NATIONAL LAW INSTITUTE UNIVERSITY

KERWA DAM ROAD

BHOPAL

STATE EMERGENCY UNDER ART. 356

TRIMESTER: V TRIMESTER

SESSION: 2016 – 17

SUBJECT: CONSTITUTIONAL LAW - III

SUBMITTED TO: SUBMITTED BY:

PROF. KULDEEP KAUR JAI PRAKASH

MEENA

2015 B.A.LLB. 69

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 ACKNOWLEDGEMENT

I extend my gratitude to our Professor Kuldeep Kaur Mam for giving me an opportunity to
make a project on this topic and for being a guiding force throughout this submission and being
instrumental in successful completion of this project.
The making of this project involved accessing large number of websites, reading many research
articles and sorting different case, this would have been impossible without the help of my
colleagues and friends who helped me in getting familiar with many websites and authors which
proved to be immensely helpful.
I have made my sincere effort to make this project, yet some mistakes might have crept in, I
apologize for the mistakes that may have taken place inadvertently

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 CONTENTS

 STATEMENT OF PROBLEM ................................................................................ 4

 AIMS AND LEARNING OBJECTIVES ..................................................................... 4
 REVIEW OF LITERATURE ......................................................................................4
 INTRODUCTION ...................................................................................................5
 STATE EMERGENCY………………….. ....................................................................... 7
 HISTORICAL BACKGROUND................................................................................. 8
 ARTICLE 356 IN PRACTICE……………………………………………. ....................................9
 SARKARIA COMMISSION REPORT ……………………………....................................... 12
 GROUNDS OF JUDICIAL REVIEW…………………………..............................................15
 CONSEQUENCES................................................................................................. 18
 THE MISUSE OF ART. 356……………...................................................................... 18
 NEED FOR AMENDING ART. 356 ........................................................................ 19
 PRESIDENT RULE IMPOSED ................................................................................. 21
 CASE ANALYSIS.....................................................................................................24
 RECENT CASES OF PRESIDENT RULE ART. 356…………………………………………………..26
 CONCLUSION…………………………………………………………………………………………………...27
 BIBLIOGRAPHY…………………………………………………………………………………………………28

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 STATEMENT OF PROBLEM
Whether Article 356 should be scrapped. Does Article 356 give unbridled power to the union
government to control all the aspects of a state during the time of the emergency? To what extent
power of Article 356 given to union is abused.

AIMS AND LEARNING OBJECTIVES

1. State Emergency under Art. 356 in Indian Constitution
2. Study of the cases involved
3. Judicial Interpretation of Art. 356
4. Sarkaria Commission

REVIEW OF LITERATURE
1. Art. 356 of The Constitution: A Critical Analysis
By Dr. Seema Sharma, Asst. professor, MMH College, Ghaziabad, U.P.1
2. What is Article 356?
By, Seema Chishti, The Indian Express, New Delhi.2

RESEARCH METHODOLOGY
The research methodology undertaken in this project is Analytical method of research and
Comparative research. Research includes collection of facts and data from various sources like
internet, related books, articles, law generals, etc. The data is also scrounged through various
relevant case laws including various law provisions and statues again from law generals and
volumes.

INTRODUCTION
1
http://lex-warrier.in/2014/04/article-356-constitution-critical-analysis/#identifier_0_4919. Updated on Apr. 3rd,
2014
2
http://indianexpress.com/article/explained/article-356-use-misuse/. Updated on January 27, 2016 7:35 am.

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Article 356 of the constitution empowers the president to issue a proclamation receipt of a report
from the governor of a state, or otherwise too, if he is satisfied that the government of the state
cannot be carried on in accordance with the provisions of the constitution. By that proclamation
he can 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 nay body or authority in the state and
declare that the powers of legislature of that state shall vest in Parliament. He cannot, however,
assume to himself any of the powers vested I or exercisable by a High Court or to suspend,
either in whole or in part, the operation of any provision of the constitution relating to High
Courts.3

Article 356, it is obvious, is inspired by sections 93 of the Government of India Act, 1935.
Section 93 of the 1935 Act provided that if a Governor of a province was satisfied that a situation
has arisen in which the government of the province cannot be carried on in accordance with the
provisions of the said Act, he could, by proclamation, assume to himself all or any of the powers
vested in or exercisable by a provincial body or authority including the Ministry and the
Legislature and to discharge those functions in his discretion. The only exception was that under
this section the Governor could not encroach upon the powers of the High Court. (Section 45
conferred a similar power upon the Governor-General with respect to the Central
Government/Central Legislature). It is well-known that the said two provisions were
incorporated in the 1935 Act to meet certain purposes and exigencies. The 1935 Act
contemplated, for the first time, delegation of certain powers of governance to the Ministries
formed by Indian political parties and constitution of Legislatures elected, no doubt, on a
restricted franchise. 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. The said sections therefore provided that if at any time the
Governor or Governor-General felt that the Ministry in the province or at the Centre was not
acting in accordance with the provisions of said Act, he could resume their powers and exercise
3
Mahindra P. Singh, V.N. Shukla, Constitution of India, Eastern Book Company, edition 11 th, 2011. Pg. 968.

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the same in his discretion. (The provisions of the said Act relating to Central Government were
not brought into operation partly because of the onset of World War II.) 4

STATE EMERGENCY

4
http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm

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A state emergency is declared on failure of constitutional machinery in a state under Art. 356 of
the part XVIII of the Constitution of India. Every state in India except two
states, Chhattisgarh and Telangana has been under a state of emergency at some point of time or
the other. The state of emergency is commonly known as 'President's Rule.

If the President is satisfied, based on the report of the Governor of the concerned state or from
other sources, that the governance in a state cannot be carried out according to the provisions in
the Constitution, he may declare an emergency in the state. Such an emergency must be
approved by the Parliament within a period of two months.

It is imposed for an initial period of six months and can last for a maximum period of three years
with repeated parliamentary approval every six months. The 42nd amendment act of 1976
extended the initial time duration of state emergency from 6 months to 1 year. Subsequently,
44th CAA 1978 restored the 1-year period back to 6 months. Originally, the maximum period of
operation of state emergency was 3 years. This 3-year period was divided into 1 year of ordinary
period and 2 years of extra ordinary period for which certain conditions are to be fulfilled.
Therefore, from now on after every 1 year Parliament needs to approve the same. If the
emergency has to be extended for more than three years, it can be done by a constitutional
amendment, as has happened in Punjab and Jammu and Kashmir. During such an emergency, the
President can take over the entire work of the executive, and the Governor administers the state
in the name of the President. the Legislative Assembly can be dissolved or may remain in
suspended animation. The Parliament makes laws on the 66 subjects of the state list. All money
bills have to be referred to the Parliament for approval. In this occasion ministers of state
legislature do not perform actions in state.5

This is an emergency provision where the union government may extend its powers into domains
normally reserved for the states. Both houses of the parliament must ratify this proclamation:
failure to do this would result in the proclamation expiring in two months. If the proclamation is
ratified, it cannot last beyond six months. The use of the word ‘otherwise’ which was not

5
https://en.wikipedia.org/wiki/State_of_Emergency_in_India

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included in the original draft, has received a lot of flak over the years, as it makes the president
more sto pressure from those in power .6

HISTORICAL BACKGROUND

Article 356, it is obvious, is inspired by sections 93 of the Government of India Act, 1935.
Section 93 of the 1935 Act provided that if a Governor of a province was satisfied that a situation
has arisen in which the government of the province cannot be carried on in accordance with the
provisions of the said Act, he could, by proclamation, assume to himself all or any of the powers
vested in or exercisable by a provincial body or authority including the Ministry and the
Legislature and to discharge those functions in his discretion. The only exception was that under
this section the Governor could not encroach upon the powers of the High Court. (Section 45
conferred a similar power upon the Governor-General with respect to the Central
Government/Central Legislature). It is well-known that the said two provisions were
incorporated in the 1935 Act to meet certain purposes and exigencies. The 1935 Act
contemplated, for the first time, delegation of certain powers of governance to the Ministries
formed by Indian political parties and constitution of Legislatures elected, no doubt, on a
restricted franchise. 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. The said sections therefore provided that if at any time the
Governor or Governor-General felt that the Ministry in the province or at the Centre was not
acting in accordance with the provisions of said Act, he could resume their powers and exercise
the same in his discretion. (The provisions of the said Act relating to Central Government were
not brought into operation partly because of the onset of World War II.)7

Doubts and fears were expressed in the constitution assembly that this power in the hands of the
chief executive might be misused by the Centre against the states for partisan ends when the
parties governing the Centre and the states would be different. Prof. Shibban Lal Saxena felt that

6
http://lex-warrier.in/2014/04/article-356-constitution-critical-analysis/#identifier_3_4919. Accessed on
5/12/2016 at 7:37 IST.
7
Supra note 2. Accesses on 5/12/16 at 7:44 IST

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by these Articles, the autonomy of the states had been reduced to a farce. 8Pandit H.N. Kunzur
maintained that the instability resulting from a large no. of political groups in a state legislature
would not justify central intervention. Dr. Ambedkar hesistantly admitted to the possibility of the
emergency provisions being employed for political reasons by stating:

“The proper thing we ought to expect is that such article will never be called into operation and
that they would remain a dead letter.9

ART. 356 IN PRACTICE

Article 356 and 357 provides that if a situation arises from the failure of the constitutional
machinery in a state, the President on the receipt of the report from the Governor is “satisfied”
that the situation arises in which the government of the state cannot carry out its function as per
the provisions of the Constitution and the President proclaims10 :

A. assumes to himself all or any of the function of the State Government or the power of the
Governor or anybody authority in the State other than the state legislature.

B. declares that the powers of the State Legislature are to be exercised by Parliament.

C. make such incidental provisions as may appear to him necessary or desirable for giving effect
to the provision of proclamation.

Article 357 adds to the meaning of Article 356(1)(b)which provides that when the State
legislature does not have a power to make laws under 356(1)(b) the power is transferred to the
Union Parliament11

Art. 357 provides the manner in which the legislative powers of a state which under the
President’s proclamation are declared to vest in Parliament, are to be exercised. It states that the
union Parliament may delegate the power to make laws for the state to the President or to any
other authority specified by him in this behalf. Power is given to the President when the House of
People is not in session, to authorize expenditure from the Consolidated Fund of the State

8
Constituent Assembly Debates, Vol. IX at 144
9
Ibid at 177
10
M.P. Jain, INDIAN CONSTITUTIONAL LAW, 751, Wadhawa Nagpur, 6th Edition 2012
11
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 11005, Wadhwa And Company Law
Publishers 13th Edition.

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pending sanction of such expenditure by Parliament. The President can also issue Ordinances for
the State under Art. 123.

The Scheme providing safeguards against the breakdown of the constitutional machinery in the
state underwent 3 imp. Changes at the consideration stage of the Draft in the Constituent
Assembly.

In the First place, Art. 188 was deleted with the result that now it is the President alone who
can, in case of a breakdown of the constitutional machinery in a State, assume the functions of
the government of the State. Art. 356 as originally proposes provided that the Governor of a
State should have the power to take over the administration of the State by proclamation for two
weeks and then communicate to the President of the Union that the constitutional machinery had
failed and that he had issued a proclamation taking over the administration. Only on the report
made by the Governor could the President act under Art. 356.The change was introduced by the
drafting Committee because it was felt that no useful purpose would be served if there was a real
emergency in which the President was required to act by giving to the Governor, in the first
instance, the power of suspending the Constitution merely for 2 weeks, if the President was
ultimately to take the responsibility of entering into the State’s field in order to suspend the
constitution, it was much better that the President should come into the field right at the very
beginning.

In the second place, the power of the president under the new article can be exercised on a
report of the governor of a state or on his own initiative. Under the original article, he could not
issue a proclamation taking over the administration of a state except on a report from the
Governor preceded by a Proclamation by the Governor under Article 188.

Under the present Art. 356 the president may act forthwith, if he is satisfied that such events
have occurred in a state which involve the special responsibility placed upon the Centre to
maintain the constitutional order in a State.

Thirdly, under the original article Parliament was not authorized to confer the powers of the
legislature of the state on the President. The authority and powers of the legislature of the state
were exercisable only by Parliament. The change has been effected, as explained by the
chairman of the Drafting Committee, because Parliament may have too much work to attend to
be able to deal with legislation for a State whose legislature had been suspended.

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Duration- The duration of a proclamation issued under Art. 356 is two months. If after two
months the proclamation is to be continued, it has to be ratified by the Parliament. Where
Parliament has ratified a proclamation, it will be an operation for six months and further
continuance should be sanctioned by Parliament. As amended by the forty- fourth Amendment, a
proclamation under Art. 356 will continue for six months from the date of its issue, any may
subsequently be extended for another six months. However, for further extension beyond the
expiration of one year a resolution may not be passed by either House of Parliament unless a
proclamation of emergency is in operation and it is certified by the Election Commission that it
is necessary for such a proclamation to continue in view of the difficulties in holding elections in
the State. An outside limit of three years is prescribed.12

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. Firstly, 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). 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 discretio n.  The present
Constitution has separated the two powers: the President, assuming executive powers, and the
Union Parliament, assuming legislative powers.13

The Sarkaria Commission Report, 1987

12
Mahindra P. Singh ,V.N. Shukla, Constitution of India, Eastern Book Company, edition 11 th, 2011. Pg. 968-970.-

13
EJCL Vol. 8.1, March 2004, EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA: A
Comparative Critique, by K. Jayasudha Reddy and Joy V. Joseph. Also available on http://www.ejcl.org/81/art81-
4.html#N_1_, accessed on 6/12/16 at 12:23 IST.

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In spite of the precautions laid down in Article 356, the Article was invoked on several occasions
by the Center due to ambiguities in its wording. It was only in 1987 when the Sarkaria
Commission submitted its report that part of the obscurity surrounding Article 356 was cleared.
The Commission, headed by Justice R.S. Sarkaria, was appointed in 1983 and spent four years
researching reforms to improve Center-State relations.14
The Sarkaria Commission examined this issue in Chapter Six of its Report. It pointed out in the
first instance that the use of article 356 has been rising with the passage of time. Whereas
between 1950 and 1954, it was invoked only on 03 occasions, it was invoked on 09 occasions
between 1965 and 1969; it rose to 21 instances during the period 1975-1979 and to 18 during the
period 1980-1987. The Commission examined the historical background to articles 355 and 356
and explained that the said provisions are not unprecedented. It referred to similar provisions in
the U.S. Constitution and in the Government of India Act, 1935. It also quoted the speech of Dr.
Ambedkar (which has been quoted hereinbefore) pointing out that the possibility of abuse cannot
be a ground for not incorporating such a provision and the hope expressed by him that the said
two articles will never be called into operation and that they would remain a dead letter. The
Commission observed: "6.2.14 - In sum, the Constitution-framers conceived these provisions as
more than a mere grant of overriding powers to the Union over the States. They regarded them as
a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative
government in States responsible to the people. They expected that these extraordinary
provisions would be called into operation rarely, in extreme cases, as a last resort when all
alternative correctives fail. Despite the hopes and expectations so emphatically expressed by the
framers, in the last 37 years, article 356 has been brought into action no less than 75 times". The
Commission then examined the scope and effect of article 355 as well as article 356. While
examining article 355, it referred to similar provisions in the Swiss and West German
Constitutions as well. It then opined that where a State is confronted with external aggression or
'internal disturbance' (the expression occurring before the 44th Amendment Act), it is open to the
Union to adopt all alternative courses available to it to perform its duty of protecting the State.
So far as the last mentioned duty in article 355 is concerned, the Commission opined that it has
to be discharged in accordance with article 356. It then examined the scope and effect of article

14
Ibid.

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356 and pointed out that it is necessary in the first instance to understand the true import and
ambit of this provision. The Sarkaria Commission noted that it is not each and every departure
from the provisions of the Constitution that attracts the said article but only a situation where it
can be said that there has been a "failure of the constitutional machinery". A liberal interpretation
of article 356, the Commission pointed out, will reduce the States to mere dependencies and
would cut at the root of the democratic, parliamentary, federal form of government. The
Commission then pointed out that 'failure of constitutional machinery' can be examined under
four heads, namely, (a) political crisis, (b) internal subversion, (c) physical breakdown and (d)
non-compliance with constitutional directions of the Union Executive. It examined each of the
said situations and opined that in case of political crisis, it would be the duty of the Governor to
explore all possibilities for installing a viable government and if he finds that it is not possible to
do so, and if fresh elections can be held without avoidable delay, he should ask the outgoing
Ministry to continue as a caretaker government provided it was not defeated on the grounds of
mal-administration and corruption; he should then dissolve the Assembly. The Commission also
warned that invoking article 356 for solving the political crises in the ruling party was an
instance of misuse. Regarding internal subversion, it said that if any State government
deliberately pursues an unconstitutional policy it would be a case calling for the invocation of
this power but after giving due warnings and opportunity for corrective measures. It then gave
instances of physical breakdown such as internal disturbance leading to the paralysis of the State
administration, and natural calamities. Coming to non-compliance with constitutional directions
of the Union Government, the Commission pointed out that if the State Government does not
comply with any directions issued under article 256, 257 or 339(2) - or under article 353 during
an emergency - in spite of due warnings, it may invite the power under article 356. Similarly, the
Commission pointed out, if a public disorder of a significant magnitude endangering the security
of the State takes place, it is the duty of the State Government to inform the Centre of such
development and if it fails to do so, it may again invite article 356, subject of course to prior
warnings. The Commission set out certain illustrations where it can be said that it is a case of
improper invoking of article 356. It then dealt with the wholesale dismissal of Assemblies in
1977 and 1980 and also analyzed the decision of the Supreme Court in State of Rajasthan. So far
as the recommendations made by the Sarkaria Commission are concerned, they are being dealt
with elsewhere.

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The views of the Sarkaria Commission that the extraordinary provisions contained in article 356
would be called into operation rarely, in extreme cases, as a last resort when all alternative
correctives fail find echo in the views expressed by the founding fathers.  The abuse of this
article can be prevented only by way of reverting to the narrow sense in which it had been
explained and understood by them.15  The narrow sense of this article emerges very clearly from
the words of Shri Alladi Krishnaswamy Ayyar:
 
“The primary thing concerning the nation and the Union Government is ‘to
maintain the Constitution’.  If the import of that expression is fully realised, it will
be noticed that there cannot be any intention to interfere with the provincial
constitution, because the provincial constitution is a part of the Constitution of the
Union.  Therefore, it is the duty of the Union Government to protect (the States)
against external aggression, internal disturbance and domestic chaos and to see
that the Constitution is worked in a proper manner both in the States and in the
Union.  If the Constitution  is worked in  a proper manner in the  provinces or in
the States, that is, if responsible government as contemplated by the Constitution
functions properly, the Union will not and cannot  interfere .”16
 The views expressed in the Constituent Assembly and reiterated by the Sarkaria Commission get
support from the Supreme Court in relation to the cases about the interpretation of the provisions
of the Constitution. The following observations of the Supreme Court can very well be cited in
support of the proposition that the provisions of article 356 should be interpreted literally and in
a narrow sense:

“An argument founded on what is claimed to be the spirit of the Constitution is always attractive
for it has a powerful appeal to sentiment and emotion; but a Court of law has to gather the spirit
of the Constitution from the language of the Constitution.  What one may believe or think to be
the spirit of the Constitution cannot prevail if the language of the Constitution does not support
that view.”17

15
Advisory Panel on Union-State Relations, Justice Shri R.S. Sarkaria, May 11, 2001. Also available on
http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm. Accessed on 6/12/16 at 12;47 IST.
16
Constituent Assembly Debates, Vol. IX, pg. 150
17
S.R. Das J. in  Keshavan v. State of Bombay AIR  1951 S.C.  128 at p.129

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 GROUNDS OF JUDICIAL REVIEW
Judiciary now has assumed an important role to check the misuse of this provision. Prior to the
case of State of Rajasthan v. Union of India 18, the high courts were of view that there could be no
judicial review of the satisfaction of the President. 19 In State of Rajasthan v. Union of India the
major issue was the scope of the power of the President under Art. 356 and its reviewability by
the court. The court was of the view that in spite of the ‘ouster clause inserted by the 38 th
Amendment20, but deleted by the 44th Amendment, it could exercise ‘minimal judicial review if
the power was abused by the executive. It was made specific that the court could interfere with
overtly mala fide exercise of power or exercise on irrelevant considerations.

Chandrachud J. felt that if the reasons for the exercise of discretion were not disclosed, exercise
of discretion could not be reviewed. If the reasons were disclosed, judicial review could be
exercised for the limited purpose of seeing whether there was any rational nexus between the
reasons disclosed and the action proposed.

Bhagwati and Gupta, JJ. supported review on grounds of mala fides or extraneous or irrelevant
grounds. Beg, C.J. also upheld the power of the court to examine jurisdictional questions. He was
rather careful in advocating any interference with the exercise of discretion under Art. 356 unless
it was shown to be grossly perverse and unreasonable as to constitute a patent misuse of power
or an excess of power on admitted facts.

The Supreme Court decided few matters in S.R Bommai v. Union of India 21 where a nine-Judge
Bench produced seven different opinions. About the imposition of President’s Rule in Karnataka
and in some of the other States the court held that it was in violation of the constitution and the
court would have invalidated it and restored the original position but for the fact that the fresh
election had taken place in the meantime and new governments had been installed in those
States. Almost all the judges emphasized that the constitution provides for a federal structure.
Some of them also held that federalism is the basic structure of the constitution. President’s
power under Art. 356 must be read in that context. It cannot be exercised at will. Article 356

18
AIR 1977 SC1361
19
Supra note 4, accessed on 6/12/16 at 2:14 IST
20

21
AIR 1990 Kant 5(FB)

15 | P a g e
specifically provides the conditions which should be satisfied before the President exercises
power under it. Though the satisfaction of the president is subjective, it has to be based on
objective facts. For this reason all the Judges unanimously held that the exercise of power under
Art. 356 was subject to judicial review. They were unanimous that the satisfaction of the
President must be formed on relevant materials. It can be struck down by the court if it is based
on wholly irrelevant or extraneous grounds. The action could also be struck down if it was found
to be mala fide. The President is under an obligation to produce the material on which the action
under Art. 356(1) is based. The court could not go into the correctness of the material or its
adequacy but it could see whether it was relevant to the action. Art. 74(2) should not come in the
way of the court in making such an enquiry. If the court came to the conclusion that the
President’s action was unconstitutional it could restore the dismissed government to its office
and revive and reactivate the Legislative Assembly whether it was dissolved or kept under
suspension.

The court heavily relied on Justice Sarkaria Commission Report for the purpose of determining
the circumstances and the conditions subject to which President could act under Art. 356. The
commission in its report has broadly classified the instances of failure of constitutional
machinery into

a) political crisis where it is not possible to form a government in the State,

b) internal subversion where for example a government is deliberately acting against the
Constitution and the law or is fomenting a violent revolt or revolution,

c) physical breakdown where the government wilfully refuses to discharge its constitutional
obligations endangering the security of the State, and

d) non-compliance with constitutional directions of the Union Government, for example

under Articles 256, 257, 339(2) or 353.

The report also illustrated improper exercise of power under Art. 356 such as

i. maladministration in a state,

16 | P a g e
 ii. non-exploration of the possibility of installing an alternative government in case of
resignation or dismissal of a government in State,

iii. removal of a government which has not been defeated at the floor of the House and has
not been given an opportunity to prove its majority,

iv. massive defeat of a political party in Lok Sabha elections such as in 1977 and 1980,

v. internal disturbances not amounting to internal subversions or physical breakdown,

vi. exercise of the power without prior warning except in case of extreme urgency leading to
disastrous consequences,

vii. stringent financial exigencies of a State,

viii. allegation of corruption against a ministry and

ix. exercise of power for a purpose extraneous or irrelevant to the one for which it has been
conferred by the Constitution.

It is also recommended suitable amendment of Art. 356 to ensure that the State Legislative
Assembly is not dissolved before the proclamation has been laid before the Parliament and
considered by it and safeguard similar to those under clauses (7) and (8) of Art. 352 should also
be incorporated in Art. 356 providing for the review of the continuance of the proclamation.

Most of these recommendations were incorporated in the Court’s judgment in S.R. Bommai case
where the court also held that though on the proclamation under Art. 356(1) a State Government
has to go, the State Assembly should be dissolved only after the Parliament approves such
proclamation. In case Parliament fails to approve the Proclamation the Assembly should get
reactivated. One of the important aspects of the case is the unanimous recognition by the court
that Secularism is one of the basic features of the Indian Constitution and any State Government
which acts against secularism acts against the constitution against which Art. 356 may be
invoked.22

22
Supra note 1, pg. 970-975

17 | P a g e
 CONSEQUENCES

During the President’s rule in a Sate under Art. 356(1) the Legislative Assembly may either be
dissolved or suspended. If the Legislative Assembly is dissolved, steps are taken to have fresh
elections for constituting a new Legislative Assembly in the state. The Legislative Assembly
may also be suspended as it happened, for example, in 1996 in Punjab, in 1967 in Rajasthan, in
1968 in Uttar Pradesh, in 1969 in Bihar, in 1974 in Gujarat and in 1975 in Nagaland and so on.
During this period, by virtue of clause (1) of Article 35, Parliament id empowered: (i) to confer
powers on the president for making laws for the state and to authorize him further to delegate
such power to any other authority, (ii) to authorize the President or any other authority on his
behalf for making laws and imposing duties upon the Union or its officers or other authority, and
(iii) to authorize expenditure from the consolidated Fund of State when the House of People is
not in session. So far the practice has been for the President to enact laws for a state during the
President’s rule in consultation with the members of Parliament from the State. The
administration is delegated by the President to the Governor of the State, who discharges his
responsibility with the help of advisors. During this period, the ministers do not stay in office, or
else they may be dismissed from their office. Art 356 itself enables the President to make
incidental or consequential provisions. These provisions are such as may appear to the President
to be necessary for giving effect to the objects of the Proclamation. Under the terms of clause (c)
of Art. 356(1), their validity or legality is not justiciable being a matter entirely for the subjective
satisfaction of the President.23

THE MISUSE OF ARTICLE 356-

A cursory glance at the data shows that this has been far from the truth. Sakaria Commission
notes that since independence, it has been used over 100times.

23
Supra note 1, pg.977

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Perfectly legitimate state government 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 government 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 that year 1971
to 1984, it was used 59times 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 the even the presidential order
clamping article 356 through the 38th constitutional Amendment. However, thanks to
44thConstitutional amendment Act brought forth in 1978 by Morarji Desai, the original article
356, as envisaged by Dr. Ambedkar, was restored.

 Manipur has been the most frequent application of the Article 356. The deeply fragmented
internal politics of the state, as well as long periods of violence, have led Union government to
impose its fiat on the State.

Besides Manipur, the politically crucial States of UP and Bihar, with fragmented polity , have
been on the centre’s radar for long.24

NEED FOR AMENDING ART. 356

In the light of the above facts, 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 deleted 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,
24
Krishna Kumar, President Rule: Analysis of Article 356, University of Delhi, July 10, 2016. Also available at
http://racolblegal.com/president-rule-analysis-of-article-356/. Accessed on 6/12/16 at 3:35 IST

19 | P a g e
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. We are therefore not in favour of deleting article 356. If, however, Art. 356
(and the consequential article 357) is to be deleted then certain other provisions too require to be
deleted viz., (i) 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 (ii) Art. 365, in its entirety.
But then what would one say regarding Art. 256 and 257 *, 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, we feel that the stage has not yet arrived in our
constitutional development, where we can recommend the deletion of Art. 356. What is required
is its proper use and that has to be ensured by appropriate amendments to the article.25

25
Supra note 11, Also available at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm. Accessed on 6/12/16 at 3:37
IST.

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 PRESIDENT RULE IMPOSED

States Which Have Come Under President’s Rule:

1. Andhra Pradesh – 3 times

2. Arunachal Pradesh – 3times
3. Assam – 4 times
4. Bihar – 8 times
5. Delhi- 1 time
26
https://factly.in/how-many-times-presidents-rule-imposed-so-far-india/. Accessed on 6/12/16 at 3:41 IST.

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 6. Goa – 5 times
7. Gujarat – 5 times
8. Haryana – 3 times
9. Himachal Pradesh – 2 times
10. Jammu & Kashmir – 7 times
11. Jharkhand – 3 times
12. Karnataka – 5 times
13. Kerala – 4 times
14. Madhya Pradesh – 3 times
15. Maharashtra – 2 times
16. Manipur- 10 times
17. Meghalaya – 2 times
18. Mizoram – 3 times
19. Nagaland – 4 times
20. Orissa- 6 times
21. Punjab- 8 times
22. Rajasthan – 4times
23. Sikkim – 2 times
24. Tamil Nadu – 3 times
25. Tripura – 3 times
26. Uttarakhand – 1 time
27. Uttar Pradesh – 9 times
28. West Bengal- 4 times.27

27
Supra note 20

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 28

CASE ANALYSIS
28
Supra note 22

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S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) 

In 1994, the Supreme Court delivered the landmark judgment in SR Bommai case, where the
court discussed at length provisions of Article 356 and related Issues. This case had huge impact
on Centre – State Relations. The misemploy of Article 356 was stopped after this judgment.

Facts- Between,1988 and 1993 the state governments of Karnataka, Meghalaya, Himachal
Pradesh, Madhya Pradesh, Rajasthan and Nagaland were put Under President’s rule and several
petitions challenging them were filed in the Court. As a result the Supreme Court took up the
case with 9 judges’ bench in October 1993.

Questions came in front of Supreme Court was 1st; Whether the Presidential Proclamation under
Article 356 was justifiable and if so, up to what extend?

2) Whether president has unfettered powers to issue Proclamation under 356 (1) of the
Constitution?

Answering the 1st questing, Supreme Court proclaimed that Article 356 (1) is not immune from
judicial review. The validity of proclamation made by president under 356(1) is judicially
renewable to the extent to check whether it was issued on some material basis or whether that
material was relevant to the action or it was a mala fide exercise of the power. Supreme Court or
High court can strike down the proclamation if it is found to be mala fide or based on wholly
irrelevant or extraneous ground.

Coming to the 2nd question, powers of the President is not absolute but conditioned power. This
satisfaction may be formed on the basis of the report of the Governor or on the basis of the
information received by him or both. The existence of relevant material is the pre-condition for
the formation of satisfaction. The dissolution of the legislative Assembly should be resorted to
only when it is necessary for achieving the purpose of the proclamation. The exercise of the
power is made subject to approval of the both houses of Parliament.

In the Bommai Case, the apex court cited the strengthening of regional parties to posit that it is
no longer the prerogative of Union government to determine the quality of governance run by a
different party was bound to raise eyebrows.

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Guidelines laid down by the Supreme Court as to prevent misuse of A356 of the Constitution-

 The majority enjoyed by the council of ministers shall be tested on the Floor of the
House.
 Centre should give a warning to the state and a time period of one week to reply.
 The Court cannot question the advice tendered by the Council of the ministers to the
President but it can question the material behind the satisfaction of the president. , Hence,
Judicial review  will involve three questions only :
1. Is there any material behind the proclamation?
2. Is the material relevant?
3. Was there any mala fide use of Power?

 If there is improper use of Article 356 then the Court will provide remedy.
 Under Article 356(3) it is the limitation on the powers of the President. Hence, the
President shall not take any irreversible action until the proclamation is approved by the
parliament i.e. he shall not dissolve the assembly.
 Article 356 is justified only when there is a breakdown of Constitutional machinery and
not administrative machinery.
 Article 356 shall be used sparingly by the Centre; otherwise it is likely to destroy the
Constitutional structure between the Centre and the State.29

RECENT INSTANCES OF IMPOSITION ARTICLE 356:

29
Supra note 20. Accessed on 6/12/16 at 3:50 IST.

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  President’s rule was imposed in Delhi with the Assembly in suspended animation from
February 14, 2014 to February 11, 2015. This was after Arvind kejriwal resigned as CM
after his move introduce the Jan Lokpal Bill fell through in the Assembly

 Imposed in Maharashtra from September 28, 2014 to October 31, 2014 after Prithiviraj
Chavan resigned following the break- up of 15 year old Congress- NCP alliance in the state.
 In Andhra Pradesh from February 28,2014 to June 8,2014 due to a political crisis caused
by the resignation of CM N Kiran Reddy and Other Congress legislator on February 19,
protesting against the Andhra Pradesh Reorganization Bill that bifurcated the State and
Created a separate State of Telegana.
 In Jharkhand from January 18, 2013 to July 12, 2013, as the Arjun Munda – led BJP
government was reduced to minority after Jharkhand Mukti Mocha withdrew support .
Munda resigned and sought dissolution of the State Assembly.

 The Supreme Court in January 2006 declared the dissolution of the Bihar assembly as
null and void in the Buta Singh case. It held that the governor’s report could not be taken at
face value and must be verified by the council of the ministers before being used as the basis
for imposing President’s rule

 In March 27, 2016 in the State of Uttarakand was brought under the President rule’s on
the ground of “breakdown of governance”.

CONCLUSION

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Article 356 was borrowed pari materia from the Government of India act, 1935. Remembering
the words of Indian Constitution , this article suppose to be use under rarest of rare cases but
evidently, we have seen its been used over 100 times till now and misuse of Article 356.

Quoting the word of Soli Sorabjee, (former attorney general) in his interview to Indian Express,
“The Governor’s report is a crucial document in the case. If the report is not swayed by
extraneous considerations and makes a cogent case of the failure of Constitutional machinery in
the state, then President’s Rule is not only justified, but imperative,”

India Constitution is supposed to be quasi federal. Article 356 is not suppose to be use to destroy
that autonomy of the states. SR Bommai case, Supreme Court decided that article 356 to be use
in extreme case where Constitutional machinery has completely and provided guideline for its
misemployment. It needs to be used in proper cases otherwise harms of the basic features of
Indian Constitution that it’s federal structure otherwise it will become a Unitary Constitution. It
needed to be understood that only the spirit of “Cooperative federalism” can preserve the balance
between the Union and the State and promote the good in the people and not an attitude of
dominance and superiority. Under Our Constitutional System, No entity can claim superiority.

BIBLIOGRAPHY

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  DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,
(Wadhwa and company Law publishers 13th edition).
 Dr. Seema Sharma, Article 356 of the Constitution: A critical Analysis (2014), http://lex-
warrier.in/2014/04/article- 356-constitution-critical-analysis/.
 JAIN, M.P., INDIAN CONSTITUTIONAL LAW, (Wadhawa Nagpur, 6th Edition
2012).
 R.S. Sarkaria, A consultation Paper on Article 356 of the Constitution (2001),
http://lawmin.nic.in/ncrwc/final report/v2b2-
 SINGH MAHENDER PAL, V.N. SHUKLA‟S CONSTITUTION OF INDIA,
1025(Eastern Book Company, 11th Edition 2011).
 Soli J. Sorabjee, Decision of the Supreme Court in S.R. Bommai v. Union of India: A
critique, http://www.ebcindia.com/lawyer/articles/94v3a1.htm, last visited on 18
November 2014 at 9:07PM

 http://www.ejcl.org.

 http://racolblegal.com.

 https://factly.in.

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