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I. INTRODUCTION:
One of the chief- characteristics of the Indian Constitution is the way in
which the normal federal Constitution can be adapted to emergency situation.
It is the merit of the Constitution that it visualizes the circumstances when
the strict application of the federal principles might destroy the basic
assumption on which our Constitution is built.

The Constitution of India provides for three types of emergency:


 National Emergency – due to war, external aggression of armed
rebellion (Art. 352).
 State Emergency – due to the failure of constitutional machinery in
States (Art. 356).
 Financial Emergency – (Art. 360).

II. STATE EMERGENCY OR FAILURE OF


CONSTITUTIONAL MACHINERY IN
STATE:
Article 356 says that 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 the Constitution, he may issue a Proclamation. By that
Proclamation:
1) The President may assume to himself all or any of the powers vested in or
exercisable by the Governor to anybody or authority in the State.
2) The President may declare that the powers of the Legislature of the State
shall be exercised by or under the authority of Parliament.
3) The President may make such incidental and consequential provisions as
may appear to him to be necessary or desirable for giving effect to the
object of Proclamation.

The President cannot, however, assume to himself, any of the powers vested
in High Court or suspend the operation of any provisions of the Constitution
relating to the High Court.

When the Proclamation of Emergency is made under Art. 356 (1), the powers
of the State Legislature are to be exercised by Parliament. Parliament can
confer on the President the power to make laws for the States. Parliament
may also authorize the President to delegate such powers to any other
authority as specified by him. [Art.357 (1) (a)]. If the Lok Sabha is not in

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session the President may authorize expenditure from the Consolidated Fund
of State, pending sanction of such expenditure by Parliament.
The Proclamation issued under Art. 356 (1) may be revoked of varied by the
President by a subsequent Proclamation.

It is to be noted that the word “satisfaction” in Art. 356 (1) does not mean the
personal satisfaction of the Governor but it is the satisfaction of the Cabinet.
The satisfaction of the President can, however, be challenged on two grounds
that (1) it has been exercised mala fide (2) based on wholly extraneous and
irrelevant grounds, because in that case it would be no satisfaction of the
President.1 In S.R. Bommai v. Union of India2 the Karnataka High Court has
held that the proclamation issued under Art. 356 is not wholly outside the
part of judicial scrutiny and the Court can examine whether the reasons
disclosed for issuing proclamation have rational nexus with the satisfaction
reached under Article 356.

It is to be noted that under Article 356 the President acts on a report of the
Governor or otherwise. This means that the President can act even without
the Governor’s report. This is justified in view of obligation of the Centre
imposed by Art.355 to ensure that the Government of the State is carried on
in accordance with the provisions of the Constitution. In view of it the
Centre’s ultimate responsibility to protect the constitutional machinery of the
States, the framers thought it proper not to restrict and confine the action of
the Centre merely on the Governor’s report. The Governor might not
sometimes make a report. The President can, therefore, act even without the
Governor’s report, if he is satisfied that such events occurred in a State,
which involve the special responsibility placed upon the Centre to maintain
the State under the Constitution.

A proclamation issued under Art. 356 shall be laid before each House of
Parliament and shall remain in operation for ‘two months’ unless before the
expiry of that period it has been approved by both Houses of Parliament.
[Clause (3) of Art.356]. Any such Proclamation may vet evoked or varied by
a subsequent Proclamation. If any such Proclamation is issued at the time
when Lok Sabha is dissolved or the dissolution takes place during the period
of two and the Proclamation is passed by the Rajya Sabha but not passed by
the Lok Sabha, the Proclamation shall cease to operate at the expiry of 30
days from the date on which the new Lok Sabha meets after the
reconstruction unless before the expiry of 30 days it has been also passed by
the Lok Sabha. If the Proclamation is approved by the Parliament it will

1
State of Rajasthan v. Union of India, AIR 1977 SC 1361.
2
AIR 1990 Kant 5.
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remain in operation of “six months”. Parliament may extend the duration of


Proclamation for “six months” at a time but no such Proclamation shall in
any case remain in force for more than three years. After the expiry of the
maximum period of three years, neither the Parliament nor the President shall
have power to continue a Proclamation and the constitutional machinery
must be restored to the State.

44th Amendment, 1978 – This amendment had amended Art.


356 and restricted its scope. It substitutes the word “six months” for the
words “one year” as it existed originally. Thus it restores the position as it
stood before the 42nd Amendment. A Proclamation of Emergency will, if
approved by Parliament, continue for six months from the date of the issue.
For the further continuation of emergency, it must be approved by
Parliament each time. It has added a new clause (5) provides that a
resolution for the continuance of the emergency beyond one year shall not
be passed by either House of Parliament unless – (a) a Proclamation of
Emergency is in operation at the time of the passing of such resolution: and
(b) the Election Commission certifies that the continuance in force of the
Proclamation under Art. 356 during the period specified in such resolution
are necessary on account of difficulties in holding general elections to the
Legislative Assembly of the State concerned. This means that the extension
of the emergency beyond the period of one year is possible only if the
conditions mentioned in clause (5) are present. Prior to this Amendment
there was no such condition imposed and the Government could extend the
period upto the maximum of three years without sufficient cause.

 The 48th Amendment, 1984- Amended Cl. (5) Art. 356, and
inserted a new proviso in Cl. (5) namely, “provided that in the case of the
Proclamation issued under cl. (1) on the 6th day of October, 1983 with respect
to the State of Punjab, the reference in this clause to “any period beyond the
expiration of one year” shall be construed as reference to “any period beyond
the expiration of two years”. Under the existing clause (5) the Presidential
Proclamation of Oct. 6, 1983, with respect to Punjab could not continue in
force for more than one year unless the “special circumstances” mentioned
therein were satisfied. This was enacted to meet out the special
circumstances prevailing in the State of Punjab due to the Akali agitation.
Although the Legislative Assembly was kept in suspended animation and a
popular Government could be installed, but having regard to the prevailing
situation in the State the continuance of the Proclamation beyond Oct. 6,
1987, was necessary. The amendment makes the conditions in the existing
Art. 356 (5) inapplicable in case of the State of Punjab.

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The (Constitution 64th Amendment) Act, 1990. Art. 356 were again amended
by the Constitution 64th Amendment Act. 1990 in order to provide for
extension of the President Rule in the State of Punjab for another 6 months as
the situation there was not favorable for holding Assembly elections. The
amendment added a new proviso after clause (4) in Art. 356 which
substituted the words “three years and six months” for the words “three
years” and also provided that the conditions laid down in Cl. (5) shall not
apply to the Proclamation issued under cl. (1) on 11th May, 1987 with respect
to the State of Punjab. The Constitution (67th Amendment) Act, 1990,
extended the period of President Rule in the State of Punjab for a further
period of 6 months. Accordingly, it has substituted the words “four years” for
the words “three years & six months” in Cl. (4) of Art.356 of the
Constitution.

Since the commencement of the Constitution the President Rule has been
imposed under Art.356 on more than hundred occasions. In most of the
cases, it has been imposed in the circumstances in which a stable ministry
could not be formed.
3
TABLE
PRESIDENT’S RULE IN STATES & UNION TERRITORIES

S.No State & U.T. No. of times Duration of President


President’s rule
rule From To
imposed
1. Andhra Pradesh 2 15-11-1954 28-3-1955
18-1-1973 10-12-1973
2. Assam 4 12-12-1979 6-12-1980
30-6-1981 13-1-1982
19-3-1982 27-2-1983
27-77-1990 30-6-1991
3. Bihar 6 29-6-1968 26-2-1969
4-7-1969 16-2-1970
9-1-1972 19-3-1972
30-4-1977 24-6-1977
17-2-1980 8-6-1980
28-3-1995 4-4-1995
12-2-1999 8-3-1999
4. Goa 1 10-2-1999 9-6-1999
5. Gujarat 5 13-5-1971 17-3-1972
3
D.D.BASU, Introduction to the Constitution of India, pp. 481-483.
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9-2-1974 18-6-1975
12-3-1976 24-12-1976
17-2-1980 7-6-1980
19-9-19964 23-10-1996
6. Haryana 3 21-11-1967 21-5-1968
30-4-1977 21-6-1977
6-4-1991 23-6-1991
7. Himachal Pradesh 2 30-4-1977 22-6-1977
15-12-19925 3-12-1993
8. Jammu & Kashmir 2 7-9-1989 6-11-1986
19-7-1990 9-10-1996
9. Karnataka 4 27-3-1971 20-3-1972
31-12-1977 27-2-1978
21-4-1989 20-11-1989
10-10-1990 17-10-1990
10. Kerala 9 23-3-1956 1-11-1956
1-11-1956 5-4-1957
31-7-1959 22-2-1960
10-9-1964 24-3-1965
24-3-1965 6-3-1967
4-8-1970 3-10-1970
5-12-1979 25-1-1980
21-10-1981 28-12-1981
17-3-1982 24-5-1982
11. Madhya Pradesh 3 30-4-1977 23-6-1977
17-2-1980 9-6-1980
15-12-19925 7-12-1993
12. Maharashtra 1 17-2-1980 9-6-1980
13. Manipur 7 21-11972 20-3-1972
28-3-1973 4-3-1974
16-5-1977 29-6-1977
14-11-1979 13-1-1980
28-2-1981 19-6-1981
7-1-1992 8-4-1992
1-1-1994 13-12-1994
14. Mizoram 1 7-9-1988 4-1-1989
15. Nagaland 3 22-3-1975 25-11-1977
7-8-1988 25-1-1989

4
Writ petition challenging the Proclamation is pending before the Gujarat High Court.
5
Writ Petition challenging Proclamation brought before the Supreme Court has been dismissed and
the validity of these Proclamation have been upheld by a 9-Judge Bench [Bommai v. Union of India,
A. 1994 S.C. 1918 (Para. 91(x),366)].
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2-4-1992 22-2-1993
16. Orissa 6 25-2-1961 23-6-1961
11-1-1971 3-4-1971
3-3-1973 6-3-1974
16-12-1976 29-12-1976
30-4-1977 6-6-1977
17-2-1980 9-6-1980
17. Patiala & East 1 4-3-1953 7-3-1954
Punjab States
Union(PEPSU)
18. Punjab 8 20-6-1951 17-4-1952
5-7-1966 1-11-1966
23-8-1968 17-2-1969
15-6-1971 17-3-1972
30-4-1977 20-6-1977
17-2-1980 7-6-1980
6-10-1983 29-9-1985
11-5-1987 25-21992
19. Rajasthan 4 13-3-1967 26-4-1967
30-4-1977 22-6-1977
17-2-1980 6-6-1980
15-12-19925 4-12-1993
20. Sikkim 2 18-8-1979 17-10-1979
25-5-1984 8-3-1985
21. Tamil Nadu 4 31-1-1976 30-6-1977
17-2-1980 9-6-1980
30-1-1988 27-1-1989
30-1-1991 24-6-1992
22. Tripura 3 21-1- 1972 20-3-1972
5-11-1977 4-1-1978
12-3-19936 9-4-1993
23. Uttar Pradesh 9 25-2-1968 26-2-1969
1-10-1970 18-10-1970
3-13-6-1975 8-11-1973
30-11-1975 21-1-1976
30-4-1977 23-6-1977
17-2-1980 9-6-1980
6-12-19927 4-12-1993

6
As a stop-gap arrangement to enable a fresh election of the State Assembly, which had not taken
place before the expiry of its term.
7
On ground of failure of B.J.P Government to prevent demolition of the disputed Babri Masjid
structure.
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18-10-19958 7-10-1996
18-10-19969 21-3-1997
24. West Bengal 4 20-2-1968 25-2-1969
29-6-1971 2-4-1971
19-3-1970 20-3-1972
30-4-1977 21-6-1977
25. Arunachal Pradesh 1 3-11-1979 18-1-1980
26. Goa 3 3-12-1966 5-4-1967
28-4-1979 16-1-1980
14-12-1990 25-1-1991
27. Meghalaya 1 10-10-1991 5-2-1992
28. Mizoram 2 11-5-1977 2-6-1978
11-11-1978 8-5-1979
29. Pondicherry 6 18-9-1968 17-3-1969
3-1-1974 6-3-1974
28-3-1974 2-7-1977
12-11-1978 16-1-1980
24-6-1983 16-3-1985
12-1-1991 4-7-1991

 Nine Assemblies Dissolution in 1977- In 1977, Art. 356


were invoked in every peculiar circumstance. The Assemblies of 9 states:
Rajasthan, U.P, M.P, Punjab, Bihar, H.P., Orissa, West Bengal, & Haryana,
were dissolved & President Rule was imposed on the ground that the
Assemblies in these states no longer represented the wishes of the electorate.
The facts which led to the dissolution of the nine Assemblies were as
follows: The Lok Sabha in which Congress had an overwhelming majority
was dissolved on Jan. 18, 1977 an fresh elections were held in March 1977 in
which the ruling Congress Party was completely routed and the Janata Party
secured a landslide victory and form the Government at the Centre. The
Congress Party could not secure even a single Lok Sabha seat in several
states. On the date on which the Janata Party took office, the Congress was in
power in various states. In April 1977 Shri Charan Singh, the Union Home
Minister, addressed a letter to the Chief Minister’s of the these states
earnestly recommending for their consideration that they should advice the
Governors of their respective states “to dissolve the state Assembly in
exercise of the power under Art. 174 (2) (b) and seek a fresh mandate from

8
On the B.S.P. Government of Mayavati losing majority on the withdrawal of the support of the
B.J.P.
9
On the failure of any party to be able to form a government. A writ petition challenging the
Proclamation was allowed by the Allahabad High Court. An appeal is pending in the Supreme Court
(January 1997).
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the electorate”. It was contended that since their party was virtually rejected
in the present Lok Sabha elections a series doubt had been cast on their
enjoying the people’s confidence. When a Legislature no longer reflects the
wishes of the electorate he said, it should obtain a fresh mandate.

In State of Rajasthan v. Union of India,10 the States filed suits challenging the
validity of the directives issued by the Home Minister to the Chief Ministers
to dissolve their assemblies and seek a fresh mandate. The latter disclosed the
soul ground for the Proclamation under Art. 356 and that such a
Proclamation and the dissolution of their Legislative Assemblies upon the
grounds given in the letter were outside the scope of Art.356 of the
Constitution. It was also contended that the condition precedent to the
dissolution of the Assemblies is ratification by both the Houses of Parliament
and so that no dissolution can take place without ascertaining the wishes of
both the House of Parliament. The petitioners prayed for a permanent
injection restraining the Union of India from giving effect to the Home
Minister’s directive. On behalf of the Union of India, it was contended that
the suit under Art. 131 was not maintainable because the dispute of a
political character regarding the continuance of a Council of Ministers. It was
argued that the questions which arose gauging the existence of a “situation”
calling for action under Art.356 were non- justifiable. Mere intimation of
some facts did not justify prohibition to act in future on other facts. It could
not be predicted now what other facts may arise in future.

Seven members Constitution Bench of the Supreme Court by a unanimous


judgment rejected petitioner’s petition and upheld the Centre’s action of
dissolving 3 Assemblies under Art.356 as constitutionally valid. The Court
held that the ‘satisfaction’ of President under Art.356 could not be
questioned. The President does not act only on the report of the Governor but
on otherwise. This means that the satisfaction can be based on the material
other than Governor’s report. The choices between dissolution and re-
election or retention of the same membership of the legislature or the
Government for a certain period are matters of political expediency and
strategy under a democratic system. Under the India system, the gist of
political power through formation of several political parties is legal. Hence a
mere attempt to get more political power for a party is not constitutionally
prohibited or per se illegal.

However, the court did not give a blank cheque to the Government to
dissolve Assemblies. The Court observe that if the satisfaction is mala fide
or is based on wholly extraneous and irrelevant grounds the court would
10
AIR 1977 SC 1361.
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have jurisdiction to examine it because in that case there would be no


satisfaction of the President (Bhagwati & Gupta, JJ). The Chief Justice
suggested that a healthy convention should be developed so that the power
under Art.356 is neither exercised capriciously or arbitrarily nor it be
exercised when a political situation really calls for. It is not for the Courts to
formulate and much less to enforce a convention to regulate the exercise of
such an executive power. This is matter which entirely rest with the
Executive.

 Nine Assemblies Dissolution in 1980 – In 1980, Art.356


was invoked by the Congress (1) Government more or less in similar
circumstances in which it was invoked in 1977 by the Janata Government at
the Centre. The Assemblies of 9 States of Uttar Pradesh, Bihar, Rajasthan,
M.P., Punjab, Orissa, Gujarat, Maharashtra and T.N. were dismissed and the
President Rule was imposed on them on the ground that they no longer
represented the wishes and aspirations of the electorate. The facts leading to
the dissolution of the nine Assemblies were as follows: As stated earlier, in
1977 Lok Sabha elections the Janata Party had secured a landslide victory
and formed the Government at the Centre. But due to internal dissensions
and defections from the party it was reduced to minority and the P.M.
Morarji tendered the resignation of his Government. The President invited
Mr. Charan Singh, the leader of the alliance to form the Government, but
before he could face the Parliament he tendered his resignation and advised
the President to dissolve the Lok Sabha and order fresh elections. The
President dissolved the Lok Sabha and order fresh elections. The President
dissolved the Lok Sabha and ordered fresh elections. In the elections the
Congress (I) secured a massive majority by capturing 351 seats in the House
and Janata Party could secure only 31 seats. On the date on which the
Congress (I) took office at the Centre, the Janata Party was in power in
various States. On February 18, 1980 the Centre dissolved the Assemblies of
the aforesaid nine States and imposed President Rule in them. The grounds
on which Assemblies were dissolved were the same as those advanced by the
Janata Government in 1977. The Congress (I) contended that after the Lok
Sabha elections in Dec.1979, as n 1977, the State Governments &
Assemblies concerned no longer represented the wishes and aspirations of
the electorate. The dissolution order, however, did not mention any reasons
for dissolution presumably due to the fear that if reasons were given it might
be challenged in the Court of law.

On the basis of the facts given above, it may be submitted that the Janata
Government’s case for dissolution of nine Assemblies in 1977 stood on more
solid basis constitutionally (rejection of 42nd Amendment Act) and also
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politically (total rejection of Congress in the elections in nine States) than


that of the Congress Government’s case in 1980. The precedent of dissolving
popular Governments was created by the Congress Party itself. The Kerala
Ministry was dismissed in 1959 on the ground that it had lost the confidence
of the electorate. Ironically, the P.M. Mrs. Indira Gandhi was the President of
the Congress Party at that time. The argument that the opposition parties in
the various States would block the progressive measures is also not valid
argument because the Constitution gives the Centre enough sanction against
such States. No States government could afford to ignore to implement the
directives of the Centre. The politics of replying in kind is bound to lead to a
climate uncongenial to give and take and mutual tolerance that must mark the
working of a parliamentary system. This need to be borne in the limited
context of the Rajya Sabha election. One of the main reasons for having a
bicameral legislature is to have the Upper House act as a check on the Lower
House, even blocking and delaying legislation and thus providing occasion
for second thoughts. There can no doubt be delays in enacting laws but such
difficulties can always be resolved through dialogue and persuasion, methods
crucial to the democratic process. The Janata Government was able to do
away with the 42nd Amendment with the co-operation of the Congress Party
which was in majority in the Upper House. Thus what is needed is a climate
of understanding between the rulings and opposition parties, a broad
consensus in the matters of national interest and not the politics of
confrontation. A heavy responsibility rests on all political parties, particularly
the Congress (I) which has an overwhelming majority in the Lok Sabha.

 Dismissal of BJP Government in M.P., H.P., &


Rajasthan – On Dec. 15, 1992, President Rule was imposed in 3 BJP
ruled states of M.P, H.P., & Rajasthan and Assemblies were dissolved on the
ground that these states were not implementing sincerely the ban imposed by
the Centre on religious organization. The main grounds on which the BJP
Government were dismissed were that the Chief Ministers of these states
have connections with the RSS, a banned organization, and secondly, that
these Governments had encouraged the kar sevaks to go Ayodhya thus the
basis was mere suspicion that they would refuse to enforce the ban. There
were no proofs that they were not following the directions of the Centre. The
3 Governors had submitted more or less identical in 24 hours. This was clear
abuse of Art.356, where duly elected Governments were dismissed on the
ground of suspicions.

The Union Government did not pay heed to the report of the Sarkaria
Commission in exercising its emergency power under Art.356. The
commission has pointed out that Art.356 can be used only in the event of
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political crisis, internal subversion, physical breakdown or non compliance


with the constitutional directions of the Union Executive. None of these
events had happened in those states. As regards violence and killings after
the Ayodhya incident: there had been more such incidents in the Congress
ruled states then the BJP ruled states.

In a historic judgment the Madhya Pradesh High Court by 2:1 majority held
that the Presidential order imposing President’s Rule in the State was invalid
and unconstitutional as being beyond the scope of Art.356 of the
Constitution. The Court said that in their report recommending the dismissal
of the Patwa Ministry and dissolution of the Assembly, the Governor failed
to substantiate how the constitutional machinery had broken down. There
was no evidence of the State Government having defied central directives.
Mere worsening the law and order situation in a state due to sudden break of
violence did not call for extreme step, of imposition of President Rule. The
Governor’s report to the Centre had not provided any other material to justify
the case for a constitutional breakdown in a State. The Court said that Central
intervention in a situation of deteriorating law & other could be justified
through the deployment of Army in the affected areas. But impositions of
President’s Rule straight way in these circumstances were beyond the scope
of Art.356. Apart from stating that the law and order situation was worsening
in Bhopal and some other towns in the state as a result to Ayodhya incidents.
The Governor’s report to the Centre had not provided any other material to
justify the case for a constitutional breakdown in the state. As regards the
contention that after it had been ratified by the Parliament, the Court cannot
sit in judgment on Presidential Proclamation; the Court said that the
Proclamation had been invalid for a period of 2 months before Parliament
gave its approval. The ‘invalid’ Proclamation had thus already in force
without Parliamentary approval. The Parliamentary order, the Court held,
Parliament did not sit in judgment over satisfaction of the President reached
on the advice of the Union Cabinet for imposing President’s Rule for 2
months, prior to the issue coming up before Parliament.

 S.R. Bommai v. Union of India: Judicial Guidelines


for imposing President’s Rule - The Union Government filed an
appeal against the MP High Court judgment in the Supreme Court. The
Supreme Court stayed the operation of the judgment till the disposal of the
case. By the time the Supreme Court heard the appeal and gave its judgment
elections to the assemblies of these States were held and new governments
were installed.

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In a landmark judgment in S.R. Bommai v. Union of India,11 hearing the


appeal from the judgment of the Allahabad High Court, a nine member
Constitution Bench of the Supreme Court held that the dismissal of the BJP
Governments in Madhya Pradesh, Rajasthan & Himachal Pradesh in the
wake of the Ayodhya incident of Dec. 6, 1992 was valid and imposition of
the President’s Rule in these States was constitutional. The Court held the
“secularism” is a basic feature of the Constitution and any State Government
which acts against that ideal can be dismissed by the President. It was held
that in matters of religion the state has place. No political party can
simultaneously be a religious party as well as political party.

But the Court held that the imposition of President’s Rule in Nagaland in
1988, Karnataka in 1989 & Meghalaya in 1991 was unconstitutional and,
therefore, liable to be struck down. In these states, however, no action could
be taken as elections had subsequently taken place and new Government had
been installed and it was not possible to revive old State Assemblies. The
Judges unanimously held the President’s power under Art.356 to dismiss a
State Government and imposition of President’s Rule is subject to judicial
review. If the dismissal is found to be illegal then the court can revive the
dissolved State Assembly.

The Court held that no State Assembly can be dissolved simultaneously with
the imposition of President’s Rule. Dissolution of an Assembly can be done
only after Parliament had ratified the Presidential Proclamation. The Court
also ruled that the President can only dissolve the State Assembly after the
Proclamation has been approved by both Houses of Parliament and not
before. Until such approval is given, the President can only suspend the
Legislative Assembly.

The Court agreed with the seven judges Bench decision in the Rajasthan v.
Union of India that the Court could undertake judicial review of Presidential
Proclamation if allegations of mala fide exercise of power were made in the
petition. The majority held that “simply because a political party had
overwhelming majority at the Centre, it could not advise the President under
Art.356 to dissolve the Assemblies of opposition ruled states.”

The majority said that in cases both Houses of Parliament disapprove or do


not approve the Presidential Proclamation, the Proclamation lapses at the end
of 2 months period, and the dismissed Government is revived.

11
(1994) 3 SCC 1.
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Regarding Art.74 (2) of the Constitution which bars an enquiry into the
question whether any or what advice was given by the Council of Ministers
to the President, the majority held that “it does not” bar the Court to call
upon the Union Government to disclose to the Court the material upon which
the President had formed the requisite satisfaction. The material on the basis
of which advice was tendered does not form part of the advice.

In this regard the Court has laid down the following guidelines:
1) Presidential Proclamation dissolving a State Legislative Assembly is
subject to judicial review.
2) If a State Government works against secularism, President’s Rule can be
imposed.
3) No wholesale dismissal of opposition ruled states Governments when a
new political party assumes power at the Centre.
4) If President’s Rule is imposed only on Political considerations the Court
can even restore the Assembly.
5) Imposition of President’s Rule and dissolution of State Assembly cannot
be done together.
6) State Assembly can be dissolved only after Parliament approves Central
Rule.
7) The Supreme Court or a High Court can compel the Union Government to
disclose material on whose basis President’s Rule is imposed on a State.
8) The power of the President under Art.356 is a constitutional power; it is
not an absolute power. The existence of material is a pre-condition to
form the satisfaction to impose the President’s Rule.

The majority judgment of the Court will act as a check on motivated and
arbitrary dismissal of State Governments by the Centre in future, as had
happened in a no. of cases in the past. The ruling of the Court that it will
examine the circumstances in which dismissal is made and if found to be
issued on mala fide grounds the Court can struck it down and revive the
Assembly and the Government will compel the political party in power at the
Centre to think twice before imposing the President’s Rule in a State. The
Court observed that Art.356 which Dr. Ambedkar had hoped would be a “dead
letter” of the Constitution had turned out to be a “dead letter” for a no. of State
Governments and Legislative Assemblies. The commencement of the
Constitution, the Court noted that the President Rule had been imposed on
more than hundred occasions.

While the majority judgment is laudable and will be able to put a bar on future
dismissal of a State Governments by the Centre on political considerations, it
would be pertinent to make a few comments on the decision of Court. First, the

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Court took long time to deliver its verdict and allowed at least in cases of
Nagaland, Karnataka and Meghalaya illegality to be perpetuated and
ultimately deprived the citizens of those States to be governed by their chosen
representatives. Secondly, the test of “secularism” for dismissal of a State
Government is vague and untenable. The concept of secularism has been
misunderstood and interpreted only regard to Hindu fundamentalism. Does it
not apply to the Muslim terrorist who had instigated large scale of violence
causing break down of law and order in a state (Bombay & Kashmir or Kerala
where Muslim league is a constituent of ruling party) thereby, threatening the
ideal of secularism, thirdly, if secularism is a basic feature of the Constitution
then castles society is also a basic feature of the Constitution. In spite of the
Supreme Court judgment, several states are instigating caste frenzy (U.P &
BIHAR) threatening the unity and integrity of the nation. Should these
Governments be not dismissed?

Despite certain drawbacks, the majority decision deserves to be complemented


as it would put a check on arbitrary dismissal of State Government in future
and strengthen the federal structure of the Indian policy which had hitherto
been damaged on several occasions particularly when different political parties
were in power at the Centre and the States.

The Indian Supreme Court failed to muster enough courage to hear the appeal
in time and giving its opinion. Instead, it allowed the illegality to be
perpetuated by postponing the date of hearing the appeal after 4 months. In the
mean time elections to these assemblies had been completed and new
Governments had been installed. The only consolation is that there will be a
check on such arbitrary dismissal in future.

In a landmark judgment12 the Pakistan Supreme Court declared the President


Gulam Ishaque Khan’s order dismissing the Nawaz Sharif Government and
dissolving the National Assembly under Art.58(2)(b) of the Pakistan
Constitution as unconstitutional and illegal and restore the dissolved Assembly
and reinstated the ousted Prime Minister and his Cabinet. Pakistan’s Supreme
Court has shown considerable courage in setting aside Presidential Arbitrary
Order.

 President’s rule in U.P .in 1996- In a landmark judgment a


three judge bench of Allahabad high court held at the president proclamation
imposing president rule under Art. 356 in the state of Uttar Pradesh and
subsequently is approved by parliament is unconstitutional and was based on

12
The Hindustan Times, May 27,1993
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wholly irrelevant and extraneous ground and, therefore, liable to be quashed.


However to avoid any crisis as a result to the questing of aforesaid
proclamation, the court, by applying the doctrine of prospective overruling ,
directed that the judgment shall come into operation with effect from
December 26, 1996. Justice B.M. Lal said that the Governor did not explore
all the possibilities to form the government in the state. The President Rule
could not extend beyond one year unless the condition provide in Art. 356
are present. In the present case, the President’s Rule was continued beyond
one year without complying with the conditions laid down in sub-clauses (a)
and (b) of clause (5) of Art. 356.

 U.P Episode Feb. 19, 1998: Recommendations of


governor for imposition of the President’s Rule
quashed by Allahabad High court and Chief
Minister reinstated- The action of the governor was challenged in
Allahabad High court one of the BJP Minister .In a landmark judgment the
Allahabad High court, ordered the restoration of kalian Singh’s Government
in the state as it existed on Feb.21, 1998. A Division bench of the high court
passed an interim order stating that status quo is maintained. The High court
held that the Governor acted mala fide intensions. The Court directed the
governor that if he had any doubt about his majority, he may ask Kalyan
Singh to prove his majority on the floor of the house.

Mr. Pal filed a special leave Petition in the Supreme Court against the
judgment of the High court. The Supreme Court declined of the Allahabad
High court and ordered a new procedure of composite trail of strength for
virtually direct election of Singh or pal as the Chief Minister. In the
composite trail of strength, Mr. Kalyan Singh emerges victorious defeating
Mr. Pal by 225 to 196 votes in the Assembly.

Thus the decision of the High court and later its approval by the apex court
saved the democracy. The Government had thrown all democratic norms in
the dust-bin and floated the advice given by the President who had asked him
not to act in haste without giving Mr. Kalyan Singh a chance to prove its
majority on the floor of the House. This decision of the Supreme Court
would prevent the abuse of ar. 356 by power hungry politicians.

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 President’s Rule in Bihar.— In Rameshwar Prasad v Union


13
of India, a five judge bench of the supreme court comprising of K.
Sabharwal, C.J., B.N.Agarwal, Ashok Bhan, K.G. Balakrishnan , and Arjit
Pasayat, JJ., by 3-2 majority (Arjit Pasayat and K.G.Balakrishnan, JJ.
dissenting ) held that the Presidential proclamation dissolving State
Assembly was unconstitutional and based on extraneous and irrelevant
grounds. The court said that the governor misled the center in recommending
the dissolution of the state assembly and the union council of ministers
should have verified before accepting it as gospel truth. The governor acted
in “undue haste” in sending his report and his full motive was to prevent JD
(u) from staking claim to form a Government after a fractured Assembly
polls verdict. The Court said that the Governor’s report contained “fanciful
assumption” which could be “destructive to democracy”. The drastic and
extreme action under article 356 cannot be justified on mere personal opinion
of the governor. The court said that it cannot remain a silent spectator
watching the sub version of the constitution. The council of ministers should
have verified the fact stated in the report of governor before hurriedly
accepting it as a ‘gospel truth’ as to what the governor stated. It was claimed
by the governor that he recommended dissolution on the ground that in view
of media report a political party was trying to gain majority by engineering
defection and this was a serious threat to democracy. On this, the court held
that this was a matter which can be solved under the Tenth Schedule and not
relevant at the time when the governor had to spend report to the center.
“Thet was fully an unconstitutional act”, the court declared, the issue of
defection has to be dealt in accordance with the law as no such power is
given to a governor.

The court emphasized that the governor while recommending dissolution of


an Assembly has to annex with his report to the union Government
“relevant” material substantiating his decision. “In the absence of the
relevant material much less due verification, the report of governor has to be
treated as the personal ispe dixit (personal opinion) of the governor.

Regarding the claim of the petitioner for the revival of dissolved Assembly
the Court held that the in view of the election process was set in motion and
was at an advanced stage, in the larger interest, it would not be proper to
order revival of State Assembly. The Court avoided any confrontation
between the Legislature and the Judiciary by not ordering the revival of the
assembly. Secondly, the Court rightly left the matter to be decided by the
electorate which was the ultimate source of power. Had the Court revived the

13
(2006) 2 SSC 1.
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Assembly there would have been a serious controversy between the Judiciary
and the Legislature.

It is submitted, that the Court rightly decided in favor of the election process
to be completed believing in the judgment of the people which ultimately
rose to the occasion and gave a clear verdict. In view of the stringing remarks
by the Court on the role of the Governor, it is desirable that political parties
should re-think to implement Sarkaria Commission report which had
suggested that the Centre should recommend “persons who have not taken
too great a part in politics, generally and particularly in the recent past for
Governorship.” Also, the Court’s judgment holds a lesson for the President
who has to apply his mind before giving consent to the Cabinet’s
recommendations.

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III. CONCLUSION:
State emergency is declared on failure of constitutional machinery in a state.
Nearly every state in India has been under a state of emergency at some point
of time or the other. The state of emergency is commonly known as
'President's Rule'.

If the President is satisfied, on the basis of the report of the Governor of the
concerned state or from other sources that the governance in a state cannot be
carried out according to the provisions in the Constitution, he can declare
emergency in the state. Such an emergency must be approved by the
Parliament within a period of two months.

It is imposed for six months and can last for a maximum period of three years
with repeated parliamentary approval every six months. If the emergency has
to be extended for more than three years, it can be done by a constitutional
amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the
executive, and the Governor administers the state in the name of the
President. The Legislative Assembly can be dissolved or may remain in
suspended animation. The Parliament makes laws on the 66 subjects of the
state list. All money bills have to be referred to the Parliament for approval.
In this situation ministers of state legislature are not allowed to perform
action in state.14

THANKS
14
www.wikipidia.com. Article: STATE OF EMERGENCY IN INDIA.
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1. THE CONSTITUTIONAL LAW OF INDIA – Dr.


J.N. PANDAY (48th Edition)
2. INTRODUCTION TO THE CONSTITUTION
OF INDIA – Dr. D.D.BASU (19th Edition, Reprint
2004).
3. www.google.com
4. www.wikipidia.com

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