This article has been written by Naman Verma pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles and edited by Shashwat Kaushik.
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The Indian Constitution, though the backbone of the working democracy of this country, has been put to the test many times. The imposition of these challenges on the constitutional provisions, being an inherent facet of this democracy, is indispensable due to the constant evolution of our society. However, it is of significant worth to know that it is one thing to face the challenges in the applicability of laws due to the development and evolution of society, where the needs of the society demand different sets of governing rules and regulations, and it is a completely different thing to witness the questioning of these rules and regulations on account of abuse and misuse of law. It is not that the intentions behind framing these regulations fundamentally called for their misuse, but rather the political framework that allowed the scope for abuse of law. Article 356 of the Indian Constitution is one such provision where we face this challenge, which was implemented and adopted after heavy debates and discussions by the members of the Constituent Assembly. The legislative intent behind the implementation of this provision provided for a certain set of limitations and their corresponding intentions. However, the lack of political will, the abusive tendencies of the ruling governments and the arbitrary application of this provision have urged the need to contemplate its meaning and interpretation once again.
Federalism in India
The Indian Constitution, in Article 1, declares India a “Union of States”. This essentially implies two broad aspects, firstly, that the Union of India is not a result of a mutual agreement among its states, and secondly, that states are not entitled to secede from the Union. This forms the basis of the idea of Federalism in India. After numerous accounts of debates and theories given by eminent scholars and jurists, it can be said that the Constitution of India is neither purely federal nor purely unitary, but a combination of both. It rather has federal characteristics with a strong Union, thereby establishing the fact that the Indian Constitution is so exclusively designed that it takes note of certain contingencies where the Union would have a supervening power over the states while equally maintaining the autonomy of states in other aspects. This is to strengthen the principle behind the notion of the Union of India.
Historical background and purpose of Article 356
Amongst others, one such aspect that corroborates the unitary features of the Constitution is the provision of President’s Rule, also known as State Emergency or Constitutional Emergency, which comes under the broader head of Emergency powers. It is enshrined in Article 356 and has been a topic of discussion since its inception. The Article fundamentally provides for the imposition of an emergency in a state by the President when he thinks that the government of that state cannot be carried on in accordance with the provisions of the Constitution, thereby giving the executive and legislative powers to the Union. Initially, it was enshrined in the Government of India Act, 1935, under Section 93, when limited powers were awarded to the provinces to govern themselves, whereby the governor of a province, if he felt that the government of that province could not be carried on in accordance with the Act, could withdraw all or any of the powers of the government and discharge them himself. In a way, the British authorities kept open an opportunity for themselves to govern a province whenever needed. This became subject to criticism by Indian leaders and, as a result, could never be implemented.
Ironically, the same provision was taken into consideration by the Constituent Assembly in the making of the Constitution, which implemented it in the form of Article 278. During the debates and discussions while framing the Constitution by the Constituent Assembly, many leaders came out and voiced their disagreements on the adoption of this provision. Inhibitions were stated that a misuse of this provision could result in giving way to an imperialistic character to the Union Government, one which the British authorities were criticised for. However, B.R. Ambedkar, the chairman of the Drafting Committee, and some others supported the adoption of this provision. The rationale, as stated, behind adopting and implementing the same provision as promoted by the British authorities in the post-independence age was to preserve the basic tenets of democracy and federalism. The understanding of the Constituent Assembly was that this provision would be used in the rarest of rare cases and that would mostly be a dead letter provision of the Constitution, which would be taken into use only in situations that require measures for the sustenance of cooperative federalism.
Significance and role of Article 356 in the Indian political scenario
Though the rationale behind the implementation of Article 356 was based on the fact that it would be put to use only on a rare occasion, little did the constitution makers know that the political system of the coming age could have the potential for its blatant misuse. Since independence, Article 356 has been used by the ruling Central Governments and political parties as an instrument to indirectly usurp the powers of the state governments. It has time and again been stated that the discretion of the President in using this power is merely at the disposal of the ruling Central Government. The sanctity of the intentions behind implementing this provision has been sidestepped by the corrupt political practices of modern times. Whether it would ever be considered for amendments to its misuse, which is a question of the moral, ethical and social obligations of a government to its society.
Understanding the concept of Article 356
Nature, scope and explanation
The Constitution provides for different categories of situations in which there can be a departure from the usual constitutional mechanisms. These categories formulate the category of emergency provisions under Part XVIII of the Constitution. Apart from a national emergency under Article 352 and a financial emergency under Article 360, there is a Constitutional or state emergency, popularly termed the President’s Rule, enshrined in Article 356. Since our Constitution has federal characteristics with a strong inclination towards the Union and that this federal character has been held to be a basic structure of the constitution in the landmark judgement of Kesavananda Bharati… vs. State of Kerala and Anr. (1973), it is only reasonable to derive that it is the Union that has an obligation to protect and uphold the constitutional spirit of a State by preventing a failure of its constitutional machinery in certain situations that may arise. Moreover, Article 355 of the Constitution imposes a duty on the Union to protect every state against external aggression and internal disturbance and ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
Article 356 empowers the President to withdraw the executive and legislative powers of a state when he feels that the government of the state cannot continue as per the provisions of the constitution. Article 356 clearly lays down the conditions under which a president’s rule can be imposed. It is subject to the satisfaction of the President that the government of the state cannot function in accordance with the constitutional provisions, firstly on receipt of a report from the governor of the concerned state, or secondly “otherwise”, meaning the President on its own or in consultation with the Union may also use this power. The term satisfaction is not to be interpreted as the personal satisfaction of the president. Rather, it is the satisfaction of the union that plays an important role. This satisfaction can be challenged in court on the ground of mala fide intentions or irrelevant grounds.
Conditions under which the proclamation can be issued
The proclamation of a state of emergency by the president can be done in two cases:
- As stated under Article 356, when the President is satisfied that the state is unable to govern itself as per the constitutional provisions
- As stated under Article 365, when a state has failed to comply with or give effect to any directions given by the Union in the exercise of its executive power as provided by the Constitution, this would ultimately become grounds for the President to affirm that the state cannot be governed in accordance with the constitutional provisions.
Powers of the President vis a vis Article 356
The President, by such proclamation, will have the following powers:
- He is empowered to withdraw the powers vested in all the constitutional machinery of the state and perform them himself. That is to say, the President can perform any function of the state government, the powers and functions of the governor, or of any body or authority of the state.
- Since the President will not be vested with the powers of the state legislature, the President may declare that such functions of the legislature of the state shall be exercised by the Union Parliament or any other authority under it.
- The President is given wide powers to make any incidental or consequential provisions in furtherance of giving way to the proclamation.
Effect of proclamation
After a proclamation under Article 356, the State Legislative Assembly is suspended or dissolved and as stated in Article 357, where a proclamation is issued under Article 356, the Parliament shall be competent to make laws for the state or confer the state’s power of legislating laws to the President, who can delegate the same to other authorities as he may deem fit. The law so made in the exercise of powers under Article 356 by the competent authorities would continue to operate after the cessation of the proclamation until it is specifically altered, amended or repealed by the state legislature. Also, when Parliament is not in session, the President’s power to promulgate ordinances can also be exercised by him. Moreover, during a state emergency, it is the governor who usually holds the administration of the state in the name of the President.
Duration, expiration and revocation
The duration of a proclamation is two months. However, if such a proclamation was issued when the Lok Sabha was dissolved or if its dissolution takes place during the two months period when the proclamation was in force, said proclamation will cease to exist within a period of 30 days from the day when the Lok Sabha reconstitutes. It may also remain in operation if the reconstituted house approves the same.
It has been provided in the Constitution that an extension may be given to the said proclamation for a period of no more than six months by way of passing a resolution by the two houses of the Union Parliament stating so. The maximum period for which the President’s Rule can be extended is three years, but as per the 44th Amendment Act of 1978, to extend it beyond a total period of one year, two conditions must be fulfilled:
a. A national emergency is in force under Article 352.
b. The Election Commission certifies the extension of the proclamation.
The revocation of the said proclamation can be done by the President passing a subsequent resolution to the same effect.
Abuse of law and criticism
It was not in jest that the learned members of our Constituent Assembly debated, discussed, and put forth their concerns while adopting and implementing Article 356 of the Indian Constitution. They understood the fact that it had the potential to impose a manifold impediment to the strong federal character of the Indian democracy they had envisioned. Though hesitant, the Constituent Assembly implemented the provision, keeping it as a last resort.
The misuse of this provision is not novel; rather, it started as early as independence itself. Instances can be seen when this provision is used to topple an established state government or prevent one from being established. The whims and caprices of the political parties have now made this provision a means of imposing the Central Government’s authority over the state governments. This is used mostly in cases where the established or about to be established state government constitutes the majority from the opposite political party to one that governs at the centre. This overuse and abuse of power by politically driven Central Governments time and again is indirectly sabotaging the federal structure of Indian Democracy by thwarting the state governments on unreasonable grounds.
In the case of the State of Rajasthan and Ors. Etc. Etc. vs. Union of India Etc. Etc. (1977), the Supreme Court’s rationale can be read in terms of the fact that the proclamation under Article 356 was subject to satisfaction of the two conditions, i.e., failure of constitutional machinery or disobeying the directions of the Union government. Beyond this, the Court could not question the reasoning behind implementing the said article in any state. Moreover, the court clearly stated that the satisfaction of the President was a subjective one that could not be questioned on objective grounds unless it fell under the exception of being unreasonable and based on irrelevant grounds.
The 1983 report of the Sarkaria Commission, under the chairmanship of retired Supreme Court Judge R.S. Sarkaria, recommended that the provision be implemented as a measure of last resort. It stated that all efforts should be made to resolve the crisis in the state before invoking this provision. Various considerations were provided in the report that were to be kept in mind before applying the President’s Rule. The report suggested the state first be warned about not abiding by the constitutional provisions, giving it an opportunity for an explanation. In severe situations where there is a paucity of time and urgency, it is recommended that the union first use the other alternatives.
In 2007, the Punchhi Commission was set up under the chairmanship of former Chief Justice of India M.M. Punchhi. While giving its observation on interstate relations in terms of Article 356, it recommended amending the provision as the need of the hour. It also stated that rather than proclaiming an emergency in an entire state, it could be taken into consideration by the Central Government only to limit and control the particular area concerned. The recommendations were made to prevent misuse of power under this provision.
In the case of S.R. Bommai vs.Union of India (1994), the Supreme Court proposed guidelines for the imposition of Article 356. While summarising its view, the Court stated that the power in reality exists with the Union Council of Ministers with the Prime Minister as its head, and the President is only enforcing their decision. It stated that the power under Article 356 is a conditional power and not an absolute one. One of the primary observations that the Court made was that the power under Article 356 was not exempted from judicial review. The Court further in this case has laid down when and when this provision can be invoked to proclaim a state emergency.
The very fact that there have been multiple instances of enforcing the President’s Rule in a state due to political reasons, and now that the inhibitions of the Constituent Assembly members as voiced by them earlier regarding the same are apparently proving to be true, it is for the existing government and those to come at the Centre to maintain the constitutional sanctity of the provision before subjecting it to blatant misuse. In the spirit of cooperative federalism, it is necessary for the cessation of such misuse of a constitutional provision. Since the law on point has evolved owing to the Supreme Court’s interpretation in cases like S.R. Bommai vs. Union of India and State of Rajasthan vs. Union of India and the report of the Sarkaria Commission, it is for the Central Governments to make sure to prevent the violation of the same. It is idealistic for the political parties to make sure that they do not give in to the whims and caprices for political benefits.
Since the proclamation under Article 356 is made by the President, it is advisable that presidential activism could prevent the misuse of this power. The president can exercise the option of issuing a warning to the state before imposing the President’s Rule. Certain measures, like re-election in the state on failure to act on the said warning, could also enable him to defend the federal character of the Constitution. An amendment to the Constitution can also be proposed to empower the President, along the lines of requesting the Council of Ministers headed by the Prime Minister for reconsideration. Moreover, defining what the failure of constitutional machinery would precisely mean would further enable the lawmakers to uphold the true intentions behind the adoption of this provision. It is to be understood that giving such wide scope for the application of this Article would subject it to additional misuse by the ruling government. There is no such provision in any democratic country that enables the Central Government to curb the freedom of states on frivolous grounds. Therefore, it is implicit that the understanding of the members of the Constituent Assembly was to put this provision in the Constitution only to be used in the rarest of the rare cases as a shield to protect the integrity of the nation and not as a weapon to ambush the federal character and sanctity of the Constitution.
- Introduction to the Constitution of India by D.D Basu