LAW AND POLICY REGARDING DISSOLUTION OF

STATE LEGISLATIVE ASSEMBLIES IN INDIA: AN

ANALYSIS
5.2 Constitutional Law - II

Submitted By

Manab Jyoti Hazarika

UID- SM0119029

B.A.LLB 3rd Year and 5th Semester

Faculty in Charge

Mr. Himangshu Ranjan Nath

Assistant Professor of Law

National Law University and Judicial Academy, Guwahati

Assam
12th November 2021
 TABLE OF CONTENTS

ABSTRACT............................................................................................................................... 3

1. DISSOLUTION OF A STATE ASSEMBLY UNDER ARTICLE 174............................. 4

2. THE DISSOLUTION OF STATE ASSEMBLY UNDER THE CONSTITUTIONAL

SCHEME OF ARTICLE 356 .................................................................................................... 6

2.1 THE DECISION OF THE COURT IN SR BOMMAI AND ITS SIGNIFICANCE .............................. 8

3. KEY JUDICIAL DEICISIONS IN LIGHT OF ARTICLE 356 ........................................ 9

DISMISSAL OF BJP GOVERNMENT IN M.P., H.P., & RAJASTHAN...................................................... 11

4. CONCLUSION ................................................................................................................ 13

5. BIBLIOGRAPHY ............................................................................................................ 14
 ABSTRACT

The Indian Constitution due to its federal nature establishes a dual polity, a two tier
governmental system, with the central government as one level and the state Governmental
system at the other. The constitution marks off the sphere of action of each level of government
by devising an elaborate scheme of distribution of legislative, administrative, and financial
powers between the Centre and states.

The dissolution of State assemblies has raised quite a few controversies in the past, and has
thrown up certain extremely interesting constitutional questions of great importance, which
have so far not been conclusively decided. Under the Constitutional scheme Aritcle 174
contains the law regarding dissolution of state assemblies. While Article 356 does not expressly
speak of dissolution of the Legislative Assembly, the majority opinions held, keeping in view
the scheme and intendment of the relevant constitutional provisions and the practice since
1950, it is seen that in exercise of the power under Article 356 it is open to the President to
dissolve a Legislative Assembly but that such a power can be exercised only after both Houses
of Parliament approve the proclamation as contemplated by clause (3).

Therefore, in the context of analysing the law in the context of dissolution of state assemblies
it is necessary to take note of the overall Constitutional scheme keeping in mind Article 174
and the implicit dissolution contained under Article 356 of the Constitution.

Key Words: Dissolution, Article 356, Article 174.

 1. DISSOLUTION OF A STATE ASSEMBLY UNDER ARTICLE 174

The law and policy pertaining to dissolution of state legislative assembly to a great extent the
position corresponds with the Lok Sabha, but there are certain variations noticeable in the
context of state assemblies. Under Article 174 (2) (b), the Constitution of India, merely says
that the governor may from time to time dissolve the legislative Assembly.

1
The Supreme Court has ruled in the case of AJ Faridi v. Chairman UP Leg Council that
neither the legislature nor its members have any constitutional right to have it undissolved till
the expiry of the term specified in Article 172 (1) i.e.,. Five years from the date it holds its first
meeting. In K.A Mathialagan v. Governor of Tamil Nadu,2 a question arose whether the
governor in exercise of his powers under article 174 (2) (a) should act in his discretion or on
the advice of the council of ministers. The Madras High Court held that Governor was bound
by the advice of the Council of Misters in the matter of propagation.

The following two propositions appear to be well settled in the context of when the Governor
may dissolve the house, i.e. the governor may not dissolve the House suo moto, without
ministerial advice to that effect and the Governor does not automatically accept the advice of
3
his Council of ministers to dissolve the house. The Governor by virtue of art 164(1), has
discretion to dismiss ministers, but that power is different from the one prorogue the legislative
assembly under art 174 (2) (a). Article 174 (2)(b) expressly vests the power of dissolving the
legislative Assembly in the Governor even if it had to be an advice would automatically be
taken over by the Union Government powers of the dissolution of the Assembly when the
president assumes governmental powers by a proclamation under art 356(1). Dissolution by
the president after proclamation would be as good as dissolution by the Governor of a state
whose powers are taken.

According to Article 174 (2) (b) the dissolution of legislative assembly is the discretionary
power of the Governor. His discretion he can dissolve the Legislative Assembly even sooner
than the completion of the term if the exigency of circumstances require. The decision, in his
discretion is final, anything so done by him shall not be called in question as to whether he

1
AIR 1963 All 75, 78
2
AIR 1973 Mad 198
3
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 334 (8th Ed. Lexis Nexis, 2018)
ought to have acted in the manner or not, the acts done by him in performance of his duties are
also protected from the scrutiny of courts under Art.361. Nevertheless, the discretionary power
of the Governor is to be exercised within the constitutional mandate in conformity with the
express provisions and established constitutional conventions and not arbitrarily, he must take
into consideration relevant facts and act within the ambit of the Constitution, his action of
dismissing a State Government or even recommending President rule is subject to judicial
review and if found to be illegal then the court can revive the dissolved State Assembly. 4

It has been clearly accepted in the landmark Goa Assembly Dissolution Case5 that judicial
review of the decision of the Governor in dissolving the Assembly pursuant to the exercise of
the powers under Article 174(2) (b) is available to the extent of whether the dissolution is
contrary to or in breach of any constitutional provisions or whether it is in excess of the powers
conferred under Article 174(2) (b). Governor taking a decision to dissolve an Assembly must be
satisfied as to the necessity himself and such satisfaction should not only be on his subjective belief
he must take into account the facts and totality of circumstances in a holistic manner and justify his
action with reasons, keeping in mind the oath he takes under Art.159 to preserve protect and defend
the Constitution. Governor is not bound to follow the advice of the Council of Minister in exercise
of the discretionary power since Clause (1) of Art.163 unlike Art.74 (1) does not provide for the
binding clause “shall act in accordance with such advice”6 hence, where the Chief Minister or
Council of Minister recommends dissolution of Assembly without any proper cause the Governor
may refuse to act and instead explore the possibilities of installing another stable Government.7

4
Nandish Vyas & Durgaprasad Sabnis, The Governor's Power to Dissolve the Legislative Assembly - Judicial
Review and Other Facets, 2 THE LAW REVIEW, GOVERNMENT LAW COLLEGE , 35 (2003)
5
Luizinho Faleiro v. State, AIR 1969 SC 903.
6
Article 74, The Constitution of India
7
Nandish Vyas & Durgaprasad Sabnis, The Governor's Power to Dissolve the Legislative Assembly - Judicial
Review and Other Facets, 2 THE LAW REVIEW, GOVERNMENT LAW COLLEGE , 39 (2003)
 2. THE DISSOLUTION OF STATE ASSEMBLY UNDER THE
CONSTITUTIONAL SCHEME OF ARTICLE 356

Article 356 carries the marginal heading "Provisions in case of failure of constitutional
machinery in States". But neither clause (1) nor for that matter any other clause in the article
employs the expression "failure of constitutional machinery". On the other hand, the words
used are similar to those occurring in article 355, namely, "a situation has arisen in which the
government of the State cannot be carried on in accordance with the provisions of this
Constitution".8

Article 356 had its genesis in sections 45 and 93 of the Government of India Act, 1935. These
were the sections that dealt with the Emergency provisions. The dimensions were quite
different. In the Act, a breakdown of Constitutional machinery was visualized both at the
Centre and the States and both the Governors and the Governor General, were empowered to
issue these Proclamations. Moreover, the provisions of the Act which dealt with the breakdown
of Constitutional machinery, replaced a democratic government with an autocratic one. Under
the Constitution, the democratic nature of the government remains; shifting the responsibility
from the States to the Centre.

It is one of the features of a federal Constitution that the Union should guarantee its units
protection in cases of external aggression or internal disturbances. In fact, this obligation of the
Union can be seen in various federal systems. Article 356 was a response to this need felt by
the framers of the Constitution. It provides for the possibility of what the framers of the
Constitution saw as breakdown of Constitutional machinery in a State. Article 356 enables the
President, acting on the advice of the Union government, to proclaim a regional emergency
when “a situation has arisen in which the government of the State cannot be carried on in
9
accordance with the provisions of this Constitution.” Article 356(1) provides that if the
President is “satisfied”, on the basis of a report from the Governor or otherwise, that such a
situation exists, he has the power to issue a Proclamation and act in one of three ways: firstly,
to directly exercise the executive powers of the State government; secondly, to transfer the
legislative powers of the State legislature to Parliament; and, thirdly, to make any incidental or
consequential provisions to give effect to the above. The provision also vests in the President

8
Article 356, The Constitution of India
9
K. Venkataramanan, Under the cover of President’s Rule, THE HINDU (Dec. 15, 2020 at 10:00 PM)
https://www.thehindu.com/opinion/lead/under-the-cover-of-presidents-rule/article29254040.ece
the power to suspend wholly or partially the provisions of the Constitution relating to any
authority in the State.

The power of dissolving of the Legislative Assembly is implicit in clause (1) of Article 356, it
must be held, and having regard to the overall constitutional scheme that the President shall
exercise it only after the Proclamation is approved by both Houses of Parliament under clause
(3) and not before. Until such approval, the President can only suspend the Legislative
Assembly by suspending the provisions of Constitution relating to the Legislative Assembly
under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of
course. It should be resorted to only where it is found necessary for achieving the purposes of
the Proclamation. 10

Further, a proclamation issued under Art. 356 shall be laid before each House of Parliament
and shall remain in operation for ‘two months’ unless before the expiry of that period it has
been approved by both Houses of Parliament. [Clause (3) of Art.356]. Any such Proclamation
may vet evoked or varied by a subsequent Proclamation. If any such Proclamation is issued at
the time when Lok Sabha is dissolved or the dissolution takes place during the period of two
and the Proclamation is passed by the Rajya Sabha but not passed by the Lok Sabha, the
Proclamation shall cease to operate at the expiry of 30 days from the date on which the new
Lok Sabha meets after the reconstruction unless before the expiry of 30 days it has been also
passed by the Lok Sabha. If the Proclamation is approved by the Parliament it will remain in
operation of “six months”. 11

Parliament may extend the duration of Proclamation for “six months” at a time but no such
Proclamation shall in any case remain in force for more than three years. After the expiry of
the maximum period of three years, neither the Parliament nor the President shall have power
to continue a Proclamation and the constitutional machinery must be restored to the State. State
emergency is declared on failure of constitutional machinery in a state. Nearly every state in
India has been under a state of emergency at some point of time or the other. The state of
emergency is commonly known as 'President's Rule'. If the President is satisfied, on the basis
of the report of the Governor of the concerned state or from other sources that the governance
in a state cannot be carried out according to the provisions in the Constitution, he can declare

10
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 740 (8th Ed. Lexis Nexis, 2018)
11
THE 44TH AMENDMENT
emergency in the state. Such an emergency must be approved by the Parliament within a period
of two months.

2.1 THE DECISION OF THE COURT IN SR BOMMAI AND ITS SIGNIFICANCE

In S.R. Bommai v. Union of India12, the Supreme Court developed the extent and scope of
judicial review under Article 356. The Court held, inter alia, that the power under Article 356(1)
was reviewable on several grounds. It inquired into whether relevant data was considered and
the reasoning was justifiable and not mala fide. In this case, the Court applied the entire range
of administrative law grounds for the review of executive action to an Article 356 proclamation
and no longer treated it as a prerogative power. Further, it suggested that such proclamations
were subject to basic structure review to ensure that they did not damage or destroy basic
features of the Constitution. Applying these tests, the court invalidated three proclamations that
had been issued under Article 356(1). It further asserted that so long as a State was performing
its duty in conformity with the Constitution, there was no question of issuing a proclamation
under Article 356(1) merely because a different political party was in control of the Union
13
Government. S.R. Bommai, significantly expanded the scope of judicial review by holding
that Article 356 was to be exercised under certain guidelines which were subject to judicial
review

12
AIR 1994 SC 1918
13
Ibid.
 3. KEY JUDICIAL DEICISIONS IN LIGHT OF ARTICLE 356

In Rameshwar Prasad v. Union of India,14 the Supreme Court reviewed the constitutional
validity of the Union’s dissolution of the Bihar State legislative assembly and the
proclamation of President’s rule under Article 356 of the Constitution. The Court held that
the dissolution of the State assembly and the proclamation of President’s rule was
unconstitutional and declared that it had the power to restore a dissolved assembly in an
appropriate case. However, as elections to the Bihar assembly had been notified prior to the
decision of the Court, it refrained from restoring the State assembly in this case.

The court emphasized that the governor while recommending dissolution of an Assembly has
to annex with his report to the union Government “relevant” material substantiating his
decision. “In the absence of the relevant material much less due verification, the report of
governor has to be treated as the personal ispe dixit (personal opinion) of the governor.
Regarding the claim of the petitioner for the revival of dissolved Assembly the Court held
that the in view of the election process was set in motion and was at an advanced stage, in
the larger interest, it would not be proper to order revival of State Assembly. The Court
avoided any confrontation between the Legislature and the Judiciary by not ordering the
revival of the assembly. Secondly, the Court rightly left the matter to be decided by the
electorate which was the ultimate source of power. 15

Had the Court revived the Assembly there would have been a serious controversy between
the Judiciary and the Legislature. It is submitted, that the Court rightly decided in favor of
the election process to be completed believing in the judgment of the people which ultimately
rose to the occasion and gave a clear verdict. In view of the stringing remarks by the Court
on the role of the Governor, it is desirable that political parties should re-think to implement
Sarkaria Commission report which had suggested that the Centre should recommend
“persons who have not taken too great a part in politics, generally and particularly in therecent
past for Governorship.” Also, the Court’s judgment holds a lesson for the President who has
to apply his mind before giving consent to the Cabinet’s recommendations.16

14
(2006) 2 SSC 1.
15
Sudhir Krishnaswamy & Madhav Khosal, Regional Emergencies Under Article 356: The Extent Of Judicial
Review, 10 Indian Journal of Constitutional Review, 168 (2009)

16
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 757 (8th Ed. Lexis Nexis, 2018)
 In State of Rajasthan v. Union of India,17 the States filed suits challenging the validity of
the directives issued by the Home Minister to the Chief Ministers to dissolve their assemblies
and seek a fresh mandate. The latter disclosed the soul ground for the Proclamation under
Art. 356 and that such a Proclamation and the dissolution of their Legislative Assemblies
upon the grounds given in the letter were outside the scope of Art.356 of the Constitution. It
was also contended that the condition precedent to the dissolution of the Assemblies is
ratification by both the Houses of Parliament and so that no dissolution can take place without
ascertaining the wishes of both the House of Parliament. The petitioners prayed for a
permanent injection restraining the Union of India from giving effect to the Home Minister’s
directive. 18

On behalf of the Union of India, it was contended that the suit under Art. 131 was not
maintainable because the dispute of a political character regarding the continuance of a
Council of Ministers. It was argued that the questions which arose gauging the existence of
a “situation” calling for action under Art.356 were non- justifiable. Mere intimation of some
facts did not justify prohibition to act in future on other facts. It could not be predicted now
what other facts may arise in future. Seven members Constitution Bench of the Supreme
Court by a unanimous judgment rejected petitioner’s petition and upheld the Centre’s action
of dissolving 3 Assemblies under Art.356 as constitutionally valid. The Court held that the
‘satisfaction’ of President under Art.356 could not be questioned. The President does not act
only on the report of the Governor but on otherwise. This means that the satisfaction can be
based on the material other than Governor’s report. The choices between dissolution and re-
election or retention of the same membership of the legislature or the Government for a
certain period are matters of political expediency and strategy under a democratic system.
Under the India system, the gist of political power through formation of several political
parties is legal. Hence a mere attempt to get more political power for a party is not
constitutionally prohibited or per se illegal.19

17
AIR 1977 SC 1361
18
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 750 (8th Ed. Lexis Nexis, 2018)
19
Ibid. at 751.
DISMISSAL OF BJP GOVERNMENT IN M.P., H.P., & RAJASTHAN –

On Dec. 15, 1992, President Rule was imposed in 3 BJP ruled states of M.P, H.P., & Rajasthan
and Assemblies were dissolved on the ground that these states were not implementing sincerely
the ban imposed by the Centre on religious organization. The main grounds on which the BJP
Government were dismissed were that the Chief Ministers of these states have connections
with the RSS, a banned organization, and secondly, that these Governments had encouraged
the kar sevaks to go Ayodhya thus the basis was mere suspicion that they would refuse to
enforce the ban. There were no proofs that they were not following the directions of the Centre.
The 3 Governors had submitted more or less identical in 24 hours. This was clear abuse of
Art.356, where duly elected Governments were dismissed on the ground of suspicions. The
Union Government did not pay heed to the report of the Sarkaria Commission in exercising its
emergency power under Art.356. The commission has pointed out that Art.356 can be used
only in the event of political crisis, internal subversion, physical breakdown or non-compliance
with the constitutional directions of the Union Executive. None of these events had happened
in those states. As regards violence and killings after the Ayodhya incident: there had been
more such incidents in the Congress ruled states then the BJP ruled states.20

In a historic judgment the Madhya Pradesh High Court by 2:1 majority held that the
Presidential order imposing President’s Rule in the State was invalid and unconstitutional as
being beyond the scope of Art.356 of the Constitution. The Court said that in their report
recommending the dismissal of the Patwa Ministry and dissolution of the Assembly, the
Governor failed to substantiate how the constitutional machinery had broken down. There was
no evidence of the State Government having defied central directives. Mere worsening the law
and order situation in a state due to sudden break of violence did not call for extreme step, of
imposition of President Rule. The Governor’s report to the Centre had not provided any other
material to justify the case for a constitutional breakdown in a State. The Court said that Central
intervention in a situation of deteriorating law & other could be justified through the
deployment of Army in the affected areas. But impositions of President’s Rule straight way in
these circumstances were beyond the scope of Art.356.21 Apart from stating that the law and
order situation was worsening in Bhopal and some other towns in the state as a result to
Ayodhya incidents. The Governor’s report to the Centre had not provided any other material

20
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 747 (8th Ed. Lexis Nexis, 2018)
21
K. Venkataramanan, Under the cover of President’s Rule, THE HINDU (Dec. 15, 2020 at 10:00 PM)
https://www.thehindu.com/opinion/lead/under-the-cover-of-presidents-rule/article29254040.ece
to justify the case for a constitutional breakdown in the state. As regards the contention that
after it had been ratified by the Parliament, the Court cannot sit in judgment on Presidential
Proclamation; the Court said that the Proclamation had been invalid for a period of 2 months
before Parliament gave its approval. The ‘invalid’ Proclamation had thus already in force
without Parliamentary approval. The Parliamentary order, the Court held, Parliament did not
sit in judgment over satisfaction of the President reached on the advice of the Union Cabinet
for imposing President’s Rule for 2 months, prior to the issue coming up before Parliament.
 4. CONCLUSION

Article 356 was seen to be a ‘dead letter’ by the framers of the Constitution. However, as a
result of various political developments like defections and Constitutional controversies like
speculation regarding the role and powers of Governors and that of the President as the
Constitutional Head of State, it has developed into the single most talked about article of our
Constitution.

A clear bent in favour of the Union is one of the characteristic features of the Indian
constitutional system. The feature was evidently considered essential for the maintenance of
unity and integrity of the country in view of its peculiar historical, geographical and political
situations, therefore one of the chief- characteristics of the Indian Constitution is the way in
which the normal federal Constitution can be adapted to emergency situation. It is the merit of
the Constitution that it visualizes the circumstances when the strict application of the federal
principles might destroy the basic assumption on which our Constitution is built. Due to the
changing political structure of India, there needs to be a cautious approach in exercising the
powers for dissolution of the state assembly. The basis of Article 356 is to ensure that there is
proper means of administration whenever there is a failure of constitutional machinery in the
state.

However, it is essential to ensure that the federal structure of the Constitution remains intact.
As seen in the 1990’s the procedure under Article 356 is often used to topple state governments.
Regional political parties are often under increasing pressure as a result but their larger role in
democracy and strengthening of the federal structure has to kept in mind. The purpose of our
founding fathers in incorporating this provision needs to be ensured whenever this Article
comes into force.
 5. BIBLIOGRAPHY

 M.P. Jain, India Constitutional Law, 8th Ed. 2018 Lexis Nexis, Gurgaon.
 K. Venkataramanan, Under the cover of President’s Rule, THE HINDU (Dec. 15, 2020 at
10:00 PM) https://www.thehindu.com/opinion/lead/under-the-cover-of-presidents-
rule/article29254040.ece
 Nandish Vyas & Durgaprasad Sabnis, The Governor's Power to Dissolve the Legislative
Assembly - Judicial Review and Other Facets, 2 THE LAW REVIEW, GOVERNMENT LAW
COLLEGE , (2003)
 Sudhir Krishnaswamy & Madhav Khosal, Regional Emergencies Under Article 356: The
Extent Of Judicial Review, 10 Indian Journal of Constitutional Review, (2009)
 NATIONAL COMMISSION TO REVIEW THE WORKING OF THE
CONSTITUTION A Consultation Paper on ARTICLE 356 OF THE CONSTITUTION