Constitutional Democracy of India

11. Emergency under the constitutional failure of the Machinery of a state:.

The central government is duty bound under the constitution (ART. 355) to protect every state against external aggression and internal disturbance and also to ensure that government of every state is carried on in accordance with the provisions of this constitution. Article 356 of the constitution says that if the president is satisfied on the report of the governor or otherwise that the government of a state can not 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 he 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 exercised 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 suspending in whole or in part the operation of the provisions of this constitution relating to any body or authority in the state. However, this power does not include the provisions relating the state High Court.

Under this provision, thus, the president, after imposing president‟s rule in the state dismisses the state council of ministers and dissolves the state legislature. However, the Sarkaria commission recommended that the State Legislative Assembly should not be dissolved either by the Governor or the President before a Proclamation issued under Article 356(1) has been laid before Parliament and the latter has had an opportunity to consider it. According to the Sarkaria commission the Governor‟s Report, under Article 356, should be a „speaking document, containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356.‟The commission further recommended that the provisions under Article 356 should be used very sparingly and as a last resort when all other alternatives to prevent the constitutional breakdown of the state government have been explored and failed. Any proclamation made by the president under Art. 356 should be approved by the parliament within a period of two months and if the lok sabha is dissolved during that period without giving its consent, it should be approved by the Rajya sabha within the stipulated time frame and by the Lok Sabha within thirty days of its first sitting after it has been reconstituted. The proclamation once approved can remain force, until revoked earlier by the president, for a period of 6 months which can be renewed every s months but not beyond a period of 3 years. What constitutes failure of the constitutional machinery of a state? The constitution does not explicitly provide any answer to this question. There are neither any guide lines, as they existed under the government of India Act, 1935, for the governor or any set of grounds mentioned to tell him to reach the conclusion that the government of the state can not be carried in accordance with the provisions of this constitution. The experience in the past about 64 years of the coming of the constitution into force shows that president‟s rule has been imposed in several states on the following grounds:

1. Failure to constitute a government after the elections as no political party or a combination of political parties formed before or after the elections to the legislative Assembly; 

2. Fluid political situation either on frequent splits in the political parties – ruling or the opposition – and the question of majority at any given point of time is difficult; 

3. Violence and disturbance inside the legislative Assembly as was done in Gujarat. However, it has been criticized on the ground that such a ground for imposition of president‟s rule could be misused by the centre particularly to dislodge a government run by a party other than the the one running the central government; 

4. President‟s rule has also been imposed on the ground of the breakdown of law and order in the state

5. The president has taken over the government of the state on the ground that the government of that state has not been able or likely not to be able to uphold the secular character of the state

6. The change of the leader of the ruling legislature party, specially if the central high command is not in a position to find a substitute in time and easily. This is what happened once in U.P.

The clearly mentioned ground under the constitution for the imposition of president‟s rule in a state is under Art. 365 which states as under: “Where any state has failed to comply with or to give effect to any directions given in the exercise of the executive power of the union under any of the provisions of this constitution, it shall be lawful for the president to hold that a situation has arisen in which the government of the state can not be carried in accordance with the provisions of this constitution”. The use of emergency powers under Art. 356 has been a subject of criticism from the parliamentarians, the constitutional experts, the press and the public on the ground that the provision that was considered to be used only in rare circumstances and was supposed to remain generally a dead letter was used very frequently by the centre and that too on flimsy grounds. According to the report of the national commission to review the working of the constitution,2002, this power was blatantly misused in 22 out of the more than 100 cases of bringing the different states under central rule. The power was also used to serve the political interests of the ruling party or the ruling coalition of parties at the centre. This issue was rightly addressed by sarkaria commission who suggested some safeguards against any such misuse and thereafter the Supreme court in SR Bommai and others v union of India in 1994 also put limitations on the use of this power. The Bommai case judgement stated the following (PM Bakshi, The Constitution of India, 2000, p.299)

1. Presidential proclamation dissolving a state legislative Assembly is subject to judicial review. 

2. Burden lies on the government of India to prove that relevant material existed to justify the issue of proclamation. 

3. Courts will not go into the correctness of the material. 

4. If the court strikes down the proclamation, it has power to restore the dismissed government of the state to office. 

5. A state government pursuing anti-secular politics is liable to action under Article 356.

The president himself has been enabled to exercise check over the union executive decision in so far as he is empowered to send the advice of the council of ministers for reconsideration. There nhave been instances when the council of ministers did not pursue the advice further after it was returned by the president for its reconsideration. For example, this is what happened in case of Bihar as well as in case of U.P. After the Supreme court judgement and the implementation of some of the restraining recommendations of the Sarkaria commission with regard to Art. 356, there has been a decline in the frequency of the use of Article 356 and it is not that easy to dismiss a state government under that provision of the constitution.