High Courts not empowered to issue a direction for invocation of Article 355 of the Constitution, rule judges

Source: The post is based on the article “High Courts not empowered to issue a direction for invocation of Article 355 of the Constitution, rule judges” published in The Hindu on 5th July 2023

What is the News?

Madras High Court has held that the High Courts under Article 226 do not have the power to issue a direction to the Centre to invoke Article 355.

What is Article 355?

Article 355 of the Constitution deals with an emergency provision by which the Centre can intervene and protect a state against external aggression or internal disturbance.

It is part of emergency provisions contained in Part XVIII of the Constitution of India, from Article 352 to 360.

What was the case before Madras High Court?

A petition was filed in the Madras High Court seeking orders to invoke Article 355 in Tamil Nadu in the wake of alleged failure to maintain public peace during the search and arrest of the minister.

The petitioner sought an order from the High Court to the secretary to the governor to forward a representation to the President’s office to invoke Article 355 so that the Centre could intervene in the affairs of the state government.

What did the Madras High Court rule?

The High Court dismissed the petition.

It said that the High Courts does not have the power to issue directions to the Centre to invoke Article 355 of the Constitution as it is part of the policy decision on the part of the Executive.

Any direction would be in violation of the theory of separation of power.

Article 355 appeared to have been inspired both by the US and the Australian Constitution.

The underlying principle behind the insertion of Article 355 was to ensure that the Centre would interfere in the administration of provincial affairs by and under a constitutional obligation. 

The court also held that the incident of IT officials being mobbed would not qualify as an internal disturbance under the purview of Article 355.

It said that the expressions: 1) ‘internal disturbance’ could only refer to a sense of domestic chaos (could take the colour of a security threat) and 2) ‘external aggression’ would require a large-scale public disorder (endangering the security and administration of the State).