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Abstract

India or Indian politics same word for whom who are not aware about the political system of our
country, Who are not conscious how political party manipulated our constitution just for the sake of
personal benefit, but not for good governance. Now the question arise that Indian constitution is a rigid
constitution or not, a constitution which was easily amended or not a constitution which work according
to a political party or not there are so many question arise but still our political leader are not ready to
accept their mistake. This is something erroneous why our constitution gives such power to the union
government to absolute control over the state and if it gives so then why we follow the principle of
federalism. From the very beginning article 356 is renewed for its miss use and become the active tool
for central government to control over the state without any cause. The father of our constitution Dr B.R
Ambedkar are totally unaware that article 356 is distorted badly by the central government, but
according to them article 356 was one of the instrument through which central government protect the
state government of any external or internal aggression. There is always a big question whether India
follow the principle of federalism or not. The word union does not show any type of federation, since it
is used also in the preamble of the constitution of the united state- the model of federation; in the
preamble of the British north America (which according to lord Haldane, did not created a true
federation at all) still the word federal was also mentioned in our preamble but I don't think so that in
this regard we follow our preamble because of article 356 which become the major hurdle.

Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. The
essence of the Article is that upon the breach of a certain defined state of affairs, as ascertained and
reported by the Governor of the State concerned (or otherwise), the President concludes that the
'constitutional machinery' in the State has failed. Thereupon the President makes a 'Proclamation of
Emergency,' dismissing the State Legislature and Executive. During a state of emergency, the President
is vested with tremendous discretionary powers. Any legislation or constitutional provision that
abrogates any of the basic principles of democratic freedom is anathema to most people and the more so
to the people of the largest democracy in the world.

Keywords: 356, Indian Constitution, Judicial Review, State Emergency, President Rule, Misuse of
Article 356
SYNOPSIS

INTRODUCTION:
Article 356 of the Constitution of India, which deals with presidential discretionary powers of emergency, has
long been the favored topic of political debate - and, at times, the cause of much ire - within the legal intellectual
community in India. This paper examines the rationale behind the invocation of this Article by almost every
Government that came to power in India and its implications for the democratic fabric of India. The historical
development of this Article helps us to gauge the rationale behind its inclusion in the original draft of the
Constitution. This serves as an estimate of the severity of events that would qualify to trigger this provision and
helps us examine the validity of some of the recent applications of this Article.

AIM:

The aim of this project is to examine and understand Article 356 of the Constitution of India and also the Misuses
of this article.

OBJECTIVE:

The objective of this project is to have a in depth insight of the topic. The overall objective is to analyze the topic
and study the topic thoroughly.

RESEARCH METHODOLOGY:

The research methodology used in the project is analytical as well as descriptive. The topics are very well explained
in detail with the help of the some books and articles and are also supported with some case laws as well

CHAPTERISATION:

1. Introduction
2. Federalism in India
3. The development of Article 356
4. The Sarkaria Commission Report, 1987
5. S. R. Bommai v. Union of India
6. Judicial review
7. The current situation in India
8. Failure to invoke emergency provisions
9. Conclusion

Bibliography:

1. National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of
the Constitution.
2. http://parliamentofindia.nic.in/debates/facts.htm
3. http://www.oefre.unibe.ch/law/icl/in00002_.html
4. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (5th edn. 1990).
5. THE SARKARIA COMMISSION REPORT,

PROJECT
1. Introduction

Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse.
The essence of the Article is that upon the breach of a certain defined state of affairs, as ascertained
and reported by the Governor of the State concerned (or otherwise), the President concludes that the
constitutional machinery in the State has failed. Thereupon the President makes a Proclamation of
Emergency, dismissing the State Legislature and Executive. During a state of emergency, the
President is vested with tremendous discretionary powers. Any legislation or constitutional provision
that abrogates any of the basic principles of democratic freedom is anathema to most people and the
more so to the people of the largest democracy in the world. Having just gained independence after a
long and continuous struggle, the people of India would naturally have the greatest interest in
preserving all the National Commission to Review the Working of the Constitution, A Consultation
Paper on Article 356 of the Constitutionfreedoms envisioned in a democratic society. If the members
of the Drafting Committee of the Constitution included a provision that permits a Government to
dismiss a duly elected representative body of the people and suspend those freedoms in violation of
even the crudest interpretation of a separation of powers, then common sense suggests that it is
only to deal with the direst of circumstances and nothing less. But it seems that the remedial nature
of the Article has been perverted to impose the domination of the Central Government upon a State
Government that does not subscribe to its views. Central control over regional governments is
essential for the integrity of nations that have federal systems of government, and Article 356 was
designed to preserve this integrity, but what remains to be seen is whether it is being used at the cost
of sacrificing the interests of democratic freedom.

1. Federalism in India

Federalism in India is at once similar and distinct from other federations like that of America;
distinct in that it is not a group of independent States coming together to form a federation by
conceding a portion of their rights of government, but a distributed entity that derives its power from
a single source - the Union. Sovereignty and the powers of governance are distributed and shared by
several entities and organs within the Indian constitutional system.1 Dr. BabasahebAmbedkar, who
chaired the Drafting Committee of the Constituent Assembly, stressed the importance of describing
India as a Union of States rather than a Federation of States. He said: . . . what is important is
that the use of the word Union is deliberate . . . Though the country and the people may be divided
into different States for convenience of administration, the country is one integral whole, its people a

1National Commission to Review the Working of the Constitution, A Consultation Paper on


Article 356 of the Constitution.
single people living under a single imperium derived from a single source.2 The similarity between
the systems of government in the two countries, however, is remarkable. Both governments exhibit a
strong Union control, where the individual States give up a significant portion of their autonomous
rights to the Central Government in return for security and pursuit of common interests; in contrast,
in a confederation the individual States retain most of their sovereignty and are only loosely bound
together. In the words of Alexander Hamilton (the illustrious co-author of the Federalist Papers,
along with James Madison and John Jay), when describing the proposed Constitution of the Federal
Government of the United States of America,This is in essence how one would describe Center-State
relations in India; excepting provisions for certain emergency situations in the Constitution of India,
where the Union would exercise absolute control within the State. James Madison dealt extensively
with the issues related with the relinquishing of sovereign powers by States to a Central (or federal)
authority in the Federalist Papers, specifically Federalist No. 45. He believes that, for the common
good of all the members of a federal system, it is necessary for the individual States to sacrifice
some of their powers to the Union. He then goes on to examine in detail the danger this would pose
to the residual powers that remain with the States (this issue comes very close to the heart of this
paper). He contends that a study of similar systems in ancient times, like the Achaean League or the
Lycian Confederacy, would reveal that the danger of usurpation of authority by the Federal power
would be smaller than the danger of degeneration of the federation into smaller factions that would
not be able to defend themselves against external aggression. This is precisely the rationale behind
the distribution of power between the Union and the States in India. In fact, specific powers are
divided into three lists - the Union List, the State List, and the Concurrent List (powers shared by
both the Union and the States). Therefore the system of government in India can be considered to be
quasi-federal in nature, in as much as it is both federal and unitary. It can be considered federal
because of the distribution of powers between the Center and States and it may be considered unitary
because of the retention of Union control over certain State matters, and also because of the
constitutional provisions relating to emergencies when all powers of a State would revert to the
Center. India has a vast and diverse population, with a large number of people living in abject
poverty. Extraordinary situations are not novel to the Indian political scene. Therefore extraordinary
powers to deal with these situations become necessary. The power contained in Article 356 is both
extraordinary and arbitrary, but it is an uncanny trait of extraordinary power that it tends to corrupt
the wielder. A close scrutiny of the history of its application would reveal that Article 356 is no
exception. But before we turn to that, a systematic analysis of the constitutional development of this
controversial piece of legislation is in order.

2. The development of Article 356


2National Commission to Review the Working of the Constitution, Report.
3.1 The Government of India Act, 1935

This Act first introduced the concept of Division of Powers in British India. It was an experiment
where the British Government entrusted limited powers to the Provinces. But since there was very
little faith lost between the British and the Indian people, the British took precautions to keep a
sufficient check on the powers given to the Provinces. These precautions were manifested in the
form of emergency powers under Sections 93 and 45 of this Act, where the Governor General and
the Governor, under extraordinary circumstances, exercised near absolute control over the
Provinces.3

2.2 Drafting Committee of the Constituent Assembly

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the
chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the course of
about two years, the Assembly discussed 2,473 amendments out of a total of 7,635 amendments
tabled.4 When it was suggested in the Drafting Committee to confer similar powers of emergency as
had been held by the Governor-General under the Government of India Act, 1935, upon the
President, many members of that eminent committee vociferously opposed that idea. Dr.
BabasahibAmbedkar then pacified the members stating:

In fact I share the sentiments expressed by my Honble friend Mr. Gupte yesterday that the proper
thing we ought to expect is that such articles will never be called into operation and that they would
remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed
with these powers, will take proper precautions before actually suspending the administration of the
provinces. He added: I hope the first thing he will do would be to issue a clear warning to a
province that has erred, that things were not happening in the way in which they were intended to
happen in the Constitution.

By virtue of this earnest advice given by the prime architect of the Indian Constitution, we can safely
conclude that this is the very last resort to be used only in the rarest of rare events. A good
Constitution must provide for all conceivable exigencies. Therefore this Article is like a safety valve
to counter disruption of political machinery in a State.

3National Commission to Review the Working of the Constitution,

4First Day in the Constituent Assembly, at http://parliamentofindia.nic.in/debates/facts.htm


Article 355 states: It shall be the duty of the Union to protect every State against external aggression
and internal disturbance and to ensure that the government of every Stateis carried on in accordance
with the provisions of this Constitution.5 The word otherwise in Article 356(1) was not included in
the original draft; it was later introduced through an amendment, despite protests from members of
the original Drafting Committee, stating that it was an open invitation to abuse the Article. Dr.
Ambedkar justified its introduction saying that Article 277A (now Article 355, cited above) imposed
a duty upon the Center to ensure that the States are governed in accordance with constitutional
provisions and that hence it would not be proper for the President to base his decision solely on the
report of the Governor of the State.6

2.3 An analogy between Article 356 and Sections 45 and 93 of the Government of
India Act, 1935

There are certain differences in the provision relating to the failure of the constitutional machinery
under the present Constitution and the powers dealt with in Sections 45 and 93 of the Government of
India Act, 1935.7 Firstly, the 1935 Act empowered the Governor-General to deal with a failure of the
constitutional machinery at the Center (Section 45). It also empowered the Governor-General to deal
with a similar situation in a Province (Section 93). The present Constitution, however, does not
intend to suspend the Constitution of a State, but empowers the President to take steps in this regard,
though he shall have to act on the report of the Governor or Ruler of the State. Secondly, under
Section 93 of the 1935 Act, the executive and legislative powers of a State could be assumed by the
Governor, acting at his discretion. The present Constitution has separated the two powers: the
President, assuming executive powers, and the Union Parliament, assuming legislative powers.

5India - Constitution, at http://www.oefre.unibe.ch/law/icl/in00002_.html

6D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (5th edn. 1990).

7National Commission to Review the Working of the Constitution


3. The Sarkaria Commission Report, 1987

4.1 Background

In spite of the precautions laid down in Article 356, the Article was invoked on several occasions by
the Center due to ambiguities in its wording. It was only in 1987 when the Sarkaria Commission
submitted its report that part of the obscurity surrounding Article 356 was cleared. The Commission,
headed by Justice R.S. Sarkaria, was appointed in 1983 and spent four years researching reforms to
improve Center-State relations.

3.2 Rare use of Article 356

The Sarkaria Commission recommended extremely rare use of Article 356. The Commission
observed that, although the passage, . . . the government of the State cannot be carried on in
accordance with the provisions of this Constitution . . . is vague, each and every breach and
infraction of constitutional provisions, irrespective of their significance, extent, and effect, cannot be
treated as constituting a failure of the constitutional machinery. According to the Commission,
Article 356 provides remedies for a situation in which there has been an actual breakdown of the
constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the
democratic fabric of the Constitution. The report discourages a literal construction of Article 356(1).8
The Commission, after reviewing suggestions placed before it by several parties, individuals and
organizations, decided that Article 356 should be used sparingly, as a last measure, when all
available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a
State. Before taking recourse to the provisions of Article 356, all attempts should be made to resolve
the crisis at State level.

8THE SARKARIA COMMISSION REPORT,


3.3 Avoiding disastrous consequences

According to the Commissions report, these alternatives may be dispensed with only in cases of
extreme emergency, where failure on the part of the Union to take immediate action under Article
356 would lead to disastrous consequences. The report further recommended that a warning be
issued to the errant State, in specific terms that it is not carrying on the government of the State in
accordance with the Constitution. Before taking action under Article 356, any explanation received
from the State should be taken into account. However, this may not be possible in a situation in
which not taking immediate action would lead to disastrous consequences.

3.4 The Governors obligation to explore alternatives

In a situation of political breakdown, the Governor should explore all possibilities of having a
Government enjoying majority support in the Assembly. If it is not possible for such a Government
to be installed and if fresh elections can be held without delay, the report recommends that the
Governor request the outgoing Ministry to continue as a caretaker government, provided the
Ministry was defeated solely on a major policy issue, unconnected with any allegations of
maladministration or corruption and agrees to continue. The Governor should then dissolve the
Legislative Assembly, leaving the resolution of theconstitutional crisis to the electorate. During the
interim period, the caretaker government should merely carry on the day-to-day government and
should desist from taking any major policy decision. Every Proclamation of Emergency is to be laid
before each House of Parliament at the earliest, in any case before the expiry of the two-month
period stated in Article 356(3). The State Legislative Assembly should not be dissolved either by the
Governor or the President before a Proclamation issued under Article 356(1) has been laid before
Parliament and the latter has had an opportunity to consider it. The Commissions report
recommends amending Article 356 suitably to ensure this. The report also recommends using
safeguards that would enable the Parliament to review continuance in force of a Proclamation.
4. S. R. Bommai v. Union of India

S. R. Bommai v. Union of India was a landmark in the history of the Indian Constitution. It was in
this case that the Supreme Court boldly marked out the paradigm and limitations within which
Article 356 was to function. In the words of Soli Sorabjee, eminent jurist and former Solicitor-
General of India, After the Supreme Courts judgment in the S. R. Bommai case, it is well settled
that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest
that there is an impasse and the constitutional machinery in a State has collapsed.9 The views
expressed by the various judges of the Supreme Court in this case concur mostly with the
recommendations of the Sarkaria Commission and hence need not be set out in extensor. it can be
seen from the conclusions of this Bench of the Supreme Court that the Presidents power under
Article 356 is not absolute or arbitrary. The President cannot impose Central rule on a State at his
whim, without reasonable cause.

5. Judicial review

The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute, because
the power under Article 356(1) is a conditional power. In the exercise of the power of judicial
review, the court is entitled to examine whether the condition has been satisfied or not. So the
controversy actually revolves around the scope and reach of judicial review. From the decisions in
the case of State of Rajasthan v. Union of India and the Bommai case, it is clear that there cannot be
a uniform rule applicable to all cases.10 It is bound to vary depending upon the subject matter, nature
of the right, and other factors. However, where it is possible the existence of satisfaction can always
be challenged on the ground that it is mala fides or based on wholly extraneous and irrelevant
grounds.11 The relevance of judicial review in matters involving Article 356 is also emphasized in
the Supreme Court judgment in the State of Madhya Pradesh v. Bharat Singh, where the Supreme
9Soli Sorabjee, Constitutional Morality Violated in Gujarat, INDIAN EXPRESS, PUNE, INDIA,
Sept. 21, 1996.

10State of Rajasthan v. Union of India

11S.R. Bommai v. Union of India, (1994)


Court held that it was not precluded from striking down a law passed prior to a Proclamation of
Emergency, as ultravires to the Constitution, just because the Proclamation was in force at that
time.12 Judicial review of the Proclamation under Article 356(1) was first tested in State of Rajasthan
v. Union of India. The Supreme Court, being the ultimate interpreter of the Constitution, has the
power of judicial review on all actions emanating from or empowered by any constitutional
provision. Though the power of the President under Article 356 concerns his political judgment and
the courts usually avoid entering the political thicket, this power does not enjoy blanket immunity
from judicial review. It has to be determined in the individual cases on the basis of justifiability,
which is distinct from judicial review. But unless the mala fides of the Presidential Proclamation is
shown, the Courts have been exhorted by the Supreme Court to avoid delving into the Presidents
satisfaction for want of judicially manageable standards. This point is amply evident in the case of
Minerva Mills and Others v. Union of India and Others, where the Supreme Court dwelt extensively
on its power to examine the validity of a Proclamation of Emergency issued by the President. The
Supreme Court in this matter observed, inter alia, that it should not hesitate to perform its
constitutional duty merely because it involves considering political issues. At the same time, it
should restrict itself to examining whether the constitutional requirements of Article 352 have been
observed in the declaration of the Proclamation and it should not go into the sufficiency of the facts
and circumstances of the presidential satisfaction in the existence of a situation of emergency.

Thus we can safely conclude that, though limited, the Presidential Proclamation under Article 356 is
subject to judicial review.

6. The current situation in India

The present situation in India shows that the dead-letter provision - as Dr. Ambedkar hoped it
would be - has become a frequently invoked, not-so-dead Article; it has been activated more than a
hundred times till today. The National Commission to Review the Working of the Constitution
(NCRWC), which was established on February 22, 2000, on the basis of a joint resolution of the
Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs),
submitted its extensive report in March 2002.13 In its analysis, the NCRWC stated that in at least
twenty out of the more than one hundred instances, the invocation of Article 356 might be termed as
a misuse. It is difficult to believe that, during his tenure as the Governor of the State of Uttar
Pradesh, RomeshBhandari made any real effort to install a popularly elected government or to

12State of Madhya Pradesh v. Bharat Singh

13National Commission to Review the Working of the Constitution.


conduct a constitutionally mandated floor-test to test the strength of the Legislative Assembly in the
State for identifying amajority party before prompting the application of the Article by the President.
After the fall of the Mayawati Government in the State of Uttar Pradesh, it might have been
justifiable to impose Presidents Rule. But it was also necessary to hold fresh elections as soon as
possible. The mala fides of the Union Executive in preventing the assumption of office by an
unfavorable political entity became clearly manifest in Governor Bhandaris actions and the decision
of the United Front Government at the Center, to re-impose Presidents Rule in Uttar Pradesh. The
worst damage may possibly have been done through the office of the Governor, because the
Governor cannot be held responsible for his or her actions. H. M. Seervai pointed out that the
Governor can be removed only by the President and that the President acts on the advice of the
Council of Ministers; hence the Governor is in office pretty much at the pleasure of the Union
Executive. This may act as a bias whenever the Governors duty requires him to go against the
desires of the Union Executive. In its report, the NCRWC recommended that the President should
appoint or remove the Governor in consultation with the Chief Minister of the State. This may act as
a restraint on the misuse of power by the Office of the Governor. Another example of misuse of
Article 356 was the imposition of Presidents Rule in the State of Gujarat from September1996 to
October 1996, following the incidents of violence indulged in by members of the Gujarat Legislative
Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be treated as an
instance of failure of the constitutional machinery; it would otherwise become very easy for
malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the
Assembly and thereby prompting improper invocation of Article 356. The correct procedure to be
followed in such a situation is to pass suitable legislation for disqualifying the guilty legislators.

7. Failure to invoke emergency provisions

On the other extreme of misuse of Article 356 was the failure of the Union Executive - which was of
the same political belief as the Government of NarendraModi in Gujarat - to invoke Article 356
during the carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat.
To quote the words of FaliNariman, noted lawyer and nominated member of the Upper House
(RajyaSabha) of the Indian Parliament during a parliamentary debate: Vital statistics tells us that
there are more than 100000 persons in refugee camps and more than 30,000 people have been
chargesheeted. Are these figures not enough to compelthe Government to take action under articles
355 and 356? FaliNariman also rightly pointed out in an interview with a newspaper correspondent
that the Constitution may not have envisaged a situation where an emergency has arisen in a State
where the ruling party is of the same political persuasion as the one at the Center and, hence, the
Center might be biased against dissolving that government by invoking Article 356. He also pointed
out that the word otherwise in the text of Article 356 becomes instrumental in such a situation to
allow the President to act without waiting for the Governors Report.

8. Conclusion

It is evident that there is a lack of effective safeguards against the abuse of Article 356 of the Indian
Constitution. The safeguard of parliamentary approval - outlined in Article 356(3) - of a
Proclamation under Article 356(1) could be biased because the Party that is in power at the Center
generally dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring
a particular imposition (or failure to impose) of Presidents Rule to be wrongful cannot undo the
damage already done. However, the repeal of Article 356 is not advisable because the Indian polity is
rife with crises and there has to be some contingency against a constitutional deadlock in a State.
The NCRWC also advised against the repeal of Article 356, stating that this would create an
imbalance in Union-State relations in upholding constitutional governance throughout India and that
in many more instances than not the use of Article 356 was inevitable. Another option is to
introduce further checks on the exercise of power under Article 356, by amendment. Even this is not
advisable because it defeats the very purpose of the Article of dealing expeditiously with
emergencies of constitutional failure in a State. Therefore, the most practical course left open may be
to let history take its course. Eventually, the public opinion in India, we fervently hope, will awaken
to the fact that Article 356 may veritably have become a noose that is slowly tightening around the
neck of democracy in India, suffocating the right of the people under the Constitution. In the
meantime, to nurture budding public opinion we do have a resource not to be underestimated, which
is the power of judicial review of the Supreme Court, which has on more than one occasion shown
that it is a power to be reckoned with. So we will have to suffice for now with occasional outcries
against the Union Executive unsheathing or failing to unsheathe, at its sweet pleasure that double-
edged sword called Article 356.