Article 356: Legal Analysis

SC stayed an Andhra Pradesh High Court order to embark on a judicial inquiry into
whether there is a constitutional break down in-state machinery. :- Aakchad Nath
In the absence of the Governor’s report recommending the President’s rule, the President
can rely on any other material to conclude that the constitutional machinery in a state
has collapsed. While considering the question of material, the Supreme Court had held
that it is not the personal whim, wish, view, or opinion or the ipse dixit of the President
dehors the material but a legitimate inference drawn from the material placed before him
which is relevant for the purpose.

President’s rule is the suspension of state government and imposition of direct central
government rule in a state. President’s Rule implies the suspension of a state
government and the imposition of direct rule of the Centre. This is achieved through the
invocation of Article 356 of the Constitution by the President on the advice of the Union
Council of Ministers.

Under Article 356, this move can be taken, If the President, on receipt of the report from
the Governor of the State or otherwise, is satisfied that a situation has arisen in which
the government of the State cannot be carried on by the provisions of this Constitution

A proclamation of the President’s Rule can be revoked through a subsequent

proclamation in case the leader of a party produces letters of support from a majority of
members of the Assembly and stakes his claim to form a government. The revocation
does not need the approval of Parliament.

Any proclamation under Article 356 —which stands for six months — has to be
approved by both Houses in the Parliament session following it.

This six-month time frame can be extended in phases, up to three years.

On December 18, 2020, while hearing a petition between The State of Andhra Pradesh &
Ors vs Reddi Govinda Rao, the Supreme Court of India stayed the order passed by the
Andhra Pradesh High Court. About this order, the Bar and Bench reported that “in any
case, have you seen an order like this? As an apex court, we find it disturbing. Issue
notice, stay. List immediately after vacation”.

In this context, it is necessary to put forth the facts of the case. On October 1, the
Andhra Pradesh High Court had passed an order mentioning on the next date, learned
senior counsel appearing on behalf of the State may come prepared to assist the Court
as to whether in the circumstances, which are prevailing in the State of Andhra Pradesh,
the Court can record a finding that there is a constitutional breakdown in the State or
not. The High Court passed this order while hearing more than 15 habeas corpus
petitions questioning the illegal detention of the persons by the police in the State under
Article 226 of the Constitution. The petitioners prayed for producing the persons before
the court by the police. The matter is primarily about the police excesses in the State
and is executive. It seems to appear that the High Court of Andhra Pradesh made the
observations based on Article 356, i.e, imposition of President’s rule in certain situations
as part of emergency provisions. It is uncommon for a high court to make observations
on the status of constitutional breakdown in a State. Only the President of India upon
the receipt of the report from Governor of the State is empowered to proclaim emergency
in case of failure of constitutional machinery in State. Article 356 (1) reads “If the
President, on receipt of a report from the Governor of the State or otherwise, is satisfied
that a situation has arisen in which the government of the State cannot be carried on by
the provisions of this Constitution”

But the writ powers of the courts are not without limitations. These are to be exercised
in coherence with the “rule of law” and within the ambit of the doctrine of separation of
powers. Article 356 needs to be seen in conjunction with other such Articles 352-359
and 360 (financial emergency) and not alone. In the context of judicial control, the
courts do not have suomotu power to extend the scope of judicial review for
promulgating or imposing the President’s rule in the State. While arguing the case of
Griswold v. Connecticut, 381 U.S. 479, 501 (1965), Justice Harlan expressed the need
for judicial self-restraint, “Specific” provisions of the Constitution, no less than “due
process” lend themselves as readily to personal interpretations by judges whose
constitutional outlook is simple to keep the Constitution in supposed tune with the
times. The AP High Court order in this particular case is an indication of the non-self-
restraint judiciary as it appears to have crossed the ‘Laxman Rekha of the Constitution
by entering into the domain of the executive. It equated the police excesses with
constitutional failure, which is factually incorrect.

The AP High Court order is a consequence of not heeding the observations of Kamath. In
the case of State of Rajasthan v. Union of India, AIR 1977 SC 1361, the then Chief
Justice Hameedullah Beg observed that “our difficulty is that the language of Article 356
is so wide and loose that to circumscribe and confine it within a straitjacket will not be
just interpreting or construing it but will be Constitution-making legislation which,
again, does not strictly speak, lie in our domain”.

Since 1950, Article 356 has been misused for political purposes in more than 120
instances. The ambiguity of the word “otherwise” in the provision has been misused by
many of the Governors to dissolve the majority governments in the States. The
imposition of the President’s rule in a State is an exclusive purview of the executive and
not of the judiciary. The AP High Court order stands in violation of the doctrine of the
separation of powers and federal governance. The time has come to remove the word
“otherwise” in Article 356 through a constitutional amendment.

The state has said in its appeal that constitutional courts do not have any judicially
discoverable and manageable standards to determine if there has been a constitutional
breakdown in the state.

The sad fact is essentially an executive function and is necessarily required to be based
on a detailed factual analysis. The courts simply do not have any means to decide such
a question. The order is a serious encroachment on the powers of the executive as
enumerated under the Constitution and is thus violative of the doctrine of separation of
powers, it said while urging the apex court to set aside the order.

Author: Aakchad Nath