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Emergency On Grounds Of Failure Of Constitutional Machinery In States: Article 356

The law and order situation of the country achieves smooth functioning when there is normalcy. In adversities such as internal disturbance, rebellion, external aggression or financial, administrative and constitutional crisis, the law in its basic form becomes just a dead letter. Thus, it becomes necessary for the constitution of any country to include certain measures in order to get the better of these circumstances.

"Under certain constitutions of a federal type, full powers are assumed by the federal government to combat external aggression or to overcome an internal catastrophe.[1]" The foreshadowing of these adverse conditions was very well understood and calibrated by the constitution framers of our country and hence the requisite provisions to cope up with such crisis were fully incorporated in the text of the law of the land.

The system of federalism was adopted by the constituent assembly with a powerful centre. The architects of the Indian Constitution had desired for a stout and firm centre and the rigidity of their concern could be adjudged from the fact that the word federation was not even included in writing of constitution. Various instruments were introduced in the constitution to have a check and to control the occurrences of various incidents that demean the very spirit of democracy. Article 356 or the state emergency is one such provision which can be termed as an emergency provision as its application is never seen under normal circumstances but only when the law and order situation is not up to the mark.

Article 356 is said to be designed similar to the Section 93 of the GoI Act, 1935. Under the ambit of the Section ninety three of GOI Act, 1935, if the provincial governor was of the view and satisfied that the governance in a certain province cannot be carried on due to the emergence of a situation that halts its continuity in consonance with the Act's provisions, the governor could, give to himself some or all of the provided powers, by way of proclamation vested in a provincial body that could also be exercised.

The functions performed by the erstwhile provincial body were now performed by the governor with his discretion. The Governor however was not entitled to invade the powers of the High Court, which was the only exception under Section 93 of the said act.

The difference between the section 93 and article 356 is the office bearer within whom such powers were vested. In the former, it was the governor while in the latter it is the president. The reason for adding these provisions was the socio-political experiences and knowledge of the fore-fathers, who framed the revered document, known as the constitution. They didn't want the security and stability of the nation to be taken for granted. Their belief was well contemplated upon and was a valid one, keeping in mind the diverse culture, and difference in political, ethnic and social life.

Arguments at the time of incorporation of Article 356
It is also evident from the constituent assembly debates that the inclusion of article 356 was not unanimous and several members challenged its addition, contending that this would give rise to imperial legacy. Dr B.R. Ambedkar ruled out these arguments by putting forth his own argument that as far as abuse of this provision (Article 356) is concerned, no provision of the constitution could be said to be free from such abuse. He was quoted as saying:

"In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain 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 province."[2]

The aforementioned speech of Dr Ambedkar clearly signifies that the inclusion of Article 356 was only as special provision as applicable under very exceptional circumstances. The intention of the British lawmakers while adding the Section Ninety Three to the Government of India Act, 1935 might have been of having a 'controlled or restricted democracy' but such a retrogressive concept was not visualized by the Indian lawmakers, as evident from the speeches of Dr B.R. Ambedkar, at least at the time of the making of the constitution.

Constitutional Provisions Related To State Emergency

In this chapter, the provisions related to state emergency and the related articles will be discussed at length. Article 356, in itself is a provision which is unique in itself, there is no similar provision in the constitutions of other countries. Any discussion regarding article 356 is incomplete without discussing article 355, whose underlying purpose is to make sure that the governance is being run in consonance with the provisions as mentioned in the constitution.

Article 355: "Duty of the Union to protect States against external aggression and internal disturbance[3]."

A two-fold duty on the centre is established by the virtue of article 355:
  • to safeguard every State from external aggression and internal disturbance; and
  • to check and verify that the government of every State is run in accordance with the Provisions as mentioned in the constitution.[4]
The constitution however does not expressly state the method to carry out such a duty against internal disturbance or external aggression, it is as per the judgment of the union as and when such situation arises. The manner in which the duty must be performed is, however, provided in article 356 in order to make a statement that the state governance is being carried on in accordance with the supreme written document to govern the law and order in a particular country.[5]

Article 356: Provisions in case of Failure of Constitutional Machinery in States.[6]
"If the President, on receipt of report from the Governor of a State or otherwise, is satisfied�the reference in this clause to any period beyond the expiration of two years."[7]

Article 365: Effect of failure to comply with, or to give effect to, directions given by the union.[8]
"Where any State has failed to comply with or to give effect�government of the State cannot be carried on in accordance with the provisions of this Constitution"[9]

Comparison between Article 356 and Section 93 of the Government of India Act, 1935
Although both section ninety three and Article 356 provide for suspension of constitutional machinery within the federating units, the two of them disagree within the following respects:
  1. Under section 93, the Proclamation regarding constitutional machinery failure was to, be declared by respected Governor with the confidence of the Governor General, on the other hand, under Article 356, the President makes the proclamation, instead of Governor.

    Though Article 356 is not the exact carbon copy of Section 93 of the Government of India Act 1935, the parallelism between these two documents is not merely incidental but of design.[1o]
  2. Under the erstwhile section of the 1935 Act, the declaration regarding the failure of constitutional machinery in the states cannot be passed solely by the governor without confidence of governor general whereas such a proclamation can be made by the president under article 356 on his own and even without considering the Governor's Report.
  3. In the issuance of such a proclamation, all the governmental powers and functioning responsibilities were assumed by the Governor in the former Act, whereas in Article 356, it is the president and not the governor who is responsible for the functioning and is also the one who is accountable to the parliament for the exercise of these powers.
  4. The Proclamation could continue for six months as under section 93 (unless President approves it) but without president's approval in case of Article 356, it can go on only for a duration of two months.
  5. The Proclamation once given a go ahead under Section 93, could be incessant for a period of twelve months from that very date on which it would not have been in function/order but as per Article 356 the Proclamation, if sanctioned by both the Lok Sabha and Rajya Sabha can go on for "six months" from the date of passing of the second one of the resolutions ascertaining the given proclamation.

Judicial Interpretation Of Article 356

  1. State of Rajasthan v. Union of India
    Party in Command at centre level, Congress was crushed within the elections for the Lok Sabha in the March of 1977. Also, the Janata Party came to manage at the middle. On Apr seventeen, 1977, the then Union Minister, Charan Singh (Home Minister) composed a letter on 18/o4/1977 mentioning the CMs of 9 of the Congress Party, viz. U.P., Bihar, M.P., Haryana, U.P., Punjab, Rajasthan, H.P. and West Bengal, to educate the Governors regarding their individual States to interrupt up these States' assemblies and to appear for brand new order from the citizens on the bottom that the citizens had for all intents and functions discharged the choice party in these States within the elections for the Lok Sabha.

    Six among those 9 states documented suits beneath Article 131 of Indian Constitution within the Supreme Court appealing to God for associate announcement that the letter of the Home Minister was unlawful, and ultra vires of the Constitution and appealed to the court for associate interval directive dominant the Union Government to form any venture to disintegrate their respective Assemblies before the termination of their term as fixed by the Constitution.
    1. Satisfaction of the President
      The satisfaction of the president emanates either by virtue of report of the governor or otherwise or maybe in both ways. A satisfaction of the president which has its base on 'or otherwise' and not on the Governor's report is often relied upon the facts which are disclosed in the Presidential proclamation. The Court in this case stated that judicial review of the President's Satisfaction could be done only in special or exceptional circumstances, wherein the facts admitted or disclosed, it was indicative that such satisfaction was based on erroneous or irrelevant grounds.

      Also, Court held that "The question of legitimacy of particular actions of the Union Government taking us in particular directions can often be tested and determined only by the verdicts of the people at appropriate times rather than by decisions of Courts"[11].

      The ruling was made by the court that such a big defeat of the party ruling at the centre was a valid ground for taking action under Article 356 (1), due to disbelief of the masses in the government.
    2. Use of the words 'Or Otherwise'
      The court was of the view that while using the words 'or otherwise' within the ambit of the Article 356(1) requires for the consideration of materials and resources apart from the Report of the Governor. But at the very moment, Federal principles of the government are assaulted by this phrase which is ambiguous in nature. The established practice was for the president to act only taking into account the report of the governor. But the inclusion of words 'or otherwise' signifies that other materials could also pave the way for the president's satisfaction.

      The case was dismissed by the court in a unanimous verdict but the observations made in the case are of great importance. The presidential proclamation under Article 356 was brought under the judicial scanner for the very first time, wherein it was exhibited by the displaying facts that such a proclamation was based on grounds that are extraneous or irrelevant. "Thus, exercise of President's power under Article 356 was brought under judicial review to that extent."[12]
  2. S.R. Bommai v. Union of India
    In 1989, Janata Dal government under the leadership of S.R. Bommai had to face a constitutional crisis due to the divorce of a dissident faction from the party. The chief minister was not given the opportunity by the state governor in order to prove the majority. Eventually the government was dismissed and president's rule came into force dated April 21, 1989. Bommai challenged the constitutionality of the imposition of President's rule in the state of Karnataka.
    • Justice Kuldip Singh and P.B. Sawant held that "Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that is placed on Article 356 must therefore help to preserve and not subvert their fabric"[13] It was also held by the court that nobody has the right to violate secularism which is the basic feature of the Constitution.
    • It was also held that when Presidents rule is imposed in a state, the Legislative Assembly of a state cannot be dissolved until the Parliament approves the Proclamation by the President, until then the assembly can only be suspended but cannot be dissolved.
    • When an elected government loses majority support due to support withdrawal by the elected legislators, it is necessary for the governor to hold the floor test before recommending the president to enforce action under the said article.
    • It was also ruled that such presidential proclamation to impose the President's rule in a state was open to judicial review.
    • As the circumstances may deem fit, an interim relief in the form of injunction can be issued by the court to restrain the conduct of fresh elections.
    • In case the court finds the proclamation of President's rule to be invalid, the dissolved Legislative assembly and Council of Ministers could be reinstated.
The Bommai Case judgement (1994) aims to strengthen the democratic and federal principles in the country. The judgment will act as an impediment to the arbitrary dissolution of the state governments by the Centre for political supremacy.

Role Of The Governor In The Use Of Article 356

  1. Dual Role of the Governor
    Due to the dual role, the governor has a significant role under the Constitution. The dual role is that of:
    1. Constitutional Head of a state and
    2. The Representative of the Centre in a given state.
    "In making a 'Report' to the President under Article 356 (1) the Governor acts not only as the Head of the State but also as the Representative of the Centre, who is under an oath to 'Preserve, protect and defend the Constitution and the Law'"[14]. There is nothing wrong in saying that the framers of the Constitution had envisioned governor not to be part of the state governance but also to act as an important connecting link with the Centre.

    Apart from being the head of the state and disposing of his duties as given in the constitution, it is also expected from the governor to inform the centre and the concerned authorities about any sequence of events that is deemed to be a threat for the national unity and integrity. This dual role could be termed as an unusual characteristic of the Indian polity. Due to his double duty, "the holder of this office is not required to be an inert cipher and that his character, caliber and experience must be of an order that enables him to discharge with skill and detachment his dual responsibility towards the Centre and towards the State executive of which he is the Constitutional Head�....

    It would be wrong to emphasize one aspect of the character of his Role at the expense of the other and successful discharge of his Role depends on correctly interpreting the scope and limits of both."[15] Fortnightly reports of the well being of the state affairs are provided by the governor to the president. The purpose of these reports is to keep the centre well informed of the happenings in a state as in the best interest of the state.
  2. Governor's Report
    It is the report which the governor submits to the president which constitutes the basis for the president's rule in most of the cases, although due to the existence of term 'or otherwise', the president also has the liberty to act independently without taking into consideration the president's report as and when he figures out the incapacity of state government to be carried on in accordance with the constitutional provisions.

Article 356 has often been used by the by the ruling central government for the fulfillment of their political ends other than the stipulated purpose as mentioned in the constitution. The provision has often been misused by the party in power at the union level to alter the leadership in a particular state.

"The expression in accordance with the provisions of the Constitution is ambivalent and vague. Even the farmers of the Constitution felt it to be so and questioned Dr. Ambedkar about its meaning. Dr. Ambedkar, however, evaded answering the question by resorting to legal sophistry"[16]

It can be concluded that Article 356 always has had controversies attached to it. The use of the word 'otherwise' in the article is vague. Even the word 'satisfaction' as used in the said article can be labeled as an expression which is vague and paves the way for undemocratic principles to emanate. Due to the attachment of governors with certain political parties, they have a partisan approach and are found in a controversial position as and when the invocation of article 356 takes place. Now and then, it has been requested on numerous occasions to make an amendment in the article to liberate it from the undemocratic angle.

The centre has been provided an upper hand by virtue of our constitution and dominance is enjoyed by centre over states, but the centre must use this dominance only for the intended purpose. The extraordinary power that comes with article 356 should not be used for the furtherance of political wishes of a particular political party, or to dethrone a government which is duly elected.

  • Administrative Reforms Commission Report Vol. 1
  • M.P. Jain, Indian Constitutional Law
  • S.R. Bommai v. Union of India, AIR 1994, Supreme Court, 1918
  • S.C. Arora, Current Issues and Trends in Centre-state Relations: A Global View, Mittal Publications, 1991
  • Kashyap. Subhash C., Need to Review the Working of the Constitution , Shipra, Delhi, 2ooo
  • Sharma, I. D. "Emergency Government Provisions in the Indian Constitution" The Indian Journal of Political Science, vol. 21, no. 4, 196o, pp. 355�36o. JSTOR, Accessed o5 Sept. 2o2o)
  • K.K. Aboo vs. Union of India, All India Reporter, 1965, Kerala
  • The Constitution of India, Article 356
  • The Constitution of India, Article 365
  • K. Surya Prasad, Article 356 of the Constitutional, promise and performance, Kanishka Publishers, New Delhi, 2oo1
  1. Article IV, Section 4 of the American Constitution
  2. H.L. Saxena, Constituent Assembly Debates. Vol. IX.
  3. The Constitution of India, Article 355
  4. Ibid
  5. Sharma, I. D. "Emergency Government Provisions in the Indian Constitution" The Indian Journal of Political Science, vol. 21, no. 4, 196o, pp. 355�36o. JSTOR, (last accessed 1o Sept. 2o2o)
  6. The Constitution of India, Article 356
  7. Ibid
  8. The Constitution of India, Article 365
  9. Ibid
  10. K. Surya Prasad, Article 356 of the Constitutional, promise and performance, Kanishka Publishers, New Delhi, 2oo1, p. 25
  11. Ibid, pp 1362-63
  12. Kashyap. Subhash C., Need to Review the Working of the Constitution , Shipra, Delhi, 2ooo, p.19
  13. S.R. Bommai v. Union of India., AIR, 1994, Supreme Court, 1918.
  14. M.P. Jain, Indian Constitutional Law , (1987) p. 187
  15. Administrative Reforms Commission Report ,Vol. 1, Sept. 1967, p.27
  16. S.C. Arora, Current Issues and Trends in Centre-state Relations: A Global View, Mittal Publications, 1991, pp 48

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