Presidential rule in states


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Presidential rule in states

  1. 1. PRESIDENTIAL RULE INSTATESArticle 356Article 356 of the Constitution of India, which deals with presidentialdiscretionary powers of emergency, has long been the favored topic ofpolitical debate and, at times, the cause of much ire within the legalintellectual community in India. This paper examines the rationale behind theinvocation of this Article by almost every Government that came to power inIndia and its implications for the democratic structure of India. Gurjot Singh UG201113013 10/31/2012
  2. 2. 10/31/2012CONTENT TABLE Introduction What is Article 356? Development of Article 356 When is Presidential rule imposed? Instances of Presidents Rule Importance of Article 356 Criticism of Article 356 1
  3. 3. 10/31/2012Judicial Review and Article 356 The Sarkaria Commission report, 1987 The Current Situation in India Failure to invoke emergency powers Conclusions Refrences/ BibliographyAcknowledgement 2
  4. 4. 10/31/2012INTRODUCTIONThe article 356 pertaining to the Indian Constitution has beenoften regarded as the reason behind serious problems. Indianhistory is eventful with facts where Article 356 has been misusedand wrongful advantage of power has been made. In very simpleterms this article deals with the rules which allow the Centregovernment to dissolve the state governments to dissolve the stategovernments if it can be established that there is total anarchy inthe state concerned. Very often the problem arises when the stateand the central governments are being administered by differentpolitical parties.The essence of the Article is that upon the breachof certain defined state of affairs, as ascertained and reported bythe Governor of the State concerned (or otherwise)the Presidentconcludes that the „constitutional machinery‟ in the State hasfailed. Thereupon thePresident makes a „Proclamation ofEmergency,‟ dismissing the State Legislature and Executive.During a state of emergency, the President is vested withtremendousdiscretionary powers.Any legislation or Though the purpose of this article is to give more powers to central government toconstitutional provision preserve the unity and integrity of thethat abrogates any of nation, it has often been misusedby thethe basic principles of ruling parties at the center. It has beendemocratic freedom is used as a pretext to dissolve stateanathema to most governments ruled by political opponents.people and the more soto the people of thelargest democracy in theworld. Having just gained independence after a long andcontinuous struggle, the people of India would naturally have thegreatest interest in preserving all thefreedoms envisioned in ademocratic society. If the members of the Drafting Committee of 3
  5. 5. 10/31/2012the Constitution included a provision that permits a Governmentto dismiss a duly elected representative body of the people andsuspend those freedoms in violation of even the crudestinterpretation of a „separation of powers,‟ then common sensesuggests that it is only to deal with the direst of circumstancesand nothing less. But it seems that the remedial nature of theArticle has been perverted to impose the domination of theCentral Government upon a State Government that does notsubscribe to its views. Central control over regional governmentsis essential for the integrity of nations that have federal systemsof government, and Article 356 was designed to preserve thisintegrity, but what remains to be seen is whether it is being usedat the cost of sacrificing the interests of democratic freedom.WHAT IS ARTICLE 356?Article 356 Provisions in case of failure of constitutionalmachinery in States(1) If the President, on receipt of a report from the Governor of aState or otherwise, is satisfied that a situation has arisen in whichthe government of the State cannot be carried on in accordancewith the provisions of this Constitution, the President may byProclamation - (a) 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; (b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) 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 4
  6. 6. 10/31/2012 provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State: Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.(2) Any such Proclamation may be revoked or varied by asubsequent Proclamation.(3) Every Proclamation under this article shall be laid before eachHouse of Parliament and shall, except where it is a Proclamationrevoking a previous Proclamation, cease to operate at theexpiration of two months unless before the expiration of thatperiod it has been approved by resolutions of both Houses ofParliament:Provided that if any such Proclamation (not being a Proclamationrevoking a previous Proclamation) is issued at a time when theHouse of the People is dissolved or the dissolution of the House ofthe People takes place during the period of two months referred toin this clause, and if a resolution approving the Proclamation hasbeen passed by the Council of States, but no resolution withrespect to such Proclamation has been passed by the House of thePeople before the expiration of that period, the Proclamation shallcease to operate at the expiration of thirty days from the date onwhich the House of the People first sits after its reconstitutionunless before the expiration of the said period of thirty days aresolution approving the Proclamation has been also passed by theHouse of the People.(4) A Proclamation so approved shall, unless revoked, cease tooperate on the expiration of a period of six months from the date ofissue of the Proclamation: 5
  7. 7. 10/31/2012Provided that if and so often as a resolution approving thecontinuance in force of such a Proclamation is passed by bothHouses of Parliament, the Proclamation shall, unless revoked,continue in force for a further period of six months from the dateon which under this clause it would otherwise have ceased tooperate, but no such Proclamation shall in any case remain inforce for more than three years:Provided further that if the dissolution of the House of the Peopletakes place during any such period of six months and a resolutionapproving the continuance in force of such Proclamation has beenpassed by the Council of States, but no resolution with respect tothe continuance in force of such Proclamation has been passed bythe House of the People during the said period, the Proclamationshall cease to operate at the expiration of thirty days from thedate on which the House of the People first sits after itsreconstitution unless before the expiration of the said period ofthirty days a resolution approving the continuance in force of theProclamation has been also passed by the House of the People:Provided also that in the case of the Proclamation issued underclause (1) on the 11th day of May, 1987 with respect to the State ofPunjab the reference in the first provision to this clause to "threeyears" shall be construed as a reference to Five years.(5) Notwithstanding anything contained in clause (4), a resolutionwith respect to the continuance in force of a Proclamationapproved under clause (3) for any period beyond the expiration ofone year from the date of issue of such Proclamation shall not bepassed by either House of Parliament unless - (a) A Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and (b) The Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on 6
  8. 8. 10/31/2012 account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.DEVELOPMENT OF ARTICLE 356 a) The Government of India Act, 1935 This Act first introduced the concept of „Division of Powers‟ in British India. It was anexperiment where the British Government entrusted limited powers to the Provinces. But since there was very little faith lost between the British and the Indian people, the British took precautions to keep a sufficient check on Dr. B. R. Ambedkar the powers given to the Provinces. These precautions were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where the Governor General and the Governor, under extraordinary circumstances, exercised near absolute control over the Provinces. b) Drafting Committee of the Constituent Assembly On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Underthe chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635 amendments tabled.When it was suggested in the Drafting Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act, 1935, upon the President, many members of that eminent committee vociferously opposed that idea.By virtue of this earnest advice given by the prime architect of the 7
  9. 9. 10/31/2012 IndianConstitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events. A good Constitution must provide for all conceivable exigencies. Therefore this Article is like a safety valve to counter disruption of political machinery in a State. Article 355 states: „It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every Stateis carried on in accordance with the provisions of this Constitution. The word „otherwise‟ in Article 356(1) was not included in the original draft; it was later introduced through an amendment, despite protests from members of the original Drafting Committee, stating that it was an open invitation to abuse the Article. Dr. Ambedkar justified its introduction saying that Article 277A (now Article 355, cited above) imposed a duty upon the Center to ensure that the States are governed in accordance with constitutional provisions and that hence it would not be proper for the President to base his decision solely on the report of the Governor of the State.c) 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 constitutionalmachinery under the present Constitution and the powers dealt with in Sections 45 and 93 ofthe Government of India Act, 1935. Firstly, the 1935 Act empowered the Governor-Generalto deal with a failure of the constitutional machinery at the Center (Section 45). It alsoempowered 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, butempowers the President to take steps in this regard, though he shall have to act on the reportof the Governor or Ruler of the State. Secondly, under Section 93 of the 1935 Act, theexecutive and legislative powers of a State could be assumed by the Governor, acting at his discretion. The present Constitution has separated the 8
  10. 10. 10/31/2012 two powers: the President, assumingexecutive powers, and the Union Parliament, assuming legislative powers.WHEN IS PRESIDENTIAL RULEIMPOSED?In practice presidents rule has been imposed under differentcircumstances such as1. State Legislature is unable to elect a leader as Chief Minister2. Break down of Coalition3. Irretrievable break down of law and order4. Rebellion or insurgency in a part of India5. Elections are postponed due to unavoidable reasons6. Most often till mid 1990s President rule has been imposed instates due to the misuse of Governors authority in collusion withthe decision of the Government in power at the center (FederalGovernment). However, after a Historic and Landmark Judgmentby the Honble Supreme Court of India in the S. R. Bommai (Ex -Chief Minister of Karnataka) Case, such misuse has reduceddrastically.INSTANCES OF PRESIDENT’S RULETill now 119 times, President‟s rule is imposed in Indian states.State 9
  11. 11. 10/31/2012Sr. INDIAN STATES Date from Date to ReasonNo.1 Vindhya Pradesh 08/04/1949 13/03/1952 Presidents rule was imposed in the erstwhile Vindhya Pradesh State when the Chief Minister resigned. Presidents Rule was revoked following Independent Indias first General Elections.2 Punjab 20/06/1951 17/04/1952 Pandit Nehru kept the Punjab Assembly in suspension for nine months and 28 days to help the State Congress Government to get its act together.3 PEPSU 05/03/1953 08/03/1954 Presidents rule was invoked in the erstwhile PEPSU (Patiala and East Punjab States Union) State when the Akali Dal government led by Gian Singh Rarewala was dismissed.4 Andhra Pradesh 15/11/1954 28/03/1955 Loss of majority5 Kerala 23/03/1956 05/04/1957 Loss of majority followed by splitting6 Kerala 31/07/1959 22/02/1960 Govt. dismissed in spite of Communist CM Mr. EMS Namboodiripad enjoying majority support in Assembly7 Orissa 25/02/1961 16/06/19618 West Bengal 01/07/1962 08/07/19629 Kerala 10/09/1964 06/03/196710 Punjab 05/07/1966 01/11/196611 Goa 02/12/1966 05/04/1967 Then Union Territory of Goas Assembly was dissolved to conduct Opinion Poll to determine whether Goa should be merged with Maharashtra.12 Manipur 12/01/1967 19/03/196713 Manipur 25/10/1967 18/02/196814 Haryana 02/11/1967 22/05/196815 Uttar Pradesh 17/02/1968 26/02/196916 West Bengal 20/02/1968 25/02/196917 Bihar 29/06/1968 26/02/196918 Punjab 23/08/1968 17/02/196919 Pondicherry 18/09/1968 17/03/196920 Bihar 06/07/1969 16/02/197021 Manipur 17/10/1969 22/03/197222 West Bengal 19/03/1970 02/04/197123 Kerala 01/08/1970 04/10/1970 Loss Of Majority24 Uttar Pradesh 02/10/1970 18/10/197025 Orissa 11/01/1971 03/04/197126 Karnataka 19/03/1971 20/03/1972 Loss Of Majority27 Gujarat 12/05/1971 17/03/197228 Punjab 14/06/1971 17/03/197229 West Bengal 28/06/1971 19/03/197230 Tripura 01/11/1971 20/03/197231 Bihar 09/01/1972 19/03/1972 10
  12. 12. 10/31/201232 Andhra Pradesh 11/01/1973 10/12/1973 Break down of Law & Order due to Jai Andhra Agitation, In P.V.NarasimhaRaos Tenure.33 Orissa 03/03/1973 04/03/197434 Manipur 28/03/1973 03/03/197435 Uttar Pradesh 12/06/1973 08/11/197336 Pondicherry 03/01/1974 06/03/197437 Gujarat 09/02/1974 18/06/197538 Pondicherry 28/03/1974 02/07/197739 Nagaland 20/03/1975 25/11/197740 Uttar Pradesh 30/11/1975 21/01/197641 Tamil Nadu 31/01/1976 30/06/1977 Govt. dismissed in spite of Mr. Karunanidhi enjoying majority support in Assembly42 Gujarat 12/03/1976 24/12/197643 Orissa 16/12/1976 29/12/197644 Jammu& Kashmir 26/03/1977 09/07/197745 Madhya Pradesh 29/04/1977 25/06/1977 Govt. dismissed in spite of Mr. ShyamaCharanShukla enjoying majority support in Assembly46 Rajasthan 29/04/1977 22/06/1977 Govt. dismissed in spite of Mr. HariDev Joshi enjoying majority support in Assembly47 Bihar 30/04/1977 24/06/1977 Govt. dismissed in spite of Dr. Jagannath Mishra enjoying majority support in Assembly48 Haryana 30/04/1977 21/06/1977 Govt. dismissed in spite of B D Gupta enjoying majority support in Assembly49 Himachal Pradesh 30/04/1977 22/06/1977 Govt. dismissed in spite of Thakur Ram Lal enjoying majority support in Assembly50 Orissa 30/04/1977 26/06/1977 Govt. dismissed in spite of Mr. BinayakAcharya enjoying majority support in Assembly51 Punjab 30/04/1977 20/06/1977 Govt. dismissed in spite of GianiZail Singh enjoying majority support in Assembly52 Uttar Pradesh 30/04/1977 23/06/1977 Govt. dismissed in spite of Mr. N D Tiwari enjoying majority support in Assembly53 Mizoram 11/05/1977 01/06/197854 Manipur 16/05/1977 28/06/297755 Tripura 05/11/1977 05/01/197856 Karnataka 31/12/1977 28/02/1978 Govt. dismissed in spite of Congress CM Mr. DevrajUrs enjoying majority support in Assembly57 Sikkim 18/08/1978 18/10/197958 Mizoram 10/11/1978 08/05/197959 Pondicherry 12/11/1978 16/01/198060 Goa 27/04/1979 16/01/198061 Arunchal Pradesh 03/11/1979 18/01/1980 Loss of Majority following defections in a fluid political environment during Janata party rule at the Centre.62 Manipur 14/11/1979 13/01/198063 Kerala 01/12/1979 25/01/1980 Loss of majority64 Assam 12/12/1979 05/12/198065 Rajasthan 16/02/1980 06/06/1980 Govt. dismissed in spite of Mr. Bhairon Singh Shekhawat enjoying majority support in Assembly66 Bihar 17/02/1980 08/06/1980 Govt. dismissed in spite of Mr. Ram Sundar Das 11
  13. 13. 10/31/2012 enjoying majority support in Assembly67 Gujarat 17/02/1980 08/06/1980 Govt. dismissed in spite of Mr. Babubhai J Patel enjoying majority support in the Assembly68 Maharashtra 17/02/1980 08/06/1980 Govt. dismissed in spite of Mr. SharadPawar enjoying majority support in the Assembly69 Orissa 17/02/1980 09/06/1980 Govt. dismissed in spite of Mr. NilamaniRoutray enjoying majority support in Assembly70 Punjab 17/02/1980 06/06/1980 Govt. dismissed in spite of Mr. Parkash Singh Badal enjoying majority support in Assembly71 Tamil Nadu 17/02/1980 06/06/1980 Govt. dismissed in spite of Mr. M G Ramachandran enjoying majority support in Assembly72 Uttar Pradesh 17/02/1980 09/06/1980 Govt. dismissed in spite of Mr. Banarasi Das enjoying majority support in Assembly73 Madhya Pradesh 18/02/1980 08/06/1980 Govt. dismissed in spite of Mr. SundarLalPatwa enjoying majority support in Assembly74 Manipur 18/02/1981 18/06/198175 Assam 30/06/1981 13/01/198276 Assam 19/03/1982 27/02/198377 Pondicherry 24/06/1983 16/03/198578 Punjab 10/10/1983 29/09/1985 Insurgency and break down of law and order because of Operation Blue Star79 Sikkim 25/05/1984 08/03/198580 Jammu & Kashmir 06/03/1986 07/11/1986 Loss Of Majority81 Punjab 11/06/1987 25/02/1992 Insurgency and break down of law and order because of consequences of Operation Blue Star and anti-Sikh riots82 Tamil Nadu 30/01/1988 27/01/1989 Govt. dismissed after controversial confidence vote secured in the Assembly by CM Mrs. Janaki Ramachandran83 Nagaland 07/08/1988 25/01/198984 Mizoram 07/09/1988 24/01/198985 Karnataka 21/04/1989 30/11/1989 Loss of Majority of CM Mr. S. R. Bommai, followed by dissolution of Assembly. On an appeal by Mr. S. R. Bommai, in a landmark judgment delivered in 1994, the Indian Supreme Court laid out the procedure to be followed before dissolving an elected Assembly. The historic ruling in this case reduced the scope for misuse of Article 356 by future Central Governments and Governors.86 Jammu & Kashmir 19/01/1990 09/10/1986 Insurgency and break down of law and order.87 Karnataka 10/10/1990 17/10/1990 Congress Govt. of Mr. VeerendraPatil dismissed by Prime Minister Rajiv Gandhi and state was placed under Presidents rule with the assembly placed in suspended animation until next chief Minister was elected.88 Assam 28/11/1990 30/06/1991 Govt. dismissed in spite of AGP CM Mr. PrafullaMahanta enjoying majority support in Assembly. The dismissal was triggered apparently by the threat to internal security due to banned organization ULFAs activities. During Presidents rule Operation Bajrang was launched to flush out ULFA militants.89 Goa 14/12/1990 25/01/199190 Tamil Nadu 30/01/1991 24/06/1991 Govt. headed by Mr. M. Karunanidhi dismissed by Prime Minister Chandrashekhar on charges 12
  14. 14. 10/31/2012 of supporting anti national activities, in spite of the then Governor Barnalas report and enjoying majority support in the Assembly.91 Pondicherry 04/03/1991 03/07/199192 Haryana 06/03/1991 23/07/199193 Meghalaya 11/10/1991 05/02/199294 Manipur 07/01/1992 07/04/199295 Nagaland 02/04/1992 22/02/199396 Uttar Pradesh 06/12/1992 04/12/199397 Himachal Pradesh 15/12/1992 03/12/1993 Govt. dismissed in the aftermath of Babri Masjid- Ram Janmasthan destruction in Uttar Pradesh.98 Madhya Pradesh 15/12/1992 07/12/1993 Govt. dismissed in the aftermath of Babri Masjid- Ram Janmasthan destruction in Uttar Pradesh.100 Rajasthan 15/12/1992 04/12/1993 Govt. dismissed in spite of Mr. Bhairon Singh Shekhawat enjoying majority support in Assembly101 Tripura 11/03/1993 10/04/1993102 Manipur 31/12/1993 13/04/1994103 Bihar 18/03/1994 05/04/1995104 Uttar Pradesh 18/10/1995 21/03/1997105 Gujarat 19/09/1996 23/10/1996 Govt. dismissed following a controversial confidence vote. Assembly was placed in suspended animation. Led to subsequent installation of Vaghela government, supported by Congress106 Goa 09/02/1999 09/06/1999 Loss of Majority, no alternate claimant to form next government107 Bihar 11/02/1999 09/03/1999 Breakdown of law and order, killings of 11 Dalits at Narayanpur108 Manipur 02/06/2001 06/03/2002 Loss of Majority109 Uttar Pradesh 08/03/2002 02/05/2002 Indecisive outcome of elections110 Jammu & Kashmir 18/10/2002 02/11/2002 Indecisive outcome of elections111 Goa 04/03/2005 07/06/2005 Govt. dismissed after controversial confidence vote secured in the Assembly by CM Mr. Pratap Singh Rane112 Bihar 07/03/2005 24/11/2005 Indecisive outcome of elections.113 Karnataka 09/10/2007 11/11/2007 Loss of Majority114 Karnataka 20/11/2007 27/05/2008 Loss of Majority115 Nagaland 03/01/2008 12/03/2008 Govt. dismissed after controversial confidence vote secured in the Assembly by CM Mr. Neiphiu Rio116 Jammu & Kashmir 11/07/2008 05/01/2009 Loss of Majority following collapse of coalition. Then CM Mr. GulamNabi Azads decision to transfer land for Amarnath pilgrimage led to PDP pulling out of coalition Govt.117 Jharkhand 19/01/2009 29/12/2009 Loss of Majority118 Meghalaya 18/03/2009 12/05/2009 Govt. dismissed after controversial confidence vote secured in the Assembly by CM Mr. Donkupar Roy119 Jharkhand 01/06/2010 11/09/2010 Loss of Majority 13
  15. 15. 10/31/2012IMPORTANCE OF ARTICLE 356Article 356 of the Indian Constitution has been the victim of badgovernance during the last five decades. Otherwise it is in no wayincongruous that it would require recast or annulment. By theignominious acts of the men who wielded absolute governmentalpower, they got astray from the path of good governance and triedto make the said article appear rogue in its content.The provisionof 356 is quite in keeping with the exigencies of art of governanceof the states in a manner that the administration of the State runson proper lines and interference from the Center is neitherrequired nor feasible. Non-interference by the Center is in theinterests of the totality of the country. The existence of Article 356in the Union constitution is a political necessity because in courseof time all the diversities shall get absorbed in the system thatshall make India look a country having the ingredients of onecompact nation with different religions and religious communitieswalking hand-in-hand and having well of the country at heart.CRITICISM OF ARTICLE 356"Power tends to corrupt and absolute Corrupts absolutely". -Lord AldonArticle 356 gave wide powers to the central government to assertits authority over a state if civil unrest occurred and the stategovernment did not have the means to end the unrest. This is oneof the articles that gave the Indian constitution some amount ofunitary character. Though the purpose of this article is to givemore powers to central government to preserve the unity andintegrity of the nation, it has often been misused by the ruling 14
  16. 16. 10/31/2012parties at the center. It has been used as a pretext to dissolvestate governments ruled by political opponents. Thus, it is seen bymany as a threat to the federal state system. Since the adoption ofIndian constitution in 1950, the central government has used thisarticle several timesto dissolve elected state governments andimpose Presidents rule.The article was used for the first time in Punjab on 20 June 1951.It has also been used in the state of Patiala and East PunjabStates union (PEPSU) and then during VimochanaSamaram todismiss the democratically elected Communist state governmentof Kerala on 31 July 1959. In the 1970s and 1980s it almostbecame common practice for the central government to dismissstate governments led by opposition parties. The IndiraGandhi regime and post-emergency Janata Party were noted forthis practice. Indira Gandhis government between 1966 1977 isknown to have imposed President rule in 39 states. SimilarlyJanta Dal when came to power, emergency is known to haveissued Presidents rule in 9 states which were ruled by congress.It is only after the landmark judgment in 1994 in the S. R.Bommai v. Union of Indiacase that the misuse of Article 356 wascurtailed. In this case, the Supreme Court established strictguidelines for imposing presidents rule. Subsequentpronouncements by the Supreme Court in Jharkhand and otherstates have further whetted down the scope for misuse of Article356. Hence since the early 2000, the number of cases of impositionof Presidents rule has come down drastically.Article 356 has always been the focal point of a wider debate of thefederal structure of government in Indian polity. The SarkariaCommission on Center-State relations has recommended thatArticle 356 must be used "very sparingly, in extreme cases, as ameasure of last resort, when all the other alternatives fail toprevent or rectify a breakdown of constitutional machinery in thestate" 15
  17. 17. 10/31/2012JUDICIAL REVIEWThe question of judicial review under Article 356 has come up forconsideration before the Courts in several circumstances. The firstsuch instance was in the Kerala High Court in K.K. Aboo v. Unionof India.In that case the Court refused to go into theconstitutionality of the proclamation under Article 356. Later inRaoBirender Singh v. State of Haryana, it was held that thePresident while exercising power under Article 356 did not act onbehalf of the executive of the Union but in a constitutionalcapacity and hence the exercise of power by the President was notamenable to the jurisdiction of the Court. The scope wasconsidered in greater detail in A. Sreeramula, In Re where it washeld that judicial review was barred for a proclamation underArticle 356 as the Presidential satisfaction is basically a politicalissue and the Court did not want to go into an intrinsic politicalquestion. The same view was followed by the Andhra PradeshHigh Court in HanumanthaRao v. State of Andhra Pradesh andthe Orissa High Court in BijayanandaPatnaik v. President ofIndia. Thus, the Courts gave support to the action of the CentralGovernment. Interestingly, none of them came for considerationbefore the Supreme Court. The Supreme Court faced the questionfor the first time in State of Rajasthan v. Union of India.In state of Rajasthan v. Union of India Six of these States filedsuits27 under Article 131 of theConstitution in the SupremeCount praying for a declaration that the letter of the HomeMinister was illegal, and ultra vires of the Constitution andprayed for an interim injunction restraining the UnionGovernment from resorting to Article 356, and for a permanentinjunction restraining the Union Government from taking anystep to dissolve their Assemblies before the expiry of their termfixed by the Constitution. Three Members of the LegislativeAssembly of the Punjab also field a Writ Petitionin the Supreme 16
  18. 18. 10/31/2012Court impugning the same matter and praying substantially forthe same relief.The Union raised three preliminary objections: (a) That the suit was not maintainable under Article 131: (b) That the questions which arise for gauging the existence of a situation calling for action under Article 356 are, by their very nature, non-justiciable and they are also expressly made non-justiciable by Clause (5) of the Article; (c) That the suit and the writ petition were premature as the process which was being challenged might or might not actually produce the apprehended result or action.Although the learned Judges constituting the Bench gave separatereasons, they were agreed that the suit/petition was liable todismissal on any one or more of the preliminary grounds.Goswami, Fazal Ali and Untwalia, JJ was of the view that theplaintiffs had no locus standito maintain the suit. Untwalia J. didnot want to rest his judgment on this technical ground alone. BegCJ. andFazal Ali J. held that the suit was premature. There wasgeneral agreement among all the judges that the matter inquestion was beyond the range of judicial review either because itwas of a political nature, regarding which the Presidentssubjective satisfaction was conclusive, or was otherwise non-justiciable in view of the bar to the Courts jurisdiction in Clause(5) of the Article. The Court, however, made it clear that thePresidents satisfaction would be open to judicial review only inthose exceptional cases where on facts admitted or disclosed, it ismanifest that it is mala fide or is based on wholly extraneous orirrelevant grounds. After an elaborate discussion, the court heldthat the case before it did not fall within this exception. Althoughall the learned Judges did not refer to clause (5), expressly or indetail, they were very much conscious of this formidable hurdle intheir way. Claus (5) as it then stood was as under:“Notwithstanding anything in this Constitution, the satisfaction ofthe President mentioned in Clause (1) shall be final andconclusive and shall not be questioned in any Court on anyground”. 17
  19. 19. 10/31/2012In 1980, the most profound invoking of Article 356 occurred whenIndira Gandhi dismissed nine state governments. But in responseto an outcry by the Opposition, Indira Gandhi finally appointedcommission headed by Justice RSSarkaria to analyze therelationship between the Centre and the State. In its reportsubmitted in 1988, the Sarkaria Commission put forth a series ofmeasures to prevent the misuse of Article 356, including aprovision to ensure that the governor of a particular state does notbelong to the ruling party. However, these recommendations werenot incorporated into the Constitution and thus incumbent stategovernments continued to be dismissed even after 1988 by theCentre. However, what is widely regarded as the ultimate verdicton Article 356 came with the Bommai case. In 1989, Article 356had been invoked against the then Karnataka government headedby Chief Minister SR Bommai. Bommai appealed to the SupremeCourt, which ruled in his favor on 11 March, 1994. President RVenkataraman earned a stricture from the Supreme Court for hisunquestioning obedience to Prime Minister Rajiv Gandhi withregard to this case, inspite of not having solid grounds to dismissBommai‟s government and his proclamation was struck down8In S.R. Bommai case the court has clearly subscribed to the viewthat the power under article 356 is an exceptional power and hasto be resorted to only occasionally to meet the exigencies of specialsituation. The court quoted the Sarkaria commission report to giveexample of situation when such power should not be used. It madeit clear that article 356 cannot be invoked for superseding a dulyconstituted ministry and dissolving the assembly on the soleground that in the election to the Lok Sabha the ruling partysuffered a massive defeat.S. R. Bommai v. Union of India raisedserious question of law relating to Proclamation of Emergency anddissolution of Legislative assemblies according Article 356 of theConstitution of India. While dealing with the question as towhether the Presidential Proclamation under Article 356 wasjusticiable all the judges were unanimous in holding that thepresidential proclamation was justiciable. 18
  20. 20. 10/31/2012 IN APRIL 1989, Karnataka Chief Minister S.R. Bommai (left) presents Governor P. Ventakasubbiah a copy of the resolution passed by the Janata Dal Legislature Party requesting the Governor to give him an opportunity to test his majority in the Assembly. He was denied the opportunity and his government was dismissed, and eventually the Supreme Court laid down in the Bommai case that any proclamation under Article 356 is subject to judicial review.The Hon‟ble Supreme Court held that the proclamation underArticle 356(1) is not immune fromjudicial review. The validity ofthe Proclamation issued by the President under Article 356[1] isJudicially reviewable to the extent of examining whether it wasissued on the basis of any material at all or whether the materialwas relevant or whether the Proclamation was issued in the malafide exercise of the power. The second question which was takeninto consideration by the court was that whether the Presidenthas unfettered powers to issue Proclamation under Article 356(1)of the Constitution. It was contended that The Hon‟ble SupremeCourt in this regard held that the power conferred by Article 356upon the President is a conditioned power. It is not an absolutepower. This satisfaction may beformed on the basis of the report ofthe Governor or on the basis of other information received byhimor both. The existence of relevant material is a pre-conditionto the formation of satisfaction. Thesatisfaction must be formed onrelevant material. The dissolution of the LegislativeAssemblyassumingthat it is permissible is not a matter of course.It should be resorted to only when it isnecessary for achieving thepurposes of the proclamation. 19
  21. 21. 10/31/2012The exercise of the power is made subject to approval of the bothHouses of Parliament. With this the Hon‟ble Supreme Court alsomade it clear that President cannot dissolve the legislaturewithout having obtained the approval of both the Houses of theLegislature.The Hon‟ble Supreme also held that the power of the court torestore the government to office in case it finds the proclamationto be unconstitutional, it is, in Courts opinion, beyond question.Even in case the proclamation is approved by the Parliament itwould be open to the court to restore the State government to itsoffice in case it strikes down the proclamation as unconstitutional.If this power were not conceded to the court, the very power ofjudicial review would be rendered nugatory and the entireexercise meaningless. If the court cannot grant the relief flowingfrom the invalidation of the proclamation, it may as well decline toentertain the challenge to the proclamation altogether. For, thereis no point in the court entertaining the challenge, examining it,calling upon the Union Government to produce the material onthe basis of which the requisite satisfaction was formed and yetnot give the relief.The Supreme Courtof India while delivering its judgment, for thefirst time very significantly held that the issue of proclamation ofpresident‟s rule under article 356 would be subject to „judicialreview‟ and had imposed several restrictions on the invocation ofthis article. Those restrictions can be briefly stated as given below 1) That the power under article 356 is an extra- ordinary power and must be used sparingly. 2) That the federal scheme is an inherent and essential feature of the constitutional answer so no state government enjoying people‟s confidence should be arbitrarily. 3) That the power should be used only as a last resort – that too only after exhausting all other remedies available under article 355 in restoring normalcy, and unless urgent steps become imperative 4) The power cannot be exercised as long as a duly constituted government is in power enjoying support, on the pretext of providing a good government. 20
  22. 22. 10/31/2012 5) The power should not be invoked to dislodge any state government or party in power, on the ground that the party ruling at the state level did not fare well in the Lok Sabha election. If such a thing were to happen it should be treated as a clear case of constitutionality. 6) The power to suspend any state government should certainly precede a warning to be issued by the president to the erring state so as to give it an opportunity to correct itself. However such a warning can be avoided in a case of extreme urgency, if it might otherwise lead to disastrous consequences.The apex court has also categorically observed that the article should not be invoked: 1) If any state correct itself on receiving a warning from the president; 2) To grant relief to any state from a situation of stringent financial exigencies or due to serious allegation of corruption: 3) To settle political dispute, internal difference and intra-party problems of the ruling partand parties: 4) To gain Political advantages by a party in a power at the center to the disadvantage of any state government: 5) To distribute the democratic and federal fabric of the constitutional scheme: 6) Unless a situation of armed rebellion arises and a simple condition of internal disturbanceThe Supreme Court, being the ultimate interpreter of theConstitution, has the power of judicial review on all actionsemanating from or empowered by any constitutional provision.Though the power of the President under Article 356 concerns hispolitical judgment and the courts usually avoid entering thepolitical thicket, this power does not enjoy blanket immunity fromjudicial review. It has to be determined in the individual cases onthe basis of justifiability, which is distinct from judicial review.But unless the mala fides of the Presidential Proclamation isshown, the Courts have been exhorted by the Supreme Court toavoid delving into the Presidents satisfaction for want ofjudicially manageable standards. This point is amply evident in 21
  23. 23. 10/31/2012the case of Minerva Mills and Others v. Union of India andOthers, where the Supreme Court dwelt extensively on its powerto examine the validity of a Proclamation of Emergency issued bythe President. The Supreme Court in this matter observed, interalia, that it should not hesitate to perform its constitutional dutymerely because it involves considering political issues. At thesame time, it should restrict itself to examining whether theconstitutional requirements of Article 352 have been observed inthe declaration of the Proclamation and it should not go into thesufficiency of the facts and circumstances of the presidentialsatisfaction in the existence of a situation of emergency.The importance of judicial review in matters involving Article 356is also emphasized in the Supreme Court judgment in re State ofMadhya Pradesh v. Bharat Singh, where the Supreme Court heldthat it was not precluded from striking down a law passed prior toa Proclamation of Emergency, as ultra vires to the Constitution,just because the Proclamation was in force at that time.After so many cases and a very pinnacle judgment given bySupreme Court we can conclude that article 356 is no more comeunder the judiciary review and now the satisfaction of thepresident is also questionable in court of law. After the S.R.Bommai case there is a fear in the mind of political party that ifthey impose president rule without any grounds then the supremecourt has power to invoked the proclamation and declare null andvoid. The use of article 356 was also abridging after thisLandmark judgment. 22
  24. 24. 10/31/2012THE SARKARIA COMMISSIONREPORT, 1987The head of the Sarkaria Commission on Centre-State relations, Justice R.S.Sarkaria (right), with S.R. Sen, member. The commission noted in its report,submitted in 1988, the deep resentment that the abuse of Article 356 of theConstitution caused among the States.Article 356 should be used very sparingly, in extreme cases, as ameasure of last resort, when all available alternatives fail toprevent or rectify a break-down of constitutional machinery in theState. All attempts should be made to resolve the crisis at theState level before taking recourse to the provisions of Article 356.The availability and choice of these alternatives will depend onthe nature of the constitutional crisis, its causes and exigencies ofthe situation. These alternatives may be dispensed with only incases of extreme urgency where failure on the part of the Union totake immediate action Under Article 356 will lead to disastrousconsequences.A warning should be issued to the errant State, in specific termsthat it is not carrying on the government of the State inaccordance with the Constitution. Before taking action underArticle 356, any explanation received from the State should betaken into account. However, this may not be possible in asituation when not taking immediate action would lead todisastrous consequences.When an external aggression or internal disturbance paralysesthe State administration creating asituation drifting towards apotential breakdown of the Constitutional machinery of the State, 23
  25. 25. 10/31/2012allalternative courses available to the Union for discharging itsparamount responsibility under Article355 should be exhausted tocontain the situation.(a) In a situation of political breakdown, the Governor shouldexplore all possibilities of having agovernment enjoying majoritysupport in the Assembly. If it is not possible for such agovernment tobe installed and if fresh elections can be heldwithout avoidable delay, he should ask the outgoingMinistry, ifthere is one to continue as a caretaker government, provided theMinistry was defeatedsolely on a major policy issue, unconnectedwith any allegations of maladministration or corruptionand isagreeable to continue. The Governor should then dissolve theLegislative Assembly, leavingthe resolution of the constitutionalcrisis to the electorate. During the interim period, thecaretakergovernment should be allowed to function. As a matter ofconvention, the caretaker government should merely carry on theday-to-day government and desist from taking any major policydecision.(b) If the important ingredients described above are absent, itwould not be proper for the Governor todissolve the Assembly andinstall a caretaker government. The Governor shouldrecommendproclamation of Presidents rule without dissolving theAssembly.The State Legislative Assembly should not be dissolved either bythe Governor or the Presidentbefore the Proclamation issuedunder Article 356(1) has been laid before Parliament and it hashad an opportunity to consider it. Article 356 should be suitablyamended to ensure this.To make the remedy of judicial review on the ground of mala fidesa little more meaningful, it should be provided, through anappropriate amendment, that notwithstanding anything in clause(2) of Article 74 of the Constitution, the material facts andgrounds on which Article 356(1) is invoked should be made anintegral part of the Proclamation issued under that Article. Thiswill also make the control of Parliament over the exercise of thispower by the Union Executive, more effective. Normally, thePresident is moved to action under Article 356 on the report of theGovernor. The report of the Governor is placed before each House 24
  26. 26. 10/31/2012of Parliament. Such a report should be a “speaking document”containing a precise and clear statement of all material facts andgrounds on the basis of which the President may satisfy himself asto the existence or otherwise of the situation contemplated inArticle 356.The Governors report, on the basis of which a Proclamation underArticle 356(1) is issued, should be given wide publicity in all themedia and in full.CURRENT SITUATION IN INDIAThe present situation in India shows that the „dead-letter‟provision - as Dr. Ambedkar hoped it would be - has become afrequently invoked, not-so-dead Article; it has been activated 119times till today. The National Commission to Review the Workingof the Constitution (NCRWC), which was established on February22, 2000, on the basis of a joint resolution of the Government ofIndia, Ministry of Law, Justice and Company Affairs (Departmentof Legal Affairs), submitted its extensive report in March 2002. Inits analysis, the NCRWC stated that in at least twenty out of themore than one hundred instances, the invocation of Article 356might be termed as a misuse. It is difficult to believe that, duringhis tenure as the Governor of the State of Uttar Pradesh,RomeshBhandari made any real effort to install a popularlyelected government or to conduct a constitutionally mandatedfloor-test to test the strength of the Legislative Assembly in theState for identifying amajority party before prompting theapplication of the Article by the President. After the fall of theMayawati Government in the State of Uttar Pradesh, it mighthave been justifiable to impose President‟s Rule. But it was alsonecessary to hold fresh elections as soon as possible. The malafides of the Union Executive in preventing the assumption of officeby an unfavorable political entity became clearly manifest inGovernor Bhandari‟s actions and the decision of the United FrontGovernment at the Center, to re-impose President‟s Rule in UttarPradesh. The worst damage may possibly have been done throughthe office of the Governor, because the Governor cannot be held 25
  27. 27. 10/31/2012responsible for his or her actions. H. M. Seervai pointed out thatthe Governor can be removed only by the President and that thePresident acts on the advice of the Council of Ministers; hence theGovernor is in office pretty much at the pleasure of the UnionExecutive. This may act as a bias whenever the Governor‟s dutyrequires him to go against the desires of the Union Executive. Inits report, the NCRWC recommended that the President shouldappoint or remove the Governor in consultation with the ChiefMinister of the State. This may act as a restraint on the misuse ofpower by the Office of the Governor.Another example of misuse of Article 356 was the imposition ofPresident‟s Rule in the State of Gujarat from September1996 toOctober 1996, following the incidents of violence indulged in bymembers of the Gujarat Legislative Assembly. Soli Sorabjeepointedout that violence within the Assembly cannot be treated asan instance of failure of the constitutional machinery; it wouldotherwise become very easy for malicious legislators to dissolve aduly elected legislative body by creating pandemonium in theAssembly and thereby prompting improper invocation of Article356.72 The correct procedure to be followed in such a situation isto pass suitable legislation for disqualifying the guilty legislators.FAILURE TO INVOKE EMERGENCYPOWERSOn the other extreme of misuse of Article 356 was the failure ofthe Union Executive – which was of the same political belief as theGovernment of NarendraModi in Gujarat - to invokeArticle 356during the carnage following the Godhra train incident onFebruary 27, 2002, in the State of Gujarat. To quote the words ofFaliNariman, noted lawyer and nominated member of the UpperHouse (Rajya Sabha) of the Indian Parliament during aparliamentary debate: „Vital statistics tells us that there are morethan 100000 persons in refugee camps and more than 30,000people have been charge-sheeted. Are these figures not enough to 26
  28. 28. 10/31/2012compelthe Government to take action under articles 355 and356?‟FaliNariman also rightly pointed out in an interview with anewspaper correspondent that the Constitution may not haveenvisaged a situation where an emergency has arisen in a Statewhere the ruling party is of the same political persuasion as theone at the Center and, hence, the Center might bebiased againstdissolving that government by invoking Article 356. He alsopointed out thatthe word „otherwise‟ in the text of Article 356becomes instrumental in such a situation to allow the President toact without waiting for the „Governor‟s Report.‟CONCLUSIONSAt last we can determine that article 356 is the death ofconstitutionalism and the death of federalism too the concept ofconstitutionalism is all about to restrain or curtail the power.However article 356 provides such a noxious power to the centralgovernment, which was used 119 timesin the history of Indianpolitics. Now it is very necessary to know that article 356 is notlimited up to the state emergency, it is not limited up to thepolitical breakdown but article 356 become the dark side of IndianDemocracy. Article 356 is no further dead letter of ourconstitution. Nevertheless become the most renewed article whichwas used more than hundred times in the history of Indianpolitics. It is good for us if we amend article 356 and added theguideline given by Sarkariacommission or annihilate article 356from our constitution to prevent mala fide use of this article.However after the intervention of one of the three pillar of ourconstitution i.e. Indian judiciary, the frequently use of article 356was a bridge and after S.R.Bommai case where supreme courtprovide the proper guidelines for the proclamation of stateemergency and has power to invoke and declare it null and void ifthe proclamation was imposed without any cause show case the itis very necessary that the proclamation of article 356 should beused in rare of the rarest case where it require. In my suggestionthat union should not use 356 as their personal benefit but forpublic assistance. It is up to those in power to ensure its judicious 27
  29. 29. 10/31/2012use, so as to benefit ultimately citizens when they are genuinelyhampered by dysfunctional governance. According to me article356 require certain amendment as given below: 1) The governor of a state should submit their report to the president and chief justice of high court and if both are agree that state is not working in accordance with the constitution then only president rule was imposed. 2) During state emergency union has no power to amend or make any law in matter of state list 3) The satisfaction of the president is not the satisfaction of the central government. 4) The clause “or otherwise” should be removed from the article 356 because it give power to the union government to impose state emergency without governor report 5) It is necessary that president should not work in accordance with the central government, but he should work in accordance with the constitution of India 6) Before proclamation of state emergency the governor report and president satisfaction on the governor report should be published in daily newspaper. 28
  30. 30. 10/31/2012REFERENCES 29
  31. 31. 10/31/2012ACKNOWLEDGEMENT 30