National Law University Odisha

NATIONAL LAW UNIVERSITY ODISHA

A PROJECT WORK ON CONSTITUTIONAL LAW

TOPIC: MISUSE OF ARTICLE 356

UNDER THE GUIDANCE OF:

MS. RISHIKA KHARE
MR. YOGESH PRATAP SINGH

B.B.A LL.B
SEMESTER II
BATCH 2019-24

SUBMITTED BY:

ABHISHEK RAI (2019/BBALLB/002)

VIPASHA VERMA (2019/BBALLB/058)
SHIVANSHU TRIPATHI (2019/BBALLB/041)

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ACKNOWLEDGEMENT
As a matter of first importance, we want to express our sincere thanks to our subject teachers Ms. Rishika
Khare and Mr. Yogesh Pratap Singh for sharing their valuable thoughts for the successful completion of this
project work. It was only under their guidance and direction that we could finish our project. Their sources
of learning and information were the basis of understanding the essentials of the project.

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INTRODUCTION
Some demonstration comes in the notice on account of its utilisation or abuse. This can likewise be ascribed
to article 356. This article depends on the principle if there is an incident of failure of constitutional
machinery, which is based on the report of the governor of the state under what conditions there is a breach
of issues of state. In light of the report and his watchfulness, the President concludes whether to apply
president rule in the state or not. After the application of the President's rule, the President is vested with
various discretional powers. It was implemented, thinking that the nation has quite recently got its
independence to ensure the rights of its people. For the interests of the resident of the country, this article
will likewise be some assistance. In the event thinking about the outlook of the drafting committee, its
individuals made an arrangement that enables the government to dismiss the chosen government and to
suspend its operation, which is simple to manage the worsened conditions. This has not been the situation
lately. It has been broadly utilised as general nature by the central government against the state government
if it does not stick to the standards supported by the central government. Now it is upon the discretion of the
court and people to decide whether this vital article is being utilised ‘for’ the people or ‘against’ the people
of the country.

SCOPE
The scope of this paper is to objectively examine the provision in the constitution in relation to
implementation of President’s rule. The prime purpose of this project id to critically review the essence of
article 356, its working in practice and the loopholes that needs to be looked into to check the arbitrary
application of the same.

RESEARCH METHODOLOGY
The methodology used for this research project is doctrinal in nature, although related factual data are looked
at from historical point of view. The constitution of India, commentaries, reports of various committees and
commissions, judicial decisions and other reliable sources of information contributes to the data source.

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HISTORICAL BACKGROUND
President's capacity to administer the President's jurisdiction in the territory of India started from the British
colonist time. During the time president rule was applied by the British in India, it was furnished to satisfy
their own goals of the advancement of their realm. The country at that time was going through a
revolutionary change that had its impacts as in riots, partitions, dissipation throughout the country. The
original track record when it comes to the enactment of the President's rule in India is linked to the
Government of India Act, 19351. The governor was provided with the authority to apply emergency powers
in the provinces when there was a need depending on the conditions. Considering the Government of India
Act 1935, Section 93 states that the governor has the right to apply the governor's rule based on the
discretion that at whatever point the governor of a province is satisfied that a condition has ascended in
which the approaches of this Act cannot continue the government of the province, he may by proclamation
announce that his capacities will, to such a degree as might be indicated in the declaration, be practised by
him in his watchfulness2. There was an entire degree of analysis to the establishment of GOI ACT, 1935. It
was applied with the perspective of guaranteeing that the self-assertive forces were given in the hands of the
governor, which did not consent to the standards of majority rule government. The Indian National Congress
contradicted the enactment of GOI ACT 1935; as indicated by them, this had proposition and thoughts which
were ambiguous to what the residents of the nation needed and required around then. After independence
considering the conditions that rose in the country, it was reasoned that there is a need in case of failure of
established constitutional machinery, the governor was to be given a force which was to be based on his
discretion to decide when to take over the power of the province administration, and he was required to
affirm it to the President that the announcement gave by him is bolstered by a report under Article 188 which
guarantees that the governor imparts it to the President about the proclamation of the state, which makes the
necessary fitting move. When asked by the representatives of the constituent assembly, what does “failure of
constitutional machinery” means Dr Br Ambedkar did not pay much heed to it by saying that everyone is
familiar with the meaning and that does not require an explanation 3. The article for the absolute first time
was applied in the year 1951 in the province of Punjab. Article 278(which is now article 356) of the Indian
Constitution vests power with the President that when he is sure that the state elected government is not
adhering to the Constitution outline then he, based on the report of the governor he can expect to himself all

1
Kishore K. Koticha, 'President Intervention Under Article 356 Of The Constitution Of India' (1959) 2(1) 5 Journal of the Indian
Law Institute <https://www.jstor.org/stable/pdf/43952786.pdf?refreqid=excelsior
%3A9ba62138ae5ffb317b6a0278e3e25b12> as accessed 4 February 2020.
2
K.Jayasudha Reddy and Joy V. Joseph, 'Executive Discretion and Article 356 OF The Constitution of India: A Comparative
Critique' (2004) 8 Electronic Journal of Comparative Law <https://www.ejcl.org/81/art81-4.html#par32> as accessed 3 February
2020.
3
J.R. Siwach, 'State Autonomy And The President Rule' (1985) 46(2) The Indian Journal of Political
Science<https://www.jstor.org/stable/pdf/41855162.pdf?refreqid=excelsior%3Abba67a21ffe2bcf806124b73bd4289af> as
accessed 4 February 2020.
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or any of the action of the Government of the State and all or any of the forces vested in or exercisable by
Governor, by and large, or anyone or authority in the state other than the lawmaking body of State4.

SARKARIA COMMISSION

1. BACKGROUND
“Regardless of the safety measures set down in Article 356, the Article was cited on a few events by the
Centre. In 1983, the Sarkaria Commission, headed by Justice R.S. Sarkaria was delegated that went through
four years inquiring about changes to improve Centre-State relations. The Sarkaria Commission Report was
submitted in 1987 that cleared part of the ambiguity encompassing Article 356.

2. SARKARIA’S STAND ON ARTICLE 356

The Sarkaria Commission recommended an uncommon utilization of Article 356. The Commission
remained by the point of the Framers of the Constitution for Article 356 “to be an exemption to the standard
as by virtue of Article 355 it is the obligation of the Union to guarantee that the State Governments are
carried on as per the arrangements of the Constitution.” Also, the Report observed that “…each and every
breach of a constitutional provision, irrespective of its significance, extent and effect, cannot be treated as
constituting failure of constitutional machinery.”5

The Commission, in the wake of looking into recommendations, put before it by many parties, people and
associations, concluded that Article 356 ought to be utilized sparingly, as a last measure, when every single
accessible option had neglected to prevent or redress constitutional machinery in a State. The Commission is
of the view that “all attempts should be made to resolve the crisis at State level before taking recourse to the
provisions of Article 356.”6

According to the Report, “these alternatives maybe dispensed with only in cases of extreme exigency
wherein failure on the part of the Union to take immediate action under Art.356 would lead to disastrous
consequences.”7

4
Dr. Virender Sindhu, 'Historical Background Of Article 356 Of Indian Constitution' (2019) 16(6) 5 Journal of Advances and
Scholarly Researches in Allied Education
<http://ignited.in/File_upload/Download_Article/JASRAE_ISSUE_6_VOL_16_89653.pdf> as accessed 4 February 2020.
5
The Sarkaria Commission Report (1987), para 6.3.23.
6
Ibid, at para 6.8.01.
7
Ibid, at para 6.7.04.
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3. GOVERNOR’S OBLIGATION TO EXPLORE ALTERNATIVES

In a circumstance of political breakdown, the Governor ought to investigate all conceivable outcomes of
having a Governor appreciating lion's share support in the Assembly. In the event that it isn't feasible for
such a Government to be introduced and if new races can be held immediately, the report suggests that the
Governor request the outgoing Ministry to proceed as a caretaker government. The report stated that, “the
Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to
the electorate.”8 And, “during the interim period, the caretaker government should desist from taking any
major policy decision.”9

The report states, “every Proclamation of Emergency is to be laid before each House of Parliament at the
earliest, in any case before the expiry of the two-month period stated in Art.356(3).”10

The State Legislative Assembly should not be dissolved either by the Governor or the President before a
Proclamation issued under Art.356(1) has been laid before Parliament and the latter has had an opportunity
to consider it. The Commission’s Report recommends amending Art.356 suitably to ensure this. 11 Also, it
recommends, “the usage of safeguards that would enable the Parliament to review continuance in force of a
Proclamation.”12

4. THE PROCLAMATION OF EMERGENCY AND THE GOVERNOR’S REPORT

The Report recommends appropriately amending Art.356 to include Proclamation material facts and
grounds which Art.356 (1) is invoked, “this would make the remedy of judicial review on the grounds of
mala fides more meaningful and the check of Parliament over the exercise of this power by the Union
Executive more effective.”13 The Governor’s Report, which is a prerequisite for the President’s Proclamation
under Art.356, 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 or otherwise of the emergency situation
contemplated in Art.356”14. The Commission’s report also recommends, “giving wide publicity in all media
to the Governor’s Report.”15

It is seen from this pre-emptory assessment of the significant sections of the Sarkaria Commission Report
that its suggestions are broad and characterize the relevance and justification of Art.356 in full. The
perspectives on Sri P.V. Rajamannar, previous Chief Justice of the Madras High Court, who headed the
8
Ibid.
9
Ibid
10
Ibid, at para 6.8.05.
11
Ibid, at para 6.8.06
12
Ibid, at para 6.8.07.
13
Ibid, at para 6.8.08.
14
Ibid, at para 6.8.09 and 6.8.10
15
Ibid.
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Inquiry Commission by the State of Tamil Nadu to cover Centre-State relations, agree comprehensively with
the perspectives on the Sarkaria Commission.

Nonetheless, it is appalling that the standards and suggestions given by them are dismissed in the present-
day situation and that moves have been made that are by all appearances against the letter and soul of the
Constitution of India.

5. CONCLUSION

Prior to the imposition of The President’s rule, the Centre should do its best to control the situation in the
State and not use Article 356 in haste and try to settle political scores. During the use of Article 356, it is
suggested that the State be highly careful with it, otherwise it may damage the fabric of the Constitution.

If the ruling party is same at the Centre and in the State Government, the Governor being a mere
constitutional head acting on the advice of the Council of Ministers is right. However, if the ruling party at
the centre and the state government are different, it presents a scope for the governor to act as an agent of the
centre.

Therefore, it is promulgated that for proper functioning of the constitutional machinery, it is compulsory for
the governor to exist as the head of the state and not be affected by the rise and fall of governments. During
the use of his discretionary powers, he must play a constructive role between the centre and the state.

S.R. BOMMAI V. UNION OF INDIA

6. FACTS
Newly elected chief minister of Karnataka, S.R Bommai of Janata Dal filed a writ petition in Karnataka high
court challenging the governor’s decision to implement president’s rule in the state. The president’s rule
came into action because the Janta Dal Party lost confidence following defections of its party leaders. But
then on the next day after the suggestion given by governor to implement the president’s rule, seven out of
nineteen leaders who earlier defected claimed that their signatures were taken by misrepresentation which in
turn making them invalid and thus the claiming leaders were still in the party. On the basis of this very claim
the chief minister along with his leaders met the governor to summon the house to prove the confidence, but
governor sent another report asking president to stick to his original suggestion to Implement article 356(1),
and thus parliament approved its applicability following article 356(3).

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7. JUDGEMENT

KARNATAKA H.C JUDGEMENT

When S.R Bommai filed writ petition in front of Karnataka H.C, a three judges bench was laid to judge the
case. The judgement was that the writ petition got dismissed by the H.C.

SUPREME COURT JUDGEMENT

After debating for almost half of a decade a nine judges constitutional bench was laid down to decide the
case. The S.C came on conclusion that power delegated to president to dismiss a state government is not
absolute that is it has to follow certain conditions. The judgement went on to state that president can issue
this proclamation only after being approved by both the houses of parliament and till time approval is not got
the president will only be able to suspend the legislative assembly by suspending the provisions of the
constitution relating to the legislative assembly. Further quoting the court’s statement that is “The
dissolution of legislative assembly is not a matter of course. It should be resorted to only where it is found
extremely necessary for achieving the purposes of proclamation.” 16

8. CASE COMMENT AND ITS ANALYSIS

However, this case did put an end to the arbitrariness of implementation of president’s rule plus it stated that
the floor of the parliament is the only forum where the confidence in the elected party can be tested and not
the governor’s sole reasoning for that matter as governor is said to be the person of central government. In
its order the S.C said “the chief minister of every state who has to discharge his constitutional functions will
be in perpetual fear of the axe of proclamation falling on him because he has to stand up every time from his
seat without properly discharging his constitutional obligations and achieving the desired target in the
interest of the state,”17 the first impact of this case could be seen in case of Rabri devi government in tenure
of A.B Vajpayee in 1999. Rabri Devi was sacked on 12 th feb 1999 but was reinstated on 8 th march itself
when the central got warned about its loss in the election over the issue.

CRITICAL ANALYSIS
Once called a “Dead Letter” by Dr. Ambedkar ‘article 356’ of Indian constitution has never lived up to his
name, ironically it is one of those articles which have been regularly challenged from time to time for its
application. Article 356 comes under the section of emergency provisions which starts from article 352 and
goes on till 360.

16
SR Bommai VS UOI, (1994) SCC (3)1 AIR 1918.
17
Ibid.
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If we start talking about its introduction into the constitution then we have to mention the debate which took
place on the 4th of august 1949 in the constituent assembly:

Pandit Hirday Nath Kunzru (United Provinces: General): “May I ask my honorable friend to make one point
clear? Is it the purpose of Articles 278 and 278A (Articles 356 and 357) to enable the Central Government to
intervene in Provincial affairs for the sake of good government of the Provinces?”

Dr. Ambedkar: “No, No. The Centre is not given that authority.”

Pandit Hirday Nath Kunzru: “Or only when there is such miss-government in the Province to endanger
public peace?”

Dr. Ambedkar: “Only when the government is not carried on in consonance with the provisions laid down
for the constitutional governance of the Provinces. Whether there is good government or not in the Province
is not for the Centre to determine. I am quite clear on the point 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 as dead letters. If at all they are brought into
operation, I hope the President, who is endowed with these powers, will take proper precautions before
actually suspending the administration of the provinces.”18

However, the present situation in India shows that the ‘dead-letter’ provision - as Dr. Ambedkar hoped it
would be - has become a frequently invoked and not-so-dead Article, as till now more than 30 cases since
1947 of imposing president’s rule has been witnessed. So to prevent its any further misuse, the government
of Mrs.Indira Gandhi constituted a committee under Justice Ranjeet Singh Sarkaria to give report on Union-
State relations, which in turn came up with the provision that it must be used very limitedly only in the cases
of extreme necessity where application of this is left as last resort.

Even after all the reports and provisions laid down for the use of article 356 one can come on conclusion
after his/her research and observation that there is abuse of powers and at same time there is a lack of
effective safeguards further The safeguard of ‘parliamentary approval’ outlined in Article 356(3) - of a
Proclamation under Article 356(1) could be biased because the Party that is in power at the Center generally
dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring a particular
imposition (or failure to impose) of President’s Rule to be wrongful cannot undo the damage already done.19

But we cannot totally disregard the fact that in the state of constitutional deadlock our subject serves as the
only saviour, and mends the situation to the original peaceful state. Further the NCRWC additionally
18
Paper, T. and PAGE, O. (2020). Limitations of Article 356. [online] The Hindu. Available at:
http://www.thehindu.com/op/2003/05/06/stories/2003050600010200.htm [Accessed 4 Feb. 2020].
19
M, P. and Dubbudu, R. (2020). How many times is the President’s Rule imposed so far?. [online] FACTLY. Available at:
https://factly.in/how-many-times-presidents-rule-imposed-so-far-india [Accessed 4 Feb. 2020].
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informed against the nullification concerning Article 356, expressing this would make a lopsidedness in
Union-State relations in maintaining protected administration all through India and that in a lot a larger
number of occasions than not the utilization of Article 356 was unavoidable. Hence, we can say that it won’t
be wrong to say that article 356 serves as a necessary evil.

IS THERE A REQUIREMENT FOR REVISION OF ARTICLE 356?

There goes a truism in the Bengal district that whoever enters the place that is known as Lanka he turns into
the Dasis Ravana, which goes without saying for the government of India as all the 27 states were expelled 20
by INC and Janta party considering it was in the arrangement of their objectives. Even though the ground on
which these choices or moves were made were not sufficient, it was supported as the parties were happy to
demonstrate the majority at the state. The abuse began in the mid-70s. Pandit Jawahar Lal Nehru abused it in
the year 1959 by expelling the communist party who came in power through the election in Kerala. It was
utilized for the most considerable time during the timeframe of 1977-79. The recurrence of abuse was fast
when congress began losing state decisions in the nation. In the year 1975, when the emergency was
proclaimed by then prime minister, Indra Gandhiguaranteed the curtailment of the capacity of judicial
review through the 38th constitutional amendment21, which is given to the President under article 356.

During the residency of Indra Gandhi as Prime minister for 14 years, president rule was forced for the
highest time, i.e., 50 times. After which the Supreme court set down strict regulations on how it should be
implemented under the perception it was frequently abused by the parties who were in power in the case SR
BOMMAI V UNION OF INDIA 22. One of the disappointments was concerning the usage of the President's
standard during the Gujarat riots. Considering the reality that there were around lakhs of individuals in the
exile camp and a few others were charged under the charge sheet gave adequate ground to cause the
legislature to acknowledge to make a move under article 355 and 356. Governor assumes a significant job as
his activities cannot be tested. At the point when thought cautiously, as per law, The Governor can be
terminated from his post by the President, however, the President follows up on the persuasion of the council
of minister, which makes it only one way when the governor wants to act against the desire of the board of
minister. Preferably the President should be named or terminated on the order of the chief minister of the
state to guarantee that the equalisation of power is maintained. When considering the Sarkaria provision

20
J.R. Siwach, 'State Autonomy And The President Rule' (1985) 46(2) 8 The Indian Journal of Political
Science<https://www.jstor.org/stable/pdf/41855162.pdf?refreqid=excelsior%3Abba67a21ffe2bcf806124b73bd4289af> as
accessed 5 February 2020.
21
'The Constitution (Thirty-Eighth Amendment) Act, 1975 National Portal Of India' (India.gov.in, 2020)
<https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-thirty-eighth-amendment-act-1975>
accessed 4 February 2020.
22
SR Bommai v UOI, AIR 1994 SC 1918.
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view, it was based on the viewpoint that emergency provisions were to be used as a last resort when all the
other alternate resources have been exhausted. It was additionally of the view that the utilisation of article
356 for political emergency inside the gathering would be an abuse of intensity. There have been around 13
cases when president rule was forced though the ministry enjoyed the majority. This was applied to manage
intraparty issues or issues which did not require the use of article 356 23. The report of the governor given to
the President needs to be precise and should have all the material facts on which the President is satisfied
with the existence to apply article 356. In the event of political breakdown, the governor should attempt all
the potential other options. If no alternative is left, he can request that the outgoing ministry proceeds as a
guardian government. It will incline to convey everyday activity without making any notable policies. Each
announcement of an emergency should be laid down before the parliament before the completion of a period
of two months laid in Art356(3). Regardless of whether the Ministry in a State has lost the confidence of the
Legislative Assembly or not, ought to be chosen distinctly on the floor of the assembly and no place else.
The declaration must contain the conditions and the grounds after which the President is fulfilled that a
circumstance has emerged where the administration of the State can't be carried on in accordance with the
provisions of the constitution.

JUDICIAL REVIEW
The Constitution neither explicitly accommodates nor does it reject the judicial review of President's
capacity under Art.356. Consequently, the High Courts and the Supreme Court have constrained degree for
judicial review of the decree of President's Rule. This rule has been tested a few times and the topic of
judiciability has emerged for thought in numerous events. Right now, decisions fall into two classes.

Category I

A basic assessment of these choices uncover that the Courts have inclined towards preferring the Union
Government consistently. They have taken the position that they couldn't go into the legitimacy of a
Proclamation under Art.356, as a result of the non-justiciable nature of President's gratification. It is viewed
as that the Parliament is the last authority of the Proclamation and the Courts can't scrutinize the same on
grounds of it being mala fide or on the ground of there being no reason for the activity. In this manner, in
every one of these cases, it was held that there could be no judicial review of the Presidential Proclamation.

Category II

23
Preet Kanwal Kaur Chouhan, 'The Sarkaria Commission Report And Article 356' (2018) 3(2) 694 International journal of
advanced research and development< http://www.advancedjournal.com/archives/2018/vol3/issue2/3-2-233> as accessed 5
February 2020.

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This classification incorporates the cases as per the opinion that the President's "satisfaction" under Art.356
would be available to judicial review, where the same depends on mala fide purpose or dependent on
completely superfluous or unimportant grounds.

, where the same depends on mala fide purpose or dependent on completely superfluous or unimportant
grounds.

CONCLUSION
The expression 'failure of constitutional machinery' is questionable and not definite. Constitution does not
make it clear under what grounds there is a clear indication of 'failure of constitutional machinery.' Along
these lines, this can be deciphered, relying upon the requirements and requests of the central government.
The significant issue is that no political group has a clear stand or viewpoint on article 356, it is appropriated
and abused when they have the force, which clearly explains 'whoever goes to Lanka becomes Ravana.'
There is a requirement of a system of checks and balances to ensure that unlike in the year 1975, there is no
misuse of power. A warning should be issued before implementing article 356 so that the autonomy of the
state is maintained. Federal nature will be damaged on arbitrary usage of article 356, which is also the
primary feature of the constitution. The provisions of article 356 have provided discretionary powers to the
executive. The deletion of article 356 is also not an option. If this happens, then checks created by sub-
clause(3) will not be there, and the central government will be free to act in the name of rectifying the
situations which are not according to the provisions of the constitution. So, the time for removing article 356
has not arrived; instead, there is a requirement of proper use, which requires amendments to the article.

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BIBLIOGRAPHY

Cases

SR Bommai v UOI, AIR 1994 SC 1918...........................................................................................................10

13