Article 356 of the Constitution: A Critical Analysis

in Articles, Constitutional Law, Study Materials

Dr. Seema Sharma, Assistant Professor, MMH College, Ghaziabad, UP, India

Article 356, which empowers the President to impose President’s rule in the States, has been in controversy right from its inclusion in the Constitution. Article 356 incorporated in the Constitution of India gives the President, the power to impose President’s rule in States, where he, on receipt of a report from the Governor of a 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. This is an emergency provision where the Union Government may extend its powers into domains normally reserved for the States. Both houses of the Parliament must ratify this proclamation: failure to do this would result in the proclamation expiring in two months. If the proclamation is ratified, it cannot last beyond six months. The use of the word ‘otherwise’, which was not included in the original draft, has received a lot of flak over the years, as it makes the President more susceptible to pressure from those in power.

Since independence this Article has been flagrantly misused on numerous occasions to suit the purposes of a dominant Centre. There has been a constant demand from different parties to scrap this provision. This paper is an endeavor to discover the answer of the question:  whether Article 356 should be scrapped?

Historical Background           

Doubts and fears were expressed in the Constituent Assembly that this power in the hands of the Chief Executive might be misused by the Centre against the States for partisan ends when the parties governing the Centre and the States would be different.  Prof. Shibban Lal Saxena felt that by these Articles, the autonomy of the States had been reduced to a farce ((Constituent Assembly Debates, Vol. IX at 144)).Pandit H.N. Kunzru maintained that the instability resulting from a large number of political groups in a State Legislature would not justify Central intervention. Dr. Ambedkar hesitantly admitted to the possibility of the emergency provisions being employed for political reasons by stating:

“The proper thing we ought to expect is that such article will never be called into operation and that they would remain a dead letter ((Id. at 177)).”

Article 356 in Practice          

In Indian politics the period until 1967 has been described as the period of “one dominant party system”.  During this period the imposition of President’s rule was not frequent. The reason was that by and large the ruling party at the Centre and in the States was the same and this act ensured that the tensions arising between them could very often be resolved through the mechanism of the party set up.  There was a sharp rise of these occasions from 1967 onwards.  The fourth General Elections saw the emergence of a multiparty polity ending the Congress monopoly of power.  There was a sea change in the political scene.  Coalition ministries were formed in a number of States for the first time. Many of them were unstable being based on convenience rather than principle. From here began the saga of frequent misuse of Article 356 for political ends thereby disturbing the federal structure of our Constitution and endangering democracy in our country.

The provision, which was thought of as a “safety-valve”, proved to be a political weapon of the Centre against the States.  The provision, which was intended to be a “dead letter”, has proved to be a “death letter” for a number of State Governments. Different grounds, which were never thought of by the framers of the constitution, have been used for the imposition of President’s rule in the States to suit the political interests of the party in power at the Centre. Every party plays the game at its pleasure: when in opposition, ask for the amendment or abrogation of Article 356 and when in power at the Centre, misuse the power for political ends. President’s rule has been imposed in the States mainly on the following grounds:

  • Breakdown of law and order.
  • Where no ministry could be formed.
  • Political instability as a result of defections.
  • Popular agitation against the ministry.
  • Complete paralysis of the State Administration.
  • Corruption and mal-administration.
  • To end party rivalry.
  • To prevent or facilitate the bifurcation of the State.
  • Pending elections in newly created States.
  • Where the State government belongs to a party which has suffered an overwhelming defeat in the election to the Lok Sabha.
  • Where a State government works against   secularism.

It is submitted that the grounds (vii) and (x) are totally unjustified.  Losing the Central election does not per se amount to a situation where it could be concluded that the State government has lost the mandate of the people of that State. The State government should complete its full term if it is administering the State properly.  Grounds (ii), (iii), (ix) and (xi) are totally justified.  In other cases it is for the President to be satisfied whether the situation is so grave leading to the breakdown of the constitutional machinery.

Failure of Constitutional Machinery in a State

The crux of the problem is that the Constitution has not specified the circumstances, which can be construed to mean, “The failure of the constitutional machinery” in the State. The expression had been left unexplained during its inception in the Constitution. Dr. Ambedkar on being asked by Pandit Kunzaru about the meaning of this expression, had left it undefined vaguely by comparing it the Government of India Act, 1935 ((Ibid)).This answer of Dr. Ambedkar according to Seervai is an evasion of the difficulty pointed out by Pandit Kunzru.  A heavy price had to be paid for this evasion in the years to come ((H.M. Seervai, Constitutional Law of India at 3089 (4th edn., 1996).)), it seems that by not giving any explanation about the meaning of this phrase, Dr. Ambedkar intended to keep it vague.

Shri Santhanam in the Constituent Assembly had tried to categorize this expression into “physical breakdown”, “political breakdown” and “economic breakdown” ((See supra note 1 at 162)). The Sarkaria Commission has categorized this under the following heads ((Id. at 153)).

  • Political crisis.
  • Internal subversion.
  • Physical break-down.
  • Non-compliance with constitutional directions of the Union Executive.

To Scrap it or retain it: Mixed Reactions

Frequent misuse of this Article in ousting the people’s elected governments, of the opposition parties, have generated arguments to scrap this Article from the Constitution.  The Rajamannar Committee appointed by the Government of Tamil Nadu in 1969 and the Resolution adopted by West Bengal in 1977 had suggested the deletion of this Article.  But the Sarkaria Commission did not recommend its deletion but said that the Article 356 should be used very sparingly and as a measure of last resort in case of genuine breakdown of Constitutional machinery in a State ((The  Report  of  the Commission  on  Centre-State  Relations, Part I at 171 (1988).)).The National Commission to Review the Working of the Constitution (NCRWC) in 2002 also reiterated the findings of the Sarkaria Committee, saying that Article 356 could not be deleted but the state should be allowed to offer an explanation and the governor’s report should be a ‘speaking document’, containing an unbiased lucid view of the facts. It only recommended a constitutional amendment concerning non-dissolution of the state assembly until the proclamation is approved by Parliament.

Judicial Review

Judiciary now has assumed an important role to check the misuse of this provision.  Prior to the case of State of Rajasthan v. Union of India ((AIR 1977 SC 1361)),the High Courts were of the view that there could be no judicial review of the satisfaction of the President. In this case, one of the crucial questions which the court had to answer related to the “political question” doctrine. It was argued that having regard to the political nature of the problem, it was not amenable to judicial review and the court must abstain from inquiring into the same. The leading judgment of Bhagwati and A.C. Gupta, JJ. categorically rejected the contention and held:

“[M]erely because a question has a political complexion, that by itself is no ground why the court should shirk from performing its duty under the Constitution if it raises an issue of constitutional determination … merely because a question has a political colour, the court cannot fold its hands in despair and declare “judicial hands off”.

The learned judges further observed that the satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. But this does not mean that the judges totally abandoned the idea that the exercise of these powers could be subject to judicial review.  Bhagwati, J. observed that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it.Imposition of President’s rule in the State of Karnataka on April 21, 1989 was challenged before the Karnataka High Court in S.R Bommai v. Union of India ((AIR 1990  Kant 5(FB).)). The Presidential satisfaction was based on the Governor’s report and on “other information”. The Full Bench held that Proclamation made under Article 356 of the Constitution was justiciable, and that the courts could look into the materials or the reasons disclosed for issuing the Proclamation to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356 of the Constitution.

In the case of S.R. Bommai v. Union of India ((Id.)),the Apex Court has finally settled the position. The Court took  note of the Sarkaria Commission’s Report, regarding  the situations which will not warrant resort to Article 356.Some of them are as follows:

  1. A situation of maladministration in a State where a duly constituted Ministry enjoys majority support in the Assembly.
  2. 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..
  3. Where, a 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 though the “floor test’, recommends its suppression and imposition of President’s rule merely on his subjective assessment
  4. Where   in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a massive defeat.
  5. 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.
  6. Where no prior warning or opportunity is given to the State Government   to correct itself in cases where directives were issued under Article 256, 257, etc.
  7. Where the power is used to sort out internal differences or intra-party problems of the ruling party.
  8.  Where there are serious allegations of corruption against the Ministry.
  9. Where there are only stringent financial exigencies of the State.

In the Bommai judgment the scope of Article 356 was discussed at length some of the conclusion of the judgment are as follows:

  • The Proclamation under Article 356 is not immune from judicial review.  The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
  • Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given.
  • If a State Government works against secularism, President’s rule can be imposed.
  • Strength of the ministry should be tested on the floor of the House, which is the sole constitutionally ordained forum. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President.
  • Though the power of dissolving of the Legislative Assembly could be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme, that the President shall exercise it only after the Proclamation is approved by both the Houses of Parliament under clause (3) and not before. The dissolution of the Legislative Assembly is not a matter of course.  It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation.
  •  In an appropriate case and if the situation demands, the High Court/Supreme Court can also stay the dissolution of the Assembly but not in such a manner as to allow the Assembly to continue beyond its original term.
  • If the Court strikes down the Proclamation, it has the power to restore the dismissed Government in office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension.  In such a case, the Court has the power to declare that the period the Proclamation was in force shall remain unaffected and be treated as valid.

Ramaswamy, J. dissenting with the majority observed that there is no express provision in the Constitution to revive the Assembly dissolved under the Presidential Proclamation or to reinduct the removed Government of the State. He further observed that the political parties must seek a fresh mandate from the electorates and establish their credibility by winning majority seats.  The possibility of reinduction creates functional hiatus.

Seervai supported ((See supra note 9 at 3107))the dissent of Ramaswamy, J.,while Soli Sorabjee favoured the majority judgment. According to Sorabjee, the decision in the Bommai case marks the high watermark of judicial review.  It is a very salutary development and will go a long way in minimising the Centre’s frequent onslaught on the States ((Soli J. Sorabjee, “Decision of the Supreme Court in S.R. Bommai v. Union of India :  A Critique”, (1994) 3 SCC (J) 28)).

Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed him without giving him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan again in position as Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a “composite floor test” to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute ((Jagdambika Pal v. Union of India, (1999) 9 SCC 95)).

In the year 2005, the Governor of Jharkhand was ordered by the Supreme Court for holding a floor test to determine which party/political alliance commanded a majority in Jharkhand. The Court made it clear that the discretionary power under Article 164(1) of the Governor is subject to judicial review. And the exercise of such power can constitutionally be insured by conducting floor test. Thus, the democratic principle propounded in Bommai case was again sounded in this case and so as with Arjun Munda v. Governor of Jharkhand (([2005] 3 SCC 399)).

Rameshwar Prasad and Others v Union of India (([2006] 2 SCC 1))is  the first of its kind where even before the first meeting of the Legislative Assembly its dissolution had been ordered on the ground that attempts were being made to cobble together a majority by illegal means and to lay claim to form the government in the State. The judgment concentrated on the Governor’s role and reiterated earlier recommendations about the type of persons who should or should not be appointed as Governors. It appeared to be too soft on the role of other players particularly the Union Cabinet when it merely said: “the Governor may be the main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. So, in the facts and circumstances of the case the “council of ministers should have verified facts stated in the report of the governor before hurriedly accepting it as a gospel truth”. Clearly, the Governor has misled the Council of Ministers…” And we might add that the Council of Ministers misled the President. The Court held that in view of the election process was set in motion and was at an advance stage, in the larger interest, it would not be proper to order revival of a state assembly. Rameshwar Prasad case has reiterated the principles enunciated in State of Rajasthan and Bommai case with more constitutional conscience. The Court made it clear that Article 356 contains an emergency power and this emergency power should be used not as normal power.

Concluding Remarks

It is evident from this study that a provision – Article 356 – which was incorporated in the Constitution for a noble cause of ensuring the governance in the States according to the provisions of the Constitution has been frequently misused by the parties at the Centre to achieve their political ends. The hopes and expectations of Dr. Ambedkar that this provision would remain a dead letter are belied and the apprehensions of many others have been proved true.Since the coming into force of the Constitution of India on January 26, 1950, President’s rule has been imposed on more than 100 occasions and on all these occasions it was seldom used and often misused.  The Union Government has not adopted a uniform pattern in accepting the causes and circumstances   which may warrant the invocation of Article 356. The expression “failure of constitutional machinery in the State” has been liberally used by the parties at the Centre at their pleasure taking undue advantage of the vagueness of this expression.

It is evident that there was divergence of views among judges about the issues of interim relief and the re-induction of the dissolved assembly status quo ante.  The majority judgments came in the affirmative, contrary to the strong dissent of Ramaswamy,J.

Regarding the “floor test”, the dissent of  Ramaswamy,J. is worth mentioning. He had observed that a floor test may provide impetus for corruption and rank force and violence by musclemen or wrongful confinement or vocational capacity of legislators.It is submitted that the only purpose of the “floor test” is to test the majority in the legislature. It is not the sole test for negating the Presidential Proclamation.  The government in power may have majority support in the legislature and yet there may be a breakdown of the constitutional machinery.  In Rao Birinder Singh case ((Rao Birinder Singh v. Union of India, AIR 1968 P&H 441)), President’s rule was  imposed in Haryana in November 22,1967.The dismissed government led by Rao Birinder Singh enjoyed the majority support in the Assembly, but due to frequent defections the administration of the State was totally paralysed.  In the Bihar case, likewise, the Rabari Devi Government enjoyed   the majority support in the legislature, still the Central government had recommended the invocation of Article 356 in the State on   September 22,1998. On the reiteration of the early recommendation of the cabinet, President’s rule was imposed in Bihar on February12, 1999 ((See supra note 2. Also see, Arshi Khan, “Politics of President’s Rule in Bihar”, 37(10) Mainstream 7(1999); Kamla Prasad, “President’s Rule and Bihar Politics”, 37(14) Mainstream 9(1999).)). Similarly if the State government does not comply with the direction or instructions from the Centre issued under Article 257, there can be failure of constitutional machinery in spite of the majority support in the legislature, thereby making fit case for the invocation of Article 356.

It is crystal clear that power under Article 356 has been misused due to vagueness of the expression “failure of constitutional machinery”.  But at the same time, it is not possible to limit the scope of action under Article 356 to specific situations as the failure of constitutional machinery may occur due to various causes all of which cannot be foreseen or put in the strait jacket of a statute.  It is difficult to give an exhaustive list of all the situations.  It is suggested that healthy conventions should be developed for the proper use of Article 356 keeping in mind the recommendations of Sarkaria Commission and Bommai judgment

 I would conclude my paper by saying that, in the ultimate analysis, it is the men and women, who work the law, who make it good or bad.  I would say with Dr. Rajendra Prasad on the day, the Constitution of India was adopted.

… If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution.  If they are lacking in these, the Constitution cannot help the country.  After all, a Constitution like a machine is a lifeless thing.  It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…

It is not a good exercise to scrap a provision, which was inserted in the Constitution after great deliberations with a noble perception. The best exercise is to retain it and practice it with great caution as our Founding Fathers expected, keeping in mind the interest of the people so as to ultimately benefit them, when they are genuinely hampered by dysfunctional governance.