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This article is written by Anushka Kashyap, a student of TNNLU, Tamil Nadu, and Mrinal Mukul and Riddhiman Dey ( students of O.P Jindal Global University).

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 government.  The jurisdiction of central and state government 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 the emergency in a state in case of “failure of Constitutional machinery”. Article 356 states that “If the President, on receipt of 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 be Proclaim emergency in a state”. With the proclamation of President rule in a state, the elected government is dismissed and legislative assembly got 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 that provided the same provision of imposing emergency by the governor in case the province can’t be run in accordance with provisions of the act. This section was incorporated in the Indian Constitution by replacing ‘governor’ with ‘President’.[1] 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”.[2]

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 has the probability of attracting difficult situation as the road to the democracy is not so smooth and therefore, the President should be given such power to protect the state from a situation of the breakdown of law and order and to maintain peace and harmony in the state.[3]

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 benefitting 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.[4] Again, in 1954, the elected government of Andhra Pradesh was overthrown because the central government foresees a probability of a communist regime taking hold of the state.[5]

Since then, there are 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 Governor Acts under the pleasure of President and President eventually work under the aid and advice of the council of ministers who belong to a particular political party.  From this fact, it can be derived 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 opinion of imposing an emergency in a state is influenced by the ideologies of a political party at the center. The author in 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 to 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 on it 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 much 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 of proclaiming it. Furthermore, in both 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

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 House of Parliaments 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 duration where Article 356 was frequently used was during the post-emergency period. The government led by 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 reduced gradually due to the timely intervention of the judiciary. Judiciary has actively taken measures to curb the misuse of an article and preserve the federal structure.

Article 356- its nature and scope

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.[6] In accordance with the Keshavananda Bharti v State of Kerala[7] case, one can state that the federal structure of the Indian sub-continent is a 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 people and not to surpass the power of state government. This can be reflected through 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”.[8]

In the Constitutional system of India, a particular institution or political wing can’t claim superiority over others. The power as the federation is distributed among several organs and institutions for maintaining peace and harmony. The union government has been granted some of sort dominance, but the dominance is required to be meet the purpose intended rather than using it 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 rising of such situation.[9] Extra-ordinary power given by virtue of Article 356 was meant to protect states not to overthrow their elected government. 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. [10]

Now coming 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 be also imposed in other circumstances that deem fit to the President on the aid and advice of the council of ministers to protect the state.[11] The same can be reflected in the use of the word ‘otherwise’ in Article 356. Secondly, President 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 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 political crisis such as house riding prevailing in a state. However, the President has also 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 phrase ‘failure of Constitutional machinery’ and ‘otherwise’ have not been defined by legislature and it remains a wide and subjective issue i.e., depend on case-to-case basis.[12] But, the subject matter of the governor’s report that can be a probable ground for imposition of President 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’. 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% 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.[13] Considering all these things, the apex court of the country in S.R. Bommai v UOI [14]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 for 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 arises a tussle between judiciary and executive on the issue of reviewability. The courts were barred from interfering in such matters, and sometimes it shows the dominance of the executive on other organs of the government. 

However, in the current case, the court held that they could not go into the adequacy of facts and circumstances on which the satisfaction of the central government is based. Hence, if the satisfaction was made on mala fide intention, 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 visible that there was no satisfaction of the president on the given circumstance, 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 issuance of the proclamation as long as there are reasons, and he is not disclosing those reasons, the proposed direction cannot be judicial review, but in case the reason is disclosed and they do not bear reasonable nexus to the exercise of power then the court can come to a different conclusion. Otherwise, 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 the “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 again fresh elections held to see whether the people have confidence in the same party or not because in the Lok Sabha elections Congress party have 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

Sarkaria Commission was established, which was headed by Justice Ranjeet Singh Sarkaria. This Commission recommended that Article 356 must be used very cautiously only in the rarest of rare scenarios and only 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 necessary scope and warnings for rectifying their wrong. It also highlighted that in case a State government does not oblige 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 in case 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 expiry of 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 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 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 majority and there is no other party that can form a government, and hence 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 Karnataka High Court. 

The court dismissed the petition, and hence he appealed before 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 – the President’s rule imposed in these states invalidated the federal structure of India, and it also negated the principle of democracy. Hence, whether the proclamation of the President’s rule in six states was 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 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 it 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 lengthen 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 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, and 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, 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 role. The judiciary facilitates the execution of principles of democracy. Thus Article 356 got a wider development in the Bommai case.

Rameshwar Prasad vs Union of India (2006)

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 2 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 been 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 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 of 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 Rameshwar Prasad vs. Union of India includes a much deep 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, is one 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 mechanism 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 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. 

The Judicial Interpretation of Article 356

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.”[15]

The same has been held in the case of Rameshwar Prasad v State of Bihar[16], 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.[17] 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.”[18]

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.[19] 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.[20] 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.[21] 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.[22] 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”.[23] 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.[24] 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.[25] 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.[26] 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.[27] 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.[28] 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.[29] 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.[30] 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.[31] 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”.[32] 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.

Vagueness of Article 356 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.[33] 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?[34] 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.[35] 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.[36] 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.

References

[1] A Consultation Paper on Article 356 of the Constitution, Ncrwc, (May 11, 2001), https://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf.

[2] Constitutional Assembly Debate, IX, August 4, 1949 Speech by B.R. Ambedkar, http://loksabhaph.nic.in/writereaddata/cadebatefiles/SC04081949.pdf.

[3] H.M. Rajashekara, President’s Rule in the Indian States, 48(4) Indian Political Science Association 632-642 (1987).

[4] Rukmini S, AMP & Samarth Bansal, President’s Rule: A Story of 100 Years, The Hindu, (January 29, 2016), https://www.thehindu.com/data/President%E2%80%99s-rule-a-story-of-over-100-chapters/article14179739.ece.

[5] Id at 4.

[6] Supra, note 1.

[7] Keshavananda Bharti v State of Kerala, AIR 1973 SC 1461.

[8] Constitutional Assembly Debate, IX, September 18, 1949, Speech by B.R. Ambedkar, http://loksabhaph.nic.in/writereaddata/cadebatefiles/C18091949.html.

[9] Prasidh Raj Singh, Article 356 and Judicial Review, Social Science Research Network, (October 16, 2010).

[10] Anil Ghangas, State Emergency under Article 356 vis-à-vis Indian Federalism, 4(1) International Journal of Law 100-110 (2018).

[11] K. Madhusudhana Rao, Authority to recommend President’s rule Under Article 356 of the Constitution, 46 (1) Indian Law Institute 125-132 (2004).

[12] J.R. Siwach, State Autonomy and Presidential Rule, 46(2) Indian Political Science Association 150-166 (1985).

[13] Venkat Ananth, How President’s Rule in India has been imposed over the years, Live Mint, (January 27, 2016), https://www.livemint.com/Politics/SJ3mETZ7H1cjKNlodkcM8O/How-Presidents-Rule-in-India-has-been-imposed-over-the-year.html.

[14] S.R. Bommai v Union of India, (1994) 3 SCC 1.

[15] Id at 93.

[16] Rameshwar Prasad v State of Bihar, AIR 2006 SC 980.

[17] Supra Note 1.

[18] S.R. Bommai v Union of India, (1994) 3 SCC 1, 219.

[19] Ananth, Supra Note 13.

[20] Nabam Rebia v Deputy Speaker Arunachal Pradesh Legislative Assembly, (2017) 13 SCC 326.

[21] Samudra Gupta Kashyap, Not cow but Mithun, Sign of ‘serious’ trouble in Arunachal Pradesh, The Indian Express (Feb. 02, 2016, 08:09 AM), https://indianexpress.com/article/explained/not-cow-but-mithun-a-sign-of-serious-trouble-in-arunachal-pradesh/

[22] The Hindu Net Desk, Arunachal political crisis: A timeline, The Hindu (Dec. 30, 2016, 17:40 IST), https://www.thehindu.com/news/national/other-states/Arunachal-political-crisis-A-timeline/article14983750.ece.

[23] Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, 185.

[24] Liz Mathew, Uttarakhand: Vijay Bahuguna, 8 other rebel Cong MLAs join BJP, The Indian Express (May 19, 2016, 04:58 AM), https://indianexpress.com/article/india/india-news-india/uttarakhand-vijay-bahuguna-nine-rebel-cong-mlas-join-bjp/.

[25] HT Correspondent, Centre imposes President’s rule in Uttarakhand a day before floor test, Hindustan Times (Mar. 28, 2016, 09:13 AM), https://www.hindustantimes.com/india/centre-imposes-prez-s-rule-in-uttarakhand-a-day-before-floor-test/story-WL3F0BcoVpljs4sRbx6JbI.html.

[26] Harish Chandra Singh Rawat v. Union of India, 2016 AIR CC 2455.

[27] Special Correspondent, President’s Rule Imposed in Delhi, The Hindu (February 17, 2014), https://www.thehindu.com/news/cities/Delhi/Presidents-rule-imposed-in-delhi/article5698689.ece.

[28] Id at 27.

[29] Peerzada Ashiq, Jammu and Kashmir to come under President’s rule from midnight today, The Hindu (Dec. 19, 2018, 22:33 IST), https://www.thehindu.com/news/national/jammu-and-kashmir-to-come-under-Presidents-rule-from-december-19-midnight/article25782259.ece.

[30] Rajeev Dhavan, The Imposition of President’s Rule in J&K is Arbitrary and UnConstitutional, The Wire (Nov. 22, 2018), https://thewire.in/law/the-imposition-of-Presidents-rule-in-jk-is-arbitrary-and-unConstitutional.

[31] Vijaita Singh, Maharashtra Placed under President’s Rule, The Hindu, (November 12, 2019), accessed at https://www.thehindu.com/news/national/other-states/Presidents-rule-imposed-in-maharashtra/article29954298.ece.

[32] H.S. Jain and Others v. Union of India and Others, (1997) 1 UPLBEC 594.

[33] Reddi Govinda Rao v. State of Andhra Pradesh, 2020 SCC OnLine AP 961.

[34] Siwach, Supra Note 12.

[35] K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article 356 of the Constitution of India: A comparative Critique, 8(1) Electronic Journal of Competitive Law (2004).

[36] R. S. Sarkaria, Sarkaria Commission Report on Centre-State Relations, 1988, http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/.


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