This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law. The article gives a detailed description of Article 365 of the Indian Constitution and the provisions therein.
This article has been published by Sneha Mahawar.
Article 365 comes under Part XIX (Miscellaneous) of the Indian Constitution. The provisions of Article 365 are often overlooked. But it plays a crucial role in centre-state cooperation and coordination and gives importance to the constitutional machinery. Article 365 of the Constitution imposes the President’s rule on a state that fails to comply with the directions given to it by the union government. Even though the states enjoy autonomy and discretion in running their internal affairs and conducting the business of the state, there are certain circumstances when the union gives particular directions that must be adhered to by every state. When the state fails to adhere to such instructions, the President can impose a state emergency under Article 356 of the Constitution and impose President’s rule in the particular state. This article talks about the provisions of Article 365 and the manner in which it is implemented in India.
The Constitution of India and the division of powers among the centre and states therein have been divided into 3 lists: the State List, Union List, and the Concurrent List.
- Under the State List, the states have the power to decide, make laws and execute them.
- For items listed in the Union List, it is strictly the discretion of the Union government to make laws.
- The concurrent list is a list where the states and the centre, both have decision-making powers, yet the ultimate discretion is of the state governments for their respective states.
To strike a balance between the discretionary powers given to state governments and the power of the union government to conduct the business of the entire nation, centre-state relations play a vital role and are divided into:
- Legislative relations between the centre and states (Article 245-255 of the Indian Constitution)
- Administrative relations between the centre and states (Article 256-263 of the Indian Constitution)
- Financial Relations between the Centre and states (Article268-293 of the Indian Constitution).
The states are thus under an obligation to adhere to the provisions of the Constitution and the laws made by Parliament. They have to perform their executive duties in a way that does not impede the union’s executive powers over that state. The State Governments are obliged to abide by the directions given by the Central Government on several aspects where the Central Government is empowered to give directions to states. These are mandatory provisions and the failure to comply with the same leads to Article 365 being invoked. When Article 365 is violated by a state, the President has the discretion to declare the President’s rule in that state under Article 356 of the Constitution. Thus, Article 365 and Article 356 are often read simultaneously.
Matters on which the centre can issue directions to states
As the centre is empowered by centre-state relations, it can thus issue directions to states in the following matters:
- The centre can give directions for the construction and maintenance of roadways, railways, and other means of communication that hold national importance and things/places having military importance.
- Directions on the maintenance of railways.
- Directions to educational institutions for linguistic minority groups.
- Directions and schemes for scheduled tribes in the states.
- There can also be a situation of mutual delegation where the union can delegate its executive powers of a particular state to the state government and the state government can vest its powers on the union.
For instance, during the 2020 COVID-19 pandemic, the union government gave several mandatory directions that had to be followed by every state, including lockdown rules. In such situations, if any state does not adhere to the union’s directions, the President can term it as a contravention of Article 365 and contravention of constitutional machinery. Recently, in June 2022, the Central Government issued directions to five states – Tamil Nadu, Kerala, Telangana, Maharashtra, and Karnataka as the states saw a rapid rise in the number of COVID-19 cases. The Central Government directed governments of these states to take immediate vigilant steps and pre-emptive measures to prevent the increase in the spread of the infection. These states were strictly directed to take measures as directed by the Central Government and any failure would imply to the failure of the State Governments in complying with the directions of the Central Government and could lead to invoking Article 365
In the case of Rameshwar Oraon v. State of Bihar and Ors (1995)., the court observed that it is mandatory for the state governments to abide by and follow the directions given to them by the Union Government. This case spoke about the mandatoriness of the obligation of the state governments to comply with the directions given to them by the central government.
In State of Rajasthan and Ors. v. Union of India and Ors (1977)., the Supreme Court observed that the power of the Central Government to issue directions to State Governments under Article 256 can be used and justified if the Central Government is of the opinion that the State Government and the executive powers of the State Government are run in contravention of the Union laws.
It was observed in State of Karnataka v. Union of India and Ors (1978). that when the Central Government issues directions to State Governments and when it is done with an assumption of State executive contravening Central laws, the Central Government is regarded as a legal entity while issuing such directions.
Provisions of Article 365 of the Indian Constitution
Article 365 of the Constitution is an extension of the provisions of Article 356 of the Indian Constitution. President can impose emergency provisions under two situations:
- A national emergency can be imposed by the President on the whole of India under Article 352 of the Constitution.
- When Article 365 is violated by any state, the President can impose a state emergency under Article 356.
History of Article 365
Article 365 of the Constitution is a Part of the emergency powers of the President. Whenever the central government gives directions to state governments in any context as has been mentioned above, the state governments are bound to follow it. If the state government fails to comply with those directions, it is a violation of Article 365 by that state, and the President may impose Article 356 on that state and assume his rule. This provision thus vests enormous powers on the union executive by giving the President the power to dismiss a democratically elected government in a democracy.
Only two democracies in the world, India, and Pakistan have these provisions in their constitutions. Origins of these provisions can be traced back to the Government of India, 1935 when, both India and Pakistan adopted it. It was under Section 93 of the Government of India Act, 1935 that the governor was vested with powers to issue proclamations, such as:
- When the Governor of a province deems that the government of that province is not being run according to the provisions of the Government of India Act (1935), he may declare proclamations under this section.
- The Governor could thereby impose his rule in that province and declare that the province shall be governed under his power.
- The Governor may assume all the powers vested to a body or authority for that province to himself.
- The Governor may thereby suspend or dissolve any provincial body or authority that has been vested with powers earlier.
- However, the Governor was not entitled to impose his rule on the functioning of the judiciary in that province.
- Such a proclamation can only be revoked by him with a new proclamation.
- The Governor may also alter the terms of such a proclamation.
- Such a proclamation can be in place for a term period of 2 years until re-election.
Discretion under Article 365 of the Indian Constitution
Article 365 is a directory and discretionary by nature. It is not a mandated provision. Article 365 states that ‘it shall be lawful for the President to hold…’ this means, that when a situation of emergency arises in a state, due to the violation of Article 365, it is the discretion of the President to whether or not to proclaim an emergency in that state. The President is not bound to assume rule and jurisdiction in a state if it is believed to have failed to comply with the directions given by the union. The President shall do so if deemed necessary. Thus, it’s not an obligation but rather a discretion because the President can choose whether or not to assume rule in that state. The President assumes such a rule only if he is satisfied that it is necessary for the just and proper functioning of the state to do so. Since the imposition of the President’s rule shall imply that the government of the state can no longer run as per the provisions of the Constitution, the powers are restrictively exercised by the President. The President must give due consideration to all the factors affecting a situation where the state stands accused of either having failed to comply with the centre’s directions or of having violated the Constitution and all the possible reasons for such a situation to have arisen. The state government must be given a fair opportunity to be heard.
Article 365 leads to the implementation of the President’s rule in the state that has violated it. When the President’s rule is imposed in a state, the state government is thereby suspended and direct governance of the centre is given effect. The President’s rule in a state can stay in place for 6 months, and it can be revoked at any time at the will of the President. However, this term of 6 months can be extended up to 3 years in phases, if certain criteria are met.
The President of India can proclaim a State Emergency and impose the President’s rule in the state for either of the following reasons:
- Due to external aggression,
- Due to internal mismanagement, or
- Due to the violation of the Indian Constitution.
The President’s rule under Article 365 via Article 356 is invoked under the third ground. The President of India can impose the President’s rule in a state by proclamation of an emergency under Article 365 due to a breakdown of constitutional machinery in a state or failure of the state to comply with the directions given by the Central Government.
Imposition of the President’s rule in a state
The President of India imposes his rule over a state when he is satisfied that such an imposition is needed and gives due consideration to all relevant factors that lead to a violation of the Constitution by that state. The President imposes his rule in a state when he is satisfied with the circumstances that it is expedient to do so. The President imposes his rule in the following manner:
- The President of India imposes his rule on the advice of the Union Council of Ministers headed by the Prime Minister of India.
- If the President is satisfied that the state cannot be run in accordance with the Indian Constitution, he imposes his rule over the state. This happens when the state government is running in accordance with the provisions of the Indian Constitution.
- Another factor that can lead to the imposition of the President’s rule in a state is when the President is satisfied that the state government has not been able to elect a candidate as the Chief Minister for that state within the time period specified by the Governor of that state.
- If the Chief Minister of the state loses the majority in the Houses of the State Legislature, it will lead to the dissolution of his government in the state. If the ruling party is first given a specified time period to regain the majority, and if it fails to do so, the President may impose his rule in that state.
- If the ruling party loses the majority in the State Legislative Assembly, followed by a vote of no confidence, the President may declare the imposition of his rule in that state, after ordering the dismissal of the state government that lost the majority.
- The President can also impose his rule in a state for a brief period of time if the state elections were withheld due to situations like natural disasters, epidemics, or war. The President in this situation continues to govern the state until re-elections are held and a new government is formed, after which the President can revoke his rule in that state.
Manner of imposition and duration of the President’s rule in a state
The steps of the procedure that are followed in the imposition of the President’s rule in a state are mentioned below:
- First, the violation of Article 365 has to be proven for the imposition of the President’s rule in a state.
- Such a situation has to be looked into, and the President has to be satisfied that invoking Article 356 is expedient.
- The President, when satisfied, issues a proclamation of a State Emergency.
- Such a proclamation to be implemented has to be approved by the Parliament of India.
- It has to be approved by both the Houses of Parliament within two months of issuance.
- In case the Lok Sabha is not in session or is dissolved, and the proclamation is approved by the Rajya Sabha, the proclamation continues till 30 days from the re Constitution of the Lok Sabha.
- When the proclamation is approved by the Parliament, it can remain active for 6 months. This period can be further extended up to three years in phases of 6 months where approval has to be obtained from the Parliament in every phase. This 3-year extension limit was introduced through the 44th Constitutional Amendment Act (1978). Such an extension has to be backed by strong reasoning and justification. Before the 44th Constitutional Amendment Act, the maximum period up to which the President’s rule can be imposed was for one year.
Consequences of the President’s rule
Mentioned below are the consequences that follow after the implementation of the President’s rule in a state:
- The governor of such a state is made the constitutional head of the state.
- The Vidhan Sabha of such a state is either dissolved or prorogued.
- The state is run by the central government and central administration.
- The Election Commission is then required to conduct re-election for the formation of a new state government for the state within 6 months.
- Though such imposition does not affect the general public of the state directly, it affects them in a way of disrupting public good since no major legal or administrative changes can be brought in the state.
- No new policies can be formed during the President’s rule in a state.
- No new laws can be made by passing a bill in the state legislature during the President’s rule in a state.
- Pending public and state welfare policies remain pending during this period of the President’s rule.
Inter-relation between Article 365 and Article 356
Article 356 and Article 365 are interrelated in a manner that one cannot exist without the other. Their interrelationship, similarities, and differences can be seen as:
- One cannot exist without the other. This is said because Article 356 is imposed for an infringement of Article 365 and Article 365 leads to invoking Article 356.
- When a state is guilty of not following the directions issued by the Central Government, or when the State Government has violated the provisions of the Indian Constitution; Article 365 becomes applicable.
- If there arises a situation where the Central Government deems it expedient to impose the President’s rule in a state, due to the breakdown of constitutional machinery or any other reason, the Central Government can order dismissal of the government of that state and thereby impose the President’s rule in that state.
- Article 365 is a prerequisite for invoking Article 356. Article 365 is regarded as an extension of Article 356. The President of India can impose the provisions of Article 356 on a state on either of the two grounds mentioned in Article 365.
- Both Article 356 and Article 365 are discretionary in nature. This means that the President is not mandated to impose these articles on a state. The President does so, at his will and discretion, after giving due consideration to all relevant factors leading to invoking the articles.
- Both Article 356 and Article 365 are invoked in extreme situations and not otherwise. Careful scrutiny and inquiry are conducted to check the gravity of the contravention and it is only then if the situation demands the implementation of the President’s rule and dismissal of a government, that it is done so.
- Article 365 comes first in the procedural aspect. After due consideration and inquiry is made under Article 365 and when the President is satisfied that Article 365 is infringed, then the President imposes Article 356. Thus, Article 365 is the procedure to be followed before making a declaration under Article 356.
Instances where Article 365 of the Indian Constitution was invoked in India
There have been several instances where the President of India imposed the President’s rule over a state in violation of Article 365 of the Constitution. Instances of implementation of the President’s rule in states for the breakdown of constitutional machinery are as follows:
- President’s rule was imposed for the first time in Punjab in 1951 when the Pandit Jawaharlal Nehru government suspended Gopi Chand Bhargava’s ministry in the state.
- In 2001, Manipur State Government, which was formed just a year ago, was suspended on allegations of horse-trading, which was followed by a vote of no confidence.
- In 2007, President’s rule was imposed in Karnataka since the ruling party lost the majority.
- In 2008, the Jammu and Kashmir state government lost the majority, and it was followed by protests in the state. Thus, the President’s rule was imposed.
- In 2014, the Maharashtra government was dissolved due to separating ties with its allies. As a result, the President’s rule was imposed on the state.
- Due to the split and consequent failure of the ruling party, President’s rule was imposed twice in Uttar Pradesh in 2016.
Landmark judgments on Article 365 of the Indian Constitution
Mentioned below are landmark judgments under Article 365 of the Indian Constitution:
S.R. Bommai v. Union of India
It was in 1988-89 when S.R. Bommai was the Chief Minister representing the Janata Dal in Karnataka. In 1989, his government was dismissed on grounds of losing the majority due to defective governance. However, the S.R. Bommai government never got an opportunity to test their majority in the State Legislative Assembly as it was not approved by the then Governor of the state and reasons were not specified for such denial. Such a move was considered arbitrarily and the President’s rule was imposed in the state due to the dismissal of his government. Thus, S.R. Bommai moved to court seeking redressal.
After years of litigation, in 1994, the Supreme Court gave this landmark judgment with a 9 bench judge that the dismissal of the S.R. Bommai government was arbitrary. The Supreme Court ordered the invalidation of such dismissal and thereby laid down certain reasonable restrictions to put an end to such arbitrary use of power vested under Article 356 of the Indian Constitution. Those directions were:
- The majority enjoyed by the Council of Ministers must be tested on the grounds of the House.
- The centre must give a warning to the state before imposing the President’s rule in the state and also give a one-week time to respond.
- The President must not dissolve the Assembly in such a state or take action under Article 356(3) unless it is expedient to do so.
- Article 356 can only be invoked for the breakdown of constitutional machinery as under Article 365 and not otherwise.
- Such implementation shall be done reasonably, with due consideration to all necessary factors.
This was one landmark judgment that established the basis of Article 365 and its implementation under Article 356. The exemplary case and the guidelines stated therein have been followed ever since.
The Andhra Pradesh government case [CM Jagan Mohan Reddy v. the judges (Andhra Pradesh High Court)]
In 2020, the Andhra Pradesh High Court took suo moto cognizance to conduct an inquiry into the breakdown of constitutional machinery by the Andhra Pradesh government. The Governor was of the opinion that the government needed to be dismissed and the President’s rule should be implemented. The case reached the Supreme Court of India where it was observed that the Andhra Pradesh High Court made a case of judicial overreach and it was arbitral. The Apex Court stayed the order of the High Court and stated it was a misuse of power granted under the Indian Constitution and a breach of the doctrine of Basic Structure of the Indian Constitution.
Centre-state relations are a fundamental feature of democracy. The coordination and cooperation between the centre and states help in the smooth functioning of the nation. The powers vested to the President under Article 365 are extraordinary powers and have to be exercised reasonably and as a last resort. Whenever the President of India suspends a state government under Article 365 for failure to comply with the central government’s directions and imposes a rule of the central government in that state, several consequences follow, such as dissolution or prorogation of the Vidhan Sabha in the state, an indefinite pause on policy-making, taking decisions and implementation of new laws in the state, etc.
Article 365 is an extension of the main provision of the imposition of the President’s rule, which is mentioned under Article 356 of the Indian Constitution. These articles are interrelated and are needed to be read together. When a state is held liable to contravene the provisions of Article 365, the President imposes his rule in that state by proclaiming a State Emergency in that state and dissolving the ruling government under Article 356. Article 365 is highly debated by policymakers and lawmakers as it is being misused as a tool to meet political agendas and corrupt reasons rather than an actual breakdown of constitutional machinery. The several incidents of implementation have been indicative of the same. Only time will tell how constitutionally valid the article is and if it is meant to stay.
Frequently Asked Questions (FAQs)
What is Article 365?
Article 365 of the Indian Constitution confers powers on the President of India to resume his rule in a state. It is when a state fails to comply with directions given to it by the central government or is stated to have violated constitutional machinery that Article 365 is invoked. When Article 365 is invoked, the President proclaims a situation of emergency in a state under Article 356.
What is the difference between Article 365 and Article 356?
Article 365 is when a state is held to have violated the constitutional machinery by not following the directions given to states by the union government under certain circumstances. When Article 365 is believed to have been breached, the President is entitled to proclaim an emergency in that state under Article 356.
How long can the President’s rule be imposed in a state?
A President’s rule can be imposed for 6 months. It can be further extended to a maximum of up to 3 years, in phases, for reasons to be stated and allowed under the Constitution of India.
What is the nature of Article 365?
The President’s rule for violation of Article 365 is discretionary. It is not mandatory in nature, meaning the President is not bound to impose rule in a state for every believed breakdown of constitutional machinery. It is thus, the discretion of the President to impose Article 365 in a state.
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