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Article 356 of the Constitution: A Critical Analysis about:reader?url=http://lex-warrier.in/2014/04/article-356-constitution-...

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Dr. Seema Sharma, Assistant Professor, MMH College, Ghaziabad, UP, India

Article 356, which empowers the President to impose Presidents rule in the
States, has been in controversy right from its inclusion in the Constitution. Article
356 incorporated in the Constitution of India gives the President, the power to
impose Presidents rule in States, where he, on receipt of a report from the
Governor of a 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. This is an emergency provision where the Union
Government may extend its powers into domains normally reserved for the
States. Both houses of the Parliament must ratify this proclamation: failure to do
this would result in the proclamation expiring in two months. If the proclamation
is ratified, it cannot last beyond six months. The use of the word otherwise,
which was not included in the original draft, has received a lot of flak over the
years, as it makes the President more susceptible to pressure from those in power.

Since independence this Article has been flagrantly misused on numerous


occasions to suit the purposes of a dominant Centre. There has been a constant
demand from different parties to scrap this provision. This paper is an endeavor
to discover the answer of the question: whether Article 356 should be scrapped?

Historical Background

Doubts and fears were expressed in the Constituent Assembly that this power in
the hands of the Chief Executive might be misused by the Centre against the
States for partisan ends when the parties governing the Centre and the States
would be different. Prof. Shibban Lal Saxena felt that by these Articles, the
autonomy of the States had been reduced to a farce1.Pandit H.N. Kunzru
maintained that the instability resulting from a large number of political groups
in a State Legislature would not justify Central intervention. Dr. Ambedkar

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hesitantly admitted to the possibility of the emergency provisions being employed


for political reasons by stating:

The proper thing we ought to expect is that such article will never be called into
operation and that they would remain a dead letter2.

Article 356 in Practice

In Indian politics the period until 1967 has been described as the period of one
dominant party system. During this period the imposition of Presidents rule
was not frequent. The reason was that by and large the ruling party at the Centre
and in the States was the same and this act ensured that the tensions arising
between them could very often be resolved through the mechanism of the party
set up. There was a sharp rise of these occasions from 1967 onwards. The fourth
General Elections saw the emergence of a multiparty polity ending the Congress
monopoly of power. There was a sea change in the political scene. Coalition
ministries were formed in a number of States for the first time. Many of them
were unstable being based on convenience rather than principle. From here began
the saga of frequent misuse of Article 356 for political ends thereby disturbing the
federal structure of our Constitution and endangering democracy in our country.

The provision, which was thought of as a safety-valve, proved to be a political


weapon of the Centre against the States. The provision, which was intended to be
a dead letter, has proved to be a death letter for a number of State
Governments. Different grounds, which were never thought of by the framers of
the constitution, have been used for the imposition of Presidents rule in the
States to suit the political interests of the party in power at the Centre. Every party
plays the game at its pleasure: when in opposition, ask for the amendment or
abrogation of Article 356 and when in power at the Centre, misuse the power for
political ends. Presidents rule has been imposed in the States mainly on the
following grounds:

Breakdown of law and order.

Where no ministry could be formed.

Political instability as a result of defections.

Popular agitation against the ministry.

Complete paralysis of the State Administration.

Corruption and mal-administration.

To end party rivalry.

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To prevent or facilitate the bifurcation of the State.

Pending elections in newly created States.

Where the State government belongs to a party which has suffered an


overwhelming defeat in the election to the Lok Sabha.

Where a State government works against secularism.

It is submitted that the grounds (vii) and (x) are totally unjustified. Losing the
Central election does not per se amount to a situation where it could be concluded
that the State government has lost the mandate of the people of that State. The
State government should complete its full term if it is administering the State
properly. Grounds (ii), (iii), (ix) and (xi) are totally justified. In other cases it is
for the President to be satisfied whether the situation is so grave leading to the
breakdown of the constitutional machinery.

Failure of Constitutional Machinery in a State

The crux of the problem is that the Constitution has not specified the
circumstances, which can be construed to mean, The failure of the constitutional
machinery in the State. The expression had been left unexplained during its
inception in the Constitution. Dr. Ambedkar on being asked by Pandit Kunzaru
about the meaning of this expression, had left it undefined vaguely by comparing
it the Government of India Act, 19353.This answer of Dr. Ambedkar according to
Seervai is an evasion of the difficulty pointed out by Pandit Kunzru. A heavy price
had to be paid for this evasion in the years to come4, it seems that by not giving
any explanation about the meaning of this phrase, Dr. Ambedkar intended to keep
it vague.

Shri Santhanam in the Constituent Assembly had tried to categorize this


expression into physical breakdown, political breakdown and economic
breakdown5. The Sarkaria Commission has categorized this under the following
heads6.

Political crisis.

Internal subversion.

Physical break-down.

Non-compliance with constitutional directions of the Union Executive.

To Scrap it or retain it: Mixed Reactions

Frequent misuse of this Article in ousting the peoples elected governments, of the

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opposition parties, have generated arguments to scrap this Article from the
Constitution. The Rajamannar Committee appointed by the Government of Tamil
Nadu in 1969 and the Resolution adopted by West Bengal in 1977 had suggested
the deletion of this Article. But the Sarkaria Commission did not recommend its
deletion but said that the Article 356 should be used very sparingly and as a
measure of last resort in case of genuine breakdown of Constitutional machinery
in a State7.The National Commission to Review the Working of the Constitution
(NCRWC) in 2002 also reiterated the findings of the Sarkaria Committee, saying
that Article 356 could not be deleted but the state should be allowed to offer an
explanation and the governors report should be a speaking document,
containing an unbiased lucid view of the facts. It only recommended a
constitutional amendment concerning non-dissolution of the state assembly until
the proclamation is approved by Parliament.

Judicial Review

Judiciary now has assumed an important role to check the misuse of this
provision. Prior to the case of State of Rajasthan v. Union of India8,the High
Courts were of the view that there could be no judicial review of the satisfaction of
the President. In this case, one of the crucial questions which the court had to
answer related to the political question doctrine. It was argued that having
regard to the political nature of the problem, it was not amenable to judicial
review and the court must abstain from inquiring into the same. The leading
judgment of Bhagwati and A.C. Gupta, JJ. categorically rejected the contention
and held:

[M]erely because a question has a political complexion, that by itself is no


ground why the court should shirk from performing its duty under the
Constitution if it raises an issue of constitutional determination merely because
a question has a political colour, the court cannot fold its hands in despair and
declare judicial hands off.

The learned judges further observed that the satisfaction of the President is a
subjective one and cannot be tested by reference to any objective tests. But this
does not mean that the judges totally abandoned the idea that the exercise of
these powers could be subject to judicial review. Bhagwati, J. observed that if the
satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds,
the court would have jurisdiction to examine it.Imposition of Presidents rule in
the State of Karnataka on April 21, 1989 was challenged before the Karnataka
High Court in S.R Bommai v. Union of India9. The Presidential satisfaction was
based on the Governors report and on other information. The Full Bench held
that Proclamation made under Article 356 of the Constitution was justiciable, and

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that the courts could look into the materials or the reasons disclosed for issuing
the Proclamation to find out whether those materials or reasons were wholly
extraneous to the formation of the satisfaction and had no rational nexus at all to
the satisfaction reached under Article 356 of the Constitution.

In the case of S.R. Bommai v. Union of India10,the Apex Court has finally settled
the position. The Court took note of the Sarkaria Commissions Report,
regarding the situations which will not warrant resort to Article 356.Some of
them are as follows:

1. A situation of maladministration in a State where a duly constituted Ministry


enjoys majority support in the Assembly.

2. Where a Ministry resigns or is dismissed on losing its majority support in the


Assembly and the Governor recommends imposition of Presidents rule without
exploring the possibility of installing an alternative government..

3. Where, a Ministry which has not been defeated on the floor of the House, the
Governor declines to dissolve the Assembly and without giving the Ministry an
opportunity to demonstrate its majority support though the floor test,
recommends its suppression and imposition of Presidents rule merely on his
subjective assessment

4. Where in the General Elections to the Lok Sabha, the ruling party in the State,
has suffered a massive defeat.

5. Where in a situation of internal disturbance, not amounting to or verging on


abdication of its governmental powers by the State Government, all possible
measures to contain the situation by the Union in the discharge of its duty, under
Article 355, have not been exhausted.

6. Where no prior warning or opportunity is given to the State Government to


correct itself in cases where directives were issued under Article 256, 257, etc.

7. Where the power is used to sort out internal differences or intra-party problems
of the ruling party.

8. Where there are serious allegations of corruption against the Ministry.

9. Where there are only stringent financial exigencies of the State.

In the Bommai judgment the scope of Article 356 was discussed at length some of
the conclusion of the judgment are as follows:

The Proclamation under Article 356 is not immune from judicial review. The
Supreme Court or the High Court can strike down the Proclamation if it is found
to be mala fide or based on wholly irrelevant or extraneous grounds.

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Article 74(2) bars judicial review so far as the advice given by the Ministers is
concerned, it does not bar scrutiny of the material on the basis of which the advice
is given.

If a State Government works against secularism, Presidents rule can be imposed.

Strength of the ministry should be tested on the floor of the House,


which is the sole constitutionally ordained forum. The assessment of
the strength of the Ministry is not a matter of private opinion of any
individual, be he the Governor or the President.

Though the power of dissolving of the Legislative Assembly could be said to be


implicit in clause (1) of Article 356, it must be held, having regard to the overall
constitutional scheme, that the President shall exercise it only after the
Proclamation is approved by both the Houses of Parliament under clause (3) and
not before. The dissolution of the Legislative Assembly is not a matter of course.
It should be resorted to only where it is found necessary for achieving the
purposes of the Proclamation.

In an appropriate case and if the situation demands, the High Court/Supreme


Court can also stay the dissolution of the Assembly but not in such a manner as to
allow the Assembly to continue beyond its original term.

If the Court strikes down the Proclamation, it has the power to restore
the dismissed Government in office and revive and reactivate the
Legislative Assembly wherever it may have been dissolved or kept
under suspension. In such a case, the Court has the power to declare
that the period the Proclamation was in force shall remain unaffected
and be treated as valid.

Ramaswamy, J. dissenting with the majority observed that there is no express


provision in the Constitution to revive the Assembly dissolved under the
Presidential Proclamation or to reinduct the removed Government of the State.
He further observed that the political parties must seek a fresh mandate from the
electorates and establish their credibility by winning majority seats. The
possibility of reinduction creates functional hiatus.

Seervai supported11the dissent of Ramaswamy, J.,while Soli Sorabjee favoured


the majority judgment. According to Sorabjee, the decision in the Bommai case
marks the high watermark of judicial review. It is a very salutary development
and will go a long way in minimising the Centres frequent onslaught on the
States12.

Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that

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Chief Minister Kalyan Singh Ministry had lost majority in the Assembly dismissed
him without giving him opportunity to prove his majority on the floor of the
House and appointed Shri Jagdambika Pal as the Chief Minister which was
challenged by Shri Kalyan Singh before the High Court which by an interim order
put Shri Kalyan again in position as Chief Minister. This order was challenged by
Shri Jagdambika Pal before the Supreme Court which directed a composite floor
test to be held between the contending parties which resulted in Shri Kalyan
Singh securing majority. Accordingly, the impugned interim order of the High
Court was made absolute13.

In the year 2005, the Governor of Jharkhand was ordered by the Supreme Court
for holding a floor test to determine which party/political alliance commanded a
majority in Jharkhand. The Court made it clear that the discretionary power
under Article 164(1) of the Governor is subject to judicial review. And the exercise
of such power can constitutionally be insured by conducting floor test. Thus, the
democratic principle propounded in Bommai case was again sounded in this case
and so as with Arjun Munda v. Governor of Jharkhand14.

Rameshwar Prasad and Others v Union of India15is the first of its kind
where even before the first meeting of the Legislative Assembly its dissolution had
been ordered on the ground that attempts were being made to cobble together a
majority by illegal means and to lay claim to form the government in the State.
The judgment concentrated on the Governors role and reiterated earlier
recommendations about the type of persons who should or should not be
appointed as Governors. It appeared to be too soft on the role of other players
particularly the Union Cabinet when it merely said: the Governor may be the
main player, but Council of Ministers should have verified facts stated in the
report of the Governor before hurriedly accepting it as a gospel truth as to what
Governor stated. So, in the facts and circumstances of the case the council of
ministers should have verified facts stated in the report of the governor before
hurriedly accepting it as a gospel truth. Clearly, the Governor has misled the
Council of Ministers And we might add that the Council of Ministers misled the
President. The Court held that in view of the election process was set in motion
and was at an advance stage, in the larger interest, it would not be proper to order
revival of a state assembly. Rameshwar Prasad case has reiterated the principles
enunciated in State of Rajasthan and Bommai case with more constitutional
conscience. The Court made it clear that Article 356 contains an emergency power
and this emergency power should be used not as normal power.

Concluding Remarks

It is evident from this study that a provision Article 356 which was

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incorporated in the Constitution for a noble cause of ensuring the governance in


the States according to the provisions of the Constitution has been frequently
misused by the parties at the Centre to achieve their political ends. The hopes and
expectations of Dr. Ambedkar that this provision would remain a dead letter are
belied and the apprehensions of many others have been proved true.Since the
coming into force of the Constitution of India on January 26, 1950, Presidents
rule has been imposed on more than 100 occasions and on all these occasions it
was seldom used and often misused. The Union Government has not adopted a
uniform pattern in accepting the causes and circumstances which may warrant
the invocation of Article 356. The expression failure of constitutional machinery
in the State has been liberally used by the parties at the Centre at their pleasure
taking undue advantage of the vagueness of this expression.

It is evident that there was divergence of views among judges about the issues of
interim relief and the re-induction of the dissolved assembly status quo ante. The
majority judgments came in the affirmative, contrary to the strong dissent of
Ramaswamy,J.

Regarding the floor test, the dissent of Ramaswamy,J. is worth mentioning. He


had observed that a floor test may provide impetus for corruption and rank force
and violence by musclemen or wrongful confinement or vocational capacity of
legislators.It is submitted that the only purpose of the floor test is to test the
majority in the legislature. It is not the sole test for negating the Presidential
Proclamation. The government in power may have majority support in the
legislature and yet there may be a breakdown of the constitutional machinery. In
Rao Birinder Singh case16, Presidents rule was imposed in Haryana in
November 22,1967.The dismissed government led by Rao Birinder Singh enjoyed
the majority support in the Assembly, but due to frequent defections the
administration of the State was totally paralysed. In the Bihar case, likewise, the
Rabari Devi Government enjoyed the majority support in the legislature, still the
Central government had recommended the invocation of Article 356 in the State
on September 22,1998. On the reiteration of the early recommendation of the
cabinet, Presidents rule was imposed in Bihar on February12, 199917. Similarly if
the State government does not comply with the direction or instructions from the
Centre issued under Article 257, there can be failure of constitutional machinery
in spite of the majority support in the legislature, thereby making fit case for the
invocation of Article 356.

It is crystal clear that power under Article 356 has been misused due to vagueness
of the expression failure of constitutional machinery. But at the same time, it is
not possible to limit the scope of action under Article 356 to specific situations as

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the failure of constitutional machinery may occur due to various causes all of
which cannot be foreseen or put in the strait jacket of a statute. It is difficult to
give an exhaustive list of all the situations. It is suggested that healthy
conventions should be developed for the proper use of Article 356 keeping in
mind the recommendations of Sarkaria Commission and Bommai judgment

I would conclude my paper by saying that, in the ultimate analysis, it is the men
and women, who work the law, who make it good or bad. I would say with Dr.
Rajendra Prasad on the day, the Constitution of India was adopted.

If the people who are elected are capable and men of character and integrity,
they would be able to make the best even of a defective Constitution. If they are
lacking in these, the Constitution cannot help the country. After all, a
Constitution like a machine is a lifeless thing. It acquires life because of the men
who control it and operate it, and India needs today nothing more than a set of
honest men who will have the interest of the country before them

It is not a good exercise to scrap a provision, which was inserted in the


Constitution after great deliberations with a noble perception. The best exercise is
to retain it and practice it with great caution as our Founding Fathers expected,
keeping in mind the interest of the people so as to ultimately benefit them, when
they are genuinely hampered by dysfunctional governance.

Article 356Constituent Assembly DebatesConstitutionDr. Seema


SharmaEmergencyemergency provisionFailure of Constitutional Machinery in a
StateJudicial Reviewpresident rulePresident's rule

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