Last week it seems the Central Govt has remembered its duty “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.”
A. G. Noorani recounts the origins of the Article in a write up in The Statesman dated 17 July 1998 [Constitutional Questions in India, OUP, 2004] by noting that it “was not entirely born in sin, but it was conceived in murky circumstances.” Referring to B. Shiva Rao’s compilation on the papers that went into framing the Constitution, he notes that this was an article which found its place in the Constitution by way of a check suggested by the Dewan of Jaipur among others to balance what was perceived by them as unparalleled emergency powers which now find place in the Constitution in their entirety.
The suggested Article read as follows :
It shall be the duty of the union to protect every state against external aggression and, upon a request from the executive government of a state, to protect or restore the duly constituted authorities of of that state in the event of domestic violence or insurrection’.
Interestingly enough, the vital bit on a request was dropped when paving way for the article in its present form. Dr. Ambedkar while explaining the rationale behind the article in the Constituent Assembly drew parallels with the American and Australian Constitutions which pertinently have the vital facet of an application from the executive government of the state in that regard.
Thus Bommai’s case explained the import of the article by stating that it was not an independent source of power for interference with the functioning of a state government but was in the nature of a justification for the exercise of the powers under Art. 356 and Art. 357. Hence the vital deletion from the originally suggested article changed its character from that of a ‘duty’ to be discharged by the Centre to being a measure of reprimand to be exercised by the Centre and thus make the ground for more drastic action under the emergency provisions.
As for the circumstances under question today, though I would without any hesitation condemn the attacks on christians in Karnataka and Orrisa (irrespectgive of the genesis of the problem which itself requires a deeper examination and remedial action), I can’t help wonder as to what is the yardstick to measure internal disturbance under Art. 355 being adopted by the Central Govt. Was Nandigram not good enough as was in fact suggested by Mr. Advani ? Are the incidents (loss of peace and property) resulting from Raj Thackeray’s campaigns in Maharashtra not good enough as pointed out by Mr. Jaitley ?
The issue of parity apart and more importantly in the context of the original intention behind this provision in the Constitution, I can’t stop myself from thinking of the failure of the Central Govt. in terms of the lack of political will it unapologetically shows and some overt actions and inaction in dealing with the internal disturbances that have become a horrifying routine throughout the country. Hence I am reminded of a decision of the SC of 2005, Sarvananda Sonowal’s case wherein the court had the occasion of examining a legislation which was undoubtedly a result of the aforesaid consistent policies of the political dispensation at the helm in the Centre today; the Illegal Migrants (determination by tribunals) Act, 1983 (enacted under the premiership of Mrs. Gandhi), the title of which is a clear misnomer in view of its real intentions. The Act was challenged whilst questioning the intention behind it and its latent and patent effects.
The court in striking down the said Act relied on Art. 355 and held as follows :
38. This being the situation there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose. ……42. The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.
Content © Lex
Proudly powered by WordPress
Theme designed by The Design Canopy
19 queries.
0.723 seconds.
Gr8 come back sire!