INTRODUCTION:-

President’s rule is the imposition of Union Government rule directly in a state after suspension of the state government, Under Article 356 of the Constitution of India. In the event that a state government is unable to function according to Constitutional provisions, the Union government can take direct control of the state machinery by proclaiming the emergency and thereby imposing the President’s Rule. Subsequently, administration is conducted directly by the Governor of the state. The Governor is an appointee of the President and thus, effectively, a functionary of the Union Government (the Federal Government). Thus imposition of President’s Rule negates the Federal Character of the Indian political system, where administration usually is shared between the Union and State governments.

[1]Bharat Ratn Dr. Babasaheb Bhimrao Ramji Ambedkar, who chaired the Drafting Committee of the Constituent Assembly, stressed the importance of describing India as a ‘Union of States’ rather than a ‘Federation of States.’ He said: ‘….what is important is that the use of the word “Union” is deliberate… Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.

BACKGROUND

Article 356, is inspired by section 93 of the Government of India Act, 1935. Section 93 of the 1935 Act provided that if a Governor of a province was satisfied that a situation has arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could, by proclamation, assume to himself all or any of the powers vested in or exercisable by a provincial body or authority including the Ministry and the Legislature and to discharge those functions in his discretion. The only exception was that under this section the Governor could not encroach upon the powers of the High Court. (Section 45 conferred a similar power upon the Governor-General with respect to the Central Government/Central Legislature). It is well-known that the said two provisions were incorporated in the 1935 Act to meet certain purposes and exigencies.

[2]Bharat Ratn (Dr.) Babasaheb Bhimrao Ramji Ambedkar overridden several objections (raised by the other members of the Constitutional Committee in respect of the misuse of Article 356)   by stating that “no provision of any Constitution is immune from abuse as such and that mere possibility of abuse cannot be a ground for not incorporating it. He stated: “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 a dead letter. 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.” He added: “I hope the first thing he will do would be to issue a clear warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution.”

Before we analyse the provisions of Article 356, it is necessary to bear in mind the context in which the Article finds place in the Constitution. The Article belongs to the family of Articles 352 to 360 which have been incorporated in Part XVIII dealing with “Emergency Provisions” as the title of the said Part specifically declares.

Among the preceding Articles:-

Article 352 deals with Proclamation of emergency. It states that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or armed rebellion, he may by Proclamation make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

Explanation to Clause (1) of the said Article states that Proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion, may be made before the actual occurrence of war or of any such aggression or rebellion if the President is satisfied that there is imminent danger thereof.

Clause (4) of the said Article requires that every Proclamation issued under the said Article shall be laid before each House of Parliament and shall cease to operate at the expiration of one month, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. It is not necessary for our purpose to refer to other provisions of the said Article. 

Article 353 refers to the effect of the Proclamation of emergency. It states that while the Proclamation of emergency is in operation, executive power of the Union shall extend to the giving of the directions to any State as to the manner in which the executive power thereof is to be exercised. It further states that during the emergency the power of Parliament to make laws with respect to any matter, shall include power to make laws conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and authorities of the Union as respects that matter even if it is not enumerated in the Union List. 

Article 354 gives power to the President to direct that Articles 268 and 269 which relate to the distribution of revenue between the Union and the States shall cease to operate during the period of emergency. 

Article 358 gives power during the emergency to suspend the provisions of Article 19 to enable the State (i.e., the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India) to make any law or to take any executive action which the State would be competent to make or to take but for the provisions contained in Part III of the Constitution while the Proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression, is in operation. Such power, it appears, cannot be assumed by the State when the security of India is threatened by armed rebellion and the Proclamation of emergency is issued for that purpose. 

Article 359 gives power to the President to declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution except those conferred by Articles 20 and 21, shall remain suspended when a Proclamation of emergency is in operation.

Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other Articles in the same Part of the Constitution.

The Important:-

Article 355 makes an important provision. It casts a duty on the Union to protect States against external aggression and internal disturbance, and to ensure that the Government of every State is carried “in accordance with the provisions of the Constitution”. This Article corresponds to Article 277-A (Now Article 355)of the Draft Constitution. Article 355 refers to three situations, viz., (i) external aggression, (ii) internal disturbance, and (iii) non-carrying on of the Government of the States, in accordance with the provisions of the Constitution, Article 356 refers only to one situation, viz., the third one. 

In other words, while a Proclamation of emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a Proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

Failure of constitutional machinery:-

A failure of constitutional machinery may occur in a number of ways. Factors which contribute to such a situation are diverse and imponderable. It is, therefore, difficult to give an exhaustive catalogue of all situations which would fall within the sweep of the phrase, “the government of the State cannot be carried on in accordance with the provisions of this Constitution”. Even so, some instances of what does and what does not constitute a constitutional failure within the contemplation of this Article, may be grouped and discussed under the following heads:

[a] Political crisis.

[b] Internal subversion.

[c] Physical break-down.

[d] Non-compliance with constitutional directions of the Union Executive.

It is not claimed that this categorisation is comprehensive or perfect. There can be no water-tight compartmentalisation, as many situations of constitutional failure will have elements of more than one type. Nonetheless, it will help determine whether or not, in a given situation it will be proper to invoke this last-resort power under Article 356.

The Report then goes on to discuss the various occasions on which the political crisis, internal subversion, physical break-down and non-compliance with constitutional directions of the Union Executive may or can be said to, occur.

356. Provisions in case of failure of constitutional machinery in State:-

(1) If the President, on receipt of 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 in accordance with the provisions of this Constitution, the President may be Proclamation:-

(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 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 authorise 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 a subsequent Proclamation;

(3) Every Proclamation issued under this article except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation Shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People;

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operating, but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People;

(5) Notwithstanding anything contained in clause ( 4 ), a resolution with respect to the continuance in force of a Proclamation approved under clause ( 3 ) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed 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 account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that in the case of the Proclamation issued under clause ( 1 ) on the 6th day of October, 1985 with respect to the State of Punjab, the reference in this clause to any period beyond the expiration of two years.

IF THE PRESIDENT, SATISFIED:-

[3]The word “satisfied” has been defined in Shorter Oxford English Dictionary [3rd Edition] at page 1792 as 4. To furnish with sufficient proof or information, to set free from doubt or uncertainty, to convince; 5. To answer sufficiently [an objection, question]; to fulfil or comply with [a request]; to solve [a doubt, difficulty]; 6. To answer the requirements of [a state of things, hypothesis, etc.]; to accord with [conditions]. Hence, it is not the personal whim, wish, view or opinion or the ipse dixie of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to judicial review.

Subject to Judicial Review:-

[4]From these authorities, one of the conclusions which may safely be drawn is that the exercise of power by the President under Article 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. Needless to emphasise that it is not any material but material which would lead to the conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution which is relevant for the purpose. It has further to be remembered that the Article requires that the President “has to be satisfied” that the situation in question has arisen.

The Sarkaria Commission Report, 1987:-

In spite of the precautions laid down in Article 356, the Article was invoked on several occasions by the Centre due to ambiguities in its wording. It was only in 1987 when the Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356 was cleared. The Commission, headed by Justice Shri R.S. Sarkaria, was appointed in 1983 and spent four years researching reforms to improve Centre-State relations.

[5]The Sarkaria Commission recommended extremely rare use of Article 356. According to the Commission, Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report discourages a literal construction of Article 356(1). According to the Commission’s report, these alternatives may be dispensed with only in cases of extreme emergency, where failure on the part of the Union to take immediate action under Article 356 would lead to disastrous consequences. The report further recommended that a warning be issued to the errant State, in specific terms that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account. However, this may not be possible in a situation in which not taking immediate action would lead to disastrous consequences.

[6]It will be convenient at this stage itself, also to illustrate the situations which may not amount to failure of the constitutional machinery in the State inviting the presidential power under Article 356(1) and where the use of the said power will be improper. The examples of such situations are given in the Report in paragraph 6.5.01. They are:

[i] A situation of maladministration in a State where a duly constituted Ministry enjoying majority support in the Assembly, is in office. Imposition of President’s rule in such a situation will be extraneous to the purpose for which the power under Article 356 has been conferred. It was made indubitably clear by the Constitution framers that this power is not meant to be exercised for the purpose of securing good government.

[ii] Where a Ministry resigns or is dismissed on losing its majority support in the Assembly and the Governor recommends, imposition of President’s rule without exploring the possibility of installing an alternative government enjoying such support or ordering fresh elections.

[iii] Where, despite the advice of a duly constituted Ministry which has not been defeated on the floor of the House, the Governor declines to dissolve the Assembly and without giving the Ministry an opportunity to demonstrate its majority support through the ‘floor test’, recommends its supersession and imposition of President’s rule merely on his subjective assessment that the Ministry no longer commands the confidence of the Assembly.

[iv] Where Article 356 is sought to be invoked for superseding the duly constituted Ministry and dissolving the State Legislative Assembly on the sole ground that, in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a massive defeat.

[v] Where in a situation of ‘internal disturbance’, not amounting to or verging on abdication of its governmental powers by the State Government, all possible measures to contain the situation by the Union in the discharge of its duty, under Article 355, have not been exhausted.

[vi] The use of the power under Article 356 will be improper if, in the illustrations given in the preceding paragraphs 6.4.10, 6.4.11 and 6.4.12, the President gives no prior warning or opportunity to the State Government to correct itself. Such a warning can be dispensed with only in cases of extreme urgency where failure on the part of the Union to take immediate action, under Article 356, will lead to disastrous consequences.

[vii] Where in response to the prior warning or notice or to an informal or formal direction under Articles 356, 257, etc., the State Government cither applies the corrective and thus complies with the direction, or satisfies the Union Executive that the warning or direction was based on incorrect facts, it shall not be proper for the President to hold that “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution”. Hence, in such a situation, also, Article 356 cannot be properly invoked.

[viii] The use of this power to sort out internal difference or intra-party problems of the ruling party would not be constitutionally correct.

[ix] This power cannot be legitimately exercised on the sole ground of stringent financial exigencies of the State.

[x] This power cannot be invoked, merely on the ground that there are serious allegations of corruption against the Ministry.

[xi] The exercise of this power, for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution, would be vitiated by legal mala fides.

We have no hesitation in concurring broadly with the above illustrative occasions where the exercise of power under Article 356 (1) would be improper and uncalled for.

USE AND MISUSE

The article was used for the first time in Punjab on 20 June 1951. It was also used in the state of Patiala and East Punjab States Union (PEPSU) and during the Vimochana Samaram to dismiss the democratically elected Communist state government of Kerala on 31 July 1959. In the 1970s and 1980s, it was common for the Union government to dismiss state governments led by opposition parties. ^[Former Prime Minister Smt.  Indira Gandhi used Article 356 as many as 39 times, and in most cases to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc. In retaliation, the Janata government removed nine state Congress governments, when for the first time they formed the government in 1977.Indira Gandhi on her return to power in 1980, removed nine Opposition majority governments at one go. Subsequent governments too acted in a similar fashion. In the year 1992, the BJP led governments in Rajsthan,  Madhay Pradesh, Uttar Pradesh and Himachal Pradesh were removed by the contemporary Centre Government.

[7]The Barium Chemicals Ltd. V. The Company Law Board and Ors. It is held by Hon’ble Supreme Court that “It must be remembered that the power conferred by Article 356 is of an extraordinary nature to be exercised in grave emergencies and, therefore, the exercise of such power cannot he equated to the power exercise in administrative law field and cannot, therefore, be tested by the same yardstick. Several imponderables would enter consideration and govern the ultimate decision, which would be based, not only events that have preceded the decision, but would also depend on likely consequences to follow and, therefore, it would be wholly incorrect to view exercise of the President’s satisfaction on par with the satisfaction recorded by executive officers in the exercise of administrative control. The opinion which the President would form on the basis of the Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinising such political decisions.”

CONCLUSION:-

[8]It is not necessary for me to make further discussion on this matter except saying that I am of the firm opinion that the power under Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the Constitutional balance. Further if the proclamation is freely made, then 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 will not be sure whether he will remain in power or not and consequently 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.

The Article must be amended with proper care and caution.

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[1] National Commission to Review the Working of the Constitution, Report, I, ¶ 8.1.2 (2002), at http://lawmin.nic.in/ncrwc/finalreport/volume1.htm

[2] https://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf

[3] S.R. Bommai And Others Etc. Etc. vs Union Of India And Others Etc. Etc. on 11 March, 1994, AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644

[4] S.R. Bommai And Others Etc. Etc. vs Union Of India And Others Etc. Etc. on 11 March, 1994, AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644

[5] THE SARKARIA COMMISSION REPORT, ¶ 6.3.23 (1987).

[6] S.R. Bommai And Others Etc. Etc. vs Union Of India And Others Etc. Etc. on 11 March, 1994, AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644

[7] [1966] Suppl. SCR 311

[8] S.R. Bommai And Others Etc. Etc. vs Union Of India And Others Etc. Etc. on 11 March, 1994, AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644