Dr. M.V.K. Moorthy, Supreme Court Advocate

The Constitution of India 1950 inter-alia being an organic document and the longest written constitution in the world provided for the fundamental rights conferred on the citizens as also the fundamental duties laid on the citizens.

Simultaneously the Constitution provided for administration of the Centre, State and the Executive as well as the establishment of the highest Court of the land for administration of Justice as well as the Constitutional High Courts in the States with territorial jurisdiction limits, the legislative inhibitions both on Central and State legislatures and finally the powers of the President to proclaim Presidential Rule in States as well as the power to amend the constitution. The manner and procedure in which the Election Commission of India has to be structured and constituted as well as their powers was postulated. These are the salient features under which the Constitution is designed to function with ultimate goal of achieving the democracy, majesty and dignity with secularism philosophy due to which the universe respects with great passion the Indian Constitution.

Let us see the provision with which this article concerns in relation to proclamation of Presidential Rule in a State under given circumstances.

Article 356 inter-alia perse postulates 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 this Constitution may by proclamation 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, declare the powers of the legislature of the State shall be exercisable by or under the authority of parliament, 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 a whole or in part the operation of any provisions of the Constitution relating to the State Proclamation by the President may be revoked or varied by a subsequent proclamation. Every proclamation under this article requires to be laid down before each house of parliament and would cease to operate at the expiration of two months unless before expiration of the period, it is approved by resolutions of both Houses of parliament that the proclamation so approved by the Parliament unless cancelled ceased to operate on the expiration of six months from the date of issue of the proclamation. In terms of clause (5), the satisfaction of the President is final and conclusive and cannot be assailed on any ground. However, this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified. For exercise of the power under article 356, the fundamental or elementary requirement is report of the Governor of the State to the effect that the Government of State cannot be carried in accordance with the Constitution. That means, the Governor was on the basis of the circumstances especially touching upon the law and order and leading to break down of the constitutional machinery would report to the President of India to examine his report and to arrive at proper and justifiable reason that would support proclamation of presidential rule. Therefore it is not the violation of the one provision or another of the constitution which bears no nexus to the object of the action under article 356, while the keyword in the marginal note is failure or breakdown of the constitutional machinery which would open the windows for exercise of this power to operate in terms of article 356(1).

The next question that triggers is whether the unique Indian constitution provides inter-alia for proclamation of presidential rule in the entire country. Vividly to the naked eye of any reader of the constitution, it is clear as crystal as that the constitution is conspicuously silent on this aspect. Therefore one cannot imagine or think over presidential rule and its proclamation in the entire country. Fortunately the makers of the constitution did not visualize such a situation. However, to the misfortune of the people of the country in the event of any such a situation in the country and the head of the nation would have to cut a sorry face except finding the ways and means to search for compromise and mediation somehow.

Now to the extent of the proclamation of presidential rule is concerned, I must say the earlier incidences of presidential rule to be traced arising in S.R. Bommai v. Union (1994) 3 SCC 1 subsequently in the case of State of Rajasthan v. Union of India AIR 1977 SC 1361, 9 assemblies dissolved in the year 1980, in Pondicherry, in Assam, Tamil Nadu, Punjab, Haryana, Meghalaya, Manipur. In the year 1992, Presidential Rule was imposed in 3 BJP Ruled States of Madhya Pradesh, Himachal Pradesh and Rajasthan and assemblies were dissolved. The main grounds on which the  </em >BJP Governments were toppled were that the Chief Ministers of these three states have connections with RSS and secondly these Three Governments encouraged the Karsevaks to go to Ayodhya. Unfortunately the Union Government failed to follow the report of Sarkaria Commission which clearly pointed out that article 356 can used only in the event of political crisis internal subversion, physical break down or non compliance with the Constitutional directions of the Union executive. In a landmark judgement in S.R. Bommaiah case, while hearing the case filed against the judgement of Allahabad High Court a 9 member Judges Constitutional Bench of the Supreme Court clearly held that dismissal of BJP Government in Madhya Pradesh, Rajasthan, Himachal Pradesh in the wake of Ayodhya incident of 6th Section 1992 was valid and constitutional. To arrive at such a conclusion, the Court held that secularism is a basic feature of the Constitution and any State Government acting against such ideal can be dismissed by the President. It was further held that in matters of religion, the State has no place. Secondly it was held that no political party simultaneously can be a religious party as well as a political party. The Court in respect of Presidential Rule imposed in Nagaland, Karnataka, Meghalaya held as unconstitutional. The constitutional Bench however agreed with 7 judge Bench decision in the case of State of Rajasthan Vs. Union of India that the Court could under take judicial review of the Presidential Proclamation if allegations and malafide exercise of power were made in the petition. The majority of course held that because a political party with overwhelming majority at Centre it advised the president under article 356 to dissolve the assemblies of opposition ruled states and such act was illegal.

Summing up, the nine judges Constitution Bench laid down certain guidelines for reasonable and judicious exercise of power under article 356 as under .

Checks and Balances on Proclamation of Presidents Rule in A State

1. Presidential proclamation dissolving the State legislature is subject to judicial review.
2. If a State Government works, against

   secularism, President rule can be imposed.

3. No wholesale dismissal of opposition ruled State Governments in the wake of a new political party assuming power at Centre.
4. If presidential rule is imposed only at political consideration, the Court can even restore the assembly.
5. Imposition of President Rule and dissolution of a State assembly cannot be done together.
6. State assembly can be dissolved only after

   parliament approves Central rule.

7. In the case, the Supreme Court or High Court can compel the Union Government to disclose the material on which basis the Presidential rule is imposed in a State; and
8. The power of the President under article 356 is a constitutional power circumscribed by various qualifications. It is an of absolute power. For Exercise of the power, the condition Precedent is to form the needed satisfaction, of course objective to impose the presidential rule.

Thus the guidelines formulated by the Hon’ble Supreme Court will act as a check on motivated and arbitrary dismissal of State Government by the Centre in future. It is to notice that since the inception of the Constitution, Presidents rule was imposed on more than 100 occasions. In exercise of judicial review which is one of the basic features of the constitution, the court would examine the circumstances, in which the dismissal of the government is made and in the final analysis if the Court finds that the dismissal of the Government is malafide, the Court can strike down the Presidents rule and revive the assembly and restore the Government. The court also noted that according to Dr. Ambedkar in his hoped that article 356 would be a dead letter. While the majority judgement of the Supreme Court in SR Bhommai Case is laudable with formulation of the guidelines, yet certain procedural delays also pained the democracy as well as elected peoples representatives when cause of delay in hearing and delivery of judgement as before pronouncement of the judgment elections were conducted for the State assembly and new legislatures were formed and new Governments were inducted. Therefore the very purpose of proclamation of president rule had become otiose. However, it is to note with all respects to the Indian judiciary, the Hon’ble Supreme Court failed to muster enough courage to hear the appeals in time and giving its opinion that resulted in allowing the illegality perpetuated by postponing the date of hearing.

On international arena, in a landmark judgement, the Supreme Court of Pakisthan declared the Presidential Rule / order dissolving Nawaz Sharif Government and dissolving National Assembly in terms of Article 58(2) of the Pakisthan Constitution as unconstitutional and illegal and consequently restored the dissolved assembly and reinstated the ousted prime minister.

Thus it is seen that in our country article 356 was used by the President on several occasions to topple various State Governments due to political reasons, but the essential ingredient and pre requisite condition is the material as well as report of the governor of the State shall invariably demonstrate the engulfing circumstances prevailing in the State contributing to the status of breakdown of law and order situation, resulting in breakdown of constitutional machinery.

According to my wisdom, the president in exercise of the power in terms of article 356 shall be very slow as in the first instance he shall advise the governor to find out a better solution for resolution of the issues amicably as imposition of President rule for each and every reason on the basis of the report of the State governor would smack the dignity and majesty of the democracy, for the elected representatives of the people forming the State Government and assemblies in accordance with the Constitutional spirits would be frustrated. Therefore simultaneous with proclamation of president rule in a State, the assembly shall not be dissolved as dissolution of the assembly and dismissal of the State Government, even when sufficient time of the term is available, then such action on the part of the President would cause financial prejudice to the State as conduct of election to a State assembly frequently would cost the exchequer with skyrocketing unplanned expenditure. In a democratic set up conducting of elections is a necessity with inherent spent of money for such elections. Therefore the presidents rule shall not cause burden on the State exchequer in addition to causing so much of disturbance on all Courts including tranquility of the people. Therefore as a fervent as also zealous lover of the constitution, I feel it is my sacred duty to opine that the power and exercise of under article 356 shall not be a routine or unminded act as it will create a situation to raise eye brows on the wisdom, conscience and vision of the first citizen of the country as well as the executive head of the Nation. That apart this being a constituent power shall be exercised very sparingly, though the president in terms of article 74 is bound by the advice of the council of ministers, yet he cannot allow himself to be swayed by sheer advice of the council of ministers but shall use his power of vision / discretion judiciously in the interest of the unity, integrity of the nation and the majesty and dignity of the highest / largest democratic country in the world. Democracy shall be effective in reality not confined to paper and finally exercise of power under article 356 not being absolute shall have to be resorted to in conjunction with the other relevant articles of the constitution that envisage formation of the State legislatures and the Government, for, ultimately the constitution is supreme and every act or action on the part of all the so called four estates namely “Legislature, Executive, Judiciary and Press” shall subserve the very object , purpose and spirit behind the organic document of a great sovereign republic country.

I hope that whatever my little brain encouraged and prompted to share some of my thoughts, I have placed in this article for the benefit of all the readers and members of the professional fraternity.

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