ARTICLE 356

“Article 356 of the Constitution empowers the President to issue a proclamation on receipt of
a report from the Governor of a State. Or otherwise too, if he is satisfied that the Government
of the State cannot be carried on in accordance with the provisions of the Constitution.”

“By that proclamation he can 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 exercisable by the Governor or anybody
or authority in the State, and declare that the powers of legislature of that State shall vest in
Parliament. He cannot, however, assume to himself any of the powers vested in or
exercisable by a High Court or to suspend, either in whole or in part, the operation of any
provision of the Constitution relating to High Courts.”

“Article 357 provides the manner in which the legislative powers of a State, which under the
President’s proclamation are declared to vest in Parliament, are to be exercised. It states that
the Union Parliament may delegate the power to make laws for the State to the President or to
any other authority specified by him in this behalf.89 Power is given to the President, when
the House of the People is not in session, to authorise expenditure from the Consolidated
Fund of the State pending sanction of such expenditure by Parliament. The President can also
issue Ordinances for the State under Article 123.”

Imposition of Article 356 during breakdown of Constitutional Machinery:

“In the first place, Article 18890 was deleted with the result that now it is the President alone
who can, in case of a breakdown of the constitutional machinery in a State, assume the
functions of the Government of the State. Article 356 as originally proposed provided that the
Governor of a State should have the power to take over the administration of the State by
proclamation for two weeks and then communicate to the President of the Union that the
constitutional machinery had failed and that he had issued a proclamation taking over the
administration. Only on the report made by the Governor could the President act under
Article 356.”

Duration:
  The duration of a proclamation issued under Article 356 is two months.
 If after two months the proclamation is to be continued, it has to be ratified by
Parliament.
 Where Parliament has ratified a proclamation, it will be in Operation for six months,
and any further continuance should be sanctioned by Parliament.
 As amended by the 44TH Amendment , a proclamation under Article 356 will continue
for six months from the date of its issue, and may subsequently be extended for
another six months. However, for further extension beyond the expiration of one year,
a resolution may not be passed by either House of Parliament unless a proclamation of
emergency is in operation and
 It is certified by the Election Commission that it is necessary for such a proclamation
to continue in view of the difficulties in holding elections in the State.

Effect of State Emergency:

The declaration of emergency due to the breakdown of Constitutional machinery in a State

has the following effects:

1. The President can assume to himself all or any of the functions of the State Government or
he may vest all or any of those functions with the Governor or any other executive authority.

2. The President may dissolve the State Legislative Assembly or put it under suspension. He
may authorise the Parliament to make laws on behalf of the State Legislature.

3. The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation

Grounds for Judicial Review:

“Article 356(1) provides that the President may issue a proclamation if he 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 exercise of executive power of a State in derogation of the provisions of Articles 256
and 257 may provide for a situation in which such a proclamation may be issued. Such a
situation may also be created if a stable ministry is not found possible due to political
uncertainties in the Legislative Assembly or inability to find a leader acceptable to the
members of the Legislative Assembly.”
Restoration of President Rule:

“Ever since the present Constitution came into force, there have been over one hundred
occasions for resorting to the President’s Rule under Article 356(1).It has been resorted to for
diverse reasons some of which were genuine to Article 356 while others were not, such as
ruling party’s internal disputes, to dislodge opposition party governments in States,
reorganization of States, inability to install a government or to find out a new government in
a State and law and order problem in a State. Non-compliance by any State with the
directions of the Union given in the exercise of its executive power is an express ground
under Article 365 to impose President’s Rule in that State.”

S.R. Bommai v. Union of India1

“a Full Bench of the Karnataka High Court reiterated that the proclamation under Article 356
is justiciable and that the courts, could look into the materials or reasons disclosed for issuing
the proclamation, to find out whether those materials or reasons were wholly extraneous to
the formation of the satisfaction and had no rational nexus at all to the satisfaction reached
under Article 356.”

“Judgement: It upheld the President’s proclamation based on the Governor’s report of horse
trading among the legislators. The Court rejected the argument that the Governor should have
ascertained the support to the Chief Minister on the floor of the House.”

Sunderlal Patwa v. Union of India2

“Madhya Pradesh High Court by a majority of two to one invalidated the proclamation under
Article 356 issued on 15 December, 1992 removing the State Government and dissolving the
Legislative Assembly. The majority took the view that the President’s satisfaction was based
on two letters of the Governor which mentioned some incidents of riots, arson and killings in
the aftermath of the demolition of the disputed structure at Ayodhya on 6 December, 1992.”

“These incidents the majority did not find adequate to justify an action under Article 356.
Relying upon Article 355”

“Judgment: It held that the internal disturbance in a State to justify an action under Article
356 must be of such magnitude as to satisfy the President that it would be impossible for the
Government to carry on in accordance with the Constitution, therefore it found the

1
AIR 1990 Kant 5(FB)
2
1993 Jab LJ 387(FB)
President’s action uncalled for. Accordingly it ordered restoration of the Government and the
Assembly. The operation of the High Court’s order was however, stayed by the Supreme
Court pending the disposal of the appeal.”

Justice Sarkaria Commission Report:

“Report was made for the purpose of determining the circumstances and the conditions
subject to which President could act under Article 356.”

“The Commission in its report has broadly classified the instances of failure of constitutional
machinery:”

a) Political Crisis
b) Internal Subversion where for example the government is deliberating acting against
the constitution and law is fomenting a violent revolt
c) Physical Breakdown where government willfully refuses to discharge its
constitutional obligations endangering the security of state.
d) Non-Compliance with constitutional directions of Union Government.

Consequences:

“During the President's Rule in a State under Article 356(1) the Legislative Assembly may
either be dissolved or suspended. If the Legislative Assembly is dissolved, steps are taken to
have fresh elections for constituting a new Legislative Assembly in the State.”

“During this period. by virtue of clause (1) of Article 357, Parliament is empowered:”

(i) To confer powers on the President for making laws for the State and to authorise
him further to delegate such power to any other authority.
(ii) To authorise the President or any other authority on his behalf for making laws
and imposing duties upon the Union or its officers and authorities, and
(iii) To authorise expenditure from the Consolidated Fund of State when the House of
the People is not in session.

“So far the practice has been for the President to enact laws for a State during the President’s
Rule in consultation with the members of Parliament from that State. The administration is
delegated by the President to the Governor of the State, who discharges his responsibility
with the help of advisors. During this period the ministers do not stay in office, or else they
may be dismissed from their office.”

“Article 356 itself enables the President to make incidental or consequential provisions.
These provisions are such as may appear to the President to be necessary for giving effect to
the objects of the Proclamation. Under the terms of clause (c) of Article 356(1), their validity
or legality is not justiciable being a matter entirely for the subjective satisfaction of the
President”

Abuse of Power:
“It is clear that the power extended to the Union Parliament in the Proclamation of
Emergency must be used in rarest of the rare cases. However it is not so, the power given to
the President to be used in extraordinary circumstances is widely used for political benefits of
individuals rather than public interest. This abuse of power can easily lead to sedition of the
Indian democracy.”

“The 44th amendment ensured that internal disturbance would no longer be ground for
Proclamation of Emergency, where it lead to the worst abuse of Emergency power at
National level in 1975 and continued till 1977.”

“The power under Article 356 has been used frequently in India since 1950, especially in
states like Uttar Pradesh, Kerala and Punjab. At one instance this President’s Rule was
imposed purely on political grounds to overthrow the ministry formed by a different party.
By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the
constitution. Therefore there is demand for either deletion or making provisions to restrict
misuse of these provisions.”

Deterrence of Abuse of Power:

“It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and
relevant safeguards must be followed to deter the same. The constitution of India guarantees
to the citizens of India fundamental rights, which are suspended pursuant to Emergency
Provisions. It must be kept in mind that the human rights must be not violated during the
proclamation, if so, done with justifiable cause in favour of individual interest. Also the
social, cultural, political, and civil rights of people must be safeguarded.”
“The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of
law’ or ‘procedure established by law’ as mentioned in”

“Maneka Gandhi v. Union of India3, must be followed to prevent corruption and misuse of
power. It is a conditional power and must be used as a last resort with due care. The Sarkaria
Commission sharing a similar view believes that this extraordinary power given by the
constitution must be used as a constitutional weapon to deal with extreme situation and not
used frequently as is being done in India.”

“With regard to the exercise of the powers under Article 356, the President's "satisfaction" is
based upon the receipt of a report from the Governor of the state in question. Thus, the
Governor has a critical role in altering the nature of federalism through the use of Emergency
powers.”

“The 38th Amendment, passed in 1975 (during the Emergency declared by Prime Minister
Indira Gandhi), was specifically intended to deny judicial review of the "satisfaction" of the
President before a Proclamation of Emergency. This provision was repealed by the 44th
Amendment passed in 1978. However, even while the 38th Amendment was in effect, the
Supreme Court of India had occasion to deal with the issue in”

The State of Rajasthan v. The Union of India 4in 1977. Although the seven judges
participating in this decision gave different rulings, a consensus was reached in a 1982 case,”

“A.K. Roy v. The Union of India5 to the effect that Article 356 is open to judicial review
when there is no "reasonable nexus" between the reasons disclosed for the Proclamation and
the satisfaction of the President.

3
(1978) 1 SCC 248
4
AIR 1977 SC 1361
5
AIR 1982 SC 710