“Failure of Constitutional Machinery of the State”

Upinder Singh

INTRODUCTION

Indian Constitution provides for a quasi-federal form of government which shall have
both unitary as well as federal features. Thus, where autonomy has been given to the
States in many respects, one such example being formation of laws on the subjects
given under State list, certain other matters has been strictly placed in the realm of the
Central Government, in order to maintain the unity and integrity of the country. The
Emergency provisions given under Part XVIII of the Constitution of India is an
example of one such provision where the Constitution adopts a unitary structure and
gives overriding powers to the Union for controlling the administration and legislation
throughout the country. The reason behind this is that the framers of the Constitution
were aware about the fact that India being a country with a lot of diversities and social-
economic disparities, the security of the country has to be taken seriously and the Union
has to be given enough powers so as to protect the States from any kind of external
aggression or internal disturbance.

The study of these emergency provisions, particularly the one dealing with the case of
failure of the constitutional machinery of the State becomes important on the ground
that these provisions have been invoked a number of (more than 75 times) since the
incorporation of the Constitution but most of the times, the powers vested by these
provisions have been misused by the Centre for the purpose of dissolving State
Governments ruled by political rivalries. Thus, the critical analysis of these provisions
becomes the subject matter of this research paper besides explaining the scope of these
provisions, the amendments under it and the change that has taken place in its
implementation over the period of time.

II. CONSTITUTIONAL PROVISIONS

The Constitutional provisions dealing particularly with the emergency in States are
Articles 355, 356 and 357. Each of them is being explained hereunder along with the
relationship between them.
As explained earlier that the Indian Constitution provides for unitary structure in cases
of Emergency, it is by the virtue of Article 355 that a duty has been imposed on the
Union to protect the States against ‘external aggression’, ‘internal disturbance’ and to
 ensure that the Government of each State is carried on as per the provisions of the
Constitution. The word used in this Article is ‘and’, which means that the duty can be
imposed on the Union either when any one of these conditions arise individually or by
the virtue of a condition that is a combination of these conditions. Thus, all the possible
circumstances have been provided under this Article in order to protect any State.

But the part of this Article that is relevant to the study of the present research paper is
the last portion that Article, where the Union has been given the power to protect the
State in case of failure of ‘Constitutional Machinery’ in a State, whose remedy is given
under Article 356. This Article provides for a Proclamation by the President if he is
satisfied that a situation has arisen where by the government of the State cannot
function in accordance with the provisions of the Constitution. In case of such a
proclamation, all the powers and functions of the State Government comes under the
control of the President except the powers of the High Court, following the rule of
Separation of Powers. The Article also provides for certain checks and balances in the
form of approval from both the Houses of Parliament within two months of the issue
of proclamation, without which it ceases to operate, regular approval from the Houses
after every six months and the maximum operating period of a proclamation, which is
one year. This period can be extended to three years only if the conditions given under
clause (5) are met which are that either there is a Proclamation of Emergency in
operation in the whole of India or the Election Commission has certified the
continuance of such proclamation in respect of any difficulty to hold the general
elections in that State. This restraint on the maximum period of operation of
th
proclamation was added only by the virtue of 44 Amendment Act of 1978.

Lastly, Article 357, in continuance of Article 356, provides that Parliament may confer
legislative power on the President and authorise him to delegate it further to any other
authority. However, the law does not come to an end automatically as soon as the
proclamation is revoked. This provision means that though the power of the Union to
make laws for the State concerned on the subject within the State list ceases as soon as
1
the proclamation under Article 356 comes to an end.

1 th
M.P. Jain, Indian Constitutional Law; at p. 753 (6 Ed., 2011), LexisNexis Butterworths Wadhwa.
 III. INVOCATION

A bare perusal of the title of the Article gives the idea about its invocation i.e. in case of
‘failure of the constitutional machinery in States’. But what actually constitutes this
failure is a question of interpretation, as this expression can be given indefinite
connotations. But, some situations of the breakdown of the constitutional machinery
2
can be laid down as follows:

1. No party in the Assembly has a majority in the State Legislative Assembly to be

able to form government.

2. A government in office loses its majority due to defections and no alternative

government can be formed.

3. A government may have majority support in the House, but it may function in a
manner subversive of the Constitution.

4. The State Government does not comply with the directions issued by the
Central Government under various constitutional provisions.

5. Security of the State may be threatened by a widespread breakdown of law and

order in the State.

One of the latest examples of invocation of this Article could be that of Delhi when it
was recently placed under the President’s rule from 14 February, 2014 – 11 February,
2015 due to resignation given by Arvind Kejriwal from the post of Chief Minister.

IV. HISTORY

The roots of this Article can be traced back to the Government of India Act, 1935. It
was the Section 93 of the Act that provided similar provisions of this Article in respect of
3
Governor of a province. But, as mentioned earlier, the Constitution framers decided to
adopt the same principle in the Indian Constitution and give exclusive

2 th
M.P. Jain, Indian Constitutional Law; at p. 755 (6 Ed., 2011), LexisNexis Butterworths Wadhwa.
3
K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article 356 of the Constitution of India:
A Comparative Critique, Vol. 8.1. March 2004 (available at http://www.ejcl.org/81/art81-4.html)
powers to the Union in cases of emergency in order to maintain the unity and integrity
of the country.

V. MISUSE OF POWERS

This Article gives wide powers to the Central Government to assert powers over a
State in case of failure of the constitutional machinery of the State. It has been used a
number of times since its inception but an interesting fact, as mentioned earlier, is that
most of the times it has been misused by the Central government in order to dissolve
the State government ruled by political opponents.

th
The Article was used for the first time in Punjab on 20 June 1951. It has also been
used in the State of Patiala and East Punjab States Union (PEPSU) and then during
Vimochana Samaran to dismiss the democratically elected Communist State
st
Government of Kerela on 31 July, 1959. In the 1970s and 1980s, it almost became
common practise for the Central Government to dismiss State Governments led by
opposition parties. The Indira Gandhi regime and post-emergency Janata Party were
noted for this practise. Indira Gandhi’s Government between 1966 and 1977 is known
to have imposed President’s rule in 39 times in different States.

Finally, in the wake of the increasing strain on Centre-State relations, Sarkaria

Commission was set up by the Parliament in the year 1983 under the chairmanship of
Justice R. S. Sarkaria with the purpose of examining and reviewing the working of
existing arrangements between the Union and the State and to recommend measures
to make the relation more efficient and cooperative. The Commission finally
submitted its report in the year 1987 with its 247 recommendations of which the main
ones are discussed below:

1. The most important recommendation out of all was the rare use of this
provision by the Centre. The Commission, while discussing that the term
used in the Article ‘failure of constitutional machinery’, is very vague
recommended that each and every failure of the constitutional provision in
a State should be examined properly before this provision is used. It was
suggested to be used ‘sparingly’ as a last measure, when all the other
 available alternatives have failed to rectify such breakdown of the
constitutional machinery in a State.

2. Further, it was recommended that the alternatives available to rectify the

constitutional machinery should be done away with only in cases where an
immediate inaction will result in disastrous consequences.

3. It was also recommended that for every proclamation made, a report

stating the facts and grounds of it should be made compulsory, which
would make the judicial review of proclamation possible, thus, acting as a
check on the use of these provisions by the Centre with a mala fide
intention.

However, they were not implemented by the Government at that point of time.
4
Finally, it was the case of S.R. Bommai v. Union of India , where the Apex court of
the country expressed similar opinion to that of the Sarkaria Commission and held
that Article 356 is an extreme power which is to be sparingly used as a last resort in
cases where it is manifest that the constitutional machinery has collapsed. This
judgement was a landmark judgement particularly in regard to the Centre-State
relation under Article 356, which shall be elaborately discussed under the next topic in
this paper.

VI. JUDICIAL REVIEW

The question for judicial review has come up for consideration before a number of
Courts but the attempts have not succeeded. The first case that can be traced where this
5
question came before the Court was the case of K.K. Aboo v. Union of India . In this
case, the President’s rule was been imposed on the State of Kerela on the ground that
no stable government could be formed after the general elections in the year 1965.
However, this Central action was challenged on the ground that the Proclamation has
been issued without convening the meetings of the State Legislature. The Kerela High
Court rejected the petition and refused to go into the constitutionality of the

4
AIR 1994 SC 1918
5
AIR 1965 Ker 229
 6
Proclamation. In another case of Rao Birinder Singh v. India dealing with the same
question, it was held by the High Court of Punjab that while exercising powers under
Article 356, the President acts in a constitutional capacity rather than acting on behalf
of the Union. Hence, such exercise of power by the President cannot be brought under
the purview of the jurisdiction of the Court. Similar decision was also taken by the
7
Calcutta High Court in the case of Jyotirmay Bose v. Union of India .

8
Another important decision on this subject is that of Bijayanand v. President of India ,
where the scope of judicial scrutiny of this Article was discussed in further detail. It
was observed by the Orissa High Court that the Governor, while sending his report to
the President, is required to act directly and not with the aid and advice of the Council
of Ministers and whether such report is mala fide or not cannot be questioned in a court
of law because of the immunity provided to him as well as President under Article 361
clause 1. Hence, it was again decided in favour of the Central action.

However, an interesting fact in regard to all these cases is that all of them were decided
by the High Courts and none of them came for consideration before the Supreme Court.
Instead, in the year 1975, judicial review of a Proclamation under this Article was
th
barred by the virtue of 38 Amendment to the Constitution which made the
presidential satisfaction a final and conclusive authority to issue a Proclamation, which
th
cannot be challenged in Court. This clause was finally withdrawn by the way of 44
Constitutional Amendment in the year 1978.

This question came before the Supreme Court of India for the first time in the case of
9
Rajasthan v. Union of India . This case pertains to the elections of Lok Sabha held in
the year 1977 where the Congress party lost the elections very badly to the Janata Party.
However, at that time, many states were still ruled by the Congress party. So, the newly
sworn Home Minister recommended the Chief Ministers of those states to dissolve the
State Legislature and conduct fresh elections. This action of the Home Minister was
challenged before the Court praying for holding it unconstitutional and illegal as the
same was outside the purview of Article 356. The Court, however, refused to interfere
with the Central Action under this Article as it was outside the purview of the judiciary.

6
AIR 1968 Punj 441
7
AIR 1971 Cal 122
8
AIR 1974 Ori 52
9
AIR 1977 SC 1361
 The Court held that the Article gives wide powers to the Central Government which
cannot be challenged until and unless some constitutional provision has been infringed.
In the words of BHAGWATI, J., “the satisfaction of the President under Article 356 is a
subjective one and cannot be tested by reference to any objective tests or by judicially
discoverable and manageable standards.” Thus, once again, the judicial review of this
Article was struck down.

10
It was finally in the landmark judgement of S.R. Bommai v. Union of India where
the Court held that the Article 356 can be judicially reviewed. The case was actually a
result of dismissal of a number of writ petitions by various High Courts where the
common question of dissolution of the State Legislature was raised. In all these cases,
the Governors of the respective State gave advice to the President without even giving
the ruling party to prove its majority in the Assembly, which ultimately led to the
President’s rule being imposed on the State. Hence, all these Proclamations were
challenged before the Court.

The case was decided by a nine-judge Bench, where the Court bringing Article 356
under the purview of judicial scrutiny enunciated the following propositions:

1. The validity of the Proclamation issued is judicially reviewable to the extent of

examining whether it was issued on the basis of any material or relevant
material or it was issued with mala fide intention.

2. The power of the President to issue Proclamation is not unfettered but it is

actually conditioned on the basis of the report given to him by the Governor and
the President should form his satisfaction only on the basis of relevant
information.

3. The majority of the Party should also be decided in the Assembly prior to the
report being sent to the President. In case, the Ministry loses its support, the
Governor should also explore the possibility of installing an alternative
Ministry.

10
AIR 1994 SC 1918
 4. Lastly, if the Court invalidates the Proclamation, even if approved by the
Parliament, the action of the President becomes invalid. In such a case, the State
Government would be revived and State Assembly will be restored.

VII. CONCLUSION

Thus, in the end, the author would like to conclude the paper by the saying that this
Article was incorporated in the Constitution with a noble cause of ensuring good
governance among the States and maintaining the unity and integrity of India.
However, it was often misused by the Centre in order to gain control over the States
ruled by other parties. But now, on the basis of the recommendations given by Sarkaria
Commission and the decision of Bommai case, this misused has ended and it is
supposed to be used only in exceptional cases. The Article was also brought under the
judicial review by the virtue of this judgement, which has helped the country in
building a stronger federal structure and its overall development.
 BIBLIOGRAPHY

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1. M.P. Jain, Indian Constitutional Law, (6 Ed., 2011), LexisNexis Butterworths

Wadhwa.

2. www.lawmin.nic.in

3. www.ejcl.org

4. www.interstatecouncil.nic.in

5. www.lex-warrier.in

6. www.judis.nic.in

7. www.lawyersclubindia.com