Evolution & Historical Background

Emergency rule or crisis government as it is generally called has been in existence for
almost as long as organized government itself.1During the medieval age, emergency
powers were handed down by the ruling princes to the commissioners appointed
under royal prerogative, who exercised specific powers on the basis of special
instructions. However the background of the evolution of the emergency provisions in
the present constitutional set up can be summed up under the following two heads:-

I. Roots traced back to The Government of India Act, 1935.

The Britishers introduced the Government of India Act 1935 which envisaged a
federal system of government with the Governor as the head of each province and
underlined with the concept of division of power. Section 93 of the Act of 1935 was
basically meant to be an experiment where the British Government entrusted limited
powers to the Provinces. The colonial powers were not inclined to trust these
Ministries even with limited powers probably in view of the fact that not only the
political parties in India were ambiguous regarding entering the Legislatures and
Ministries created under the said Act but some of them were also proclaiming that
even if they entered the Ministries they would try to break the governments from
within. 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.2

II. The role of Dr. B. R. Ambedkar

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly.
Under the chairmanship of Dr. B.R. Ambedkar to prepare a draft Constitution for
India. Even though Article 356 was patterned upon the controversial Section 93 of the
1935 Act, with this difference that instead of the Governor, the President is vested
with the said power - it was yet thought necessary to have it in view of the problems
that the Indian republic was expected to face soon after independence. 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. The Constituent Assembly debates disclose these sentiments. They also disclose
that several members strongly opposed the incorporation of Article 356 (the then
Draft Article 278) precisely for the reason that it purported to reincarnate an imperial
legacy. However, these objections were overridden by Dr. Ambedkar with the
argument that no provision of any Constitution is immune from abuse as such and that
mere possibility of abuse cannot be a ground for not incorporating it. He stated: In

1 Venkat Iyer; States of Emergency : The Indian Experience, (New Delhi : Butterworths India, 2000)
2 National Commission to Review the Working of the Constitution; Report, I, 8.1.2 (2002)
fact I share the sentiments expressed by my Honble 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 as dead letters. 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.
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. 3 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, cited above) 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. 4

3.3 An analogy between Article 356 and Sections 45 and 93 of the Government of India Act, 1935

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, 1935.5Firstly, the 1935 Act empowered the Governor-General to deal with a failure of the
constitutional machinery at the Center (Section 45). It also empowered the Governor-General to deal
with a similar situation in a Province (Section 93). 6 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.7 The present Constitution has separated the two powers: the President, assuming
executive powers, and the Union Parliament, assuming legislative powers.

IS ARTICLE 356 VIOLATIVE OF THE FEDERAL CHARACTER OF THE

INDIAN CONSTITUTION?

Federalism is defined as , A system of government which has created, by written

agreement, a central and national government to which it has distributed specified

3 India - Constitution, at http://www.oefre.unibe.ch/law/icl/in00002_.html (last visited Feb. 22, 2004).

4 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA

5National Commission to Review the Working of the Constitution, A Consultation Paper on Article
356 of the Constitution, II, 2.1 (2002)

6 ibid.
7 ibid.
legislative (law-making) powers, called the federal government, and regional or local
governments (or sometimes called provinces or states) to which is distributed other,
specified legislative powers. under which the constituent units would be perpetual words of the
Centre.8

Fedralism constitutes the basic structure of the Indian Constitution.

During the debate in the Constituent Assembly, B.M.Gupta said It appeared that under the
Constitution India would be not a federal State but a decentralised unitary State.9Loknath Mishra
saw in the Constitution, a complete distrust of the provinces.10Shyamnandam Sahay felt the
Constitution created, a sort of federal unitary system"

It needs to be remembered that only the spirit of "co-operative federalism" can

preserve the balance between the Union and the States and promote the good of the
people and not an attitude of dominance or superiority which the centre has not
always kept in mind.

Dr. Babasaheb Ambedkar, who chaired the Drafting Committee of the Constituent
Assembly, stressed the importance of describing India as a Union of States rather
than a Federation of States. He said:

... what is important is that the use of the word Union is deliberate...

Though the country and the people may be divided into different States for
convenience of administration, the country is one integral whole, its people a single
people living under a single imperium derived from a single source.11 This is in
essence how one would describe Center-State relations in India; excepting provisions
for certain emergency situations in the Constitution of India, where the Union would
exercise absolute control within the State.
the rationale behind the distribution of power between the Union and the States in India is that the
danger of usurpation of authority by the Federal power would be smaller than the danger of
degeneration of the federation into smaller factions that would not be able to defend themselves against
external aggression. In fact, specific powers are divided into three lists - the Union List, the State List,
and the Concurrent List (powers shared by both the Union and the States). The power of governance is
distributed in several organs and institutions.
It can be considered federal because of the distribution of powers between the Center and States and it
may be considered unitary because of the retention of Union control over certain State matters, and
also because of the constitutional provisions relating to emergencies when all powers of a State would
revert to the Center.

8 ibid. 974
9 Constituent Assembly Debate. Vol. XL, p. 884.

10 Ibid. p.799
11 National Commission to Review the Working of the Constitution, Report, I, 8.1.2 (2002)
 Under the Indian constitutional system, no single entity can claim superiority.
Sovereignty doesn't lie in any one institution or in any one wing of the government.
The power of governance is distributed in several organs and institutions - a sine qua
non for good governance. Even assuming that Centre has been given certain
dominance over the States, that dominance should be used strictly for the purpose
intended, nor the oblique purposes.

An unusual and extraordinary power like the one contained in article 356 cannot be
employed for furthering the prospects of a political party or to destabilize a duly
elected government and a duly constituted Legislative Assembly. The consequences
of such improper use may not be evident immediately. But those do not go without
any effect and their consequences become evident in the long run and may be
irreversible.12

Unfortunately, however, it so happened that over the years, the Centre has not always
kept in mind the concept of co-operative federalism or the spirit and object with
which the article was enacted while dealing with the States and has indeed grossly
abused the power under article 356 on many occasions. Between 1950 and 1994, the
said power was exercised on more than 90 occasions. The facts and figures contained
in Chapter Six of the Sarkaria Commission Report read with Annexure VI (1 to 4)
appended to the said chapter and the decision of the Supreme Court in S.R. Bommai
v. UOI (reported in AIR 1994 SC 1918) amply bear out the truth of our assertion. The
said Annexure shows that on several occasions, the State Governments were
dismissed even when they enjoyed the majority in the Assembly; on some occasions,
they were dismissed without giving them an opportunity to prove their strength on the
floor of the House. The very instance of S.R. Bommai, who was the Chief Minister of
Karnataka, is proof positive of such abuse. In spite of his asking the Governor to
allow him to prove his majority, within a very short period, on the floor of the
Assembly, the Governor did not give him that opportunity and recommended the
dismissal of his ministry. The said action of the governor naturally invited strong
condemnation at the hands of the Supreme Court.13

The main target of criticism from the point of view of State autonomy, however, has
been article 356 which empowers the centre the "President is satisfied that the
Government of a State cannot be carried on in accordance with the provisions of the
Constitution and makes a proclamation to that effect. Both in its intent and in its
actual exercise, this provision of the Indian constitution has been something unique
and there is little in other recognized federations with which it may be compared.

12 Consultation Paper On ARTICLE 356 OF THE CONSTITUTION NATIONAL

COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION.
13 ibid
The Constitution of U.S.A. places on the Federal Government the responsibility of
ensuring the maintenance of a republic form or Government in the States. But this
responsibility has never been invoked to justify intervention in the affairs of a State or
the suppression of its Government - and this despite the fact that the United States has
or does not have a republican form of Government is a political question and that the
decision of the Congress in this regard cannot be questioned by the courts. Dr.
Ambedkar was obviously wrong when he equated article 356 of the Indian
Constitution with Article IV. Sec. 4 of the American Constitution which says ,

The United States shall guarantee to every State in this Union a Republican Form
of Government, and shall protect each of them against Invasion; and on Application
of the Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.

Ambdkar claimed that so far as that point is concerned, we do not think that the
Drafting Committee has made any departure from an established principles."14

In the United States and Australia, the federal Government is also authorized to
protect the State against "domestic violence, but federal intervention for this purpose
can take place only on the request of the State concerned unless, of course, domestic
violence in the State hampers operation for which the federal Government is directly
responsible. In India, on the contrary, the central intervention in a State for the
purpose of protecting it against "internal disturbance" under article 356 of the
Constitution is not contingent on a request from the State Government concerned.

Two obvious conclusions may be stated here.

no other federal State is the centre given as extensive a power, not only to
intervene into the sphere of State autonomy but to overthrow the
Governmental constituent units as in India.
Further, in other federations, Central intervention on grounds of domestic
violence is aimed at protecting the State authorities in India such intervention
can lead to their temporary abrogation.

It is not necessary to labour the point that article 356 is not capable of being changed
with the federal principle. In fact, it is even more uncertain under Article 356 than
"the old and hated" section of the Government of India Act, 1935 in so far as it
empowers the President to suspend responsible Government in a State even without a
report from the Governor. One may, therefore, wonder whether Alladikrishnaswami

14 CAD, Vol. IX, p. 176

Aiyer was speaking with this tongue in his check when he declared in the Constitution
Assembly.

"The Protagonists of Provincial or State autonomy will realize that, apart from being
an impediment to the growth of healthy provincial or State autonomy, this provision is
a bulwark of provincial or State autonomy, because the primary responsibility is cast
upon the Union to see that the Constitution is maintain.15

Such a view, if seriously propounded, can be understood only on the basis that
the framers of the Constitution felt that the States would function perpetually as the
Centres words. A more plausible basis for the over-caution taken by the framers in
this matter may be found in the fact that the Constitution was made under the shadow
of the events like the war in Kashmir, the Communist insurrection in Telangana and
the Razakar troubles in Hyderabad, all of which seemed at the time to make the very
survival of public problematic.

Article 355, therefore, incorporated in the Constitution, not only to ensure orderly
constitution government in the States but to erect a strong defence against forces of
disruption. According to Dr, Ambedkar the overriding powers of the centre under this
provision were justified on the ground that

the residual royalty of the citizen in any emergency must lie to the centre and not to
the constituent units.16

Prof. K.C. Wheare had dubbed Indian Constitution as quasi federal because of its
tendency to become unitary in times of crises, external or internal. The framers of the
Constitution have drawn from various sources and benefitted by their rich experience.
A strong centre was created by vesting it with plenary powers. The residuary powers
were also vested in it. Of all these the greatest is right to take over the Government of
a Constituent Unit in case of emergency, particularly in the event of a failure of the
constitutional machinery in the States. But this power was sought to be exercised with
judgment and caution and only in the last resort when other methods of settling a
dispute had hopelessly failed. A too frequent use of this power and for reasons not
warranted would be a negation of a federal polity and would make mockery of
democratic government.

Federal interference should be confined solely on legalistic basis and political

consideration should not weight in favour of such interference. The bed rock on
which the power vested in the Central Government can be exercised under article 356

15 CAD Vol. IX p.150

16 CAD Vol. VII, p. 42.

is a breakdown of the Constitutional machinery of a State. If the constitutional
machinery is intact and there is no law and order problem, there is no justification for
the central interference at all.

It is no denying the fact that the Centre had misused the powers under article 356.
What was meant to be a 'safety valve has been used as a political weapon to do away
with the Governments not of their choice in the States. How can this be prevented?
What constitutional methods could be evolved to place a check upon the misuse of
this power? These questions have of late been engaging the attention of the jurists in
the country.

Need for Amendment of Article 356? In the light of the entire preceding discussion, the question arises
whether Article 356 needs to be amended. In fact there has been a strident demand for deletion of
Article 356 but if Article 356 is removed while retaining Articles 355 and 365, the situation may be
worse from the point of view of the States. In other words, the checks which are created by Article 356
and in particular by clause (3) thereof, would not be there and the Central Government would be free to
act in the name of redressing a situation where the government of a State cannot be carried on in
accordance with the provisions of the Constitution. It is therefore not favorable to incline towards the
deletion of Article 356 in its entirety.

If, however, Art. 356 (and the consequential article 357) is to be deleted then certain other provisions
too require to be deleted viz.
(a) The words ..and to ensure that the Government of every State is carried on in accordance with
the provisions of this Constitution in Art. 355; and
(b) Art. 365, in its entirety.

But then what would one say regarding Art. 256 and 25717 , which, no doubt, state the obvious, yet if
they are deleted, the Courts may construe such deletion as bringing about a drastic change in Centre-
State Relations. In any event, it is felt that the stage has not yet arrived in our constitutional
development, where the deletion of Art. 356 can be recommended. What is required is its proper use
and that has to be ensured by appropriate juristic amendments to the article.

Suggestions and Conclusion

After going through the intricate dimensions of this constitutional provision and
analyzing the imposition of the President's rule in practice for umpteen times,
following suggestions worth a mention:-

17 There has been consistent demands from certain State Governments to delete Articles 256 and 257
along with Article 365 - a fact that is also referred to in the Report of Sarkaria Commission, Chapter
III.
Firstly, the appropriate provision should be incorporated whereby it provides that
until both Houses of Parliament approve the proclamation issued under clause (1) of
Article 356, the Legislative Assembly cannot be dissolved. If necessary it can be kept
only under animated suspension.

Secondly, before issuing the proclamation under clause (1), the President/the Central
Government should indicate to the State Government the matters wherein the State
Government is not acting in accordance with the provisions of the Constitution and
give it a reasonable opportunity of redressing the situation, unless the situation is such
that following the above course would not be in the interest of security of State or
defence and integrity of the country as a whole.

Thirdly, it should be made a mandate that once a proclamation is issued, it should not
be permissible to withdraw it and issue another proclamation to the same effect with a
view to circumvent the requirement in clause (3). Even if a proclamation is
substituted by another proclamation, the period prescribed in clause (3) should be
calculated from the date of the first proclamation.

Fourthly, the proclamation must contain the circumstances and the grounds upon
which the President is satisfied that a situation has arisen where the government of the
State cannot be carried on in accordance with the provisions of the Constitution.
Further, if the Legislative Assembly is sought to be kept under animated suspension
or dissolved, reasons for such course of action should also be stated in the appropriate
proclamation.

Fifthly, whether the Ministry in a State has lost the confidence of the Legislative
Assembly or not, should be decided only on the floor of the Assembly and nowhere
else. If necessary, the Central Government should take necessary steps to enable the
Legislative Assembly to meet and freely transact its business.

Under the light of the preceding discussion on Article 356 from various dimensions
the author inclines towards the rationale given by the constitutional framers towards
the desirability of having such a provision. The intervention of the Hon'ble Supreme
Court in the spate of misused applications of this Article for umpteen times seems to
have turned the tide from blatant misuse to judicious use. With the reformative role
played by the judiciary being laudable, its now time for the executive to fasten its
loose ends and thereby not give any room for criticism.

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 Presidents Rule to be wrongful cannot undo the damage already
done.
 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. 18Another 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.

The current situation in India

The present situation in India shows that the dead-letter provision - as Dr.
Ambedkar hoped it would be - has become a frequently invoked, not-so-dead Article;
it has been activated more than a hundred times till today. 19The National
Commission to Review the Working of the Constitution (NCRWC), which was
established on February 22, 2000, on the basis of a joint resolution of the Government

18 National Commission to Review the Working of the Constitution, Report, I, 8.1.2 (2002)

19 Ahmadi J., S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, 434.
of India, Ministry of Law, Justice and Company Affairs (Department of Legal
Affairs), submitted its extensive report in March 2002. 20In its analysis, the NCRWC
stated that in at least twenty out of the more than one hundred instances, the
invocation of Article 356 might be termed as a misuse. 21It is difficult to believe that,
during his tenure as the Governor of the State of Uttar Pradesh, Romesh Bhandari
made any real effort to install a popularly elected government or to conduct a
constitutionally mandated floor-test to test the strength of the Legislative Assembly in
the State for identifying amajority party before prompting the application of the
Article by the President. 22After the fall of the Mayawati Government in the State of
Uttar Pradesh, it might have been justifiable to impose Presidents Rule. But it was
also necessary to hold fresh elections as soon as possible. The mala fides of the Union
Executive in preventing the assumption of office by an unfavorable political entity
became clearly manifest in Governor Bhandaris actions and the decision of the
United Front Government at the Center, to re-impose Presidents Rule in Uttar
Pradesh. The worst damage may possibly have been done through the office of the
Governor, because the Governor cannot be held responsible for his or her actions. H.
M. Seervai pointed out that the Governor can be removed only by the President and
that the President acts on the advice of the Council of Ministers; hence the Governor
is in office pretty much at the pleasure of the Union Executive. 23This may act as a
bias whenever the Governors duty requires him to go against the desires of the Union
Executive. In its report, the NCRWC recommended that the President should appoint
or remove the Governor in consultation with the Chief Minister of the State. This may
act as a restraint on the misuse of power by the Office of the Governor. 24

Another example of misuse of Article 356 was the imposition of Presidents Rule in
the State of Gujarat from September1996 to October 1996, following the incidents of
violence indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee
pointed out that violence within the Assembly cannot be treated as an instance of
failure of the constitutional machinery; it would otherwise become very easy for
malicious legislators to dissolve a duly elected legislative body by creating
pandemonium in the Assembly and thereby prompting improper invocation of Article

20 National Commission to Review the Working of the Constitution, supra note 3, at 1.1.1.

21 Id. at 8.16.

22 Press Trust of India, HC Order Speaks of Bhandaris Haste, EXPRESS INDIA, Feb. 26, 1998, at
http://www.expressindia.com/ie/daily/19980226/05750654.html (last visited Feb. 22, 2004).

23 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, vol. 3, 3103 ( 4 th edn. 1996)

24 National Commission to Review the Working of the Constitution, supra note 3, at 8.14.2.
356. 25 The correct procedure to be followed in such a situation is to pass suitable
legislation for disqualifying the guilty legislators.

Article 356
The power to dislodge a State government at the free will of the Centre is the product of the provisions
contained in the Article 356 of the Constitution which reads : If the President, on receipt of 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 this Constitution, the
President may by proclamation;

a. Assume to himself all or any of the powers vested in c exercisable by the Governor or any
body or authority in the State other than the Legislature of the State,
b.
Declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of the Parliament, and

c. Make such incidental or consequential provisions as appear to the President to be necessary

or desirable for giving effect to the objects of the proclamation, including provisions for
suspending in whole or in part the operation of any of the provisions of the Constitution
relating to anybody or authority in the State, save those vested in or exercisable by the High
Court.

A highly sensitive and explosive constitutional controversy centres around this Article. The scope for
prejudice was anticipated by K.Santhanam when he spoke in the Constituent Assembly. He observed.
Of course a difficult case may happen, when some States are governed by political parties which are
different from the political party which is governed at the Centre and the majority of the other States

The Constitution lists three situations where resort to emergency provision could be made. First, to
protect every State against external aggression or internal disturbances and to ensure that the
government of the State is carried on in accordance with the Constitution. (Art. 3 55 ... usually referred
to as breakdown of law and order); secondly, when the constitutional machinery in the State fails (Art.
356); and lastly when any State fails to comply with or give effect to any directions given in the
exercise of the executive power of the Union (Art. 365)

The assessment of the situation that necessitates Centra! intervention is primarily a task of the
Governor. In the context, he is Presidents advisor on the spot, and its inevitable outcome is a changed
position of the Governor from the independent head of the State that of an agent of the Centre.
26
However, if the Governor fails in his duty to report to the President, the President is competent to act
otherwise also and impose his Rule on the State. Under the Draft Constitution. Article 188 merely
provided that the President should act on the report of the Governor. The word otherwise was not
there. While moving a motion to delete Article 188 in toto, B.R.Ambedkar observed in the Constituent
Assembly that, no useful purpose could be served, if there is a real emergency by which the President
is required to act, by allowing the Governor, in the first instance, the power to suspend the Constitution
merely for a fortnight. If the President is ultimately to take the responsibility of entering into the
provincial field in order to sustain the Constitution, then it is much better that the President should
come into the field right at the very beginning. On the basis that, that is the correct approach to the

25SOLI SORABJEE, Soli Sorabjee, Constitutional Morality Violated in Gujarat, INDIAN EXPRESS,
PUNE, INDIA, Sept. 21, 1996.

26 Nallini Pant, The Governor andArticle 356: Problems and Challenges, Journal ofthe Society for Are
Study ofState Government. 4:3-4, July-December, 1971, p. 312.
situation, namely that if the responsibility is of the President the President from the very beginning
should come into the field, it is obvious that Article 188 is a futility and is not required at all.27

However, there was a strong opposition in the Constituent Assembly on the inclusion of the word
otherwise, H.V.Kamath. while commenting said, It is a constitutional crime to empower the
President to interfere not merely on the report of the Governor or ruler of a State but otherwise.
Otherwise is a mischievous word. It is a diabolical word in this context and I pray to God that will be
deleted from this Article. If God does not intervene today, I am sure at no distant date. He will
intervene when things will take more serious turn and the eyes of every one of us will be more awake
than they are

today.28Chief Justice P. N. Bhagwati also conceded that the inclusion of the word otherwise in
Article 356 gave the President very drastic powers which, if misused or abused can destroy the
constitutional equilibrium between the Union and the States. He said, Indeed, the usual practice is that
the President acts under Article 3 56(1) of the Constitution only on Governors report. But, the use of
the word otherwise (in Art. 356) shows that Presidents satisfaction could be based on other material
as well. This feature of our constitution indicates most strikingly the extent to which inroads have been
made by it on the federal principle of Government. 29The word otherwise can be interpreted in two
ways. First it may mean, even if the President does not receive a Report from the Governor, he is
competent enough to assess the situation himself perhaps the Union Ministry could appraise him of the
situation, but not necessarily - and act under Article 356. Second, it may also be interpreted to mean
that even on receipt of a Report from the Governor the President is free to accept or reject the
recommendation to promulgate Presidents Rule. In other words, the President may act otherwise
than the Report of the Governor in either of the two ways Thus, theoretically the word otherwise
shifts the whole burden of responsibility from Governors shoulder to that of the President.30

Thus, the only responsibility of the Governor is to make a report to the President of India that the
government of the State concerned cannot be carried on in accordance with the Constitution and to
recommend the imposition of Presidents rule in the province. In making such a report, the Governor
is, however, not bound to act on the advice of his Council of Ministers. He will perform this task as the
representative of the President, and as the representative of the President he will inform to ensure that
the government of the State being carried on in accordance with the provisions of this Constitution The
Governor, therefore, can independently of his Council of Ministers make such a report to the President.
So the scope of independent power of the Governor under Article 356 is very limited.

Basu D.D. while discussing Article 356, has commented, such a report (report of a Governor
recommending Presidents Rule) may sometimes be against a ministry in power, for instance, if it
attempts to misuse its power to subvert the Constitution. It is obvious that in such cases the report
cannot be made according to ministerial advice. No such advice, again, will be available where one
ministry has resigned and another alternative ministry cannot be formed. The making of report under
Article 356, thus, must be regarded as a function to be exercised by the Governor in exercise of his
discretion.31 This view is also shared by H.M. Seervai, It is submitted that the Governor would be
justified in making such a report contrary to the advice of the Council of Ministers, because such a
report might show that the failure of the constitutional machinery is due to the conduct of the Council
of Ministers itself.32Soli Sorabjee opined, In this situation it is evident that the Governor acts directly.
He is not expected to act on the advice of the Council of Ministers, in as much as the effect of the

27 CAD Vol. IX pp. 132-33.

28 Ibid. 140
29 State ofRajasthan vs. Union ofIndia, AIR, 1977, SC, p. 1385.

30 Nalini Pant , OP. cit. p.314

31 Basu, D.D., Commentary on the Constitution ofIndia, S.C. Sarkar and Sons Pvt. Ltd, Calcutta, 1965,
p. 255.

32 Seervai, H. M, Constitutional Law ofIndia, Tripathi, N.ML, Bombay,1968, p. 775

acceptance of his report would certainly be adverse to them. In making a report under Article 356, the
Governor will be justified in exercising his discretion even against the aid and advice of his Council of
Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct
of the COM.33

33 Sorabjee, Soli, The Constitution and the Governor, in The Governor Sage or Saboteur. Roli Books
International, New Delhi, 1985, p. 26.