a judicial review of article 356

7/27/2019 A Judicial Review of Article 356

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SWATI JOSHILLM., 1

stYear

S.S.J Campus, Almora


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INTRODUCTION

Indian constitution is the power source to any authority in India. It gives and takes and

seeks to have legitimate power to give welfare to Indians. It is written in manner that

unscrupulous elements need to be curbed from time to time and better administration is to be

provided to people. India or Indian politics same word for whom who are not aware aboutthe political system of our country, Who are not conscious how political party manipulated

our constitution just for the sake of personal benefit, but not for good governance. Now the

question arise that Indian constitution is a rigid constitution or not, a constitution which

was easily amended or not a constitution which work according to a political party or not there

are so many question arise but still our political leader are not ready to accept their mistake. This

is something erroneous why our constitution gives such power to the union government to

absolute control over the state and if it gives so then why we follow the principle of

federalism. From the very beginning article 356 is renewed for its miss use and become the

active tool for central government to control over the state without any cause. The father of

our constitution Dr B.R Ambedkar are totally unaware that article 356 is distorted badly

by the central government, but according to them article 356 was one of the instrument

through which central government protect the state government of any external or internal

aggression. There is always a big question whether India follow the principle of federalism or

not. The word union does not show any type of federation, since it is used also in the

preamble of the constitution of the united state- the model of federation; in the preamble of

the British north America (which according to lord Haldane, did not created a true federation at

all) still the word federal was also mentioned in our preamble but I don't think so that in this

regard we follow our preamble because of article 356 which become the major hurdle.

HISTORICAL BACKGROUND OF ARTICLE 356

This Act first introduced the concept of 'Division of Powers' in British India. It

was an experiment where the British Government entrusted limited powers to the

Provinces. But since there was very little faith lost between the British and the Indian

people, the British took precautions to keep a sufficient check on the powers given to the

Provinces. These precautions were manifested in the form of emergency powers under

Sections 93 and 45 of this Act, where the Governor General and the Governor, under

extraordinary circumstances, exercised near absolute control over the Provinces. When it

was suggested in the Drafting Committee to confer similar powers of emergency as had been

held by the Governor-General under the Government of India Act, 1935, upon the President,

many members of that eminent committee vociferously opposed that idea. Dr. Ambedkar then

pacified the members stating:

''In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday that

the proper thing we ought to expect is that such articles will never be called into operation and

that they would 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. By virtue of this earnest advice given by the prime

architect of the Indian Constitution, we can safely conclude that this is the very last resort to be

used only in the rarest of rare events''.1

1K. Jayasudha Reddy and Joy V. Joseph, Executive discretion and article 356 of the constitution of India

(march 1, 2004)


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In spite of the assurance given by Dr. Ambedkar, Article 356 was continually misused, for 50

years, by the Centre. In the year 1951 state emergency was first time imposed in Punjab and in

the year 1957 the president rule was imposed in Kerala. From the very beginning there is

continuous misuse of constitutional breakdown. In the initial years, there were not many instances of

its use. But, with passing of years, these provisions have been invoked with increasing frequency.

This is evident from the data given below:

Period Frequency

1950-1954 3

1955-1959 3

1960-1964 2

1965-1969 9 (7 cases in 1967-69)

1970-1974 19

1975-1979 21 (9 cases in 1977)

1980-1987 18 (9 cases in 1980)2

In all there are more than hundred times that emergency has been imposed in various

states without any cause. A failure of constitutional machinery may occur in a number of

ways. Factors which contribute to such a situation are diverse and imponderable. It is,

therefore, difficult to give an exhaustive catalogue of all situations which would fall within the sweep

of the phase, the government of the State cannot be carried on in accordance with the

provisions of this Constitution. Even so, some instances of what does and what does not

constitute a constitutional failure within the contemplation of this Article, may be grouped and

discussed under the following hands:

(a) Political crisis.

(b) Intern al subversion.

(c) Physical break-down.

(d) Non-compliance with constitutional directions of the Union Executive3

Meaning of article 356

1. Article 356 carries the marginal heading "Provisions in case of failure ofconstitutional 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". If the President is

satisfied that such a situation has arisen, whether on the basis of a report received

from the Governor of the State or otherwise, he may, by proclamation, take any or all

of the three steps mentioned in sub-clauses (a), (b) and (c). It would be appropriate to

read the entire clause (1) of article 356 at this stage:

2The Sarkaria Commission Report, http://interstatecouncil.nic.in/SARCOMM.htm

3Ibid


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Clause (1) of article 356: 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) To assume to himself all or any of the functions of the Government of the State andall or any of the powers vested in or exercisable by the Governor or anybody or

authority in the State other than the Legislature of the State;

(b) To declare that the powers of the Legislature of the State shall be exercisable by

or under the authority of Parliament;

(c) To 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 anybody or authority in the State:

Provided that nothing in this clause shall authorize 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.".

Clause (2) says that such a Proclamation may be revoked or varied by a subsequent

Proclamation.

Clause (3) provides a check upon the power contained in clause (1). It says that "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"

(The proviso to clause (3) provides certain details which it is not necessary to

notice for the purpose of this paper).

Clause (4) provides that "a Proclamation approved by both the Houses of Parliament shall,

unless revoked, cease to operate on the expiration of a period of six months

from the date of issue of the Proclamation (The 44th Amendment Act reduced

the period in this clause from one year to six months). The proviso to clause (4),

however, empowers such Proclamation to be extended, beyond six months

subject to the approval of Parliament for a further period of six months at a time

subject to an outer limit of three years. The second proviso to clause (4)

provides for a specific situation which it is not necessary to refer to for the

purpose of this paper. The third proviso to clause (4) is applicable to the State of

Punjab and provides for a particular situation and is of no general relevance.

Clause (5) has been substituted altogether by the 44 th Amendment Act. The said clause was

in fact inserted by the Constitution (38th) Amendment Act, 1975 with

retrospective effect. The clause inserted by 38th Amendment Act barred judicial

review of the Proclamation issued under clause (1). Inasmuch as, it has been

substituted by the present clause (5), it is not necessary to deal with the

language or effect of clause (5) as originally inserted. The present clause (5)


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provides certain details concerning the approval contemplated by clause (3) and

is in fact a continuation of clause (4).

2. Article 357 contains certain consequential provisions relating to exercise of legislativepowers under Proclamation issued under article 356. It is not necessary to notice

them in any detail. It is, however, necessary to refer to a few more articles relevant inthis behalf.

3. Article 365 which occurs in Part XIX - Miscellaneous - provides that "where anyState has failed to comply with, or to give effect to, any directions given in the

exercise of the executive power of the Union under any of the provisions of this

Constitution, it shall be lawful for the President to hold that a situation has arisen in

which the Government of the State cannot be carried on in accordance with the

provisions of this Constitution". In the light of the language employed in article 365,

namely, non-compliance with "directions given in the exercise of executive power of

the Union under any of the provisions of this Constitution", it is necessary to refer toarticles 256 and 257 which provide for giving of such directions. The said articles

occur in Chapter II - 'Administrative Relations - General' in Part XI which deals with

relations between the Union and the States. Article 256 which carries the heading

"Obligation of States and the Union" provides that "the executive power of every

State shall be so exercised as to ensure compliance with the laws made by Parliament

and existing laws which apply in that State, and the executive power of the Union

shall extend to the giving of such directions to a State as may appear to the

Government of India to be necessary for that purpose". Article 257 which carries the

heading "Control of the Union over States in certain cases" provides in clause (1) that"the executive power of every State shall be so exercised as not to impede or

prejudice the exercise of the executive power of the Union, and the executive power

of the Union shall extend to the giving of such directions to a State as may appear to

the Government of India to be necessary for that purpose". Clause (2) of article 257

provides that "the executive power of the Union shall also extend to the giving of

directions to a State as to the construction and maintenance of means of

communication declared in the direction to be of national or military importance".

The proviso to clause (2) says that nothing in the said clause shall be taken as

restricting the power of Parliament to declare highways or waterways to be national

highways or national waterways or to give appropriate directions to the States for

their maintenance. Clause (3) says that the executive power of the Union to give

directions extends to the measures to be taken for the protection of the Railways

within the State. Clause (4) provides for reimbursement of the cost incurred by the

State in complying with or carrying out the directions given under clauses (2) and (3).

It is not really necessary to refer to articles 258 and 258A. article 258 empowers the

President to entrust certain executive functions of the Union to the States with their

consent. Similarly, article 258A provides for the States entrusting their executive

functions to the Union with its consent.

4. It is evident that article 355 insofar as it speaks of the obligation of the Union toprotect the States from external aggression and internal disturbance appears to be


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irrelevant grounds. After an elaborate discussion, the court held that the case before it did not

fall within this exception. Although all the learned Judges did not refer to clause (5),

expressely or in detail, they were very much conscious of this formidable hurdle in their way.

Clause (5) as it then stood, was as under: Notwithstanding anything in this Constitution, the

satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be

questioned in any Court on any ground4

2. In 1980, the most profound invoking of Article 356 occurred when Indira Gandhi dismissed nine

state governments. But in response to an outcry by the Opposition, Indira Gandhi finally

appointed a commission headed by Justice RS Sarkaria to analyze the relationship between

the Centre and the State. In its report submitted in 1988, the Sarkaria Commission put

forth a series of measures to prevent the misuse of Article 356, including a provision to

ensure that the governor of a particular state does not belong to the ruling party. However,

these recommendations were not incorporated into the Constitution and thus incumbent state

governments continued to be dismissed even after 1988 by the centre. However, what is

widely regarded as the ultimate verdict on Article 356 came with the Bommai case. In

1989, Article 356 had been invoked against the then Karnataka government headed by Chief

Minister SR Bommai. Bommai appealed to the Supreme Court, which ruled in his favour on 11

March, 1994. President R Venkataraman earned a stricture from the Supreme Court for his

unquestioning obedience to Prime Minister Rajiv Gandhi with regard to this case, inspite

of not having solid grounds to dismiss Bommais government and his proclamation was struck

down5

3. In S.R. Bommai case the court has clearly subscribed to the view that the power under article

356 is an exceptional power and has to be resorted to only occasionally to meet the

exigencies of special situation. The court quoted the Sarkaria commission report to give

example of situation when such power should not be 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 election to the Lok Sabha the ruling party suffer a massive defeat.6

4. S. R. Bommai v. Union of India raised serious question of law relating to Proclamation of

Emergencyand dissolution of Legislative assemblies according Article 356 of the

Constitution of India. While dealing with the question as to whether the Presidential

Proclamation under Article 356 was justiciable all the judges were unanimous in holding that

the presidential proclamation was justiciable. The Honble Supreme Court held that the

proclamation under Article 356(1) is not immune from judicial review. The validity of the

Proclamation issued by the President under Article 356[1] is judicially reviewable to the

extent of examining whether it was issued on the basis of any material at all or whether thematerial was relevant or whether the Proclamation was issued in the malafide exercise of

the power.7

5. The second question which was taken into consideration by the court was that whether the

President has unfettered powers to issue Proclamation under Article 356(1) of the

Constitution.8

4State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361

5Shewtha bhaskar, Article 356 and bommai case (Nov. 13, 2006)

6S.R. Bommai v. Union of India, (1994) 3 SCC 1

7Jaimin.Dave, S.R. Bommai v. Union of India: key to presidential proclamation under article 356 of

constitution of India,8http://www.legalserviceindia.com/article/l324-S.-R.-Bommai-v.-Union-of-India.html


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9. The apex court has also categorically observed that the article should not be invoked:

1) If any state correct itself on receiving a warning from the president ;

2) To grant relief to any state from a situation of stringent financial exigencies or due

to serious allegation of corruption:

3) To settle political dispute, internal difference and intra-party problems of the ruling part

and parties:

4) To gain Political advantages by a party in a power at the centre to the disadvantage of any

state government:

5) To distribute the democratic and federal fabric of the constitutional scheme:

6) Unless a situation of armed rebellion arises and a simple condition of internal

disturbance:14

10. The Supreme Court, being the ultimate interpreter of the Constitution, has the power of

judicial review on all actions emanating from or empowered by any constitutional

provision. Though the power of the President under Article 356 concerns his political judgment

and the courts usually avoid entering the political thicket, this power does not enjoy blanketimmunity from judicial review. It has to be determined in the individual cases on the basis of

justifiability, which is distinct from judicial review. But unless the mala fides of the

Presidential Proclamation is shown, the Courts have been exhorted by the Supreme Court to

avoid delving into the President's satisfaction for want of judicially manageable standards. This

point is amply evident in the case of Minerva Mills and Others v. Union of India and Others,

where the Supreme Court dwelt extensively on its power to examine the validity of a

Proclamation of Emergency issued by the President.

11. The Supreme Court in this matter observed, inter alia, that it should not hesitate to

perform its constitutional duty merely because it involves considering political issues. At the

same time, it should restrict itself to examining whether the constitutional requirements ofArticle 352 have been observed in the declaration of the Proclamation and it should not go

into the sufficiency of the facts and circumstances of the presidential satisfaction in the

existence of a situation of emergency10

12. The importance of judicial review in matters involving Article 356 is also emphasized in the

Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme Court

held that it was not precluded from striking down a law passed prior to a Proclamation of

Emergency, as ultra vires to the Constitution, just because the Proclamation was in force at that

time11

. After so many cases and a very pinnacle judgement given by supreme court we can

conclude that article 356 is no more come under the judiciary review and now the satisfaction

of the president is also questionable in court of law. After the S.R. Bommai case there is a fear

in the mind of political party that if they impose president rule without any grounds then the

supreme court has power to invoked the proclamation and declare null and void. The use of

article 356 was also abridge after this Landmark judgement.

10

Minerva Mills and Others v. Union of India and Others, A.I.R. 1980 SC 178911

State of Madhya Pradesh v. Bharat Singh, A.I.R. 1967 SC 1170


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SARKARIA COMMISSIONREVIEW ON Ar ticle 356:

The Sarkaria Commission has made 12 recommendations; 11 of which are related to

article 356 while 1 is related to article 355 of the Constitution. The underlined theme of the

recommendations is to promote a constitutional structure and culture that promotes co-

operative and sustained growth of federal institutions set down by the Constitution.

Should Article356be Deleted:The Commission had issued a consultation paper along with

a questionnaire with a view to elicit the views and responses of the public? Large majority of

the responses were against deletion of article 356 but favoured its being suitably amended to

prevent misuse. There are three patent reasons which require the retention of the article:

(i) Article 356 and related provisions were regarded as a bulwark of the Constitution,

an ultimate assurance of maintaining or restoring representative government in

States responsible to the people.

(ii) In a fairly large number of cases the invocation of article 356 has been found tohave been not only warranted but inevitable.

(iii) If this article is deleted, article 365 would lose relevance and use of article 355 in

the absence of 356 might bring a drastic change in Union-State relations which

may be worse from the point of view of both the States and the Union.

So, The Commission is, therefore, not in favour of deletion of arti cle 356.

In Chapter Six of its Report, the Sarkaria Commission has set out in detail the

number of times the power under article 356 was used. It has classified them into four

categories.

A-When Ministry Commanded Majority: President's Rule was imposed in 13 cases even

though the Ministry enjoyed a majority support in the Legislative Assembly. These cover

instances where provisions of article 356 were invoked to deal with intra-party problems

or for considerations not relevant for the purpose of that article. President's Rule was

imposed in 13 cases even though the Ministry enjoyed a majority support in the

Legislative Assembly. These cover instances where provisions of article 356 were invoked

to deal with intra-party problems or for considerations not relevant for the purpose of that

article. The proclamation of President's Rule in Punjab in June 1951 and in Andhra

Pradesh in January 1973 are instances of the use of article 356 for sorting out intra-party

disputes. The imposition of President's rule in Tamil Nadu in 1976 and in Manipur in 1979

were on the consideration that there was maladministration in these States.

B-Chance not given to form alternative Government: In as many as 15 cases, where the

Ministry resigned, other claimants were not given a chance to form an alternative

government and have their majority support tested in the Legislative

Assembly. Proclamation of Presidents rule in Kerala in March 1965 and in Uttar Pradesh

in October 1970 is examples of denial of an opportunity to other claimants to form a

Government.

C-No caretaker Government formed: In 3 cases, where it was found not possible to forma viable government and fresh elections were necessary, no caretaker Ministry was

formed.


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D-President's rule inevitable: In as many as 26 cases (including 3 arising out of States

Reorganisation) it would appear that President's rule was inevitable. Situations arising out

of non-compliance with directions of the type contemplated in article 365 have not

occurred so far."

To the above four categories must be added another category of wholesale dismissalof State governments and State Legislative Assemblies.

1. In considering the issues raised regarding article 356 the Commission found that agreat part of the remedy to prevent its misuse lies in the domain of creating safeguards

and constitutional conventions governing its use. The ultimate protection against the

misuse of article 356 lies in the character of the political process itself. The

Commission is, therefore, for generating a constitutional culture that relies on

conventions and treats them with same respect as a constitutional provision.

2. Article 356 has been lodged in the Constitution as a bulwark, a giant protection and aremedy of the last resort. The invocation of article 356 is a constitutional device, the

operation of which is vested in the executive domain. In invocation, it is therefore

essential to preserve its stature in the constitutional scheme. If the exercise of this

power is perceived to yield to political expediency, it will greatly damage the majesty

of the executive power and the federal balance. The Commission, therefore,

recommends, in the spirit of the framers of the Constitution, that article 356 must be

used sparingly and only as a remedy of the last resort and after exhausting action

under other articles like 256, 257 and 355.

3. It has been widely represented that the process of invocation of article 356 mustfollow the principles of natural justice and fair consideration. This aspect also

weighed heavily during discussions in the Constituent Assembly and the Chairman of

the Drafting Committee had hoped that warning would be given to the errant States

and they would be given an opportunity to explain their position. One other issue

regarding the issue of such a warning is whether it should be made public or given

wide publicity. The Commission have considered this aspect very carefully and have

come to the conclusion that taking this matter to the public domain at this stage may

apparently allow for transparency but is likely to generate a great deal of heat in the

political domain providing the anti-social forces a free play for social disharmony and

violence. It may also encourage from the very outset a process of litigation that mayapply continuous brakes in exercise of the executive responsibility.

4. The Commission feels that in a large number of cases where article 356 has beenused, the situation could be handled under article 355 i.e. without imposing

President's rule under article 356. It is most unfortunate that article 355 has hardly

been used.

5. In case of political breakdown, the Commission recommends that before issuing aproclamation under article 356 the concerned State should be given an opportunity to

explain its position and redress the situation, unless the situation is such, that

following the above course would not be in the interest of security of State, or defence

of the country, or for other reasons necessitating urgent action.


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The Commission recommends that normally Presidents Rule in a State should be

proclaimed on the basis of Governors Report under article 356(1). The Governors report

should be a speaking document, containing a precise and clear statement of all material

facts and grounds, on the basis of which the President may satisfy himself, as to the existence

or otherwise of the situation contemplated in article 356.CRITICAL ANALYSIS OF Ar ticle 356:

In India, the specific topic of failure of constitutional machinery in the States is dealt

with, in three articles of the Constitutionarticles 355 to 357 and 365of which, article 356

is the one most talked about and subject of controversy allegedly on grounds of having been

frequently misused and abused.

It is important that article 356 is read with the other relevant articles viz. articles 256,

257, 355 and 365. Insofar as article 355 also inter alia speaks of the duty of the Union to

protect the State against external aggression and internal disturbance and to ensure that the

government of the State is carried on in accordance with the Constitution, it is obvious that

article 356 is not the only one to take care of a situation of failure of constitutional

machinery. The Union can also act under article 355 i.e. without imposing President's

rule. Article 355 can stand on its own. Also, Union Government can issue certain directions

under articles 256 and 257. While article 356 authorises the President to issue a

proclamation imposing President's rule over a State 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 this Constitution, article 365 says that where a State fails to comply with Union directions

(under articles 256, 257 and others) "it shall be lawful for the President to hold that a

situation has arisen in which the Government of the State cannot be carried on in accordancewith the provisions of this Constitution". The scheme of the Constitution seems to clearly

suggest that before rushing to issue a proclamation under article 356, all other possible

avenues should be explored and as Dr. Ambedkar said, article 356 should be used only as a

matter of last resort. It should first be ensured that the Union had done all that it could in

discharge of its duty under article 355, that it had issued the necessary directions under

articles 256-257 and that the State had failed to comply with or give effect to the directions.

USE-MISUSE OF Article 356:

Since the coming into force of the Constitution on 26 January 1950, article 356 and

analogous provisions have been invoked 111 times. According to a Lok Sabha Secretariat

study, on13 occasions the analogous provision namely section 51 of the Government of

Union Territories Act 1963 was applied to Union Territories of which only Pondicherry had a

legislative assembly until the occasion when it was last applied. In the remaining 98

instances the article was applied 10 times technically due to the mechanics of the Constitution

in circumstances like reorganisation of the States, delay in completion of the process of

elections, for revision of proclamation and there being no party with clear majority at the end

of an election. In the remaining 88 instances a close scrutiny of records would show that in as

many as 54 cases there were apparent circumstances to warrant invocation of article

356. These were instances of large scale defections leading to reduction of the ruling partyinto minority, withdrawal of support of coalition partners, voluntary resignation by the

government in view of widespread agitations, large scale militancy, judicial disqualification


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of some members of the ruling party causing loss of majority in the House and there being no

alternate party capable of forming a Government. About 13 cases of possible misuse are such

in which defections and dissensions could have been alleged to be result of political

manoeuvre or cases in which floor tests could have finally proved loss of support but were

not resorted to. In 18 cases common perception is that of clear misuse. These involved thedismissal of 9 State Governments in April 1977 and an equal number in February 1980. This

analysis shows that number of cases of imposition of Presidents Rule out of 111, which

could be considered as a misuse for dealing with political problems or considerations

irrelevant for the purposes in that article such as mal-administration in the State, are a little

over .

BOMMAI VERDICT HAS CHECKED MISUSE OF Ar ticle 356:

Justice B.P. Jeevan Reddy, former judge of the Supreme Court, had a key role in the

March 11, 1994 judgment in theBommai case. He was part of the apex court's majority

opinion and wrote an eloquent judgment, along with Justice S.C. Agrawal, dealing with bothfederalism and secularism that is widely appreciated.

The article which is meant for saving unity and integrity of nation is being used

against democracy and federal spirit. The ruling party at centre is imposing article 356

against the opposition and local parties. This is used for more than 100 times. Article 356

was first used by Congress government on Communist party which was ruling Kerala at that

time. There were controversial decisions regarding usage of this article. The ruling party at

centre appoints Governor generally. Hence, Governor is regarded to be the agent of centre

rather than first citizen of the concerned state. Governor, as appointed by centre will act as

per the will of centre and can do favour by sending a report against party which is not relatedto ruling party at centre. As referred by the Governor, President may give permission to use

article 356 on that state. Actually President has nominal authority and real authority lies with

cabinet to take decision regarding it. So, the real authority is in the hands of ruling party at

centre. This is the reason this article is being misused. However, in Bommai case, Supreme

Court has laid some restrictions on usage of article 356. To know restrictions on usage of

article 356, visitS.R. Bommai case and restr iction on usage of ar ticle 356.

CONCLUSION

At last we can determine that article 356 is the death of constitutionalism and the death of

federalism too the concept of constitutionalism is all about to restrain or curtail the power.

However article 356 provide such a noxious power to the central government which was

used more than hundreds of time in the history of Indian politics. Now it is very necessary

to know that article 356 is not limited up to the state emergency, it is not limited up to

the political breakdown but article 356 become the dark side of Indian Democracy.

Article 356 is no further dead letter of our constitution. Nevertheless become the most

renewed article which was used more than hundred times in the history of Indian

politics. It is good for us if we amend article 356 and added the guideline given by

Sarkaria commission or annihilate article 356 from our constitution to prevent mala

fide use of this article. However after the intervention of one of the three pillar of

our constitution, yes I am talking about Indian judiciary the frequently use of article
http://www.indiastudychannel.com/resources/140953-S-R-Bommai-case-restriction-usage.aspxhttp://www.indiastudychannel.com/resources/140953-S-R-Bommai-case-restriction-usage.aspxhttp://www.indiastudychannel.com/resources/140953-S-R-Bommai-case-restriction-usage.aspx


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356 was a bridge and after S.R.Bommai case where supreme court provide the proper

guidelines for the proclamation of state emergency and has power to invoke and declare

it null and void if the proclamation was imposed without any cause show case the it is

very necessary that the proclamation of article 356 should be used in rare of the rarest

case where it require. In my suggestion that union should not use 356 as theirpersonal benefit but for public assistance. It is up to those in power to ensure its

judicious use, so as to benefit ultimately citizens when they are genuinely hampered by

dysfunctional governance. According to me article 356 require certain amendment as given

below:

1) The governor of a state should submit their report to the president and chief justice

of high court and if both are agree that state is not working in accordance with the

constitution then only president rule was imposed.

2) During state emergency union has no power to amend or make any law in matter of state

list .

3) The satisfaction of the president is not the satisfaction of the central government.

4) The clause or otherwise should be removed from the article 356 because it give

power to the union government to impose state emergency without governor report.

5) It is necessary that president should not work in accordance with the central government,

but he should work in accordance with the constitution of India.

6) Before proclamation of state emergency the governor report and president satisfaction

on the governor report should be published in daily newspaper.


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BIBLIOGRAPHY

1. G. Austin, The Indian Constitution Cornerstone of a Nation, 187; K.C. Wheare,Modern Government (1971) 18; Jennings, Some Characteristics of the Indian

Constitution, 55; D.D. Basu, Commentary on the Constitution of India, 7th Edn., Vol.

A, 55.2. See, Constituent Assembly Debates, Vol. IX, 141.3. Ibid, at p. 143.4. Ibid, at p. 177.5. Sarkaria Commission, Report on Centre-State Relationship (1983-1988), see also,

National Commission to Review the Working of the Constitution, Report, I, S. 8.16

(2002) and D.D. Basu, in his book, Introduction to Constitution of India, (19th Edn.)

at p. 483 says no provision of the Constitution has been so often used, misused,

and abused as Article 356, 108 times since 1954.

6.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.7. Also see, Soli J. Sorabjee, The Governor: Sage or Saboteur, Roli Book, New Delhi,

1985, p. 88 (The public today generally regard the Governor as the employee of the

Central Government, that in some cases the spy of the Centre).

8. AIR 1965 Ker 229.9. The Governor shall from time to time summon the House or each House of the

Legislature of the State to meet.

10.K.K. Aboo v. Union of India, AIR 1965 Ker 229 at p. 232, para 8.11.Supra n. 8.12.AIR 1968 P&H 441.13.Ibid, at p. 447, para 9.14.Rao Birinder Singh v. Union of India, AIR 1968 P&H 441.15.AIR 1973 Cal 233 at p. 238, para 18.16.State of Rajasthan v. Union of India, (1977) 3 SCC 592.

a judicial review of article 356

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