Presidential Emergency

Written By: Sushmit Parsai

(ARTICLE 356 OF THE INDIAN CONSTITUTION)

What is Article 356 of the Indian Constitution?

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 “he is satisfied that a situation has arisen in which the government of the state cannot be carried on as per the provisions of the Constitution”.

There would be no Council of Ministers if this regulation were implemented. Either the Vidhan Sabha is dissolved or the Vidhan Sabha is prorogued.

The state will be directly controlled by the Union government, and the Governor will continue to preside over proceedings on behalf of the President of India, who is also the state's Head of State.

The imposition of the President's rule must be approved by both chambers of Parliament.

It can be extended for a duration of six months if allowed. The imposition, however, cannot be extended for more than three years and must be presented to the two houses for approval every six months.

Provisions Under Article 356

PRESIDENT’S RULE OR ARTICLE 356

The establishment of the President's Rule in any state requires parliamentary consent. Within two months of its issuance, the President's Rule proclamation must be ratified by both Houses of Parliament. A simple majority is required for approval.

The President's Rule is in effect for six months at first. It can then be renewed every six months for another three years with parliamentary approval.

The 44th Amendment to the Constitution (1978) brought in some constraints on the imposition of the President's Rule beyond a period of one year. It says that President's Rule cannot be extended beyond one year unless:

1. There is a national emergency in India.

2. The Election Commission of India certifies that it is necessary to continue the President's Rule in the state because of difficulties in conducting assembly elections in the state.

What happens after the president’s rule is imposed?

1. On behalf of the President, the governor oversees the state's administration. He or she enlists the assistance of the state's Chief Secretary as well as other experts and administrators that he or she can choose.

2. The President has the authority to announce that the powers of the state legislature would be exercised by Parliament.

3. The President would either suspend or dissolve the state legislative assembly.

4. When Parliament is not in session, the President has the authority to issue ordinances governing the state's administration.

When is the president’s rule imposed ?

It has been seen that the President's Rule has been imposed when any one of the following circumstances have occurred:

1. For a period set by the state's governor, the state legislature is unable to elect a leader to serve as Chief Minister.

2. Breakdown of a state government coalition, resulting in the CM having minority support in the legislature and being unable to prove his majority within the governor's deadline.

3. A vote of no confidence in the legislative assembly resulted in the loss of the majority.

4. Elections are postponed due to unforeseen circumstances such as natural disasters, epidemics, or war.

Revocation:

• A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation.

• Such a proclamation does not require parliamentary approval.

Background of Article 356:

This provision was taken from Section 93 of the Government of India Act of 1935. This clause was met with strong criticism from independence fighters at the time, forcing the British administration to suspend it. However, for the sake of preserving democracy, federalism, and stability in the post-independence age, this provision was placed into the Constitution.

Political Misuse of Article 356:

Article 356 gave the Central government wide powers to stamp its authority on the state governments. Although it was meant only as a means to preserve the integrity and unity of the country, it had been used blatantly to oust state governments that were ruled by political opponents of the centre. Article 356 gave the Central government wide powers to stamp its authority on the state governments. Although it was meant only as a means to preserve the integrity and unity of the country, it had been used blatantly to oust state governments that were ruled by political opponents of the centre.

1. The Sarkaria Committee said in 2015 that it has been utilized over 100 times since independence. It was nearly always employed for political reasons rather than to solve a genuine problem.

2. Former Prime Minister Indira Gandhi utilized Article 356 27 times to depose majority governments, citing political stability, a lack of a clear mandate, or withdrawal of support, among other reasons.

3. When the Janata administration became the government for the first time in 1977, they dismissed nine state Congress governments.

4. Because of the state's profoundly fractured internal politics and long periods of conflict, Manipur has seen the most frequent use of Article 356.

5. The politically important states of Uttar Pradesh and Bihar, with their divided political systems, have been on the on the centre’s radar.

Case of AP High Court: December 2020:

Issue: The Supreme Court has stayed an Andhra Pradesh High Court order intending to embark on a judicial inquiry into whether there is a constitutional breakdown in the State machinery under the Jagan Mohan Reddy government, requiring a declaration of President’s rule.

Explanation: Article 356 of the Constitution deals with the topic of “constitutional breakdown” or the failure of constitutional machinery. As per the article, invoking comes under the prerogative of the executive and not the judiciary. The Andhra Pradesh High Court cannot enquire and recommend President’s rule in a State.

S.R. Bommai Vs. Union of India Case and Article 356

The Issue: S.R. Bommai was the Chief Minister of the Janata Dal government in Karnataka between August 13, 1988, and April 21, 1989. His government was dismissed on April 21, 1989, under Article 356 of the Constitution and President’s Rule was imposed, in what was then a most common mode to keep Opposition parties at bay. The dismissal was on grounds that the Bommai government had lost the majority following large-scale defections engineered by several party leaders of the day. Then-Governor P. Venkatasubbaiah refused to allow Bommai to test his majority in the Assembly despite the latter presenting him with a copy of the resolution passed by the Janata Dal Legislature Party. Bommai went to court against the Governor’s decision to recommend President’s Rule. First, he moved to the Karnataka High Court, which dismissed his writ petition. Then he moved to the Supreme Court.

Supreme Court Judgement:

The case took almost five years to see a logical conclusion and on March 11, 1994, a ninejudge Constitution Bench of the Supreme Court issued the historic order, which in a way put an end to the arbitrary dismissal of State governments under Article 356 by spelling out restrictions.

Guidelines laid down by the Supreme Court:

In the said case, the SC laid down certain guidelines to prevent the misuse of Article 356 of the constitution.

• The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.

• The centre should give a warning to the state and a time period of one week to reply.

• The court cannot question the advice tendered by the Council of Ministers to the President but it can question the material behind the satisfaction of the President.

• 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.

• Article 356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery.

• Article 356 shall be used sparingly by the centre; otherwise, it is likely to destroy the constitutional structure between the centre and the states. The recent Andhra Pradesh HC observation violated the Basic Structure doctrine of the Constitution. This is a serious encroachment on the powers of the executive as enumerated under the Constitution and is thus violative of the doctrine of separation of powers.

The Supreme Court's nullification of the AP High Court order would ensure that all legal adventures concerning the separation of powers in the State are minimized. However, significant constitutional amendments are needed to avoid repeated misuse of Article 356.

Conclusion:

It has an impact on the nation's federal structure, essentially turning it into a unitary one while attempting to protect the nation's and people's interests. Although the suspension of fundamental rights has been often attempted to be justified, we believe that they are the most basic to the inhabitants' mere existence in a democracy. Even with the safeguards enacted by the 44th Amendment Act, there is still a risk of unjust violations of fundamental rights. As a result, the courts should accept the power to conform to the volume the Centre can expand its powers, as it will operate as a mechanism to regulate the arbitrary use of the discretionary powers given to the parliament and the executive under the emergency provisions.