20-03-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

FAILURE OF CONSTITUTIONAL
MACHINERY IN STATES

(ARTICLE 356 AND 357)

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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 that state cannot be carried on in accordance
with the provision 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 any body 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.

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ARTICLE 357

• provides the manner in which the legislative power of a state, which

under the president's proclamation are declared to vest in Parliament,
are to be exercised.
• It states that the 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.
• 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.

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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.
• Provided that if any such Proclamation (not being a Proclamation revoking a previous
Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of
the House of the People takes place during the period of two months referred to in this clause, and
• if a resolution approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of the People before
the expiration of that period,
• the Proclamation shall cease to operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before the expiration of the said period
of thirty days a resolution approving the Proclamation has been also passed by the House of the
People.
• If Parliament has ratified the proclamation, it will be in operation for SIX months
• and any further continuance should be sanctioned by parliament.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

DURATION
• 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.
• Provided further that if the dissolution of the House of the People takes place during any such period of
[six months] and a resolution approving the continuance in force of such Proclamation has been passed
by the Council of States, but no resolution with respect to the continuance in force of such Proclamation
has been passed by the House of the People during the said period,
• the Proclamation shall cease to operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before the expiration of the said period of
thirty days a resolution approving the continuance in force of the Proclamation has been also passed by
the House of the People:
• 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 difficulties
in holding elections in the state.
• But in no case can it be continued beyond three years.

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PROCLAMATION AND ITS CONSEQUENCES

• In popular parlance, an emergency proclaimed under Article 356 establishes the President's rule in
the state concerned.
• that is Federal distribution of powers ceases to operate temporarily in that state and it becomes
during that period virtually a centrally ruled union territory.
• it is only the judicial administration which is left untouched.
• it is the legislative and executive powers which pass on to Parliament and to the union executive
respectively.
• The President 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 are exercisable by the Governor or any body or authority in the
state other than the Legislature of the state.
• By exercising the power of dissolution vested in the Governor, the President may dissolve the
Legislative Assembly, or he may put the assembly on suspension.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

… PROCLAMATION AND ITS CONSEQUENCES

• In S R BOMMAI V. UNION OF INDIA, (1994) 3SCC1 The Supreme Court held that the President
could dissolve the assembly only after the proclamation has received the approval of the two houses of
parliament.
• the President declares that the powers of the Legislature of the state will be exercised by Parliament or
under its authority.
• After it has been so declared it becomes competent for Parliament to confer the state's legislative power on
the President. With this authority that he may delegate this power to another authority with such conditions as
he deems fit.
• However, the financial power remains only with the parliament,
• Though the President can authorise expenditure from the consolidated fund of the state pending the sanction
of such expenditure by Parliament, in case the house of the people is not in session at the time.
• The law passed in the exercise of the state's legislative authority continues to remain in force even after the
president's rule has come to an end, but the state legislature is free to amend or repel them.
• In the executive and administrative field the President, exercising the power of the Governor of the state,
dismisses the State Council of Ministers and the governance is carried on by the Governor under the overall
control of the union executive.

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FAILURE OF CONSTITUTIONAL MACHINERY: ITS MEANING

• Unfortunately, the present interpretation of the meaning of the term has been
conditioned by large-scale abuse and wrong use of the wide powers given to the
union executive under article 356.
• it has been put to wrong use by almost all the political parties that have been in
power at the center.
• Still the power is a necessary and vital power which the union government must
be possessed of as the Sarkaria Commission report 1988 has recognised.
• The past cases of abuse compel us to delineate the valid and legitimate reasons
for central intervention.
• in their very nature they can be only broadly indicated as the Sarkaria
Commission has done and this has got complete support from the supreme
court in in S R Bommai v. Union of India, (1994) 3 SCC 1

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SARKARIA COMMISSION

• has put the legitimate ground of intervention into four

categories these are

1.Political crisis
2.Internal subversion
3.Physical breakdown
4.Non-compliance with Constitutional directions of the union
executive

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

1. POLITICAL CRISIS
• This category is illustrated by the cases where a stable government cannot be
formed for one reason or the other.
• The majority of the cases where the president’s rule has been declared during the
last few decades after the commencement of the Constitution have been of this
variety.
Criticism:
• However, if a stable government is not possible because of a lack of majority
support in the state legislative assembly,
• the Governor himself should handle the situation by dissolving the assembly and
having a fresh election.
• Moreover, a minority government is always possible which may get issue-based
support from opposition parties.

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INTERNAL SUBVERSION (DESTRUCTION)

• should be considered the most important apart from other

familiar things subversion should also include subversions of
basic constitutional values like
• democracy,
• pluralism,
• secularism,
• rule of law,
• unity and integrity of India etc.

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PHYSICAL BREAKDOWN
• relates to two types of cases:
1. those breakdowns which may be brought about by natural calamities and
2. those which may be the result of a total breakdown of public order
• In both types of breakdowns, it is expected that the union government will provide all
possible assistance to the state government concerned instead of imposing the President’s rule
in the state
• because even after imposing the president's rule, the union government will have to rely
largely on the state's administrative machinery.
• In the case of natural calamity, the possible reason for imposing a president's rule can be the
union government's judgement that the state political leadership is incapable of rising to the
occasion.
• If there is a breakdown of public order, the union government may be on firmer ground to
dismiss the State Council of Ministers.
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NON-COMPLIANCE WITH CONSTITUTIONAL DIRECTIONS OF

THE UNION EXECUTIVE

• Article 365 of the Constitution itself says that when such a situation
arises it would be legitimate for the President to draw the conclusion
that the government of the state which has not complied with the union
government instructions, cannot be carried on in accordance with the
Constitution.
• To be fair to the union government there does not appear to have
been any case when the President’s rule was proclaimed for this
reason.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

THE STATE GOVERNMENT CANNOT BE DISMISSED FOR

THE FOLLOWING REASONS
• The Sarkaria Commission has also disapproved of many instances where
President’s rule was proclaimed for spurious reasons
• the state government cannot be dismissed for the reason that it is
1. guilty of maladministration or
2. large scale corruption or
3. for the reason that subsequent elections to the house of the people indicate that the
Legislative Assembly of the state has ceased to reflect the prevailing mood and
preference of the people.
• the commission expressly disapproved of the dissolution of 9 state assemblies in
1977 on this ground and retaliatory solutions in 1980 on the same ground.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SAFEGUARDS

1) POLITICAL

2) JUDICIAL

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POLITICAL SAFEGUARDS
• the president himself can give some relief if he finds that the move of the Central
Council of Ministers is not justified.
• He can persuade the ministry to rethink over the matter.
• Before the Supreme Court decision in the Bommai case, it was not uncommon to
dissolve the state assembly without waiting for the approval of the proclamation
by the two houses of Parliament as required by article 356 (3).
• In such a situation it was competent for the President to refuse to accede to the
request of the ministry to dissolve the Assembly.
• he could say that he would not allow his office to be used for circumventing
the Constitution.

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…POLITICAL SAFEGUARDS

• The question has arisen whether the union government is bound to revoke the
proclamation even before the expiry of two months if it is expressly disapproved by
either House of Parliament.
• The judicial opinion is clear that the government is not bound and that parliamentary
approval is needed only for the continuance of the proclamation beyond the period of 2
months.
• But that is a pure theory because no government, even one least sensitive to public
opinion, is expected to continue the proclamation in such a situation.
• In case the President makes a fresh proclamation after the expiry of the two-month
limit, it is submitted that it can be challenged in the court on the ground that it
amounts to fraud on the constitution.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

JUDICIAL SAFEGUARDS
Discussion related to Judicial safeguard is limited to the
discussion of three cases decided by the Supreme Court of
India

1. State of Rajasthan v. Union of India, (1977) 3 SCC 591

2. S. R. Bommai v. Union of India, (1994) 3 SCC 1

3. Rameshwer Prasad (6) v. Union of India, (2006) 2 SCC 1

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

STATE OF RAJASTHAN V. UNION OF INDIA, (1977) 3 SCC 591

(7 judges)

• it is the first case where the Supreme Court was approached against the exercise of power by the
President of India under article 356 (1) of the Constitution.
• In the post-emergency of 1977, Janata Party scored a massive victory, and the Congress (I) was
totally routed in North India, though it held the Fort in the south.
• Mr Charan Singh the then home minister of India wrote an identical letter to the chief ministers of 9
Congress-ruled states in the north suggesting that they should advise the respective governors to
dissolve the state Assemblies for holding fresh elections.
• His contention was that the massive defeats suffered by the Congress in the parliamentary
elections showed that the Legislative Assemblies no more represented the people and
he apprehended that that might create administrative problems.
• A radio interview by the law minister Mr Shanti Bhushan suggested that if the advice was not
acceded to, the union government would itself dismiss the state governments concerned and
would declare the president's rule.
• The relief prayed for was an injunction against the government from adopting such a course.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…STATE OF RAJASTHAN

• out of the multiple grounds advanced by the plaintiffs for seeking such a relief, two had substance
1. that the defeat of the party in the parliamentary election in 1977 could not be a valid
ground for concluding that the government in the state could not be carried on in accordance
with the constitution;
2. that the legislative assemblies could not be dissolved without first obtaining the approval of
the apprehended proclamation by the two houses of Parliament.
• Both the Sarkaria commission and the Supreme Court have taken such a view.
• but the Supreme Court bench as it was then constituted had taken a different view.
• In any case, the appropriate remedy would have been a suitable declaration and not an
injunction.

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…STATE OF RAJASTHAN
• but the bench recognised that article 74 (2) and 356 (5) imposed considerable limitations on its
power, clause 5 of article 356 made the satisfaction of the president non justiciable.
• The court reasoned that there was a distinction between inquiring into the satisfaction of the
president and inquiring into those cases where the president could not be presumed to have
reached any satisfaction.
• In this category would come the cases where the government had acted for malafide reasons or
where the ground for invoking article 356 (1) was irrelevant or extraneous to any possible
legitimate purpose for intervention like
• but some members of the bench were explicit in saying that dismissal of the state government on
the ground that the Congress Party have lost miserably in the parliamentary election was not an
extraneous or irrelevant ground.

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…STATE OF RAJASTHAN
• Article 74 (2) bars the courts from Inquiring as to what advice was tendered by
the Council of Ministers to the president.
• This, the court concluded, also disabled the courts from asking the government to
disclose the material which form the basis of the advice and thereby became the
basis of president satisfaction.
• Therefore, if the government became reticent and refrained from disclosing the
material including the governor’s report the court would have nothing before it to
decide whether the proclamation was based on extraneous or irrelevant Grounds
or whether it was actuated by malafide reasons.
• while, on the one hand, the Court was asserting some limited jurisdiction in the
matter, on the other, it was disabling itself from exercising that jurisdiction.
• the suit of the plaintiff's states was dismissed and this was followed by the
proclamation of president rule in all the nine States.

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S. R. BOMMAI V. UNION OF INDIA, (1994) 3 SCC 1

9 JUDGES
• the facts of the case are related to the declaration of the president's rule in 6 States.
• broadly speaking they fell into two categories.
• in one category will be the proclamation made in relation to BJP-ruled states of Madhya
Pradesh, Rajasthan and Himachal Pradesh after the demolition of disputed Babri mosque
in Ayodhya in Uttar Pradesh on 6th December 1992 by kar sevak who had assembled
there in large numbers as a result of the campaign launched by BJP and its different
wings.
• These proclamations were held to be valid because the respective governments were
perceived to be inimical to the value of secularism as a part of the basic structure of the
constitution.
• A close reading of the judgement reveals that the governments were held to be tainted
because the political party they represented was considered to be tainted..

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…S. R. BOMMAI
• .The other three cases related to the dismissal of state governments in-
• Karnataka
• Meghalaya and
• Nagaland and
• the dissolution of Legislative assemblies of these States.
• In all these States fresh elections had already been held and the judicial
verdict was meant only to clarify the law on the point.
• All the three cases had some special feature of their own.

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…S. R. BOMMAI
• Departing from the Rajasthan case it lays down the rule that the state assembly
cannot be dissolved before the approval of the proclamation by the two
houses of parliament.
• Therefore, now the requirement of parliamentary approval cannot be evaded by
a government which does not have a majority in the Council of States.
• the court has asserted the jurisdiction to restore an illegally dissolved state
assembly.
• It can even restrain the election commission from holding elections lest there may
arise the problem of having two parallel assemblies in the same state.
• However, it disclaimed any jurisdiction to restrain the president from proclaiming
the president’s rule in a state.

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…S. R. BOMMAI
• The court departed from the Rajasthan case on the interpretation of the scope of article
74 too as well.
• It was emphasized that the only thing which cannot be enquired into by a court of law is
the specific advice tendered by the Ministry to the president, but the material on which
the advice might be based cannot be withheld.
• Indeed if the union government fails to produce any relevant material fact in support of
the proclamation the court will presume that there was nothing to form the basis of the
satisfaction of the president.
• In all these respects the attitude of the bench appears to have been influenced by its firm
conviction that federalism is a part of the basic structure of the constitution and whatever
power has been given to the state, they cannot be allowed to be tempered with.

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…S. R. BOMMAI
• all the judges were in agreement that the proclamation issued under
article 356 (1) is justiciable.
• The satisfaction of the president is subjective, but it must be based on
concrete relevant objective facts.
• The court would not enter into an enquiry into the adequacy of facts,
• provided they are relevant, and
• it is possible for an independent reasonable person to reach the
conclusion that the President had reached.

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BIHAR ASSEMBLY DISSOLUTION CASE

(RAMESHWER PRASAD (6) V. UNION OF INDIA,
(2006) 2 SCC 1 (CONSTITUTION BENCH (3:2))
• The nine judge bench decision in the case was expected to be applied but it is difficult to say so.
• Bihar assembly election results declared on 4th March 2004 had left a hung assembly with two
contending blocks led respectively by Rashtriya Janata Dal (RJD) and Janata Dal (JDU) almost
evenly balanced with roughly 92 MLA on each side in the house of 243 members.
• Either side dependent for its majority on the support of Lok Janshakti Party (LJP) with 29 members
and that of a few independents.
• The Governor perhaps mistakenly thought that he could not swear anybody as a chief minister
unless he had and has shown the support of 122 members.
• According to his recommendation, the president’s rule was proclaimed, and the Assembly was left
in animated suspension.
• Perhaps the idea was that this would give the political parties some time to negotiate support.
• It is not clear whether the idea was to allow realignment of only political parties or also individual
MLA.

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…RAMESHWER PRASAD
• The factual situation was that LJP had declared that it would not align with either side.
Therefore, the Governor should have realised very early that the solution was either in
re-election or in mass defection from LJP with all its inevitable defects.
• but he professed to realise it at the late stage when LJP MLAs were reported to be
moving towards JDU combined combination.
• His reports, gathered from multiple sources, were that it was the result of horse-trading. it
might be true. but this was to an extent unavoidable, and the Governor was himself to be
blamed for having given such an opportunity.
• In any case he recommended The dissolution of the Assembly which the Union Cabinet
accepted in a hurriedly called meeting on the same day and faxed the message to the
president for his approval who was in Moscow.
• The Assembly was dissolved and fresh elections were announced.

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…RAMESHWER PRASAD
• This was challenged in the Supreme Court on multiple grounds.
• The principal ground being that the governor's move was meant to prevent the Janata Dal United from
staking its claim to form the government.
• The matter was considered by a constitution bench headed by chief justice Saberwal, the court was
divided 3 to 2
• the majority led by the chief justice accepted the petitioner’s contention and rejected the contention of
the respondent Union of India that the move was made to ensure the purity of the system.
• The lousy manner in which the Governor acted, and the indiscrete haste shown by the union government
lent credence to such a view.
• But the whole decision turns out to be a moot one because the court did not interdict the election nor did
it restore the Assembly, though it had the power to do so.
• The court also chose to pronounce its decision immediately even though the judgements were delivered
much later it does not appear to have served any purpose it might not have been foreseen by the court
but it is quite possible that the winning side might have used it as a moral weapon in its campaign.

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