Article 356 of the Indian Constitution stipulates that when the President is satisfied that a situation has arisen in which the government of the State cannot be carried out 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 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; and
c. Make such incidental or consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation. This includes the power to suspend in whole or in part any of the provisions of this Constitution relating to anybody or authority in the State. 203.
Article 356, indicates that:
a. The powers stipulated in clauses (a), (b), and (c) of Article 356(1) are not automatically invoked when a Proclamation is issued under Article 356. The Proclamation by the President must stipulate the scope of the powers which will be exercised by the Union. This is evident from Article 356(1) which states that the President may by a Proclamation assume or declare the powers stipulated in clauses (a), (b), and (c) of Article 356(1);
b. The suspension of the State Government is a necessary consequence of issuing a Proclamation under Article 356. The President while issuing a Proclamation under Article 356 may exercise all or any of the functions of the State Government and the powers of the Governor. The President exercises the powers of the Governor which he holds as a constitutional head and the functions of the State Government as a political executive which he will exercise on the aid and advice of the Union Council of Ministers.
However, Article 356(1)(a) does not opt for an all or none formula. The phrase “all or any” does not indicate that the Union Government can exercise a part of the functions of the State Government and the State Government can exercise the remaining because the suspension of the State Government is an automatic consequence of the Proclamation under Article 356. It rather indicates that the scope of power exercised by the Union Government must depend on the circumstances for issuing the Proclamation;
c. The President in exercise of the powers of the Governor may either dissolve the Legislative Assembly of the State or direct that the Assembly shall be in suspended animation. The President may exercise the power under Article 356(1)(b) to confer the State’s legislative powers on Parliament. The power under Article 356(1)(b) is independent of the power under Article 356(1)(a);
d. By virtue of Article 356(1)(c), the President has the power to make such incidental and consequential provisions as are necessary or desirable to give effect to the objects of the Proclamation which also includes the power to suspend provisions of Constitution relating to any body or authority in the State. However, the President can neither exercise the powers vested in the High Court nor suspend provisions related to the High Court.
Three features of Article 356(1)(c) must be noted to understand the purport of the provision.
First, unlike clauses (a) and (b) which deal with specific powers, clause (c) is worded broadly. It encapsulates the power to make “incidental and consequential provisions” to give effect to the object of the Proclamation. The phrase “incidental and consequential” qualifies the latter part of Article 356(1)(c), that is, “for giving effect to the objects of the Proclamation”.
Second, the power prescribed in Clause (c) encapsulates the power of the President to suspend a part of the Constitution related to a body but is not limited to it.
Third, the President’s power to suspend or take over the powers of “any authority” does not extend to the powers of the High Court; and
e. Clauses (a), (b), and (c) of Article 356(1) grant the President independent powers. However, the power provided under Clause (c) is broad enough to encapsulate the power of the President to assume functions under clause (a) and declare under (b) that the powers of the Legislature of the State shall be exercisable by Parliament
The principle underlying Article 356(1)(c) is that the exercise of power by the President must be “desirable or necessary” to give effect to the objects of the Proclamation. The phrases ‘necessary’ and ‘desirable’ in Article 356(1)(c) capture differing standards of relationship with the object. While ‘necessary’ encapsulates the meaning of that which is inevitable or unavoidable, thereby, introducing a stringent standard, the phrase ‘desirable’ encapsulates the meaning of possible or suitable, providing a broader standard.
The commonality in both the “necessity” and “desirability” standards is that the exercise of power must have a reasonable nexus with the object of the Proclamation. Thus, the principle which runs through Article 356(1)(c) and which also guides the exercise of power under Article 356(1)(a) is that the exercise of power must have a reasonable nexus with the object of the Proclamation.
Situations where the exercise of power under Article 356 might be justified
The Sarkaria Commission identified four situations where the exercise of power under Article 356 might be justified which include:
(a) political crisis arising from the inability of any party or coalition of parties to form a workable majority;
(b) internal subversion resulting from an effort of a State government to undermine responsible government;
(c) physical breakdown following an inability to respond to internal disturbance; and
(d) non-compliance with the Union, for example by refusing to follow the directions during war. Though the objective in each of the above situations is to restore the constitutional machinery in the State, the specific object of issuing the Proclamation differs.
While applying the standard identified in the preceding paragraph, the Court must consider the validity of the exercise of power against the specific object or purpose for which the Proclamation under Article 356 was issued.
Actions which are taken during the subsistence of a Proclamation must bear a proximate relationship with the need to discharge the exigencies of governance during the period over which the Proclamation continues to remain in force in the state.
The exercise of the power under Article 356 is necessitated by the failure of the constitutional machinery in the state. The ultimate object and purpose of the constitutional arrangement envisaged in the article is to restore the functioning of the constitutional machinery in the state. The tenure of the Proclamation is limited in terms of time so that the federal constitutional mechanism is eventually restored.
Hence, legislative and executive action must be geared towards ensuring that the required tasks of governance are carried out during the tenure of the Proclamation. Legislative and executive action has to bear a proximate relationship to the object and purpose underlying the suspension of the constitutional machinery in the state.
While the actions taken after the imposition of President’s rule are subject to judicial review on the grounds indicated above, the scope of review will nonetheless be limited. It will be too stringent an approach to suggest that every action of the President and Parliament must be necessary to further the objects of the proclamation.
As Justice Sawant observed in SR Bommai, when scrutinising the actions taken after the imposition of President’s rule,
“there is every risk and fear of the court undertaking upon itself the task of evaluating with fine scales and through its own lens the comparative merit of one rather than the other measure.”
During the imposition of President’s rule, there may be hundreds, if not thousands of decisions that need to be taken by the President and Parliament on behalf of the State Government to ensure the day-to-day administration of the State continues and the impact of President’s rule on the daily life of citizens is reduced. If every action taken by the President and Parliament on behalf of a State was open to challenge, this would effectively bring to the Court every person who disagreed with an action taken during President’s rule.
Such an approach would be contrary to the express text of Articles 356(1)(a), 356(1)(b), and 356(1)(c) which entrusts the governance of the State with the Union Executive and Parliament during the period of President’s rule. There is another reason why the level of judicial oversight over the actions taken during the imposition of President’s rule may not be as strict as suggested by the Petitioners. Most actions taken by the President for the interim governance of the State can be reversed by the State Government when it returns to power. Any orders passed, appointments made, decisions taken by the President can subsequently be rescinded or reversed by the State Government upon a return to normalcy.
Similarly, even if Parliament were to enact legislation on behalf of the State Legislature, such legislation could subsequently be repealed by the State Legislature upon the Proclamation under Article 356 ceasing to operate. Thus, the political process can correct itself and any differences that have arisen between the democratic will of the people exercised through their elected representatives in the State, and the decisions taken by the President and Parliament, can be ironed out upon a return to normalcy.
Court ought to sit in appeal over every decision taken by the President during the imposition of Article 356. When a Proclamation under Article 356 is in force, there are innumerable decisions which are taken by the Union Government on behalf of the State Government for the purpose of day-to-day administration. Every decision and action taken by the Union Executive on behalf of the State is not subject to challenge. Opening up challenge to every decision would lead to chaos and uncertainty.
It would in effect put the administration in the State at a standstill. The Court would enter into the question of whether it was a valid exercise of power only when the petitioner makes a prima facie case that exercise of power is mala fide or extraneous. After the petitioner makes a prima facie case, the onus shifts to the Union to justify that the exercise of power had a reasonable nexus with the object of the Proclamation.
Re: article 370 of the constitution, 2023