In his recent judgment in Swaraj Abhiyan v Union of India and Others, indicting the Centre for its inaction and the states which defied the National Food Security Act, 2013, Supreme Court Justice Madan B Lokur, drew attention to Article 256 of the Constitution, calling it a “forgotten” provision. The learned Justice may indeed be correct, as it is not very often that one comes across this provision in the public discourse.
What does the Article say?
The first part of the Article says the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.
The second part explains that the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
If the first part is complied with voluntarily by the States, it would seem that the second part might be redundant. On the other hand, if the second part indeed serves the purpose at times, it would show that the States are indeed guilty of violating the first part of this Article, resulting in the Union issuing necessary directions to them to comply with the Parliamentary laws. The Constitution appears to assume that the States may be guilty of either wilful defiance, or negligence of its duties to comply with the Parliamentary laws.
The Constitution also appears to assume that the Centre could use this provision to issue directions, to preempt the States from non-compliance if it has reasons to believe that they may indeed not comply with the Parliamentary laws. Or, when faced with instances of non-compliance by the States, the Centre can use this provision to persuade them to comply, and if the defiance continues, to warn them of the consequences.
Why it is a forgotten provision?
As the Centre does not have its own administrative machinery to implement Parliament’s laws in the territory of India, Article 256 has its own rationale. But the fact remains that it has been little used since the Constitution came into force, and the fact that it is little used, also explains why it is forgotten.
What is its history?
Section 122 of the Government of India Act, 1935 is a predecessor to the present Article 256. The framers of the 1935 Act left it to the constitutional morality of the States to respect the Federal laws. Although Article 256 is silent on the consequences of non-compliance, the drastic sanction is found in Article 365.
Under this provision, where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provision of the Constitution.
In his judgment, Justice Lokur does not refer to Article 365, because it is mostly seen as a prelude to imposition of President’s rule in a State under Article 356, after the Centre exhausts all the available remedies under the Constitution to ensure compliance by a State with a Parliamentary law.
What is the case law on this Article?
In their separate and concurring judgments, Justices Lokur and Ramana do not deal with the case law on Article 256, but only confine themselves with posing a question on the remedies available in the context of non-compliance of States with Parliamentary laws.
In the infamous A.D.M.Jabalpur case, the Supreme Court held that a failure to comply with Article 256 may attract serious consequences, but no Court is likely to entertain a grievance at the instance of a private party that Article 256 has been violated by the State Government. In Swaraj Abhiyan, it is likely that the petitioner did not have to argue that Article 256 stood violated, but it was all obvious to the Court, as the facts spoke for themselves.
In State of Rajasthan v Union of India (1977), the Supreme Court justified issue of directions under Article 256 to a State, if the Union Government feels that the executive power of the State is being exercised in a manner which may amount to impediment to enforcement of the Central laws. In State of Karnataka v Union of India, it was held that under Article 256, the Centre can issue directions to a State, as a legal entity and not as a geographical unit.
The power to issue directions by the Centre to the States in relation to Central Laws thus has not been in doubt. But the question of what remedy is available to an aggrieved citizen, if both the States and the Centre are indifferent to Article 256 was not explicitly answered in Swaraj Abhiyan. It was left to be inferred as the Court entertained the PIL filed by Swaraj Abhiyan, which resulted in the judgment.
Is there a single case in which Court has awarded effective remedies for violation of Article 256?
In 1967, the State of West Bengal issued two circulars to police officers not to intervene in the case of “gherao” of industrial establishments by their workers. A writ petition was filed in the Calcutta High Court, challenging the circulars on the ground that they violated Article 256. In this case, Jay Engineering Works Ltd.& Others v State of West Bengal & Others, the Calcutta High Court’s five Judge bench, held on September 29, 1967 that the provisions of Article 256 were mandatory which must be complied with by the State. Hence, the directive or circulars issued by the State Government not to enforce certains provisions of the Code of Criminal Procedure (CrPC), which is a Central Law, in legitimate labour movements, was declared by the High Court as void and violative of Article 256.
Does the Supreme Court offer similar remedies in Swaraj Abhiyan?
Thus irrespective of what the infamous ADM Jabalpur judgment had held with regard to maintainability of grievance of individual citizens alleging violation of Article 256, courts are free to infer such violations from the factual matrix of the cases before them, and provide appropriate relief to the petitioners. In Swaraj Abhiyan, although the Supreme Court came close to concluding that both the Centre and the States were guilty of indifference to Article 256, and therefore, of violating it, it wanted to provide one more chance to the authorities to comply with the Food Security Act, 2013, read with Article 256, so that the serious consequences contemplated under the Constitution for such non-compliance, could be avoided