This article was written by Krishna Sharma a student of University of Delhi.
“Constitution is not a mere lawyer document, it is a vehicle of life and its spirit is always the spirit of age – B R ambedkar.
INDRODUCTION: Article 356 of the Indian Constitution deals with imposition of President Rule. Months ago, we have heard of imposition of President Rule in the state of Arunachal Pradesh and recently, in the State of Uttarakand. This rule is not something new to Indian states; it’s been imposed almost in every state of India no. of times except newly formed telangana. Earlier, In State of Arunachal Pradesh, political crisis was triggered after 21 of 47 Congress MLAs in the 60-member house, along with 11 BJP and two independent MLAs, extended support to the Deputy Speaker and ousted the Speaker and the Chief Minister in two assembly sessions. When governor sought for imposition of emergency on the ground of Constitutional breakdown. Though it was opposed by the opposition but finally, when it got assent of president and the president rule was imposed in State. This decision was criticized on the ground that act was arbitrary and against the Constitutional principle but centre justified the act on the ground of Constitutional breakdown. Constitution of India under article 356 deals with Constitutional breakdown within a state and imposition of emergency but the word ‘Constitutional breakdown’ is not defined under the article and term is vague. As, the word is not defined under the article it leave a scope for misuse and arbitrariness. In the light of all this, we have to understand what is article 356 of Indian Constitution? How it is implemented? Misuse of this article with the help of important judicial decisions.
What is article 356 of Indian Constitution?
Article 356, is one of the articles among the emergency provisions of the Indian Constitution. It is an article in part XVIII (Article 352- 360).
In India, article 356 is imposed on a state whose Constitutional machinery has failed. In an event that a state government is not able to function as per Constitution, the state comes under the direct control of the central government. In the other words, it is “under President’s rule” subsequently, the executive authority is exercised through the centrally appointed Governor, who has the authority to appoint retired civil servants or other administrators to assist him.
Part XVIII of the Indian Constitution lays down emergency provisions under Article 352-360. Article 352 provides for the proclamation of the emergency with reference to the security of India or any state from war, external aggression and armed rebellion. Article 353 lays down the effect of the proclamation of emergency under 352 and article 354 provides for application of provisions relating to the distribution of revenues while a proclamation, of Emergency is in operation. Article 355 provides for the duty of the Union to protect states against external aggression and internal disturbance and Article 356 provides for emergency Provisions in the case of failure of constitional machinery in state.
In order to understand the emergency provisions, we need to look at the history and intention of the legislature. The emergency provision of the Indian Constitution is pari materia to the emergency provisions under the Government of India Act, 1935. Article 352 and 353 are based on the Section 102 of 1935 act wherein section 102 provided for power of the federal legislature to legislate if an emergency is proclaimed. Section 45 under part II chapter V of the government of India Act, 1935 provided for failure of Constitutional machinery for the federation. Part II chapter VI under section 93 provided for such failures in the provinces.
Now, the wordings of section 355 and 356 reproduce the language used in section 45 and 93 of the Government of India act, 1935. The only point of difference was relating to fundamental rights which were not to be under the 1935 The Article was introduced with the intention of being used in rarest of the rare cases but certainly this has not happened. It is amongst the most used provision under the Indian Constitution. In the draft constitution, Articles 277 and 278 under Part XIII contained the emergency provisions. The present article 356 is a revised and redrafted article.
WHAT ARTICLE 356 SAYS?
Article 356 of the Constitution says if the President, on receipt of a report from the Governor of a State otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of this Constitution, the president may by Proclamation-
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 anybody or authority in the state other than the legislature of the State.
Declare that power of the legislature of the State shall be exercisable by or under the authority of parliament
Make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the
Like ordinances, the Constitution-makers intended for articles 356 to be used only as an ‘emergency provision’. During Constituent assembly debates, Dr. Ambedkar made clear that “whether there is good government or not in the province (state) is not for the centre to determine”, adding that he hoped that article 356 would remain a “dead letter”.
APPLICATION OF THIS ARTICLE?
According to the article, the president on receipt of a report from the governor of a state or otherwise, that the government of the state is not being carried according to Constitutional provisions impose the emergency situations as provided under article 356. The two most important elements of article 356 are:
‘ On receipt of a report from governor or otherwise‘ and
‘A situation has arisen in which the Government of the state cannot be carried on in accordance with the constitution’
The above two element contain a vagueness, which need an exhaustive analysis. These two elements are still clearly laid down and are for debate and criticism.
‘On the receipt of the report from governor or otherwise’
Governor is an executive head of a state. Under Article 159, Governor takes oath and it’s his prime duty of the Governor to protect, preserve and defend Constitutional provisions within State. Continuing the same intention, Article 356 give power to the governor in case of failure of Constitutional machinery within states. With the use of words ‘president…is satisfied that’ establishes that satisfaction of president is very must with the report of the governor.
According to article 163(1), there shall be council of ministers with chief minister at the head to aid and advice the Governor, unless this constitution requires him to exercise his functions or any of them in his discretion. Giving the report under Article 356(1) is not so mentioned in the constitution as a function to be exercised by him in his discretion, it is obvious that in the matter governor reporting to the president that there has been a breakdown of constitutional machinery must necessarily to be matter in which the Governor cannot possibly act on the advice of his Council of ministers, reason being as a result of the report Sate government would be suspended so, The council of minister cannot be expected of sign their own death warrant.
Further, the words ‘or otherwise’ depict that the President can under 356(1) act on the information received from the sources other than Governor’s report. So the president can act on any report either submitted by Governor or any other person or authority. According to Article 74(1) of the constitution, the council of ministers with the prime minister at the head shall aid and advice the president. In the case of Rajasthan v. Union of India, ratio laid down was that, according to article 74(1) whether President has or has not received a report from governor; he can act under Article 356(1) only with the aid and advice of the council of ministers, without which no proclamation under 356 can be an issue.
‘A situation has arisen in which the Government of the state cannot be carried on in accordance with the constitution.’
The president’s action under Article 356(1), in general terms, is referred as imposition of emergency but in case of State of Rajasthan v. Union of India, it was brought out that, when compared with Article 352(1), it is evident that Article 356(1) does not speak of any ‘emergency’ of any kind, the word ‘emergency’ is not used anywhere under article 356. But, in general, terms and due to the consequences provided under article 356 it is generally referred as an emergency.
Now, the words ‘carried on in accordance with the constitution’ should not be interpreted literally. If interpreted literally, it would cover failure on the part of the state Government with regards to all the provisions of the constitution, whatever might be degree and extent of such failure. The machinery of government does not ordinarily fail if this or that provision of the constitution is violated by the acts of the state. Example, an emergency cannot be imposed if a state did not carry out the directive principle of the state. A literal construction of the wide general words of the article 356 which could enable the Union executive to cut at the root of the democratic parliamentary form of government in the states must be rejected in favour of a construction which would preserve that form of government. The exercise of that power must be limited to a ‘failure of constitutional machinery’ that is. To preserving, the parliamentary form of government from internal subversion or from a deliberate deadlock created by the party or a group of parties, or from a deadlock arising from an indecisive electoral verdict which makes the carrying of the government practically impossible. In practice president’s rule is imposed under different conditions such as:
1) State legislature is unable to elect a leader as Chief Minister.
2) Breakdown of the coalition
3) Loss of majority in the assembly
4) Election postponed for unavoidable reasons
If approved by both houses, President’s Rule can continue for 6 months. It can be extended for maximum 3 years with approval of Parliament in every month. If Lok Sabha is dissolved during this time, ruled is valid for 30 days from the sitting of Lok Sabha provided that Continuance has already been approved by Rajya Sabha. The 44th Amendment act of 1978, introduced a new provision to put a restraint on the Power of the parliament to the extend President’s rule in the state. According to this provision, President’s rule can only be extended over a year in every 6 months under following Conditions:
There is National emergency already in whole of India, or in the whole or an part of India.
Election Commission certifies that election cannot be conducted in the concerned state. Although, President’s rule can be revoked any time by the President and it does not need Parliament’s approval.
Sakaria Commission was set up in June 1983 by the central government of India. The Sakaria Commission’s charter was to examine the relationship and balance of power between state and central governments in the country and suggest changes within framework of Constitution of India. Commission consists of 3 members, headed by Justice R S Sakaria, retired judge of Supreme Court and Shri B. Sivaraman and Dr. S. R. Sen.
Commission made a detailed study and submitted its final report of 1600 pages in January, 1988. Final Report contain of 247 recommendations, it include recommendations on Centre – State relations, especially in the areas, relating to legislative matters, role of Governors and Use of Article 356.
Article 356 can understood with the with Sakaria Report submitted in 1987. Commission in its report, opined that when a duly Constituted ministry which has not been defeated on the floor of house, has lost its majority, the ministry must be provided with an opportunity to demonstrate its majority through ‘Floor- test’ by calling an early session of the parliament. If the governor recommends imposition of President’s rule on his subjective assessment that the ministry no longer commands the confidence of the assembly, it would be a case of improper use of the
Power conferred under section 356(1). The report explained the phrase “The government of the State cannot be carried on in accordance with the provisions of this Constitution’ into four situations: political crisis , Internal subversion , physical break-down , Non- compliance with Constitutional direction of the Union Executive.
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.
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 44th Constitutional 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.
States which have come under president’s rule:
Andhra Pradesh – 3 times
Arunachal Pradesh – 3times
Assam – 4 times
Bihar – 8 times
Delhi- 1 time
Goa – 5 times
Gujarat – 5 times
Haryana – 3 times
Himachal Pradesh – 2 times
Jammu & Kashmir – 7 times
Jharkhand – 3 times
Karnataka – 5 times
Kerala – 4 times
Madhya Pradesh – 3 times
Maharashtra – 2 times
Manipur- 10 times
Meghalaya – 2 times
Mizoram – 3 times
Nagaland – 4 times
Orissa- 6 times
Punjab- 8 times
Rajasthan – 4times
Sikkim – 2 times
Tamil Nadu – 3 times
Tripura – 3 times
Uttarakand – 1 time
Uttar Pradesh – 9 times
West Bengal- 4 times
Article 356, gave broad powers to the central government to assert its authority Article 356 gives the Indian Constitution unitary character. The misuse of Article 356 is evident from the number of times it has imposed through the purpose of this article is to give more powers to the central government to preserve the unity and integrity of the nation thereby threatening the federal nature of India. The dead letter has been used more than 100times to dissolve the legitimately elected State government purely guided by political motives.
LANDMARK JUDGEMENT – S. R BOMMAI VS UNION OF INDIA (1994)
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 malafide exercise of the power. Supreme court or High court can strike down the proclamation if it is found to be malafide 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.
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 :
Is there any material behind the proclamation?
Is the material relevant?
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.
Recent instances of imposition article 356:
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”.
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.