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PROVISION OF ARTICLE 356 : AIMS, IMPLECATIONS,

USES AND MISUSES

By

Maj R K Chhikara

A dissertation submitted in partial fulfilment of the requirements for the PSC


and award of M.Sc., (Defence & Stratigic Studies) Degree at the Defence
Service Staff College, Wellington, affiliated to the University of Madras.

January 1999.
CHAPTER I

INTRODUCTION

1. Article 356 of the Constitution is based on Sections 45 and 93 of the


Government of India Act, 1935. The former section dealt with the failure of
the Constitutional Government at the Centre while the latter dealt with such
failure in the Provinces. In the present Constitution, there is no provision
about what is to be done in the event of a constitutional breakdown at the
Centre, But Article 356 contains provisions in the case of a failure of the
constitutional machinery in the States.1

2. While introducing the draft Article 278 (now Article 356),


Dr. Ambedkar explained that Article 356 was being introduced to meet a
situation where there is a breakdown of the constitutional machinery.

3. The power under Article 356 has to be exercised on receipt of a report


from the Governor of the State or otherwise. While there was no objection to
the President acting on the basis of a receipt of a report from the Governor, the
words “or otherwise” generated heated debate and the provisions of this
Article were discussed in full on August 3 and 4, 1949. The main objection of
Mr. H.V. kamath and Shibban Lal Saksena was against the words “or
otherwise” occurring as they were thought to confer arbitrary power on the
Centre. The suggestion was to delete the two words.

4. During the debate, Sir Alladi Krishnaswami Aiyar supported the


retention of this expression. Significantly, he mentioned that if a responsible

1
The Hindu. 7 July 98, p. 25.
Government as contemplated by the Constitution functioned properly, the
Union would not and could not interfere.2

5. In the course of his valedictory address to the Constituent Assembly on


26 Nov 1959 President Dr Rajendra Prasad said if the people who are elected
are capable and men of integrity and character, they will be able to make best
even of the defective constitution. If they are lacking in these qualities, no
constitution can help the country.

6. If our constitution worked quite well during the early years of


independence, it was because it was operated by men of integrity and
character. If the same stands discredited today, it is because it is in hands of
those who have scant regards for certain basic value so essential for healthy
democracy.

2
Ibid
CHAPTER II

METHODOLOGY

Statement of the Problem.

1. To study the applicability of Article 356 in the prevailing political


environment and recommend the modalities for its use.

Justification for the Study

2. 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.3 The framers of the constitution
expected it to be used as a lost resort after exhausting all other remedial
measure available with in the framework of a parliamentary system. However
their hopes that it would be used in hauling up the constitutional machinery
sparingly have been belied because President’s rule has been involved
somewhat frequently on the slightest pretext. The indiscriminate use of this
provision has become as matter of controversy among public men and scholars
alike.

3. The Indian politics till 1967 saw one dominant party system. During
this period the imposition of President’s rule was not frequent. After the fourth
General election’s in 1967, the article 356 assumed a greater significance, as
congress party was thrown out of power in many states. The formation of
coalition governments and two-sided defection’s became an order of the day.

3
The Tribune. 8 Nov 98, p. 2 (Sunday Reading)
4. The Article 356 lacks clarity. It says practically nothing and says
almost everything. It enables the centre to interfere on the slightest pretext and
it may enable the centre to refuse to interfere on the gravest occasion. In the
recent past, the few articles have been more widely referred to than Article
356. There has been constant pressure on various coalition governments
including the present one to invoke this article, the latest in the live being the
demand of dismissal of Tamil Nadu, Karnataka and Bihar governments. Thus
it is necessary to understand the ambit and scope of Article 356 and study
whether it permits the dismissal of a state government at the behest of a
coalition partner or a regional political rival.4

Organisation of the Dissertation

5. It is proposed to study the subject in the following manner:-

(a) Chapter III - Provisions and Scope of Article 356

(b) Chapter IV - Implication of Article 356

(c) Chapter V - Concept of stable Government

(d) Chapter VI - Views of Supreme Court

(e) Chapter VII - Role of the Governor under Article 356

(f) Chapter VIII - Application of Article 356

(g) Chapter IX - Remedial Measures


(h) Chapter X - Conclusion.

4
The Hindu. 7 Jul 98, p. 25
CHAPTER III

PROVISIONS AND SCOPE OF ARTICLE 356

Provisions of Article 356.

1. The emergency under Article 356 deals with the failure of


constitutional machinery in a State. The condition precedent to the
proclamation by the President under this Article is his satisfaction that a
situation has arisen in which the government of a State cannot be carried on in
accordance with the provisions of the Constitution. The satisfaction of the
President has relationship with the duty of the Union set out in the second part
of Article 352. Under that Article, it shall be the duty of the Union to ensure
that the government of every State is carried on in accordance with the
provisions of the Constitution.(FT) It may be noted that under Article 365
where any State has failed to comply with or to give effect to any direction
given in the exercise of the executive power of the Union under any of the
provisions of this Constitution, it shall be lawful 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 the Constitution. The satisfaction of
the President that the government of the State cannot be carried on in
accordance with the provisions of the Constitution is a condition precedent to
the exercise of powers under Article 356.(FT) Article 356 had undergone
material changes by various constitutional amendments.

2. If the President on receipt of report from the Governor (FT) of a State


of otherwise, is satisfied that 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 (FT) or any body 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 object
of the Proclamation, including provisions for suspending in whole or in
part the operation of any provisions of the Constitution relating to any
body or authority in the State.

(d) 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.

3. Any such Proclamation may be revoked or varied by a subsequent


Proclamation.

4. Every Proclamation issued under this Article shall be laid before each
House of Parliament and shall, 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 pervious 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.

5. A Proclamation so approved shall, unless revoked, cease to operate on


the expiration of a period of (FT) six months from the date of the passing of
the Second of the resolutions approving the proclamation under clause (3).
(FT) 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
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 operate, but no such
Proclamation shall in any case remain in force for more than three years.

6. Provided further that if the dissolution of the House of the people takes
place during any such period of six months (FT) 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 said period,
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 (FT).
7. (FT) Notwithstanding any thing 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.(FT)

SCOPE

8. Article 356 sets out the condition and the manner of exercise of power
under it. The Proclamation has a very far-reaching effect on the government of
the State concerned. The normal manner of satisfaction of the President that
the government of the State cannot be carried on in accordance with the
provisions of the Constitution is on receipt of the report of the Governor of the
State. However, as the Article expressly states, the President can arrive at the
satisfaction that the requisite situation has arisen even otherwise than on a
report.5

9. The Presidential Proclamation may have effect as set our therein on the
executive power of the State as also on its legislature. But it cannot have any

5
Constitutional law of India, p. 657
impact on the power exercisable by or relating to the High Court of the State.
The President may assume to himself all or any of the function of the
government and the powers vested in the Governor or any body or authority in
the State other than the legislature. Further, the President can declare that the
powers of the state legislature shall be exercisable by or under the authority of
Parliament. The President can also make other incidental and consequential
provisions. But the proviso expressly precludes the President from assuming
any of the powers vested in or exercisable by the High Court.6

10. The Proclamation has to be laid before each House of Parliament and it
ceases to have operation at the expiration of two months unless approved as
set out in sub-Article (3). The Proclamation, however, is efficacious on its
own for a period of two months and even if it lapses or Parliament does not
approve of it, it is fully operative for two months, the President acting on the
advice of the Ministers may take irrevocable steps like dissolution of
assemblies. But this assumption of power even without the approval of
Parliament has full force and effect.7

11. The Proclamation ceases to operate unless within a period of two


months, the Proclamation is approved by each of the House of Parliament. The
Article makes further provision for the time factor if the house of the People is
not constituted or sitting during that period.8

12. Such approved Proclamation also ceases to operate at the expiration of


six months from the date of the issue unless it is further approved by a
resolution of both the Houses of Parliament. Thus the Proclamation is
efficacious even after approval only for six months at a time and requires
recurrent approval by Parliament. But even with such approval, the total

6
Ibid.
7
Ibid, p. 638.
8
Ibid.
period of time for which a given Proclamation can remain in force, cannot be
more than one year. If, however, there is Proclamation of emergency in
operation in the State in question and the Election Commission certified that
the continuance in force of the Proclamation is necessary on account of
difficulties in holding general elections, such a Proclamation can be continued
for a further period but not exceeding three years in all.9

13. The Proclamation can be revoked or varied by subsequent


Proclamation. However, unlike in Article 352, there is no provision in Article
356 for an express resolution or session of the House of the People for
disapproving the continuance in force of such a Proclamation. On the other
hand, a Proclamation under Article 356 cannot be extended beyond a period of
one year or three years as set out about whereas a Proclamation under Article
352 is not subject to any such time limit.10

14. Constitutional Changes Article 356 has undergone material


changes by constitutional amendments. The Thirty-eight-Amendment Act,
which came into effect from 1st August 1975, sought to add a clause to Article
356 by which the satisfaction of the President would be final and conclusive
and not questioned in any court of law. The terms of the said amendment
made the amendment retrospective as from the commencement of the
Constitution. The Forty-second Amendment which came into effect from 3rd
January 1977 amended Article 356 by extending the period of approval at one
time to one year instead of six months as it stood earlier. However, the Forty-
fourth Amendment Act, 1977 that came into effect from 28th June 1979
restored the earlier situation. The clause relating to one year was again
substituted by the period of six months. Further the provision regarding
finality of the satisfaction of the President was deleted. A new-sub-article was
added which made the period of Proclamation of emergency under Article 352
9
Ibid.
10
Ibid.
in the State and the Election Commission certified that the holding of the
general elections was not possible in which event the period could be extended
for three years at the most.11

15. Effect of Proclamation. The Proclamation under Article 356 can


provide for assumption of the legislative and the executive powers of the
State. This is a very drastic power. Which if misused or abused, can destroy
the constitutional equilibrium between the Union and the States.

16. Executive Power Article 356 (l) (a) enables the President to
assume to himself all or any of the functions of the government of the State
and all or any of the powers of the Governor or any executive body or
authority. Thus the executive authority of the State can be assumed and
exercised by the Union Government, as it thinks fit.

17. Satisfaction of the President. The satisfaction of the President


that a situation has arisen in which the government of a State cannot be carried
on in accordance with the provisions of the Constitution is a condition
precedent to the proclamation under Article 356. The language of the Article
is akin to the condition to be found in Section 93 of the Government of India
Act, 1935 but it has a far more drastic effect on the federal equilibrium. Since
the satisfaction of the President is a condition limiting the exercise of the
power, it is subject to judicial scrutiny even though on limited grounds. The
Supreme Court has laid down the law on the subject in the State of Rajasthan
V. Union of India,(FT).

11
Ibid.
CHAPTER IV

IMPLICATIONS OF ARTICLE 356

1. Being a constitutional head, the President can exercise his powers only
on the advice of his council of Ministers. He can’t act on his discretion. It is
the Prime Minister business with the support of his Ministers to rule the
country. After 44th constitutional Amendment Act, the President can’t impose
Presidents rule on the advice of Prime Minister alone but the decision of the
whole cabinet is required for this purpose. However, the President is given the
power to send such recommendations for reconsideration of the cabinet but is
bound to act in accordance with advice rendered after such reconsideration.

2. Satisfaction of the President implies the power to take decisions at his


own satisfaction and to play a distinctive role as a head of union government
and Head of Union of States to keep equilibrium in Centre States relations.

Bihar Crisis

3. Acting on the Bihar Governor Mr S S Bhandari’s report the Union


Cabinet decided that President’s rule under Article 356 of the constitution be
imposed in the state. When the decision was forwarded to the President, he
sent it back for reconsideration on the following ground:-12

(a) The ruling party had a majority in the Assembly and had won a
vote of confidence.

(b) No opportunity had been given to the state government to show


cause why President’s rule should not be imposed.

12
The Hindu. 21 Oct 98, p. 12
(c) Nothing that governor had reported amounted to breakdown of
the constitution machinery in the state or that the government was nor
being carried on in accordance with the provisions of the constitution.

4. Overall the decision of the President demonstrated that he was no


rubber stamp and created a comforting feeling that he will act as a watchdog, a
constitutional check against executive excess. He acted wisely particularly
when he was dealing on one side, with a BJP leadership that had clearly
placed political considerations above constitutional ones in using Article 356
and on the other, with a state government that is run by proxy by a politician
charge sheeted by the CBI.13

5. After this incident some of the issues that may need to be clarified are:-

(a) Exactly what kind of a situation may be correctly characterized


as being so serious that recourse to other alternatives is not necessary
before invoking Article 356.

(b) If in ordinary circumstances, warnings or directives are


necessary before involving Article 356, then how long must a state
government be given to comply with such directives.

(c) What distinguishes were “maladministration” from a situation


in which the constitutional machinery can legitimately be said to have
broken down?

6. Thus a watchful impartial president can prove to be greatest safeguard


against any unjustified imposition of President’s rule. In case there is no

13
The Hindu. 24 Oct, p. 12.
improvement after issue of warning and there is a breakdown of law and order,
the centre has option to take necessary steps again to impose President’s rule.

7. Secondly the satisfaction of President is treated as a satisfaction of the


cabinet. But K Subha Rao, former Chief Justice of India says that satisfaction
means the Presidents discretion rather than satisfaction of the cabinet. It is not
necessary that President would be satisfied on the advice rendered by the
cabinet. Every proclamation under Article 356 is to some extent a confession
of the failure of democracy and the Centre directly comes into conflict with
the states. So every care should be taken to avoid the conflict. The powers
under Article 356 is not fattered by any Limitation except ‘satisfaction’ of the
president and no proper criteria has been prescribed nor any guide lines are
laid for the exercise of this power.

8. The satisfaction of the President and basis of satisfaction are kept


unjustifiable because of certain reasons like the wide source of information as
contemplated by the expression ‘otherwise’ give ample indication in this
regard, satisfaction & basis of satisfaction are subjective, the court under
Articles 74(2) & 361 (1) lacks authority to test the grounds of satisfactions.

Governor Report.

9. Article 355 puts a duty on the Union government to ensure that the
government of a state is run in accordance with provisions of the constitution.
The Governor in this respect plays an important role as an agent of the centre.
In case of failure of constitutional machinery in a slate he can send a report to
the President under Article 356. Otherwise also, the Home Ministry keeps its
self-informed of the happening in the slate through secret fortnightly report of
the Governor as well through intelligence services. However, the Governor is
supposed to report as a last resort only, after exhausting various alternatives in
salvaging the constitutional machinery. In the process, the Governor is
expected not to allow himself to be influenced by any external agency like the
Central government or any other body, which could support political motives.
He is to work as the sheet anchor of federal-cum-parliamentary system and
should not become a pawn in the hands of ruling party at the centre.

10. As per Dr H V Rao the Governor should exercise the powers of


dissolution of assembly under 174 and should report to president only if he is
fully satisfied that no government stable or unstable is possible at all.14 He
further suggested that the Governor should not take prior action himself by
dissolving the Assembly first and then reporting to the President, as Punjab
Governor DC Pavate did in 1971 and Dharamvira in W.B. in 1971. He should
not seek guidance from the centre either before the report stage or during the
period when the President is seized of the matter. Generally, the Governors are
seen shuttling back & forth between Delhi & the capitals of their respective
slates as to oblige their masters at the centre.

11. Earlier the Governor’s report was considered as a secret document as


disclosed in the Lok Sabha on November 19, 1954 about failure of
constitutional machinery in AP. But in 1959, the summary of the report of
Kerala slate was laid on the table of the House15 and thereafter the practice is
still observed.

Or Otherwise.

12. The President is empowered to act otherwise, besides the report of the
Governor under Article 356. Thus, the Governor report is not a necessary
condition for the presidential action and he can assess the situation from his

14
KV Rao, President rule in India. Journal of Society for State Govt. Vol IV, Jul – Dec 77, p.
377.
15
President’s rule in States, New Delhi, Loksabha Sectt. 1976, p. 2.
own means. Moreover, it is not necessary that Governor’s report will result
into presidential action. He is free to accept or reject his report. BR Ambedkar
said that the word ‘otherwise’ was incorporated after a great deliberation to
overcome a situation where the governor doesn’t submit report and president
feels that the prevailing conditions demands immediate intervention based on
the facts/knowledge available with him.16 So the word ‘otherwise was inserted
to cover the contingency when the Governor was either not willing to report or
was unable to report.17

13. HV Kamath and SL Saxena criticised the inclusion of the word


“otherwise” on the grounds that there was no requirement of the President to
intervene in state affairs himself when he had the governor as his nominee.
However same felt that when governor despite being a President’s nominee
doesn’t do his duties or submits a wrong report then the president should have
right to know the truth.

14. However, some scholars intend that in case the Governor is not doing
his duties or gives a wrong report, then the President should have the right to
know the truth.

In accordance with the provisions of the constitution.

15. The expression is very ambivalent & vague. When asked about its
meaning, B R Ambedkar evaded answering in the constituent assembly, as it is
vulnerable to various interpretations.18

16. Now the question arises that what is the constitutional machinery, on
failure of which, the President can deal under Article 356. It means a situation

16
Dr. BR. Ambedkar. CAD, Vol IX, p.134.
17
Ibid, p 143-144.
18
The Hindu. 7 Jul 98, p. 25
when the Governor is unable to find a Council of Ministers to aid & advice
him (Articles 163 & 164). Thus the term in accordance with the provisions of
the constitution may include:

(a) Political breakdown and deadlock requiring careful analysis. A


political breakdown means when no ministry can be formed or the
Ministers that can be formed are so unstable that the government
actually breaks down, or where a Ministry having resigned, and the
Governor finds it impossible to get an alternative government formed
or where for some reasons or the other, the party having a majority in
the Assembly declines to form a Ministry and the Governor’s attempts
to find a coalition Ministry able to command a majority have failed. 19

(b) Even when the party alignment in the slates is such that no
stable government can be formed, as it happened in some of states.

(c) When the breakdown occurs owing to the Ministry in the slate
refusing follow the directions of the centre.

(d) There maybe physical breakdown of the government in a slate


eg, when these is a wide spread internal disturbance, violence or revolt
by the slate or external aggression or for some reason or another, law
& order can’t be maintained or disturbances & chaos occur.

(e) Contingency of economic breakdown where the Ministry wants


to make its eff popular by reducing or canceling all taxes & running
the administration on bankrupt bases and accumulates deficits. When
the slate’s economic plans maybe in contrary to economic policies of
the centre.

19
State of Rajasthan Vs Union of India AIR, 1977 SC 1361.
(f) When the Ministry is absolutely corrupt and is misusing the
machinery for dishonest purposes to keep itself in the chair of power.

(g) Defections and defections horse-trading.

Effects of a proclamation under Article 356

17. Once the proclamation is made, it will be open to the President to


specify whether, he will exercise any or all of the powers relating to
administration of the state concerned. Every proclamation under Article 356
should be laid down before both House of Parliament (clause 3 of Article 356)

18. Dissolution of State Assemblies: - One of the powers, which the


President of India can assure, is the power to dissolve the state Assembly
under Article 174 (2) (b). The Supreme Court has withheld this view.20

19. Modality of the President’s Rule: Normally the reports are sent only
after the Governor meets the P.M. and Home Minister in New Delhi. The
Governor does act on aid & advice of state cabinet. He is not answerable to
any court or law for such a report. But the President decides the course of
action only on the advice of Council of Ministers. The 44th Amendment Act
made it obligatory on President to go by the advice if rendered after its
reconsideration.

20. Effects of President’s Rule: The President is empowered to issue


ordinances in respect of state concerned when Parliament is not in session. The
executive authority of the state is passed on to the President. He is also

20
Bijay Nanda Patnaik Vs Union of India AIR, 1974 Orissa, p. 69.
authorised to delegate the assumed executive authority of the state to the
Governor.21

21. In case the state legislature is suspended, its powers shall be taken over
by the Union govt. But Under Article 357 the Parliament is empowered to
delegate such Legislature powers of the slate to the President or any other
authority specified by him. A consultative committee of members of both
Houses of Parliament is set up to advise the govt on matters of legislation
relating to state under President’s rule. Even the financial transactions are to
be conducted by the Parliament.

22. The President’s rule may entail a violation of fundamental rights when
state Assembly is dissolved and its members are deprived of their rights to
receive salary and allowances. However the Supreme Court in its verdict in
State of Rajasthan US/Union of India decided that were is no violation of any
fundamental right.22

21
CAD Vol IX, p.151
22
State of Rajasthan Vs Union of India AIR, 1977 SC 1361.
CHAPTER V

CONCEPT OF STABLE GOVERNMENT

1. Prof. KT Shah raised the question of a stable Government when the


Constituent Assembly was discussing the Draft Constitution. He wanted the
Presidential system of Government designed on the American pattern because
he thought that the Parliamentary system of the Government would not be
suitable for India, as it was likely to be unstable the majority of the members
of the Constituent Assembly did not agree with him and instead preferred the
Parliamentary system in spite of the risk of unstable Government involved it.

2. Hence, if we take the debates of the Constituent Assembly into


account, then it would seem that the instability of the Government is not a
very convincing reason for the imposition of President’s Rule.

Shortcomings in the Concept

3. The stability of the Government is a very vague expression and it does


not completely fit in with the parliamentary form of Government based on the
multiple-party system. The Governors have been applying the yardstick of
majority of the party in the Assembly as a proof of a stable Government which
by itself is a doubtful proposition because the majority of the party in power in
the Assembly and stability do not always go together. D.C. Pavate, the former
Governor of Punjab seems to be partly right when he says that “stability meant
not only numerical superiority of the ruling party but also its ability to hold on
to the majority strength and continuing with it.23 He is partly right because the

23
JR Siwach. Politics of President’s Rule in India, p. 59
stability of the Government does not depend upon the party in power
maintaining its majority in the Assembly alone. Sometimes, in spite of the fact
that the party in power may have its majority in the Assembly and yet the
Government, because of internal dissensions in the party, may in practice
prove to be the most unstable as was the case in Travancore-Cochin. When the
election was held in 1946 for an Assembly of 108 seats of which 104 were
won by Congress members. There were only four members in the opposition.
“Still within six months the first Ministry fell. If the Government is to be
stable then it is not sufficient that a party or a group should be in a position to
command a transitory majority. The majority must be such as to enable the
Government to survive even in face of realignment of floating votes. If it does
not have that capacity then it will not be stable even if it has a substantial
majority because that majority can at any time become a minority on account
of defections. The examples of Harayana and Madhya Pradesh in 1967 can be
quoted in support of this contention. In these States, after the elections of
1967, the Congress party had a substantial majority but the Government of
B.D. Sharma in Haryana fell on its 13th day and that of D.P. Mishra in
Madhya Pradesh within five months.24

4. On the other hand a Government having a very narrow majority may


sometimes prove to be very stable. For example, the Namboodiripad Ministry
in Kerala in 1967, (FT) Mohal Lal Sukhadia Ministry in Rajasthan (FT) and
Singh Deo Ministry in Orissa (FT) in 1967 which had very narrow majorities
but were very stable surprisingly Singh Deo’s Ministry continued to be stable
in spite of the fact that after some time eight legislators withdrew their support
making the Government in fact a Minority government. The Chief Minister
conceded this in a news conference in New Delhi on March 20 that his
Government was in a minority but maintained that it was not unstable. He
said, “The present firm strength of the Ministry is 68 in a House of 140. It has

24
Ibid.
so far survived because out of eight defectors, two had returned to the ruling
Coalition; one is still wavering an some others who do not desire the fall of the
Ministry because it might lead to President’s Rule, have stayed away from the
House at the time of voting on demands for grants of various Ministries.”25

5. This, however, does not mean that a Government with a narrow


majority would always be stable and a Government with a substantial majority
would always be unstable. Ordinarily it is expected that a Government with a
substantial majority in the Assembly would be more stable in comparison with
a Government having a narrow majority in the Assembly.(FT) But in practice,
the stability of the Government depends more on the firm loyalty of the MLAs
of the party in power. If their loyalties are firm, then even with a majority of
just one, the Government could be stable. But on the other hand if the loyalties
of a substantial number of MLA’s (sufficient enough to reduce it to a minority
in the Assembly) are doubtful and flexible, then the exact majority of the
ruling party in the Assembly is not of any consequence because a majority of
today may become a minority tomorrow on account of defections. Hence,
instability is bound to be there.

Predictions Proved Wrong

6. Since it is difficult to know the firm loyalties of the MLAs in advance


and still more difficult to know till what length of time their loyalty will last it
seems difficult to predict with certainty whether a Government will be stable
on merely on the basis of a majority in the assembly. Sometimes a government
which the governor thinks to be unstable may prove stable and a government,
which he thinks to be stable, may turn out to be most unstable may turn out to
be most insatiable. For example in Bihar in 1970, the Governor Nityanand
Karungo said on October 26, that the govt led by Daroga Prasad Rai was

25
Ibid, p. 60
Stable, but the ministry collapsed on December 18,1970 that is just after 54
days.26 Similarly while appointing the minority govt of Rama Swami in
Pondichery on March 6, 1974, Lt governor Chhedi Lal said that he was
satisfied that the Ministry would be stable and Rule in India it would prove its
majority during the budget seasion. The Ministry could not face the Assembly
even once and it fell just after three weeks resulting in the imposition of
Presidential Rule.27 This shows that the predictions made by the Governors
have no meaning.

CHAMELEON – like Changes in Governor’s Views

7. Sometimes even the governors themselves have been changing their


own opinion quite frequently about the stability or instability of the
government, for example, Nityanand Karungo, then governor of Bihar in his
report to the President on February 11, 1970 wrote, “In my opinion no govt
with any reasonable prospect of stability can be formed now. Therefore, the
President’s Proclamation should be extended for another term of six months.
But in February, 14 that is, just three days later, the Governor suddenly
changed his opinion and recommended to the President that there was no need
for an extension and invited Daroga Prasad Rai, the leader of Congress (R)
legislature party to form the govt which again proved to be unstable.28

8. When the Political situation in the state can develop so fast that it even
compels the Governor to change his opinion about the possibility of a stable
government then this concept becomes a doubtful basis for the imposition of
President Rule.

26
Ibid, p. 61
27
Ibid.
28
Ibid, p. 62
CHAPTER VI

VIEWS OF SUPREME COURT

1. The basic principles laid down by the Supreme Court while


considering the power of the Union Government to dismiss the State
Government are as given in succeeding paras.29
2. The power under Article 356 is an extra-ordinary power and must be
used sparingly.

3. A federal structure is an essential feature on the Constitution of India


and State Governments, which have been duly elected by the electorate, and
are equally supreme in their respective spheres as the Central Government.

4. The power under Article 356 (1) should be used only as a last resort
and when other remedies are not feasible. Unless urgent steps are imperative
and the exercise of drastic power under the Article cannot Brooke delay; the
President should use all other measures to restore constitutional machinery in
the State.

5. President’s Rule cannot be imposed on the ground of


maladministration in a State where a duly constituted Ministry enjoying
majority support is in office. The Constitution-makers have made it clear that
this power cannot be exercised for securing a good government.

6. Article 356 cannot be invoked for superseding the duly constituted


Ministry and dissolving the Assembly on the ground that the ruling party in

29
The Hindu. 7 Jul 98, p. 25.
the State has suffered a massive defeat in the Lok Sabha Elections. Such
exercise of power will be clearly mala fide.

7. In a situation of internal disturbance not amounting to or verging on


application 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 duties under Article 356 should be exhausted before the power
under Article 356 can be used.

8. The use of power under Article 356 will be improper if the President
did not issue a prior warning or give an 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. The
requirement of giving a warning is based on the Sarkaria Commission Report
on Centre-State Relations as well as the speech of Dr.Ambedkar.

9. The Supreme Court further states that if the State Government


responds to the warning or notice with corrective action or satisfies the Union
that the warning or directive was based on incorrect facts, it shall not be
proper for the President to invoke Article 356.

10. Article 356 cannot be invoked on the ground of stringent financial


exigencies or because of serious allegations of corruption.

11. This power cannot be exercised to sort out internal differences or intra-
party problems of the ruling party. Finally, the exercise of this power for
extraneous or irrelevant purposes, which have not been contemplated by the
Constitution, would be vitiated by legal mala fides.
12. The power under Article 356 is extraordinary and should be used
sparingly when the situation requires protection of a democratic form of
Government and to prevent paralysis of the political process.

13. The exercise of power under Article 356 should under no


circumstances be for political gain to party in power in the Union
Government. Democracy and federalism are the essential features of our
Constitution and part of its basic structure. Article 356 has the potential to
unsettle and subvert the entire constitutional scheme.

14. The exercise of power vested under such provisions therefore has to be
circumscribed to maintain fundamental constitutional balance lest the
Constitution is defaced and destroyed.

15. Internal disturbance, short of armed rebellion, cannot justify the


exercise of power under Article 356 unless it disables or prevents carrying on
the government of the State in accordance with the Constitution.
CHAPTER VII

ROLE OF GOVERNOR

1. Just as the executive powers of the Union one vested in the President,
the executive powers of the state are vested in the Governor which are
exercised by him directly or through his subordinates in accordance with the
constitution. The Governor is advised by the council of Ministers in discharge
of his duties.

2. Method of Appointment. The method of appointment of the Governor


was thoroughly discussed in the Constituent Assembly, which had three
proposals before it in this respect. They were:

(a) The people on the basis of adult franchise should directly elect
the Governor.

(b) He should be appointed by the President from a panel of four


candidates to be elected by the members of the State legislature in
accordance with the system of proportional representation by means of
a single transferable vote.

(c) He should be directly appointed by the President and there was


no need to provide for a panel of candidates for such appointment.

3. After a thorough discussion, the first proposal was rejected on the


ground that his direct election by the people will lead to friction with the Chief
Minister, and the second method would create a lot of resentment in the State
legislature if the person whose name is at the top in the panel is not appointed
as the Governor and, moreover, election by State legislature would mean that
he would be a partyman and in most cases he would be a nominee of the Chief
Minister. Hence, ultimately it was decided that the President would appoint
the Governor by a warrant under his hand and seal.30

4. In actual practice, however, the President on the recommendation of


the Prime Minister appoints the Governors. Between 1950 and 1967, there was
a practice of consulting the Chief Minister while appointing a Governor when
the Congress party was ruling both at the Centre and in the States but after
1967 when in some States non-Congress parties came into power, this practice
was abandoned.31

5. The Governor has the power to recommend failure of the constitutional


machinery in the state, if the state is not being carried in accordance with the
provisions of the constitution. They have misused this power at the behest of
the central government as they have: -

(a) Recommended the dismissal of the State government when


they had a majority in the Assembly or when they were prepared to
face the Assembly immediately. This was done in PEPSU in 1953, in
Kerala in 1959, in Haryana in 1967 and in U.P. in 1970, in Tamil Nadu
in 1976, in Karnataka in 1977, Pondichery in 1978, in Manipur in
1979, in Punjab in 1986 and Karnataka in 1989. In all these cases the
grounds given among others for dismissal were not convincing.32

(b) Prevented the parties not in power at centre to form the


government immediately after election on the ground that stable

30
JR Siwach. Dynamics of Indian Government and Politics in India, p. 234.
31
Ibid.
32
Ibid, p. 252
government was not possible eg Kerala in 1965 and Rajasthan in 1967
when none of the parties had clear majority, where as largest party in
Haryana in 1982 (Congress I) was allowed to form a government
without clear majority.33

(c) Denied opportunity to the Opposition to form the government


when the Ministry resigned in anticipation of its defeat on the floor of
the House as was done in Pandicery in 1968, in Orissa in 1973, in
Nagaland in 1975, in Manipur in 1981, in Kerala in 1982 and in 1982
and in Sikkim in 1984.34

(d) Deprived non-Congress parties of a chance to form the


government even after the defeat of the Ministry on the floor of the
House as was done in Andhra in 1954, in Manipur and Assam(FT) in
1981 after the defeat of T. Prakasam, Koireng Singh and Mrs. Anwara
Taimur respectively.35

Measure for smooth functioning of Governor’s Office

6. The Governor, as an appointee of the Central Government, has come to


be looked upon as a protector of the political interests of the ruling party at the
Centre. Normally, the Governor initiates the whole process by apprising the
President of the breakdown of the constitutional machinery at the behest of the
Central Government.

7. The Governors are often treated with scant respect. Those of them who
refuse to the Centre’s line are sacked most unceremoniously like Mr. Patwari,

33
Ibid.
34
Ibid.
35
Ibid, p. 253
Governor of Madras. The Governor’s office has lost its attraction. It is just
another ingredient of patronage poll. 36

8. The dignity of the office of Governor should be restored so that he can


really become a constitutional head and does not act as an agent of the Centre.
It is necessary that the Governor is a mass of wisdom, experience and
character, and not a party man. For the smooth functioning of the Governor’s
office a set of instructions to guide the governor of his / her duties should be
incorporated in the constitution as under: -

(a) Except in regard to matters specially left to his discretion, he


must discharge all his functions on the advice of his Council of
Ministers.

(b) Whether the leader of a party has the majority support or


otherwise should be judged on the floor of the House and not at Raj
Bhawan.

(c) If the leader of a party demonstrates the majority support in the


House, he should be asked to form a ministry.

(d) If no party has the majority support and a coalition of parties is


formed, the person who is elected the leader should be called upon to
form a ministry.

(e) If no coalition is formed the leader of the largest group should


be asked to form a ministry, subject to the condition that he will secure
the confidence of the House within the shortest possible time.

36
The Tribune. 20 Aug 92, p. 8.
(f) A greater care may be ordered only after all the attempts at
forming ministry fail.

(g) A greater care is needed before the Governor dismisses a


ministry. The Governor shall not dismiss a ministry unless it is
defeated in the assembly or a no-confidence motion is passed against it
and it refuses to resign.
CHAPTER VIII

APPLICATION OF THE ARTICLE 356

1. During the long spell of Congress domination since Indep healthy


political plurality was ruthlessly curbed. The Delhi durbar resorted to Article
356 to pull down long non-congress government that came to power. With
tremendous resources at its disposal and its own governors in Raj Bhavans,
defections were engineered to win the battle, which the ruling party at the
centre had with in the states. Ironically, opposition parties which had clamored
for abolition for the provision in the past; have been willing accomplices in its
blatant misuse whenever it suited them.

2. Since the Constitution of India has come into force, the conception of
Ambedkar in respect with the application of Article 356, has been belied and
the fears expressed by the protagonists of the Provincial (or State) Autonomy
seem to some extent to be correct. In Constituent Assembly Ambedkar
expressed the hope that the Article 356 would remain a dead letter and added
“I hope the first thing he (the President) will do would be to issue a mere
warning to the State that has erred that things were not happening in the way
in which they were intended to happen in the Constitution. If that warning
fails, the second thing for him to do will be to order an election allowing the
people to settle matters by themselves. It is only when these remedies fail that
he would resort to this Article.”

3. Since the operation of the Constitution of India, the President in no


case while exercising his powers under Article 356 served a warning to the
State concerned prior to the promulgation of a proclamation for taking over
the administration of the State. Article 356 has, in fact, visited various States
for 105 times up to 1997 very much like the proverbial bolt from the blue-
without giving them an opportunity or notice of correcting their shortcomings.
Since the Constitution could not lay down the major outlines for the
application of Article 356, the ruling party at the Centre has been exploiting
this constitutional lacuna more for its political interests than for the restoration
of the Constitutional Law.

Prominent Examples of Misuse of Article 356

4. Punjab was the First State where the Article 356 was invoked for the
first time in June 1951 after the enforcement of the Constitution of India on
January 26, 1950. The Congress Parliamentary Board interfered in the
domestic affairs of the State and instructed the Chief Minister Gopi Chand
Bhargava to resign only for the interest of the Congress Legislature Party
although Bhargava’s Ministry was enjoying the support of 40 members in a
House of 77.

5. The action of B. Gopala Reddy, the then Governor of U.P., was purely
arbitrary when he dismissed the Ministry on October 2, 1970 without
providing an opportunity to Charan Singh, the then Chief Minister, to seek the
vote of confidence from the Assembly particularly when the Assembly was to
assemble on October, 1970, Moreover, Charan Singh was prepared to face the
Assembly at any time and on any date even earlier than October 6, 1970. But
the Governor advised the President to impose President’s rule on the State
under provision of Article 356. This clearly shows that the Governor was
reluctant to find an alternative to President’s rule. He, therefore, did not give
any opportunity to Charan Singh, a leader of the Opposition Party, to try his
strength on the floor of the House.
6. The political crisis developed in the State of J & K in March 1977
when the Congress Party refused to support the Chief Minister, Sheikh
Mohammad Abdullah, the leader of the National Conference, on some issues
relating to the Lok Sabha Polls of 1977. With the result Sheikh advised the
Governor, L.K. Jha, for the dissolution of the House of J & K. The Governor
after having many rounds of talks with the Janata Party leaders at New Delhi
decided to dissolve the House.

7. During the political crisis, Mufti Mohammed Syed, the leader of the
Congress Legislature Party requested the Governor to invite his party for the
formation of the new alternative government as he was commanding the
support of 45 M.L. As in a House of 75 (two seats were vacant as per
information of the Times of India, dated 27th March 1977). But the Governor
did not explore the possibilities of forming an alternative government in his
State.37

8. Conventionally and democratically the Governor J & K acted wrongly


by accepting the advice of Sheikh Abdullah of dissolving the House when
Sheikh had ceased to command the confidence of the House. It was the first
test of the Janata Government at the Centre that its perceptions prevented the
leader of the majority party from forming the government in J & K.

9. However, the Governor of Gujarat Viswanathan acted democratically


when he installed the Government of Babubhai Patel after the fall down of
congress Party government led by Solanki in April 1977. But we should mind
that Babubhai Patel was a close associate of the Janata Party, the party in
power at the centre.

37
UP CRISIS

10. The decision of imposing of President’s rule in UP in 21 Oct 97 came


under great criticism from legal lumenaries. They were unanimous in their
opinion that invoking article 356 would be gross violation of the constitutional
provisions as the BJP govt in Uttar Pradesh had won the trust vote on the floor
of the house, with 222 MLAs voting for it & none against it.

11. The expert like Mr Kapil Sibal, Mr Arun Taitley were of the view that
the President did a right thing by referring back the Cabinet decision of 21 Oct
97.38 The imposition of President’s rule on UP would have set a bad precedent
as the minority opposition in other states would have also indulged in violence
to show that there was a constitutional breakdown in the state. The sit forced
the Cabinet to reverse its decision, thereby preventing the misuse of article
356.

38
The Tribune. 23 Oct 97, p. 8.
CHAPTER XI

REMEDIAL MEASURES

1. Governor to be a man of wisdom, experience and character and not a


party man. He should be a detached figure and not too intimately connected
with local politics of the state.

2. The president on the advice of a high-powered body or the restructured


Rajya Sabha or a Committee Constituted should appoint the Governor by it.
He should have a fixed tenure. He should not be transferred from one state to
another owing to political considerations. He should be removed only through
the process of impeachment by the president on the basis of the establishment
of a case of misconduct by the Supreme Court. In such a situation he should
not be eligible for re-appointment as the Governor of a state nor should he be
given any other assignment by the central or state governments.

3. As for inviting the majority party (or combination) to form the


government, given the way things are going this increasingly trichy function
should be assigned to the Chief Election Commissioners.

4. The question of whether the state government can or cannot be carried


on in accordance with constitutional provisions should be decided by
Parliament. Incase parliament is not in session than the President in his own
capacity & unaided by the central cabinet.39

39
The Tribune. 27 Nov 97, p. 13.
5. Do away with the institution of governor. Incase to can’t be abolished
or it is indeed necessary for certain functions, then least we can do is to have
regional governors, one each for groups of states in North, South, East, West
and Central India. It will dilute the potential for mischief under article 356.

6. The right of appointment of regional governors should be taken away


from the central government; instead the concerned assemblies should elect
them. After all if head of the country, the President can be elected by a
collegian of legislators, why not the head of the constituent states.40

7. Instead of union government, an independent committee consisting of


the speaker, the Prime Minister, the leader of opposition and the chief justice
of India should appoint the governor.41

8. The Election Commission, which is an impartial body to a certain


extent, should be authorized to determine law and order situation other
relevant circumstances for holding elections.

9. To prevent the bureaucratic rule in state during the Presidents rule the
governor must appoint a ministry consisting of representatives of different
political parties depending on proportionate strength of political parties. The
members to be chosen on the advice of party leaders.

10. In case of removal of governor the clause of Article 356 “during the
pleasure of the President” should be replaced by conduct of good behavior &
for a fixed period”, on lines of judges of Supreme Court.

10. Decision to impose President’s rule should be satisfied by the


Parliament with two third majority.
40
Ibid.
41
The Hindu. 21 Oct 98, p. 12
12. Appoint retired judges and high ranking services offrs as state
Governors, as they remain out of politics throughout their service and carry
out their functions impartially.

12. To keep Governors independent of Center’s influence they shouldn’t


be given the opportunity to become a Governor again on completion of five-
year term. This will unable them to function impartially to preserve the
interests of the people.
CONCLUSION

1. Article 356, according to constitutional experts is an extraordinary


measure to be reserved for an emergency. In other words it is like the nuclear
button, an effective deterrent but not supposed to be pressed under normal
circumstances. In its report the Sarkaria commission had warned against the
abuse of the constitutional provision and bought to define the extra ordinary
circumstances under which it could be enforced, if at all.

2. Over a period, now there is a shift in the balance of power and the
states or the regions have become more powerful than the centre but this right
not to influence our thinking on the need for a provision, which can be used as
a last resort, to keep the country together.42 The country has still not become
so integrated that its unity and integrity will never be in danger. The
consideration that prevailed at the time of the framing of the constitution for
the introduction of the Emergency provisions still remains valid.

3. As Br Ambedkar made it amply clear, the emergency provisions in the


constitution were being provided for the safety and integrity of the Union. He
hoped that the occasion for its use would never arise. The provision of
President’s rule has been invoked so frequently (105 times) that the state
autonomy, the very life –breath of federal polity, has become political
expediency. There is no denying the fact that the central government, like all
other governments, is a party government. Nevertheless, those in power as
well as those seeking power should understand that the device of President’s
rule is used only as the last resort as suggested by Dr B R Ambedkar himself
in the constituent assembly. If exercised correctly, this may prove to be a
safety mechanism for the system. Its misapplication can destroy the
constitutional equilibrium between the union and the states.

42
The Tribune. 30 Jan 97, p. 8.
4. In brief Article 356 should be exercised in extreme cases as a last
resort or as a safety valve when all the democratic ways have failed to
preserve the basic values of our democratic system. The centre should hold
elections at the earliest to restore the democratically elected government.
BIBLIOGRAPHY

1. Undemocratic Elements in the Indian Constitution. By Ram Gopal (1977)

2. President’s Rule in India. By S.R. Maheshwari (1977).

3. Constitutional Government in India. By M.V.Paylee (1977)

4. The Office of the Governor: A Critical Analysis. By J.R Siwach (1977)

5. Conflict in Indian Polity. By K.Subba rao (1972)

6. The Office of the Governor – its Constitutional Image and Reality. By


N.S.Geholt (197)

7. Reflections on Indian Politics. By J.C. Johari.

8. Role of Governors in the Emerging Pattern of Centre –State Relations. By


Ashok K.Sen.

9. The Emergency, Future Safeguards and the Habeas Groups Case; A


criticism. By H.M.Seervi (1977).

10. Constitutional Law in India. By MP. Jain (1978)

11. Politics of President’s Rule in India.By JR. Siwach (1979)

12. Presidential Rule in India By BD.Dua (1979)


13. Dynamics of Indian Government and Politics in India. By JR. Siwach
(1990).