You are on page 1of 26

Constitutional Governance - II

Article 356
Eluting the ambiguity
Term paper submitted in partial fulfilment of assessment in the subject of
Constitutional Governance - II

Submitted by:

Submitted to:

Dhruva Sareen (955)

Prof. (Dr.) K.L. Bhatia

Purav shah (963)

Faculty of Law

Submitted on March 19, 2014


ACKNOWLEDGEMENT
The note of acknowledgment is an indispensable part of the paper. The authors would like to
give due credit to the people who have helped him through the course of this project.

The authors would like to thank the faculty of Constitutional Governance II, Prof. (Dr.)
K.L. Bhatia for allotting them the very engaging and fascinating topic of Article 356
Eluting the Ambiguity. The authors would like to extend their heartfelt gratitude to him for
his pedagogy which has been instrumental in enhancing the authors learning.
The authors would also like to thank the library staff which has been of immense help to
them in their research work.

2|Page

INTRODUCTION
There are times when even justice brings harm with it.
-

Sophocles

If there is one article of the constitution that has been much abused, and as much maligned, it
is article 356 of the Indian Constitution. 1 The article provides that if the president, on receipt
of a report from the Governor of a 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
the constitution, the president may by proclamation
Article 356 is one among the nine Articles, beginning from Art. 352 and ending with Art. 360,
known as Emergency Provisions, enumerated in Chapter XVIII of the Constitution. Art. 356
was introduced as Draft Article 278, on August 3, 1949 by the then Union Law Minister, Dr.
B.R. Ambedkar, in the Constituent Assembly, and was cleared by it the subsequent day.2
Article 356 is one of the major tools in the hands of the Union Government enabling it to
check any disruptive and separatist tendencies in their infancy. In order to keep our unique
Federal system with its strong Unitary features in fact this potent medicine cannot be
dispensed with.3
The Indian Constitution has strong centralizing features. Article 356 empowers the central
government to dismiss elected state governments and impose direct rule in the states. The
1 Khanna, H.R., Use and Misuse of Article 356, BAXI, UPENDRA(ED.), RECONSTRUCTING THE
REPUBLIC, (New Delhi: Haranand Publications), 1999, p. 154.

2 Hande, H.V., Limitations of Article 356, THE HINDU, May 6, 2003 as available on
http://www.hindu.com/thehindu/op/2003/05/06/stories/2003050600010200.htm (Last visited
on 1/3/14)

3 Prasad, Janardhan, ARTICLE 356 of the Constitution of India, JANARDHAN PRASAD D


V S as available on http://www.janardhanprasaddvs.com/article-356.html (Last visited on
1/3/14)
3|Page

framers of the Constitution had hoped that this emergency provision would be used as a last
resort, invoked only if the constitutional machinery in a state had failed.4 To prevent the
articles arbitrary use, several institutional safeguards were set in place. First, the president of
India, who makes the official proclamation of central rule in the states, can return the central
cabinets recommendation for the imposition of central rule back to the cabinet for
reconsideration if he or she finds the invocation of the emergency provision unreasonable.5
Such a presidential response is seen in India as politically embarrassing to the central
governmentit signals to the wider public that federal officials are misusing constitutional
provisions.6 Second, the government, having secured presidential assent, must get the
proclamation of central rule passed in both houses of Parliament within two months, failing
which the proclamation ceases to be effective. This provision gives parliamentarians an
opportunity to question the governments decision and, if they find it arbitrary, vote down the
proclamation. Finally, a government decision to impose central rule in any state can be
challenged in the courts.
None of these safeguards, however, prevented successive central governments from imposing
Article 356 in the states 108 times over nearly six decades. In a large number of these cases,
invocation of the emergency provision was arbitrary.
Article 356, and the way it has been put to use in recent years, is a matter of debate. This
article was referred to as dead letter by B. R. Ambedkar, Chairman of the Drafting
4 Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha
Secretariat, 1949), p. 177 [Hereinafter Constituent Assembly Debate].

5 This safeguard was introduced in 1978. The president, however, cannot overrule a cabinet
recommendation. Further, if the cabinet sends the president the recommendation a second
time, the president is obliged to assent to it. The president can return a recommendation only
once.

6 Rudolph & Rudolph, Redoing the Constitutional Design: From an Interventionist to a


Regulatory State in ATUL KOHLI (ED.), THE SUCCESS

OF INDIAS

DEMOCRACY (New York:

Cambridge University Press, 2001), p. 143


4|Page

Committee.7 He intended it to be used only as the last resort, but it has hardly ever been so.
Article 356 not only negates the federal character of the Indian Political System, but also
militates against the democratic doctrine of popular sovereignty since an elected
government is suspended whenever Presidents rule is enforced.
Judicial review of Presidents rule clamping Article 356 was completely shut out during the
emergency by the 38th Amendment. However, it was revoked by the 44th Amendment. A
time came when judiciary had to intervene to interpret the scope of Article 356, and it
happened when the Supreme Court made its ruling in S. R. Bommai v. Union of India8
case(1994). The apex court made it clear that the Presidents rule is justiciable. The Supreme
Court or the High Court can strike down the proclamation if it finds it to be malafide. Also,
powers of the President under Article 356 are not absolute he must have taken the decision
based on some pre-condition. As far as the advice of the Council of Ministers is concerned,
the advice itself cannot be reviewed BUT the material on which the advice is given can be
scrutinized. The court can also invalidate a proclamation if it finds suitable reasons for doing
so and can also overrule Parliament if need be.
Thus we can say that because of the arbitrariness to which Article 356 has been subjected to
over the years, it has defeated the very purpose for which it was included in our Constitution.
And at the same time, judiciary has made it clear that the scope of Article 356 is limited and it
should only be used when there is no other option.
No provision of the Constitution has been so often used, misused, and abused as Article
356, 108 times since 1954.
-

D.D. Basu9

Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged
misuse. The essence of the Article is that upon the breach of certain defined state of affairs, as
ascertained and reported by the Governor of the State concerned (or otherwise) the President
7 CONSTITUENT ASSEMBLY DEBATE, Supra note 4 at p.141.

8 S.R. Bommai v. Union of India, (1994) 3 SCC 1

9 D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483


5|Page

concludes that the 'constitutional machinery' in the State has failed. Thereupon the President
makes a 'Proclamation of Emergency,' dismissing the State Legislature and Executive. During
a state of emergency, the President is vested with tremendous discretionary powers. Any
legislation or constitutional provision that abrogates any of the basic principles of democratic
freedom is anathema to most people and the more so to the people of the largest democracy in
the world.
Having just gained independence after a long and continuous struggle, the people of India
would naturally have the greatest interest in preserving all the freedoms envisioned in a
democratic society. If the members of the Drafting Committee of the Constitution included a
provision that permits a Government to dismiss a duly elected representative body of the
people and suspend those freedoms in violation of even the crudest interpretation of a
'separation of powers,' then common sense suggests that it is only to deal with the direst of
circumstances and nothing less.
But, it seems that the remedial nature of the Article has been perverted to impose the
domination of the Central Government upon a State Government that does not subscribe
to its views. Central control over regional governments is essential for the integrity of nations
that have federal systems of government, and Article 356 was designed to preserve this
integrity, but what remains to be seen is whether it is being used at the cost of sacrificing the
interests of democratic freedom.
Article 35610 of the Constitution was most keenly discussed and debated in the Constituent
Assembly. The Founding Fathers apprehended that, if and when it would be misused, it
would violate not merely the federal character of the polity envisaged by them but also make
a mockery of democratic principles. It seems that they were very much sure that the provision
of the article would not be used to strengthen the corporative federalism 11 but it would be
10 G. AUSTIN, THE INDIAN CONSTITUTION CORNERSTONE

OF A

NATION , (Delhi: Oxford

University Press), 1999, p.187; See WHEARE, K.C., MODERN GOVERNMENT, (United
Kingdom: Oxford University Press), 1971, p.18; See JENNINGS, G., SOME CHARACTERISTICS
OF THE INDIAN

CONSTITUTION, (Oxford University Process), 1953 ,p. 55;

11 CONSTITUENT ASSEMBLY DEBATE, Supra note 4 at p.141.


6|Page

used in resolving the ministerial crisis in the State. 12 As observed by Shiban Lal Saxena I
feel that by these articles we are reducing the autonomy of the States to a farce. These
articles will reduce the State Governments to great subservience to the Central Government.
But what could they do, they placed a hope in an apologetic manner that [the] articles
will never be called into operation and that they would remain a dead letter.13
Here, it has to be seen in the context of hope of rarest of the rare use, that Article 356 has
been used more than 120 times, calculating an average more than two times in a year.
According to the Sarkaria Commissions Report 14, which analysed 75 cases of Presidents
Rule from June 1951 to May 1987 and found in 52 cases out of 75, Article 356 has been used
not meant for. Thus the use of the article for political purposes is to uproot the federal
character and democratic principle which is guaranteed by the judiciary as basic structure of
the Constitution.15 Further it is mentionable that there are four institutions surrounding this
Article 356, they are, the Presidentthe creature of the Constitution i.e. the constitutional
head, the protector of the Constitution, the State Governorthe constitutional office but seen
as pawn on political chessboard, Parliament and the ultimate one is Judiciary. However, it is
seen that despite all these and presence of the Constitution, Article 356 is not only misused
but abused as well.

12 Id. at p. 143.

13 Id. at p. 177.

14 National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the
constitution, II, 2.1 (2002), as available on http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited
March 22, 2014) [Hereinafter NCWRC].

15 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.


7|Page

ARTICLE 356: THE GENESIS AND DEVELOPMENT


THE GOVERNMENT OF INDIA ACT 1935
This Act first introduced the concept of 'Division of Powers' in British India. It was an
experiment where the British Government entrusted limited powers to the Provinces. But
since there was very little faith lost between the British and the Indian people, the British
took precautions to keep a sufficient check on the powers given to the Provinces. These
precautions were manifested in the form of emergency powers under Sections 93 and 45 of
this Act, where the Governor General and the Governor, under extraordinary circumstances,
exercised near absolute control over the Provinces.16
DRAFTING COMMITTEE OF THE CONSTITUENT ASSEMBLY
On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under
the chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the
course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635
amendments tabled.17
When it was suggested in the Drafting Committee to confer similar powers of emergency as
had been held by the Governor-General under the Government of India Act, 1935, upon the
President, many members of that eminent committee vociferously opposed that idea. Dr.
Babasaheb Ambedkar then pacified the members stating:
In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday
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 these powers, will take proper
precautions before actually suspending the administration of the provinces.

16 NCWRC, supra note 14, at 2.1.

17

First

Day

in

the

Constituent

Assembly,

as

available

on

http://parliamentofindia.nic.in/debates/facts.htm (last visited March 5th, 2014).


8|Page

He added: I hope the first thing he will do would be to issue a clear warning to a
province that has erred, that things were not happening in the way in which they were
intended to happen in the Constitution.18
By virtue of this earnest advice given by the prime architect of the Indian Constitution, we
can safely conclude that this is the very last resort to be used only in the rarest of rare events.
A good Constitution must provide for all conceivable exigencies. Therefore this Article is like
a safety valve to counter disruption of political machinery in a State.
Article 355 states: '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.' 19 The word 'otherwise' in
Article 356(1) was not included in the original draft; it was later introduced through an
amendment, despite protests from members of the original Drafting Committee, stating that it
was an open invitation to abuse the Article. Dr. Ambedkar justified its introduction saying
that Article 277A (now Article 355) imposed a duty upon the Center to ensure that the States
are governed in accordance with constitutional provisions and that hence it would not be
proper for the President to base his decision solely on the report of the Governor of the
State.20
There are certain differences in the provision relating to the failure of the constitutional
machinery under the present Constitution and the powers dealt with in Sections 45 and 93 of
the Government of India Act, 1935.21 Firstly, the 1935 Act empowered the Governor-General
to deal with a failure of the constitutional machinery at the Center (Section 45). It also

18 NCWRC, supra note 14, at 2.2.

19 India - Constitution, as available on http://www.oefre.unibe.ch/law/icl/in00002_.html


(Last visited on March 22, 2014).

20 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA , 5th ed., 1990.

21 NCWRC, supra note 14, at 2.2.


9|Page

empowered the Governor-General to deal with a similar situation in a Province (Section 93).22
The present Constitution, however, does not intend to suspend the Constitution of a State, but
empowers the President to take steps in this regard, though he shall have to act on the report
of the Governor or Ruler of the State. Secondly, under Section 93 of the 1935 Act, the
executive and legislative powers of a State could be assumed by the Governor, acting at his
discretion.23 The present Constitution has separated the two powers: the President, assuming
executive powers, and the Union Parliament, assuming legislative powers.

22 Id.

23 Id.
10 | P a g e

USE OF ARTICLE

356

ARTICLE 356 TO BE USED RARELY


In spite of the precautions laid down in Article 356, the Article was invoked on several
occasions by the Center due to ambiguities in its wording. It was only in 1987 when the
Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356
was cleared. The Commission, headed by Justice R.S. Sarkaria, was appointed in 1983 and
spent four years researching reforms to improve Center-State relations.
The Sarkaria Commission24 recommended extremely rare use of Article 356. The
Commission observed that, although the passage, '. . . the government of the State cannot be
carried on in accordance with the provisions of this Constitution . . .' is vague, each and every
breach and infraction of constitutional provisions, irrespective of their significance, extent,
and effect, cannot be treated as constituting a failure of the constitutional machinery.
According to the Commission, Article 356 provides remedies for a situation in which there
has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse
of this drastic power would damage the democratic fabric of the Constitution. The report
discourages a literal construction of Article 356(1).25
The Commission, after reviewing suggestions placed before it by several parties, individuals
and organizations, decided that Article 356 should be used sparingly, as a last measure, when
all available alternatives had failed to prevent or rectify a breakdown of constitutional
machinery in a State. Before taking recourse to the provisions of Article 356, all attempts
should be made to resolve the crisis at State level. According to the Commission's report,
these alternatives may be dispensed with only in cases of extreme emergency, where failure
on the part of the Union to take immediate action under Article 356 would lead to disastrous
consequences. The report further recommended that a warning be issued to the errant State, in
specific terms that it is not carrying on the government of the State in accordance with the
24 Sarkaria Commission, Report on Centre-State Relationship (1983-1988) [Hereinafter The
Sarkaria Commission Report]; See also, NCWRC, supra note 14.

25 Dr. Arvind P. Bhanu, Changing Face of Article 356: Judicial Zeal and Jerk, INDIA
LAWYERS, 2010
11 | P a g e

Constitution. Before taking action under Article 356, any explanation received from the State
should be taken into account. However, this may not be possible in a situation in which not
taking immediate action would lead to disastrous consequences.26 In a situation of political
breakdown, the Governor should explore all possibilities of having a Government enjoying
majority support in the Assembly. If it is not possible for such a Government to be installed
and if fresh elections can be held without delay, the report recommends that the Governor
request the outgoing Ministry to continue as a caretaker government, provided the Ministry
was defeated solely on a major policy issue, unconnected with any allegations of
maladministration or corruption and agrees to continue.27 The Governor should then dissolve
the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. 28
During the interim period, the caretaker government should merely carry on the day-to-day
government and should desist from taking any major policy decision.
Every Proclamation of Emergency is to be laid before each House of Parliament at the
earliest, in any case before the expiry of the two-month period stated in Article 356(3).29
The State Legislative Assembly should not be dissolved either by the Governor or the
President before a Proclamation issued under Article 356(1) has been laid before Parliament
and the latter has had an opportunity to consider it. The Commission's report recommends
amending Article 356 suitably to ensure this.30 The report also recommends using safeguards
that would enable the Parliament to review continuance in force of a Proclamation.31
26 THE SARKARIA COMMISSION REPORT, supra note 24.

27 Id. at 6.8.02

28 Id. at 6.8.03

29 Id. at 6.8.05

30 Id. at 6.8.07

31 Id. at 6.8.09
12 | P a g e

13 | P a g e

JUDICIAL REVIEW
The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute,
because the power under Article 356(1) is a conditional power. In the exercise of the power of
judicial review, the court is entitled to examine whether the condition has been satisfied or
not. So the controversy actually revolves around the scope and reach of judicial review. From
the decisions in the case of State of Rajasthan v. Union of India 32 and the Bommai33 case, it
is clear that there cannot be a uniform rule applicable to all cases. The Bommai case was a
landmark in the history of the Indian Constitution. It was in this case that the Supreme Court
boldly marked out the paradigm and limitations within which Article 356 was to function. In
the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India,
'After the Supreme Court's judgment in the Bommai case, it is well settled that Article 356 is
an extreme power and is to be used as a last resort in cases where it is manifest that there is
an impasse and the constitutional machinery in a State has collapsed.'34
It is bound to vary depending upon the subject matter, nature of the right, and other factors.
However, where it is possible the existence of satisfaction can always be challenged on the
ground that it is 'mala fides or based on wholly extraneous and irrelevant grounds.' The
relevance of judicial review in matters involving Article 356 is also emphasized in the
Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh 35, where the
Supreme Court held that it was not precluded from striking down a law passed prior to a

32 State of Rajasthan v. Union of India, (1977) 3 SCC 592 [Rajasthan v UOI]

33 BOMMAI CASE, supra note 8 at 215-16.

34 Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India,
Sept. 21, 1996.

35 State of MP v. Bharat Singh 1967 AIR 1170


14 | P a g e

Proclamation of Emergency, as ultra vires to the Constitution, just because the Proclamation
was in force at that time.36
Judicial review of the Proclamation under Article 356(1) was first tested in State of
Rajasthan v. Union of India37. The Supreme Court, being the ultimate interpreter of the
Constitution, has the power of judicial review on all actions emanating from or empowered
by any constitutional provision. Though the power of the President under Article 356
concerns his political judgment and the courts usually avoid entering the political thicket, this
power does not enjoy blanket immunity from judicial review. It has to be determined in the
individual cases on the basis of justifiability, which is distinct from judicial review. But
unless the mala fides of the Presidential Proclamation is shown, the Courts have been
exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of
judicially manageable standards. This point is amply evident in the case of Minerva Mills
and Others v. Union of India and Others 38, where the Supreme Court dwelt extensively on
its power to examine the validity of a Proclamation of Emergency issued by the President.
The Supreme Court in this matter observed, inter alia, that it should not hesitate to perform
its constitutional duty merely because it involves considering political issues. At the same
time, it should restrict itself to examining whether the constitutional requirements of Article
352 have been observed in the declaration of the Proclamation and it should not go into the
sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a
situation of emergency.
The theory of satisfaction and the existing satisfaction with reference to advice 39 under
Article 74(2) evolved in State of Rajasthan case, through Bommai case has acquired more
36 JAIN, M.P., INDIAN CONSTITUTIONAL LAW, (Nagpur: Butterworths Wadhwa), 5th ed., 2008,
p. 664

37 RAJASTHAN V UOI, supra note 32.

38 Minerva Mills v. Union Of India AIR 1980 SC 1789

39 In Doypack Systems (P) Ltd. v. Union of India, (1988) 2 SCC 299, it was held that the
noting of the officials which lead to the Cabinets decision form part of the advice.
15 | P a g e

democratic light in Rameshwar Prasad case40 by adopting the approaching that subjective
satisfaction is subjectivity by objectivity.41 However, it cannot be said that the challenging of
Presidents Rule equates with those of administrative actions because of constitutional
provisions.42 It is further submitted that, basing upon the satisfaction theory laid down in
State of Rajasthan case, the Supreme Court has evolved the constitutional safeguards in
Bommai case to regulate the political behaviour which has potential to be misused under
Article 356. It is desirable to reduce all these in constitutional form by amending the
Constitution as the Governors obligation to explore alternatives, floor test to judge the
strength of ministry, putting the legislature in suspended animation if occasion arises,
speaking report by the Governor/advice based upon relevant material tendered by the Council
of Ministers, appointment of the Governor as per Sarkaria Commissions recommendations,
to give clarity in the meaning of failure of constitutional machinery in the State and judicial
review.43
Thus we can safely conclude that, though limited, the Presidential Proclamation under Article
356 is subject to judicial review.
THE BOMMAI EFFECT
What Bommai44 did was to lay down certain guidelines and certain standards in exercising
power under Article 356. In fact, it is the case where we elucidated the meaning of the
Article, consistent with the spirit of the Constitution and the background in which the Article
40 Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1

41 Arjun Munda v. Governor of Jharkhand, (2005) 3 SCC 399

42 BOMMAI CASE, supra note 8.

43 Per Justice BP Jeevan Reddy, Dr, MG Rao & GV Ramakrishna, National Commission to
Review the Working of the Constitution, A Consultation Paper on Article 356 of the
Constitution, Advisory Panel on Union-State Relations

44 BOMMAI CASE, supra note 8.


16 | P a g e

was enacted. It was brought to the notice of the Supreme Court, and it was an undeniable fact,
that the Article was used indiscriminately, or misused as one may call it, on a number of
occasions, before the judgment in the Bommai case. Even at that time, it was said that on
more than 90 cases, the power was exercised; and in most of the cases, it appeared to be of
doubtful constitutional validity.
That power was exercised to dismiss the State Governments controlled by a political party
opposed to the ruling party at the Centre. The Supreme Court wanted to introduce certain
clarity to regulate the power, by defining the power, by laying down standards according to
which the power is to be exercised.
Since the judgment of the Supreme Court becomes the law of the land, it is obvious that the
Central Government is bound by the judgment. It is therefore clear that after the Bommai
case, the governments have been more careful, more on guard, more wary of exercising this
power, lest their exercise should be set aside by the Courts.
As we all know, in the case of the dismissal of the Uttar Pradesh Government, the
proclamation by the President was set aside by the Allahabad High Court following the
Bommai judgment. But for the Bommai judgment, it is obvious the High Court could not
have set aside the order of the President. That is the difference between pre-Bommai and
post-Bommai.45

45 Jeevan Reddy, B.P., Bommai verdict has checked misuse of Article 356, FRONTLINE, 15(4)
as available on http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited on
2/3/14)
17 | P a g e

MISUSE OF ARTICLE 356


ARTICLE 356 SHOULD BE ABOLISHED
Article 356 deserves to be abrogated. The founding fathers were under the impression that
this provision would be used only in the rarest of rare cases, that it would be virtually a sword
which would never be taken out of its sheath, except in a flagrant case under Article 365. This
latter Article states that if any particular State defies a Central direction validly given, it shall
be lawful for the President that is the Cabinet, to hold that the government of the State cannot
be carried on in accordance with the provisions of the Constitution. That is to say, if an
Article 365 situation arises, Article 356 may be attracted. But the Court will go into the
question whether the direction given by the Union to the State was itself valid. Only in a case
of such valid direction within the competence of the Union being ignored by the State, can
Article 356 come into operation. In over 100 cases, starting with the outrage perpetrated in
Kerala in 1959, there has never been a legitimate use of Article 356. If the temptation to use
this presidential power is perennial, as is seen by its continual abuse, the time has come for a
change in constitutional perspective. In short, Article 356 should be kept in cold storage, or
even formally abolished.46 Justice V.R. Krishna Iyer, former judge of the Supreme Court,
has been one of India's most distinguished and original constitutional thinkers since
Independence. In an interview47, he opined that,
Before the Bommai decision was rendered, the constitutional position was understood to
mean excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now
the law is clear that it is possible for the court, it is proper for the judges, to examine whether
the relevant power has been misused in the sense that it is arbitrary, mala fide or such that
there is no reasonable material to support such a conclusion as the breakdown of the
Constitution. Indeed it must be acknowledged that even the Pakistan Court has taken a
somewhat similar, view, even earlier than the Indian Court. Now, therefore, it is clear that
reckless exercise of Article 356 power will meet with its Waterloo in the Court.
The daring way in which the AIADMK is demanding the dismissal of the DMK Ministry in
Tamil Nadu under Article 356 shows that political terrorism is apt to overpower constitutional
46 Id.

47 KHANNA, H.R., Supra note 1.


18 | P a g e

propriety. What is still more shocking is that the AIADMK alleges an earlier agreement with
the BJP that, if the latter came to power, President's Rule would be imposed in Tamil Nadu.
This very statement is sufficient to hold that any exercise of Article 356 by the Centre is
utterly untenable.
The Sarkaria Commission has condemned the exercise of Article 356 power as almost always
motivated or induced by extraneous considerations. It is time Article 356 power was
handcuffed in the way Sarkaria has suggested, although personally I might go further to hold
that only after Parliament passes a resolution in both Houses should President's Rule be used
against a State. Why? Because it is a sabotage of federalism to usurp State power by the
Centre and such a grave frustration of the basic structure of the Constitution needs strong
limitations to be put on the exercise of the power. So it is that I demand a prior resolution by
both Houses as a check on misuse.
The Bommai48 ruling is a severe warning to the Union Government. It must be open to the
affected or intimidated State to move the Supreme Court by a quia timet action to stay hasty
intervention in case there is clear indication of such a proposed action. It must be
remembered that the State Cabinet is answerable to the State legislature and so long as it
commands its confidence the pleasure of the Governor is a mere constitutional euphemism.
The powers of the Governor as well as of the President have been explained at some length in
Shamser Singh's case49. The President as well as the Governor are bound by the Cabinet's
advice and to act in excess of such advice is to violate the Constitution and invite the Court's
interdict.
Demands by regional or even national parties to overthrow State-level democracy under
Article 356 cannot be acceded by the Centre. This is not a matter of political vendetta or
hostility or estrangement. Constitutional values must regulate the President's conscience
when exercising Article 356 power. Noises made by regional parties or others cannot affect
the voice of the Constitution. This applies to the Tamil Nadu party's demand as well as the
clamour made against the West Bengal Government.50

48 S.R. Bommai v. Union of India, (1994) 3 SCC 1

49 Shamsher Singh v. State of Punjab,


19 | P a g e

The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial


figure as the head of the State and has solemn functions in that capacity. Some of them are
really effective powers. As a rule, the Governor is bound by the advice of his Cabinet. He
cannot be Janus-faced, looking in both directions. He cannot be a Central spy or an agent to
carry out the Union's mandate.
Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to
the State Cabinet, he can be a pathetic functionary sometimes asked to perform pathetic
measures by the Centre. He has to be an independent authority, his allegiance being wholly to
the Constitutional obligations to act on the advice of the Council of Ministers. He may, as in
England, caution, encourage, or otherwise give advice, but ultimately must abide by his
Cabinet's recommendation for action. That is why sometimes it has been said that a Governor
is a glorified cipher. So is the President.
But this is not wholly true. They have power to ask for information, explanation and
reconsideration. Wisely used, these functions plus the power to refer Bills to the President,
for consideration and assent, may make the Governor a factor to be reckoned with.
So it is that I hold the view that the Governor is more than a glorified cipher. He reigns, but
does not rule. He advises, but is bound by the advice of his Ministers. He is an elder
statesman but not an authority as the executive head of the State. Such is the delicate
constitutional balance.51
CONSTITUTIONAL EMERGENCY IN THE STATES
If the President is satisfied on receipt of a report from the Governor or otherwise that a
situation has arisen in which the Government of a State cannot be carried on in accordance
with eh provisions of the Constitution, he is empowered to proclaim an emergency under
Articles 356 and 365. As a result, (i) he may assume to himself all or any of the functions of
the State or he may vest all or any of those functions in the Governor or any other executive
authority, (ii) he may declare that the powers of the State legislature shall be exercisable by
Parliament; and (iii) he may make any other incidental or consequential provisions necessary
50 KHANNA, H.R., Supra note 1.

51 KHANNA, H.R., Supra note 1.


20 | P a g e

to give effect to the objects of the Proclamation. The President, however, cannot assume to
himself any of the powers vested in a High Court. The proclamation will have to be approved
by both the Houses of Parliament in the same manner in which a war emergency
proclamation has to be approved.
Suspension of Fundamental Rights:
During the period of emergency, as declared under the either of the two categories discussed
above, the State is empowered to suspend the Fundamental Rights guaranteed under Article
19 of the Constitution. The term 'State' is used here in the same sense in which it has been
used in the Chapter on Fundamental Rights. It means that the power to suspend the operation
of these Fundamental Rights is vested not only in Parliament but also in the Union Executive
and even in subordinate authority. Further, the Constitution empowers the President to
suspend the right to move any court of law for the enforcement of any of the Fundamental
Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended
during the operation of the emergency. However, such orders are to be placed before
Parliament as soon as possible for its approval.
So far, there have been four occasions when emergency of the first category was proclaimed
by the President: 1962 (Chinese aggression), 1965 (Indo-Pakistan war), 1971 (Indo-Pakistan
war before the emergence of Bangladesh) and 1975 (internal emergency). An analysis of
these instances would indicate the purpose and the manner in which, in actual practice, a
proclamation of emergency in the States will be made by the President. These may be
summed up in the following terms52:
I. The essential condition for the intervention by the Centre is the political instability of the
State that is the virtual breakdown of the Parliamentary System of the Government.
II. The Union will watch the situation of instability with utmost caution and provide every
opportunity for the formation of an alternative ministry.
III. The proclamation of emergency will only be the last resort when (i) the existing ministry
does not have the confidence of the legislature; and (ii) no alternative ministry can be formed.

52 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA , 7th Edn., Vol. 1, p. 55.
21 | P a g e

IV. During the period of emergency, the legislative work of the State will be transferred to
Parliament Delegation of such work to any administrative boy will be reduced to the
minimum.
V. As soon as the political situation within the State becomes conductive to a responsible
Government, it will be restored.
Generally speaking in practice, the emergency provisions for Central intervention in cause of
breakdown of Constitutional machinery in the States have proved to be not only a protective
device for responsible government in politically unstable States but also a blessing to political
parties who were unwilling and incapable to shoulder responsibility for a time on account of
group rivalries or any other unfavourable circumstances. During a period of emergency, it is
natural that the Executive becomes unusually powerful. This is a tendency of governments all
over the world, federal or unitary. The experience of parliamentary democracies indicates that
a Parliament is vigilant and through the members of the opposition particularly. it manages to
compel the Executive to account for all its actions. Thus, Parliament has the power to check
the Executive whenever the latter goes beyond reasonable limits. Emergency provisions. do
not, in any way, cut Parliament out of the picture and Parliament has always the right to call
the Executive to order; and if they find that the Executive has exceeded its powers in regard
to the operation of any of the provisions enacted under the emergency laws, they can always
pull it up, even dismiss the ministry and replace it.
How effectively Parliament would and could function during a period of national emergency
was a subject of speculation until 1962 when the President proclaimed emergency under
Article 352. But the manner in which Parliament has dealt with the emergency shows that
instead of the Executive arrogating to itself the powers of Parliament in the name of
emergency. Parliament has subjected to Executive to greater control and security in all its
actions vitally affection the nation. In fact, the debates in Parliament demonstrated the
eagerness with which the Executive sought the approval of Parliament not only with regard to
the action already taken by the Government but also that proposed for the future.
The only exception to this in practice was the internal emergency period of 1975-77. There
was widespread abuse of executive power in many part of the country in many forms during
this period. The extent of abuse became clear only after the lifting of emergency in 1977.
Naturally the new Parliament, which came into being after the general elections of march
1977, was interested in prevention the repetition of such a situation in future and hence
22 | P a g e

initiated steps to amend the Constitution suitably to limit the powers of the Government to
proclaim internal emergency.53
The 44th Amendment adopted by Parliament in December 1978 ensures that the proclamation
of emergency can be made only on the basis of written advice tendered to the President by the
Cabinet. Internal disturbance not amounting to armed rebellion will no longer be ground for
declaration of emergency. Emergency can be proclaimed only when the security of the
country is threatened by war, external aggression or armed rebellion. As an additional
safeguard, proclamation of emergency will require approval within a month by a resolution of
Parliament by a majority of the total membership and not less than two-thirds of the members
present and voting. The provisions for financial emergency, again, show how the framers of
the Constitution have drawn upon the experience of the working of federalism elsewhere.
Finally, one may consider the provision for the suspension of Fundamental Rights
Apparently, this is by far the most unwholesome provision in the Constitution. The provision
for the suspension of Constitutional rights does not means, however, that with the
proclamation of emergency, there will be an automatic suspension of Fundamental Rights. It
may be quite possible to keep the enforcement of the Fundamental Rights intact and there
need not be a universal suspension throughout the country merely by reason of the
proclamation. Further, the order of suspension should be placed before Parliament and it will
be free to take whatever action it deems fit.
The working of the Constitution, so far, shows that the suspension of Fundamental Rights
took place rarely. That happened as a result of the proclamation of national emergency in
1962, 1965, 1971 and 1975.
In contrast to the national emergencies mentioned above, Fundamental Rights were never
suspended during any of the emergencies proclaimed in the States. That remains a good
precedent. Even during the national emergency, suspension of Fundamental Rights should be
restricted to the absolute minimum. There have been only few instances so far of the Union
Executive behaving high-handedly towards the States or ignoring Parliament in the name of
emergency. The apprehension that the President may act as a dictator is not one of the acute

53 JAIN, M.P., Supra note 36 at p.702.


23 | P a g e

discomforts of our political thinking. On the other hand, the emergency provision has been,
on the whole, justified when viewed from the experiences of the past.54
Relief in case of mala fide exercise of power
In this regard, the Court observed that if the Presidential Proclamation is held invalid then
notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to
the court to restore the status quo ante and bring back to life the Legislative Assembly and
ministry.55 The Court also held that in appropriate cases and if the situation demands it, the
High Court/Supreme Court have the power by an interim injunction to restrain the holding of
fresh elections to the Legislative Assembly pending the final disposal of the challenge to the
validity of the proclamation but not in such a manner as to allow the Assembly to continue
beyond its original term. This it can do to avoid a fait accompli and to prevent the remedy of
judicial review (from) being rendering fruitless.56
The political significance of the decision is that it will act as a bar on motivated and arbitrary
dismissal of the State Governments by the Centre as had happened in a number of cases in
the recent past. The unseating of a ministry commanding a majority in the Assembly by
applying Article 356 is a virtual dismissal through back door. Now that the courts could go
into the circumstances of the dismissal and declare the act as unconstitutional leading to the
declaration of status quo ante, the party in power at the Centre will think twice before
embarking on the adventurous course of imposing Presidents Rule.57

54 Sukumar et. al., Article 356, For and Against: A Range of Reflection, FRONTLINE, April
1994 as available on http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited
on 12/3/14)

55 SEERVAI, H.M., CONSTITUTION OF INDIA, Vol III, 4th ed. 2008, p. 3105

56 Id. at p. 149

57 Editorial, A Landmark Verdict, THE HINDU, March, 14, 1994.


24 | P a g e

CONCLUSION
Article 356 of the Constitution was most keenly discussed and debated in the Constituent
Assembly. The Founding Fathers apprehended that, if and when it would be misused, it
would violate not merely the federal character of the polity envisaged by them but also make
a mockery of democratic principles. It seems that they were very much sure that the provision
of the article would not be used to strengthen the corporative federalism 1 but it would be used
in resolving the ministerial crisis in the State.58 As observed by Shiban Lal Saxena I feel
that by these articles we are reducing the autonomy of the States to a farce. These articles
will reduce the State Governments to great subservience to the Central Government. 59 But
what could they do, they placed a hope in an apologetic manner that [the] articles will
never be called into operation and that they would remain a dead letter.60
It has to be borne in mind that the success or failure of constitutional provisions depends on
the final analysis not upon the elegance of the language in which they are couched, important
though that be, it depends more upon the way they are actually worked. Used properly and in
the right spirit, article 356 can subserve national interests, be misused and abused for ulterior
purposes, it would operate as an instrument of oppression.61 It is evident that there is a lack
of effective safeguards against the abuse of Article 356 of the Indian Constitution. The
safeguard of 'parliamentary approval' - outlined in Article 356(3) - of a Proclamation under
Article 356(1) could be biased because the Party that is in power at the Center generally
dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring a
particular imposition (or failure to impose) of President's Rule to be wrongful cannot undo
the damage already done.

58 CONSTITUENT ASSEMBLY DEBATE, Supra note 4 at p.141.

59 Id at p. 143.

60 Id, at p. 177.

61 KHANNA, H.R., Supra note 1.


25 | P a g e

However, the repeal of Article 356 is not advisable because the Indian polity is rife with
crises and there has to be some contingency against a constitutional deadlock in a State. The
NCRWC also advised against the repeal of Article 356, stating that this would create an
imbalance in Union-State relations in upholding constitutional governance throughout India
and that in many more instances than not the use of Article 356 was inevitable. 62 Another
option is to introduce further checks on the exercise of power under Article 356, by
amendment. Even this is not advisable because it defeats the very purpose of the Article of
dealing expeditiously with emergencies of constitutional failure in a State.
Therefore, the most practical course left open may be to let history take its course.
Eventually, the public opinion in India, we fervently hope, will awaken to the fact that Article
356 may veritably have become a noose that is slowly tightening around the neck of
democracy in India, suffocating the right of the people under the Constitution. In the
meantime, to nurture budding public opinion we do have a resource not to be underestimated,
which is the power of judicial review of the Supreme Court, which has on more than one
occasion shown that it is a power to be reckoned with.
So we will have to suffice for now with occasional outcries against the Union Executive
unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called
Article 356.

62 NCWRC, supra note 14 at p. 8.18.


26 | P a g e