Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
By
Maj R K Chhikara
January 1999.
CHAPTER I
INTRODUCTION
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
2
Ibid
CHAPTER II
METHODOLOGY
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
4
The Hindu. 7 Jul 98, p. 25
CHAPTER III
(b) Declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament.
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.
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
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
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
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.
11
Ibid.
CHAPTER IV
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.
Bihar Crisis
(a) The ruling party had a majority in the Assembly and had won a
vote of confidence.
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.
5. After this incident some of the issues that may need to be clarified are:-
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.
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.
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
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.
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:
(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.
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.
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
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
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
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
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.
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
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.
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.
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.
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.
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.
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.
(a) The people on the basis of adult franchise should directly elect
the Governor.
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
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
36
The Tribune. 20 Aug 92, p. 8.
(f) A greater care may be ordered only after all the attempts at
forming ministry fail.
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.”
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
37
UP CRISIS
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
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.
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.
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.
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