SWATI JOSHI LLM., 1st Year S.S.

J Campus, Almora

INTRODUCTION
Indian constitution is the power source to any authority in India. It gives and takes and seeks to have legitimate power to give welfare to Indians. It is written in manner that unscrupulous elements need to be curbed from time to time and better administration is to be provided to people. India or Indian politics same word for whom who are not aware about the political system of our country, Who are not conscious how political party manipulated our constitution just for the sake of personal benefit, but not for good governance. Now the question arise that Indian constitution is a rigid constitution or not, a constitution which was easily amended or not a constitution which work according to a political party or not there are so many question arise but still our political leader are not ready to accept their mistake. This is something erroneous why our constitution gives such power to the union government to absolute control over the state and if it gives so then why we follow the principle of federalism. From the very beginning article 356 is renewed for its miss use and become the active tool for central government to control over the state without any cause. The father of our constitution Dr B.R Ambedkar are totally unaware that article 356 is distorted badly by the central government, but according to them article 356 was one of the instrument through which central government protect the state government of any external or internal aggression. There is always a big question whether India follow the principle of federalism or not. The word union does not show any type of federation, since it is used also in the preamble of the constitution of the united state- the model of federation; in the preamble of the British north America (which according to lord Haldane, did not created a true federation at all) still the word federal was also mentioned in our preamble but I don't think so that in this regard we follow our preamble because of article 356 which become the major hurdle.

HISTORICAL BACKGROUND OF ARTICLE 356

This Act first introduced the concept of 'Division of Powers' in British India. It was an experiment where the British Government entrusted limited powers to the Provinces. But since there was very little faith lost between the British and the Indian people, the British took precautions to keep a sufficient check on the powers given to the Provinces. These precautions were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where the Governor General and the Governor, under extraordinary circumstances, exercised near absolute control over the Provinces. When it was suggested in the Drafting Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act, 1935, upon the President, many members of that eminent committee vociferously opposed that idea. Dr. Ambedkar then pacified the members stating:
''In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. By virtue of this earnest advice given by the prime architect of the Indian Constitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events''.1

K. Jayasudha Reddy and Joy V. Joseph, Executive discretion and article 356 of the constitution of India (march 1, 2004)

In spite of the assurance given by Dr. Ambedkar, Article 356 was continually misused, for 50 years, by the Centre. In the year 1951 state emergency was first time imposed in Punjab and in the year 1957 the president rule was imposed in Kerala. From the very beginning there is continuous misuse of constitutional breakdown. 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: Period 1950-1954 1955-1959 1960-1964 1965-1969 1970-1974 1975-1979 1980-1987 Frequency 3 3 2 9 (7 cases in 1967-69) 19 21 (9 cases in 1977) 18 (9 cases in 1980)2

In all there are more than hundred times that emergency has been imposed in various states without any cause. A failure of constitutional machinery may occur in a number of ways. Factors which contribute to such a situation are diverse and imponderable. It is, therefore, difficult to give an exhaustive catalogue of all situations which would fall within the sweep of the phase, the government of the State cannot be carried on in accordance with the provisions of this Constitution. Even so, some instances of what does and what does not constitute a constitutional failure within the contemplation of this Article, may be grouped and discussed under the following hands: (a) Political crisis. (b) Intern al subversion. (c) Physical break-down. (d) Non-compliance with constitutional directions of the Union Executive3

Meaning of article 356 1. Article 356 carries the marginal heading "Provisions in case of failure of constitutional machinery in States". But neither clause (1) nor for that matter any other clause in the article employs the expression "failure of constitutional machinery". On the other hand, the words used are similar to those occurring in article 355, namely, "a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution". If the President is satisfied that such a situation has arisen, whether on the basis of a report received from the Governor of the State or otherwise, he may, by proclamation, take any or all of the three steps mentioned in sub-clauses (a), (b) and (c). It would be appropriate to read the entire clause (1) of article 356 at this stage:
2 3

The Sarkaria Commission Report, http://interstatecouncil.nic.in/SARCOMM.htm Ibid

Clause (1) of article 356: 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) To 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) (c) To declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; To 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 authorize 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.".

Clause (2) says that such a Proclamation may be revoked or varied by a subsequent Proclamation. Clause (3) provides a check upon the power contained in clause (1). It says that "every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament" (The proviso to clause (3) provides certain details which it is not necessary to notice for the purpose of this paper). Clause (4) provides that "a Proclamation approved by both the Houses of Parliament shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation (The 44th Amendment Act reduced the period in this clause from one year to six months). The proviso to clause (4), however, empowers such Proclamation to be extended, beyond six months subject to the approval of Parliament for a further period of six months at a time subject to an outer limit of three years. The second proviso to clause (4) provides for a specific situation which it is not necessary to refer to for the purpose of this paper. The third proviso to clause (4) is applicable to the State of Punjab and provides for a particular situation and is of no general relevance. Clause (5) has been substituted altogether by the 44th Amendment Act. The said clause was in fact inserted by the Constitution (38th) Amendment Act, 1975 with retrospective effect. The clause inserted by 38th Amendment Act barred judicial review of the Proclamation issued under clause (1). Inasmuch as, it has been substituted by the present clause (5), it is not necessary to deal with the language or effect of clause (5) as originally inserted. The present clause (5)

provides certain details concerning the approval contemplated by clause (3) and is in fact a continuation of clause (4). 2. Article 357 contains certain consequential provisions relating to exercise of legislative powers under Proclamation issued under article 356. It is not necessary to notice them in any detail. It is, however, necessary to refer to a few more articles relevant in this behalf. 3. Article 365 which occurs in Part XIX - Miscellaneous - provides that "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 cannot be carried on in accordance with the provisions of this Constitution". In the light of the language employed in article 365, namely, non-compliance with "directions given in the exercise of executive power of the Union under any of the provisions of this Constitution", it is necessary to refer to articles 256 and 257 which provide for giving of such directions. The said articles occur in Chapter II - 'Administrative Relations - General' in Part XI which deals with relations between the Union and the States. Article 256 which carries the heading "Obligation of States and the Union" provides that "the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose". Article 257 which carries the heading "Control of the Union over States in certain cases" provides in clause (1) that "the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose". Clause (2) of article 257 provides that "the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance". The proviso to clause (2) says that nothing in the said clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or to give appropriate directions to the States for their maintenance. Clause (3) says that the executive power of the Union to give directions extends to the measures to be taken for the protection of the Railways within the State. Clause (4) provides for reimbursement of the cost incurred by the State in complying with or carrying out the directions given under clauses (2) and (3). It is not really necessary to refer to articles 258 and 258A. article 258 empowers the President to entrust certain executive functions of the Union to the States with their consent. Similarly, article 258A provides for the States entrusting their executive functions to the Union with its consent.

4.

It is evident that article 355 insofar as it speaks of the obligation of the Union to protect the States from external aggression and internal disturbance appears to be

influenced by article IV Section 4 of the United States Constitution which provides: "the United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion, and on application of the Legislature, or of the executive (when the Legislature cannot be convened) against domestic violence". That part of article 355 which speaks of the obligation of the Union to ensure that the government of the States is carried on in accordance with the provisions of the Constitution appears to have been inspired both by article IV(4) of the U.S. Constitution and by section 61 of the Australian Constitution Act, which empowers the federal government to "maintain" the Constitution (see the Constituent Assembly debates - Vol. 9, Page 150 onwards), though the language was altered to make it more clear and specific, having regard to the Indian context. However, as stated hereinabove, our Constitution does not set out the manner in which the Union shall perform its obligation to protect the States against external aggression and internal disturbance. The American Constitution too does not prescribe the manner in which the federal government shall perform its three obligations contained in article IV(4).

JUDICIAL REVIEW OF ARTICLE 356 1.

In state of Rajasthan v. Union of India Six of these States filed suits 27 under Article 131 of the Constitution in the Supreme Count praying for a declaration that the letter of the Home Minister was illegal, and ultra vires of the Constitution and prayed for an interim injunction restraining the Union Government from resorting to Article 356, and for a permanent injuction restraining the Union Government from taking any step to dissolve their Assemblies before the expiry of their term fixed by the Constitution. Three Members of the Legislative Assembly of the Punjab also field a Writ Petition in the Supreme Court impugning the same matter and praying substantially for the same relief. The Union raised three preliminary objections: (a) That the suit was not maintainable under Article 131: (b) That the questions which arise for gauging the existence of a situation calling for action under Article 356 are, by their very nature, non-justiciable and they are also expresely made non-justiciable by Clause (5) of the Article; (c) That the suit and the writ petition were premature as the process which was being hallenged might or might not actually produce the apprehended result or action. Although the learned Judges constituting the Bench gave separate reasons, they were agreed that the suit/petition was liable to dismissal on any one or more of the preliminary grounds. Goswami, Fazal Ali and Untwalia, JJ, were of the view that the plaintiffs had no locus standi to maintain the suit. Untwalia J. did not want to rest his judgment on this technical ground alone. Beg CJ. and Fazal Ali J. held that the suit was premature. There was general agreement among all the judges that the matter in question was beyond the range of judicial review either because it was of a political nature, regarding which the President's subjective satisfaction was conclusive, or was otherwise non-justifiable in view of the bar to the Court's jurisdiction in Clause (5) of the Article. The Court, however, made it clear that the President's 'satisfaction' would be open to judicial review only in those exceptional cases where on facts admitted or disclosed, it is manifest that it is mala fide or is based on wholly extreneous or

irrelevant grounds. After an elaborate discussion, the court held that the case before it did not fall within this exception. Although all the learned Judges did not refer to clause (5), expressely or in detail, they were very much conscious of this formidable hurdle in their way. Clause (5) as it then stood, was as under: Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground4 2. In 1980, the most profound invoking of Article 356 occurred when Indira Gandhi dismissed nine state governments. But in response to an outcry by the Opposition, Indira Gandhi finally appointed a commission headed by Justice RS Sarkaria to analyze the relationship between the Centre and the State. In its report submitted in 1988, the Sarkaria Commission put forth a series of measures to prevent the misuse of Article 356, including a provision to ensure that the governor of a particular state does not belong to the ruling party. However, these recommendations were not incorporated into the Constitution and thus incumbent state governments continued to be dismissed even after 1988 by the centre. However, what is widely regarded as the ultimate verdict on Article 356 came with the Bommai case. In 1989, Article 356 had been invoked against the then Karnataka government headed by Chief Minister SR Bommai. Bommai appealed to the Supreme Court, which ruled in his favour on 11 March, 1994. President R Venkataraman earned a stricture from the Supreme Court for his unquestioning obedience to Prime Minister Rajiv Gandhi with regard to this case, inspite of not having solid grounds to dismiss Bommais government and his proclamation was struck down5 3. In S.R. Bommai case the court has clearly subscribed to the view that the power under article 356 is an exceptional power and has to be resorted to only occasionally to meet the exigencies of special situation. The court quoted the Sarkaria commission report to give example of situation when such power should not be used. It made it clear that article 356 cannot be invoked for superseding a duly constituted ministry and dissolving the assembly on the sole ground that in the election to the Lok Sabha the ruling party suffer a massive defeat.6 4. S. R. Bommai v. Union of India raised serious question of law relating to Proclamation of Emergencyand dissolution of Legislative assemblies according Article 356 of the Constitution of India. While dealing with the question as to whether the Presidential Proclamation under Article 356 was justiciable all the judges were unanimous in holding that the presidential proclamation was justiciable. The Honble Supreme Court held that the proclamation under Article 356(1) is not immune from judicial review. The validity of the Proclamation issued by the President under Article 356[1] is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the malafide exercise of the power.7 5. The second question which was taken into consideration by the court was that whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.8
State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361 Shewtha bhaskar, Article 356 and bommai case (Nov. 13, 2006) 6 S.R. Bommai v. Union of India, (1994) 3 SCC 1 7 Jaimin.Dave, S.R. Bommai v. Union of India: key to presidential proclamation under article 356 of constitution of India, 8 http://www.legalserviceindia.com/article/l324-S.-R.-Bommai-v.-Union-of-India.html
5 4

It was contended that The Honble Supreme Court in this regard held that the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. This satisfaction may be formed on the basis of the report of the Governor or on the basis of other information received by him or both. The existence of relevant material is a pre-condition to the formation of satisfaction. The satisfaction must be formed on relevant material. The dissolution of the Legislative Assembly-assuming that it is permissible is not a matter of course. It should be resorted to only when it is necessary for achieving the purposes of the proclamation. 6. The exercise of the power is made subject to approval of the both Houses of Parliament. With this the Honble Supreme Court also made it clear that President cannot dissolve the legislature without having obtained the approval of both the Houses of the Legislature.

7. The Honble Supreme also held that the power of the court to restore the government to office in case it finds the proclamation to be unconstitutional, it is, in Courts opinion, beyond question. Even in case the proclamation is approved by the Parliament it would be open to the court to restore the State government to its office in case it strikes down the proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge, examining it, calling upon the Union Government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief.

8. The supreme court of India while delivering its judgment, for the first time very significantly held that the issue of proclamation of presidents rule under article 356 would be subject to judicial review and had imposed several restriction on the invocation of this article. Those restrictions can be briefly stated as given below 1) That the power under article 356 is an extra- ordinary power and must be used sparingly. 2) That the federal scheme is an inherent and essential feature of the constitutional and so no state government enjoying peoples confidence should be arbitrarily. 3) That the power should be used only as a last resort that too only after exhausting all other remedies available under article 355 in restoring normalcy, and unless urgent steps become imperative 4) The power cannot be exercised as long as a duly constituted government is in power enjoying support, on the pretext of providing a good government. 5) The power should not be invoked to dislodge any state government or party in power, on the ground that the party ruling at the state level did not fare well in the lok sabha election. If such a thing were to happen it should be treated as a clear case of constitutionality. 6) The power to suspend any state government should certainly precede a warning to be issued by the president to the erring state so as to give it an opportunity to correct itself. However such a warning can be avoided in a case of extreme urgency, if it might otherwise lead to disastrous consequences.9
9

Dr. R. Gangadhara Sastry, Article 356: the ultimate power

9. The apex court has also categorically observed that the article should not be invoked: 1) If any state correct itself on receiving a warning from the president ; 2) To grant relief to any state from a situation of stringent financial exigencies or due to serious allegation of corruption: 3) To settle political dispute, internal difference and intra-party problems of the ruling part and parties: 4) To gain Political advantages by a party in a power at the centre to the disadvantage of any state government: 5) To distribute the democratic and federal fabric of the constitutional scheme: 6) Unless a situation of armed rebellion arises and a simple condition of internal disturbance:14 10. The Supreme Court, being the ultimate interpreter of the Constitution, has the power of judicial review on all actions emanating from or empowered by any constitutional provision. Though the power of the President under Article 356 concerns his political judgment and the courts usually avoid entering the political thicket, this power does not enjoy blanket immunity from judicial review. It has to be determined in the individual cases on the basis of justifiability, which is distinct from judicial review. But unless the mala fides of the Presidential Proclamation is shown, the Courts have been exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of judicially manageable standards. This point is amply evident in the case of Minerva Mills and Others v. Union of India and Others, where the Supreme Court dwelt extensively on its power to examine the validity of a Proclamation of Emergency issued by the President. 11. The Supreme Court in this matter observed, inter alia, that it should not hesitate to perform its constitutional duty merely because it involves considering political issues. At the same time, it should restrict itself to examining whether the constitutional requirements of Article 352 have been observed in the declaration of the Proclamation and it should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a situation of emergency10 12. The importance of judicial review in matters involving Article 356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme Court held that it was not precluded from striking down a law passed prior to a Proclamation of Emergency, as ultra vires to the Constitution, just because the Proclamation was in force at that time11. After so many cases and a very pinnacle judgement given by supreme court we can conclude that article 356 is no more come under the judiciary review and now the satisfaction of the president is also questionable in court of law. After the S.R. Bommai case there is a fear in the mind of political party that if they impose president rule without any grounds then the supreme court has power to invoked the proclamation and declare null and void. The use of article 356 was also abridge after this Landmark judgement.

10 11

Minerva Mills and Others v. Union of India and Others, A.I.R. 1980 SC 1789 State of Madhya Pradesh v. Bharat Singh, A.I.R. 1967 SC 1170

SARKARIA COMMISSION REVIEW ON Article 356: The Sarkaria Commission has made 12 recommendations; 11 of which are related to article 356 while 1 is related to article 355 of the Constitution. The underlined theme of the recommendations is to promote a constitutional structure and culture that promotes cooperative and sustained growth of federal institutions set down by the Constitution. Should Article 356 be Deleted: The Commission had issued a consultation paper along with a questionnaire with a view to elicit the views and responses of the public? Large majority of the responses were against deletion of article 356 but favoured its being suitably amended to prevent misuse. There are three patent reasons which require the retention of the article: (i) Article 356 and related provisions were regarded as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people. In a fairly large number of cases the invocation of article 356 has been found to have been not only warranted but inevitable. If this article is deleted, article 365 would lose relevance and use of article 355 in the absence of 356 might bring a drastic change in Union-State relations which may be worse from the point of view of both the States and the Union.

(ii) (iii)

So, The Commission is, therefore, not in favour of deletion of article 356. In Chapter Six of its Report, the Sarkaria Commission has set out in detail the number of times the power under article 356 was used. It has classified them into four categories. A-When Ministry Commanded Majority: President's Rule was imposed in 13 cases even though the Ministry enjoyed a majority support in the Legislative Assembly. These cover instances where provisions of article 356 were invoked to deal with intra-party problems or for considerations not relevant for the purpose of that article. President's Rule was imposed in 13 cases even though the Ministry enjoyed a majority support in the Legislative Assembly. These cover instances where provisions of article 356 were invoked to deal with intra-party problems or for considerations not relevant for the purpose of that article. The proclamation of President's Rule in Punjab in June 1951 and in Andhra Pradesh in January 1973 are instances of the use of article 356 for sorting out intra-party disputes. The imposition of President's rule in Tamil Nadu in 1976 and in Manipur in 1979 were on the consideration that there was maladministration in these States. B-Chance not given to form alternative Government: In as many as 15 cases, where the Ministry resigned, other claimants were not given a chance to form an alternative government and have their majority support tested in the Legislative Assembly. Proclamation of Presidents rule in Kerala in March 1965 and in Uttar Pradesh in October 1970 is examples of denial of an opportunity to other claimants to form a Government. C-No caretaker Government formed: In 3 cases, where it was found not possible to form a viable government and fresh elections were necessary, no caretaker Ministry was formed.

D-President's rule inevitable: In as many as 26 cases (including 3 arising out of States Reorganisation) it would appear that President's rule was inevitable. Situations arising out of non-compliance with directions of the type contemplated in article 365 have not occurred so far." To the above four categories must be added another category of wholesale dismissal of State governments and State Legislative Assemblies. 1. In considering the issues raised regarding article 356 the Commission found that a great part of the remedy to prevent its misuse lies in the domain of creating safeguards and constitutional conventions governing its use. The ultimate protection against the misuse of article 356 lies in the character of the political process itself. The Commission is, therefore, for generating a constitutional culture that relies on conventions and treats them with same respect as a constitutional provision. 2. Article 356 has been lodged in the Constitution as a bulwark, a giant protection and a remedy of the last resort. The invocation of article 356 is a constitutional device, the operation of which is vested in the executive domain. In invocation, it is therefore essential to preserve its stature in the constitutional scheme. If the exercise of this power is perceived to yield to political expediency, it will greatly damage the majesty of the executive power and the federal balance. The Commission, therefore, recommends, in the spirit of the framers of the Constitution, that article 356 must be used sparingly and only as a remedy of the last resort and after exhausting action under other articles like 256, 257 and 355. 3. It has been widely represented that the process of invocation of article 356 must follow the principles of natural justice and fair consideration. This aspect also weighed heavily during discussions in the Constituent Assembly and the Chairman of the Drafting Committee had hoped that warning would be given to the errant States and they would be given an opportunity to explain their position. One other issue regarding the issue of such a warning is whether it should be made public or given wide publicity. The Commission have considered this aspect very carefully and have come to the conclusion that taking this matter to the public domain at this stage may apparently allow for transparency but is likely to generate a great deal of heat in the political domain providing the anti-social forces a free play for social disharmony and violence. It may also encourage from the very outset a process of litigation that may apply continuous brakes in exercise of the executive responsibility. 4. The Commission feels that in a large number of cases where article 356 has been used, the situation could be handled under article 355 i.e. without imposing President's rule under article 356. It is most unfortunate that article 355 has hardly been used. 5. In case of political breakdown, the Commission recommends that before issuing a proclamation under article 356 the concerned State should be given an opportunity to explain its position and redress the situation, unless the situation is such, that following the above course would not be in the interest of security of State, or defence of the country, or for other reasons necessitating urgent action.

The Commission recommends that normally Presidents Rule in a State should be proclaimed on the basis of Governors Report under article 356(1). The Governors report 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. CRITICAL ANALYSIS OF Article 356: In India, the specific topic of failure of constitutional machinery in the States is dealt with, in three articles of the Constitution articles 355 to 357 and 365 of which, article 356 is the one most talked about and subject of controversy allegedly on grounds of having been frequently misused and abused. It is important that article 356 is read with the other relevant articles viz. articles 256, 257, 355 and 365. Insofar as article 355 also inter alia speaks of the duty of the Union to protect the State against external aggression and internal disturbance and to ensure that the government of the State is carried on in accordance with the Constitution, it is obvious that article 356 is not the only one to take care of a situation of failure of constitutional machinery. The Union can also act under article 355 i.e. without imposing President's rule. Article 355 can stand on its own. Also, Union Government can issue certain directions under articles 256 and 257. While article 356 authorises the President to issue a proclamation imposing President's rule over a State if he 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, article 365 says that where a State fails to comply with Union directions (under articles 256, 257 and others) "it shall be lawful for the President to hold 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 scheme of the Constitution seems to clearly suggest that before rushing to issue a proclamation under article 356, all other possible avenues should be explored and as Dr. Ambedkar said, article 356 should be used only as a matter of last resort. It should first be ensured that the Union had done all that it could in discharge of its duty under article 355, that it had issued the necessary directions under articles 256-257 and that the State had failed to comply with or give effect to the directions. USE-MISUSE OF Article 356: Since the coming into force of the Constitution on 26 January 1950, article 356 and analogous provisions have been invoked 111 times. According to a Lok Sabha Secretariat study, on13 occasions the analogous provision namely section 51 of the Government of Union Territories Act 1963 was applied to Union Territories of which only Pondicherry had a legislative assembly until the occasion when it was last applied. In the remaining 98 instances the article was applied 10 times technically due to the mechanics of the Constitution in circumstances like reorganisation of the States, delay in completion of the process of elections, for revision of proclamation and there being no party with clear majority at the end of an election. In the remaining 88 instances a close scrutiny of records would show that in as many as 54 cases there were apparent circumstances to warrant invocation of article 356. These were instances of large scale defections leading to reduction of the ruling party into minority, withdrawal of support of coalition partners, voluntary resignation by the government in view of widespread agitations, large scale militancy, judicial disqualification

of some members of the ruling party causing loss of majority in the House and there being no alternate party capable of forming a Government. About 13 cases of possible misuse are such in which defections and dissensions could have been alleged to be result of political manoeuvre or cases in which floor tests could have finally proved loss of support but were not resorted to. In 18 cases common perception is that of clear misuse. These involved the dismissal of 9 State Governments in April 1977 and an equal number in February 1980. This analysis shows that number of cases of imposition of Presidents Rule out of 111, which could be considered as a misuse for dealing with political problems or considerations irrelevant for the purposes in that article such as mal-administration in the State, are a little over . BOMMAI VERDICT HAS CHECKED MISUSE OF Article 356: Justice B.P. Jeevan Reddy, former judge of the Supreme Court, had a key role in the March 11, 1994 judgment in the Bommai case. He was part of the apex court's majority opinion and wrote an eloquent judgment, along with Justice S.C. Agrawal, dealing with both federalism and secularism that is widely appreciated. The article which is meant for saving unity and integrity of nation is being used against democracy and federal spirit. The ruling party at centre is imposing article 356 against the opposition and local parties. This is used for more than 100 times. Article 356 was first used by Congress government on Communist party which was ruling Kerala at that time. There were controversial decisions regarding usage of this article. The ruling party at centre appoints Governor generally. Hence, Governor is regarded to be the agent of centre rather than first citizen of the concerned state. Governor, as appointed by centre will act as per the will of centre and can do favour by sending a report against party which is not related to ruling party at centre. As referred by the Governor, President may give permission to use article 356 on that state. Actually President has nominal authority and real authority lies with cabinet to take decision regarding it. So, the real authority is in the hands of ruling party at centre. This is the reason this article is being misused. However, in Bommai case, Supreme Court has laid some restrictions on usage of article 356. To know restrictions on usage of article 356, visit S.R. Bommai case and restriction on usage of article 356.

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 provide such a noxious power to the central government which was used more than hundreds of time 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, yes I am talking about 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. According to me article 356 require certain amendment as given below: 1) The governor of a state should submit their report to the president and chief justice of high court and if both are agree that state is not working in accordance with the constitution then only president rule was imposed. 2) During state emergency union has no power to amend or make any law in matter of state list . 3) The satisfaction of the president is not the satisfaction of the central government. 4) The clause or otherwise should be removed from the article 356 because it give power to the union government to impose state emergency without governor report. 5) It is necessary that president should not work in accordance with the central government, but he should work in accordance with the constitution of India. 6) Before proclamation of state emergency the governor report and president satisfaction on the governor report should be published in daily newspaper.

BIBLIOGRAPHY 1. G. Austin, The Indian Constitution Cornerstone of a Nation, 187; K.C. Wheare, Modern Government (1971) 18; Jennings, Some Characteristics of the Indian Constitution, 55; D.D. Basu, Commentary on the Constitution of India, 7th Edn., Vol. A, 55. 2. See, Constituent Assembly Debates, Vol. IX, 141. 3. Ibid, at p. 143. 4. Ibid, at p. 177. 5. Sarkaria Commission, Report on Centre-State Relationship (1983-1988), see also, National Commission to Review the Working of the Constitution, Report, I, S. 8.16 (2002) and D.D. Basu, in his book, Introduction to Constitution of India, (19th Edn.) at p. 483 says no provision of the Constitution has been so often used, misused, and abused as Article 356, 108 times since 1954. 6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. 7. Also see, Soli J. Sorabjee, The Governor: Sage or Saboteur, Roli Book, New Delhi, 1985, p. 88 (The public today generally regard the Governor as the employee of the Central Government, that in some cases the spy of the Centre). 8. AIR 1965 Ker 229. 9. The Governor shall from time to time summon the House or each House of the Legislature of the State to meet. 10. K.K. Aboo v. Union of India, AIR 1965 Ker 229 at p. 232, para 8. 11. Supra n. 8. 12. AIR 1968 P&H 441. 13. Ibid, at p. 447, para 9. 14. Rao Birinder Singh v. Union of India, AIR 1968 P&H 441. 15. AIR 1973 Cal 233 at p. 238, para 18. 16. State of Rajasthan v. Union of India, (1977) 3 SCC 592.