MAHARASHTRA NATIONAL LAW UNIVERSITY

CONSTITUTIONAL LAW II

FINAL DRAFT

Use and Misuse of Article 356

Submitted to : Prof. Milind Gawai

Submitted by: Saurabh Misal

Enrolment no:-2017046
1. Introduction 3

2. The Concept of Presidential Rule in State 4

2.1 ‘On the receipt of a report from the Governor or otherwise’ 4

‘Satisfaction’ 5

3. The Scope of Article 356 5

4. Judicial Review under Article 356 6

4.1 The Approach in case of Rajasthan Case 6

5. PRESIDENT’S RULE IN PRACTICE 7

6. THE ROLE OF GOVERNOR 8

6.1 Whether Article 361 grants immunity to the Governor? 9

6.2 Failure to invoke emergency provisions 9

CONCLUSION 10

BIBLIOGRAPHY AND REFERENCES 11

CASES: 11

OTHER AUTHORITIES: 11

TREATISES: 11

REPORTS: 11

ARTICLES: 12

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1. Introduction
The framers of the Constitution were aware that in a country of sub-continental dimensions,
enormous diversities, socio-economic disparities and multitudinous of people, with possibly divided
allegiances, security of the nation and stability of its polity could not be taken for granted. The
framers, therefore, recognised that in case of a grave emergency, the Union must have adequate
powers to deal quickly and effectively with a threat to the very existence of the nation, on account
of external aggression or internal disruption. Article 356 of the Constitution was one of the most
keenly debated and discussed in the Constituent Assembly. In the words of Dr. Ambedkar “such
articles will never be called into operation and that they would remain a dead letter”. The Founding
Fathers apprehended that, if and when it would be misused, it would violate not merely the federal
character of the polity envisaged by them but also make a mockery of democratic principles. It
seems that they were very much sure that the provision of the article would not be used to
strengthen the corporative federalism1 but it would be used in resolving the ministerial crisis in the
State observed by Shiban Lal Saksena “I feel that by these articles we are reducing the autonomy of
the States to a farce. These articles will reduce the State Governments to great subservience to the
Central Government.”2
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. Constitutional issues are inherently
controversial but there is a striking unanimity of opinion on the persistent misuse of Article 356 of
the Constitution, which empowers the President of India to impose President’s rule in states and
dissolve(state) assemblies. Hence, it is rightly said that the power of “dissolution of the state
assemblies points to a deep-seated anomaly in the Indian federal structure. The power of the
President to dissolve state assemblies and to dismiss state governments under Article 356 is
intended to be used only in emergency situations when other constitutional remedies fail to meet the
threatening situation”. Moreover, Article 356 comes under the emergency provisions of the
Constitution, which means that the extraordinary powers under this article are to be exercised rarely
and only in extremely abnormal situations when the state assembly and the government are unable
to function according to the provisions of the Constitution.

1 G. Austin, „The Indian Constitution — Cornerstone of a Nation', 187; K.C. Wheare „Modern Government'(1971) —
18; Jennings, „Some Characteristics of the Indian Constitution', 55; D.D. Basu, „Commentary on the Constitution of
India', 7th Edn., Vol. A, 55
2 Constituent Assembly Debates, Vol. IX, 141
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2. The Concept of Presidential Rule in State
Article 356 incorporated in the Constitution of India gives the President, the power to impose
President’s rule in States. The 'Emergency Provisions of the Constitution form a fascicules of nine
Articles giving the President overriding authority to assume and exercise powers to deal with four
types of extra-ordinary situations.
1. A situation of grave emergency whereby the security of India or any part of its territory is
threatened by war or external aggression or armed rebellion. (Articles 352 and related Articles:
353, Proviso to 83(2), 250, 354, 358 and 359).
2. A situation involving breakdown of constitutional machinery in a State, i.e., where the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution (Articles 356 and 357).
3. A situation of ‘external aggression’ and/or ‘internal disturbance’ which is not grave enough to
satisfy the requirements of either Article 352 or 356, but nevertheless, calls for other action by
the Union pursuant to the first part of Article 355.
4. A situation where the financial stability or credit of India or any part thereof is threatened
enabling the Union to give suitable directions (Article 360).

2.1 ‘On the receipt of a report from the Governor or otherwise’

Like the President, the Governor is to act in accordance with the aid and advice of the Council of
Ministers by virtue of Article 163(1). The Governor's report for the imposition of President’s rule
will fall within the ambit of the discretionary power as in Article 163(2) of the Constitution. This is
so because the Governor cannot possibly act in accordance with the advice of the Council of
Ministers, who cannot give an advice prejudicial to their interest.3
The expression “or otherwise” means that the President may act on the information received from
sources other than the Governor’s report. This includes reports from a Union Minister or from the
Council of Ministers. The President can only act in accordance with the advice of the Council of
Ministers. The dissolution can also be ordered on the satisfaction that a situation has arisen in which
the Government of the State cannot be carried in accordance of the provisions of the Constitution.
Satisfaction can be reached by the President on report from the Governor of the State, or on other
material or solely on the report itself. Even in the absence of report, other relevant materials can be
taken into consideration by the President for dissolution. This expression “or otherwise” is thus of

3 Samsher Singh v. State of Punjab AIR 1974 SC 2192 paras. 55, 138
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very wide amplitude.4
The Governor however is not the decision making authority under Article 356. His report will be
scrutinised by the Council of Ministers and the final decision is by the President under Article 174
of the Constitution.

‘Satisfaction’
The expression “satisfaction” means not the personal satisfaction of the President but a legitimate
inference drawn from the material placed before him. This satisfaction is the satisfaction of the
Council of Ministers. Under Article 74(1), the President is to act on the aid and advice of the
Council of Ministers.

3. The Scope of Article 356

Under Article 356(1) if the President, on the receipt of 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 in accordance with the Provisions of the Constitution, the President may by proclamation:
• Assume to himself all or any of the functions of the government of the State and all or any of the
powers vested in or exercisable by the Governor or any body or authority in the State other than
the Legislature of the State.

• Declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of the Parliament.
• Make such incidental and consequential provisions as appear to the President to be necessary or
desirable for giving effect to the objects of the Proclamation, including provisions for suspending
in whole or part the operation of any provisions relating to any body or authority in the State.
The provision to Article 356(1) rules out the assumption of the powers of the High Court. The
proclamation of dissolution has to be ratified within 2 months by both Houses of the Parliament.
The power under Article 356 (1) is an emergency provision but is not an absolute power. The power
is conditional, the condition being the formation of satisfaction of the President as contemplated by
Article 356(1).5 Thus, the power is to be exercised by the President in exceptional circumstances, as

4 Rameshwar Prasad v. Union of India (2006) 2 SCC 1, 79 at para. 43

5 Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, 94 para. 96
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Emergency itself means a situation which is not normal, a situation which calls for urgent, remedial
action. But interestingly, Article 356 nowhere uses the expression “Emergency”.6

4. Judicial Review under Article 356

The question of judicial review under Article 356 has come up for consideration before the Courts
in several circumstances. The first such instance was in the Kerala High Court in K.K. Aboo v.
Union of India.7 In that case the Court refused to go into the constitutionality of the proclamation
under Article 356. Later in Rao Birender Singh v. State of Haryana8 , it was held that the
President while exercising power under Article 356 did not act on behalf of the executive of the
Union but in a constitutional capacity and hence the exercise of power by the President was not
amenable to the jurisdiction of the Court. The view by the Andhra Pradesh High Court in
Hanumantha Rao v. State of Andhra Pradesh9 and the Orissa High Court in Bijayananda Patnaik
v. President of India.10 Thus, the Courts gave support to the action of the Central Government.
Interestingly, none of them came for consideration before the Supreme Court. The Supreme Court
faced the question for the first time in State of Rajasthan v. Union of India.11 (Hereinafter the
State of Rajasthan case).

4.1 The Approach in case of Rajasthan Case

The facts leading to the State of Rajasthan case was as follows:The Janata Party came to power in
the Centre after the 1977 elections but it was not in power in any of the States. On April 18, 1977,
the Union Home Minister addressed letters to the Chief Ministers of nine states, namely: Bihar,
Haryana, Himachal Pradesh, Madhya Pradesh, Punjab, Orissa, Rajasthan, U.P. and West Bengal,
asking them to advise the Governors of their respective states to dissolve their legislative assembly
in exercise of their power under Article 174 (2) (b) and seek a fresh election. The reason was that
these Governments no longer enjoyed the confidence of the people, as they were rejected in the
recent Lok Sabha elections.

6 State of Rajsthan v. Union of India AIR 1977 SC 1361 at paras. 169, 188-A, 201
7 AIR 1965 Ker. 229
8 AIR 1968 P&H 441
9 (1975) 2 An WR 277
10 AIR 1974 Ori. 52
11 AIR 1977 SC 1361
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A 7 judge constitutional bench heard the matter.12 The Supreme Court upheld the action of the
Centre and held it to be a valid exercise of Article 356 as the rout of the ruling party in these States
did mean that the government of the State cannot be carried on in accordance of the provisions of
the Constitution. However, it made a sharp departure from the views of the different High Courts
regarding judicial review of proclamation under certain circumstances. Bhagwati and Gupta JJ
elaborated the limited grounds at para. 144 of the judgment.13
The Court thus allowed judicial review on limited grounds. It also made a difference between
“satisfaction” and “existence of satisfaction” appearing in Article 361(1) that provided immunity for
Presidential action, wherein the later could not exist in malafide or irrelevant grounds. The decision
will be examined critically in the project.

5. PRESIDENT’S RULE IN PRACTICE

Article 356 was brought into operation as early as 1951. In the initial years, there were not many
instances of its use. 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

12 The bench comprised of M.H. Beg C.J., Y.V. Chandrachud, P.N. Bhagwati, P.K. Goswami, A.C. Gupta, N.L.
Untwalia, S. Murtaza Fazal Ali JJ
13 AIR 1977 SC 1361, at p.1414
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power at the Centre,14 misuse the power for political ends. President’s rule has been imposed in the
States mainly on the following grounds:
i. Breakdown of law and order.
ii. Where no ministry could be formed.
iii. Pending elections in newly created States
To prevent the article’s arbitrary use, several institutional safeguards were set in place. First, the
president of India, who makes the official proclamation of central rule in the states, can return the
central cabinet’s recommendation for the imposition of central rule back to the cabinet for
reconsideration if he or she finds the invocation of the emergency provision unreasonable. Such a
presidential response is seen in India as politically embarrassing to the central government—it
signals to the wider public that federal officials are misusing constitutional provisions. Second, the
government, having secured presidential assent, must get the proclamation of central rule passed in
both houses of Parliament within two months, failing which the proclamation ceases to be effective.
This provision gives parliamentarians an opportunity to question the government’s decision and, if
they find it arbitrary, vote down the proclamation. Finally, a government decision to impose central
rule in any state can be challenged in the courts. None of these safeguards, however, prevented
successive central governments from imposing Article 356 in the states 103 times over nearly six
decades.

6. THE ROLE OF GOVERNOR

The Governor is the Constitutional head of the State Government. The role of the Governor has
emerged as one of the key issues in Union State relations. The Indian political scene was dominated
by a single party for a number of years after Independence. Problems which arose in the working of
Union-State relations were mostly matters for adjustment in the intra-party forum and the Governor
had very little occasion for using his discretionary powers. The institution of Governor remained
largely latent. Events in Kerala in 1959 when President’s rule was imposed, brought into some
prominence the role of the Governor, but thereafter it did not attract much attention for some years.
A major change occurred after the Fourth General Elections in 1967. In a number of States, the
party in power was different from that in the Union. The subsequent decades saw the fragmentation
of political parties and emergence of new regional parties frequent, sometimes unpredictable
realignments of political parties and groups took place for the purpose of forming governments.

14 National Commission to Review the Working of the Constitution, supra note 3, at 1.1.1
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These developments gave rise to chronic instability in several State Governments. As a
consequence, the Governors were called upon to exercise their discretionary powers more
frequently.15 The manner in which they exercised these functions has had a direct impact on Union-
State relations. Points of friction between the Union and the States began to multiply.
The part played by some Governors, particularly in recommending President's rule and in reserving
States Bills for the consideration of the President, has evoked strong resentment. Frequent removals
and transfers of Governors before the end of their tenure has lowered the prestige of this office.
Criticism has also been levelled that the Union Government utilises the Governor's for its own
political ends.Many Governors, looking forward to further office under the Union or active role in
politics after their tenure, came to regard themselves as agents of the Union.
The Governor plays a very vital role under Article 356. His report is normally the ground for the
President to arrive at the satisfaction mandated by Article 356. Article 356 is normally put into
operation following the Governor's report. Thus, the Governor plays a crucial role. His role was
aptly explained by India's first Attorney General M.C. Setalvad in his Tagore Law Lectures in 1974
on “Union State Relations”.

6.1 Whether Article 361 grants immunity to the Governor?

In terms of Article 361 Governor enjoys complete immunity. Governor is not answerable to any
Court for exercise and performance of powers and duties of his office or for any act done or
purporting to be done by him in the exercise of those powers and duties. However, such immunity
does not take away power of the Court to examine validity of the action including on the ground of
malafides.16 Judicial authority does support this view.17

6.2 Failure to invoke emergency provisions

On the other extreme of misuse of Article 356 was the failure of the Union Executive - which was
of the same political belief as the Government of Narendra Modi in Gujarat - to invoke Article 356
during the carnage following the Godhra train incident on February 27, 2002, in the State of
Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of the Upper
House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: “Vital statistics tells

15 Arijit Pasayat J in Rameshwar Prasad case at paras.213, 270 to 274 and 281(7)
16 Per Y.K.Sabharwal C.J. at para. 134
17 Union Carbide Corporation v. Union of India (1991) 4 SCC 584, State v. K.M. Nanavati (1960)62BOMLR383
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us that there are more than 100000 persons in refugee camps and more than 30,000 people have
been chargesheeted. Are these figures not enough to compel the Government to take action under

articles 355 and 356?”18 Fali Nariman also rightly pointed out in an interview with a newspaper

correspondent that the Constitution may not have envisaged a situation where an emergency has
arisen in a State where the ruling party is of the same political persuasion as the one at the Centre
and, hence, the Centre might be biased against dissolving that government by invoking Article 356.
He also pointed out that the word ‘otherwise’ in the text of Article 356 becomes instrumental in
such a situation to allow the President to act without waiting for the Governor’s Report.19

CONCLUSION
Article 356 of the Constitution was most keenly discussed and debated in the Constituent Assembly.
The Founding Fathers apprehended that, if and when it would be misused, it would violate not
merely the federal character of the polity envisaged by them but also make a mockery of democratic
principles. It seems that they were very much sure that the provision of the article would not be
used to strengthen the corporative federalism but it would be used in resolving the ministerial crisis
in the State.20
It has to be borne in mind that the success or failure of constitutional provisions depends on the
final analysis not upon the elegance of the language in which they are couched, important though
that be, it depends more upon the way they are actually worked. Used properly and in the right
spirit, article 356 can subserve national interests, be misused and abused for ulterior purposes, it
would operate as an instrument of oppression.21 It is evident that there is a lack of effective
safeguards against the abuse of Article 356 of the Indian Constitution. The safeguard of
‘parliamentary approval’ - outlined in Article 356 (3) - of a Proclamation under Article 356 (1)
could be biased because the Party that is in power at the Centre generally dominates Parliament by a
majority vote. Furthermore, even a vote in Parliament declaring a particular imposition (or failure to
impose) of President’s Rule to be wrongful cannot undo the damage already done. However, as we
have observed, since the S.R Bommai decision, the original intent behind the inclusion of this
Article is being fulfilled now. Moreover, the role of the central government is still the same but the

18 rajyasabha.nic.in/rsdebate/synopsis/195/s02052002.html
19 http://rajyasabha.nic.in/rsdebate/synopsis/195/s02052002.html
20 CONSTITUENT ASSEMBLY DEBATE, Supra note 2 at p.141.
21 KHANNA, H.R., Supra note 3.
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arbitrariness has gone down. So we will have to suffice for now with occasional outcries against the
Union Executive unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword
called Article 356.

BIBLIOGRAPHY AND REFERENCES

CASES:
• S. R. BOMMAI V. UNION OF INDIA
• State of Rajasthan v. Union of India.
• Bijayananda Patnaik v. President of India.
• Hanumantha Rao v. State of Andhra Pradesh
• Rao Birender Singh v. State of Haryana

OTHER AUTHORITIES:
• First Day in the Constituent Assembly, as available on http://parliamentofindia.nic.in/debates/
facts.html
• Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21,
1996
• http://rajyasabha.nic.in/rsdebate/synopsis/195/s02052002.html
• National Commission to Review the Working of the Constitution

TREATISES:
• D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483
• M.P Jain, Indian Constitutional Law,7th ed., 713

REPORTS:
• Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat,
1949), p. 177 [Hereinafter Constituent Assembly Debate].
• National Commission to Review the Working of the Constitution, A Consultation Paper on Article
356 of the Constitution, II, 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.html
• The Sarkaria Commission Report, (1987)

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ARTICLES:
• Hande, H.V., Limitations of Article 356, THE HINDU, May 6, 2003 as available on http://
www.hindu.com/thehindu/op/2003/05/06/stories/2003050600010200.html (Last visited on
10/8/19)
• Jeevan Reddy, B.P., Bommai verdict has checked misuse of Article 356, FRONTLINE, 15(4) as
available on http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited on 12/8/19)

• Khanna, H.R., Use and Misuse of Article 356, BAXI, UPENDRA(ED.), RECONSTRUCTING
THE REPUBLIC, (New Delhi: Haranand Publications), 1999, p. 154.

• Prasad, Janardhan, ARTICLE 356 of the Constitution of India, JANARDHAN PRASAD D V S

as available on http://www.janardhanprasaddvs.com/article-356.html (Last visited on 17/8/19)

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