Provisions regarding President Rule have turn out to be the most controversial articles since the inception of our constitution since 1950. Dr B.R. Ambedkar had referred provisions related to President Rule as a dead letter of the constitution. The constituent assembly were also concerned about possible misuse of these provisions and Dr B R Ambedkar quoted that these provisions would remain a dead letter under the constitution. If at all they are brought into operation in any case then President will take necessary precautions while deciding on that issue like issue warning to state etc. But this was never the case and before the judgement of Bommai case, Article 356 has been repeatedly abused to dismiss the State Government controlled by a political party opposed to ruling party at centre.
Brief historical background
Article 356 is based on Section 93 of the Government of India Act, 1935. On August 14, 1947, a day before India became independent, the Governor-General, in exercise of his powers under Section 8 (2) of the Indian Independence Act, 1947, made the India (Provisional Constitution) Order, 1947, adapting the Act of 1935 with important modifications, as a provisional Constitution of India while the Constituent Assembly was at work on a new Constitution.
This Order omitted the hated Section 93 completely. Thus, from August 15, 1947, until January 25, 1950, the country was governed without any provision in its constitution for Governor's rule or Governor-General's rule. This period witnessed communal riots, refugee influx, the Telangana armed rebellion and much else. Section 93 was thus proved dispensable for two and a half years.
Hence Article 356 was adopted by the Constituent Assembly bearing in mind the abnormal conditions the country was passing through.
Grounds of President Rule
• Article 355 states that it shall be 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 on in accordance with the provisions of this Constitution.
• Article 356 states that President rule can be imposed in any state on grounds of failure of Constitutional Machinery, and failure is of two types:-
If President on receipt of report by Governor of a State or otherwise is satisfied that a situation has arisen in which govt of that state can’t be carried in accordance with provisions of the Constitution then President Rule can be imposed.
Article 365 states that every state shall comply with all directions given by Union on matters it empowers to do so. If any state fails to comply with directions of union then President Rule can be imposed.
• Every Proclamation to impose President Rule shall be laid down before each house of Parliament and must get approval in two months from date of issue.
• Provided that if at time of proclamation Lok Sabha (LS) has been dissolved or dissolution of LS takes place in mean time (i.e. within two months from date of issue) then must get approval of RS within 2 months but such proclamation shall cease to operate after 30 days from first sitting of LS after its reconstitution if not get approval of new LS in 30 days.
Duration of President Rule
• If approved by both houses of Parliament then President Rule shall continue for 6 months and it can be renewed for maximum of 3 yrs by approval of Parliament after every 6 months.
• But if dissolution of LS takes place in that 6 months and resolution for renewal of President Rule is under consideration then President Rule survives till 30days from first sitting of newly elected LS provided that already approved by RS.
• Any of above resolution related to proclamation or renewal of emergency must be passed by both houses of Parliament by Simple majority.
• Termination – The President Rule can be revoked by President any time he thinks fit before it ceases to operate.
• 44th Constitutional Amendment 1978 – It introduce some constraints to impose President Rule beyond period of 1year and states that the President Rule can’t be imposed in any state beyond 1 year unless:-
A Proclamation of National Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution.
The Election Commission certifies that the continuance of President Rule is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.
Effects of President Rule
• Executive – The President may by proclamation of President Rule assume to himself all or any of functions of govt of state and all or any of powers vested in Governor or any body or authority in the state other than legislature of state and of High Court. The President dismisses the Council of Ministers headed by CM and run state administration with help of Governor or advisors as he thinks fit.
• Legislative – On imposition of President Rule, President either suspend or dissolves the legislature of state and declare that the powers of legislature of state shall be vested with Parliament. The following powers are exercised by Parliament or President while President Rule is in action:-
The Parliament can confer on President the powers of legislature of state to make laws and authorizes the President to delegate such conferred powers to any other authority with subject to such conditions as he may thinks fit.
The Parliament, or President or other authority in whom such power to make laws is vested, can make laws conferring powers and imposing duties upon the Union or officers and authorities thereof.
The President is authorized to give nod to pending sanction of expenditure from Consolidated Fund of State by Parliament when Lok Sabha is not in session.
The President can promulgate the Ordinances in relation to administration of State when the Parliament is not in session.
Any law made by Parliament or President or any other authority shall continue in force after President Rule has ceased to operate until repealed or amended by Legislature of state or any competent authority as case may be.
Misuse of President Rule
Article 163 says that Governor has to be advised by Council of Ministers to discharge his functions but in case of any question arises under which Governor has to act in his discretion according to constitution then decision of governor shall be final. This discretionary power of Governor under Article 163 is one of the major reasons behind misuse of president rule in India because he has no binding to consult Council of Ministers while preparing and sending the report to President.
On three occasions, President Rule has been imposed in absence of ‘report of governor’. Two such cases were post elections events, first is when Janta Party govt led by Morarji Desai came in power (1977) impose President rule in 9 states where congress was in power and second is when congress party came in power in 1980 and impose president rule in all non congress ruled states. Third such case happened when Karunanidhi’s (DMK) government was dismissed by Chander Shekhar government at centre and governor of Tamil Nadu S.S. Barnala denied that he has sent any report regarding failure of constitutional machinery in Tamil Nadu.
Supreme Court Guidelines: S R Bommai vs Union of India Case (1994)
The following principles are set up by Supreme Court for use of Article 356:-
• The Proclamation of President Rule is subject to judicial review (as provided by 44th Amend 1978) on grounds of mala fide intention;
• The Proclamation shall be based on relevant material and centre has to justify the imposition of President rule;
• The court has power to revive dissolved or suspended state govt if proclamation of President rule founds unconstitutional and invalid;
• The state assembly can’t be dissolved before approval of Parliament for imposition of President Rule and President can only suspend the assembly;
• The grounds of serious allegations of corruption against ministry of state and financial instability are not enough for imposition of President Rule;
• The state govt shall be given enough opportunities to correct itself in cases where directives are issued;
• Secularism is the basic feature of our constitution and any measure or action is taken by state govt for security of this feature can’t led to use of Article 356;
• The power under Article 356 can’t be used to sort out intra party problems of ruling party;
• If ministry of state resigns or dismissed or loses majority then governor can’t advise President to impose President Rule until enough measures are taken by governor for formation an alternative govt;
• The SC held that power under Article 356 is an exceptional power and to be used only in case of exigencies.
Recommendations of different committee on President Rule:
A. Sarkaria Commission
The Commission noted that this Article has been misused in 90% of the cases for political purposes. So it recommends that:
a) The President's Proclamation should include the ‘reasons’ as to why the State cannot be run as per the normal provisions of the Constitution.
b) As far as possible, the Centre should issue a warning to the State government before resorting to the use of Art. 356.
c) It should not be used to serve political purposes.
d) Art. 356 should be amended so that the President be empowered to dissolve the State Legislature only after approval by the Parliament.
B. Punchhi Commission
• On the question of invoking Article 356 in case of failure of Constitutional machinery in States, the Commission would recommend suitable amendments to incorporate the guidelines set forth in the landmark judgement of the Supreme Court in S.R. Bommai V. Union of India (1994).
• The commission recommended provision of ‘Localized Emergency’ which means that centre govt can tackle issue at town/district level without dissolving the state legislative assembly while at same time carrying out duty of the Union to protect States under Article 355.
• It is however necessary that a legal framework for exercising the power of "localized emergency" is provided by an independent Statute borrowing the model of the Disaster Management Act, 2005 and the Prevention of Communal Violence and Rehabilitation Bill, 2006.
• Only exceptional situations which fall within the scope of "external aggression" or "internal disturbance" should be considered for the purposes of separate legislation under the mandate of Article 355.
Many other commissions and committees have also recommended that Article 356 should be used very sparingly and only as a measure of last resort. But till present provisions of President Rule has been misused by political parties for their own benefits such as recent example of Arunachal Pradesh.
However implementing Supreme Court and commission recommendations would remove possible misgivings in this regard on the part of States and would help in making smooth Centre-State relations. But the proper use of Article 356 can ultimately be governed by the inherent decency and honesty of the political process.
It needs to be remembered that only the spirit of "cooperative federalism" can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority. Under our constitutional system, no single entity can claim superiority. Sovereignty doesn't lie in any one institution or in any one wing of the government. The power of governance is distributed in several organs and institutions - a sine qua non for good governance.