NATIONAL LAW UNIVERSITY

JODHPUR

CONSTITUTIONAL GOVERNANCE – II

ASSIGNMENT WORK ON :-
A speech opposing the inclusion of a provision similar to that of Article 356 of
The Indian Constitution in The Constitution of Gilead.

SUBMITTED BY: SUBMITTED TO:

Mr. President, Sir, I have got today the opportunity of speaking on the Article 356. I am
extremely grateful to the Drafting Committee and consider myself fortunate for getting this
opportunity.

The Gileadian Constitution embodies the principle of federalism for the governance of the

country but fails to adhere to the pious contents of the federalism. It can easily be remarked
that,the life of government of a party in a State, different from one in power at the Centre, has
alwaysbeen vulnerable.

The article focuses on the political instability of regional political parties and inherent fear to

their existence in the light of Article 356 of the Constitution. Further,I will consolidate the
efforts of various committees to properly channelize the invocation of Article 356 of the
Constitution.It took political man centuries to realize that the good society, in which he
possessed rights and in which these rights were secured, was conditioned on the containment
of the power holders, whatever the legitimation-factual, religious, or legal. In time this purpose
appeared to be served best by articulating the restraints, society wished to place on the power
holders in the form of a set fixed rule-the “constitution”—limiting their exercise of political
power. Constitution of Gilead though, has functioned remarkably well in order to limit the
power of governments barring few anomalies.

The essence of the Article is that upon the breach of a certain defined state of affairs, as
ascertained and reported by the Governor of the State concerned (or otherwise), the President
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
Gilead would naturally have the greatest interest in preserving all the freedoms envisioned in
a democratic society.

Article 356, empowers the President to impose President’s rule in the States, has been in
controversy right from its inclusion in the Constitution. Constitutional issues are inherently
controversial but there is a striking unanimity of opinion on the persistent misuse of Article
356 of the Constitution, which empowers the President of Gilead to impose President’s rule in
states and dissolve assemblies. 1

Mr. President,

The Article in the Draft constitution of Gilead which states the provision in case of failure of
constitutional machinery in State reads as:

Provisions in case of failure of constitutional machinery in State:-

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied
that a situation has arisen in which the government of the State cannot be carried on in
accordance with he provisions of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any
of the powers vested in or 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 Parliament;

(c) make such incidental and 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 provisions of this constitution relating
to any body or authority in the State Provided that nothing in this clause shall authorise the
President to assume to himself any of the powers vested in or exercisable by a High Court, or
to suspend in whole or in part the operation of any provision of this Constitution relating to
High Courts

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation

(3) Every Proclamation issued under this article except where it is a Proclamation revoking a
previous Proclamation, cease to operate at the expiration of two months unless before the
expiration of that period it has been approved by resolutions of both Houses of Parliament
Provided that if any such Proclamation (not being a Proclamation revoking a previous
Proclamation) is issued at a time when the House of the People is dissolved or the dissolution
of the House of the People takes place during the period of two months referred to in this
clause, and if a resolution approving the Proclamation has been passed by the Council of

1
D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 480
States, but no resolution with respect to such Proclamation has been passed by the House of
the People before the expiration of that period, the Proclamation Shall cease to operate at the
expiration of thirty days from the date on which the House of the People first sits after its
reconstitution unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of issue of the Proclamation: Provided that if and so often
as a resolution approving the continuance in force of such a Proclamation is passed by both
Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further
period of six months from the date on which under this clause it would otherwise have ceased
to operating, but no such Proclamation shall in any case remain in force for more than three
years: Provided further that if the dissolution of the House of the People takes place during
any such period of six months and a resolution approving the continuance in force of such
Proclamation has been passed by the Council of States, but no resolution with respect to the
continuance in force of such Proclamation has been passed by the House of the People during
the said period, the Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution unless before the
expiration of the said period of thirty days a resolution approving the continuance in force of
the Proclamation has been also passed by the House of the People

(5) Notwithstanding anything contained in clause ( 4 ), a resolution with respect to the

continuance in force of a Proclamation approved under clause ( 3 ) for any period beyond the
expiration of one year from the date of issue of such proclamation shall not be passed by either
House of Parliament unless

(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be,
in the whole or any part of the State, at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation
approved under clause (3) during the period specified in such resolution is necessary on
account of difficulties in holding general elections to the Legislative Assembly of the State
concerned: Provided that in the case of the Proclamation issued under clause (1) on the 6 th
day of October, 1985 with respect to the State of Punjab, the reference in this clause to any
period beyond the expiration of two years2

Article 356 of the Constitution of India, which is pari materia to the aforsestated provision, and
which provides for the imposition of President’s Rule when there is a “failure of constitutional
machinery in the State”, has been one the most controversial provisions of the Constitution of
India since its inception. Being a democratic country this emergency provision in India has
been subject to a lot of debate and discussion as the ultimate control goes to one single
authority, which is against the tenets of federalism too. These provisions were incorporated in
the Constitution believing that these would be the dead letters but to the utter dismay they
became the death letters of the Constitution. This is the provision under which the Central
government can supersede a State government and take over the entire government of the State
including the powers of the Legislature which has made some people believe that federalism
in India has been either modified or has lost its original meaning. 3 Since the independence of
India this Article has been flagrantly misused on numerous occasions to suit the purposes of a
dominant Centre. There has been a constant demand from different parties in India to scrap this
provision. 4

There has been persistent criticism, in ever-mounting intensity, both in regard to the frequency
and the manner of the use of Article 356. The essence of the criticism is that, more often than
not, its provisions have been misused, to promote the political interests of the party in power
at the Union. An important issue for consideration before the framers is, whether the President
and the Governor, or either of them, should be vested with special responsibilities to be
discharged by them in the exercise of their discretion, for purposes such as maintenance of

2
Gani, HA., Governor in the Indian Constitution, Ajanta Publication, Delhi, 1990, p. 63.

3
P.M Bakshi; The Constitution of India; Universal Publication Edition, 2002

4
G. AUSTIN, THE INDIAN CONSTITUTION — CORNERSTONE OF A NATION, (Delhi: Oxford

University Press), 1999, p.187;

peace and tranquillity. President should have no such special powers and that he would exercise
all his functions on the advice of his Council of Ministers.

Thus, the Constituent Assembly should decide that the responsibility of intervention in the
administration of a State, when it was faced with a threatened or actual break-down of the
Constitutional arrangements, would be exclusively that of the President, in effect, of the Union
Government, and the Governor should have no authority in such a situation to assume, in his
discretion, the powers of the State Government even for a short period.

It was stressed that our Constitution, notwithstanding that many of its provisions bestow
overriding powers on the Centre, nonetheless gives, on the federal principle, plenary authority
to the Provinces to make laws and administer the same in the field assigned to them. If the
Centre is to interfere in the administration of provincial affairs, it must be, by and under some
obligation which the Constitution imposes upon the Centre. It was emphasised that the
'invasion' by the Centre of the Provincial field “must not be an invasion which is wanton,
arbitrary and unauthorised by law”.

The introduction of a provision casting a duty on the Union to protect the States 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' was therefore, considered
essential to prevent such an unprincipled invasion.5

Article 356 incorporated in the Constitution of India gives the President, the power to impose
President’s rule in States. The 'Emergency Provisions4 of the Constitution form a fasciculus of
nine Articles giving the President overriding authority to assume and exercise powers to deal
with four types of extra-ordinary situations.

(a) A situation of grave emergency whereby the security of India or any part of its territory is
threatened by war or external aggression or armed rebellion. (Articles 352 and related Articles:
353, Proviso to 83(2), 250, 354, 358 and 359).

(b) A situation involving breakdown of constitutional machinery in a State, i.e., where the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution (Articles 356 and 357).

5
Report on Centre-State Relationship, 28. 73.
(c) A situation of 'external aggression' and/or 'internal disturbance' which is not grave enough
to satisfy the requirements of either Article 352 or 356, but nevertheless, calls for other action
by the Union pursuant to the first part of Article 355.

(d) A situation where the financial stability or credit of India or any part thereof is threatened
enabling the Union to give suitable directions (Article 360).6

The Misuse of Article 356

A cursory glance at the data shows that this has been far from the truth. Sarkaria Commission
notes that since independence, it has been used over 100 times.
Perfectly legitimate state governments have sometimes been fired to either make them fall in
line or to give the Union government’s own party a chance at obtaining power in the state. To
claim legitimacy, Union governments have assumed precisely the role Dr. Ambedkar feared
they would—that of being determinants of quality of governance in the states.

1970s and 80s will be remembered for the most spiteful use of Article 356. From the year 1971
to 1984, it was used 59 times with maximum being used in the period 1977-79 during which
Morai Desai government ruled. It was used by the post-emergency Central government as
vendetta against Congress-ruled state governments. Later, Indira Gandhi returned the favour
after storming back to power in 1980 and during the period 1980-84 it was used 17 times.

Though Article 356 had been misused even by Jawaharlal Nehru to dismiss the majority
Communist government of Kerala, Indira Gandhi is synonymous with having used it as a
weapon against state governments. Its frequency increased sharply post-1967 when Congress
party lost power in several states in India.

In fact, Indira Gandhi during emergency closed judicial review of even the Presidential order
clamping Article 356 through the 38th Constitutional Amendment. However, thanks to the 44th
Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article
356, as envisaged by Dr. Ambedkar, was restored.

6
M.P.Singh, op.cit., p. 341
Manipur has seen the most frequent application of Article 356. The deeply fragmented internal
politics of the state, as well as long periods of violence, have often enabled the Union
government to impose its fiat on the state.7
Besides Manipur, the politically crucial states of Uttar Pradesh and Bihar, with their fragmented
polity, have been on the centre’s radar for long.

S.R Bommai’s Case – Judicial Involvement:

S.R Bommai v. Union of India[28] was a landmark in the history of Indian Constitution. It was
in this case that the Supreme Court 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 S.R. 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”.8

Concluding Remarks

Therefore in the light of above instances in countries like India, it is very clear that if Article
356 is incorporated in Gilead then there will be threat for regional identities as well of the death
of the federalism. We have seen that in India Article 356 have been proclaimed 119 times.

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” … “ articles will
never be called into operation and that they would remain a dead letter”.

Therefore in the light of above instances in countries like India, it is very clear that if Article
356 is incorporated in Gilead then there will be death of constitution as well of the death of the

7
Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, PUNE, INDIA, Sept. 21, 1996.

8
S.R. Bommai v. Union of India, (1994) 3 SCC
federalism. It would give such noxious power to the centre that it will curtail power of the states
in toto. We have seen that in India Article 356 have been proclaimed 119 times. Trepidation of
doing greater harm to the constitution has turned true in India and therefore inclusion of this
provisions means digging one’s own grave. We need to understand that Article 356 is not
limited to state emergency or political breakdown but it is also related to the dark side of the
constitution.