Safeguarding Democracy: President's Rule And Emergency Measures
The Emergency Provisions in our Constitution were created by its creators to
address extraordinary circumstances that posed a serious risk to the safety and
integrity of India or any portion of its territory. The hierarchy of the
Constitution's structure prevented any one constitutional post from having
absolute authority. It was designed to involve the President, the Governor, and
the Union Government in the proclamation of the Emergency on an equal footing.
Despite having the last say in whether to approve the proclamation, the President was required to consult with the Union Cabinet and, in cases of state emergencies, be satisfied by the Governor. However, the repeated use of emergency provisions, particularly by the Union Administration in violation of Article 356 against the State's government led to concerns about their abuse.
The Governor's office's sanctity has also been called into doubt. In the past, Governors have advocated the imposition of President's rule without using every constitutionally permissible avenue to reaffirm the Assembly's confidence in the Government. Since they have brought shame upon the position numerous times, many States have even urged that the Governor's post be removed from the Constitution.
I will start with explaining what is meant by a state emergency, its declaration and the need for it. Next I will be explaining the president's rule and various questions related to it.The need for discussing the nature and application of Article 356, it's ambiguity and the need for change as well as the cases where it has been used in our country that provide protection under it. It also concentrates on the breadth and extent of judicial review of article 356. It also includes the landmark cases like Union Of India Vs. State Of Rajasthan (1977) And Union Of India Vs. S.R. Bommai (1994). A brief comparison of the 40th and 42nd amendments is also given and some highlights about the report of the Sarkaria commission.
Introduction
The Indian Constitution establishes the nation's federal structure and lays forth specific duties for the national and state governments. In the event of "failure of the Constitutional machinery," the President of India may declare an emergency and assume control of the state's legislative and executive branches. Article 356 has been the subject of debate since it was first enacted, as it may jeopardise the country's federal system. Members of the Constitutional assembly have criticised the provision, stressing the possibility of union dominance due to the ambiguous and subjective nature of the phrase "otherwise".
B.R. Ambedkar, the head of the drafting committee, believed that Article 356 of the Constitution should only be utilised in exceptional circumstances and never on unimportant matters. However, the Indian political system and instances where the Constitution was changed solely to the advantage of one political party were not anticipated by the Constitution's writers.
Ironically, after the Constitution had been in effect for a year, in 1951, Article 356 was abused when the Nehru-led Congress government fired Punjab's chief minister, Gopichand Bhargava, despite the fact that he had a majority in the state and there had been no constitutional machinery failure. Since then, there have been countless instances where Article 356 has been utilised as a tool by the federal government to override state governance in order to further its political objectives.
This paper examines the nature and application of Article 356 of the Constitution, placing particular attention on the ruling rendered by the Supreme Court in the Bommai case. It also examines the instances of President rule that were used from 2014 to 2020, their justification and constitutional legitimacy, and the necessity of amending the relevant provision.
In the event that a state's constitutional machinery malfunctions, the President of India is empowered by Article 356 of the Indian Constitution to impose President's Rule on that state. President's Rule may be imposed in a state based on the President's assessment if the state does not follow all orders issued by the Union on matters over which it has jurisdiction or if the President receives a report from the state's governor or is otherwise convinced or satisfied that the state's circumstances prevent it from exercising its constitutional powers.
Any state that wishes to implement the President's Rule must first have parliamentary approval, which must occur within two months of the President's Rule's implementation. After that, the President's Rule can be implemented with a simple majority consent and for a maximum of six months. After it is put into effect, it can be extended for an additional three years with parliamentary approval every six months. Some further measures pertaining to the exercise of legislative authority under the proclamation created by Article 356 are contained in Article 357.
The President's Rule cannot be imposed for more than a year according to restrictions imposed by the 44th Amendment to the Constitution (1978). According to the clause, President's Rule cannot be extended for a second year unless: India is experiencing a national emergency.
The President's Rule in the state must continue, according to the Election Commission of India, because it has been difficult to hold the state's assembly elections.[2]
How is a state put under the president's rule?
On the recommendation of the Union Council of Ministers, the President of India has the authority to impose this rule on a state under Article 356 of the Indian Constitution. Before enforcing the rule, the President must take into account the following:
How long will the President be in office?
A President's Rule declaration made in accordance with Article 356 of the Constitution is valid for six months. This period can be prolonged incrementally for up to three years. The President has the authority to revoke President's Rule at any time without the consent of the Parliament.
The 44th Amendment Act of 1978 states that the President's rule can only be prolonged for more than a year every six months if the following criteria are met:
The President's Rule has been observed to be implemented if any of the following events has taken place:
Not at all, no. However, key government decisions cannot be taken until the President's rule has been imposed on a state. Until the President's rule is ended and the new administration is created, no significant policy choices or projects can be approved.
Objections to the President's Rule
There are many issues with how President's Rule was implemented on different periods. Sometimes the circumstances really called for it. But other times, even though that particular party held a majority in the Legislative Assembly, President's Rule was enacted merely for political reasons to overthrow the government established by a party other than the one at the Centre. Assemblies have been suspended or dissolved, and other political parties haven't been given the chance to establish administrations in states, due to the Union Government's partisan consideration, for which Article 356 has plainly been misapplied.
Article 356 has become exceedingly debatable in light of the aforementioned circumstances. Despite the safeguards offered by the 44th Amendment Act, it has been claimed that the Union Government has abused this power. Because of this, there is a call for either its repeal or the inclusion of provisions in the Constitution that would limit the abuse of this Article. Article 356 should only be utilised as a last resort, according to the Sarkaria Commission, which was created to study the Center-State ties. The Commission recommended as well that the State Legislative Assembly should not be dissolved without first receiving Parliamentary approval.
It further recommended that before the Center declares an emergency in a State due to a breakdown in the constitutional machinery, all options for forming an alternative government should be thoroughly investigated. In the Bommai case, the Supreme Court ruled that the Assembly cannot be dissolved before the Parliament has given its consent to the Proclamation. The President has occasionally sent recommendations for reconsideration, like as when the Gujarat Government suggested using Article 356 in Uttar Pradesh. The Union Government recognised the cue and abandoned the idea.[5]
The Indian Constitution includes Article 356 to protect states from disruptions of law and order caused by malfunctions in the constitutional machinery. The President has the authority to impose President rule in a state based on a report from the governor and with the support of the Council of Ministers. Failure of the constitutional machinery occurs when the state government is unable to carry out its duties in accordance with the Constitution. The governor has the authority to compile a report and send it to the President in the event of a political crisis. However, the President also has the authority to declare a state of emergency based on information obtained from sources other than the report.
The topic of the governor's report that has garnered the "President's satisfaction" may be examined by the courts. India Gandhi has a history of imposing president rule the most frequently, and courts have the authority to evaluate the objectivity of the report. State Of Rajasthan Vs. Union Of India (1977)[6]
In this instance, the Union Home Minister of the Janta Party Government sent a communication on April 17, 1977, advising the state governments of Uttar Pradesh, Bihar, Haryana, Madhya Pradesh, Himachal Pradesh, West Bengal, Orissa, Punjab, and Rajasthan to inform their governors in order to dissolve the legislative assembly and threatening to do so in accordance with Article 356. Due to the Congress Party's resounding defeat in these nine states, the state administration was compelled to seek a new mandate. The Supreme Court considered whether the circumstance justifiably necessitated the use of Article 356.
Once more, the judicial review of this article was invalidated in this instance. These factors can occasionally lead to conflict between the court and executive over the question of reviewability. Since the courts were forbidden from becoming involved in these disputes, it occasionally demonstrates how the executive dominates the other branches of government.
In the present instance, the court decided they could not discuss whether the facts and conditions that the central government relies on to be satisfied were sufficient. Because there would not be any presidential satisfaction about the topic in which he is obliged to be satisfied in such cases, the courts would have the authority to evaluate the satisfaction if it was given with bad purpose or on entirely unrelated and irrelevant grounds. Furthermore, the exercise would be unconstitutional if the satisfaction of the president constituted a requirement under Article 356 (1) and it was clear that the president was not satisfied with the situation. It can be contested on the grounds that it is false or entirely unrelated and unrelated reasons.
In addition, with regard to the limited judicial review, the judges actually have their own reasons for declining to agree to extensive judicial review because they stated that it is up to the president to determine whether the need for issuing 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 a reasonable nexus to the exercise of Otherwise, the argument should be taken as conclusive if it has any rational connection to the power. Therefore, very little judicial review recognition has been assured by the recent verdict.[7]
These conclusions about the application of article 356 have also had an impact on the nature of the Indian Federation. People no longer have faith in the state's ruling party, according to the "State of Rajasthan v. UOI"[8] case. Therefore, new elections should be held to determine whether or not voters still support the same party after the Congress party was thoroughly defeated in the Lok Sabha elections. Thus, never before in the history of the nation has there been such a resounding and unambiguous verdict from the people against the ruling party. As a result, the court emphasised in this ruling that the Indian Constitution is more unitary than federal.
After clause 5 of the 44th Amendment was removed, the Supreme Court ruled in "A.K. Roy v. Union of India"[9] that "any remarks made in the "State of Rajasthan v. Union of India" based on that clause cannot hold any validity."
S.R. Bommai Vs. Union Of India (1994)[10]
One of the important decisions made by the Supreme Court on the President's rule imposed by Article 356 is S.R. Bommai v. Union of India. A special court of nine justices delivered this historic decision, which broadened the application of Article 356—which had been frequently misinterpreted—and balanced the unification of India with the preservation of the federal system. The union government's unconstitutional dismissal of State governments came to a stop as a result of this ruling. The State of Rajasthan v. Union of India decision was reversed by this ruling.
S.R. Bommai served as Karnataka's chief minister in 1989. When many of his party's MLAs left, there was a problem that called into question Bommai's majority in the Assembly. The Governor rejected Bommai's suggestion to conduct a floor test to demonstrate the majority. The governor informed the President in a report that Bommai's party lacked a majority and that no other party could form a government, necessitating the imposition of President's Rule. As a result, in 1989, the President made a proclamation that was eventually supported by Parliament, and Bommai's government was overthrown. S.R. Bommai contested the constitutionality before the Karnataka High Court in a writ suit.[11]
The petition was denied by the court, therefore he appealed to the Supreme Court. Similar circumstances existed in the states of Madhya Pradesh, Rajasthan, Meghalaya, Nagaland, and Himachal Pradesh, thus the Apex Court heard all of the cases jointly. The President's rule enforced in these states violated both the concept of democracy and India's federal system, which were the key concerns before the court.
What follows is the question of whether the President's declaration of rule in six states was constitutionally warranted. The second concern concerned the range and depth of judicial review. The third concern concerned the meaning of the sentence in Article 356 that reads, "A situation has arisen in the government of a state cannot function under the provisions of this Constitution"
The Supreme Court ruled that the President Rule implemented in the states of Meghalaya, Karnataka, and Nagaland was unconstitutional with a 5:4 majority. The court ruled unanimously that the removal of the state governments in Rajasthan, Madhya Pradesh, and Himachal Pradesh did not follow the Indian Constitution's secular nature.
The Sarkaria Commission's[12] recommendations are not mandatory, but the SC took them into consideration. Seven opinions were given by the bench, in which the judges underlined the federal character of the constitution and held that tight federalism could not be imposed. Regarding the second matter, the bench declared that judicial review is available for the President's rule's announcement. But the judiciary can only extend its purview to the administrative level and confine itself to the pertinent evidence that supports the President's subjective satisfaction. However, the court reserves the right to overturn any judgement that is unconstitutional when it comes to protecting constitutionality.
The court has the authority to restore the status quo ante and, as a result, the Legislative Assembly in the event that the proclamation is found to be unlawful. The bench further declared that the President could only suspend the State Assembly and that it could not be dissolved without prior consent from Parliament. Only when flagrant disregard for the Constitution results in an impasse, when there is no viable alternative and it is no longer possible for the State to function normally, can Article 356 be used. The bench ruled that since floor tests help to assess a government's legitimacy, they must be required to be conducted.[13]
The judiciary's most significant action to prevent the executive branch from abusing its power can be seen in this judgement. This decision is a perfect example of judicial review. It is a really positive reform that will significantly lessen how much authority the Union government abuses the states. However, there is still very little room for the Center to abuse Article 356 using the justification that States are abusing their authority and acting against the Constitution.
Therefore, the real safeguard would have been a thorough judicial review that included a probe into the reliability and veracity of the data used to support the President Rule proclamation. The fact that there wasn't a unified majority on the subject of judicial review, however, was a regrettable development. The minority verdicts exhibit an overly cautious viewpoint and ignore India's actual political landscape. Any form of departure from this decision will prevent federalism, another fundamental aspect of the Constitution, from being put into practise.
This decision is seen as a turning point in establishing and defending the federal character of the Indian Constitution. This case can be compared to Baker v. Carr, which had a significant impact on the development of federalism in the United States and shaped its political-legal framework. Both decisions in these cases were handed down at a time when the Center was being questioned about its justification for equality and the consistent application of regional laws.
The Bommai decision is frequently regarded as a landmark decision in the activist role. The judiciary makes it easier to put democratic values into practise. In the Bommai case, Article 356 thus underwent a wider development.[14]
The Supreme Court of India established stringent standards for the application of Article 356 in the S.R. Bommai case (1994).[15]
According to the Commission, in the case of internal subversion, if a State government deliberately violates the Constitution, it would be necessary to invoke Article 356 after giving them the time and opportunity to right their wrong. It also emphasised that if a State government disobeys orders issued under Article 353 in a crisis situation after issuing warnings, it will also result in the implementation of Article 356. Even in situations when a state's security is in danger, state governments are required to notify the central government right once; failure to do so will result in the application of Article 356. The Commission further emphasised that misusing Article 356 to address political issues is an obvious example.[16]
The Commission ruled that in the event of a political breakdown, it is the Governor's responsibility to look into all available options before ousting the administration that has the backing of the majority of the Assembly. The Governor must ask the leaving Ministry to continue serving as a caretaker government under the condition that the ministry is not under any significant allegations of corruption if such a government cannot be reestablished and new elections can be held quickly and easily. The Assembly must be disbanded by the Governor, and the interim administration lacks the authority to make significant policy decisions. Each proclamation must be presented to both chambers of Parliament as soon as feasible before its two-month length expires, according to the Commission.[17]
Additionally, it was argued that a broad reading of Article 356 could lessen its misuse. The Sarkaria Commission's recommendations lacked the originality and ingenuity necessary to tackle the President's Rule issue, and they appeared to be a band-aid fix. The Sarkaria Commission endorsed the Center powers as necessary and unavoidable, refusing to look into the Union Government's actual abuse of constitutional provisions and offering solutions to defend them going forward. The panel, however, disregarded a number of issues with the initial separation of powers between the Union and the states.[18]
Further guidelines of this judgement related to the appropriate or inappropriate circumstance in which president rule is imposed in light of the Sarkaria committee report. Which are:
Examples of when to use
Some facets of India's federal structure were undermined by the 42nd Amendment during the emergency period. Due to the massive suppression of civil liberties and police abuse of human rights, this amendment was extremely unpopular with the general public. The Janata Government proposed the 44th amendment to the Constitution primarily to undo some of the modifications made by the 42nd Amendment Act of 1976 and reinstate the old federal system.[19]
The scope of Article 356 was constrained by the 44th Amendment of 1978. The word "one year" is changed to "six months" in the modification. A declaration of emergency will also be approved by the parliament and last for six months from the day it was issued. It requires parliamentary approval each time it is extended. It deleted the existing clause (5) from Article 356 and added a new one. This section states that neither parliament may pass a resolution to extend the state of emergency for more than a year unless:
The electoral commission certifies that a proclamation under Article 356 is required due to challenges in holding a general election of the relevant legislative assembly while such resolution is being passed. A proclamation of emergency is in effect at that time. The existing limit of three years applies to any extension of the proclamation term beyond one year.[20]
These amendments were made in order to guarantee that democratic government is reinstated in a State following the minimal amount of time required for conducting elections. Since the 44th amendment made significant modifications to the Indian Constitution to ensure that the Indian polity becomes more democratic, this is not the end of the story. The amendment also reshaped Indian governance and made sure that crucial democratic tenets would be given top priority.[21]
The President's pleasure must be based on objective information, according to the court. This information may be found in the report that the Governor sent to the President, elsewhere, or from both the report and other sources. Furthermore, the objective evidence that is now accessible must show that the State's government cannot function in conformity with the Constitution's requirements.
Therefore, before the President issues the proclamation, the existence of the objective evidence demonstrating that the State's governance cannot be maintained in line with the requirements of the Constitution is a prerequisite. The President's satisfaction with the material is unquestionable if it is established that it exists.
The same was decided in Rameshwar Prasad v. State of Bihar[22], when the court ruled that the declaration of President rule in the state was invalid after reviewing the governor's report. No objective information that may possibly satisfy the President was found to be in the report, it was noted. The court may then challenge the President's decision to impose President rule in such cases where there are no justifiable grounds for the governor's control.
The governor's report must be objective in this case, which means it must demonstrate the predominance of conditions that cause the state's constitutional machinery to be hindered. In order to demonstrate that the government can function constitutionally without declaring an emergency, the issue must be serious because a simple infringement of a few constitutional clauses cannot be considered a failure of the constitutional machinery. The court held that declaring an emergency should be the final resort and that the governor must first consider all other options before announcing presidential rule.[23]
The court's ruling that the President's authority to declare an emergency is subject to Constitutional restrictions and not an unrestricted power is another important component of Bommai's case. The President must act in line with the Constitution because, to put it another way, he or she holds a constitutional office.
According to the court, "The power provided by article 356 is a conditioned power; it is not an unfettered power to be utilised at the President's discretion. The requirement is the development of subjective satisfaction that a circumstance of the kind mentioned in the clause has developed. This satisfaction may be reached based on the Governor's report, based on additional information he has received, or based on both. A prerequisite for the development of satisfaction is the presence of pertinent material. The term "may" is used to imply both discretion and a duty to weigh the necessity and advisability of a course of action.[24]
The extraordinary power to declare an emergency has been given to protect the state from serious crises that might be brought about by abusing Article 356. The broad scope of Article 356 means that it is still misused notwithstanding the possibility of judicial review of the governor's report. The words "otherwise" and "failure of Constitutional machinery" have no clear definitions, which eventually allows the central authority to abuse them.[25]
The presence of satisfaction can, however, occasionally be disputed on the grounds that it is "mala fide" or "founded on completely extraneous and immaterial considerations." The Supreme Court's ruling in State of Madhya Pradesh v. Bharat Singh, which held that it was not prohibited from invalidating a law passed before a Proclamation of Emergency as being ultra vires to the Constitution just because the Proclamation was in effect at the time, further emphasises the importance of judicial review in cases involving Article 356.
In State of Rajasthan v. Union of India, a seven-member constitution bench of the Supreme Court unanimously dismissed the petitioner's case and upheld the center's action of dissolving three assemblies under Article 356 as constitutionally valid. This case served as the first test of judicial review of the Proclamation under Article 356(1).
In the case of Minerva Mills and Others v. Union of India and Others, the Supreme Court went into great detail about its authority to review the legality of a President-issued Proclamation of Emergency. In this case, the Supreme Court noted, among other things, that it should not be reluctant to carry out its constitutional duties simply because doing so means taking into account political considerations. At the same time, it should refrain from analysing whether the Proclamation complies with Article 352's constitutional requirements and instead focus on whether the facts and circumstances are sufficient for the president to be satisfied that an emergency exists.[26]
Thus, it is acceptable to say that the Presidential Proclamation under Article 356 is amenable to judicial review, despite its limitations. S R Bommai v. Union of India, the most recent case that determined the scope of judicial review of the President's Proclamation imposing "President's Rule" in the states and solidified the legal position on the President's subjective satisfaction, was a turning point in the development of the Indian Constitution
The Supreme Court firmly outlined the framework and constraints that Article 356 had to operate within in this case. After the Supreme Court's ruling in the S. R. Bommai case, it is well established that Article 356 is an extreme power and should only be used as a last resort in situations where it is obvious that there is an impasse and the constitutional machinery in a State has collapsed, according to Soli Sorabjee, eminent jurist and former Solicitor-General of India.
When phrases like "otherwise" and "failure of Constitutional machinery" are used, a wide range of acts may fall under their purview.[27] What constitutes a constitutional failure and what kind of failure might be used as a justification for interfering with state administration, according to Article 356? The ambiguity of Article 356 allows political parties to utilise this unprecedented power to further their own interests, which has led to the adoption of justifications like the slaughter of cows to declare states of emergency.
One must realise that the main goal of including Article 356 was to protect the states in the event that there is a breakdown in law and order for effective governance. However, the permissive reading of Article 356 gives a lot of room for its abuse, which ultimately led to undermining the primary reason for giving the President such power via 356. Although it is true that rules shouldn't be interpreted in the worst case, there is no getting around the need for extreme caution before using measurements of this serious a nature.
The misuse of Article 356 cannot be disregarded because it directly affects the nation's federal government and violates the Constitution's fundamental principles. Many academics have argued that Article 356 should be repealed, although doing so would give states more power, making the issue worse.[28] The phrase "otherwise" and the phrase "failure of Constitutional machinery" need to be defined specifically in Article 356 in order to limit its application.
The legislature should specify the seriousness or seriousness of actions that can be used to argue that the constitutional machinery has failed and that the elected government should be overthrown.[29]
Measures And Suggestions
In this context, the following corrective actions are suggested to prevent abuse of the President's Rule provisions:
The extension of president's rule in Jammu and Kashmir for a another six months, beginning on July 3, was authorised by the Union Cabinet on June 12 of this year.
President's Rule was imposed in Arunachal Pradesh from December 16, 2015, to February 19, 2016, when Congress MLAs met Governor JP Rajkhowa with the request to remove Speaker Nabam Rebia from office. In agreement, the governor convened an urgent meeting to discuss the impeachment move. Congress objected to the Governor's decision, but the Centre nonetheless used Article 356 to impose President's Rule in the state.
The Assembly was suspended from February 14, 2014, to February 11, 2015, during President's Rule in Delhi, where Arvind Kejriwal resigned as chief minister after his attempt to enact the Jan Lokpal Bill failed in the Assembly.[32]
Conclusion
The so-called "dead letters" of the Constitution, which were only supposed to be utilised in the most extreme circumstances, have been exploited to expand the authority of state governments. Through examining the declaration of an emergency in five states, it has been discovered that President control has frequently occurred without any justifiable justification, and that this is the dark side of Indian politics. In their respective fields, both the federal government and state governments are unrivalled, and none of them can assert superiority.
There is no practical way to prevent the union government from abusing Article 356 because of its ambiguous language. It is necessary to revise Article 356 in accordance with the suggestions made by the court in the Bommai case as well as by the Sarkaria Commission in order to safeguard India's federal structure. [36] The governor should take all necessary procedures, including alerting the state government that it is not operating in accordance with constitutional principles and using the floor test to demonstrate majority, before resorting to president rule.[33]
However, even if Article 356 were to be changed while taking into account all of the Sarkaria Commission's suggestions, there would still be a possibility of abuse of power because the effectiveness of any law depends on how successfully it has been put into practise. Therefore, a stringent reading of Article 356 is the only way to ensure that the spirit of co-federation is maintained when choosing President rule and that the union administration doesn't utilise this power to further its own political objectives.
End-Notes:
Despite having the last say in whether to approve the proclamation, the President was required to consult with the Union Cabinet and, in cases of state emergencies, be satisfied by the Governor. However, the repeated use of emergency provisions, particularly by the Union Administration in violation of Article 356 against the State's government led to concerns about their abuse.
The Governor's office's sanctity has also been called into doubt. In the past, Governors have advocated the imposition of President's rule without using every constitutionally permissible avenue to reaffirm the Assembly's confidence in the Government. Since they have brought shame upon the position numerous times, many States have even urged that the Governor's post be removed from the Constitution.
I will start with explaining what is meant by a state emergency, its declaration and the need for it. Next I will be explaining the president's rule and various questions related to it.The need for discussing the nature and application of Article 356, it's ambiguity and the need for change as well as the cases where it has been used in our country that provide protection under it. It also concentrates on the breadth and extent of judicial review of article 356. It also includes the landmark cases like Union Of India Vs. State Of Rajasthan (1977) And Union Of India Vs. S.R. Bommai (1994). A brief comparison of the 40th and 42nd amendments is also given and some highlights about the report of the Sarkaria commission.
Introduction
The Indian Constitution establishes the nation's federal structure and lays forth specific duties for the national and state governments. In the event of "failure of the Constitutional machinery," the President of India may declare an emergency and assume control of the state's legislative and executive branches. Article 356 has been the subject of debate since it was first enacted, as it may jeopardise the country's federal system. Members of the Constitutional assembly have criticised the provision, stressing the possibility of union dominance due to the ambiguous and subjective nature of the phrase "otherwise".
B.R. Ambedkar, the head of the drafting committee, believed that Article 356 of the Constitution should only be utilised in exceptional circumstances and never on unimportant matters. However, the Indian political system and instances where the Constitution was changed solely to the advantage of one political party were not anticipated by the Constitution's writers.
Ironically, after the Constitution had been in effect for a year, in 1951, Article 356 was abused when the Nehru-led Congress government fired Punjab's chief minister, Gopichand Bhargava, despite the fact that he had a majority in the state and there had been no constitutional machinery failure. Since then, there have been countless instances where Article 356 has been utilised as a tool by the federal government to override state governance in order to further its political objectives.
This paper examines the nature and application of Article 356 of the Constitution, placing particular attention on the ruling rendered by the Supreme Court in the Bommai case. It also examines the instances of President rule that were used from 2014 to 2020, their justification and constitutional legitimacy, and the necessity of amending the relevant provision.
President's Rule
Part XVIII of the Constitution contains a set of emergency provisions. The Indian Constitution's Article 356 addresses President's Rule. Article 355 of the Indian Constitution, which stated 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 in accordance with this Constitution," does not specifically state how the Union must carry out its duty to protect a State against external aggression and internal disturbance; it is left to the Union's assessment as to how to handle any such situation. Article 356 outlines how it must carry out its responsibility to ensure that each State's government operates in accordance with the Constitution's stipulations.[1]In the event that a state's constitutional machinery malfunctions, the President of India is empowered by Article 356 of the Indian Constitution to impose President's Rule on that state. President's Rule may be imposed in a state based on the President's assessment if the state does not follow all orders issued by the Union on matters over which it has jurisdiction or if the President receives a report from the state's governor or is otherwise convinced or satisfied that the state's circumstances prevent it from exercising its constitutional powers.
Any state that wishes to implement the President's Rule must first have parliamentary approval, which must occur within two months of the President's Rule's implementation. After that, the President's Rule can be implemented with a simple majority consent and for a maximum of six months. After it is put into effect, it can be extended for an additional three years with parliamentary approval every six months. Some further measures pertaining to the exercise of legislative authority under the proclamation created by Article 356 are contained in Article 357.
The President's Rule cannot be imposed for more than a year according to restrictions imposed by the 44th Amendment to the Constitution (1978). According to the clause, President's Rule cannot be extended for a second year unless: India is experiencing a national emergency.
The President's Rule in the state must continue, according to the Election Commission of India, because it has been difficult to hold the state's assembly elections.[2]
How is a state put under the president's rule?
On the recommendation of the Union Council of Ministers, the President of India has the authority to impose this rule on a state under Article 356 of the Indian Constitution. Before enforcing the rule, the President must take into account the following:
- If the President is confident that a circumstance has arisen that prevents the state's government from continuing in line with the Constitution's provisions.
- Within the time frame set by the state governor, the state government is unable to elect a chief minister.
- A coalition collapses, giving the chief minister a minority of support in the House, and the CM is unable to demonstrate a majority within the allotted time.
- The Assembly losing its majority as a result of a House vote of no confidence.
- Elections that have been postponed due to events like epidemics, wars, or natural catastrophes.[3]
How long will the President be in office?
A President's Rule declaration made in accordance with Article 356 of the Constitution is valid for six months. This period can be prolonged incrementally for up to three years. The President has the authority to revoke President's Rule at any time without the consent of the Parliament.
The 44th Amendment Act of 1978 states that the President's rule can only be prolonged for more than a year every six months if the following criteria are met:
- The Election Commission attests that no elections may be held in the state in question.
- The entire country of India, or the entire state, is already in a state of emergency.
The President's Rule has been observed to be implemented if any of the following events has taken place:
- For a predetermined period of time, the governor of the state prohibits the state legislature from electing a leader to serve as the Chief Minister.
- Failure of a coalition in the state government results in the CM receiving support from only a minority of lawmakers, and the CM is unable to demonstrate his majority within the governor's allotted time.
- A legislative assembly no-confidence vote that results in a majority loss
- Elections that must be postponed because of a natural calamity, an epidemic, or a conflict.[4]
Not at all, no. However, key government decisions cannot be taken until the President's rule has been imposed on a state. Until the President's rule is ended and the new administration is created, no significant policy choices or projects can be approved.
Objections to the President's Rule
There are many issues with how President's Rule was implemented on different periods. Sometimes the circumstances really called for it. But other times, even though that particular party held a majority in the Legislative Assembly, President's Rule was enacted merely for political reasons to overthrow the government established by a party other than the one at the Centre. Assemblies have been suspended or dissolved, and other political parties haven't been given the chance to establish administrations in states, due to the Union Government's partisan consideration, for which Article 356 has plainly been misapplied.
Article 356 has become exceedingly debatable in light of the aforementioned circumstances. Despite the safeguards offered by the 44th Amendment Act, it has been claimed that the Union Government has abused this power. Because of this, there is a call for either its repeal or the inclusion of provisions in the Constitution that would limit the abuse of this Article. Article 356 should only be utilised as a last resort, according to the Sarkaria Commission, which was created to study the Center-State ties. The Commission recommended as well that the State Legislative Assembly should not be dissolved without first receiving Parliamentary approval.
It further recommended that before the Center declares an emergency in a State due to a breakdown in the constitutional machinery, all options for forming an alternative government should be thoroughly investigated. In the Bommai case, the Supreme Court ruled that the Assembly cannot be dissolved before the Parliament has given its consent to the Proclamation. The President has occasionally sent recommendations for reconsideration, like as when the Gujarat Government suggested using Article 356 in Uttar Pradesh. The Union Government recognised the cue and abandoned the idea.[5]
Article 356: Nature And Application
Section 93 of the 1935 Government of India Act serves as the foundation for Article 356 of the Indian Constitution, which states that any state may be placed under President's Rule if the constitutional mechanism has failed. This is known as a "State Emergency" or "Constitutional Emergency". The Indian political system relies on the idea of "cooperative federalism" to maintain a balance between the federal and state governments for effective governance. The union government does outweigh state governments in a number of areas, but this was done for the benefit of the populace as a whole. The federation divides its power among a number of institutions and organs to preserve peace and harmony.The Indian Constitution includes Article 356 to protect states from disruptions of law and order caused by malfunctions in the constitutional machinery. The President has the authority to impose President rule in a state based on a report from the governor and with the support of the Council of Ministers. Failure of the constitutional machinery occurs when the state government is unable to carry out its duties in accordance with the Constitution. The governor has the authority to compile a report and send it to the President in the event of a political crisis. However, the President also has the authority to declare a state of emergency based on information obtained from sources other than the report.
The topic of the governor's report that has garnered the "President's satisfaction" may be examined by the courts. India Gandhi has a history of imposing president rule the most frequently, and courts have the authority to evaluate the objectivity of the report. State Of Rajasthan Vs. Union Of India (1977)[6]
In this instance, the Union Home Minister of the Janta Party Government sent a communication on April 17, 1977, advising the state governments of Uttar Pradesh, Bihar, Haryana, Madhya Pradesh, Himachal Pradesh, West Bengal, Orissa, Punjab, and Rajasthan to inform their governors in order to dissolve the legislative assembly and threatening to do so in accordance with Article 356. Due to the Congress Party's resounding defeat in these nine states, the state administration was compelled to seek a new mandate. The Supreme Court considered whether the circumstance justifiably necessitated the use of Article 356.
Once more, the judicial review of this article was invalidated in this instance. These factors can occasionally lead to conflict between the court and executive over the question of reviewability. Since the courts were forbidden from becoming involved in these disputes, it occasionally demonstrates how the executive dominates the other branches of government.
In the present instance, the court decided they could not discuss whether the facts and conditions that the central government relies on to be satisfied were sufficient. Because there would not be any presidential satisfaction about the topic in which he is obliged to be satisfied in such cases, the courts would have the authority to evaluate the satisfaction if it was given with bad purpose or on entirely unrelated and irrelevant grounds. Furthermore, the exercise would be unconstitutional if the satisfaction of the president constituted a requirement under Article 356 (1) and it was clear that the president was not satisfied with the situation. It can be contested on the grounds that it is false or entirely unrelated and unrelated reasons.
In addition, with regard to the limited judicial review, the judges actually have their own reasons for declining to agree to extensive judicial review because they stated that it is up to the president to determine whether the need for issuing 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 a reasonable nexus to the exercise of Otherwise, the argument should be taken as conclusive if it has any rational connection to the power. Therefore, very little judicial review recognition has been assured by the recent verdict.[7]
These conclusions about the application of article 356 have also had an impact on the nature of the Indian Federation. People no longer have faith in the state's ruling party, according to the "State of Rajasthan v. UOI"[8] case. Therefore, new elections should be held to determine whether or not voters still support the same party after the Congress party was thoroughly defeated in the Lok Sabha elections. Thus, never before in the history of the nation has there been such a resounding and unambiguous verdict from the people against the ruling party. As a result, the court emphasised in this ruling that the Indian Constitution is more unitary than federal.
After clause 5 of the 44th Amendment was removed, the Supreme Court ruled in "A.K. Roy v. Union of India"[9] that "any remarks made in the "State of Rajasthan v. Union of India" based on that clause cannot hold any validity."
S.R. Bommai Vs. Union Of India (1994)[10]
One of the important decisions made by the Supreme Court on the President's rule imposed by Article 356 is S.R. Bommai v. Union of India. A special court of nine justices delivered this historic decision, which broadened the application of Article 356—which had been frequently misinterpreted—and balanced the unification of India with the preservation of the federal system. The union government's unconstitutional dismissal of State governments came to a stop as a result of this ruling. The State of Rajasthan v. Union of India decision was reversed by this ruling.
S.R. Bommai served as Karnataka's chief minister in 1989. When many of his party's MLAs left, there was a problem that called into question Bommai's majority in the Assembly. The Governor rejected Bommai's suggestion to conduct a floor test to demonstrate the majority. The governor informed the President in a report that Bommai's party lacked a majority and that no other party could form a government, necessitating the imposition of President's Rule. As a result, in 1989, the President made a proclamation that was eventually supported by Parliament, and Bommai's government was overthrown. S.R. Bommai contested the constitutionality before the Karnataka High Court in a writ suit.[11]
The petition was denied by the court, therefore he appealed to the Supreme Court. Similar circumstances existed in the states of Madhya Pradesh, Rajasthan, Meghalaya, Nagaland, and Himachal Pradesh, thus the Apex Court heard all of the cases jointly. The President's rule enforced in these states violated both the concept of democracy and India's federal system, which were the key concerns before the court.
What follows is the question of whether the President's declaration of rule in six states was constitutionally warranted. The second concern concerned the range and depth of judicial review. The third concern concerned the meaning of the sentence in Article 356 that reads, "A situation has arisen in the government of a state cannot function under the provisions of this Constitution"
The Supreme Court ruled that the President Rule implemented in the states of Meghalaya, Karnataka, and Nagaland was unconstitutional with a 5:4 majority. The court ruled unanimously that the removal of the state governments in Rajasthan, Madhya Pradesh, and Himachal Pradesh did not follow the Indian Constitution's secular nature.
The Sarkaria Commission's[12] recommendations are not mandatory, but the SC took them into consideration. Seven opinions were given by the bench, in which the judges underlined the federal character of the constitution and held that tight federalism could not be imposed. Regarding the second matter, the bench declared that judicial review is available for the President's rule's announcement. But the judiciary can only extend its purview to the administrative level and confine itself to the pertinent evidence that supports the President's subjective satisfaction. However, the court reserves the right to overturn any judgement that is unconstitutional when it comes to protecting constitutionality.
The court has the authority to restore the status quo ante and, as a result, the Legislative Assembly in the event that the proclamation is found to be unlawful. The bench further declared that the President could only suspend the State Assembly and that it could not be dissolved without prior consent from Parliament. Only when flagrant disregard for the Constitution results in an impasse, when there is no viable alternative and it is no longer possible for the State to function normally, can Article 356 be used. The bench ruled that since floor tests help to assess a government's legitimacy, they must be required to be conducted.[13]
The judiciary's most significant action to prevent the executive branch from abusing its power can be seen in this judgement. This decision is a perfect example of judicial review. It is a really positive reform that will significantly lessen how much authority the Union government abuses the states. However, there is still very little room for the Center to abuse Article 356 using the justification that States are abusing their authority and acting against the Constitution.
Therefore, the real safeguard would have been a thorough judicial review that included a probe into the reliability and veracity of the data used to support the President Rule proclamation. The fact that there wasn't a unified majority on the subject of judicial review, however, was a regrettable development. The minority verdicts exhibit an overly cautious viewpoint and ignore India's actual political landscape. Any form of departure from this decision will prevent federalism, another fundamental aspect of the Constitution, from being put into practise.
This decision is seen as a turning point in establishing and defending the federal character of the Indian Constitution. This case can be compared to Baker v. Carr, which had a significant impact on the development of federalism in the United States and shaped its political-legal framework. Both decisions in these cases were handed down at a time when the Center was being questioned about its justification for equality and the consistent application of regional laws.
The Bommai decision is frequently regarded as a landmark decision in the activist role. The judiciary makes it easier to put democratic values into practise. In the Bommai case, Article 356 thus underwent a wider development.[14]
The Supreme Court of India established stringent standards for the application of Article 356 in the S.R. Bommai case (1994).[15]
Report Of Sarkaria Commission
It was decided to create the Sarkaria Commission, which was led by Justice Ranjeet Singh Sarkaria. This Commission advised that, in order to settle and avert any situation where a state's constitutional machinery has failed, Article 356 should only be employed with extreme caution and as a last resort after exhausting all other options.According to the Commission, in the case of internal subversion, if a State government deliberately violates the Constitution, it would be necessary to invoke Article 356 after giving them the time and opportunity to right their wrong. It also emphasised that if a State government disobeys orders issued under Article 353 in a crisis situation after issuing warnings, it will also result in the implementation of Article 356. Even in situations when a state's security is in danger, state governments are required to notify the central government right once; failure to do so will result in the application of Article 356. The Commission further emphasised that misusing Article 356 to address political issues is an obvious example.[16]
The Commission ruled that in the event of a political breakdown, it is the Governor's responsibility to look into all available options before ousting the administration that has the backing of the majority of the Assembly. The Governor must ask the leaving Ministry to continue serving as a caretaker government under the condition that the ministry is not under any significant allegations of corruption if such a government cannot be reestablished and new elections can be held quickly and easily. The Assembly must be disbanded by the Governor, and the interim administration lacks the authority to make significant policy decisions. Each proclamation must be presented to both chambers of Parliament as soon as feasible before its two-month length expires, according to the Commission.[17]
Additionally, it was argued that a broad reading of Article 356 could lessen its misuse. The Sarkaria Commission's recommendations lacked the originality and ingenuity necessary to tackle the President's Rule issue, and they appeared to be a band-aid fix. The Sarkaria Commission endorsed the Center powers as necessary and unavoidable, refusing to look into the Union Government's actual abuse of constitutional provisions and offering solutions to defend them going forward. The panel, however, disregarded a number of issues with the initial separation of powers between the Union and the states.[18]
Further guidelines of this judgement related to the appropriate or inappropriate circumstance in which president rule is imposed in light of the Sarkaria committee report. Which are:
Examples of when to use
- if there is a hung assembly as a result of the assembly election.
- if the party with the most votes decides against forming a government.
- No one is able or willing to form a government.
- If the State has disregarded the instruction given by the Union.
- Internal subversion is when a government consciously violates the law or the constitution.
- If there is a physical breakdown, that is, if the government consciously chooses not to carry out its duties and provide for state governance.
- cases of inappropriate use.
- It is imposed solely on the basis of the Governor's evaluation, without a floor test.
- Even though the government is overthrown, the governor doesn't try to replace it.
- defeat in the Lok Sabha elections for the ruling party.
- Maladministration, accusations of corruption, and severe financial constraints are almost certainly at blame.
- without first informing the state of the need for correction.
- for internal or unrelated uses.
Comparison Of 40th And 42nd Amendments
Through the passage of the 42nd Amendment Act, many modifications to Indian law were made between 1975 and 1977 while the country was under emergency rule. According to this statute, Article 356 would continue to remain in effect after the emergency was over until the State Legislature revised the law.Some facets of India's federal structure were undermined by the 42nd Amendment during the emergency period. Due to the massive suppression of civil liberties and police abuse of human rights, this amendment was extremely unpopular with the general public. The Janata Government proposed the 44th amendment to the Constitution primarily to undo some of the modifications made by the 42nd Amendment Act of 1976 and reinstate the old federal system.[19]
The scope of Article 356 was constrained by the 44th Amendment of 1978. The word "one year" is changed to "six months" in the modification. A declaration of emergency will also be approved by the parliament and last for six months from the day it was issued. It requires parliamentary approval each time it is extended. It deleted the existing clause (5) from Article 356 and added a new one. This section states that neither parliament may pass a resolution to extend the state of emergency for more than a year unless:
The electoral commission certifies that a proclamation under Article 356 is required due to challenges in holding a general election of the relevant legislative assembly while such resolution is being passed. A proclamation of emergency is in effect at that time. The existing limit of three years applies to any extension of the proclamation term beyond one year.[20]
These amendments were made in order to guarantee that democratic government is reinstated in a State following the minimal amount of time required for conducting elections. Since the 44th amendment made significant modifications to the Indian Constitution to ensure that the Indian polity becomes more democratic, this is not the end of the story. The amendment also reshaped Indian governance and made sure that crucial democratic tenets would be given top priority.[21]
Article 356: Judicial Interpretation
The Supreme Court has been confronted with important issues relating to the abuse of Article 356 in the Bommai's Case. In this instance, the governor removed the Chief Minister of Karnataka without giving him an opportunity to demonstrate his majority during the floor test, and as a result, the President's rule was put into effect. The President's satisfaction is normally not in doubt, according to the court, but the governor's report can be investigated to determine the reasons for the President's satisfaction.The President's pleasure must be based on objective information, according to the court. This information may be found in the report that the Governor sent to the President, elsewhere, or from both the report and other sources. Furthermore, the objective evidence that is now accessible must show that the State's government cannot function in conformity with the Constitution's requirements.
Therefore, before the President issues the proclamation, the existence of the objective evidence demonstrating that the State's governance cannot be maintained in line with the requirements of the Constitution is a prerequisite. The President's satisfaction with the material is unquestionable if it is established that it exists.
The same was decided in Rameshwar Prasad v. State of Bihar[22], when the court ruled that the declaration of President rule in the state was invalid after reviewing the governor's report. No objective information that may possibly satisfy the President was found to be in the report, it was noted. The court may then challenge the President's decision to impose President rule in such cases where there are no justifiable grounds for the governor's control.
The governor's report must be objective in this case, which means it must demonstrate the predominance of conditions that cause the state's constitutional machinery to be hindered. In order to demonstrate that the government can function constitutionally without declaring an emergency, the issue must be serious because a simple infringement of a few constitutional clauses cannot be considered a failure of the constitutional machinery. The court held that declaring an emergency should be the final resort and that the governor must first consider all other options before announcing presidential rule.[23]
The court's ruling that the President's authority to declare an emergency is subject to Constitutional restrictions and not an unrestricted power is another important component of Bommai's case. The President must act in line with the Constitution because, to put it another way, he or she holds a constitutional office.
According to the court, "The power provided by article 356 is a conditioned power; it is not an unfettered power to be utilised at the President's discretion. The requirement is the development of subjective satisfaction that a circumstance of the kind mentioned in the clause has developed. This satisfaction may be reached based on the Governor's report, based on additional information he has received, or based on both. A prerequisite for the development of satisfaction is the presence of pertinent material. The term "may" is used to imply both discretion and a duty to weigh the necessity and advisability of a course of action.[24]
The extraordinary power to declare an emergency has been given to protect the state from serious crises that might be brought about by abusing Article 356. The broad scope of Article 356 means that it is still misused notwithstanding the possibility of judicial review of the governor's report. The words "otherwise" and "failure of Constitutional machinery" have no clear definitions, which eventually allows the central authority to abuse them.[25]
Article 356: Proclamation
Since the power under Article 356(1) is a conditional one, a Proclamation made according to it is incontrovertibly subject to judicial review. The court has the right to assess whether or not the requirement has been met when using its judicial review authority. The debate therefore centres on the extent and use of judicial review. It is evident from the rulings in the judgments of State of Rajasthan v. Union of India and the Bommai case that there cannot be a single rule that applies to all situations; instead, there must be variations based on the subject matter, the nature of the right, and other elements.The presence of satisfaction can, however, occasionally be disputed on the grounds that it is "mala fide" or "founded on completely extraneous and immaterial considerations." The Supreme Court's ruling in State of Madhya Pradesh v. Bharat Singh, which held that it was not prohibited from invalidating a law passed before a Proclamation of Emergency as being ultra vires to the Constitution just because the Proclamation was in effect at the time, further emphasises the importance of judicial review in cases involving Article 356.
In State of Rajasthan v. Union of India, a seven-member constitution bench of the Supreme Court unanimously dismissed the petitioner's case and upheld the center's action of dissolving three assemblies under Article 356 as constitutionally valid. This case served as the first test of judicial review of the Proclamation under Article 356(1).
In the case of Minerva Mills and Others v. Union of India and Others, the Supreme Court went into great detail about its authority to review the legality of a President-issued Proclamation of Emergency. In this case, the Supreme Court noted, among other things, that it should not be reluctant to carry out its constitutional duties simply because doing so means taking into account political considerations. At the same time, it should refrain from analysing whether the Proclamation complies with Article 352's constitutional requirements and instead focus on whether the facts and circumstances are sufficient for the president to be satisfied that an emergency exists.[26]
Thus, it is acceptable to say that the Presidential Proclamation under Article 356 is amenable to judicial review, despite its limitations. S R Bommai v. Union of India, the most recent case that determined the scope of judicial review of the President's Proclamation imposing "President's Rule" in the states and solidified the legal position on the President's subjective satisfaction, was a turning point in the development of the Indian Constitution
The Supreme Court firmly outlined the framework and constraints that Article 356 had to operate within in this case. After the Supreme Court's ruling in the S. R. Bommai case, it is well established that Article 356 is an extreme power and should only be used as a last resort in situations where it is obvious that there is an impasse and the constitutional machinery in a State has collapsed, according to Soli Sorabjee, eminent jurist and former Solicitor-General of India.
Article 356 Ambiguity And The Necessity For Change
The misuse of Article 356 by the political party at the Center is not an unexpected occurrence in a federal country like India, where unions and states are governed by different political parties, and instances of the same have been recorded numerous times in India. After seeing the declaration of President rule in five states since 2014, it can be said that such a situation arises when two different parties are in power at the federal and state levels or when the political interests of the federal and state governments conflict. The main cause of Article 356's misuse is because it is ambiguous and subjective.When phrases like "otherwise" and "failure of Constitutional machinery" are used, a wide range of acts may fall under their purview.[27] What constitutes a constitutional failure and what kind of failure might be used as a justification for interfering with state administration, according to Article 356? The ambiguity of Article 356 allows political parties to utilise this unprecedented power to further their own interests, which has led to the adoption of justifications like the slaughter of cows to declare states of emergency.
One must realise that the main goal of including Article 356 was to protect the states in the event that there is a breakdown in law and order for effective governance. However, the permissive reading of Article 356 gives a lot of room for its abuse, which ultimately led to undermining the primary reason for giving the President such power via 356. Although it is true that rules shouldn't be interpreted in the worst case, there is no getting around the need for extreme caution before using measurements of this serious a nature.
The misuse of Article 356 cannot be disregarded because it directly affects the nation's federal government and violates the Constitution's fundamental principles. Many academics have argued that Article 356 should be repealed, although doing so would give states more power, making the issue worse.[28] The phrase "otherwise" and the phrase "failure of Constitutional machinery" need to be defined specifically in Article 356 in order to limit its application.
The legislature should specify the seriousness or seriousness of actions that can be used to argue that the constitutional machinery has failed and that the elected government should be overthrown.[29]
Measures And Suggestions
In this context, the following corrective actions are suggested to prevent abuse of the President's Rule provisions:
- It is first necessary to study Article 356 in conjunction with Articles 355, 256, 257, 353 and 365.
- The President should simply issue a warning to the offending State, noting that things are not proceeding in accordance with the Constitution's intended course. If the warning is ineffective, he will order an election so that the State's citizens can decide the dispute on their own. He should only use this Article if the other two therapies are ineffective. The Constitution ought to include these preproclamation actions.
- The President's Rule should be implemented under extraordinary circumstances supported by reasonable justifications, such as when, following the State Legislative Assembly general elections, no party wins the absolute majority and no political party or group would be able to form a stable and viable government, when a Ministry is defeated on the Assembly floor, and when no party or group would be able to form a stable government. when a Chief Minister and his Council of Ministers resign and it is impossible to form a new government, when the Chief Minister advises the Governor to dissolve the Assembly after losing his majority there, when the Assembly is dissolved in February or March with
- A judge may overturn the President's Rule proclamation if there was a malicious motive.
- The centre must explain why Article 356 is being imposed.
- If the grounds for the imposition are judged to be invalid and illegal, the court has the authority to reinstate the suspended or dissolved state government.
- The President may only suspend the state legislature; it cannot be dissolved prior to parliamentary consent for the enforcement of Article 356.
- Financial difficulties and serious accusations of wrongdoing against a state ministry are insufficient justifications for enforcing Article 356.
- Any state government activity that promotes the security of secularism, which is a fundamental tenet of the Constitution, cannot serve as justification for the application of Article 356.
- There can be no intraparty disputes in the ruling party that can be resolved using Article 356.
- The governor cannot recommend that the President impose this article if the Ministry of State resigns, is dismissed, or loses the majority until the governor has taken sufficient action to form a replacement administration.
- Only emergencies should be used to invoke the authority granted by Article 356. It has extraordinary power.
- The scope for the abuse of this Article has also been constrained by future SC rulings.
- The Inter-State Council may be given the advisory role of debating every President's Rule declaration and the actions the President took in response to each proclamation. The outcome of these discussions may be presented to both the Parliament and the wider public. The subject of the imposition of President's Rule might be regularly monitored by a permanent Standing Committee of the InterState Council.
- Article 155 should be changed, and a committee made up of the Chief Justice of India, the President, the Vice President, the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Speaker of the Lok Sabha should be established to appoint an impartial Governor after consulting the Chief Minister of the affected State. Instead of acting as shills for the central government's dominant political party or coalition, governors should take on the role of the states' independent constitutional heads.
- There ought to be a code of behaviour for state assembly speakers. The legislative and the judiciary should exercise their respective functions within the boundaries established by the Constitution and refrain from interfering with one another's purview. By making arbitrary decisions under the Anti-Defection Act of 1985 or by securing the expulsion of the MLAs of the opposing parties from the proceedings of the legislature, the Speakers should play an impartial role and refrain from causing instability within the State Ministry. The Supreme Court and the High Courts shouldn't intervene with the State Assembly's routine business, and they should only do so in extreme circumstances, such as when lawmakers are prevented from voting or participating in House proceedings or when violent incidents occur there, etc.
- The recommendations of the Sarkaria Commission (1988), the National Commission to Review the Working of the Constitution (2002), and the safeguards on imposing President's Rule enunciated by the Supreme Court in the Bommai Case (1994) that were discussed in the Inter-State Council should be implemented after consultation with the State. Seventh, the Constitution should be amended in light of the intention of our founding fathers expressed in Constituent Assembly debates.
- Eighth, the existence of a robust and vigorous opposition, watchful public opinion, decent statesmanship, respect for federalism, and sound parliamentary democratic procedures are all powerful restraints on the abuse of this authority. Balveer Arora stated that it is crucial to carefully consider the ideas for strict safeguards, if not total elimination, in order to consolidate this victory for federal democracy.[31]
Cases Where Article 356 Has Recently Been Used
President's Rule under Article 356 has been enacted in states more than 100 times since the Republic's founding. Most recently, in Jammu and Kashmir. On December 19, 2018, President Ram Nath Kovind imposed President's rule in the state, which had descended into a political crisis following the collapse of the Mehbooba Mufti-led coalition government, after six months under Governor's rule.The extension of president's rule in Jammu and Kashmir for a another six months, beginning on July 3, was authorised by the Union Cabinet on June 12 of this year.
President's Rule was imposed in Arunachal Pradesh from December 16, 2015, to February 19, 2016, when Congress MLAs met Governor JP Rajkhowa with the request to remove Speaker Nabam Rebia from office. In agreement, the governor convened an urgent meeting to discuss the impeachment move. Congress objected to the Governor's decision, but the Centre nonetheless used Article 356 to impose President's Rule in the state.
The Assembly was suspended from February 14, 2014, to February 11, 2015, during President's Rule in Delhi, where Arvind Kejriwal resigned as chief minister after his attempt to enact the Jan Lokpal Bill failed in the Assembly.[32]
Conclusion
The so-called "dead letters" of the Constitution, which were only supposed to be utilised in the most extreme circumstances, have been exploited to expand the authority of state governments. Through examining the declaration of an emergency in five states, it has been discovered that President control has frequently occurred without any justifiable justification, and that this is the dark side of Indian politics. In their respective fields, both the federal government and state governments are unrivalled, and none of them can assert superiority.
There is no practical way to prevent the union government from abusing Article 356 because of its ambiguous language. It is necessary to revise Article 356 in accordance with the suggestions made by the court in the Bommai case as well as by the Sarkaria Commission in order to safeguard India's federal structure. [36] The governor should take all necessary procedures, including alerting the state government that it is not operating in accordance with constitutional principles and using the floor test to demonstrate majority, before resorting to president rule.[33]
However, even if Article 356 were to be changed while taking into account all of the Sarkaria Commission's suggestions, there would still be a possibility of abuse of power because the effectiveness of any law depends on how successfully it has been put into practise. Therefore, a stringent reading of Article 356 is the only way to ensure that the spirit of co-federation is maintained when choosing President rule and that the union administration doesn't utilise this power to further its own political objectives.
End-Notes:
- rticle 356 - president's rule (no date) Article 356 President's Rule. Available at: https://www.legalserviceindia.com/legal/article-4367-article-356-president-s-rule.html (Accessed: November 4, 2022).
- Article 356 - president's rule (no date) Article 356 President's Rule. Available at: https://www.legalserviceindia.com/legal/article-4367-article-356-president-s-rule.html (Accessed: November 12, 2022).
- Business Standard (no date) What is president's rule, why president's rule is imposed, president's rule in India, Business Standard. Available at: https://www.business-standard.com/about/what-is-president-s-rule (Accessed: November 5, 2022).
- Business Standard (no date) What is president's rule, why president's rule is imposed, president's rule in India, Business Standard. Available at: https://www.business-standard.com/about/what-is-president-s-rule (Accessed: November 5, 2022).
- Emergency powers of president - Indian polity notes, https://prepp.in/news/e-492-emergency-powers-of-president-indian-polity-notes (last visited Nov 5, 2022).
- State Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc 1977 AIR 1361
- Sakshi SarohaUpdated:Nov 24, Indian constitution: What is Article 356? Jagranjosh.com (2021), https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Nov 6, 2022).
- State Of Rajasthan & Ors. Etc. Etc vs Union Of India Etc 1977 AIR 1361
- A. K. Roy, Etc vs Union Of India And Anr 1982 AIR 710
- S.R. Bommai v Union of India, (1994) 3 SCC 1.
- [Sakshi SarohaUpdated:Nov 24, Indian constitution: What is Article 356? Jagranjosh.com (2021), https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Nov 5, 2022).
- Sakshi SarohaUpdated:Nov 24, Indian constitution: What is Article 356? Jagranjosh.com (2021), https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Nov 6, 2022).
- Admin (2022) Article 356: President's rule: UPSC polity & governance notes, BYJUS. BYJU'S. Available at: https://byjus.com/free-ias-prep/article-356/ (Accessed: November 1, 2022).
- S.R. Bommai v Union of India, (1994) 3 SCC 1, 219.
- Sarkaria Commission Report on Center-State Relations 1988 (no date) Scribd. Scribd. Available at: https://www.scribd.com/document/235899347/Sarkaria-Commission-Report-on-Center-State-Relations-1988 (Accessed: October 25, 2022).
- Sarkaria Commission Report on Center-State Relations 1988 (no date) Scribd. Scribd. Available at: https://www.scribd.com/document/235899347/Sarkaria-Commission-Report-on-Center-State-Relations-1988 (Accessed: October 25, 2022).
- D.R.S. et al. (2022) President rule under Article 356 - a constitutional instrument to misuse power, iPleaders. Available at: https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/ (Accessed: November 4, 2022).
- D.R.S. et al. (2022) President rule under Article 356 - a constitutional instrument to misuse power, iPleaders. Available at: https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/ (Accessed: November 4, 2022).
- Sakshi SarohaUpdated:Nov 24, Indian constitution: What is Article 356? Jagranjosh.com (2021), https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Nov 5, 2022).
- Rameshwar Prasad v State of Bihar, AIR 2006 SC 980.
- D.R.S. et al. (2022) President rule under Article 356 - a constitutional instrument to misuse power, iPleaders. Available at: https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/ (Accessed: November 12, 2022).
- S.R. Bommai v Union of India, (1994) 3 SCC 1, 219.
- Sakshi SarohaUpdated:Nov 24, Indian constitution: What is Article 356? Jagranjosh.com (2021), https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Nov 5, 2022).
- D.R.S. et al. (2022) President rule under Article 356 - a constitutional instrument to misuse power, iPleaders. Available at: https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/ (Accessed: November 8, 2022).
- Reddi Govinda Rao v. State of Andhra Pradesh, 2020 SCC OnLine AP 961.
- Joseph, J.V. and Reddy, K.J. (2004) Executive discretion and Article 356 of the Constitution of India: A Comparative Critique, SSRN. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=533063 (Accessed: November 10, 2022).
- Admin (2022) Article 356: President's rule: UPSC polity & governance notes, BYJUS. BYJU'S. Available at: https://byjus.com/free-ias-prep/article-356/ (Accessed: November 7, 2022).
- Article 356 - president's rule (no date) Article 356 President's Rule. Available at: https://www.legalserviceindia.com/legal/article-4367-article-356-president-s-rule.html (Accessed: November 7, 2022).
- Article 356 - president's rule (no date) Article 356 President's Rule. Available at: https://www.legalserviceindia.com/legal/article-4367-article-356-president-s-rule.html (Accessed: November 7, 2022).
- Article 356 - president's rule (no date) Article 356 President's Rule. Available at: https://www.legalserviceindia.com/legal/article-4367-article-356-president-s-rule.html (Accessed: November 12, 2022).
- What is Article 356? (2019) The Indian Express. Available at: https://indianexpress.com/article/what-is/what-is-article-356-presidents-rule-imposition-5838367/ (Accessed: November 12, 2022).
- D.R.S. et al. (2022) President rule under Article 356 - a constitutional instrument to misuse power, iPleaders. Available at: https://blog.ipleaders.in/president-rule-article-356-constitutional-instrument-misuse-power/ (Accessed: November 6, 2022).
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