Presidential Rule under the Constitution of India

Submitted To: Dr. Pradeep Kumar Submitted By: Sumit Singh Saini

Enrolment no. 1901107

Section- B

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Contents
INTRODUCTION...........................................................................................................................................4
HISTORICAL BACKGROUND.........................................................................................................................4
THE SCOPE OF ARTICLE 356.........................................................................................................................4
‘On the receipt of a report from the Governor or otherwise'..................................................................5
‘A situation has arisen in which the government of the State cannot be carried in accordance with the
provisions of this Constitution'................................................................................................................5
‘Satisfaction'............................................................................................................................................6
JUDICIAL REVIEW UNDER ARTICLE 356........................................................................................................6
PRESIDENT’S RULE IN PRACTICE..................................................................................................................6
S.R. BOMMAI CASE......................................................................................................................................7
PRE S.R. BOMMAI SCENARIO...................................................................................................................7
JUDGEMENT IN S.R BOMMAI..................................................................................................................9
POST S.R BOMMAI SCENARIO................................................................................................................10
Rameshwar Prasad v. Union of India.................................................................................................10
CURRENT SITUATION IN INDIA..................................................................................................................11
Failure to invoke Emergency Powers.....................................................................................................12
CONCLUSION.............................................................................................................................................12

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 Table of Cases

1. Rameshwar Prasad v. Union of India, 2006

2. State of Rajsthan v. Union of India AIR 1977
3. Samsher Singh v. State of Punjab AIR 1974
4. Rameshwar Prasad v. Union of India,2006
5. K.K. Aboo v. Union of India, 1965
6. Rao Birender Singh v. State of Haryana, 1968
7. Hanumantha Rao v. State of Andhra Pradesh, 1975
8. Bijayananda Patnaik v. President of India, 1974
9. S.R Bommai v Union of India, 1994

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INTRODUCTION
Article 356, which empowers the President to impose President’s rule in the States, has been in
controversy right from its inclusion in the Constitution. Article 356 incorporated in the
Constitution of India gives the President, the power to impose President’s rule in States, where
he, 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. This is an emergency provision where the Union Government
may extend its powers into domains normally reserved for the States. Both houses of the
Parliament must ratify this proclamation: failure to do this would result in the proclamation
expiring in two months. If the proclamation is ratified, it cannot last beyond six months. The use
of the word ‘otherwise’, which was not included in the original draft, has received a lot of flak
over the years, as it makes the President more susceptible to pressure from those in power.

HISTORICAL BACKGROUND
Doubts and fears were expressed in the Constituent Assembly that this power in the hands of the
Chief Executive might be misused by the Centre against the States for partisan ends when the
parties governing the Centre and the States would be different. Prof. Shibban Lal Saxena felt that
by these Articles, the autonomy of the States had been reduced to a farce1.Pandit H.N. Kunzru
maintained that the instability resulting from a large number of political groups in a State
Legislature would not justify Central intervention. Dr. Ambedkar hesitantly admitted to the
possibility of the emergency provisions being employed for political reasons by stating: “The
proper thing we ought to expect is that such article will never be called into operation and that
they would remain a dead letter”.

THE SCOPE OF ARTICLE 356

Under Article 356(1) if the President, on the receipt of 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 in accordance with the Provisions of the 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 the 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
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suspending in whole or part the operation of any provisions relating to any body or authority in
the State.

The proviso to Article 356 (1) rules out the assumption of the powers of the High Court. The
proclamation of dissolution has to be ratified within 2 months by both Houses of the Parliament.

2 The power under Article 356 (1) is an emergency provision but is not an absolute power. The
power is conditional, the condition being the formation of satisfaction of the President as
contemplated by Article 356(1)1. Thus,

the power is to be exercised by the President in exceptional circumstances, as Emergency itself

means a situation which is not normal, a situation which calls for urgent, remedial action. But
interestingly, Article 356 nowhere uses the expression „Emergency'. 2The expressions under
Article 356 may be elaborated as follows:

‘On the receipt of a report from the Governor or otherwise'

Like the President, the Governor is to act in accordance with the aid and advice of the Council of
Ministers by virtue of Article 163(1). The Governor's report for the imposition of President's rule
will fall within the ambit of the discretionary power as in Article 163(2) of the Constitution. This
is so because the Governor cannot possibly act in accordance with the advice of the Council of
Ministers, who cannot give an advice prejudicial to their interest.3

The expression „or otherwise' means that the President may act on the information received from
sources other than the Governor's report. This includes reports from a Union Minister or from the
Council of Ministers. The President can only act in accordance with the advice of the Council of
Ministers. The dissolution can also be ordered on the satisfaction that a situation has arisen in
which the Government of the State cannot be carried in accordance of the provisions of the
Constitution. Satisfaction can be reached by the President on report from the Governor of the
State, or on other material or solely on the report itself. Even in the absence of report, other
relevant materials can be taken into consideration by the President for dissolution. This
expression „or otherwise' is thus of very wide amplitude.4

The Governor however is not the decision making authority under Article 356. His report will be
scrutinized by the Council of Ministers and the final decision is by the President under Article
174 of the Constitution.5

1
Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, 94 para. 96
2
State of Rajsthan v. Union of India AIR 1977 SC 1361 at paras. 169, 188-A, 201
3
Samsher Singh v. State of Punjab AIR 1974 SC 2192 paras. 55, 138
4
Rameshwar Prasad v. Union of India (2006) 2 SCC 1, 79 at para. 43
5
Ibid

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‘A situation has arisen in which the government of the State cannot be carried
in accordance with the provisions of this Constitution'
The marginal note to Article 356 uses the words „failure of constitutional machinery in States'
while Clause (1) uses the words „cannot be carried on in accordance with the provisions of the
Constitution'. The latter expression is of a very wide import meaning thereby failure to comply
with each and every provision of the Constitution. The leading opinions in State of Rajasthan v.
Union of India6 , per Beg C.J. (vide paras. 28, 39 and 40) Chandrachud J (vide para. 124),
Bhagawati J (vide para. 137) and Fazl Ali J (vide para. 209) gives a wider meaning to the
expression equating it with „breakdown of the constitutional machinery'. The interpretation will
be discussed at length in light of the judicial pronouncement in S.R. Bommai and Rameshwar
Prasad cases.

‘Satisfaction'
The expression „satisfaction' means not the personal satisfaction of the President but a legitimate
inference drawn from the material placed before him. This satisfaction is the satisfaction of the
Council of Ministers. Under Article 74(1), the President is to act on the aid and advice of the
Council of Ministers.

JUDICIAL REVIEW UNDER ARTICLE 356

The question of judicial review under Article 356 has come up for consideration before the
Courts in several circumstances. The first such instance was in the Kerala High Court in K.K.
Aboo v. Union of India.7 In that case the Court refused to go into the constitutionality of the
proclamation under Article 356. Later in Rao Birender Singh v. State of Haryana8, it was held
that the President while exercising power under Article 356 did not act on behalf of the executive
of the Union but in a constitutional capacity and hence the exercise of power by the President
was not amenable to the jurisdiction of the Court. The scope was considered in greater detail in
A. Sreeramula, In Re, where it was held that judicial review was barred for a proclamation under
Article 356 as the Presidential satisfaction is basically a political issue and the Court did not want
to go into an intrinsic political question. The same view was followed by the Andhra Pradesh
High Court in Hanumantha Rao v. State of Andhra Pradesh 9and the Orissa High Court in
Bijayananda Patnaik v. President of India. 10Thus, the Courts gave support to the action of the
Central Government. Interestingly, none of them came for consideration before the Supreme
Court.. The Supreme Court faced the question for the first time in State of Rajasthan v. Union of
India. 11(Hereinafter the State of Rajasthan case).

6
AIR 1977 SC 1361
7
AIR 1965 Ker. 229
8
AIR 1968 P&H 441
9
(1975) 2 An WR 277
10
AIR 1974 Ori. 52
11
AIR 1977 SC 1361

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PRESIDENT’S RULE IN PRACTICE
Article 356 was brought into operation as early as 1951. 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 12:
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)

1987-1999.......................................................................................................................20

2000-2013........................................................................................................................10

S.R. BOMMAI CASE

PRE S.R. BOMMAI SCENARIO
Before 1994, the Supreme Court of India witnessed a case that raised substantive questions about
Article 356. In State of Rajasthan v. Union of India [5] , the court interpreted the Article in what
is called the narrow sense.

As the facts unfold, the Janata Party had assumed majority at the centre after defeating the
hitherto leading Congress party. In view of that, the Union Home Minister, Charan Singh sent
across a message to the Governors in the states of Himachal Pradesh, Haryana, Madhya Pradesh,
Orissa, Punjab, Rajasthan and West Bengal threatening to dissolve the Legislative Assemblies in
these states by way of a Proclamation issued under Article 356 of the Constitution of India,
forcing the State governments to conduct fresh elections owing to the massive defeat of the
Congress party. The States contended that the circumstance upon which President’s Rule was
being invoked was incoherent. The Supreme Court however, dismissed the petition of the States
and announced that Article 356 was not being used for mala fide intentions. Justice P.N.
Bhagwati while pronouncing the judgement said:
12
The Sarkaria Commission Report

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“The satisfaction of the President under Article 356 is a subjective one and cannot be tested by
reference to any objective tests or by judicially discoverable and manageable standards."13

Thus, the court ousted Article 356 from being subjected to judicial review and said that the court
cannot venture into the correctness or adequacy of the situation or circumstances that convinced
the central government to issue Proclamation under Article 356. To avoid criticism, the court
further also stated that if prima facie evidence pointing towards the President’s satisfaction being
based on wholly irrelevant or extraneous grounds is found, it is only then that the court will have
jurisdiction to scrutinize any petitions filed for revocation of Proclamation issued under Article
356. The scope of keeping a check on the exercise of power under Article 356 became difficult,
if not impossible because there was no way information regarding the circumstances or facts on
which the satisfaction is based could be known.

Another important development that took place before the case of Bommai was ever heard, was
the establishment of the Sarkaria Commission. Fearing their loss of autonomy, the states
pressurized their respective Chief Ministers to prompt the centre to form a committee to study
centre – state relations in order to elucidate their status in the federation of India. As a result of
the constant nagging by the states, the then Prime Minister, Mrs. Indira Gandhi constituted
formation of a commission to study union – state relations that was headed by Justice Ranjit
Singh Sarkaria 14which presented its report in the year 1988. The Sarkaria Commission
recommended that the extraordinary power contained in Article 356 should be used very
sparingly, only when all other alternatives have failed. In respect to the federal structure and
exercise of power under Article 356, the commission made the following major observations:

 Invoking Article 356 to solve any political crisis or intra party disturbances would be a
misuse of the Article;
 If any state calculatingly pursues policies that are unconstitutional, it would invite the
President’s rule but only after due warnings and chances to rectify have been given;
 Article 356 can be invoked if a state refuses to follow directions issued by the centre
during the period of emergency as given under Article 353 of the Constitution of India;
 The concept of a caretaker government was introduced wherein when no party forms a
majority in the assembly and fresh elections can be held, the outgoing ministry would be
asked to stay as a caretaker government till a new government is formed, provided that
the ministry was defeated due to majority or unconstitutional policy concerns and in no
way was connected to any practice of corruption or maladministration etc. The caretaker
government must just perform the day to day jobs of the ministry and refrain from
making any policy decisions.

13
State of Rajasthan v Union of India (1978) 3 SCC 592
14
Ministry of Home Affairs, Report of the Sarkaria Commission, GOVERNMENT OF INDIA (Jun. 9, 1983),
http://interstatecouncil.nic.in/report-of-the-sarkaria-commission/#

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  Article 356 should be amended to clearly state that the Proclamation issued by the
President does not have the power to dissolve State Assemblies prior to the assent of both
the Houses

The Sarkaria Commission thus tried to remind the centre to follow the concept of cooperative
federalism in a hope to abstain them from abusing the power given under Article 356.

JUDGEMENT IN S.R BOMMAI

The judgment delivered by 9 judge’s special Constitutional Bench of the Supreme Court in S.R.
Bommai v Union of India15 changed the whole course of Article 356. This decision overruled the
judgement given in State of Rajasthan vs. Union of India16 as the court proceeded to scrutinize
all aspects of the Article and reduced the scope and power exercised under it. Though the
recommendations of the Sarkaria Commission did not have a binding force, the Supreme Court
took the recommendations into consideration and respectfully endorsed them. 17

In 1989, the Janata Dal formed the government in Karnataka State Legislative Assembly headed
by S.R. Bommai. The apple of discord came into picture when a number of legislators defected
from the party and it became difficult to assess if the Government formed under the Chief
Minister, S.R. Bommai still assumed majority in the House. Bommai asked the Governor to call
for a meeting of the House so that he could prove his majority on the floor of the house. The
governor ignored that suggestion and went on to intimate the President to impose President Rule
in Karnataka; and the President did issue a proclamation in the same effect.

Bommai filed a petition in the Karnataka High Court challenging the validity of the Proclamation
issued by the President. The court dismissed the petition so filed but opined that Article 356(1) is
not absolutely out of the realm of judicial review and the court can assess the basis of the
President’s ‘satisfaction’ to be based only on rational facts and circumstances. The extent of
judicial inquiry was therefore limited to an assessment whether the divulged reasons bear any
cogent nexus to the proclamation issued under Article 356.

When the case came to the Hon’ble Supreme Court, the 9 judge bench realized that the only way
to curb the abuse of federal principles is by way of an expanded scope of judicial intervention. A
third party involvement in the Centre – State hostility was finally sought necessary. On the basis
of agreement among the judges the following rulings can be enunciated in relation to Article 356
(1) and the scope of judicial review there under:

15
S.R Bommai v Union of India AIR 1994 SC 1918, (1994) 3 SCC 1
16
Supra note 13
17
Hon’ble Justice Sawant J. ‘We respectfully endorse the first measure viz. of warning to which the president
should resort before rushing to exercise of the power under article 356(1)’, SR Bommai v. Union of India ( Mar. 11,
1994), https://indiankanoon.org/doc/60799/

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  The proclamation of President’s Rule is subject to judicial review on grounds of mala
fide intentions.
 The contention of the Governors stating that the advice tendered by the ministers to the
President cannot be inquired into by any court 18was held to not bar the scrutiny of the
material based on which imposition of President’s Rule took place. The centre would thus
have to justify the reasons behind issuance of Proclamation.
 If the Proclamation is found unconstitutional or invalid, the Court will have jurisdiction
to restore status quo ante and therefore have the power to revive dissolved or suspended
Legislative Assemblies. The exercise of this power by the Court is necessary to avoid
judicial review being rendered fruitless.19
 No State Legislative Assembly can be dissolved before the Proclamation is approved by
both the Houses of the Parliament. The president can only suspend the Assemblies prior
to Parliament’s assent.
 Allegations of serious corruption, maladministration or financial instability are not
considered as valid grounds for imposing President’s Rule. The court made it clear that
there should be a breakdown of ‘constitutional machinery’ in the States and not mere
‘administrative machinery’.
 The State Governments will be given warnings and opportunities to rectify itself
 If Ministry of a State resigns, loses majority, or is dismissed, the Governor must always
undertake measures for the formation of an alternative Government before intimating the
President to use his powers under Article 356(1).
 Power available under Article 356 is an exceptional power and should only be used in
case of exigencies or ‘situation of impasse’.20

POST S.R BOMMAI SCENARIO

The Supreme Court’s judgement is binding on all the courts in the Indian subcontinent, meaning
no lower court has the authority to go against a Supreme Court’s decision in any of the cases that
come before it. Thus developments post the Bommai judgement are evident from the various
cases that cited S.R Bommai and upheld the directions issued by the Supreme Court.

Rameshwar Prasad v. Union of India

This case is regarding the Bihar Legislative Assembly Elections of 2005 and is one of its kind.
Bihar assembly had a total number of 243 seats and for assuming majority, a party needed to
secure at least 122 of those seats. After the elections however, no party was seen to secure the
minimum qualifying seats to form a government. Moreover, none of the parties agreed to form a
coalition too. The legislators then starting defecting from their respective parties and some
ministers were even bidding to make certain other ministers a part of their own party. Seeing

18
INDIA CONST. art. 74, cl. 2.
19
Hon’ble Justice Sawant J. & Justice Kuldip Singh, S.R Bommai v Union of India (Mar. 11, 1994),
https://indiankanoon.org/doc/60799/
20
Ibid

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such unethical situations prevail, the Governor sent a report to the President informing him of the
situation of the State of Bihar and the presence of horse trading in the House. On account of this
Dr. APJ Abdul Kalam, the then President of India imposed President’s Rule in Bihar on 23rd
May 2005, even before the Assembly had its first meeting. The political uprising that followed
saw several writ petitions being filed in the Supreme Court of India21. The legislators of the state
contented that since the Assembly hadn’t officially met even a single time, it wasn’t functional
and a non-functional Assembly cannot be dissolved. The Supreme Court too declared the
dissolution of Bihar’s Assembly unconstitutional by a majority of 3:2. It was held that if the
court is of the opinion that a particular action of Governor has been performed with an incorrect
intention and directly endangers the sanctity of the Constitution of India, then the court has the
right to examine such an act and check its Constitutionality and legality.22

CURRENT SITUATION IN INDIA

The present situation in India shows that the ‘dead-letter’ provision - as Dr. Ambedkar hoped it
would be - has become a frequently invoked, not-so-dead Article; it has been activated 119 times
till today. The National Commission to Review the Working of the Constitution (NCRWC),
which was established on February 22, 2000, on the basis of a joint resolution of the Government
of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs),
submitted its extensive report in March 2002. In its analysis, the NCRWC stated that in at least
twenty out of the more than one hundred instances, the invocation of Article 356 might be
termed as a misuse. It is difficult to believe that, during his tenure as the Governor of the State of
Uttar Pradesh. Romesh Bhandari made any real effort to install a popularly elected government
or to conduct a constitutionally mandated floor-test to test the strength of the Legislative
Assembly in the State for identifying a majority party before prompting the application of the
Article by the President.

After the fall of the Mayawati Government in the State of Uttar Pradesh, it might have been
justifiable to impose President’s Rule. But it was also necessary to hold fresh elections as soon as
possible. The mala fides of the Union Executive in preventing the assumption of office by an
unfavorable political entity became clearly manifest in Governor Bhandari’s actions and the
decision of the United Front Government at the Center, to re-impose President’s Rule in Uttar
Pradesh. The worst damage may possibly have been done through the office of the Governor,
because the Governor cannot be held responsible for his or her actions. H. M. Seervai pointed
out that the Governor can be removed only by the President and that the President acts on the
advice of the Council of Ministers; hence the Governor is in office pretty much at the pleasure of
the Union Executive. This may act as a bias whenever the Governor’s duty requires him to go
against the desires of the Union Executive. In its report, the NCRWC recommended that the
21
INDIA CONST. art. 32, cl. 2
22
Dr. Dharmendra Kumar Singh, An Analysis of Pre and Post S.R. Bommai Scenario with Reference to President's
Rule in States, 6 IJHSSI 5, 11 (2017)

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President should appoint or remove the Governor in consultation with the Chief Minister of the
State. This may act as a restraint on the misuse of power by the Office of the Governor.

Failure to invoke Emergency Powers

On the other extreme of misuse of Article 356 was the failure of the Union Executive - which
was of the same political belief as the Government of Narendra Modi in Gujarat - to invoke
Article 356 during the carnage following the Godhra train incident on February 27, 2002, in the
State of Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of
the Upper House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: ‘Vital
statistics tells us that there are more than 100000 persons in refugee camps and more than 30,000
people have been chargesheeted. Are these figures not enough to compel the Government to take
action under articles 355 and 356?’

Fali Nariman also rightly pointed out in an interview with a newspaper correspondent that the
Constitution may not have envisaged a situation where an emergency has arisen in a State where
the ruling party is of the same political persuasion as the one at the Center and, hence, the Center
might be biased against dissolving that government by invoking Article 356. He also pointed out
that the word ‘otherwise’ in the text of Article 356 becomes instrumental in such a situation to
allow the President to act without waiting for the ‘Governor’s Report.’

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 provides such a noxious power to the central government, which was used
119 times 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 i.e. Indian judiciary, the frequently use of article 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 their personal 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.

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 Bibliography

BOOKS

 Indian Constitutional Law by M.P. Jain, Wadhwa and Co. Nagpur, 2021.
 Constitution of India by VN Shukla, Eastern Book Company, Lucknow, 2019.
 Constitutional law of India by Narender Kumar, Allahabad Law Agency 2018.
 The Constitution of India by Dr. J.N. Pandey, Central Law Agency, 2021.

ACT

 The Constitution of India, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2021

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