Article 355 provides that it is the duty of the Union to protect every State against external aggression and internal disturbance, and to “ensure that the government of every State is carried in accordance with the provisions of this Constitution.”
Article 356 deals with a failure of constitutional machinery in a state. Clause 1 of Article 356 outlines both the substantive threshold for the invocation of President’s rule and the legal powers that are delegated to the President and Parliament upon the invocation of President’s rule. The relevant portion of Article 356 is extracted below:
“356. Provisions in case of failure of constitutional machinery in States:
(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 anybody 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 anybody 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. […]”
Article 356 accounts for a situation where there is a breakdown – a ‘failure’ as the Article states – of the constitutional machinery in the State. Though this phrase is found in the marginal note of the provision and not its text, judgments of Constitution Benches of Supreme Court have held that Article 356 must be interpreted with reference to the marginal note.
Pre-Conditions for proclamation of Article 356
For the President to issue a Proclamation under Article 356, two pre-conditions have to be fulfilled, which are:
(a) the satisfaction of the President that a situation has arisen in which the government of a State cannot be carried on in accordance with the provisions of the Constitution; and
(b) the satisfaction that such a situation has arisen must be formed either on the basis of a report sent by the Governor of the State or otherwise.
If these two conditions have been fulfilled, the President by a Proclamation may:
(a) assume to himself “all or any” functions of the Government of the State and “all or any” powers vested in or exercisable by the Governor or any other authority in 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 “incidental and consequential” provisions which are “necessary or desirable” for giving effect to the object of the Proclamation. This would also include the power to suspend in whole or in part, a provision of the Constitution relating to any body or authority in the State.
However, the President is barred from exercising the powers of High Courts or suspending any provision of the Constitution related to High Courts.
Tenure of the Proclamation.
The subsequent clauses of Article 356 prescribe conditions relating to the tenure of the Proclamation. Every Proclamation must be laid before Houses of Parliament, and unless approved by a resolution by both the Houses shall cease to operate within two months.
However, where the Council of States approves the resolution in two months but the House of People is dissolved, the Proclamation ceases to operate on the expiry of thirty days from the date on which the House of People first sits after reconstitution unless a resolution approving the Proclamation is passed by the House of People before that.
Article 356(4) states that an approved Proclamation has a life of six months from the date of the issuance of the Proclamation (not the date of approval) unless another Proclamation approving the continuance of the Proclamation is passed. This Proclamation also has a life of six months.
Thus, Parliament may approve the Proclamation in the first instance (which then has a life of six months) and thereafter also approve its continuance, which shall extend the life of the Proclamation by another six months. However, Parliament shall not pass a resolution approving a Proclamation for a period beyond one year since the date of issuance of the Proclamation unless
(a) a national emergency under Article 352 is in operation in the whole of India or whole or any part of the State; and
(b) the Election Commission of India certifies that it is necessary that the Proclamation continues to be in force because of the difficulties in holding general elections.
However, in no circumstances shall the Proclamation remain in force for more than three years since the date it was first issued.
Consequences of Proclamation under Article 356
Where a Proclamation under Article 356 declares that the power of the legislature of the State shall be exercisable by or under the authority of Parliament, Article 357 enunciates the consequences. In such a situation, Parliament which has been conferred with the “powers of the legislature of the State” may confer on the President the power of the legislature to “make laws”, and authorise the President to delegate the power to any other authority, subject to any conditions which the President may impose.
Parliament or the President or any other authority to whom the power to make laws has been delegated may enact laws conferring powers and imposing duties upon the Union or its officers and authorities. When the House of the People is not in session, the President may authorise expenditure from the Consolidated Fund pending the sanction of Parliament.
Article 357(2) states that the law enacted by Parliament or the President or any other authorised body which it otherwise would not have been competent to enact but for the Proclamation under Article 356 shall continue to remain in force even after the Proclamation ceases to operate. It shall continue to remain in force unless the State legislature or any authority alters, repeals or amends the law.
Interpreting Article 356 in the aftermath of SR Bommai
Supreme Court has in earlier judgments interpreted the scope of the power of the President to issue a Proclamation under Article 356. The approach of the Court towards interpreting the scope of this unique power of the Union Government which correspondingly reduces the autonomy of States has undergone a sea-change from the decision of a seven-Judge Bench in State of Rajasthan v. Union of India[1] to a decision of a nine-Judge Bench in SR Bommai v. Union of India[2].
The factual matrix in State of Rajasthan (supra) was as follows: the candidates of the Congress party were defeated in the elections to the Lok Sabha in nine Congress-ruled States in the elections of 1977 held after the end of the national Emergency in 1975. The Home Minister of the Union Government which was headed by a coalition of parties under the banner of Janata alliance wrote to the Chief Minister of each of the States to consider advising the Governor to dissolve the legislative assembly.
Six States (Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, and Orissa) filed suits seeking a declaration that the letter of the Home Minister was ultra vires the Constitution, and sought an injunction restraining the Union Government from resorting to Article 356 of the Constitution. The Court while dismissing the writ petitions and suits held:
a. The actions of the Governor under Article 356 can be both “preventive and curative” because Article 355 vests the Union Government with a duty to ensure that the Government of the State is carried out in accordance with the Constitution;
b. The grounds for judicial review of a Proclamation under Article 356 are limited. The Court can only interfere with the decision on grounds of mala fides or if there were extraneous considerations;
c. The independence of States only lasts when the State executive and legislature have not violated their constitutional duties. If they have, the Union is capable of enforcing its views on such matters to enable the Constitution to work in a manner that the Union Government wants it to;
d. The President while exercising power under Article 356 can “take over all the functions of the Governor” to themselves, and “can do whatever the Governor could in exercise of such power.”1 It would be immaterial if the consequence of the exercise of power is final and irrevocable. This includes the power to dissolve the Legislative Assembly of a State; and
e. A resolution by both Houses of Parliament approving the Proclamation is not a condition precedent for the dissolution of the Legislative Assembly of a State. Even if such a resolution is not passed, the Proclamation has a minimum shelf life of two months because immediate actions are required to be taken in urgent situations.
Irrevocable actions taken in those two months such as dissolving the assembly and holding fresh elections cannot be remedied even if the Proclamation is declared unconstitutional. In fact, the power to dissolve the State legislature is implicit in Article 356(1)(b).
In State of Rajasthan (supra), the seven-Judge Bench of the Court read Article 356 widely to grant untrammelled executive power to the Union Government without Parliamentary oversight. In essence, the Union Government (acting through the President) could unilaterally remove the Government of the State and dissolve the legislative assembly of the State completely abrogating the federal interests and the democratic rights of the residents of the State.
Though the Court held that the exercise of power to issue a Proclamation under Article 356 is open to judicial review, the grounds for review were limited to mala fide or extraneous considerations.
The decision of the Court in SR Bommai (supra) changed the position of law significantly. In this case, a nine-Judge Bench of the Court placed restraints on the exercise of power by the President under Article 356 by emphasising the significance of Parliamentary control over the Proclamation and expanding the scope of judicial review of the ‘subjective satisfaction’ of the President under Article 356.
In SR Bommai (supra), this Court extensively dealt with the scope of the Presidential power under Article 356. On numerous questions of law, the Bench disagreed with the reasoning in State of Rajasthan (supra). One of the chief reasons which lead to the tectonic shift in the Court’s approach to the scope of the President’s powers under Article 356 was the abuse of the power under Article 356.
When the Constituent Assembly was discussing the draft of Article 356 in the present form, Dr. BR Ambedkar observed that he hoped that the power under Article 356 would never be called into operation and that it would remain a dead letter.
However, by the time the Court decided SR Bommai (supra), the President had exercised the power under Article 356 more than ninety times. While the members of the Constituent Assembly hoped that the power under Article 356 would only be used in extraordinary situations, history indicated that the power has been misused frequently to achieve political ends.
In the Constituent Assembly Debates, Mr. Santhanam observed that it is only strong conventions that will prevent the misuse of power under Article 356. The Court in SR Bommai (supra) placed limitations on the power of the President to issue a Proclamation under Article 356 and expanded the scope of judicial review of a Presidential Proclamation. The Court’s interpretation of Article 356 in SR Bommai (supra) has prevented its misuse, creating strong conventions on the exercise of power under the provision.
For the purpose of discussing the ratio decidendi in SR Bommai (supra), we will refer to the opinion of Justice Sawant who authored the opinion for himself and Justice Kuldip Singh, with whom Justice Jeevan Reddy (writing for himself and Justice Agarwal) substantially agreed except on one crucial point. Justice Pandian agreed with the opinion of Justice Jeevan Reddy.
Ratio decidendi of the opinion of the majority
The ratio decidendi of the opinion of the majority is summarised below:
a. The satisfaction of the President under Article 356 must be based on objective material either through the Governor’s report or ‘otherwise’;
b. The Proclamation issued by the President under Article 356(1) is subject to judicial review. Article 74(2) only bars the court from enquiring if any advice was given but does not bar scrutiny of the material which formed the basis of the advice. The Court must determine if there was any material to indicate the failure of constitutional machinery in the State.
While the sufficiency of the material cannot be questioned by courts, the legitimacy of the inference drawn from such material is open to judicial review. Once the petitioner makes a prima facie case challenging the Proclamation, the burden shifts to the Union Government to prove that the Proclamation was backed by relevant material;
c. Article 356(3) which mandates that the Proclamation be approved by both Houses of Parliament is a check on the power of the President to issue a Proclamation. The President cannot exercise powers under Article 356(1) to take ‘irreversible’ actions unless both the Houses have approved the Proclamation. It is for this reason that the President cannot dissolve the legislative assembly (which is an irreversible action) until “at least” both Houses of Parliament approve the Proclamation;
d. Dissolution of the legislative assembly is not a “natural consequence” of the issuance of Proclamation;
e. The resolution approving the Proclamation cannot save the Proclamation and the actions taken under it if the Court holds that the Proclamation is invalid. If the Proclamation is invalid, then it would be open to the Court to restore status quo ante which would also include restoration of the Legislative Assembly if it has been dissolved; and
f. The Court/legislative assembly/Parliament has the power to review, repeal and modify such actions or laws which were taken when the Proclamation was in force.
The Court can validate specific actions which are capable of being validated such as restoring the legislative assembly.
The following conclusions are drawn from the decision in SR Bommai (supra), which brought about a metamorphosis from the position in the State of Rajasthan (supra):
a. This Court in its seven-Judge decision in State of Rajasthan (supra) opted for an interpretation of Article 356 which had a centripetal impact, that is, it had a centralising tendency which led to an accumulation of power with the Centre and away from the federating states. This is evident from the narrow scope of judicial review of the exercise of power by the President under Article 356, and the holding that the President can take irrevocable actions (including dissolving the Legislative Assembly) even before the Proclamation is approved by both Houses of Parliament under Article 356(3).
However, this Court in a larger combination of nine judges in SR Bommai (supra) opted for an interpretation which had a centrifugal impact, that is, an interpretation which leads to enhancing the autonomy of the federating states. In fact, the opinion of Justice Sawant expressly notes that an interpretation which preserves and not subverts the constitutional fabric must be opted. This is evident from this Court expanding the scope of judicial review of the Proclamation and the holding that irrevocable actions cannot be taken before Parliament approves the Proclamation.
The interpretation of Article 356 in SR Bommai (supra) was in furtherance of the constitutional principles of federalism and legislative (and not executive) supremacy. The decision in SR Bommai (supra) holds the field because it was rendered by a Bench of nine Judges while the decision in State of Rajasthan (supra) was rendered by a Bench of seven Judges; and
b. The standard of judicial review laid down in State of Rajasthan (supra) of whether extraneous considerations led to the exercise of power under Article 356 focused only on the purpose of (or the reasons for) issuing a Proclamation. The Union did not have to show that the purpose indeed existed. The decision in SR Bommai (supra) by expanding the scope of judicial review of the Proclamation shifted the onus on the Union Government to justify the exercise of power.
The Union through the submission of material was required to show that there was a breakdown of constitutional machinery as claimed. This change in the standard of review indicates a shift from a culture of deference to a culture of justification. It flows from (a) that the Court while deciding if the Union Government has justified its actions must also assess the impact of the Proclamation issued under Article 356 on the federal structure.
SR Bommai on validity of exercise of power after the Proclamation
The majority in SR Bommai (supra) devised a more stringent standard to test the validity of a Proclamation under Article 356. The primary focus of the decision is on the standard to be applied to judicially review the validity of a Proclamation under Article 356. However, in addition to it, this Court made certain observations on the limits on the exercise of power after a Proclamation is issued.
One of the issues before the Court in SR Bommai (supra) was whether Article 356(1)(a) places any limitation on the exercise of legislative and executive power by the Union after a Proclamation has been issued and more specifically, whether dissolution of the Legislative Assembly of the State and the political executive is a natural consequence of the exercise of power under Article 356(1).
The Court observed this question in the following manner:
a. Justice Sawant observed that it would be open to the President to only suspend the political executive and the legislature of the State and not dissolve them. This interpretation, it was held, is consistent with a reading of Article 356(1)(c) which states that incidental and consequential provisions to give effect to the objective of the Proclamation shall be made.
It was further observed that it would be permissible for the President to assume some of the functions of the Government without suspending or removing them:
“108. […] To appreciate the discussion on point, it is necessary to realise that the removal of Government and the dissolution of Assembly are effected by the President, if he exercises powers of the Governor under Article 164(1) and 174(2)(b) respectively under sub-clause (a) of Article 356(1), though that is neither necessary nor obligatory while issuing the Proclamation. In other words, the removal of the Ministry or the dissolution of the Legislative Assembly is not an automatic consequence of the issuance of the Proclamation.
The exercise of the powers under sub-clauses (a), (b) and (c) of Article 356(1) may also co-exist with the mere suspension of the political executive and the Legislature of the State. Subclause (c) of Article 356(1) makes it clear. It speaks of incidental and consequential provisions to give effect to the objects of the Proclamation including suspension in whole or part of the operation of any provision of the Constitution relating to anybody or authority in the State. […]
Legally, therefore, it is permissible under Article 356(1),
firstly, only to suspend the political executive or anybody or authority of the State and also the Legislature of the State and not to remove or dissolve them.
Secondly, it is also permissible for the President to assume only some of the functions of the political executive or of anybody or authority of the State other than the Legislature while neither suspending nor removing them.”
b. Justice Reddy while answering the above issue agreed with the observations of Justice Sawant to the extent that dissolution of the Legislative Assembly is not an automatic consequence. The learned Judge observed that the President should not dissolve the legislature of the State merely because he has the power to do so. The power, in his opinion, must not be exercised invariably but only after taking into consideration all the relevant facts and circumstances. However, Justice Reddy held that it would not be open to the President to exercise some of the powers exercised by the Government without dismissing the Government because:
first, the President can only issue a Proclamation under Article 356(1) when the constitutional machinery as a whole (and not one or two functions) fails in the State; and
second, that would introduce the concept of two Governments operating in the same sphere.
Both Justice Sawant and Justice Reddy held that when a Proclamation is issued, the dissolution of the Legislative Assembly of the State is not an automatic consequence and whether the assembly must be suspended or dissolved must depend on the circumstances. However, they disagreed on the issue of whether the removal of the Government is a necessary consequence of the exercise of power under Article 356. Justice Sawant held that it is not a necessary consequence.
Justice Reddy held that it is a necessary consequence because otherwise it would lead to simultaneous governance by both the Union and the State Government in the same sphere. The meaning of the phrase “all or any functions of the Government of the State” cannot be stretched to mean that the Union Government exercises some powers of the state’s political executive while the remaining powers vest with the State Government. The suspension of the State Government is a necessary consequence of the exercise of the power under Article 356.
Reference
Re: article 370 of the constitution, 2023
[1] (1977) 3 SCC 392
[2] (1994) 3 SCC 1