During a press conference to update members of the press on the ongoing situation in Manipur, the head of Manipur’s state police made an unusual statement. According to the officer, Article 355 of the Indian Constitution was imposed in the state, and as a result, the Union government assigned a security advisor to the state government.
What is Article 355, and how is it imposed under the Indian Constitution?
Article 355 is found in part XVIII of the Indian constitution which contains emergency provisions that are meant to be used in extremely rare circumstances. This section of the constitution empowers the Union government to declare a state of emergency (through Article 352) or, in other cases, President’s Rule in a particular state of the Union (through Article 356).
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.
A study of the bare provision of Article 355 reveals that it imposes a duty on the Union government to protect states in the event of “external aggression and internal disturbance.” The article also requires the Union government to ensure that the government of each state in the Union is “carried on in accordance with the provisions of this constitution.”
To understand the scope of Article 355’s application, we need to examine the intention of the constitution’s drafters when they decided to include this article in it.
Article 355, as it currently exists, was not in the 1948 draft constitution, and was only added in September 1949 (as draft Article 277A). It was inserted with the objective of providing a legitimate ground for the application of Article 356 of the constitution, which allows the Union government to issue a proclamation of President’s Rule in a specific state.
Because imposing President’s Rule in a state is considered an extreme measure, the drafters of the constitution felt this insertion was necessary. It is thought to be so because it has the effect of removing a state’s ability to govern itself. It is important to note that when President’s Rule is proclaimed in a particular state, the Union government assumes the authority to govern that state, including the ability to make decisions that would normally be made by the state government. Furthermore, the imposition of President’s Rule transfers powers from a state’s legislative assembly to the national parliament.
Because the drafters of the constitution recognised the broad power vested in Article 356, it was thought necessary to include another article to ensure that the imposition of Article 356 would not be viewed as an arbitrary exercise of the Union government’s authority. Because of this recognition, the drafting committee inserted Article 355 into the constitution.
For these reasons, it is clear that the constitution contemplates the imposition of Article 356 as flowing from the duty imposed on the Union government by Article 355.
Circumstances under which Article 355 can be used
The constituent assembly debates show that the drafters of the constitution were concerned about the abuse of the emergency provisions in Part XVIII of the constitution. In one instance, Dr. B. R. Ambedkar is quoted as saying that the powers granted by Articles 355 and 356 should be used with caution. He stated during a debate of the constituent assembly in August 1949 that “the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all, they are brought into operation, I hope the president, who is endowed with all these powers, will take proper precautions before actually suspending the administration of the provinces.”
As a result, it is understood that emergency provisions, such as Articles 355 and 356 of the constitution, can only be imposed in emergent situations. This appreciation has ensured that the provisions in Part XVIII of the constitution include constitutional safeguards that help ensure they are not abused arbitrarily by authoritarian actions from New Delhi. When these safeguards are violated, citizens have the right to petition the courts to test those actions against the principles enshrined in the constitution.
The mysterious case of application of Article 355 in Manipur
Given this understanding of Article 355 and the scope of its application, it is important to consider whether the article can be independently applied by the Union government in a specific circumstance.
In the past, courts have ruled on the constitutionality of legislation based on an examination of the duty imposed on the Union government by Article 355. This includes the cases of Naga People’s Human Rights Movement v. Union of India (1997) and Sarbananda Sonowal v. Union of India (2005).
However, it is important to consider the argument that the Union government cannot use Article 355’s independent application to intervene in matters that fall under the purview of a state government. This argument is supported, in particular, by Justice Sawant’s opinion in S. R. Bommai v. Union of India (1994). Justice Sawant’s opinion held that the duty conferred on the Union government by Article 355 is a justification for the imposition of Articles 356 and 357, rather than an independent source of power that the Union government can use to interfere with the functioning of a state government. Instances such as the one in Manipur therefore present a questionable application of Article 355.
The argument is further supported by the constitution’s recognition of India’s federal character. It is important to keep in mind that allowing the Union government to use Article 355 on its own to intervene in the domain of a state government would be detrimental to federalism in the long run.
To make matters worse, the imposition of Article 355 in Manipur is particularly troubling due to how this was communicated to the public. An elected MLA – a member of the ruling party – tweeted that Article 355 had been “implemented” in the state, which was an indication that it had been imposed. Following that, the head of the state police suggested during a press conference that Article 355 was imposed.
It is important to note that, as of late Saturday night, no formal order has been issued by the Union government to impose or invoke Article 355 in Manipur. This opens up two possibilities. Either the statements made by the two responsible public officials are incorrect, or the Union government secretly imposed Article 355 in the state without making the decision public. If the latter is correct, it raises serious concerns because such a decision, made in the absence of a legal, published announcement, may be considered unlawful.
Much remains to be seen in the development of this case, and it is critical that we pay close attention to how it develops, given the broad implications for our democratic society.
Jade Lyngdoh is a Constitutional Law honours candidate at National Law University, Jodhpur, where he has been a Meta India Tech Scholar. He contributes to The Wire, and is interested in the intersection of technology law and policy and human rights.