Article 356 of the Constitution of India

Under Article 356 of the Constitution of India, which has been invoked to impose the President’s rule. Article 356 of the Constitution in its relevant parts reads as under :–

“356. Provisions in case of failure of constitutional machinery in States.-

(1) If the President 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 the Constitution, the President may by Proclamation.-

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercis-able by the Governor or any body or authority in the State other than the legislature of the State.

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State;

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Court.

(2) Any such proclamation may be revoked or varied by a subsequent Proclamation.

(3) Every Proclamation under this Article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of the period it has been approved by resolutions of both Houses of Parliament :

Provided. …..

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation.

Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years.

Provided…..

Provided…..

(5) Notwithstanding anything contained in Clause (4), a resolution with respect to the continuance in force of a Proclamation approved under Clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either. House of Parliament unless-

(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation approved under Clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.

Provided that nothing in this clause shall apply to the Proclamation issued under Clause (1) on the 11th day of May, 1987 with respect to the State of Punjab. For the purpose of controversy before us, it is necessary to keep in mind that Clause (5) of Article 356 of the Constitution, as it stands today, had been substituted by the Constitution (Forty Fourth Amendment) Act, 1978 in place of the earlier clause inserted by the Constitution (Thirty Eighth Amendment) Act, 1975. The original clause, which sought to bar the judicial review of Proclamation under Article 356 on any ground, reads as under :–

“Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.”

The other connected Articles, which can be read as aid for construction and interpretation of Article 356 are Articles 355 and 365 as under :–

“355. Duty of the Union to protect States against external aggression and internal disturbance.-

It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”

“365. Effect of the failure to comply with, or to give effect to, directions given by the union.-

Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the Provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.”

It may also be noted that “internal disturbance” could be one of the grounds for Proclamation of emergency under Article 352 of the Constitution of India prior to substitution of the words “internal disturbance” by the words “armed rebellion” by the Constitution (Forty Fourth Amendment) Act, 1978. It would thus be seen that “internal disturbance” in the State or any part of the territory of India is no longer a ground for imposition of emergency and it is only disturbance of the nature of ‘armed rebellion’ which could be a ground for Proclamation of emrgency in the whole or a part of the State.

Article 356 of the Constitution came for consideration and interpretation by the Supreme Court in its well known seven Judges’ Bench case, hereinafter called as the Rajasthan case, i.e. State of Rajasthan and Others Vs. Union of India and Others, That decision was rendered by the Supreme Court prior to Forty Fourth Amendment to the Constitution when Clause (5) introduced to Article 356 of the Constitution by the Thirty Eighth Amendment Act, 1975 was in force, which barred judicial review of Proclamation under Article 356 of the Constitution on any ground. Though the seven Judges, in Rajasthan case, gave different opinions, there was a fair consensus in the majority opinion followed in the subsequent case of A. K. Roy, i.e. A.K. Roy and Others Vs. Union of India (UOI) and Others, that the Proclamation under Article 356 of the Constitution is open to judicial review, where it has been made, upon consideration, which is wholly extraneous, irregular and irrelevant to the purpose for which the power under Article 356 of the Constitution has been conferred by the Constitution. In other words, where there is no “reasonable nexus” between the reasons disclosed for the Proclamation and the satisfaction of the President, it would give rise to an inference that there did not exist “satisfaction” of the President for the valid exercise of the sweeping or drastic power conferred on the President under Article 356 of the Constitution of India for imposing the Presidential rule in State and dissolving its Assembly. It may also be taken note of, as a settled legal position, that as the bar to judicial review imposed by the foregoing Clause (5) in Article 356 of the Constitution was repealed by Forty Fourth Amendment Act, 1978, it can be held that the Presidential Proclamation is open to judicial review on the ground of illegality, irrationality, impropriety or mala fide or, in short, on the ground of abuse of power. This question incidentally came before the Constitution Bench of the Supreme Court in the case of A.K. Roy and Others Vs. Union of India (UOI) and Others, and the Supreme Court observed thus (at p. 724 of AIR):

” State of Rajasthan and Others Vs. Union of India and Others, is often cited as an authority for the proposition that the Courts ought not to enter the “political thicket”. It has to be borne in mind that at the time when that case was decided, Article 356 contained Clause (5) which was inserted by the 38th Amendment by which the satisfaction of the President mentioned in Clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any Court on any ground. Clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on the basis of that Clause cannot any longer hold good. It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President’s satisfaction.”

‘Rajasthan case’ decided by the Supreme Court, was considered and relied upon by the Full Bench of Karnataka High Court in a decision reported in S.R. Bommai and others Vs. Union of India and others, A detailed discussion of facts of the above decision cited is not required, because in none of the above cases, Proclamation under Article 356 of the Constitution was issued on the ground of ‘internal disturbances’ in any State.

Having thus examined the settled legal position with regard to the scope of judicial review of the action of the President under Article 356 of the Constitution, we propose to first take up the question of extent and scope of power of the President under Article 356 of the Constitution. A close reading of the provisions of Articles 355 and 365 would clearly show that the two Articles together are intended to achieve a common purpose. The former stipulates the duty of the Union towards the States to protect them against any external and internal disturbances to ensure that the Government of every State is carried on in accordance with provision of the Constitution. The Article empowers the President to fulfil that duty within the frame work specified therein. Therefore, the extent and limitation of the powers of the President mentioned in Article 356 of the Constitution must be determined in the light of the provisions of Article 355 and for all practical purpose, they have to be read together. When they are so read, it is amply clear that the powers of the President under Article 356 of the Constitution is confined to the performance of the duty of restoring the normal situation in which the constitutional machinery in a State can function in accordance with the Constitution by protecting the State against “external aggression” and “internal disturbances”.

The Proclamation by the President under Article 356 of the Constitution only to a limited extent is screened from judicial review, because of the provisions contained in Article 356(1), as the President is not answerable to any Court in the exercise and performance of powers and duties of his office. The review of his action has specifically been restricted by the Constitution to the Parliament; but the consequences, which flow from the Proclamation under Article 356, are drastic. The question whether there is any limitation on these powers may require examination of the scheme and language of different clauses of Article 356 of the Constitution. No doubt exercise of these powers plainly and unmistakably direct at the root of federal principles. It vests executive powers of the State, which, in the federal structure, is exercisable by the Governor with the aid and advise of his Ministers and takes away the powers of the Legislature of the State which are then exercisable by the Parliament. The administration of the State for all purposes is taken over by the President who assumes all powers of the Governor, It will thus be seen that Article 356 of the Constitution authorises serious inroads into the principles of federation and that is permitted because in the ‘subjective satisfaction’ of the President, as the situation has arisen in which the Government of the State ‘cannot be carried on in accordance with the provisions of the Constitution’ and the President is required to ensure that the Government of State is carried on in accordance with Article 355 of the Constitution. See observation of Retired Judge of the Supreme Court, Shri J. L. Kapoor, in his Article “Federal Structure of Indian Republic Its Nature and Extent”, published in the Journal of the Indian Law Institute (21 J.I.L.I. 1979).

The learned author, B. Shiva Rao in his famous book “Framing of India’s Constitution — A Study at pages 10 and 11 has traced the history of the debates in the Constituent Assmebly on the provisions of Article 356 of the Constitution, a draft Article of which was 278. The aforesaid provision relating to a situation in a State where there was a break-down of constitutional provisions and particularly those on the respective roles of the Governor and the Union Government and the functions and powers to be exercised by them, evoked considerable discussion in the Drafting Committee. In the long and lively discussion on these articles, anxiety was voiced by some members lest in the name of an emergency, there should be in roads into the autonomy of the units. Shri H.V. Kamath was critical of the position likely to be created by these amendments, since the President could thereby intervene in a State even without a threat to peace and order, on the ground that the Government of the State could not be carried on in accordance with the provisions of the Constitution. The President’s interventions should be invoked, the learned Member, Shri Kamath argued, on the pretext of resolving a ministerial crisis or of reforming mal-administra-tion in a State. For such purpose, the remedy would be in the dissolution of the Legislature and a fresh reference to the electorate. Shri Sibbanlal Saxena supported this view of Shri Kamath and in his view, the article would reduce the provincial autonomy to a farce’. Shri Hridayanath Kunjru also saw some danger in the misuse of the power under Article 356 of the Constitution. According to him, if the powers were given to the Centre is intervene, there was clear danger and whenever there was dissatisfaction in a State, appeals would be made to the Central Government to come to its rescue and the provincial electorate would be able to transer its responsibility to the Central Government. This would also, according to him, create serious discontent, to describe the draft article in his impression “nothing but the undiluted autocracy of the Centre.” There were several members who supported the provisions in the Article as it stands. The prime architect, Dr. Ambedkar, too in defending the provision expressed the view that before suspending the Constitution in a State, the Central Government would first give warning to the State concerned, and that if the warning failed, it would order an election, allowing the people of the State to settle matters themselves; it was only when these remedies failed that the President would resort to the power of imposition of President’s rule. The Assembly then accepted the provisions on the premises, as explained by Dr. Amedkar, that the Union action under the Article must not be a pure invasion on provincial autonomy. This Article was accepted in spite of serious criticism -and protest to the same by several learned Members, because it was found in the face of unconstitutional challenge to any authority within the Union, the only power in a position to safeguard the States, the Union and the Constitution is the Central Executive and there is no escape from it. See also “The Indian Constitution Cornerstone of a Nation” by Granville Austin at page 213.

We have ventured to recall the opinions expressed by several members in the Constituent Assembly, when the Constitution was being framed, only with a limited purpose to understand the provisions under Article 356 of the Constitution, as was also done by the seven Judges in State of Rajasthan and Others Vs. Union of India and Others, In interpreting the Constitution, the role of the judiciary is first to make an attempt to interpret the language of the Constitution in terms of the meaning which that language had or is supposed to have had at the time when the Constitution was adopted. ‘In any event, it is not an easy task to discover the content, which particular words had in the minds of our forefather. Further more, the Constitution is a permanent document and has to operate upon the phenomena about which the founding fathers could have had no opinion’. The famous words of Justice Holmes, as Spokesman of the Supreme Court in United States, in Missouri v. Holland (1920) 252 US 416, 433-34 may, at the same time, be recalled on the subject of interpretation of the Constitutional provisions like the one before us :–

“When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successor much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.”

In interpreting a Constitutional provision, the principles made applicable are far more different than interpreting or construing an ordinary piece of Legislation. Mauro Capelletti in his work” “The Judicial Process in Comparative perspective on the question of ‘Mighty Problem of Judicial Review” at page 163 has the following suggestions to offer :

“Constitutions have a life of their own, and even old constitutions cannot close themselves up like ivory towers, notwithstanding the fact that their drafters were unaware of the problems which are only now emerging in modern societies (or rather of problems which are only now coming to the full awareness of Societies). This is indeed the ultimate role of constitutional adjudication to keep the Constitution alive. As a leading French legal scholar aptly said in his comment to the Conseil Constitutionne’s abortion (sic) decision, the dilemma of judicial review, in the face of vague, imprecise, and often mute provisions of the constutitons is either to be bravely creative or to be utterly ineffective.”

“It is therefore, clear then, that if we are to solve the modern problems in terms of the constitution, some one must read the new content into old language. It is equally clear that if anything that meets the desires of an interested party can be read into the constitution without reference to the basic pattern prescribed in the document, a written Constitution loses most of its meaning. Actually, the constitutional system operates in such a way as to embrace new concepts within the words of the Constitution while at the same time guarding the essential features of the system.”

See “The Growth of Constitutional Power in the United States” by Carl Brent Swisher.

Keeping these basic principles in our mind about the judicial role in interpretating the Constitutional document, which is of a permanent nature, and which is to operate on the social life of a community for all times in future, we now proceed to determine the extent and power of the President to issue a Proclamation in the State of M. P. and to determine the extent of judicial review. The heading of the Article 356 is “provision in case of failure of constitutional machinery.” With this heading to the Article, the other important expression used is “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution”. According to us, if the key expression “failure of the constitutional machinery in the State” and “in a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution,” are compared with Clause (I) of Article 352 of the Constitution, it is evident that Article 356(1) does not speak of any “emergency” of any kind. In fact, the word “emergency” is not used any where in Article 356 of the Constitution. It is a proclamation intended either to safeguard against the ‘failure of the constitutional machinery in a State’ or to repair the effect of breakdown. As held in State of Rajasthan and Others Vs. Union of India and Others, ‘it may be either preventive or curative action.’ A Court can, however, and must interfere with such an action by the President where there is no break-down of the constitutional machinery. That would be an instance of ultra vires, i.e. use of the power for a purpose other than intended by the Article. The marginal note to Article 356 used the words “failure of constitutional machinery in the State.” Clause (1) of the Article use the words “cannot be carried on in accordance with the provisions of this Constitution.” The words are of widest import and if applied literally, they might mean failure on the part of the State Government to comply with each and every provision of the Constitution and whatever might be degree or extent of such failure. In Rajasthan case, two expressions in the margin and in the main clause, in some of the observations of the learned Judges have been read as equivalent and interchangeable. Now if the history of the provision is any guide, the interpretation and observations of the architect Dr. Ambedkar on the point that the use of the Article should be confined to the sense of break-down of the constitutional machinery and this was an exceptional provision. This article could be only applied as a last resort. Dr. Ambedkar even accepted that ‘such an Article will never be called into operation and that would remain a dead letter.’ In the working of the Constitution for more than 40 years, however, we find that this Article was resorted to by the Union Government on more than 88 occasions and there is consensus among impartial observers and academicians, the views of some we have noted above, that this extraordinary power should not be permitted to be used or abused to achieve the political ends and the only way in which it can be rectified is to construe it in the original narrow sense in which it has been explained by the makers of the Constitution. Even excluding the marginal note to Article 356 and confining the interpretation to the words “in accordance with the provisions of the Constitution”, they should not mean to convey failure to comply with any particular provision of the Constitution or inability to maintain law and order in a part of the State. It should be a case of failure to maintain the form of the Constitution, which, in relation to the provincial part of the Constitution means the form of responsible Government. Article 355 is intended to be supplementary to Article 356. The expression “in accordance with the provisions of the Constitution” in Article 355 is, therefore, to be intepreted in the light of other two serious situations which precede these expressions namely, “external aggression” and “internal disturbance.” The very fact that the provisions in Article 356 is included in Part XVIII as an emergency provision, even though it has no relation to emergency of the kind dealt in Article 352, would lead to the conclusion that the situation contemplated in Article 356 is not one of mere irregularity or difficulty; but the one in the nature of emergency ‘break-down of the constitutional machinery’, which calls for an abnormal remedy. In the light of the views expressed by Dr. Ambedkar and other supporters of the provisions in the Constituent Assembly, as discussed above, the proper view would be, whether the purpose be preventive or curative, that the power can be used only in an extreme difficult situation, viz. where there is an actual and imminent breakdown of the constitutional machinery, as distinguished from failure to observe a particular provision of the Constitution or worsening of law and order situation. In order to justify the application of Article 356 of the Constitution, mere failure on the part of the State Government to maintain public order cannot be a good ground for suspension of the Government. To justify invoking of Article 356 of the Constitution, public disorder must be of such an aggravated form as to result in failure of entire law and order machinery of the State. The expression “internal distur-bance” used in Article 355 of the Constitution can furnish a ground of action u/s 356 of the Constitution only when an ‘internal disturbance’ is of such a serious magnitude and extent that the local Government is unable to control it. It should be a case of more serious magnitude than the ordinary breaches of public peace, such as a affray or riots which can be quelled by police force or by calling the Army. The internal disturbance for invoking Article 356 of the Constitution should be of such magnitude so as to satisfy the President that it would be impossible for the Government to carry on in accordance with the Constitution. It is true that instead of words ‘domestic chaos’, as is used in other Constitutions, the words ‘internal disturbance’ have been used in Article 355, but it is not only law and order situation, which is contemplated by twin Articles 355 and 356. The two Articles confer extraordinary powers on the Union Government with a purpose to ensure that the Government of the State is carried on in accordance with the provisions of the Constitution. Any exercise of power designed to achieve a different purpose must be held invalid. The other purpose of the provision is to take steps to set the machinery functioning again where there is failure. If the President In imposing proclamation is actuated this dominant purpose, the exercise of power cannot be held to be invalid. But if the dominant purpose is either deliberately overlooked or not kept into consideration, the exercise of power would be vitiated and open to judicial review.

The issue about the justiciability of the satisfaction of the President in relation to Article 356 of the Constitution arose in State of Rajasthan and Others Vs. Union of India and Others, at the time when by Constitution 38th Amendment Act by insertion of Clause (5) barred judicial scrutiny. The question of proclamation of emergency under Article 352 and its continuance came for decision in the minority judgment of Bhagwati, J. in Minerva Mills case Minerva Mills v. Union of India AIR 1983 SC 1789 . The minority view has dealt with that aspect of the case. It was held that the Presidential satisfaction can be questioned if the facts and circumstances mentioned in support of the Presidential action are outside the purview of the Article or in conflict with any constitutional provision. It is also questionable whether the reasons given are wholly extraneous or based on irrelevant ground for the formation of the Presidential satisfaction. In Minerva Mills’s case (supra), it has been observed that the power to judicial scrutiny did not prevent challenge on the above ground, as in such a case, what was challenged was not the propriety, but the existence of satisfaction. The statement of objects and reasons of the 44th Amendment expressly refers to the deletion of the clause ousting judicial scrutiny by stating that a provision is being expressly made for omission of the clause which makes satisfaction of the President final and conclusive. In our opinion, the fact that the Parliament by 38th Amendment introduced ouster of judicial scrutiny and by 44th Amendment repealed it, the scope of judicial scrutiny in relation to the exercise of power by the President under Article 356 of the Constitution has been enlarged and judicial interference on settled principles in such an action is permissible. The decision of Full Bench of S.R. Bommai and others Vs. Union of India and others, also supports this view.