CHAPTER - I

INTRODUCTION

This chapter traces the Historical Background of the

inclusion of Article 356 in the Constitutional Provisions relating to
"State Emergency" due to 'Failure of Constitutional Machinery in
States'. The Relevance and Importance of this Study, the Review of
the literature already available, Objective of the Study, Hypothesis,
Scheme of Study and the Research Methodology adopted while
conducting this Study, have also been incorporated in this chapter.

At the time when the Constituent Assembly discussed the

need to incorporate Article 356 in the Constitution, stout opposition
to it was put forth by some members and it was argued that if power
was given to the Centre to intervene, there was a possibility of this
Article "being abused or employed for political purposes". But it
was hoped by Dr. B. R.Ambedkar that the occasion for invoking
these powers under the relevant Article would be very rare and
that" they would remain a dead letter". However, the Constitutional
practice shows that this Article has been invoked one hundred and
twenty times during the last six decades. As a result, it is now a
subject of controversy and with every invocation of Article 356 the
controversy scales new heights.

HISTORICAL BACKGROUND
DRAFT ARTICLE 278 (NOW ARTICLE 356)
Article 278 of the Draft constitution (now Article 356) is the
logical corollary of Article 277(A) (now 355). Being ambiguous
and anachronistic, this Article was a bone of contention among the
founders of the Constitution. The main supporters of this Article

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were Dr. B.R.Am’bedkar, Alladikrishna Swamy Ayyar,
K.Santhanam, Brajeshwar Prasad, and Thakur Dass Bhargava.
Ayyar's principal argument was that in view of grave dangers
facing the infant republic, some check by the Centre was inevitable
so that people might realise their responsibility and work towards
responsible government properly.1 Brajeshwar Prasad, another
supporter pinpointed the fact that the forces of disorder and
lawlessness were increasing and spreading fast in the country He
observed "I see no harm, no irreparable damage will be done, no
wrong done to the people of the country or to the Constitution, if
for a short time, for a limited period, the legislative powers as well
are vested in the hands of the President"2

K. Santhanam, while describing the Article as an important

one, wanted that the possibilities of the failure of the constitutional
machinery be based on the ground of "physical breakdown",
"political breakdown", or "Economic break down". Of course, he
did assert that if the Centre acted upon the strict letter of the law,
anything might be deemed to constitute a breakdown of
Constitution and it was possible that the interference of the centre
might be frequent and objectionable. In this context, he stressed the
'need for healthy conventions' as a remedy. He had no doubt in his
mind that these would grow and this Article would be utilised for
the legitimate purpose for which it was intended.3

Some supporters of this provision defended it on another

ground, namely danger of secession, which they characterised as a
still greater danger than even chaos. It was argued by B.H. Zaidi

‘CAD. Vol. IX p.150

2 Ibid, p.170
3 Ibid, pp-153-54.

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that the danger of fissiparous tendencies and secession came from
the units and not from the Centre. He emphatically asked: "Have
the various units not tried to break away from the centre again and
again?"4

In contrast, the provision appeared to many of the members as

the very negation of the principle which they visualised for
building up a great democracy- H.V. Kamath, H.N. Kunzru, K.T.
Shaw, Shibanlal Saxena, P.S. Desmukh etc... vehemently opposed
the inclusion of the provision which according to them was
virtually a vestige of the colonial rule, in the Constitution of free
India. Perhaps the most scathing criticism came from H.V. Kamath.
He apprehended that there was a possibility of this Article being
used or employed for political purposes on the pretext of resolving
ministerial crisis or on the pretext of purifying or reforming
maladministration obtaining in a particular state. He even went to
the extent of terming it a criminal transaction and informed the
Assembly that he foresaw the possible end of democracy in India in
the form of Hitler like take-over by the Union Government.
According to him, it was dishonest on the part of the Constituent
Assembly to say in one article that public order shall be the
responsibility of the states and then in another article to confer
powers upon the Union Government to intervene in the internal
affairs of the state on the slightest pretext of any internal
disturbance.5

P.S. Deshmukh believed that the bestowing of such powers on

the President was both impractical and unfederal because it placed
too great a burden on Parliament and gave the President authority

4 CAD. Vol. IX p.145.

5 Ibid. 141

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to override "at his own sweet will the provisions of the Constitution
itself'.6 To Hridaynath Kunzru the instability resulting from a large
number of political groups in a state legislature would not justify
central intervention. He saw the possibility of misuse of the power
under the Article. According to him, "if the powers were given to
the Centre to intervene, there was clear danger and whenever there
was dissatisfaction in a State, appeal would be made to the Central
government to come to its rescue and the provincial electorate
would be able to transfer its responsibility to the central
government. This would also, he says, create serious discontent. To
him the draft Article was "nothing but the undiluted autocracy of
the centre"7.

Naziruddin Ahamed, another strong opposer, criticised the

provision because he saw in the enlarged jurisdiction of the Centre
"a drift towards dictatorship" and destruction of provincial
autonomy.8 Shibbanlal Saksena described the power under this
provisions as "far too sweeping" thus reducing—if not abolishing
"the provincial autonomy to a farce"9.

At the end of the two days debate, it was clear that the
Assembly was going to accept this provision and that it did. To
allay the fears and apprehensions raised during the general debate
in the Constituent Assembly, Ambedkar stated as follows:

I do not altogether deny that there is a possibility of

these
articles being abused or employed for political
purposes.

6 Ibid. 146.
7 Ibid. p. 156
8 Ibid, p.165
9 Ibid, p.142-43

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 But that objection applies to every part of the
Constitution which gives power to the centre to
override the provinces. In fact I share the
sentiments...that the proper thing we ought to expect
is that such articles will never be called into
operation and that they 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. I hope the first thing
he will do would be to issue a mere 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. If that warning fails, the
second thing for him to do will be to order an
election allowing the people of the province to settle
matters by themselves. It is only when these two
remedies fail that he would resort to this article. I do
not think that we could then say that these articles
were imported in vain or that the president had acted
wantonly.10

The above words of Ambedkar testify to the fact that he was

not very happy with these drastic provisions. It is evident from
what he said while replying to the final debate on the Emergency
provisions. He said: "My friends who have spoken against the
article will, I hope understand that I am in no sense an opponent of
what they have said. In fact, I respect their sentiments very much.
All the same, I remain quite unconvinced"*11.

10 CAD. Vol. IX p. 177

11 Ibid, p.548

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 However, being the Chairman of the Drafting Committee he
had no option but to go along with the Articles. He had the
Government of India, Act 1935 before him, in addition to the
reports of various committees appointed by the Constituent
Assembly Moreover, he was required to convince his colleagues in
the Drafting Committee about the need for this particular provision
in the Constitution. His innate and undaunted faith in democracy
and rule of law enabled him to insist that rules of democracy must
be based on justice and fair play. Hence, he underlined the need for
giving directions and warning and the necessity of holding election
before acting under Article 356.

Thus the concept of Centre's basic power of interference in the

provincial field started reappearing constantly in the constitutional
history of India from Minto-Morley Reforms of 1909 onwards. The
Montague-Chelmsford Reforms of 1919, the Simon Commission
Report of 1928, the Report of the Joint Parliamentary Committee on
Indian Constitutional Reforms in 1933-34, the Government of India
Act of 1935 and the present Constitution widened the concept by
carrying it forward. "Though Article 356 is not the exact carbon
copy of section 93 of the Government of India Act of 1935, the
parallelism between these two documents is not merely incidental
but of design".12 Notwithstanding the metamorphosis of section 93
through a number of revocations, modifications, and additions, it
still remains the mainstay of the Article 356 and 357 of the present
Constitution.

We should take into account the fact that the Indian National
Congress became heir to all the advantages and disadvantages of its

12 K. Surya Prasad, Article 356 of the Constitution of India, Promise and Performance, Kanishka
Publisher, New Delhi, 2001, p. 25.

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predecessor, the British Government. Even though the governance
of the country passed into the hands of the Indian National
Congress, separatist tendencies, fissiparous tendencies, poverty,
illiteracy, secessionist forces— everything—remained the same as
before or posed even greater problems. The centuries old problems
were the same, they had not changed. The complex nature of Indian
society and polity provided a fertile ground for disagreement and
conflicts between the numerous groups and different regions
occupying the land. These problems, sometimes, assumed serious
proportions threatening the very unity and integrity of the country
This necessitated strong and at the same time drastic state action to
preserve the unity and integrity of the country. The founding
fathers of the Constitution, who knew this historic reality more than
anybody else, recognised the fact that in a grave emergency due to
external aggression or internal disturbances the Union must have
adequate and even over-riding powers to deal quickly and
effectively with any threat to the existence of the nation and also to
control and direct all aspects of administration and legislation
throughout the length and breadth of the country The states as such
did not possess the capacity or resources to deal with such a
situation. Only the intervention and the aid by the Union could give
adequate protection to every state in times of emergency.

The progenitors of the Constitution were also alive to the fact

that several regions of our country had no experience of
parliamentary form of government, and as such failure or break
down of the constitutional machinery could never be ruled out as an
impossibility. Thus, the founding fathers of the Constitution
thought that the President must have some powers to deal with such

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a situation which may pose threat to the unity and integrity of the
country and to ensure that the government of every state is carried
on in accordance with the provisions of the Constitution.

The above realities of the Indian context acted as a moving

spirit behind the incorporation of this provision in the Constitution
of free India.

The founding fathers of the Constitutional were thus

convinced that the President must have enough power to deal with a
situation which may pose threat to the unity and integrity of the
country and to see that the governments of various States are
carried on in accordance with the provisions of the Constitutional.
Article 356 empowered the President to impose President's Rule in
case of the failure of the Constitutional Machinery of the State. The
basic philosophy behind the incorporation of this Article is to
maintain national unity and integrity and as such the Article is
more positive in essence than its negative application.

As mentioned above, when the Constitution was being

framed, the country was passing through a critical stage. This made
the framers of the Constitution aware of the fact that sometimes
critically abnormal conditions in the country may not be controlled
purely by ordinary Constitutional means available to the
Government. The framers of the Constitution, therefore, provided
means to face the unexpected exigencies by inserting 'Emergency
Provisions' in the Constitution. These provisions deal with three
types of Emergencies:

• National Emergency: Due to war, external aggression or

armed rebellion (Art. 352).

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 • State Emergency: Due to the failure of Constitutional
Machinery in States (Art.356).

• Financial Emergency: (Art. 360).

STATE EMERGENCY: DUE TO THE FAILURE OF

CONSTITUTIONAL MACHINERY IN STATES (ART. 356).
The Second type of Emergency gives powers to the President
to deal with the 'failure of the Constitutional Machinery in States'
(Article 356).

Just after the Constitution came into force, Governor's power

of reporting to the President a 'Failure of Constitutional Machinery'
in a particular State, became a controversial matter. Contrary to the
expectations of the framers of the Constitution. While speaking in
the Constituent Assembly, Dr. B.R. Ambedkar, the Chairman of the
Drafting Committee, said that "the proper thing we ought to expect
is that such Articles will never be called into operations and that
they would remain a dead letter." The strange thing is that Article
356 has been used just as a daily diet, despite the fact that this is
meant mainly for Emergency. In certain cases, the Governors acted
even against the written language of the provisions. Besides, its
wholesale use, particularly in the post -1967 period, led even a
prominent Pakistani Newspaper to comment: "In the so-called
largest democracy in Asia one-third of its population is under the
direct rule of the President."13 As a matter of fact, this was the
result of the formation of Coalition Governments in various States,
while the Central Government remained Congress-dominated. When
certain members expressed doubts in the Constituent Assembly
about the possibilities of misuse of this power, Ambedkar gave a

13 The DAWN, Karanchi, (Pakistan)

9
very unconvincing reply that "there is possibility of these Articles
being misused or employed for political purposes. But that
objection applies to every part of the Constitution ,.."14

The Importance and Relevance of the Study:

The importance of this emergency power of the President in

the political system of India can hardly be overlooked in view of
the facts that it has been used and President’s rule has been imposed
on more then one hundred times and to be precise one hundred and
twenty times during the first sixty years of the working of the
Constitution.

It is therefore, natural that the propriety of the use of this

emergency provision under Article- 356 (Which was envisaged by
Dr. B.R. Ambedkar to remain a dead letter'), on numerous
occasions (more than any other provision of the Constitution), has
evoked criticism from different quarters.

The Judgment of the Supreme Court in 'State of Rajasthan

V. Union of India case also did not lay down the law clearly. But
in S.R. Bommai V. Union of India case, the Supreme Court has
clearly subscribed the view that power under Article 356 is an
exceptional power and has to be resorted to only occasionally to
meet the exigencies of special situations. The court quoted the
'Sarkaria Commission Report' (Commission on Centre- State
Relations) to give examples of situations wThen such powers should
not have been used. It made it clear that Article 356 cannot be
invoked for superseding a duly constituted ministry and dissolving
the Assembly on the sole ground that in the elections to the Lok
Sabha, the ruling party in the State concerned suffered a massive

14 CAD, Vol. IX, p. 134.

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defeat. Review of the Literature Already Available:

A thorough review of the literature already available on the

subject has been done. The Primary Sources such as the
Constitution of India (as amended upto 1st January 2009), the
Constituent Assembly Debates, Lok Sabha Debates, Reports of the
Administrative Reforms Commission, Sarkaria Commission
(Commission on Centre-State Relations), Report of National
Commission to Review the Working of the Constitution (NCRWC),
on 'Article 356 of the Constitution; Recommendation of the
Standing Committee of Inter-State Council (ISC) have been
consulted. Besides these Primary sources, the selective use of the
Secondary Resources i.e. books of various authors, Journals and
Periodicals and the Newspapers (as mentioned in Bibliography)
have also been made. A review of all the important and well known
decided cases of Supreme Court and High Courts relating to the use
of Article 356 (as mentioned in Table of cases) have also been
critically reviewed.

OBJECTIVES OF STUDY

The main objectives of this Study are us under:

(i) To trace Historical background of inclusion of Article 356,

Importance and Relevance of the Study, Review of
Literature already available; Objectives and Methodology
of the Study;

(ii) To make an Appraisal of Constitutional Provisions

contained in (i) Article- 355 (ii) Article- 356 (iii) Article
- 357 and Relevant Constitutional Amendments;

(iii) To make a Critical Analysis of Application of Article 356

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 and role of Governor;. Implication of the term 'Failure of
Constitutional Machinery in States.'; and A Historical
Survey of Imposition of President's Rule and Politics of
Suspending and Dissolving the State Assemblies;

(iv) To make a Critical Analysis of Role of Governor in the

Context of Use of Article 356- dual capacity of Governor
i.e. (i) Governor as the Constitutional Head of State (ii)
Governor as the Representative or Agent of the Centre (iii)
Governor's Report and Role of Governor in the Imposition
of President's Rule in State Under Article 356;

(v) To make a critical examination of Emerging Trends of

Justiciability of Use of Article 356 and Role of Governor;
Judicial Articulation provided by the Supreme Court and
High Courts in well known important decided Cases
involving the Use of Article 356 and a 'Review' of decided
Cases involving the Use of Article 356;

(vi) To make an Analysis of Recommendations of different

Commissions and Judicial Guidelines in the Context of
Use of Article 356; and Role of Governor.

(vii) To draw certain Conclusions on the basis of this Study

especially as to whether Article has been 'misused' or
'abused' for mere political, purposes and Role of Governor
in this context and then also to make certain suggestions
including Amendment to Article 356 barring scrapping of
the Article;

The Study is designed to find an answer to the above

questions and to suggest feasible and viable remedies to prevent the
misuse or abuse of this provision.

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Hypothesis:

(i) Article 356 is most controversial and undemocratic

provision;

(ii) There has been frequent use and misuse of Article 356

(iii) The word ’Satisfaction* used in Article 356 is a ’vague’

term;

(iv) The word 'otherwise' used in Article 356 is also a 'vague'

expression;

(v) The Role of the Governor in the context of use of Article

356 has been most controversial and partisan in some
cases;

(vi) There has been 'Persistent misuse' use of Article 356;

(vii) There has been consistent demand to repeal or scrape or

to amend appropriately this 'undemocratic* Article;

(viii) There is Consistent demand to lay down certain general

Guidelines for the Governor to check the misuse of
Article 356

SCHEME OF STUDY

The present study entitled "Use of Article 356 and Role of

Governor" has been divided into Seven Chapters.

The first chapter entitled 'Introduction', contains the

Historical Background; Importance and Relevance of the Study;
Review of Literature already available; Objectives of the Study;
Hypothesis, Scheme of Study and the Research Methodology.

In the Second Chapter an attempt has been made to analyse

the Constitutional Provisions relating to 'State Emergency'

13
contained in Articles 356 and the related Articles 355 and 357 of
the Constitution. Various Constitutional Amendments relating to
Article 356 i.e. 42nd, 44th, 63rd, 64th, 67th, 68th have also
critically been examined and interpreted.

The third chapter makes a Critical Analysis of Application of

Article 356— Implication of the Term 'Failure of Constitutional
Machinery in States' has been critically examined. A Historical
Survey of Imposition of President's Rule and Politics of Suspending
and Dissolving the State Assemblies, including the Role of
Governor in this context has been discussed in detail in this
chapter.

The fourth chapter makes an attempt to critically analyse the

Role of Governor in the Context of Use of Article 356. The dual
capacity of Governor- i.e. Governor as the Constitutional Head of
State and Governor as the Representative or Agent of the Centre;
Governor's Report and Role of Governor in the Imposition of
President's Rule in States Under Article 356; have been included in
this chapter. The judicial Guidelines laid down in S.R. Bommai's
case and certain general Guidelines have also been incorporated.

The fifth chapter contains a critical examination of

'justiciability' of Article 356- and Role of Governor in the context
of use of this Article. 'Judicial Articulation' provided by the
Supreme Court in as many as nineteen well known decided Cases
involving the Use of Article 356, has been made; and incorporated
in this chapter.

The sixth chapter contains An appraisal of recommendations

of different Commissions i.e. Administrative Reforms
Commission(ARC), Sarkaria Commission (Commission on Centre

14
State Relations), National Commission to Review the Working of
the Constitution(NCRWC), and Standing Committee of Inter- State-
Council (ISC) relating to the Use of Article 356 and the Role of
Governor.

The last seventh chapter contains certain conclusions drawn

on the basis of this Study. These conclusions, in brief, are that
Article 356 is a most 'controversial and undemocratic,' the word
'Satisfaction' used in Article 356 is a 'vague term,' the word
'otherwise' used in Article 356 is also a 'vague' expression, the
role of Governor in the context of use of Article 356 has been most
'controversial and partisan' in some cases, there has been
'persistent misuse* use of Article 356; there has been consistent
demand to repeal or scrape or to amend appropriately this
'undemocratic' Article to give it a fresh look.

Certain suggestions including amendment of Article 356

barring scrapping of Article, have also been made in this chapter.
Some general guidelines far Governor keeping in view the
judicial guidelines provided by the Supreme Court in S.R.
Bommai's case, developing some healthy and democratic
conventions, norms, principles and procedure to check the
misuse of Article 356 and finally an effective public opinion, are
some suggestions which have been incorporated in this chapter. In
fact, Article 356 needs a fresh look to protect State Autonomy
and the federal and democratic fabric of the Constitution.

RESEARCH METHODLOGY:

The Research Methodology used for the Study is Analytical,

Empirical and Historical. How-ever^ case study method has also
been widely used.

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