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PRESIDENTIAL RULE: ARTICLE 356 - BY MS. DEEPANSHI TIWARI
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PRESIDENTIAL RULE: ARTICLE
356
AUTHORED BY-
MS. DEEPANSHI
TIWARI
ABSTRACT
Our
founding fathers created the Emergency Provisions to address such extraordinary
circumstances that pose a serious threat to the security and democracy of India
or any portion of its territory. It was set up in such a hierarchy that no
constitutional post was given the authority to impose tyranny. The President,
the Governor, and the Union Government were all to be equally involved in the
declaration of the Emergency. Despite having the last say on whether to approve
the proclamation, the President was required to consult with the Union Cabinet
and, in the event of a state of emergency, be satisfied by the Governor.
INTRODUCTION
The
Indian Constitution establishes the nation's federal structure and lays forth
specific duties for the national and state governments. Schedule 7 of the
Constitution makes specific reference to the legislative authority of the
federal and state governments. The President's declaration of an emergency is
one of a few situations, though, in which the federal government can invade a
state's territory. In the event of
"failure of the Constitutional machinery," the President of India has
the authority to declare a state to be in an emergency and assume control of
the state's legislative and executive branches. If the President is certain
that a situation has developed in which the government of the State cannot be
carried out in accordance with the provisions of this Constitution, the
President may declare an emergency in a state, according to Article 356. When a
state declares president rule, the elected government is overthrown, the
legislative body is put on hold, and the president, acting through the governor
who is designated as his agent, takes direct control of the state's
administration. Article 356 has been the
subject of debate and discussion since it was first enacted since the
president's control may jeopardise the country's federal system. Article 356
was inspired by Section 93 of the Government of India Act, which had a similar
clause that allowed the governor to declare an emergency if the province
couldn't be managed in line with the act's rules. In the Indian Constitution,
this clause was added by changing the word "governor" to
"President." However, a number
of members of the Constitutional assembly criticised the provision establishing
President control in a state, stressing the possibility of union dominance due
to the ambiguous and subjective nature of the phrase "otherwise,"
which is used in Article 356.
The
federal government has frequently utilised Article 356 as a tool to override
state governments in order to further their political goals. It is a
well-established tenet of Indian democracy that the governor serves at the
leisure of the president, and that the president ultimately receives assistance
from and advice from the council of ministers that are members of a certain
political party. From this fact, it can be inferred that the national
government may exploit this clause as a means of defeating the state's
opposition party. As a result, it is doubtful
if the President's use of his or her discretionary power to declare a state of
emergency is lawful because there is a good likelihood that the president's
decision will be influenced by the central political party's ideas.
Background of Article 356:
President’s Rule
Articles
352-360 of Part XVIII of the Indian Constitution define emergency provisions.
As it relates to the security of India or any state from war, external attack,
and armed insurrection, Article 352 allows for the declaration of an emergency.
Article 354 specifies the implementation of regulations relating to the
distribution of revenues when a proclamation of emergency is in place, while
Article 353 specifies the effects of the declaration of emergency under Article
352. Article 355 outlines the Union's responsibility to defend states from
external invasion and domestic unrest, and Article 356 outlines emergency
provisions in the event that a state's constitutional machinery fails.
In
many democracies, there are occasions when the government is granted specific
powers that are normally outside its purview to deal with emergency problems.
Country to country variations exist in the emergency provisions. Some nations
have very specific and carefully established emergency plans, whereas others do
not. India adopted Germany's emergency
legislation because of how carefully specified the emergency measures are
there. National and state emergencies exist in both Germany and India, which
are frequently absent in other big democracies like the United States of
America, which also has national and financial emergencies. In India and Germany, the central executive, who has
the authority to declare an emergency, is responsible for doing so.
Furthermore, the constitutions of each of these nations outline the
repercussions of emergencies, thus there is no reliance on the judiciary or its
interpretation.
Therefore,
it might be claimed that since Germany is where India's emergency provisions
originated on both the national and state levels, the two nations continue to
have a lot in common in this area.
Article 356
The
Indian Constitution's emergency clauses include articles like Article 356. It's
a paragraph in part XVIII (Article 352- 360).
Article
356 is implemented in India on a state whose constitutional apparatus has
broken down. In the case that a state government cannot run its affairs in
accordance with the Constitution, the state comes directly under the
supervision of the federal government. In other words, it is "under
President's control." As a result, the centrally chosen Governor, who is
authorised to pick retired civil employees or other administrators to help him,
exercises the executive authority. The
Indian Constitution's Article 356 addresses President's Rule. Article 355 of
the Indian Constitution, which stated that "every state must be protected
against external aggression and internal disturbance and it should be ensured
that the government of every state is carried on in accordance with this
Constitution," does not specifically state how the Union must carry out
its duty to protect a State against external aggression and internal disturbance;
it is left to the Union's assessment as to how to handle any such situation.
When a state's constitutional machinery
malfunctions, the President of India is empowered by Article 356 of the Indian
Constitution to impose President's Rule on that state.
There
could be many instances in which the constitutional machinery fails. The
Governor is responsible for informing the President of any such circumstances
that he deems pertinent. Although the President has the authority to declare a
state of emergency, he needs notification from the Union Cabinet in order to
take the appropriate action under Article 746. Similar to the President, the
Governor is required under Article 163 to act in accordance with the advice of
the Council of Ministers of the State, but there are particular circumstances
in which he may exercise his discretion. In accordance with Article 159, he is
obligated to uphold, defend, and defend the Constitution. According to this obligation, he must inform the
President that a situation has developed in which the State's governance cannot
be carried out in line with the Constitution's provisions without the State
Council of Ministers' opinion. As a result, he must do two distinct tasks:
first, act on the State Council of Ministers' advise; and second, report to the
President regarding the situation under Article 356 (1) without the State
Council of Ministers' advice.
The
President can make a proclamation pursuant to Article 356(1) without relying on
reports from the Governor by doing so. Instead, he must depend on reports that
have been sent to him. These reports might come from the media, the Union
Cabinet, etc. In the instance of Uttarakhand, the president not only took the
letter from the governor into consideration but also letters that opposition
party leaders in the State gave to him and the cabinet note. Any or all of the
activities listed in clauses (a), (b), and (c) of 356 may be taken by making
such a declaration (1).
Major
Persons and their Role involved in Article 356
The
Governor
Under
The Government of India Act, 1858, the British established the role of
governor. It was then established to serve as a representative of the British
Crown, acting under the Governor-direction. General's He was tasked with
serving as the hub of the provincial government and defending British interests
in areas where they had legal agreements, such as the princely States. The Government of India Act, 19357 established
provincial autonomy and provided Indians with legislative reservations. Now,
the Governor had to follow the province's Council of Ministers'
recommendations. Even then, he was given some unique discretionary powers that
he can exercise under the direction of the governor-general even without such
recommendations. Most likely, the goal was to give the British government more
power than the elected one. A
democratically elected type of government with a quasi-federal power structure
was emphasised by the Constitution's drafters after the country gained its
independence. Greater authority than the States was granted to the Union. The
Governor's office remained unaltered, but his latitude for discretion was
constrained. He was now made answerable only to the President who selected him.
He
had a responsibility to uphold, defend, and defend the Constitution in the
State where he was appointed. With the exception of situations when the
Constitution specifically compelled him to exercise his discretion, the Council
of Ministers of that State was to assist and advise him as he carried out his
duties. Even though the Governor was chosen by the President on the Union's
advice, the Union Government was not allowed any direct access to the
Governor's office. A report on the state
of the State is sent by the Governor to the President pursuant to Article 356.
He has a responsibility to ensure that the administration is run in a way that
can be recognised as good, effective, and honest governance. He may request an
action to do so without the Council of Ministers' counsel in order to ascertain
the Legislative Assembly's confidence in the Government. Without first becoming
sure, he cannot recommend the President declare an emergency suddenly or on his
own. He is never supposed to follow the counsel of the opposing party or a
rebellious faction of the ruling party; instead, he must act impartially in
accordance with his obligations.
Additionally,
in the instance of Bommai, it was decided that the Emergency's proposal was
weak because to legislative horse trading (supra). If there isn't any strong
evidence to back up the decision, it was decided that the Governor's acts are
mala fide and founded on simple ipse dixit.
The
President
The
President is the one who declares an emergency in all its forms. As recommended
by the Council of Ministers, he is the last and only person with the authority
to declare an emergency throughout all of India or in any particular region.
The emergency is declared upon his ascent. Being the Supreme Head of the
Executive, he can issue direct orders, but only with the help and counsel of
the Union Council of Ministers. The President is a subordinate of the Governors
of the States, and it is their responsibility to inform him of the
circumstances in their jurisdiction. The
President does have the ultimate right to declare an emergency under emergency
provisions, such as Articles 352, 356, or 360, but he is obligated to do so in
accordance with the Union's instructions under Article 74. (1). Except in rare
circumstances, where he believes he should act in accordance with his best
judgement to uphold the Article 60 oath and preserve, protect, and defend the
Constitution. He is obligated to act whenever necessary in the Constitution's
best interests. He has the same obligation toward States under Article 356. He
has the power to declare a state of emergency, but only on the suggestion of
the Council of Ministers because it is the responsibility of the Union to
defend the States from external invasion and domestic unrest.
The
disagreement must include a legal claim based on law or fact, which is one of
the requirements of Article 131. The President is forced to issue a
proclamation if the Central Government chooses to advise him or her to do so.
This clearly demonstrates that the Central
Government has the legal authority to request that the President make a
Proclamation for the dissolution of an Assembly as one of the crucial tasks
that a Council of Ministers must carry out in support of and guidance to the
President. However, the State Governments have no such rights at all. Insofar
as the dissolution of an assembly is concerned, there is no provision in the
Constitution that requires the State Government to be contacted or to provide
its approval before the Council of Ministers submits its advice to the
President on an issue pertaining to the State.
According
to Art. 356 of the Constitution, the State Government’s authority to exist is
dependent on its provisions. The State Governments do not have the authority to
challenge the constitutional mandate set forth in Article 356 if the President
chooses to follow the Central Government's Council of Ministers' recommendation
and declare the Assemblies dissolved.
The Union
Government
The
Union Government was given higher preference in the exercise of its powers
since our Constitution's drafters wanted to make India into an ideal democratic
republic where the government is run by, for, and on behalf of the people. They
have been given extensive authority over the States and the Executives under
Article 74(1), as well as Articles 256, 257, 352, and other provisions because
they are the direct representatives of the people. According to the Constitution's Seventh Schedule, the
powers of both Governments are explicitly defined in reference to States. Under
List III of the same schedule, the reciprocal powers are provided. The laws
created by the Union Government were to be applied over the States in the event
of a conflict. As a result, the Union and States were established for wider
expansion and better representation of the people, respectively.
In
the case of a breakdown in the constitutional machinery or any situation where
the State Government cannot be managed in accordance with the Constitution's
provisions, Article 356 is an emergency mechanism that imposes central
government power in the State through the President. It is never intended for
the Central Government to abuse its authority to oust the State's opposition
party government by enforcing President's rule under Article 74. (1).
Sarkaria Commission
The
Sarkaria Commission was established by the Indian national government in June
1983. The Sarkaria Commission was tasked with examining the dynamic and
distribution of authority between the nation's state and federal
administrations and making reforms within the constraints of the Indian
Constitution. Shri B. Sivaraman, Dr. S. R. Sen, and Justice R. S. Sarkaria, a
former Supreme Court justice, make up the commission's three members. The Commission conducted a thorough investigation
before submitting its 1600-page final report in January 1988. The final report
contains 247 recommendations, some of which are related to center-state
relations, particularly those that deal with legislative issues, the governors'
roles, and the use of Article 356.
The
1987 Sarkaria Report, which was filed, can be used to understand Article 356. A
validly elected government that has not been defeated on the floor of the house
should be given the chance to prove its majority through a
"Floor-test" by summoning an early session of the parliament,
according to the commission's recommendation. If the governor suggests imposing
President's rule based on his personal opinion that the ministry lacks the
support of the assembly, that would be an improper use of the authority granted
by section 356. (1). The phrase "The
government of the State cannot be carried on in accordance with the provisions
of this Constitution" was broken down into four situations by the report:
political crisis, internal subversion, physical breakdown, and non-compliance
with constitutional directives of the Union Executive. Additionally, it was argued that a broad reading of
Article 356 could lessen its misuse. The Sarkaria Commission's recommendations
lacked the originality and ingenuity necessary to tackle the President's Rule
issue, and they appeared to be a band-aid fix. The Sarkaria Commission endorsed
the Center powers as necessary and unavoidable, refusing to look into the Union
Government's actual abuse of constitutional provisions and offering solutions
to defend them going forward. The panel, however, disregarded a number of
issues with the initial separation of powers between the Union and the states.
Misuse of
Article 356
A
quick scan of the data reveals that this has not been the case at all. It has
been used more than 100 times since independence, according to the Sakaria
Commission.
Sometimes
perfectly lawful state officials have been removed from office in order to get
them to submit or to offer the Union government's own party a chance to take
over the state. Union administrations have taken on the very role that Dr.
Ambedkar thought they would in order to establish their legitimacy—that of
being the ones who determine the effectiveness of state governance. The most malicious use of Article 356 occurred
throughout the 1970s and 1980s, which will be remembered. It was used 59 times
between 1971 and 1984, with the majority of those uses occurring between 1977
and 1979 under the Morai Desai cabinet. The post-emergency Central government
utilised it as a weapon in its vendetta against state governments headed by the
Congress. Following her return to office in 1980, Indira Gandhi later paid it
forward, using it 17 times between 1980 and 1984. Even though Jawaharlal Nehru had abused Article 356 to
overthrow Kerala's majority Communist government, Indira Gandhi is remembered
for using it as a weapon against state governments. After 1967, when the
Congress party lost control of several Indian states, its frequency drastically
increased.
In
actuality, Indira Gandhi blocked the courts' ability to examine the president's
emergency proclamation to enact the 38th constitutional Amendment, which
stifled Article 356. However, the original article 356 as intended by Dr.
Ambedkar was reinstated courtesy to the 44th Constitutional Amendment Act,
which was proposed in 1978 by Morarji Desai. The most frequent use of Article 356 has been in Manipur. Long
stretches of bloodshed and the state's profoundly fractured internal politics
have compelled the Union administration to force its will on the State.
Along
with Manipur, the politically significant States of UP and Bihar have long been
on the center's radar despite their fractured political systems.
Guidelines established by the Supreme
Court to prevent abuse of Constitutional Article 356-*On the House Floor, the
majority enjoyed by the council of ministers will be put to the test.
*The state should receive a warning from
the centre with a week to respond.
*The Court may challenge the evidence
supporting the President's satisfaction, but it cannot contest the advice
provided by the Council of Ministers to the President. , Therefore, judicial
review will only address the following three issues:
1) Does the declaration have any supporting evidence?
2) Is the information current?
3) Was Power ever abused in any way?
·
The Court will
offer relief if Article 356 is used improperly.
·
The President's
authority is constrained by Article 356(3). Therefore, unless the proclamation
is accepted by the parliament, the president may not act in an irreversible
manner, i.e., he may not dissolve the assembly.
·
Article 356 is
only appropriate when the constitutional mechanism, not the administrative
apparatus, breaks down.
·
The center must employ Article 356 carefully;
otherwise, it risks upending the constitutional framework between it and the
State.
Recent Instances of Imposition of Article 356
·
From February 14,
2014, until February 11, 2015, President's rule was implemented in Delhi, and
the Assembly was placed in suspended animation. Following the failure of his
attempt to introduce the Jan Lokpal Bill in the Assembly, Arvind Kejriwal
resigned as Delhi's chief executive officer.
·
Imposed in
Maharashtra from September 28 to October 31, 2014, following Prithiviraj
Chavan's resignation as a result of the state's 15-year Congress-NCP alliance's
dissolution.
·
There was a
political crisis in Andhra Pradesh from February 28, 2014, until June 8, 2014,
as a result of the resignation of the chief minister, N Kiran Reddy, and other
Congress legislators on February 19, who were protesting the creation of the
separate state of Telangana and bifurcation of the state.
·
The Arjun
Munda-led BJP administration in Jharkhand was reduced to a minority after
Jharkhand Mukti Mocha lost support between January 18, 2013, and July 12, 2013.
Munda resigned and asked for the State Assembly to be dissolved.
·
In the Buta Singh
case, the Supreme Court ruled that the dissolution of the Bihar assembly was
invalid in January 2006. It was decided that the governor's report could not be
relied upon at face value and had to be approved by the council of ministers
before President's rule could be implemented.
·
The State of
Uttarakhand was placed under President control on March 27, 2016, citing
"breakdown of governance."
States
which have come under president’s rule:
1. Andhra Pradesh – 3 times
2. Arunachal Pradesh – 3times
3. Assam – 4 times
4. Bihar – 8 times
5. Delhi- 1 time
6. Goa – 5 times
7. Gujarat – 5 times
8. Haryana – 3 times
9. Himachal Pradesh – 2 times
10. Jammu & Kashmir – 7
times
11. Jharkhand – 3 times
12. Karnataka – 5 times
13. Kerala – 4 times
14. Madhya Pradesh – 3 times
15. Maharashtra – 2 times
16. Manipur- 10 times
17. Meghalaya – 2 times
18. Mizoram – 3 times
19. Nagaland – 4 times
20. Orissa- 6 times
21. Punjab- 8 times
22. Rajasthan – 4times
23. Sikkim – 2 times
24. Tamil Nadu – 3 times
25. Tripura – 3 times
26. Uttarakhand – 1 time
27. Uttar Pradesh – 9 times
28. West Bengal- 4 times
The central government was granted extensive powers under Article 356 to
exercise its dominance. The Indian Constitution is unified by Article 356. The
fact that Article 356 has been used so frequently shows how often it has been
abused. Its intent is to give the central government more authority in order to
protect the unity and integrity of the country, endangering India's federal
structure. More than 100 times, the State's duly elected administration has
been overthrown solely for political reasons using the dead letter.
Landmark
Judgements
1- State of Rajasthan vs.
Union Of India (1977)
On April 17, 1977, the Union Home Minister of the Janta Party Government
sent a communication advising the state governments of Uttar Pradesh, Bihar,
Haryana, Madhya Pradesh, Himachal Pradesh, West Bengal, Orissa, Punjab, and
Rajasthan to notify their governors for the dissolution of the legislative
assembly and threatening to dissolve the legislature in accordance with Article
356. The Congress Party suffered a resounding defeat in these nine states,
which compelled the state administration to seek a new mandate. The
non-justiciability of the circumstance justifying invoking Article 356 was a
topic that the Supreme Court looked at. Once more, the judicial review of this article was
invalidated in this instance. These factors can occasionally lead to conflict
between the court and executive over the question of reviewability. Since the
courts were forbidden from becoming involved in these disputes, it occasionally
demonstrates how the executive dominates the other branches of government.
However, the court ruled that they could not discuss the sufficiency of
the facts and circumstances that the central government relies on in the
current case in order to reach its satisfaction. Therefore, the courts will
have the authority to investigate if the satisfaction was granted with
malicious purpose or on entirely unrelated and irrelevant grounds since in such
circumstances, there would be no presidential satisfaction over the topic in
which he is obliged to be satisfied. Additionally, if the president's
satisfaction is a requirement under Article 356 (1) and it is clear that the
president was not satisfied with the situation, the exercise would be
unconstitutional. It can be contested on the grounds that it is false or entirely
unrelated and unrelated reasons.
People no longer have faith in the state's ruling party, according to
the "State of Rajasthan v. UOI" case. Therefore, new elections should
be held to determine whether or not voters still support the same party after
the Congress party was thoroughly defeated in the Lok Sabha elections. Thus,
never before in the history of the nation has there been such a resounding and
unambiguous verdict from the people against the ruling party. As a result, the
court emphasised in this ruling that the Indian Constitution is more unitary
than federal. After
clause 5 of the 44th Amendment was removed, the Supreme Court ruled in
"A.K. Roy v. Union of India" that "any remarks made in the
"State of Rajasthan v. Union of India" based on that clause cannot
hold any validity."
2- S.R. Bommai vs. Union Of India (SC)
The ruling in this case is regarded as a turning point in Indian legal
history. until the case's conclusion According to Article 356's provision, the
presidential rule has been invoked up to 95 times in the nation. Therefore, it
is obvious that there was a need to address the legal issue that was developing
and to draw the judiciary's attention. We may state that the Supreme Court
thoroughly considered all the problems related to article 356 in this instance.
A bench of nine judges heard the arguments made by both sides in this dispute.
Due to the absence of majority support, the governor of Karnataka filed
a report to the president on the council of ministers' decision to withdraw
support from the party in power after receiving nineteen letters from the
council of ministers declaring their intention to do so.The Governor explained
in the announcement that the current Chief Minister Mr. S.R. Bommai was
unsuccessful in getting a majority for the assembly, and as a result, the State
should be placed under president's administration in accordance with Article
356(1) of the Indian Constitution.
Seven out of the nineteen ministers complained about the falsification
in their corresponding letters on the very day after the report was sent; as a
result, Mr. S.R. Bommai, the Chief Minister and the Law Minister, visited to
call the assembly on the same day in order to demonstrate the majority of his
government in the assembly. The President received the report of the same. However, on the same day,
the Governor again gave the President a report stating that Mr. S.R. Bommai,
the former Chief Minister of Karnataka, had lost his guarantee of a majority
and had asked the president to declare an emergency in the state in accordance
with Article 356. The president declared the emergency in light of this report.
He had previously brought a writ case challenging the declaration's validity
before the Karnataka High Court's special three-judge bench, but it had been
rejected. Meghalaya,
Nagaland, Madhya Pradesh, Rajasthan, and Himanchal Pradesh all had similar
legal issues, therefore the Supreme Court's bench of 9 judges considered all of
the petitions concurrently.
Judgment of the case:-
1. The Hon’ble court
apprehended that the power of the president to declare an emergency in a state
i.e. the presidential rule is subject to some restrictions and it should be on
the source of the report and opinion of the governor and not in the sole
approval.
2. The Hon’ble court also held
that the court owns the power to Judicial review the declaration and if it is
found to be deceptive, the court can be trapped down the proclamation even if
it has received the consensus of both houses.
3. The Hon’ble court
censoriously examined three broad issues i.e. the nature of Federalism,
Secularism, and the proclamation being under the space of judicial review.
4. The case of S.R. Bommai V.
Union of India is no doubt a very big change in the Constitution of India but
it has left out a lot of predicaments and has not convincingly established the
matter. Hon’ble judges have pronounced 6 different judgments and these are no
single judgment that indicated the ratio of majority and minority in any part.
5. This left many of the
points in dilemma and there are many points like the authenticity of Sarkaria
Commission’s report which left in between and no minority or majority has been
made. At lease, all the judgments distinct should have complied in a single
order indicating the majority and the minority.
Conclusion
The Government
of India Act of 1935 served as the pari materia source for Article 356.
According to the Indian Constitution, this article should only be used in the
rarest of circumstances, but as we have seen, it has been misused more than 100
times as of this writing.
In an
interview with the Indian Express, the former attorney general Soli Sorabjee
said, "The Governor's report is a significant document in the case.
President's Rule is not only justified but also necessary if the report is not
swayed by unrelated factors and presents a convincing case of the state's
constitutional machinery failing.
The Indian
Constitution is meant to be somewhat federal. Article 356 is not intended to be
used to undermine the states' autonomy. The Supreme Court said in the SR Bommai
case that article 356 should only be used in severe circumstances where the
constitutional machinery has failed totally and given guidelines for its
improper application. It must be applied correctly or the Indian Constitution's
fundamental features, including its federal structure, will be damaged and it
will turn into a unitary constitution. It was important to realize that, in
contrast to a mindset of superiority and dominance, only the spirit of
"Cooperative federalism" can maintain the equilibrium between the
Union and the State and advance the welfare of the populace. No entity may
assert dominance under our constitution.
Article Information
PRESIDENTIAL RULE: ARTICLE 356 - BY MS. DEEPANSHI TIWARI
Authors: MS. DEEPANSHI TIWARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/27
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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