A.P. High Court order and Article 356

POLITY/ GOVERNANCE

Topic: General Studies 2:

• Challenges associated with Judiciary & executive
• Judicial Accountability

A.P. High Court order and Article 356

Context: In October, in the Andhra Pradesh high court order Justice Uma Devi converted the hearings on a batch of habeas corpus petitions and pleas alleging police excess into a hearing on whether there is a “constitutional breakdown” in Andhra Pradesh, requiring a declaration of President’s rule.

What has the State argued?

• Unprecedented: The order of the High Court, on October 1, came while deciding habeas corpus petitions filed by relatives of persons remanded in judicial custody or on bail. The High Court had suo motu summoned the State counsel to assist it in deciding “whether in circumstances prevailing in the State of AP, the court can record a finding that there is constitutional breakdown in the State or not”.
• Lacks Basis: The state government then asked for that order to be recalled, saying none of the original applications had asked the question of “Constitutional Breakdown”.
• Against Article 356: Judiciary has no role in deciding whether there is Constitutional breakdown in the state, necessitating President’s rule. This power is vested in the executive under Article 356 of the Constitution.
• Against Doctrine of Separation of Powers: The HC Order is a “serious encroachment” on the powers of the executive as enumerated under the Constitution and is thus violative of doctrine of Separation of powers.
• Appealed to Supreme Court: The order was clearly seen as a case of judicial over-reach by the A.P. High Court and was thus appealed to Supreme Court

What did Supreme Court say?

• The Supreme Court stayed the order issued by the AP High Court asking the Andhra Pradesh government whether there was breakdown of constitutional machinery in the state.
• Supreme Court observed that they had not seen any order issued like this by the AP High Court in any case and the apex court found it to be disturbing.
• The Court directed issue of notice and stay and ordered the registry to list the case after the Supreme Court vacation.

Significance of the Incident

• The HC was shocking as it opens up the possibility of use or even misuse of Article 356 by the judiciary. 

• The Supreme Court’s order comes in the wake of incidents pointing to a tussle between the judiciary and the elected government in Andhra Pradesh. 
• CM Jagan Mohan Reddy had, in an unprecedented letter to the CJI, complained about the alleged hostile attitude of the High Court against him and his government besides making controversial allegations against a senior Supreme Court judge.
• The onus is now on the Supreme Court to put an end to the unseemly tussle between the judiciary and government in the State. Ordering an internal inquiry into the Chief Minister’s letter would be a good beginning. 
• A clear nullification of the High Court order will also ensure that such legal adventures impinging upon the separation of powers in the State are not repeated.

Value Addition about Article 356

• Article 356 of the Constitution empowers President to proclaim President’s rule in the state if he, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.
• 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. 
• Both India and Pakistan borrowed this provision from the Government of India Act, 1935. 
• Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it; thus, Section 93 of the Government of India Act, 1935 was never brought into effect. 
• The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.

Connecting the dots:

• National Judicial Appointments Commission
• Judicial Standards and Accountability Bill