CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA 824236

Failure of Constitutional Machinery in State under

Constitution of India

School of Law and Governance

Submitted to:- Name- Jata Shankar

Mrs Poonam Kumari CUSB1713125017

[Failure of Constitutional Machinery in State under Constitution of India] Page1

 ACKNOWLEDGEMNT

Every project big or small is successful largely due to the effort of a number of wonderful souls
who have always given their valuable advice and lent their helping hands.

I owe my sense of gratitude to almighty god for showing his blessing throughout the completion
of this project. I am highly indebted to “Mrs Poonam Kumari” for her guidance and constant
supervision as well as for providing necessary information regarding the project during class
lectures. However, it would not have been possible without the kind support and help of many
individuals and organizations. I would also like to extend my gratitude to my colleague,
librarian, and non- teaching staff who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned above. The subject matter of the
project work is very revolutionary and it helped me a lot to know and learn about articles and
provisions mentioned under Indian constitution.

Last but not the least I place a deep sense of gratitude to my family members who has been
constant source of inspiration during the presentation of this project.

Jata Shankar

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 CONTENT

INTRODUCTION........................................................................................................................................4-5
Right to Information and constitution of India..........................................................................................7
Right to know under article 21……………………………………………………………………………………………………….9
Article 19 .............................................................................................................................................9

Evolution of Right to Information.............................................................................................11

Case laws...........................................................................................................................11-14

Right to Information in International Forum..........................................................................16

Limitation of RTI.........................................................................................................................18

Conclusion....................................................................................................................................19

Biblography.................................................................................................................................20

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TABLE OF CONTENTS

Acknowledgements .................................................................................................................... 2
Introduction ................................................................................................................................ 4
Research Methodology .............................................................................................................. 5
Objectives .................................................................................................................................. 5
Chapterisation ............................................................................................................................ 6

CHAPTER 1: MEANING OF AND DIFFERENCE BETWEEN TRADE, BUSINESS AND

PROFESSION .............................................................................................................. 6
Trade .................................................................................................................................. 6
Business ............................................................................................................................. 6
Profession ........................................................................................................................... 7
CHAPTER 2: SCOPE OF ARTICLE 19(1)(g) ..................................................................... 9
Freedom to carry on any occupation .................................................................................. 9
Article 19 (1) (g) is Available against the State and Not Against the Private Individuals 9
Locus Standi..................................................................................................................... 10
CHAPTER 3: RELATION BETWEEN ARTICLE 19(1)(g) AND ARTICLE 301 ........... 13
CHAPTER 4: ARTICLE 19(1)(G) WITH REASONABLE RESTRICTION UNDER ARTICLE
19 (6) .................................................................................................................. 17
Reasonable Restrictions ................................................................................................... 19
Instances of Reasonable and Unreasonable Restrictions ................................................. 21
Conclusion ............................................................................................................................... 24
References ................................................................................................................................ 25
Acts/Statutes ........................................................................................................................ 25
Books ................................................................................................................................... 25
Cases Referred ..................................................................................................................... 25
Websites ............................................................................................................................... 27

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[Failure of Constitutional Machinery in State under Constitution of India] Page5
RESEARCH METHODOLOGY
This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information about the topic. Websites, books, journals, articles and
reports have been primarily helpful in giving this project a firm structure. Footnotes have been
provided wherever needed to acknowledge the source.
OBJECTIVES
 To discuss about freedom of trade, profession and business as given under Article 19(1)(g) of
Constitution of India.

 To study and discuss about the meaning and difference between the term trade, profession and
business.

 To discuss the scope of Article 19(1)(g).

 To study the relation between Article 19(1)(g) and Article 301.

 To discuss the scope of Article 19(1)(g) in light of restrictions placed under Article 19(6).
6 Freedom of Trade, Business and Profession

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 Introduction

Indian constitution came up with a quasi federal model of governance, which means that our
constitution is primarily a unitary constitution with few federal flavours. 1 In cases of acute
necessity our constitution turns out to be a unitary constitution, as like in case of emergency
where the overriding power in respect of legislation and execution of such legislation is left
within the purview of centre. Our constitution makers were concerned about the federal structure
of governance, but in case when the sovereign is itself in danger, they decided it’s better to
preserve the sovereign in opposite to camouflage as a federal polity. Framers of constitution were
also aware about the fact that India being a country with a lot of diversities and socio- economic
disparities, the security of the country has to be taken seriously and the Union has to be given
enough power so as to protect the states from any kind of external aggression or internal
disturbances.2

Article 356 provides for imposition of president’s rule in states to combat a situation in which the
government of the state cannot be carried in accordance with the provisions of this constitution. 3
The constitution framers sought it to be the ‘last resort’ after exhausting all other relief
available.4 But the idea about ‘president rule’ of the drafting committee wasn’t far away from its
exploitation. Article 356 was increasingly used as a political weapon. The indiscriminate use of
this provision made H.V. Kamath remark, ‘if Dr. Ambedkar would have been alive today he
would have concerned about the fact that it is not mending the constitution but ending it.’5

Article 356, and the way it has been put to use in recent years, is a matter of debate. This article
was referred to as dead letter by B. R. Ambedkar, Chairman of the Drafting Committee. 6 Even

1
2
3
4
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p. 177
[Hereinafter Constituent Assembly Debate].
5
6
CONSTITUENT ASSEMBLY DEBATE, Supra note 4
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though, this article is exploited by the bureaucrats more than any other provision of this
constitution. Article 356 not only negates the federal character of the Indian Political System,
but also militates against the democratic doctrine of “popular sovereignty” since an elected
government is suspended whenever President’s rule is enforced. Judicial review of President’s
rule clamping Article 356 was completely shut out during the emergency by the 38th
Amendment.7 However, it was revoked by the 44th Amendment. The provision under article 356
came up with disruption within the pillars of democracy.

Thus, the critical analysis of these provisions becomes the subject matter of this assignment
besides explaining the scope of these provisions, the amendments under it and the change that
has taken place in its implementation over the period of time.

Constitutional Provisions

The procedure and functionary of ‘president rule’ can be understood with the collaboration of
article 355, 356 and 357.
7

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Article 355 imposes an obligation upon the Centre to ensure that each State Government is
carried on in accordance with the Constitution while Article 356 was designed to strengthen the
hands of the Centre to discharge this obligation and to protect a State against necessary
circumstances, the framers of the Constitution felt it important not to bind the Centre to act under
Article 356 on Governor's report.8 Article 357 confers powers to the Parliament to exercise at the
time of President's rule.

Article 355 imposes two duties on the Union of India :-

(i) to protect every state from external aggression and internal disturbance

(ii) to insure that the government of every state is carried on in accordance with the provisions of
the constitution. 9

The two limbs of Article 355 are not interdependent as constitutional break-down can take place
in a state even without there being a situation of ‘external aggression’ or ‘internal disturbance’. 10
Thus it means a situation like external aggression and internal disturbance must be accomplished
with failure of constitutional machinery for proclamation of president rule. But a mere failure of
constitutional machinery notwithstanding with external aggression and internal disturbances is
compatible for pronouncement of this type emergency.

Justifying the inclusion of article 355 in the Constitution Dr. Ambedkar suggest the Constituent
Assembly that in view of the fact that the Constitution provided for two sets of governments –
Union and the States – each of them assigned with some specified powers and neither of them
can interfere in the authoritative jurisdiction of other unless expressly provided in the
constitution.11

Thus this article contains all the circumstances in which centre can take suo moto for protection
of states.

8
9
10
11

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 Invocation

A bare perusal of the title of the Article gives the idea about its invocation i.e. in case of ‘failure
of the constitutional machinery in States’. But what actually constitutes this failure is a question
of interpretation, as this expression can be given indefinite connotations. But, some situations of
the breakdown of the constitutional machinery can be laid down as follows:

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 1. No party in the Assembly has a majority in the State Legislative Assembly to be able to form
government.

2. A government in office loses its majority due to defections and no alternative government can
be formed.

3. A government may have majority support in the House, but it may function in a manner
subversive of the Constitution.

4. The State Government does not comply with the directions issued by the Central Government
under various constitutional provisions.

5. Security of the State may be threatened by a widespread breakdown of law and order in the
State. 12

The most recent president rule in India is encountered in Arunachal Pradesh where the
government headed by Chief Minister Kalikho Pul would have to step down and it is also for the
first time in this history, Supreme Court has put back a state government that has been dismissed
by the centre under the president’s rule.13

Procedure of Invocation of Emergency

12
M.P. Jain, Indian Constitutional Law; at p. 742 (8th Ed., 2011), LexisNexis Butterworths Wadhwa.
13
https://currentaffairs.gktoday.in/tags/presidents-rule
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 Misuse of Emergency

“No provision of the Constitution has been so often used, misused, and abused as Article
356,

108 times since 1954”.14

Any legislation or constitutional provision that abrogates any of the basic principles of
democratic freedom is anathema to most people and the more so to the people of the largest
democracy in the world

. If the members of the Drafting Committee of the Constitution included a provision that permits
a Government to dismiss a duly elected representative body of the people and suspend those
freedoms in violation of even the crudest interpretation of a ‘separation of powers,’ then common
sense suggests that it is only to deal with the direst of circumstances and nothing less

This Article gives wide powers to the Central Government to assert powers over a State in case
of failure of the constitutional machinery of the State. It has been used a number of times since
its inception but an interesting fact, as mentioned earlier, is that most of the times it has been
misused by the Central government in order to dissolve the State government ruled by political
opponents.

The Article was used for the first time in Punjab on 20

th June 1951. It has also been used in the State of Patiala and East Punjab States Union (PEPSU)
and then during Vimochana Samaran to dismiss the democratically elected Communist State

14
10 D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483
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Government of Kerela on 31 st July, 1959. In the 1970s and 1980s, it almost became common
practise for the Central Government to dismiss State Governments led by opposition parties. The
Indira Gandhi regime and post-emergency Janata Party were noted for this practise. Indira
Gandhi’s Government between 1966 and 1977 is known to have imposed President’s rule in 39
times in different States.

Finally, in the wake of the increasing strain on Centre-State relations, Sarkaria Commission was
set up by the Parliament in the year 1983 under the chairmanship of

Justice R. S. Sarkaria with the purpose of examining and reviewing the working of existing
arrangements between the Union and the State and to recommend measures to make the relation
more efficient and cooperative. The Commission finally submitted its report in the year 1987
with its 247 recommendations of which the main ones are discussed below:

1. The most important recommendation out of all was the rare use of this provision by the
Centre. The Commission, while discussing that the term used in the Article ‘failure of
constitutional machinery’, is very vague recommended that each and every failure of the
constitutional provision in a State should be examined properly before this provision is used. It
was suggested to be used ‘sparingly’ as a last measure, when all the other

available alternatives have failed to rectify such breakdown of the

constitutional machinery in a State.

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2. Further, it was recommended that the alternatives available to rectify the constitutional
machinery should be done away with only in cases where an immediate inaction will result in
disastrous consequences.

3. It was also recommended that for every proclamation made, a report stating the facts and
grounds of it should be made compulsory, which would make the judicial review of proclamation
possible, thus, acting as a check on the use of these provisions by the Centre with a mala fide
intention.

However, they were not implemented by the Government at that point of time.

Finally, it was the case of S.R. Bommai v. Union of India

4 , where the Apex court of the country expressed similar opinion to that of the Sarkaria
Commission and held that Article 356 is an extreme power which is to be sparingly used as a last
resort in cases where it is manifest that the constitutional machinery has collapsed. This
judgement was a landmark judgement particularly in regard to the Centre-State relation under
Article 356, which shall be elaborately discussed under the next topic in this paper.

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 Judicial Review

The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute,
because the power under Article 356(1) is a conditional power. In the exercise of the power of
judicial review, the court is entitled to examine whether the condition has been satisfied or not.
So the controversy actually revolves around the scope and reach of judicial review. From the
decisions in the case of State of Rajasthan v. Union of India and the Bommai case, it is clear that
there cannot be a uniform rule applicable to all cases. 15 It is bound to vary depending upon the
subject matter, nature of the right, and other factors. However, where it is possible the existence
of satisfaction can always be challenged on the ground that it is ‘mala fides or based on wholly
extraneous and irrelevant grounds.16 The relevance of judicial review in matters involving Article
15
State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361
16
S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, 434.
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356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v. Bharat
Singh, where the Supreme Court held that it was not precluded from striking down a law passed
prior to a Proclamation of Emergency, as ultravires to the Constitution, just because the
Proclamation was in force at that time. 17 Judicial review of the Proclamation under Article 356(1)
was first tested in State of Rajasthan v. Union of India. The Supreme Court, being the ultimate
interpreter of the Constitution, has the power of judicial review on all actions emanating from or
empowered by any constitutional provision. Though the power of the President under Article 356
concerns his political judgment and the courts usually avoid entering the political thicket, this
power does not enjoy blanket immunity from judicial review. It has to be determined in the
individual cases on the basis of justifiability, which is distinct from judicial review. But unless
the mala fides of the Presidential Proclamation is shown, the Courts have been exhorted by the
Supreme Court to avoid delving into the President’s satisfaction for want of judicially
manageable standards. This point is amply evident in the case of Minerva Mills and Others v.
Union of India and Others, where the Supreme Court dwelt extensively on its power to examine
the validity of a Proclamation of Emergency issued by the President. The Supreme Court in this
matter observed, inter alia, that it should not hesitate to perform its constitutional duty merely
because it involves considering political issues. At the same time, it should restrict itself to
examining whether the constitutional requirements of Article 352 have been observed in the
declaration of the Proclamation and it should not go into the sufficiency of the facts and
circumstances of the presidential satisfaction in the existence of a situation of emergency. 18 Thus
we can safely conclude that, though limited, the Presidential Proclamation under Article 356 is
subject to judicial review.

17
State of Madhya Pradesh v. Bharat Singh, A.I.R. 1967 SC 1170; Centre for International and Comparative Human
Rights Law, States of Emergency Database, Queen’s University, Belfast at
http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited October. 22, 2018).

18
Minerva Mills and Others v. Union of India and Others, A.I.R. 1980 SC 1789; Centre for International and
Comparative Human Rights Law, States of Emergency Database, Queen’s University, Belfast;
http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited Oct. 19, 2018).

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 Case laws

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.'28 Supreme 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 Bommai29 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,

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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.

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.30

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 Conclusion

Thus it is imperative that this article was incorporated for ensuring good governance among
states and maintaining the unity and integrity of India but often misused also. It is also contended
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.19

It is 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.20

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.

Presently, in India there is lack of safeguards against abuse of Article 356 of Constitution of
India. However, as we have observed, since the S.R Bommai decision, the original intent behind
the inclusion of this Article is being fulfilled now. Moreover, the role of the central government
is still the same but the arbitrariness has gone down. So we will have to suffice for now with
occasional outcries against the Union Executive unsheathing or failing to unsheathe, at its sweet
pleasure that double-edged sword called Article 356.

19
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p.141
20
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p.143
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 References

BOOKS -
 Introduction to the Constitution of India ( D D Basu )
 Bare Act- The Constitution of India
 Constitutional law of India ( V N Shukla )


INTERNET –


 Lawoctopus.com
 Indiankanoon,com

UNPUBLISHED SOURCES –

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