What is Article 355 under the Indian Constitution?
Article 355 is in part XVIII of the Indian constitution which contains emergency provisions that are meant to be used in extremely rare circumstances.
According to 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.
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.”
What are the 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.
Why Article 355 was added in September 1949 to the 1948 draft constitution?
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.
How does the constitution contemplates the imposition of Article 356?
The constitution contemplates the imposition of Article 356 as flowing from the duty imposed on the Union government by Article 355.
What have been the court verdicts with respect to the use of Article 355 by the Union government?
In the past, courts have ruled on the constitutionality of legislations 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.
PRACTICE QUESTIONS
QUES . Consider the following statements: UPSC 2023
1 . According to the Constitution of India, the Central Government has a duty to protect States from internal disturbances.
2 . The Constitution of India exempts the States from providing legal counsel to a person being held for
preventive detention.
3 . According to the Prevention of Terrorism Act, 2002, confession of the accused before the police cannot be used as evidence.
How many of the above statements are correct?
(a) Only one
(b) Only two
(c) All three
(d) None
Ans (a) EXPLANATION Statement 1 is correct: According to Article 355 of the Indian Constitution, 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. Statement 2 is not correct: Article 22 (5) of the Indian Constitution does provide for the following when any person is detained in pursuance of an order made under any law providing for preventive detention. The authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, which means, legal options to question the detention have been provided in the constitution. Statement 3 is not correct: The Prevention of Terrorism Act, 2002 was an Act passed by the Parliament of India in 2002, with the objective of strengthening anti terrorism operations. In 2004, the Act was repealed. As per the act, a confession made by a person before a police officer (not lower in rank than a Superintendent of Police) and recorded by that police officer either in writing or on any mechanical or electronic device shall be admissible in the trial of such person for an offence under this Act.
