable to maintain public order and protect people.
• In such situation, centre can invoke article 355 and take measures such as taking law and order of state under its own hand, deployment of military etc.

Case Studies:

• Accordingly, in S.R. Bommai v. Union of India,

Sawant, J.’s opinion (on behalf of Kuldip Singh, J. and himself) held that Art. 355 is not an independent source of power for interference with the functioning of the State Government but is in the nature of justification for the measures to be adopted under Arts. 356 and 357. It was also noted that the expression ‘internal disturbance’ is of larger connotation than ‘armed rebellion’, and thus while a proclamation of emergency under Art. 352 can be made only if a situation of armed rebellion arises, such Proclamation cannot be made for internal disturbance caused by any other situation.

• In Naga People’s Movement of Human Rights v. Union of India,

The Supreme Court was called upon to decide the question of the constitutionality of the Armed Forces (Special Powers) Act, 1958 (‘AFSPA’), under which the Union is empowered to dispatch its armed forces in aid of States’ civil power in any area it finds to be a ‘disturbed area’. After confirming the legislative competence of the Union vide Entry 2A of List I of the VIIth Schedule, the enactment was upheld with the observation that its provisions were enacted in order to enable the Union to discharge the obligation imposed on it under Art. 355 of the Constitution so as to protect States from grave situations of internal disturbances and to prevent such situations from escalating to such seriousness as would require invoking the drastic measures under Art. 356

• In Sarbananda Sonowal v. Union of India,

The Supreme Court was considering the matter of the constitutional vires of certain provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, a Union enactment attempting to detect and deport illegal migrants residing in the State of Assam. The Court after examining the situation of large-scale illegal migration into the State of Assam, concluded that a situation amounting to external aggression and internal disturbance persisted therein. Therefore, it observed that it became the duty of Union to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Art. 355 of the Constitution. After examining the provisions of the Act in depth, it was held that the Act and the Rules made thereunder “negate the constitutional mandate contained in Art. 355 of the Constitution”, whereby a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The Act was held to contravene Art. 355 of the Constitution and was therefore struck down as unconstitutional.

Source: The Hindu

You can find many articles on CONSTITUTION (part of GS II) in our website. Go through these articles share with your friends and post your views in comment section.