This article is written by Anushka Kashyap and updated by Shriya Singh. It discusses, in detail, all about Article 356 of the Constitution of India. It covers it’s objective, proclamation, revocation, consequences, continuation, etc. Further, it also delve deeper into the nature and scope of the provision with regards to landmark case laws, commission reports and amendment Acts  Along with it, the article also covers the comparison of the provision with Section 93 of the Government of India Act, 1935, and with Section 352 of the Constitution. Finally, it also deals with its current scenario as well as the critical analysis with respect to the need for amendments to it.

This article has been published by Shashwat Kaushik.

Introduction

The Constitution of India is an instrument that provides for a federal set-up in the country and also specifies definite functions for central and state governments.  The jurisdiction of central and state governments with regard to the law-making process has been explicitly mentioned in Schedule 7 of the Constitution.  However, there are certain circumstances through which the central government can enter the jurisdiction of states, and the presidential proclamation of emergency is one of them.

The President of India can overtake the legislative and executive power of the state by imposing an emergency in a state in case of “failure of constitutional machinery.” Article 356 states that “if the President, on receipt of a report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may proclaim an emergency in a state.” With the proclamation of President rule in a state, the elected government is dismissed, the legislative assembly is suspended, and the administration of the state is directly controlled by the President through his representative governor.

Since its inception, Article 356 has been a matter of debate and discussion because the president’s rule has a probability of hampering the federal structure of the nation. The origin of Article 356 can be traced back to Section 93 of the Government of India Act, which provided the same provision of imposing an emergency by the governor in case the province couldn’t be run in accordance with the provisions of the act. This section was incorporated in the Indian Constitution by replacing ‘governor’ with ‘President’. However, various members of the Constitutional Assembly had opposed this provision of imposing President rule in a state citing the reason that Article 356 may result in union dominance over the state because of the vague and subjective nature of the word ‘otherwise’.

But the chairman of the drafting committee, B.R. Ambedkar, was of the view that any provision of the Constitution or a law can be abused, but the same can’t be used as a reason to not incorporate the law. In the constituent assembly debate, he stated that “In fact, I share the sentiments expressed by my Hon’ble 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 as dead letters. 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”.

Basically, Ambedkar was trying to say that Article 356 can be used in the rarest of rare cases and not randomly on trivial issues. The founding fathers of the Constitution have considered that the socio-political diversities across the nation have the probability of attracting difficult situations as the road to democracy is not so smooth, and therefore, the President should be given such power to protect the state from a situation of breakdown of law and order and to maintain peace and harmony in the state.

However, framers of the Constitution weren’t able to foresee the nature of Indian politics and instances where the Constitution was amended just for the sake of benefiting a particular political party. Ironically, after one year of the enforcement of the Constitution, i.e., 1951, Article 356 was misused when the Nehru-led Congress government dismissed the chief minister of Punjab, Gopichand Bhargava, even though he had the majority in the state and there was no situation of failure of constitutional machinery. Again, in 1954, the elected government of Andhra Pradesh was overthrown because the central government foresaw a probability of a communist regime taking hold of the state.

Since then, there have been numerous instances where Article 356 was used as a device to surpass state government by the central government to achieve their political good. It is an established principle of Indian democracy that the governor acts at the pleasure of the President, and the President eventually works with the aid and advice of the council of ministers who belong to a particular political party.  From this fact, it can be inferred that the central government can use this provision as a device to surpass the opposition party in a state.

Therefore, the validity of the exercise of discretionary power by the President to impose Presidential rule is questionable, as there is a strong chance that the President’s opinion of imposing an emergency in a state is influenced by the ideologies of the political party at the center. The author of this article has analyzed the nature and scope of Article 356 of the Constitution, with special emphasis on the judgment of the apex court in Bommai’s case. Furthermore, the paper has scrutinized the instances of President Rule applied over a period of time, i.e., 2014–2020, its reason and validity in accordance with constitutional provisions, and the need to amend the concerned provision.

Indian emergency laws : the origin story

In many democratic countries, there arise times when certain powers, which in normal situations are beyond the scope of the government, get vested in them to address situations of emergency. The emergency provisions differ from country to country. Some countries have their emergency provisions very detailed and meticulously defined, whereas others do not. 

In Germany, the emergency provisions are very meticulously defined, and India borrowed its emergency laws from Germany. Both Germany and India have national and state emergencies, which are often not present in other major democracies such as the United States of America, which has national and financial emergencies. 

In India and Germany, the emergency declaration depends on the central executive, who has the power to proclaim it. Furthermore, in both of these countries, the consequences of emergencies are specified in the constitution, and hence there is no dependence on the judiciary or its interpretation. This, however, does not mean that they are free from a judicial review, which will be elaborated upon later in this research.

Therefore, it can be argued that as the emergency provisions of India, both at the national and state level, find their origin in Germany, the two countries continue to share many similarities in this regard.

President’s rule under Article 356 of the Indian Constitution

Emergency provisions are listed in Part XVIII of the Constitution. President’s Rule is dealt with under Article 356 of the Indian Constitution. Article 355, which mentioned 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 following the provisions of this Constitution” under the Indian Constitution, does not explicitly conclude how the Union must perform its duty to protect a State against external aggression and internal disturbance; it is left to the Union’s assessment as to how to deal with any such circumstance as it emerges. It has been stated in Article 356 as to how it must carry out its duty to make sure that each State’s government is executed in compliance with the Constitution’s provisions.

Article 356 of the Indian Constitution gives the President the power to impose the President’s Rule on any state in case the constitutional machinery of that state fails. When and if the President gets a report from the Governor of the state or is otherwise convinced or satisfied that the state’s condition is such that the state government cannot rule as per the Constitution’s provisions, he can then, based on his assessment, impose President’s Rule in that State or if a state fails to adhere to all orders made by the Union on subjects over which it has authority, President’s Rule can be enforced.

The establishment of the President’s Rule in any state requires parliamentary consent and must be approved by both Houses of Parliament within two months of its execution. Hereafter, a simple majority’s approval is required for the establishment of the President’s Rule, which can stay in effect for six months. It can be prolonged for three years with legislative permission every six months after its implementation.  Article 357 contains some consequential measures relating to the exercise of legislative powers under the proclamation established under Article 356.

Political tool

The main intention of Constitution makers in view of Article 356 was that it must be used solely as an ‘emergency power’ and it must be invoked only in the event of “failure of constitutional machinery” in the state. Dr. Ambedkar wished that Article 356 would continue to be a “dead letter.” However, the reality is entirely different. President’s rule was imposed one hundred and seven times till date in various states. Well-functioning state governments were collapsed to pave the way for the Union government’s party to acquire power in the state.

Although Article 356 was misused by many Prime Ministers, Indira Gandhi is prominent for using it as a political tool against state governments. During her tenure from 1966 to 1977, President’s rule was imposed thirty-five times in various states where Congress lost power. Another period where Article 356 was frequently used was during the post-emergency period. The government led by the Janata Party dismissed most state governments where Congress was in power. Expectedly, Indira Gandhi acted similarly when she came back to power in 1980 by dismissing non-Congress governments.  However, this frequent political misuse of Article 356 has gradually decreased due to the timely intervention of the judiciary. The judiciary has actively taken measures to curb the misuse of an article and preserve the federal structure.

Interrelation of President’s rule and federalism 

Article 356 of the Constitution of India, or the President’s Rule, is very closely related to the principle of federalism in India. Federalism is a system of government wherein the powers and responsibilities are divided between the central and state governments. It is the fundamental feature of the Indian Constitution, and it’s enshrined in the distribution of powers between the Union and the States (7th Schedule). 

Federalism is a very important and valuable concept regarding government and governance. The distribution of power that it provides helps prevent the concentration of authority in a single hand, in turn reducing the risk of arbitrariness. It also provides citizens with multiple layers of government, making it easier for them to engage with the government, express their concerns, and, in return, get an effective say in the policies that affect them. Federalism makes the government more responsive to catering to the needs and preferences of the people, the government is working for. 

Article 356, being an emergency provision, allows the President of India to take over the administration of a state if the government places a report stating that the functioning of the state government is not in consonance with the Constitution of India. In other words, it can be said that whenever a constitutional breakdown happens in a state where the government is not able to perform in accordance with the principles of federalism as a check and balance, this provision comes to light. 

The principle of federalism provides the states with significant autonomy, while Article 356 serves as a check on the state governments to ensure that they adhere to the constitutional norms and do not violate the principle of federalism. It is used to protect the integrity of the federal structure of the nation. 

Article 356 is used as a last resort to resolve the balance between the powers of the central and state governments, that is, federalism. Whenever a state government is not functioning correctly and there is a threat to the federal structure of the nation, the central government steps forward temporarily to ensure the stability of the nation’s federal structure.

Federalism and Article 356 are interconnected, as whenever there is a breakdown of the former, the latter comes to the rescue.

Article 356 of the Indian Constitution 

Objective of Article 356 of the Indian Constitution

The purpose of Article 356 is that the centre is allowed to take remedial actions to put the state government back in its place so that it can function according to the Constitution. It would amount to a damaged fabric of federalism if the central government misused or abused the power given to it under Article 356. 

The president’s rule should be used very sparingly and in extreme cases. It should be taken as a recourse of last resort when every available alternative has failed to prevent the breakdown of the constitutional machinery in a state.

At times, the centre might be motivated by political considerations and not constitutional ones when they intend to use the power of Article 356 of the Constitution. It must be noted that the president’s rule is meant to be used not likely to serve the political ends or on the whims and fancies of the central government to get rid of any inconvenient state government but only as an aid in the extreme cases of demonstrable breakdown of the Constitution in a state.

Proclamation of emergency  

Whenever the state government is not able to function according to the provisions of the Constitution of India, the union government can take direct control of that particular state machinery under Article 356 of the Constitution of India. 

When the state government is functioning upright, it is run by the elected council of members responsible for the state legislative assembly, which is led by the chief minister of the state, and the governor is the constitutional head. However, when the president’s rule is proclaimed, the council of ministers is dissolved, and the office of chief minister is vacated.

The president has to be satisfied that the situation that has occurred in that particular state government cannot work in consonance with the provisions of the Constitution of India.

Power of the president in state emergencies

The president can take up the functions of the state government, which are vested in the state governor or any executive authority. It also takes up the independent function of the state.

The state legislature’s powers may be declared to be exercised by the President under the authority of the Parliament. Article 356(1)(a) envisages that all or any of the powers held by or exercisable by the Governor or any other body or authority in the state other than the State Legislature may be assumed by the President himself, together with all or any of the responsibilities of the state’s government.

The president can take all the important steps, including the suspension of the constitutional provisions relating to any authority in the state, except for the provisions related to the High Court of that state. 

Approval by the parliament

Approval of the Parliament for the President’s rule under Article 356 of the Constitution is a requisite for enforcement of the President’s rule.

The approval of both Houses of Parliament must be obtained within 2 months of the date of issue of the presidential proclamation, as per Article 356(3) of the Indian Constitution. 

However, if the proclamation of emergency is issued and the Lok Sabha is either dissolved or the dissolution takes place within 2 months from the date of its issue. In such a case, without approval, the proclamation of the president’s rule survives under 30 days from the first sitting of the newly founded Lok Sabha. However, the other house, that is, the Rajya Sabha, has to approve it in the meantime. It should be noted that Rajya Sabha is a permanent house, and unlike Lok Sabha, it never gets dissolved completely. 

A proclamation imposing the president’s rule must be approved by each house of Parliament, with a simple majority of the members present and voting.

Continuation of the proclamation

The proclamation of the President’s rule under Article 356 of the Constitution of India lasts only for 30 days from the first sitting of the Lok Sabha following its reconstitution if it is issued at the time when the Lok Sabha has been dissolved or if the dissolution of the Lok Sabha occurs during the two-month period then without the Rajya Sabha approving such proclamation. 

The proclamation stays in effect for another 6 months if both houses of parliament approve, and with the consent of the parliament, it can be prolonged for a maximum period of 3 years every 6 months.

Revocation of the proclamation

The president’s rule under Article 356 of the Constitution of India can be revoked anytime after such a proclamation has been made by the president through a subsequent proclamation. However, such a proclamation of revocation would not require any approval from the Parliament, and it mostly occurs when the leader of the political party brings about letters indicating that there is majority support for him in the assembly, such that he stakes his claim to form the state government in that particular state.

Article 356 is also revoked under the following circumstances:

• When it is not presented for approval before the House of Parliament after 2 years have lapsed since its imposition. 
• It has been presented before the House of the Parliament, but it was not approved by any. 
• If the House of Parliament has not enacted any separate resolution approving this proclamation and 6 months have elapsed since the proclamation date.

Consequences of the president’s rule

The President is empowered to administer the state under the president’s rule as it dismisses the state council of ministers headed by the Chief Minister. The state governor, on behalf of the President, runs the state administration. 

• As the state legislature is suspended or dissolved, the Parliament can delegate the power to make laws for the states to the president or to any other authority specified by the president in this regard. 
• The Parliament, or, in cases of delegation, the president or any other specified authority, can make laws concerning the powers of the union government.
• The president can authorise the use of the state consolidated fund if the parliament is not in session. 
• The president can promulgate an ordinance on the matters on the state list if the parliament is not in session. 

Such laws made by the parliament, the president, or any other specified authority continue to be operative even after the end of the president’s rule. The laws are not coterminous with the duration of the president’s rule; however, such laws can be altered or repealed by the state legislature.

Exercise of legislative powers in state emergency 

The exercise of legislative authority under the proclamation of Article 356 is provided under Article 357 of the Constitution of India. Article 357 states that when the president’s rule is proclaimed under Article 356 (1), the functions of the state legislature have to be exercised by the parliament. The parliament would be competent to grant the president the authority of the state legislature in order to create a loss, and it also authorises him to transfer the authority to any other authority created by him. However, he can apply conditions to that designated person as he deems appropriate. Such power to make laws includes the power to impose duties or to authorise such powers and the imposition of duties upon the union, officers, and authorities thereof. 

The President can authorise expenditure from the consolidated fund of the state, which stands pending the sanction of such an expenditure by parliament when the House of People is not in session. 

Article 357(2) provides that when the year has passed since the proclamation under Article 356 ceased to be effective, any laws passed while the Parliament, the President, or any other authority designated by him exercised the state’s legislative power in circumstances in which they were not competent to do so will cease to have any effect to the extent of the incompetency.

However, the things done or omitted before the expiry of the mentioned period would have no effect.

Comparison between Article 356 of the Indian Constitution and Section 93 of the Government of India Act, 1935 

Article 356 finds inspiration in Section 93 of the Government of India Act 1935. Section 93 provides that when a governor is satisfied that a situation has come up where the governance of the particular state cannot be carried out in accordance with the provisions of the Government of India Act 1935, he could proclaim the emergency and have to himself all the powers that are vested or exercised by the body that is authorised in that particular province, including the ministry and the legislature. The governor would discharge those functions at his discretion. However, Section 93 could not come into play in only one case, that is, the powers of the high court could not be taken away in this regard. 

The important differences between Article 356 and Section 93 are:

Serial No.	Basis of difference	Article 356 of the Indian Constitution	Section 93 of the Government of India Act
1	Authority to proclaim	Article 356 authorises the President to make the decision when he receives the report that is made by the governor.	The governor is authorised under Section 93 to proclaim his conference with the governor general.
2	Who regulates	The sole power to regulate has been given to the union government, and through it, it’s bestowed upon the parliament.	The British parliament used to regulate through the governor-general and the secretary of the state for India.
3	Discretion	The term discretion has no place in the provision.	The governor was empowered to act at his own discretion.
4	Extent of power	It is the President who may assume all or any powers vested with the governor or any other authority in the state other than the legislature and the High Court.	The governor is empowered to assume any or all of the powers vested in any authority except the High Court, provided he can exercise the powers with regard to his discretion.
5	Requirement of approval	Under Article 356, it can only be continued for a period of 2 months. For further continuance, approval stands requisite.	The proclamation under Section 93 could continue for a period of 6 months without the requirement of approval by the parliament.

Nature and scope of Article 356 of the Indian Constitution

Before analyzing the nature and scope of Article 356, it is necessary to understand the nature of the Indian political structure. Indian democracy works on the concept of ‘co-operative federalism’ to maintain a balance between union and state government for good governance. In accordance with the Keshavananda Bharti v. State of Kerala case, one can state that the federal structure of the Indian sub-continent is part of the basic structure of the Constitution.

Article 1 of the Indian Constitution states India as “a union of states” but the framers of the Constitution didn’t intend to provide union supremacy over states. Indeed, the union government has dominance over state government in various matters, but the same was done for the greater good of the people and not to surpass the power of state government. This can be reflected in the words of Ambedkar in the Constituent Assembly. He stated that “It will be noticed that the committee has used the term ‘Union’ instead of ‘Federation”. Nothing much turns on the name, but the committee has preferred to follow the language of the preamble to the British North America Act, 1867, and considered that there are advantages in describing India as a Union, although its Constitution may be federal in structure”.

In the constitutional system of India, a particular institution or political wing can’t claim superiority over others. The power of the federation is distributed among several organs and institutions to maintain peace and harmony. The union government has been granted some sort of dominance, but the dominance is required to meet the purpose intended rather than being used for arbitrary reasons.

Article 356 was incorporated in the Indian Constitution so that the Union government can safeguard states from grave conditions such as disturbance of law and order due to failure of constitutional machinery, as in a diverse country like India, there is always a probability of such a situation arising. Extra-ordinary power given by virtue of Article 356 was meant to protect states from overthrowing their elected governments. As it has been stated above, federal set-up is a part of the basic structure of the Indian Constitution, and any unreasonable or arbitrary act of throwing state government and suspending legislative assembly would result in hampering the basic structure of the Constitution, and the said act should be held null and void. 

When it comes to the nature and scope of Article 356, it has been observed that there are two essential components of Article 356. Firstly, the President can impose President rule in a state based on a report sent by the governor of the concerned state, or it can also be imposed in other circumstances that are deemed fit for the President with the aid and advice of the council of ministers to protect the state. The same can be reflected in the use of the word ‘otherwise’ in Article 356. Secondly, presidential rule can be applied in a state when there is a failure of constitutional machinery. Failure of constitutional machinery refers to a situation when the state government can’t carry out its functions following the provisions of the Constitution.

Under Article 356, the governor has the power to prepare a report and send it to the President in case there is a condition of failure of constitutional machinery or a political crisis, such as house riding, prevailing in a state. However, the President has the power to impose an emergency in a state based on information gained through sources other than the governor’s report. Till now, the scope and nature of the phrases ‘failure of constitutional machinery’ and ‘otherwise’ have not been defined by the legislature, and it remains a wide and subjective issue, i.e., depends on a case-to-case basis. But the subject matter of the governor’s report, which can be a probable ground for the imposition of presidential rule, has been brought under the ambit of judicial review.

The courts can examine the subject matter of the governor’s report that has attracted ‘President’s satisfaction’. The governor acts under the pleasure of President and President acts on aid and advice of the council of ministers belonging to the ruling party at the center. Therefore, there is a great probability of the governor’s report being influenced by the ruling party’s interests and agendas at the center, and it has also been observed in various times. For example, India Gandhi as PM has a record of imposing President rule the most number of times, and in 90% of the circumstances, it was imposed in states that were ruled by opposition parties or in states that didn’t run in accordance with her party interests. Considering all these things, the apex court of the country in S.R. Bommai v. UOI stated that courts have the right to examine the objectivity of the governor’s report.

State of Rajasthan vs. Union of India (1977)

In this case, the Union Home Minister of the Janta Party Government communicated on 17/04/1977 advising the State Government of U.P., Bihar, Haryana, Madhya Pradesh, Himachal Pradesh, West Bengal, Orissa, Punjab, and Rajasthan to notify their governors of the dissolution of the legislative assembly and posing a threat to dissolve the legislature under Article 356.  This forced the state government to seek a fresh mandate due to the massive defeat of the Congress Party in these nine states. The Supreme Court examined the matter regarding the non-justiciability of the situation warranting invocation of Article 356.

In this case, once again, the judicial review of this article was struck down. Sometimes, due to these reasons, there is a tussle between the judiciary and the executive on the issue of reviewability. The courts were barred from interfering in such matters, and sometimes it shows the dominance of the executive over other organs of the government. 

However, in the current case, the court held that they could not go into the adequacy of the facts and circumstances on which the satisfaction of the central government is based. Hence, if the satisfaction was made on mala fide intention, on wholly extraneous and irrelevant grounds, then the courts will have the jurisdiction to examine it because, in such cases, there would be no presidential satisfaction present concerning the matter in which he is required to be satisfied. Furthermore, if satisfaction of the president is a condition precedent under Article 356 (1), and if it can be seen that there was no satisfaction of the president in the given circumstances, the exercise would be constitutionally invalid. It can be challenged because it is mala fide or based on wholly extraneous and irrelevant grounds.

Furthermore, about the limited judicial review, the judges actually have their own reasons for not really agreeing to extensive judicial review because they stated that it is for the president to judge whether the necessity arises for the issuance of the proclamation. As long as there are reasons, and he is not disclosing those reasons, the proposed direction cannot be subject to judicial review, but in the event that the reason is disclosed and they do not bear a reasonable nexus to the exercise of power, then the court can come to a different conclusion. Otherwise, if the reason has any rational nexus to the power, then the reason is to be treated as conclusive. This means that the current judgment has ensured very limited judicial review recognition.

These judgments about article 356 usage have reflected upon the nature of the Indian Federation as well. In “State of Rajasthan vs. UOI,” it has been observed that people have lost confidence in the ruling party in the states, so there should be fresh elections held to see whether the people have confidence in the same party or not because in the Lok Sabha elections, the Congress party has been totally routed out. Hence, never in the country’s history has there been such a clear and unequivocal verdict given by the people against the ruling party. Therefore, in this judgment, the court noted that the Indian Constitution is more unitary than federal. 

The SC in “A.K. Roy vs. Union of India” stated that after the removal of clause 5 of the 44th Amendment, “any observations made in the “State of Rajasthan vs. Union of India” based on that clause cannot hold any validity.

42nd and 44th Amendment comparison

During the emergency period (1975–1977), several changes were made to the Indian legislation through the passing of the 42nd Amendment Act. Under this act, Article 356 would not stop being in force after the end of the emergency but would continue to exist until the law was changed by the State Legislature. 

The 42nd Amendment during the emergency period eroded some aspects of India’s federal structure. This amendment was severely unpopular amongst the people due to the prevailing scenario of the suppression of civil liberties and widespread violation of human rights by police. The 44th amendment of the Constitution was introduced by the Janata Government mainly to repeal some of the amendments made by the 42nd Amendment Act, 1976, and restore the federal structure that existed prior.

The 44th Amendment, 1978, restricted the scope of Article 356. The amendment substitutes the word “six months” for the word “one year.” Furthermore, the parliament will approve a proclamation of emergency and continue for six months from the date of its issue. For further continuance, it must be approved by the parliament each time. It added a new clause (5) to Article 356 and omitted the previous one. This clause provides that a resolution for a continuance of emergency for more than one year shall not be passed by either of the parliament unless: – 

1.  A proclamation of emergency is in operation during the time of the passing of such resolution, and 

2.  The election commission certifies that proclamation under Article 356 is necessary because of difficulties in holding a general election of the legislative assembly concerned. The proclamation period can be extended beyond one year, subject to the existing limit of three years.

The reason behind these changes was to ensure that democratic rule is restored in a State after the minimum period necessary for holding elections. Hence, it is not the end here because the 44th amendment made wide-scale changes to the Indian Constitution to ensure that the Indian polity gets more democratic. The amendment had also redefined the governance of India and ensured that essential pillars of democracy would be given utmost importance.

Sarkaria Commission report

The Sarkaria Commission was established, which was headed by Justice Ranjeet Singh Sarkaria. This Commission recommended that Article 356 be used very cautiously, only in the rarest of rare scenarios and as a last remedy after exhausting all possible alternatives to resolve and avert any circumstance where the constitutional machinery has collapsed in a state.

In a scenario of internal subversion, the Commission stated that if a state government intentionally acts unconstitutionally, it would lead to a situation for invoking Article 356 after giving the necessary scope and warnings for rectifying their wrong. It also highlighted that if a state government does not comply with instructions given through Article 353 in an emergency after issuing warnings, it will also lead to implementing Article 356. Even in instances where the security of a state is under threat, the state governments must immediately notify the Central Government; failing to do so will lead to the implementation of Article 356. The Commission also highlighted that utilizing Article 356 to solve political troubles is a clear example of misuse.

The Commission stated that in cases of political breakdown, it is the duty of the Governor to investigate all possible alternatives before the government retaining the majority support in the Assembly is dismissed. If such a government is incapable of being reinstated and fresh elections can be conducted swiftly and without much difficulty, then it is the responsibility of the Governor to ask the departing ministry to remain and function as a caretaker government on the condition that the ministry has no serious accusations of corruption. The Governor must dismiss the Assembly, and the interim government has no power to pass important decisions on policy matters. The Commission stated that each proclamation must be placed before both houses of Parliament as early as possible before the expiration of its 2 months duration.

It also stated that the misuse of Article 356 could be reduced by giving it a wide interpretation. The Sarkaria Commission’s proposals seemed like a temporary solution and lacked the creative and innovative aspect required to approach the topic of President’s Rule. Instead of investigating the Union Government’s real misappropriation of constitutional provisions and providing measures to protect them in the future, the Sarkaria Commission endorsed the Center’s powers as essential and inescapable. Nevertheless, the panel overlooked several flaws in the initial division of powers between the Union and the states.

S.R. Bommai vs. Union of India (1994)

S.R. Bommai v. Union of India is one of the significant judgments passed by the Apex Court on the President’s rule imposed through Article 356. This landmark verdict was pronounced by a special bench of nine judges that has increased the scope of Article 356, which was being widely misused, and it also assisted in preserving the federal structure and balancing it with India’s unification. This judgment put an end to the union government’s unconstitutional dismissal of state governments. This judgment overruled the decision of the State of Rajasthan v. Union of India.

In 1989, S.R. Bommai was the Chief Minister of Karnataka. An issue emerged when many MLAs defected from his party, which questioned Bommai’s majority in the Assembly. Bommai’s proposition to the Governor to conduct a floor test to prove the majority was rejected. The governor sent a report to the President stating that Bommai’s party does not have a majority and there is no other party that can form a government, and hence the President’s Rule must be imposed. Accordingly, President issued a proclamation in 1989, which was later approved by Parliament, and Bommai’s government was dismissed. S.R. Bommai challenged the constitutionality through a writ petition before the Karnataka High Court. 

The court dismissed the petition, and hence he appealed before the Supreme Court. There was a similar situation in the states of Madhya Pradesh, Rajasthan, Meghalaya, Nagaland, and Himachal Pradesh, and hence all cases were collectively heard by Apex Court. The main issues before the court were that the President’s rule imposed in these states invalidated the federal structure of India and also negated the principle of democracy. Hence, was the proclamation of the President’s rule in six states constitutionally justified? The second issue was the scope and extent of judicial review. The third issue was the meaning of the phrase “a situation has arisen in the government of a state that cannot function under the provisions of this Constitution” in Article 356(1). 

With a 5:4 majority, the Supreme Court stated that President Rule enacted in states of Meghalaya, Karnataka, and Nagaland was unconstitutional. With a full majority, the court stated that the dismissal of state governments in Rajasthan, Madhya Pradesh, and Himachal Pradesh was not in accordance with the secular nature of the Indian Constitution. Although Sarkaria Commission recommendations are not binding, the SC considered them. The bench gave seven opinions, where the judges emphasized the federal nature of the constitution and opined that federalism could not be imposed in a strict sense. On the second issue, the bench stated that the proclamation of the President’s rule is subject to judicial review. However, the judiciary can only limit its jurisdiction to the administrative aspect and restrict itself to the relevant material on the basis of which the President corroborates his subjective satisfaction. However, when it comes to the question of safeguarding constitutionality, the court reserves its right to repeal any verdict that ultra vires with the Constitution. In case the proclamation is proved to be unconstitutional, the court has the power to reinstate status quo ante and thus restore the Legislative Assembly. The bench also stated that the State Assembly could not be dismissed without prior approval from Parliament, and the President is allowed only to suspend the Assembly. Article 356 can only be invoked in a scenario where disobedience with the Constitution is of nature that leads to a situation of impasse, there is no scope of the remedy, and the functioning of the State has become impossible. The bench stated that floor tests must be conducted mandatorily as it helps to determine the legitimacy of government. 

This judgment can be perceived as the most significant step taken by the judiciary to limit the misuse of power by the executive. This verdict is the epitome of judicial review. It is a very welcoming change that will have a lasting impact on reducing the Union government’s abuse of power on states. Yet, there is still minimal scope for misuse of Article 356 by the Centre on the excuse that States are exploiting their powers and are acting against the Constitution. Hence the actual protection would have been full judicial review encompassing an inquiry into the legitimacy and accuracy of the facts relied on passing the proclamation of President Rule. However, it was a sad state of affairs to see that there was no unanimous majority on the scope of judicial review. The minority judgments show an overcareful perspective and pay no attention to the reality of the political nature of India. Any kind of deviation from this judgment will lead to a lack of implementation of another basic feature of the Constitution, i.e., federalism. 

This verdict is considered a watermark in determining and supporting the federal nature of the Indian Constitution. This present case can be paralleled with Baker v. Carr (1962), a case that has molded the American political-legal system and had importance in constructing federalism. Both the judgments in these cases were pronounced at a time when the Centre was questioned with a rationale of equality and consistent interpretation of provisions at regional levels. The Bommai ruling is often considered a significant verdict in the sphere of activist roles. The judiciary facilitates the execution of the principles of democracy. Thus, Article 356 got a wider development in the Bommai case.

Rameshwar Prasad vs. Union of India (2006)

In this case, in the 2005 Bihar Legislative Assembly election, no party individually or with their respective coalition that was formed before the elections could cross the simple majority mark. This meant that no political party was qualified to form the government. Following the fractured verdict in the election, there was a declaration of the president’s rule under Article 356 in the state of Bihar. This followed the need for a fresh election, which was to be held in the month of October of the same year. During the imposition of President’s Rule, the top two coalition’s major parties became involved in wrongful practices such as horse-trading. Following reports of members of the legislative assembly of the contesting political parties being swayed by promises of money and on the grounds of religion, caste, creed, etc., the governor declared the state machinery of Bihar to have failed. After the situation was brought before the then A.P.J Abdul Kalam Azad by the governor of Bihar, an emergency cabinet meeting was held. This followed the decision to dissolve the Bihar Legislative Assembly. 

The imposition of an emergency in Bihar was met with an immense upsurge in the political community. A Public Interest Litigation was henceforth filed before the Supreme Court of India to challenge the constitutional validity of the President’s order dissolving the state assembly of Bihar. The relevant issue in front of the court was whether the proclamation dissolving the assembly of Bihar was illegal and unconstitutional. This issue, which was the heart of the matter in the case of Rameshwar Prasad vs. Union of India, includes a much deeper interpretation of the powers under Article 356 of the Constitution of India. 

In the case at hand, the dissenting judge argues that it is the governor’s and the president’s duty to ensure that principles laid down by the Constitution of India are upheld throughout the country’s territory, and if a situation arises where such principles are violated, then it’s the duty of the president under Article 356 to enforce the powers at his disposal. It’s indeed true that the power to declare the president’s rule is an important power of the president to ensure that the governance of the country is done according to the principles of the constitution, but this power, even though it plays a role of immense importance, can be misused. Misuse of such power, furthermore, can have a far-reaching impact that might even fracture the federal nature of India. This was the central focus of the majority of judges in the case at hand.

The majority judgment states that the power under Article 356(1) is an emergency power, but it is not absolute power. The majority judgment puts much emphasis on the governor’s responsibility of reporting the situation of the failure of state mechanisms to the president. According to the majority of judges, the governor’s report in the case at hand was mere Ipse Dixit.

As stated by Justice Y.K. Sabhawal in the case at hand- “the governor cannot refuse the formation of the government and override the majority claim because of his subjective assessment that the majority was cobbled together by illegal and unethical means. If such power is vested in the governor, the consequence can be horrendous.”

All in all, the case of Rameshwar Prasad vs. Union of India is a critical analysis of the governor’s role in the imposition of the president’s rule. It can be asserted that if there does arise a situation where the governance of the state cannot run in accordance with the provisions of this Constitution, then the governor finds himself walking a thin line between being a constitutional sentinel and an autocratic political ombudsman.

When is Article 356 of the Indian Constitution invoked 

Various factors can be responsible for the failure of constitutional machinery in a state. The factors are too diverse and imponderable to give rise to the following situations:

No party in the majority

Such a situation may arise where no party in the assembly would have a majority in the state legislative assembly, making it eligible to form the government.

For instance, Article 356 was imposed in the state of Uttar Pradesh in 2007 because it was satisfactory that there was not a stable government to administer the state. When the general elections were held for the state legislature, the public gave a very diverse verdict, resulting in no party having a majority in the House. Even when such a situation had come up, there was no party willing to support the other party in order to form a government. It was the leader of the Samajwadi Party who staked his claim as the single largest party to form the government. He claimed to prove his majority on the floor of the house. However, the statement of the leader did not satisfy the governor. 

In pursuance of the situation, the state governor recommended the central government to impose the president’s rule in the state. Due to the politically fragmented legislature, there was no possibility of a viable comment in the state, which is why the president’s rule was invoked in the state.

Non-functioning of elected government

Although a government may enjoy the majority support in the House, a situation may arise where its functioning would come across as subversive of the Constitution of India.

For instance: The Centre decided to bifurcate the state of Punjab into the states of Punjab and Haryana in 1966, to facilitate the process of partition, the ministry had to resign and the president’s rule was imposed. When Article 356 was imposed, the legislature was not dissolved but suspended, as it was thought desirable that the legislature of the composite state be broken into two parts in order to constitute the legislatures of both Punjab and Hyderabad unless a new legislature could be elected for the smooth functioning of both the resulting states.

Non-compliance with the direction of the central government

Circumstances where the state government does not comply with the directions that are issued by the central government under the constitutional provisions may also sometimes arise. Also, when the government indulges itself in corrupt practices, it is plausible that the constitutional machinery of the state breaks down.

Difference between Article 356 and Article 352 of the Indian Constitution

Article 352 discusses the conditions under which the President may declare a national emergency following the written recommendation of the Union Cabinet led by the Prime Minister.

Following are the situations in which a national emergency can be declared:

• War,
• Armed Rebellion and
• External Aggression

The term “external emergency” refers to a national emergency that is declared due to “war” or “external aggression”. Internal emergency is the term used when a state of emergency is issued based on an “armed rebellion”.

Furthermore, external assault or armed revolt need not really occur for the declaration of a national emergency. Even though such a scenario is conceivable, a national emergency can still be declared. The President may issue a Proclamation of Emergency for the entire country or any part of it.

There are many material aspects in which Article 352 and Article 356 of the Constitution of India differ from each other: 

Serial No.	Basis of difference	Article 356 of the Indian Constitution	Article 352 of the Indian Constitution
1	When to invoke	Article 356 is applicable when there is failure of constitutional machinery in a state.	Article 352, on the other hand, restricts the central intervention to a situation of war. It also lays restrictions upon external aggression or armed rebellions.
2	Effect on the functioning of State Government	The state government ceases to function when Article 356 is invoked. The state government is either dissolved or kept suspended. It is the government that administers the state on behalf of the president, and laws for it are, thus, made by the parliament	Article 352 has no effect on the functioning of the state governments, it gives no authority for the suspension of the Constitution in a state. According to the powers assigned under the constitution of India, the state government and the legislators continue to discharge their duties and functions normally. Large scale what happens is that the central government gets the concurrent power of legislation in state matters by virtue of Article 352, which means that the centre can make the states follow Indian policies which are uniform in nature.
3	Effect on Fundamental Rights	Article 356 has no effect on fundamental rights whatsoever.	Article 352 affects fundamental rights.
4	Relationship between central government and state government	When Article 356 comes into play, the relationship between the central government and only the concerned state government, in which the action is taken, gets affected.	Under Article 352, the relationship of the central government with all the state governments undergoes a change.
5	Requirement of approval by Parliament	As for the president’s rule under Article 356, approval by the parliament is required within 2 months and then every 6 months. There is a maximum period prescribed, which is 3 years. The approval is required by a simple majority of both houses of  parliament.	For a national emergency under Article 352, approval by parliament is required within one month. Thereafter every 6 months, approval is a mandate. There is no maximum duration prescribed for the emergency period. Further, the approval is to be obtained by a special majority of both houses of parliament.

Judicial Interpretation of Article 356 of the Indian Constitution

Through the 38th Constitutional Amendment Act of 1975, the Parliament made the satisfaction of the President in invoking Article 356 as final, which cannot be challenged in court.  However, this conduct was removed by the 44th Constitutional Amendment Act of 1978, which made such satisfaction of the President open for judicial review.

Serious questions regarding the misuse of Article 356 have been raised before the Supreme Court in Bommai’s Case. In this case, the Chief Minister of Karnataka has been dismissed before providing him a chance to prove his majority at the floor test by the governor and subsequently, the President’s rule has been imposed. The court stated that generally the President’s satisfaction is not questionable but the governor’s report can be examined to ascertain the grounds for the President’s satisfaction.

The court held that “the President’s satisfaction has to be based on objective material, that material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. Further, the objective material so available must indicate that the government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of the objective material showing that the government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question.”

The same has been held in the case of Rameshwar Prasad v State of Bihar, in which the court has disqualified the proclamation of President rule in the state after examining the report sent by the governor. It was observed that there was no objective material in the report that has the probability of gaining the satisfaction of the President. Then, in such circumstances, where there is the absence of reasonable grounds in the governor’s rule, the court can question the President’s decision of imposing President rule.

The objectivity of the governor report here means that the concerned report must show the prevalence of circumstances that result in hampering Constitutional machinery in the state. The situation should be grave as a mere violation of certain provisions of the Constitution can’t be termed as a failure of Constitutional machinery and it should be shown that without the proclamation of emergency, the government can be run in accordance with the Constitution. The court was of the view that imposing an emergency should be the last measure and the governor is required to opt for all the other measures before the proclamation of President rule.

Additionally, another significant aspect of Bommai’s case is that the court held that the President’s power to impose an emergency is not an absolute power and is subjected to provisions of the Constitution. In simpler words, it can be stated that the President is a Constitutional post and hence, the President is required to act in accordance with the Constitution.

The court held that “The power conferred by article 356 is a conditioned power; it is not an absolute power to be exercised in the discretion of the President. The condition is the formation of satisfaction – subjective, no doubt- that a situation of the type contemplated by the clause has arisen. This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him, or both. The existence of relevant material is a pre-condition to the formation of satisfaction. The use of the word “may” indicate not only discretion but an obligation to consider the advisability and necessity of the action.”

The extraordinary power of imposing emergency has been provided to safeguard the state against the crisis of grave nature not to enter into its arena by misusing Article 356. Despite allowance of judicial review of governor’s report, misuse of Article 356 still continues because of the broad ambit of Article 356. There is no specific definition of what the terms ‘otherwise’ and ‘failure of Constitutional machinery’ mean, eventually leading to its misuse in hands of the central government.

Imposition of President’s Rule since 2014

This chapter deals with the President rule applied in five states since 2014 and reasons for the same. Further, the researcher aims to understand the nature of emergencies imposed and whether such reasons are equivalent to the failure of constitutional machinery.

Imposition of President Rule in Arunachal Pradesh in 2016: In 2016, political instability arises in Arunachal Pradesh when 20 MLAs of the ruling congress joined hands with BJP and two independent MLA and rebelled against chief minister Nabam Tuki. These MLA communicated their wish to form a government in the state before the governor and governor without informing the chief minister advanced the assembly session and listed the removal of speaker of the legislative assembly. Subsequently, the speaker disqualified those 20 MLAs on the grounds of defection. However, Gauhati HC has stayed disqualified.

Meanwhile, Governor Rajkhowa prepared and sent a report to the President citing that a situation has arisen in a state making it impossible for a government to carry out its functions in accordance with the Constitutional principles. The President on the governor’s report dismissed Congress-led government and suspended the legislative assembly. After that congress filed a petition in the Supreme Court challenging the imposition of the President’s rule in the state. But, even before the decision of the Supreme Court, the coalition led government sworn in.

The first question that arises here is whether there is a failure of Constitutional machinery and if there is a failure, whether governor Rajkhowa has opted for all measures before preparing a report that resulted in an emergency. It has been observed after analyzing the report of the governor that the major reason that has been cited to show the failure of Constitutional machinery is the slaughter of cows. Ironically, in a country like India where violation of animal rights is a trivial issue, slaughter of a cow has been cited as a breakdown of law and order to impose President rule. The Slaughter of cow has not been banned in the state and therefore, mentioning such trivial issues in the report is a clear-cut instance of misuse of Article 356.

Another major that has been cited by the governor is that due to rebel of 20 MLAs, the ruling Congress has lost its majority in the house. This can’t be accepted as a reason because before preparing the report, the governor should have invited the ruling government to prove its majority at the floor test. As stated in Bommai’s case, imposition of President rule should be the last resort and can be only imposed after resorting to all steps. The rebel of 20 MLAs is an intra-party issue and is a case of defection and not a case of failure of Constitutional machinery.

The Constitutional bench of the Supreme Court held the action of the governor is unConstitutional as these reasons are not sufficient enough to conclude that there is failure Constitutional machinery in the state and as there is no reasonableness in the report of the governor, the satisfaction of the President can be questioned. The court stated that “the activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the governor”. Therefore, even if there is a presupposition that the ruling government has lost its majority, a floor is required before opting for the measure of emergency. Considering all these things, the apex court has nullified the President’s rule and restored the Tuki led Congress government in the state.

Uttarakhand Political Crisis and President Rule: In 2016, Uttarakhand was ruled by CM Harish Rawat led the Congress party. The problem was initiated in the state during the debate regarding the budget in the legislative assembly when 9 MLAs rebelled against the party and joined hands with BJP. Due to this, the majority of Congress-led Rawat was challenged and concerning the same, governor KK Paul has invited CM Rawat to prove his majority at the floor test. Before, floor test, President Pranab Mukherjee has imposed President rule in the state on the advice of the cabinet citing the reason for Constitutional machinery. The duly elected government was dismissed and assembly was suspended.

The major question that arises here is about the Constitutionality of the President’s decision to impose an emergency without waiting for the floor test. The only answer to all the questions concerning political instability can be attained through floor tests but the same was averted by the President. When the President’s rule was challenged before the Uttarakhand HC, the court quashed the President’s rule and ordered a floor test. Chief justice of the HC was of the view that even though the President is a Constitutional post and imposition of President rule is not an absolute power; it seemed that the Centre is acting like a ‘private party’ i.e., acting for its political interests. As it was stated, again and again, that President rule should be the last resort, imposing it without floor test should not be allowed.

One needs to understand the gravity of President rule; it’s like an encroachment in the ambit of state government thereby violating the federal structure of the country. Additionally, the researcher observed that there are no sufficient grounds to state that there is a failure of Constitutional machinery in the state as there no prevalence of governor’s report and such incidents that surpassed the Constitutional principles. The political crisis was there, but no steps such as floor tests were taken to resolve it before suspending the legislative assembly.

President rule in Capital Delhi after the Resignation of CM: Kejriwal along with his council of ministers resigned from the post of CM due to the failure of his government to pass the Lokpal Bill in the house to battle corruption. As AAP has the majority in the house, after his resignation a situation of political instability arises in the state. At that time, no party had required a majority in the house to form an alternative. Therefore, to protect the state from the breakdown of law and order in absence of an elected government and to maintain its stability, Lt. Governor made a report to the President and the President on the advice of cabinet-imposed President rule in the state and kept the legislative assembly under suspended animation. Suspended animation here refers to that an option is still left to political parties to prove its majority at floor test and form a government.

In this instance, the researcher felt that the imposition of the Presidential rule is fair and reasonable. There wasn’t the prevalence of any unreasonable grounds in the report sent to the President to satisfy the political interests of the union government. According to the Constitution, having a majority in the house to run government is essential and in absence of any major political party, the failure of Constitutional machinery is quite evident. The Lt. Governor had resorted to all steps before making a report i.e., he invited parties to prove their majority and make a government, and even after the imposition of President’s rule, the option to form government remains available which reflects the efforts of the President and Lt. governor to avoid the emergency in the national capital.

President rule in Jammu & Kashmir: Initially, 6 months President rule was imposed in the state of Jammu & Kashmir after the split between coalition government of PDP and BJP. After the split, no other political party has the majority to form an alternate government in the state and hence, there is a Constitutional failure in the state. The legislative assembly was kept under suspended animation leaving space to form government in the state. Till now, everything seems fine but problems arise when the President rule was extended for the other six months, even though parties are claiming their majority in the house. On one hand, Mehbooba Mufti-led PDP along with National Conference and INC claimed her majority and requested to form a coalition government in the state. On the other hand, Sajjad Lone of the People’s Conference stated that he along with BJP and others has the majority to form a government.

Ideally, as held in the Bommai case, Governor Satya Pal Malik should have called Mufti and Lone to prove their majority at the floor test, and the one who can prove majority should be allowed to form government in the state. However, interestingly, the governor rejected the claim of Mufti stating that she wouldn’t be able to form a responsive government and horse riding would hamper Indian democracy. Both the reasons cited by the governor were unreasonable and unjustifiable as the governor’s contention that coalition government can’t form responsive government doesn’t hold any logical point. The major reason to keep the assembly as suspended animated was to form a government to carry out the functions of the state and when an option to restore the government exists, the governor arbitrarily rejected. Even though, the initial imposition of emergency seems valid, the extension of President rule before allowing floor test is invalid and should be termed as misuse of Article 356.

Political Crisis in Maharashtra and President Rule: President Rule imposed in Maharashtra was the most debated topic in the year 2019. After assembly results, the tussle over CM post among BJP, NCP, Shiv Sena, and Congress has been the centre of the crisis. Due to disagreement, no political party proved its majority to form a government and President rule has been imposed on the grounds of the governor’s report. This move of the governor was criticized by various senior lawyers and other members of the legal fraternity because the governor hasn’t resorted to all the steps before preparing and sending a report to the President. In the case of H.S. Jain v UOI, a similar situation was prevalent in UP. Considering the partialities, Allahabad HC stated that, “The Governor in this message should have asked the House to assemble and decide within a reasonable period of time about this matter, and then inform him. In this message the Governor could have also warned the House that if it did not make up its mind within a reasonable period of time, the House may have to be dissolved”. Basically, the court is trying to say that before resorting to the grave step of emergency, the governor is required to send a message to political parties to assemble in the house and solve the political crisis.

In the case of Maharashtra, governor Koshyari prepared a report and sent it to the President before informing political parties. There is a probability after receiving a warning of suspension of assembly; political parties could have reached a definite conclusion. Governor should have asked political parties to assemble and deliberate in the house and inform the final decision. Hence, it can be stated that the governor’s step is wrong as he didn’t opt for all measures that eventually led to the imposition of an emergency in the state.

When a president is satisfied with the receipt of a report from the governor of the state or even otherwise that situation has come up that the government of the state is unable to carry on with respect to the provisions of the Constitution, such a situation would be accounted as the failure of constitution machinery in a state.

In 1977, after the revocation of the emergency imposed in 1975, the general elections were held in the Lok Sabha. As the public was angry with such an imposition of emergency, it resulted in the victory of the Janata Party. At that time, there were nine states that were ruled by the Congress party. When the Janata Party formed the central government, it had to invoke Article 356 in all 9 States, dismissing their governments and dissolving their state assemblies to hold fresh elections there.

Current Scenario

• Manipur 

Recently, in Manipur, the tussle between two communities, namely, Meiteis and Nagas-Kukis, took a very ugly turn. Hundreds of lives were lost in the violence. The whole scene was not only limited to violence but was extended further to destroy morality. All of us saw humanity shredding in pieces when the women were paraded naked; it was a sign that the scenario in Manipur between the two communities was only getting worse. 

Opposition parties as well as the President of the Delhi Commission for Women, along with many others, demanded the president’s rule be imposed in Manipur. The situation had turned so bad that even the Supreme Court came up and stated that the state machinery in Manipur had completely failed, and it went ahead and said that no law and order was left in the state that was violence-hit.

Even though there was an internal disturbance and an external manifestation of it, the president’s rule was not imposed, following the belief of the ruling party that things would soon be in order.

• Punjab

The long ongoing tussle regarding the special session of the Vidhan Sabha between the Punjab Governor, Banwarilal Purohit, and the Chief Minister, Bhagwant Mann, took a turn when, recently, the governor of Punjab brought about warnings in his letter to the ruling party. He stated in those letters that he could use the President’s rule under Article 356 of the Constitution of India in the state of Punjab and also threatened to launch criminal proceedings if his letters were unanswered.

It was stated by the ruling party of the state of Punjab, i.e., the Aam Aadmi Party (AAP), that the government was working within the constitutional framework in Punjab and directed that there should be decorum in the use of Article 356, which cannot be used to threaten. This warning was not taken as the right use of Article 356 and was looked down upon.

Vagueness of Article 356 of Indian Constitution and the need for amendment

In a federal country like India, where unions and states are governed by different political parties, the misuse of Article 356 by the political party at the Centre is not a surprising event and instances of the same have been observed various times in India. After observing the proclamation of President rule in 5 states since 2014, it can be stated that such a situation aroused when two different parties are present at the Centre and state or when political interests of the central government conflict with the state government. The major reason for the misuse of Article 356 is its vague and subjective nature. The use of words such as ‘otherwise’ and ‘failure of Constitutional machinery’ are so broad that they can include a wide range of acts within its scope. Article 356 fails to define what is the failure of Constitutional machinery is and what sort of failure can be used as a reasonable ground for encroaching into the arena of state government? The vagueness of Article 356 leaves a space for political parties to use this extraordinary power for satisfying their interests and hence resulted in citing reasons such as the slaughter of cow to impose emergency.

One needs to understand that the fundamental purpose of incorporating Article 356 was to safeguards the states when there is a breakdown of law and order for good governance. But, the liberal interpretation of Article 356 leaves a wide scope for its misuse that eventually led to hampering the fundamental purpose of granting such power to the President via 356. Indeed, it is true that laws shouldn’t be interpreted while taking into consideration its worst scenario, but one can’t negate the fact that utmost care is required before resorting to measuring of such grave nature.

The misuse of Article 356 can’t be ignored as it has direct implications on the federal structure of the country thereby violating the basic structure of the Constitution. Many scholars stated that Article 356 should be deleted but deletion of Article 356 would result in providing more autonomy to states and the situation would be worse. The need of the hour is to amend Article 356 and provide a specific definition of phrases ‘otherwise’ and ‘failure of Constitutional machinery’ so that scope of Article 356 can be fixed. The legislature should define the intensity or gravity of acts that can be cited as reasonable and justifiable grounds to contend that there is a failure of constitutional machinery and hence, the elected government should be dismissed.

Conclusion

The so-called ‘dead letters’ of the Constitution that was expected to be used in the rarest of the rare cases has become a device to encroach upon the ambit of state government. It has been observed through analyzing the imposition of emergency in five states that President rule has been even without the prevalence of reasonable grounds and the same has become the dark side of Indian politics. Both central and state governments are supreme in their domain and none of them can claim their superiority over others. Due to the vague nature of Article 356, there is no effective measure that prohibits the misuse of Article 356 in hands of the union government. To protect the federal structure of India, it is compulsory to amend Article 356 in line with recommendations put forward by the court in Bommai’s case as well as by the Sarkaria Commission. President rule should always be the last resort and all the steps such as warning the state government that it is not working in accordance with Constitutional provisions, floor test to prove majority, etc. should be followed by the governor.

However, even if Article 356 would be amended while taking into consideration all the recommendations of the Sarkaria Commission, still, there will be a chance of abuse of power because the efficiency of any law depends upon the condition that how well it has been implemented. Therefore, it can be only expected through a strict interpretation of Article 356 that the spirit of ‘co-federation should be maintained while opting for President rule and union government shouldn’t use this power to seek their own political interests.

Frequently Asked Questions (FAQs)

What is approval by a simple majority?

The simple majority refers to a majority of more than 50% of the persons or members present and voting in the house. 

For example, in the Lok Sabha, out of the total strength of 545, 50 members were absent, and 90 members did not vote. Then the voting would be seen as such: 405 members were present and voting, out of which, by simple majority, more than 50% of 405 members and not of 545 or 495 were required.

What is a constitutional emergency?

The president’s rule under Article 356 of the Constitution of India is popularly referred to as the constitutional emergency. Article 355 of the Indian Constitution imposes due diligence on the centre to make sure that the government of every state abides by the provisions of the Constitution of India, and when situations contrary to it occur,  Article 356 empowers the centre to take over the state government by invoking the president’s rule.

References

• Justice Jasti Chelameswar and Justice Dama Seshadri Naidu, M P Jain Indian Constitutional Law 1280 (Saurabh Printers Pvt. Ltd., Greater Noida, 8th ed., 2018).
• https://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf 
• http://loksabhaph.nic.in/writereaddata/cadebatefiles/SC04081949.pdf
• H.M. Rajashekara, President’s Rule in the Indian States, 48(4) Indian Political Science Association 632-642 (1987).
• https://www.thehindu.com/data/President%E2%80%99s-rule-a-story-of-over-100-chapters/article14179739.ece
• https://www.thehindu.com/data/President%E2%80%99s-rule-a-story-of-over-100-chapters/article14179739.ece 
• http://loksabhaph.nic.in/writereaddata/cadebatefiles/C18091949.html 
• https://www.livemint.com/Politics/SJ3mETZ7H1cjKNlodkcM8O/How-Presidents-Rule-in-India-has-been-imposed-over-the-year.html 
• K. Madhusudhana Rao, Authority to recommend President’s rule Under Article 356 of the Constitution, 46 (1) Indian Law Institute 125-132 (2004).
• J.R. Siwach, State Autonomy and Presidential Rule, 46(2) Indian Political Science Association 150-166 (1985).
• https://indianexpress.com/article/explained/not-cow-but-mithun-a-sign-of-serious-trouble-in-arunachal-pradesh/ 
• https://www.thehindu.com/news/national/other-states/Arunachal-political-crisis-A-timeline/article14983750.ece. 
• https://www.thehindu.com/news/cities/Delhi/presidents-rule-imposed-in-delhi/article5698689.ece