ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ?

AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

ABSTRACT

Contrary to the foresight of our Founding Fathers, Article 356 is consistently haunting the
health of the Indian democracy like a "living monster". This Article has been, for long, a
topic for debate and public discussion as well as a cause of ire for not only the political crass
and common citizenry but also amongst the legal intelligentsia in the country. The assurances
of Dr. B.R Ambedkar in the Constituent Assembly appear meaningless which state that "the
first thing that the President will do would be to issue a mere warning to the province which
has erred, that things were not happening in the way in which they were intended in the
Constitution..." Instead of being a 'dead letter' or a 'rare pill' as hoped by Dr. Ambedkar, the
Presidential rule is often randomly proclaimed which not only creates a deep crisis of
constitutionalism but also is a brutal assault on the federal structure and polity of the nation,
thereby toppling democratically elected Governments through proclamations.

This happened 124 times in the bygone years and continues to be done so, furthered by the
recent examples of Arunachal Pradesh and Uttarakhand bringing into forefront the
expediency to question its need and usage in light of the provision and judicial dictums.

The Constitution of India under Article 356 deals with provisions in case of failure of
constitutional machinery within a State.

This paper seeks to critically examine the rationale behind the invocation of this Article by
successive Governments that came into power, the historical desideratum and considerations
which went behind its inclusion and drafting, the contemporary validity and use of this
Article and a substantive analysis of the essence of this Article ,its working in practice and
the loopholes which need to be plugged in to check the arbitrary application of the same.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

INTRODUCTION

Article 356, provided under Part XVIII i.e. the Emergency Provisions of the Constitution of
India empowers the Union Government to suspend or revoke the provincial or State
Governments in case of a "failure of constitutional machinery" in the respective state. The
provision being widely worded and in the absence of definitive clauses has been subject to
misuse thus gaining alleged notoriety. The Article in its quintessence says that when there is a
failure of a State Government to work according to the Constitution as ascertained by the
Governor of the State concerned(or otherwise) , the President gathers his satisfaction that the
constitutional machinery in a State has failed thereby issuing a "Proclamation of failure of
constitutional machinery" in that State resulting in dismissal of the elected State Legislature.
The presence of any piece of legislation or constitutional provision that abrogates the basic
principles of democratic freedom and guarantee is antithetic to common citizens and more so,
if it be the case in a country like India which is the world's largest democracy. The people of
this country have the collective interest in preserving all the freedoms in a democratically
elected society.

The provision under which the Central Government can supersede a State Government and
can take over the entire Government of a State including the powers of the Legislature have
made some people to believe that federalism in India has been either modified or has lost its
original meaning.1

However the remedial nature of the provision has been perverted to impose the Central
Government's domination over the State Governments in cases of conflict of interest. Federal
systems of Governments have an essential characteristic that the federal governments have
control over the regional governments for the preservation of the federal set-up, but the issue
lies in seeing that whether it is being used at the cost of sacrificing the interests of democratic
freedom.

Federalism in India is at once similar and distinct from other federations like that of USA;
distinct in that it is not a group of independent States coming together to form a federation by
conceding a portion of their rights of government, but a distributed entity that derives its

1
Gani,H.A., Governor in the Indian Constitution, Ajanta Publication ,Delhi, 63 (1990).
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

power from a single source - the Union. Sovereignty and the powers of governance are
distributed and shared by several entities and organs within the Indian constitutional system.2

The type of federal set-up in India is a "quasi-federal" system of government as described by

K.C. Wheare's classic characterization. Therein powers are distributed amongst the Centre
and the States providing the federal essence and at the same time, the powers vested in the
States revert back to the Centre in case of constitutional provisions relating to emergencies.
With a vast and diverse population facing a myriad of social, political and economic
problems ,it becomes a necessity rather than a mere constitutional tool in the hands of the
Central Government to exercise these so called "extra-ordinary powers" to deal with these
situations which arise in the respective provincial governments. Thus it remains clear that the
power provided under Article 356 is "extra-ordinary and arbitrary", but it is an strange
peculiarity of extra-ordinary power that it tends to corrupt the wielder. Through this paper, a
scrutiny of the history of its application along with its evolution and subsequent judicial
rulings would reveal that this Article too is not an exception.

EVOLUTION AND DEVELOPMENT

(I) Government of India Act,1935

The provisions under the present Constitution have been largely borrowed from the
Government of India Act,1935 manifested therein under Sections 45 and 93, though not
described accurately as an emergency power, it appeared in separate chapters entitled
"Provision in case of failure of constitutional machinery" The object of these provisions, in
short, was simple to withdraw power from popular control of the irresponsible executive
whenever it was found either at the Centre or in any province that the machinery of the
responsible government which was introduced by the Act of 1935 could not function.3 The
provisions were also enacted because one section of the Congress Party had declared its
intention to enter the Legislatures only to wreck them from within, since that Act fell far
short of the party's demands of full self-government. This power could be withdrawn by the
respective heads of the federal and provincial governments where the Governor General and
the Governor, under extraordinary circumstances, exercised near absolute control over the
Provinces.

2
National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the
Constitution, II, ¶ 2.1 (2002), http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm, (Dec. 11, 2016, 10:04 AM,)
3
9 DD Basu ,"Commentary on the Constitution of India", 10994 ( 8th ed. 2011).
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

(II) Debates of the Constituent Assembly

Articles 277 and 278 appear in Part XIII of the Draft Constitution, entitled" Emergency
Provisions". The original draft of Art.278 dealt with the powers of a Union Government
when a proclamation was issued by the Governor of a State declaring that an emergency
situation had arisen in which peace and tranquillity were threatened and the Government of
the State could not be carried on in accordance with the provisions of the Constitution. On
receipt of the Proclamation the President would be given the power of superseding the State
Legislature and Ministry.4

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. B.R.
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.’

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.’5

Again Draft Article 277A( now Article 355) was introduced in which duty was placed upon
the Union to protect the states from external aggression and internal disturbance and to ensure
that the affairs in the States are carried out in consonance with provisions of the Constitution.

Its use in extension was infused into Draft Article 278( now Article 356) which said that the
President could intervene in the affairs of a State , on receipt of a report from the Governor or
otherwise, he was satisfied that a situation had arisen in which the Government of the State
could not be carried out in accordance with the Constitution, thus issuing a proclamation and
assuming to himself all the functions of the State Government.

4
3 H.M Seervai, Constitution of India, 3087 (4th ed.2008).
5
Supra note 2, at ¶ 2.1.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

In the light of the legislative history of Articles 355 and 356 namely, the provisions of ss.45
and 93 of the Government of India Act,1935 relating to the failure of the constitutional
machinery, and the precedent on which Art. 355 was based, it is reasonably clear that Article
356 was meant to be a last resort to preserve the Parliamentary democracy to which our
Constitution is committed. Just as ss.45 and 93 of the Government of India Act,1935 were
enacted in order to prevent a political party from using the machinery of representative
government and destroying it for its own means.

PAST EXERCISE OF THE PROVISION AND EVENTS

In March 1953, the country’s first non-Congress government, headed by Gian Singh
Rarewala in the Patiala and East Punjab States Union (PEPSU) was dismissed, leading to a
Congress victory in the elections that followed.

In 1957, Kerala saw the world’s first elected communist government coming into power. A
series of progressive measures, opposed by the Catholic Church in Kerala, as well as
American pressure engineered by the CIA, made the work of the government difficult. In
1959, the then Congress President Indira Gandhi, convinced Prime Minister Jawaharlal
Nehru that E.M.S. Namboodripad’s government deserved to be dismissed and President’s
rule should be imposed.

After the Emergency ended in 1977, the first non-Congress government at the Centre, headed
by the Janata Party, dismissed state governments headed by Congress chief ministers and
dissolved the assemblies on the ground that they had lost the people’s mandate. The matter
was carried to the Supreme Court in the State of Rajasthan v. Union of India6. A seven-judge
bench dismissed the petition on several preliminary grounds, including its refusal to get into
the thicket of political questions. Some judges even held that presidential satisfaction in
invoking Article 356 of the Constitution was not justiciable. Gandhi’s return to the Centre in
1980 saw her return the favour by dismissing Janata Party state governments. This action
went unchallenged in the courts in the wake of the Rajasthan judgment.

The invocation of President’s rule to facilitate or to recover from political horse-trading

continued through the 1980s. Notable examples include Jammu and Kashmir, where the
Farooq Abdullah government was replaced with his brother-in-law G.M. Shah’s ragtag

6
State of Rajasthan v. Union of India , (1977) 3 SCC 592.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

battalion, aided by Governor Jagmohan. In Andhra Pradesh, Governor Ram Lal was used to
dismiss the N.T. Rama Rao government. That episode saw NTR packing off his legislators to
Karnataka, which was ruled by Ramakrishna Hegde of the Janata Party and subsequently
parading them before the president. The practice of the seclusion and transport of MLAs to
prevent their defections owes much to this particular incident.

The destruction of the Babri Masjid saw Prime Minister P.V. Narasimha Rao’s government
dismiss four state governments lead by the BJP. In 1994, the challenge to this dismissal and
earlier impositions of President’s rule came to be decided by a nine-judge bench in
the S.R.Bommai v. Union of India case 7.The judgment held that the president’s satisfaction in
the invocation of Article 356 could be inquired into by the courts. It upheld the dismissal of
the BJP governments to protect secularism, which is part of the Constitution’s basic structure.
It held that the president was required to act on objective material, and that Article 356 could
only be resorted to when there was a breakdown of constitutional machinery, as distinguished
from an ordinary breakdown of law and order. The court also held that in no case should a
state assembly be dissolved without parliament approving the proclamation, and that a test of
numerical strength could only be conducted on the floor of the assembly and not outside it..

The first major impact of the Bommai judgment was felt in 1997, when President K. R.
Narayanan returned the United Front government’s recommendation to impose President’s
rule in Uttar Pradesh dismissing chief minister Mayawati's Government. A year later, he
again returned a recommendation by Prime Minister Atal Behari Vajpayee’s BJP government
to impose President’s rule in Bihar. Narayanan’s minute against the
Bihar recommendation recorded that “the condition precedent for the invocation of Article
356, viz. that there has been failure of the Constitutional machinery in the state, has not been
adequately made out by the Governor.” Secondly, it held, “it would be imprudent to take
action under Article 356 in Bihar when preliminary steps such as warning, directives and
eliciting explanation from the state have not been taken by the Union.” Thirdly, it said,
“…the fact that the government headed by Shrimati Rabri Devi enjoys majority support in the
legislative assembly has to be borne in mind as per the Sarkaria (Commission) passage cited
in the Bommai judgement.”

7
S.R. Bommai v. Union of India,(1994) 3 SCC 1.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

The doctrine in Bommai came to be applied again by the Supreme Court in the Bihar case
of Rameshwar Prasad & Ors v. Union of India.8 In 2005, Governor Buta Singh, after an
inconclusive election, recommended the dissolution of the state assembly, without it being
convened even once. The court struck down the imposition as unconstitutional but refused to
restore the assembly because another election had already been ordered. Singh resigned in the
wake of the judgment. Constitutional norms began to be set and enforced by organs of the
state that were not particularly overwhelmed by a strong political leadership with dominant
majorities.9

LATEST DEVELOPMENTS AND THE NEED FOR REVIEW

President's Rule has been imposed in Arunachal Pradesh on 26.1.2016. President Pranab
Mukherjee has given his assent to President's Rule in the state.

Reacting over the development, former Arunachal CM Nabam Tuki said, "The matter was
sub-judice, therefore we awaited court's order. They said not to hold an assembly session. We
will fight this battle legally, This is a decision of the BJP, they want to destabilise the non-
BJP ruled states through backdoor." The Union Cabinet had recommended central rule
following political instability in the state.10

On January 26, 2016, President’s rule was imposed in Arunachal Pradesh on various grounds,
including dissidence. Governor JP Rajkhowa mentioned cow slaughter, threats and an
episode with Chief Minister Nabam Tuki's council of ministers that almost resulted in
physical assault as some of the reasons for the imposition of President's rule in the state. The
Governor had sent six reports to the President claiming that 'Constitutional machinery has
broken down in the state'.

However, the primary reason that was stated for the move was that the party had split in
December, wherein 21 of its members had teamed up with 11 BJP members and ousted the

8
Rameshwar Prasad v. Union of India ,(2006) 2 SCC 1.
9
Sanjay Hegde, The judiciary can stop the misuse of Article 356,if it chooses to Act, The Wire,7April, 2016, on
http://thewire.in/27961/the-judiciary-can-stop-the-misuse-of-article-356-if-it-chooses-to-act/ (Dec. 11, 2016,
10:04 AM,)
10
Sangeeta Ojha, President's rule imposed in Arunachal Pradesh, India Today,26 January,2016 on
http://indiatoday.intoday.in/story/presidents-rule-imposed-in-arunachal-pradesh/1/580227.html (Dec. 11, 2016,
10:04 AM,)
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

Speaker and the Chief Minister in two assembly sessions. On the basis of the report submitted
by the Governor, the apex court took up the case for hearing.

This was the first of the two presidential rules imposed by the Union Government in
Arunachal Pradesh on 26.01.2016 through Governor's representation. The national media
reported thus as abovementioned, what followed next a couple of weeks later was
catastrophic and on a similar convoluted pattern, the democratically elected Government in
Uttarakhand was overthrown on 27.03.2016.

On March 18, 2016 during passing of the state Budget, rebel 9 MLAs of Congress joined
hand with opposition and asked for a division of vote. If the budget failed to pass, Chief
Minister Harish Rawat's govt. would have fallen as it was a money bill. But the speaker
refused division of vote and passed the budget by voice vote.

The rebels immediately went to the governor and sought the dismissal of Rawat govt. Much
political turmoil ensued and finally on March 27, 2016, on the advice of the Union cabinet,
Article 356 was imposed by the President in Uttarakhand. According to Arun Jaitley,
democracy was murdered by speaker in the Assembly whereas Congress interpreted it as BJP
forcefully imposing President's rule in the state.11

The following is the judgment rendered by the Hon'ble Uttarakhand High Court and Supreme
Court of India:

1)Harish Chandra Singh Rawat Vs. Union of India and Ors.12

After this huge political upheaval, finally on the advice of the Union Cabinet Ministry,
Presidential rule was imposed in Uttarakhand. Chief Minister Harish Rawat file the
contention of imposition of Presidential rule on the state in the High Court of Uttarakhand
and Nainital stating that the “democracy was murdered” by forceful imposition of the Article
356(1).

The bench consisting of Chief Justice KM Joseph and Justice VK Bist, said "even the
President can go wrong". It added, “There is no king or absolutism. Howsoever high you are,
the law is above you. Legitimacy of relevant inference drawn from the material that is placed

11
Yesha Kotak ,Uttarakhand:The curious case of president's rule, DNA India,3 May,2016 on
http://www.dnaindia.com/india/report-uttarakhand-the-curious-case-of-president-s-rule-2206032(Dec. 11, 2016,
10:04 AM,)
12
SLP CC 7913/2016.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

before the President is open to judicial review”. Chief Justice Joseph said that the Court was
"pained" by the Centre's actions in the case on imposition of President's Rule in Uttarakhand
where the Centre was acting like a "private party". He said that the Central government,
which should be impartial, was acting like a "private party”.

The bench also took into the consideration the apprehensions of Mr. Rawat, that the Central
Government might revoke the President’s rule and try and get the BJP to form government in
the State before the Court’s final verdict in the case. The judgement passed by the High Court
led to revival of the Congress government in the state.

But the apex court stayed the judgement of the Uttarakhand High Court that quashed the
Centre’s decision to impose President’s rule in the state. The bench consisting of Justice
Deepak Mishra and Justice Shiva Kriti Singh temporarily blocked the revival of the Congress
Government in state and restored the Presidential Rule. The court also directed the Central
Government not to revoke the President’s rule until the next hearing where it would also take
into account that whether floor test should be done in accordance with the High Court order.

2) Arunachal Pradesh

The judgment is historic since it is the first time the Supreme Court has restored a
government after it was dismissed on January 26 and a new government was sworn in after a
spell of President’s rule. On two occasions in the past, the top court had ruled against
President’s rule but did not order restoration of the previous government.

By an unanimous verdict, the Constitution Bench circumscribed the powers of the Governor
and held that Rajkhowa’s messages to advance the Assembly session in December and to
decide the manner of conducting the Assembly proceedings were violative of constitutional
provisions and that he could not have acted without the aid and advice of the Council of
Ministers. The bench laid down that a Governor cannot have the freedom to determine when
and in which situation can he take a decision at his own discretion without the aid and advice
of the Chief Minister and his Council of Ministers. He can act without the aid and advice only
when a government has lost its majority in a floor test, the court said.

The bench also ruled that once MLAs have sought removal of a Speaker, it will be
“constitutionally impermissible” for a Speaker to adjudicate upon disqualification petitions
and disqualify MLAs.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

These are the latest instances where the provisions of Article 356 have been blatantly misused
and Courts have struck them down in line with past practices of abuse.

JUDICIAL DECISIONS THEN AND NOW

The first in line of the major cases where the constitutional validity of the proclamation was
challenged before the Courts was in Rajasthan,

1) State of Rajasthan and Anr. V. U.O.I13

A constitutional controversy of great significance was observed in this case. As it so

happened that, after the general elections for Lok Sabha, held in 1977, Janata Party won in
huge blow and thus formed the government. The then Central Home Minister suggested the
Chief Minister of the 9 Congress Ruled states (Bihar, Uttar Pradesh, Himachal Pradesh,
Haryana, Madhya Pradesh, Orissa, Punjab, Rajasthan and West Bengal) to seek dissolution
from the Governor and obtain a fresh mandate from the electorate. The main issue before the
Hon’ble Supreme Court was about the judicial review of the Article 356. The quorum of 7
bench judges depicted differently of the judicial scrutiny over the issue. Article 74(2) of the
Constitution outlines the prohibition of the court from scrutinising the materials and reasons
in support of a Presidential proclamation.The leading judgment of Justices Bhagwati and
A.C. Gupta categorically rejected the contention that the exercise of power under Article 356
essentially involved a political question and was not susceptible to judicial determination.
They held that

"merely because a question has a political complexion, that by itself is no ground why the
Court should shrink from performing its duty under the Constitution if it raises an issue of
constitutional determination. ..merely because a question has a political colour, the Court
cannot fold its hands in despair and declare 'judicial hands off'.

The learned judges also observed that:

“The satisfaction of the President is a subjective one and cannot be tested by reference to any
objective tests. There may be a wide range of situations which may arise and their political
implications and consequences may have to be evaluated in order to decide whether the

13
State of Rajasthan and Anr. V. U.O.I, (1977) 3 SCC 592.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

situation is such that the government of the State cannot be carried on in accordance with the
provisions of the Constitution. It is not a decision which can be based on what the Supreme
Court of the United States has described as 'judicially discoverable and manageable
standards. It would largely be a political judgment based on assessment of diverse and varied
factors”

The aspect of judicial review can be described as follows:

The final judgement of the Supreme court was that a proclamation under Article 356(1) had
immediate force and effect and was not dependent on the approval of both Houses of
Parliament. The Court also rejected the contention that the proclamation cannot be issued
when either or both Houses of Parliament are in session. It was further contended that "even
if the Parliament disapproves the proclamation within the said period of two months, the
proclamation continues to be valid for two months" and that "even if both the Houses do not
approve or disapprove the proclamation, the government which has been dismissed or the
Assembly which may have been dissolved do not revive"

2) S.R. Bommai v. Union of India14

This case raised very important questions about the power of the President to issue a
Proclamation under Article 356 including inter alia the power to dissolve the state legislative
assemblies, the hope of the constitution framers by then of not calling this provision into
question had been belied quite badly. The issue came up before a bench of 9 Judges and is the
landmark case setting forth all the necessary procedures which have to be taken while
exercising this provision.

The case of S.R. Bommai V. Union of India, is a very essential and a landmark case to
understand the concept of Article 356 of the constitution. In 1989, the Janata Dal Ministry
headed by Shri. S.R. Bommai was in office in Karnataka. In between the course, certain
members defected from the party and it raised the question on the majority support of
Bommai’s Ministry. The Chief Ministry proposed to the Governor to call a floor test, to see
the strength of the majority. But the Governor ignored the proposition and reported to the
President that the House has lost the majority and was in no position to form the government.

14
S.R. Bommai v. Union of India,(1994) 3 SCC 1.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

Hence, action can be taken under Art. 356(1) and the president issued the proclamation in
April, 1989.

Apart from the Karnataka proclamation, the Supreme Court was also called upon to decide
the validity of the similar proclamations under the Article 356(1) in the states of Meghalaya
and Nagaland. Three more proclamations of the Madhya Pradesh, Himachal Pradesh, and
Rajasthan respectively were pending before the Supreme Court for review. The proclamation
was based on demolition of the disputed Babri Masjid in Ayodhya in 1992.

The court inferred the decision from material facts placed before them and stated that no
interference could be drawn that the state government had disrespected or disobeyed any
Central direction nor there was any fault on the part of State Government in maintaining the
law and order of the state.

A bench of nine judges was constituted in Bommai to consider the various issues arising in
several similar ongoing cases. The court took into consideration Sarkaria Commission’s
Report and laid down the following situations which will not warrant resort to Article 356:

1. A situation of mal-administration in a state where a duly constituted Ministry enjoys

majority support in the assembly.
2. Where a ministry resigns or is dismissed on losing its majority support in the
assembly and the governor recommends imposition of President’s rule without
exploring the possibility of installing an alternative government.
3. Where, a Ministry which has not been defeated on the floor of the House, the
Governor declines to dissolve the Assembly and without giving the Ministry an
opportunity to demonstrate its majority support through the “floor test”, recommends
its suppression and imposition of President’s rule merely on his subjective
assessment.
4. Where in the general elections of Lok Sabha, the ruling party in the state, has suffered
a massive defeat.
5. Where in a situation of “internal disturbance”, not amounting to or verging on
abdication of its governmental powers by the state government, all possible measures
to contain the situation by the Union in the discharge of its duty, under Article 355,
have not been exhausted.
6. Where no prior warning or opportunity is given to the state government to correct
itself in cases where directives were issued under Article 256, 257, etc.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

7. Where the power is used to sort out internal differences or intra-party problems of the
ruling party.
8. Where there are serious allegations of corruption against ministry.
9. Where there are only stringent financial exigencies of the state.

3) Rameshwar Prasad v. Union of India15

The case arose out of the following facts: Legislative Assembly elections of Bihar was held
in 2005. No party was able to form the government of its own. Considering such conditions a
notification regarding the proclamation of the president to issue emergency under Article
356(1) of the Constitution was issued and the Assembly kept suspended. The case was one
of its kinds, as where before the initiating of the first meeting of the Legislative Assembly,
the dissolution order had been passed on the grounds that certain political party attempted to
collude and form together majority by illegal means and to lay claim to form the government
of the state. The judgement was intensively focused on the Governor’s role and dwelled on it
earlier recommendations about the selection of persons to be appointed as governors of
different state. The court said that “the Governor may be the main player, but Council of
Ministers should have verified facts stated in the report of the Governor before hurriedly
accepting it as a gospel truth as to what Governor stated. So, in the facts and circumstances of
the case the “council of ministers should have verified facts stated in the report of the
governor before hurriedly accepting it as a gospel truth”. Clearly, the Governor has misled
the Council of Ministers...” And we might add that the Council of Ministers misled the
President.” The court also observed that the governor’s report contained “fanciful
assumptions” which could be “destructive to democracy”. The court emphasised that the
Governor while recommending dissolution of the Legislative Assembly, has to annex with
his report pertinent material to substantiate his decision. Regarding the claim of the petitioner
for the renewal of the dissolved assembly the Apex court replied that the election process was
set in motion and was at an advanced stage. The court also tried to avoid the confrontation
between the legislature and the Judiciary by not ordering in favour for ordering of the
renewal of the Assembly. The court decided to leave the matter at the hand of the electorate
which was the ultimate source of the power. It can be seen that Rameshwar Prasad V. U.O.I
recapitulates the principles declared in the State of Rajasthan and Bommai’s case keeping in

15
Rameshwar Prasad v. Union of India ,(2006) 2 SCC 1.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

view the Sarkaria Commission’s Report. The court finally made a clear distinction that
Article 356 contains an emergency power and the power should not be used as normal power.

REPORTS OF COMMISSIONS

(i) SARKARIA COMMISSION ( 1983) :

The recommendations of Sarkaria Commission are analysed as follows:

1. The Sarkaria Commission ( 1988) recommended that Article 356 should be used in very
rare cases when it becomes unavoidable to restore the breakdown of constitutional machinery
in the State. The Commission recommended that "Article 356 should be used very sparingly,
in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or
rectify a breakdown of constitutional machinery in the State."16

2. The Commission recommended that before taking action under Article 356, a warning
should be issued to the State Government that it is not functioning according to the
Constitution. However, the explanation submitted by the State Government should not be
taken into account if there is an urgency of taking immediate action to prevent disastrous
consequences.17

3.The Commission recommended that "When an 'external aggression' or 'internal

disturbance' paralyses the State administration creating a situation drifting towards a potential
breakdown of the Constitutional machinery of the State, all alternative courses available to
the Union for discharging its paramount responsibility under Article 355 should be exhausted
to contain the situation."18

4. The Commission recommended that in case of political breakdown, the Governor should
allow a government to function in the State which enjoys the majority in the State Assembly.
If it is not possible and there is urgency of fresh elections then the outgoing Ministry will
function as a caretaker government. The Commission recommended that "If' a situation of
political breakdown, the Governor should explore all possibilities of having a government

16
Government of India Press,( 1987), Report of the Commission on Centre-State Relations,Part-1, Government
of India Press: Nasik,.l77- 179.
17
Id. at 179
18
Id. at 179
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

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 avoidable delay, he should ask the
outgoing Ministry, if there is one, to continue as a caretaker government. The Governor
should recommend proclamation of President's Rule without dissolving the Assembly."19

5. The Commission also recommended that the Proclamation of the President's Rule should
be placed before each House of Parliament before the expiry of two months' period specified
for its approval.20

6. The Commission recommended that the Governor or the President should not dissolve the
State Assembly before the approval of the Proclamation by each House of the Parliament.
Article 356 should be suitably amended to ensure this.21

7. The Commission recommended that the safeguards in clauses (7) and (8) of Article 352
should be incorporated in Article 356 to enable the Parliament to review continuance in force
of a Proclamation.22

8.The Commission recommended that the material facts and grounds on which Article 356(1)
is invoked should be made an integral part of the Proclamation of that Article.23

9.The Commission recommended that "Normally, the President is moved to action under
Article 356 on the report of the Governor. The report of the Governor is placed before each
House of Parliament. Such a report should be a 'speaking document' containing a precise and
clear statement of all material facts and grounds on the basis of which the President may
satisfy himself as to the existence or otherwise of the situation contemplated in Article
356."24

10. The Commission recommended that the report of the Governor regarding imposition of
President's Rule should be given wide publicity in the media.25

11. The Commission recommended that the President's Rule in a state should be proclaimed
on the basis of the Governor's report in normal situation. The Commission recommended
that.26

19
Id. at 179-80
20
Id. at 179
21
Id. at 180
22
Id. at180
23
Id. at 180
24
Id. at 180
25
Id. at 180
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

12. The Commission recommended that the word 'and' occurring between sub-clauses (a) and
(b) should be substituted by 'or', in Clause (5) of Article 356.27

It is obvious that Sarkaria Commission's suggestions are useful to check upon the misuse of
provisions relating to President's Rule and it promotes a constitutional structure that promotes
co-operative and federal institutions. Owing to lack of political will power these suggestions
have not been implemented so far."The Sarkaria Commission has taken great efforts to
examine Union-State relationships but the end product reveals the existence of certain
diametrically opposite views that cannot meet. As long as such views exist, the problems of
relationship will continue and any suggestion for betterment of relations are bound to have
temporary effect only."28

(ii) THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE

CONSTITUTION (VENKATACHALIAH COMMISSION) REPORT, 2002.

Government of India established the National Commission to Review the Working of the
Constitution. Justice M.M. Venkatachaliah, former Chief Justice of Supreme Court, was the
Chairperson of this Commission. Justice R.S. Sarkaria was the chairperson of emergency
provisions review committee and Justice B.P. Jeevan Reddy presented the paper on Article
356. The Commission submitted its report in 2002. The analysis as in the recommendations
of the Commission is as follows.

1. The Venkatachaliah Commission (2002) recommended that the Article 356 must be used
sparingly and only as a remedy of the last resort after exhausting all actions under Articles
256, 257 and 355.29

2.The Commission recommended that "Before issuing a proclamation under Article 356 the
concerned State should be given an opportunity to explain its position and redress the
situation, unless the situation is such. that following the above course would not be in the
interest of security of State, or defence of the country, or for other reasons necessitating
urgent action."30

26
Id. at 180
27
Id. at 180
28
Saraswathi, S. "Centre-State Relations: Nature of Problems and Approach of Sarkaria Commission," cited in
Bidyut Chakrabarty" Centre-State· Relations in India", 67,New Delhi.(1990)
29
National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the
Constitution, I, (2002), p. 251
30
Id. at 252
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

3. The Commission recommended that the question whether the Council of Ministers in a
State has lost the confidence of the State Assembly or not, should be decided only on the
floor of the House and not anywhere else. So far as the political breakdown of the State, the
Governor should explore all possibilities of formation of a Government enjoying majority
support in the State Assembly. If an alternative Government cannot be formed and if fresh
elections is to be held without delay, the Governor should ask the outgoing Ministry to
continue as a caretaker government, provided the Ministry was defeated solely on issue,
unconnected with any allegations of maladministration or corruption and is agreeable to
continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution
of the constitutional crisis to the electorate.31

4. The Commission recommended that with regard to the election of the new leader of the
State Assembly (Chief Minister) and the removal of the previous Government, a constructive
vote of no-confidence is to be accepted and implemented.32

5.The Commission recommended that "Normally President's Rule in a State should be

proclaimed on the basis of Governor's report under Article 356(1 ). The Governor's report
should be a 'speaking document,' containing a precise and clear statement of all material facts
and grounds, on the basis of which the President may satisfy himself, as to the existence or
otherwise of the situation contemplated in Article 356."33

6. The Commission recommended that in clause (5) of Article 356, in sub-clause (a) the word
"and" occurring at the end should be substituted by "or" so that President's Rule may be
continued if elections of the State Assembly cannot be held.34

7. The Commission recommended that clauses (6) and (7) under Article 356 may be added to
the following lines: (6) The President shall revoke a proclamation issued under clause (1) or a
proclamation, varying such proclamation if the Lok Sabha passes a resolution disapproving
or disapproving the continuance in force of such proclamation. To clause (7) where a notice
in writing signed by not less than 1/10th of the total number of members of the Lok Sabha
has been given, of intention to move a resolution for disapproving a special sitting of the

31
Id. at 253
32
Id. at 253
33
Id. at 254
34
Id. at 255
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

House shall be held within fourteen days from the date on which such a notice is received by
the Speaker or by the President, for the propose of considering such resolution.35

8. The Commission recommended that Article 356 should be amended to ensure that the
State Legislative Assembly should not be dissolved by the Governor or the President before
the proclamation of President's Rule has been laid before Parliament and it has had an
opportunity to consider it.36

The suggestions of the Constitution Review Commission (2002) have also been useful to
check upon the misuse of the provisions regarding President's Rule. Noted jurist Prof.M.P.
Singh observed that the constitutional reforms the NCRWC offers are very relevant today.
Their urgency can hardly be exaggerated.37

AMENDMENT OF ARTICLE 356: IS THERE A NEED

The entire discussion of this paper, when it seems so that there has been such misuse of
Article 356 of the Constitution , boils down to the question of whether there is a need to
amend or delete this provision? The demand for removal of Article 356 has been since a long
time, an analysis of the remaining provisions after deletion of Art.356, i.e. Art.355 and
Art.365, make it worse from the point of view of the States. In the absence of Art.356, the
safeguards provided in the Article especially clause(3) of the Article would not be there, and
the Union Govt. can there on would be freely exercising its huge powers in the name of
redressing situations where the Government cannot be carried out in accordance of the
provisions of the Constitution. Thus, deletion of Art.356 in its entirety is not favourable,
however if Art.356 ever comes to be deleted its, subsequent Article,i.e. Art. 357 also needs to
be deleted, also a result of it certain other provisions 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 totality.
However, Article 256 and Article 25738 remain, and the obvious deletion of these will be
clearly perceived by the Courts as a drastic change of Centre-State relations, an

35
Id. at 256
36
Id. at 257
37
Singh, M.P. "Indian Federalism and NCRWC Report, 2002," cited in B.D.Dua and M.P.Singh (2003), Indian
Federalism in the New Millennium, Manohar Publications: New Delhi, p.297.
38
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.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

impingement on the federal structure, hence violative of the basic structure doctrine.
The repeal of Article 356 is not advisable again on the ground that 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.39

Thus complete removal of Art.356 remains wholly unconceivable as of now, where its
complete deletion may be recommended. What remains and is required at this point of time is
that its use is curbed by appropriate judicial guidelines and subsequent amendments on those
lines as enunciated in the landmark Bommai case, which has time and again come to the
rescue of the Indian democracy as illustrated recently in the cases of Arunachal Pradesh and
Uttarakhand in 2016.

SUGGESTIONS AND CONCLUSIONS

After a thorough analysis of the provisions, reports of various commissions, judicial decisions
and past practices, the following suggestions are clearly worthwhile:

1) Firstly, the appropriate provision(s) should be incorporated which provides that

until both Houses of Parliament approve the proclamation issued under clause (1) of Article
356, the Legislative Assembly cannot be dissolved. Under expediency, it can be kept only
under suspended animation.

2) Secondly, before proclamation is issued under clause (1), the President/Union

Government must intimate the State Government the instances where the State Government
has not acted in consonance with the provisions of the Constitution providing it a reasonable
opportunity of addressing the matter, provided such a recourse would not be viable in the
interest of security of State and integrity of the country as a whole.
3) Thirdly, It should be made obligatory that once a proclamation is issued, it will not be
permissible to retract it thereby issuing another proclamation to the same effect with an intent to
circumvent the requirement in clause (3). Even so if a proclamation is substituted by another
proclamation, the period mentioned in clause (3) must be computed from the date of issue of first
proclamation.

39
Supra note 2, at ¶ 8.18.
ARTICLE 356: A DEAD LETTER OR A "LIVING MONSTER" ? AN ANALYSIS OF ITS
CONTEMPORARY USE AND ABUSE.

4) Fourthly, The circumstances and the grounds upon which the Presidential
satisfaction is based must be stated in the Proclamation, that a situation has arisen where the
government of the State cannot be carried out 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 recourse must also be stated in the appropriate
proclamation.

5) Fifthly, Floor test must be mandatory to check if the Sate Govt. has the requisite
majority or not to function. If necessary, the Union Government must take necessary steps to
enable the Legislative Assembly to function accordingly and conduct business.

Eventually, the public opinion in India, we authors passionately hope, will awaken to
the fact that Article 356 has become a noose that is slowly strangulating the neck of
democracy in India, suffocating the rights of the citizens. In the meantime, to shape the 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.