Whether gap of six months between two sessions of the State Assembly amounts to

Constitutional breakdown and thus calls for imposition of Presidents Rule?

It is humbly submitted that the gap of six months between two sessions of the State
Assembly doesnt fall under the ambit of

constitutional breakdown rather this

malfunctioning of the state government which cant be a ground for invoking Article 356.
The gap of six months although appears as violation of constitutional provision but it is
not of such a grave nature that may it lead to complete seizure of constitutional
machinery even though a duly formed ministry exists. Imposing President Rule on such
grounds will hamper Centre-state relations. That leads to an important question as to what
constitutes as constitutional breakdown.
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 catalog of all situations which would fall within the sweep of the
phrase, '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 heads:
(a) Political crises.
(b) Internal subversion.
(c) Physical breakdown.
(d) Non-compliance with constitutional directions of the Union Executive.
It is not claimed that this categorization is comprehensive or perfect1. But at the same
time it is also stated that the power under article 356 cannot be exercised on the basis of
an inefficient or malfunctioning of the government or mere violation of some provisions
of the constitution. It could be exercised only when the government misuses its power
contrary to basic scheme and purpose of the constitution or for its inability to discharge
its constitutional duties and functions due to political and economic crises which have led
to complete paralyzing of the state administration.
"To hold that because a particular provision of the Constitution was not complied with,
1 Sarkaria Commission Report on Centre State relations.

the National Assembly could be dissolved under Article 58(2)(b) of the Constitution
would amount to an abuse of power. Unless such a violation independently was so grave
that a court could come to no other conclusion but that it alone directly led to the
breakdown of the functional working of the Government, it would not constitute a valid
ground."2
The words carried on in accordance with the constitution in Article 356 should not be
interpreted literally. If interpreted literally, it would cover failure on the part of Sate
Government with regards to all the provisions of the constitution, whatever might be
degree and extent of such failure. The machinery of government does not ordinarily fail if
this or that provision of the constitution is violated by the acts of the state.
The present situation in anyway does not show a gap of six months between the Housess
last sitting in one session and the date appointed for its first sitting in the next session.
I. The Honorable High Court said that prima facie the advanced session appeared
to be in violation of Articles 174 and 175 of the Constitution dealing with
convening of the Session by the Governor and his message to the House.
Taking into consideration the High Courts view two major points stand:
a) The facts clearly state that the Assembly was originally slated to convene on 14 th
January 2016. It can be obviously stated that this date since decided by house was
within the time cap of six months which is also a prerequisite of Article 174(1)
which states that
The Governor shall from time to time summon the House or each House of the
Legislature of the State to meet at such time and place as he thinks fit, but six
months shall not intervene between its last sitting in one session and the date
appointed for its first sitting in the next session.
b) Since the advanced session is invalid Chief Mr. Rai Prasad is still the Chief
Minister regardless he enjoys majority or not. This majority could have been
proven on the floor of the house on the original date of convening the session i.e.
14th January 2016.
2 Khwaja Ahmad Tariq Rahim v. Federation of Pakistan P L D (1992) SC 723

II. Since the parties were aggrieved by Honorable High Courts decision they
approached the Supreme Court ,if the Supreme Court differs from High Courts decision
and validates advancing of winter session, two points still stand:
a) The Governor by notification on 9th December 2015 called for an emergency
session on 16th December 2015, few weeks before the original date for convening
the Assembly i.e. 14th January 2016 which is again within the time cap of six
months as stipulated in Article 174(1).

b) The new Chief Minister Mr. Prem Chand who is elected by the House enjoys
the majority of thirty-three MLAs out of sixty members. Hence Where a Ministry
resigns or is dismissed on losing its majority support in the Assembly and the
Governor recommends, imposition of President's rule without exploring the
possibility of installing an alternative Government enjoying such support or
ordering fresh elections would be held as an improper ground.3 In the case of
Bijayananada Patnaik v. President of India4, in one of its observations pointed out
that, the Governor would be justified in recommending Presidents rule only after
a ministry fall for want of majority, and there is no one else to from an alternative
ministry, and not in anticipation of such fall.
It is humbly stated that in either of the cases their was no gap of six months between the
Housess last sitting in one session and the date appointed for its first sitting in the next
session nor their was breakdown of Constitutional Machinery which could have invoked
Article 356. The Governors report to Union Cabinet seeking Presidents Rule on account
of political instability was nothing but a politically motivated move as it is evident from
above arguments that in either case there was no political instability in the state of
Tarunachal Pradesh. Resorting to Article 356 to sort out internal differences or intra-party
problems of the ruling party would not be constitutionally correct.5
3 ibid.
4 AIR 1974 Or. 52
5 ibid.

In order to identify the intention of the drafting committee, the following extract from Dr
Ambedkar and Article 356 of the Constitution by Dr T.K. Tope, can be resorted to. Dr.
Ambedkar the Chairman of the Drafting Committee of the Constituent Assembly of
India, explained that Article 356 should be the last resort and before imposing it a
warning should be given to the state so that state government could have opportunity to
correct itself and if that warning fails then, and only then the Article 356 should be
invoked.
Referring to Article 356 of the Constitution Dr. Ambedkar further explained that before
resorting to Article 356 "the first thing the President will do would be to issue warning to
a province that has erred, that things were not happening in the way in which they were
intended to happen in the Constitution. If the warning fails the second thing for him to do
will be to order an election allowing the people of the province to settle matters by
themselves. It is only when those two remedies fail that he would resort to this Article."
Dr. Ambedkar admitted that these articles were "liable to be abused" and that he cannot
"altogether deny that there is a possibility of these articles being employed for political
purposes. 6
In the wake of the increasing strain on Centre-State relations, Sarkaria Commission was
set up by the Parliament in the year 1983 under the chairmanship of Justice R. S. Sarkaria
with the purpose of examining and reviewing the working of existing arrangements
between the Union and the State and to recommend measures to make the relation more
efficient and cooperative. The Commission finally submitted its report in the year 1987
with its 247 recommendations of which the main ones are discussed below:
1. The most important recommendation out of all was the rare use of this provision by the
Centre. The Commission, while discussing that the term used in the Article failure of
constitutional machinery, is very vague recommended that each and every failure of the
constitutional provision in a State should be examined properly before this provision is
used. It was suggested to be used sparingly as a last measure, when all the other
6 [(1993) 4 SCC (Jour) 1]

available alternatives have failed to rectify such breakdown of the constitutional

machinery in a State.
2. Further, it was recommended that the alternatives available to rectify the constitutional
machinery should be done away with only in cases where an immediate inaction will
result in disastrous consequences.
3. It was also recommended that for every proclamation made, a report stating the facts
and grounds of it should be made compulsory, which would make the judicial review of
proclamation possible, thus, acting as a check on the use of these provisions by the
Centre with a mala fide intention.
The Supreme Court of India while delivering its judgment, significantly held that the
issue of proclamation of president's rule under article 356 would be subject to 'judicial
review' and had imposed several restrictions on the invocation of this article 7. 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
answer so no state government enjoying people's 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 dear case of
constitutionality.
6) The power to suspend any state government should certainly precede a warning to be
7 S.R. Bommai v UOI AIR 1994 SC 1918

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.The apex court has also categorically observed
that the article should not be invoked:
a) If any state correct itself on receiving a warning from the president;
b) To grant relief to any state from a situation of stringent financial exigencies or due to
serious allegation of corruption.
c) To settle political dispute, internal difference and intra-party problems of the ruling
party and parties.
d) To gain Political advantages by a party in a power at the center to the disadvantage of
any state government.
e) To distribute the democratic and federal fabric of the constitutional scheme.
f) Unless a situation of armed rebellion arises and a simple condition of internal
disturbance

It is humbly submitted that the gap of six months between two sessions of the State
Assembly doesnt fall under the ambit of constitutional breakdown because a particular
provision of the Constitution was not complied with by state cant be a ground for
invoking Article 356.

The gap of six months although appears as violation of

constitutional provision but it is not of such a grave nature that may it lead to complete
seizure of constitutional machinery. Imposing President Rule on such grounds tantamount
to abuse of power and hampering of basic federal structure.

Article 355 of the Indian Constitution makes it evident that the state government has to
carry out its functions in accordance with these mandatory provisions of the Constitution,
failing to comply with these provisions will result in failure of the constitutional
machinery in States and invocation of Article 356. One of such function is mentioned in
Article 174(1) which requires the Governor to summon the House or each house of the
Legislature to the State and this Article mandates that six months shall not intervene
between the last sitting of one session and the date appointed for the first sitting of the
next session.