DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Constitutional Law II

PROJECT:

ARTICLE 356: “Emergency Provisions In Case Of Failure Of

Constitutional Machinery In The State”

SUBMITTED BY: SUBMITTED TO:

Shivam Patel Dr. Atul Kumar Tiwari

200101128 Associate Professor (Law)

B.A.LL.B.(Hons.) 4th Semester Dr. Ram Manohar Lohiya National

Section B Law University

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 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the

writing of this Project.

Words are inadequate in offering my deep sense of gratitude to my Professor Dr. Atul Kumar

Tiwari for his precious guidance.

With his enthusiasm, his inspiration and his great efforts to explain things clearly and simply,

He helped throughout my analysis of work with lots of encouragement, sound advice, and good

innovation.

I know that despite my best efforts some discrepancies might have crept in which I believe my

humble Professor would forgive.

Thanking You All

Yours sincerely

Shivam Patel

200101128

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▪ TABLE OF CONTENTS

▪ ACKNOWLEDGEMENT ......................................................................................................... 2

▪ INTRODUCTION TO EMERGENCY ........................................................................................ 4

▪ ARTICLE 356 ........................................................................................................................ 5

▪ PROVISIONS UNDER ARTICLE 356 ....................................................................................... 5

▪ ADVANCEMENT OF ARTICLE 356 ........................................................................................ 8

▪ DIFFERENCE BETWEEN ARTICLE 352 AND 356 ................................................................. 10

▪ REFERENCES ...................................................................................................................... 11

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 INTRODUCTION TO EMERGENCY

One of the chief characteristics of the indan constitution is the way in which the normal federal
constitution can be adopted to emergency situations .It is the merit of the constitution that it
visualizes the circumstances when the strict application of the federal principles might get
destroy the basis assumptions on which our constitution is built .

Emergency Provisions are contained in Part Eighteen of the Constitution of India1.The

Provisions of the Emergency was taken From The German Constitution.

The constitution of Indian provides for the three types of the emergency :2

A. National Emergency : Due to war , external Aggression or the Armed Rebellion3 (

Article 352).

B. State Emergency : Due to failure of constitutional machinery in the State ( Article 356).

C. Financial Emergency : (Article 360)

1
Wikipedia
2
Constitutional law of India by Dr. JN Pandey
3
Added by 44th Constitutional Amendment of 1978

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 ARTICLE 356

Draft Article 278 (Article 356 of Constitution of India 1950) was discussed in the Assembly on 3
August 1949 and 4 August 1949. It gave the President the authority to take over any or all of the
State's executive powers – popularly known as the ‘President’s rule’. The President can take
such action after the State Governor proclaims that the constitutional machinery in a State has
failed.4

State Emergency or Article 356 of the Constitution of India provides the Indian President, the
power to suspend state government and impose President’s rule on any state in the country “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”. 5

Many times this article has been misused by many Governors and it has been a sad history many
times in Indian history.

PROVISIONS UNDER ARTICLE 356

Article 356 of the Constitution of India gives the President of India the power to suspend
state government and impose the President’s rule in any state of the country if “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”.6

4
Constitution of India
5
JagranJosh
6
Article by Indian Express

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(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied
that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President may by Proclamation —

(a) 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 other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under
the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to assume to himself
any of the powers vested in or exercisable by a High Court, or to suspend in whole or in
part the operation of any provision of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

(3) Every Proclamation under this article shall be laid before each House of Parliament and shall,
except where it is a Proclamation revoking a previous Proclamation, cease to operate at the
expiration of two months unless before the expiration of that period it has been approved by
resolutions of both Houses of 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,

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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.

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of issue of the Proclamation:

Provided that if and so often as a resolution approving the continuance in force of such a
Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked,
continue in force for a further period of six months from the date on which under this clause
it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in
force for more than three years:

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:

Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of
May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to
“three years” shall be construed as a reference to five years.

(5) Notwithstanding anything contained in clause (4), a resolution with respect to the
continuance in force of a Proclamation approved under clause (3) for any period beyond the
expiration of one year from the date of issue of such Proclamation shall not be passed by either
House of Parliament unless —

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 (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case
may be, in the whole or any part of the State, at the time of the passing of such
resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation
approved under clause (3) during the period specified in such resolution is necessary on
account of difficulties in holding general elections to the Legislative Assembly of the
State concerned:7

ADVANCEMENT OF ARTICLE 356

44TH AMENDMENT ACT , 1978

This amendment had amended Article 356 and restricted its scope . It substitutes the word “six
months” for the word “Year” as it existed originally. Thus it restores the position as it stood
before the 42nd Amendment8. A Proclamation of Emergency will, if approved by the Parliament,
continue for the six months from the date of issue. For the further continuation of emergency , it
must be approved by the Parliament each time. It has added a new clause (5) to article 356 in
place of existing clause (5) which is now omitted. This clause (5) provides ‘that a resolution for
the continuance of the emergency beyond one year shall not be passed by either house of the
Parliament unless ---

(a) A Proclamation of emergency is in operation at the time of the passing of such resolution;
(b) The election commission certifies that the continuance in force of the Proclamation
under Article 356 during the period specified in such resolution is necessary on the

7
Constitution of India
8
Constitutional Law by JN Pandey

8
 account of difficulties in holding general elections to the legislative assembly of the state
concerned.9

NINE ASSEMBLIES DISSOLUTION IN 1977

In 1977, Article 356 was invoked in very peculiar circumstances . The assemblies of 9 States of
Rajasthan , UP, MP, Punjab, Bihar, Himachal Pradesh , Orissa , West Bengal and Haryana were
dissolved and President rule was imposed on the ground that the Assemblies in these states no
longer represented the wishes of the electorate.

In State of Rajasthan vs Union of India10, States filed suits challenging validity of the directives
issued by the home minister. A seven members Constitution bench of Supreme Court rejected
the petitioner’s petition and upheld the Centre’s action of dissolving three Assemblies under
Article 356 as constitutionally valid.

S.R BOMMAI V. UNION OF INDIA : Judicial Guidelines for imposing President’s rule

The SR Bommai case raised questions on the proclamation of President’s rule in a state. The
Supreme Court had to discuss the grounds and the extent of the imposition of President’s rule in
a State. Questions were also raised whether the imposition of President’s rule is challengable.11

9
VN Shukla
10
AIR1977 SC 1361
11
The Constitution of India by PM Bakshi

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The Supreme Court laid down certain guidelines so as to prevent the misuse of Article 356
of the constitution.

1. The majority enjoyed by the Council of Ministers shall be tested on the floor of the
House.
2. Centre should give a warning to the state and a time period of one week to reply.
3. The court cannot question the advice tendered by the CoMs to the President but it can
question the material behind the satisfaction of the President. Hence, Judicial Review will
involve three questions only:
a. Is there any material behind the proclamation
b. Is the material relevant.
c. Was there any malafide use of power.12
4. If there is improper use of Article 356 then the court will provide remedy.
5. Under Article 356(3) it is the limitation on the powers of the President. Hence, the
president shall not take any irreversible action until the proclamation is approved by the
Parliament i.e. he shall not dissolve the assembly.
6. Article 356 is justified only when there is a breakdown of constitutional machinery and
not administrative machinery.13

DIFFERENCE BETWEEN ARTICLE 352 AND 356

Under Article 352 The State constitution cannot be suspended . The State legislature and State
executive continue to function. The only effect is that Centre gets concurrent powers of the
Legislation and administration in state matters. Under Article 356, on the other hand , The state
legislature is suspended and dissolved . Executive and legislative powers of the state is exercised
by the Centre undergoes a change, while under Article 356 the relationship of only the state with
the centre is affected.14

12
IndianKanoon
13
Wikipedia
14
Constitutional Law by JN Pandey

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 REFERENCES

BOOKS

• Constitutional Law oF India By Dr. JN Pandey

• The Constitution of India By PM Bakshi
• Constitution of India by Dr. VN Shukla

ARTICLES

• “What is Article 356” by Express Web Desk

• “Indian Contitution: What is Article 356” by Sakshi Saroh

WEBSITES

• https://en.wikipedia.org/wiki/S._R._Bommai_v._Union_of_India
• https://byjus.com/free-ias-prep/bommai-case/
• https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=
8&ved=2ahUKEwjNpIOAutf2AhWxkNgFHVl0CiwQFnoECDUQAQ&url=https%3A%
2F%2Fwww.constitutionofindia.net%2Fconstitution_of_india%2Femergency_provisions
%2Farticles%2FArticle%2520356&usg=AOvVaw0QD7l8KxDAPjp0fWZ4xX7H

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