B.B.A. L.L.B (Hons.

Final Draft

Constitutional Law- II

Research Project Topic: Misuse of Article 356

Submitted by:

Vanshika Gupta

SY BBA LLB (Hons)

Roll no. :A052

vdoshar@gmail.com

Submitted to:

Prof. Anu Mishra

School of Law,

NMIMS (Deemed to be University)

Content

1. Introduction

2. Review of Literature

3. Research Objective

4. Genesis and development of Article 356:

a) The Govt. of India Act, 1935
b) Drafting Committee of Constitution,
c) Sarkaria Commission Report, 1987
d) S.R. Bommai v. UOI

5. Misuse of Article 356 (President’s rule)

6. Conclusion

7. Bibliography
Introduction
India is not purely federal. When we compare it with federalism which is in America, India's
federalism is similar and distinct to the federalism of America at the same time. Unlike America,
it is a distributed entity that derives its power from a single source - the Union. Sovereignty and
the powers of governance are distributed and shared by several entities and organs within the
Indian constitutional system.1 India is a federation but with unitary bias, this is how one would
describe Centre-state relations of India. Unitary bias is always present in India but, in times of
emergencies, Centre have these extraordinary powers over all the states. In case of State
emergency, when the state government fails to function as per the Constitution, state comes
under direct control of the central government. The Indian Constitution has strong centralizing
features. Article 356 empowers the central government to dismiss elected state governments and
impose direct rule in the states. The framers of the Constitution had hoped that this emergency
provision would be used as a last resort, invoked only if the constitutional machinery in a state
had failed.2

Article 356 is one among the nine Articles, beginning from Art. 352 and ending with Art. 360,
known as Emergency Provisions, enumerated in Chapter XVIII of the Constitution. Art. 356 was
introduced as Draft Article 278, on August 3, 1949 by the then Union Law Minister, Dr. B.R.
Ambedkar, in the Constituent Assembly, and was cleared by it the subsequent day.3Article 356 is
one of the major tools in the hands of the Union Government enabling it to check any disruptive
and separatist tendencies in their infancy. In order to keep our unique Federal system with its
strong Unitary features in fact this potent medicine cannot be dispensed with.4

1
National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the
Constitution, II, ¶ 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b25.htm
2
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p. 177
[Hereinafter Constituent Assembly Debate].
3
Hande, H.V., Limitations of Article 356, THE HINDU, May 6, 2003 as available on
http://www.hindu.com/thehindu/op/2003/05/06/stories/2003050600010200.htm (Last visited on 1/3/16)
4
Prasad, Janardhan, ARTICLE 356 of the Constitution of India, JANARDHAN PRASAD D V S as available on
http://www.janardhanprasaddvs.com/article-356.html (Last visited on 1/3/16)
Article 3565 of the Constitution was most keenly discussed and debated in the Constituent
Assembly. The Founding Fathers apprehended that, if and when it would be misused, it would
violate not merely the federal character of the polity envisaged by them but also make a mockery
of democratic principles. It seems that they were very much sure that the provision of the article
would not be used to strengthen the corporative federalism.6

5
G. AUSTIN, THE INDIAN CONSTITUTION — CORNERSTONE OF A NATION, (Delhi: Oxford University Press), 1999,
p.187; See WHEARE, K.C., MODERN GOVERNMENT, (United Kingdom: Oxford University Press), 1971, p.18; See
JENNINGS, G., SOME CHARACTERISTICS OF THE INDIAN CONSTITUTION, (Oxford University Process), 1953 ,p. 55;
6
CONSTITUENT ASSEMBLY DEBATE
Review of Literature
 Positive power of Article 356 (President’s rule) in Indian Constitution for the
Protection of Unity of India written by Sri A. Ratnavelu (2006) 1 LW (JS) 41 talks about
the historic two pronouncements in Bommai’s case and Rameshwar Prasad case on
promulgation of Presidential rule under Article 356 have heralded the Supremacy of our
Constitution and at the same time, put an end to the scramble of some quarters against the
positive role of Article 356 under the garb of ‘federal’ in Indian Constitution. There have
been political ravings from one Section for scrapping the Article 356 (Promulgation of
Presidential Rule on State) on the ground that 356 was grossly misused in our
Constitution. The main thrust of such populist slogan is that, the Centre is a ‘Federal’
Government and each ‘Unit’ is sovereign in its sphere in our Indian Constitution. In this
context, the term ‘Federal’ or ‘Federation’ has to be analysed rationally with the
amplitude of the position of ‘Union’ in our constitution and the nature of term ‘federal’
Centre in our Indian Constitution, and other democratic States viz., USA, Canada, and
Australia.
 Changing face of Article 356- Judicial Zeal and Jerk written by Dr. Arvind P.
Bhanu, 2010 PL Feb 8 says that Article 356 of the Constitution was most keenly
discussed and debated in the Constituent Assembly. The Founding Fathers apprehended
that, if and when it would be misused, it would violate not merely the federal character of
the polity envisaged by them but also make a mockery of democratic principles. It seems
that they were very much sure that the provision of the article would not be used to
strengthen the corporative federalism but it would be used in resolving the ministerial
crisis in the State. As observed by Shiban Lal Saxena “… I feel that by these articles we
are reducing the autonomy of the States to a farce. These articles will reduce the State
Governments to great subservience to the Central Government. But what could they do,
they placed a hope in an apologetic manner that” … “[the] articles will never be called
into operation and that they would remain a dead letter”. Here, it has to be seen in the
context of hope of “rarest of the rare” use, that Article 356 has been used more than 120
times, calculating an average more than two times in a year. These two recent judgments
of the Supreme Court in Jagdambika Pal and Rameshwar Prasad are the reflections of
the judicial progress which in turn are a proof of the contribution in constitutional
 jurisprudence. The theory deducted by way of construction of the Constitution has been
an instant need of Indian constitutional system. The President and Parliament are found
short in protecting the constitutional misuse for political purposes. It is now expected that
the judicial weapon can preclude from abusing the provisions of the Constitution which
have colourably been interpreted with their own line by the politicians.

The theory of “satisfaction and the existing satisfaction” with reference to “advice” under
Article 74(2) evolved in State of Rajasthan case, through Bommai case has acquired
more democratic light in Rameshwar Prasad case by adopting the approaching that
“subjective satisfaction is subjectivity by objectivity”. However, it cannot be said that the
challenging of President's Rule equates with those of administrative actions because of
constitutional provisions.

 Article 356: A Binding Force for the Unity of India in Our Constitution written by Mr. A.
Ratnavelu, (1999) 2 LW (JS) 21, talks about the safeguards on the use of Article 356 that
the 44th Amendment devised the safeguards against the misuse of Article 356 in the
following manner:

i) The proclamation in the first instance would be in force only for six months on the
approval of the Parliament by way of resolution.

ii) State Emergency can be continued only for 6 months more by the approval of the
Parliament.

iii) It can be extended beyond one year only in the case of Emergency under Article 352
in force in the whole India or in the State concerned.

iv) The Proclamation under Article 356 can be extended on the basis of the Certificate
issued by the Election Commission as to the difficulties in holding a general election to
the State Assembly.

The decision in Bommai's case in A.I.R. 1994 SC 1918 is a historic one which has opened not
only a new horizon in respect of the use of Article 356 particularly, but also formulated the
‘safeguards’ against the misuse of Article 356, elegantly. The Apex Court examined the aspects
relating to the basic structures of Indian Constitution, the nature of ‘Constitutional break-down’
in a State and the position of the relationship between the Centre and the States with the
reference to the American Constitution vividly. For example:—

i) In page 1924, Imposition of President Rule — Ruling Party in State facing overwhelming
defeat in Election to Lok sabha — Not a ground to impose President's Rule in State.

ii) Restoring to Article 356 to get rid of State Government solely on the ground that different
political Party has come to power at Centre — Not permissible.
iii) In page 1928, Dissolution of Assembly — Not to be before the Proclamation under Article
356 is approved by Parliament-till approval President can only suspend the Assembly.

(The recent episode relating to the restoration of Rabri Devi's Government from the
President's Rule under Article 356 in Bihar State, has to be noted in this context).

iv) FLOOR TEST — (page 1930) — Withdrawal of support to Ministry, by some Legislators
Governor must before sending his report to President recommending action under Article 356,
hold Floor Test.

v) Judicial Review — (1931–1933) — The Proclamation under Article 356 is not immune
from Judicial Review.

iv) The Supreme Court or High Court can strike down the Proclamation if it is found to be
malafide or based on wholly irrelevant or extraneous ground.

Article 356 is a cynosure in the annals of Constitutional history since it protects the
“Constitutional Machinery” in a State in this Quasi Federal Structure irrespective of the political
parties in power at the Centre or the State in India.

The framers of our Constitution analyzed the ethos of Indian Society and the Centrifugal forces
working in India since dawn in history. That is why the term ‘Federal’ has not been incorporated
in Article 1 of our Constitution with the intention of preserving the unity and integrity of the
Nation, against the fissiparous tendencies and the centrifugal forces.

Such being the position, ‘Article 356’ is a binding force that has been engineered for protecting
the Constitutional Machinery and the Unity of India. So, ‘Article 356’ has to be preserved in our
Constitution forever with the safeguards as formulated in Bommai's case supra.
Research Objective
 The objective of this research is to throw light on misuse of Article 356 in India by the
central government.
 My objective is also to talks about how the misuse of this article has gone down with the
help of few contemporary examples.

Genesis and development of Article 356

a. THE GOVERNMENT OF INDIA ACT 1935

This Act first introduced the concept of 'Division of Powers' in British India. It was an
experiment where the British Government entrusted limited powers to the Provinces. But since
there was very little faith lost between the British and the Indian people, the British took
precautions to keep a sufficient check on the powers given to the Provinces. These precautions
were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where
the Governor General and the Governor, under extraordinary circumstances, exercised near
absolute control over the Provinces.7

b. DRAFTING COMMITTEE OF THE CONSTITUENT ASSEMBLY

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the
chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the
course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635
amendments tabled.8

When it was suggested in the Drafting Committee to confer similar powers of emergency as had
been held by the Governor-General under the Government of India Act, 1935, upon the
President, many members of that eminent committee vociferously opposed that idea. Dr.
Babasaheb Ambedkar then pacified the members stating:

“In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday that the
proper thing we ought to expect is that such articles will never be called into operation and that

7
NCWRC
8
First Day in the Constituent Assembly, as available on http://parliamentofindia.nic.in/debates/facts.htm (last
visited March 5th, 2016).
they would remain a dead letter. If at all they are brought into operation, I hope the President,
who is endowed with these powers, will take proper precautions before actually suspending the
administration of the provinces.”

He added: “I hope the first thing he will do would be to issue a clear warning to a province that
has erred, that things were not happening in the way in which they were intended to happen in
the Constitution.”9

By virtue of this earnest advice given by the prime architect of the Indian Constitution, we can
safely conclude that this is the very last resort to be used only in the rarest of rare events. A good
Constitution must provide for all conceivable exigencies. Therefore this Article is like a safety
valve to counter disruption of political machinery in a State.

c. THE SARKARIA COMMISSION REPORT,1987

In spite of the precautions laid down in Article 356, the Article was invoked on several occasions
by the Centre due to ambiguities in its wording. It was only in 1987 when the Sarkaria
Commission submitted its report that part of the obscurity surrounding Article 356 was cleared.

The Sarkaria Commission recommended extremely rare use of Article 356. The Commission
observed that, although the passage, '. . . the government of the State cannot be carried on in
accordance with the provisions of this Constitution . . .' is vague, each and every breach and
infraction of constitutional provisions, irrespective of their significance, extent, and effect,
cannot be treated as constituting a failure of the constitutional machinery. According to the
Commission, Article 356 provides remedies for a situation in which there has been an actual
breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power
would damage the democratic fabric of the Constitution. The report discourages a literal
construction of Article 356(1).10

The Commission decided that Article 356 should be used sparingly, as a last measure, when all
available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in

9
NCWRC
10
The Sarkaria Commission Report, (1987).
a State. Before taking recourse to the provisions of Article 356, all attempts should be made to
resolve the crisis at State level.

The report further recommended that a warning be issued to the errant State, in specific terms
that it is not carrying on the government of the State in accordance with the Constitution. Before
taking action under Article 356, any explanation received from the State should be taken into
account. However, this may not be possible in a situation in which not taking immediate action
would lead to disastrous consequences. In a situation of political breakdown, the Governor
should explore all possibilities of having a Government enjoying majority support in the
Assembly. If it is not possible for such a Government to be installed and if fresh elections can be
held without delay, the report recommends that the Governor request the outgoing Ministry to
continue as a caretaker government, provided the Ministry was defeated solely on a major policy
issue, unconnected with any allegations of maladministration or corruption and agrees to
continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of
the constitutional crisis to the electorate. During the interim period, the caretaker government
should merely carry on the day-to-day government and should desist from taking any major
policy decision. Every Proclamation of Emergency is to be laid before each House of Parliament
at the earliest, in any case before the expiry of the two-month period stated in Article 356(3).

The State Legislative Assembly should not be dissolved either by the Governor or the President
before a Proclamation issued under Article 356(1) has been laid before Parliament and the latter
has had an opportunity to consider it. The Commission's report recommends amending Article
356 suitably to ensure this.26The report also recommends using safeguards that would enable the
Parliament to review continuance in force of a Proclamation.

The Governor's Report, which moves the President to action under Article 356, should be a
'speaking document, containing a precise and clear statement of all material facts and grounds on
the basis of which the President may satisfy himself as to the existence or otherwise of the
situation contemplated in Article 356.' The Commission's report also recommends giving wide
publicity in all media to the Governor's Report.
d. S. R. BOMMAI V. UNION OF INDIA

S. R. Bommai v. Union of India was a landmark in the history of the Indian Constitution. It was
in this case that the Supreme Court boldly marked out the paradigm and limitations within which
Article 356 was to function. 'After the Supreme Court's judgment in the S. R. Bommai case, it is
well settled that Article 356 is an extreme power and is to be used as a last resort in cases where
it is manifest that there is an impasse and the constitutional machinery in a State has
collapsed.'11Supreme Court set out in the case of S.R Bommai v. Union Of India the limitations
of Article 356. The Court said any Presidential order clamping Art. 356 had to be ratified by both
the Houses of Parliament. In addition, the powers of the Judiciary to review the bona fide or
mala fide nature of the Presidential order were reiterated.

What Bommai12 did was to lay down certain guidelines and certain standards in exercising power
under Article 356. In fact, it is the case where we elucidated the meaning of the Article,
consistent with the spirit of the Constitution and the background in which the Article was
enacted. It was brought to the notice of the Supreme Court, and it was an undeniable fact, that
the Article was used indiscriminately, or misused as one may call it, on a number of occasions,
before the judgment in the Bommai case. Even at that time, it was said that on more than 90
cases, the power was exercised; and in most of the cases, it appeared to be of doubtful
constitutional validity.

That power was exercised to dismiss the State Governments controlled by a political party
opposed to the ruling party at the Centre. The Supreme Court wanted to introduce certain clarity
to regulate the power, by defining the power, by laying down standards according to which the
power is to be exercised.

Since the judgment of the Supreme Court becomes the law of the land, it is obvious that the
Central Government is bound by the judgment. It is therefore clear that after the Bommai case,
the governments have been more careful, more on guard, more wary of exercising this power,
lest their exercise should be set aside by the Courts.

11
Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996.
12
Bommai Case
As we all know, in the case of the dismissal of the Uttar Pradesh Government, the proclamation
by the President was set aside by the Allahabad High Court following the Bommai judgment.
But for the Bommai judgment, it is obvious the High Court could not have set aside the order of
the President. That is the difference between pre-Bommai and post-Bommai.13

13
Jeevan Reddy, B.P., Bommai verdict has checked misuse of Article 356, FRONTLINE, 15(4) as available on
http://www.frontline.in/static/html/fl1514/15140220.htm (Last visited on 10/3/16)
Misuse of Article 356 (President’s rule)
Article 356 deserves to be abrogated. The founding fathers were under the impression that this
provision would be used only in the rarest of rare cases, that it would be virtually a sword which
would never be taken out of its sheath, except in a flagrant case under Article 365. This latter
Article states that if any particular State defies a Central direction validly given, it shall be lawful
for the President that is the Cabinet, to hold that the government of the State cannot be carried on
in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation
arises, Article 356 may be attracted. But the Court will go into the question whether the direction
given by the Union to the State was itself valid. Only in a case of such valid direction within the
competence of the Union being ignored by the State, can Article 356 come into operation. In
over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a
legitimate use of Article 356. If the temptation to use this presidential power is perennial, as is
seen by its continual abuse, the time has come for a change in constitutional perspective. In
short, Article 356 should be kept in cold storage, or even formally abolished.31 Justice V.R.
Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and
original constitutional thinkers since Independence. In an interview32, he opined that, “Before
the Bommai decision was rendered, the constitutional position was understood to mean
excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now the law
is clear that it is possible for the court, it is proper for the judges, to examine whether the relevant
power has been misused in the sense that it is arbitrary, mala fide or such that there is no
reasonable material to support such a conclusion as the breakdown of the Constitution. Indeed it
must be acknowledged that even the Pakistan Court has taken a somewhat similar, view, even
earlier than the Indian Court. Now, therefore, it is clear that reckless exercise of Article 356
power will meet with its Waterloo in the Court.”

The daring way in which the AIADMK is demanding the dismissal of the DMK Ministry in

Tamil Nadu under Article 356 shows that political terrorism is apt to overpower constitutional
propriety. What is still more shocking is that the AIADMK alleges an earlier agreement with the
BJP that, if the latter came to power, President's Rule would be imposed in Tamil Nadu.
This very statement is sufficient to hold that any exercise of Article 356 by the Centre is utterly
untenable.

The Sarkaria Commission has condemned the exercise of Article 356 power as almost always
motivated or induced by extraneous considerations. It is time Article 356 power was handcuffed
in the way Sarkaria has suggested, although personally I might go further to hold that only after
Parliament passes a resolution in both Houses should President's Rule be used against a State.
Why? Because it is a sabotage of federalism to usurp State power by the Centre and such a grave
frustration of the basic structure of the Constitution needs strong limitations to be put on the
exercise of the power. So it is that I demand a prior resolution by both Houses as a check on
14
misuse. The Bommai ruling is a severe warning to the Union Government. It must be open to
the affected or intimidated State to move the Supreme Court by a quia timet action to stay hasty
intervention in case there is clear indication of such a proposed action. It must be remembered
that the State Cabinet is answerable to the State legislature and so long as it commands its
confidence the pleasure of the Governor is a mere constitutional euphemism. The powers of the
Governor as well as of the President have been explained at some length in Shamser Singh's
case15. The President as well as the Governor are bound by the Cabinet's advice and to act in
excess of such advice is to violate the Constitution and invite the Court's interdict.

Demands by regional or even national parties to overthrow State-level democracy under Article
356 cannot be acceded by the Centre. This is not a matter of political vendetta or hostility or
estrangement. Constitutional values must regulate the President's conscience when exercising
Article 356 power. Noises made by regional parties or others cannot affect the voice of the
Constitution. This applies to the Tamil Nadu party's demand as well as the clamour made against
the West Bengal Government.16

The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial figure

as the head of the State and has solemn functions in that capacity. Some of them are really
effective powers. As a rule, the Governor is bound by the advice of his Cabinet. He cannot be

14
S.R. Bommai v. Union of India, (1994) 3 SCC 1
15
Shamsher Singh v. State of Punjab, 1974 AIR 2192
16
KHANNA, H.R.
Janus-faced, looking in both directions. He cannot be a Central spy or an agent to carry out the
Union's mandate.

Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to the
State Cabinet, he can be a pathetic functionary sometimes asked to perform pathetic measures by
the Centre. He has to be an independent authority, his allegiance being wholly to the
Constitutional obligations to act on the advice of the Council of Ministers. He may, as in
England, caution, encourage, or otherwise give advice, but ultimately must abide by his Cabinet's
recommendation for action. That is why sometimes it has been said that a Governor is a glorified
cipher. So is the President.

But this is not wholly true. They have power to ask for information, explanation and
reconsideration. Wisely used, these functions plus the power to refer Bills to the President, for
consideration and assent, may make the Governor a factor to be reckoned with. So it can be said
that the Governor is more than a glorified cipher. He reigns, but does not rule. He advises, but is
bound by the advice of his Ministers. He is an elder statesman but not an authority as the
executive head of the State. Such is the delicate constitutional balance.
Conclusion
It is evident from this study that Article 356, which was 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, President’s 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 clear that states have now evolved into strong entities and are capable of governing
themselves politically. This is not to say there will always be good governance. For that matter,
one can point out instances of bad governance in the central government too. It is not just the
state institutions but the Central institutions that have failed in many respects. We need to
develop proper safeguards against misuse of state power and that is a process that must go on
continuously. It is evident that there is a lack of effective safeguards against the abuse of Article
356 of the Indian Constitution. The safeguard of 'parliamentary approval' - outlined in Article
356(3) - of a Proclamation under Article 356(1) could be biased because the Party that is in
power at the Center generally dominates Parliament by a majority vote. Furthermore, even a vote
in Parliament declaring a particular imposition (or failure to impose) of President's Rule to be
wrongful cannot undo the damage already done. Though, in Article 356 (3), a safeguard of
"parliamentary approval" is mentioned but Proclamation under Article 356(1) could be biased as
party who is at the center, generally dominates the will of the Parliament because of the majority
and because of this, abuse of Article 356 is still very much prevalent. the role of the central
government is still the same but the arbitrariness has gone down.

It is quite clear that power under Article 356 has been misused due to vagueness of the
expression “failure of constitutional machinery”. If there is a constitutional breakdown in a state,
the remedy lies in going to the people and seeking a fresh mandate and not in the Centre
assuming the powers of the state authorities. This will also make the legislators, particularly the
defectors more responsible. After all, when there is a national emergency, the President does not
assume the powers of the central government or parliament. There is no need to apply a different
norm at the state level. Dr. Ambedkar himself affirmed that the states are supreme, ‘sovereign’ in
the field allotted to them and in our system no single entity can claim superiority. Ours is a
federation and as pointed out by several constitutional scholars, it is only the spirit of
‘cooperative federalism’ that can preserve the balance between the Centre and the states.
Bibliography
 Positive power of Article 356 (President’s rule) in Indian Constitution for the Protection
of Unity of India written by Sri A. Ratnavelu, (2006) 1 LW (JS) 41
 Changing face of Article 356- Judicial Zeal and Jerk written by Dr. Arvind P. Bhanu,
2010 PL Feb 8
 Article 356: A Binding Force for the Unity of India in Our Constitution written by Mr. A.
Ratnavelu, (1999) 2 LW (JS) 21
