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1. INTROD INTRODUCT UCTION ION 1.1 1.1
Pres Presid iden entia tiall rul rulee – A Cont Contex extu tual al Ou Outl tlin inee
India deals with the failure President's President's rule refers to Article 356 of the Constitution of India deals of the constitutional machinery of an Indian state. state. In the event that government in a state is not able to function as per the Constitution, the state comes under the direct cont contro roll of the the cent central ral gove govern rnme ment nt,, with with exec execut utiv ivee auth author ority ity exerc exercis ised ed thro throug ugh h the overnor instead instead of a Council of !inisters headed by an elected Chief !inister accountable to the state legislature. Article 356 is invo"ed if there has been failure of the constitutional machinery in any state of India. #uring $resident%s rule, the overnor has the authority to appoint retired civil servants or other administrators, to assist him. Article 356 of the Constitution was one of the most "eenly debated and discussed in the Constituent Assembly. Assembly. In the words of #r. Ambed"ar Ambed"ar &such articles will never be called into operation and that they would remain a dead letter'. (he framers entertained this hope that the provision will be used sparingly and will remain a dead letter. )uch a hope got buried within one year of the wor"ing of the Constitution when in *une +5+ the $un-ab overnment was dismissed despite having a clear clear ma-o ma-orit rity y in the the Assemb ssembly ly.. )inc )incee then, then, till till now now Articl rticlee 356 356 has has been been used used approximately +/ times 0++1++5 being the exact figure.2 According to the )ar"aria Commission%s eport+, which analysed 45 cases of $resident%s ule from *une +5+ to !ay +4 and found in 5 cases out of 45, Article 356 has been used not meant for. (his is precisely the reason why one of the authorities on Indian Constitutional aw Acharya #urga #as 7asu opined that no provision of the Constitution has been so often used, misused, and abused as Article 356 (his pro-ect analyses the role of governor under Article 356 in light of the -udgment of the Apex Court in ameshwar $rasad v. 8nion of India. 3
1 Sarkaria Commission, Report Report on Centre-State Centre-State Relationship (1983-1988) Chapter VI p. 1!-1 " #.#. $as% &Intro'%tion &Intro'%tion to Constit%tion Constit%tion o In'ia*, (19th (19th +'n.) at p. !83 3 (") " SCC 1
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(he article 356 pertaining to the Indian Constitution has been often regarded as the reason behind serious problems. Indian history is eventful with facts where Article 356 has been misused and wrongful advantage of power has been made. In very simple terms this article deals with the rules which allow the Centre government to dissolve the state governments if it can be established that there is total anarchy in the state concerned. 9ery often the problem arises when the state and the central governments are being administered by different political parties. (he essence of the Article is that upon the breach of certain defined state of affairs, as ascertained and reported by the overnor of the )tate concerned 0or otherwise2 the $resident concludes that the :constitutional machinery; in the )tate had failed. (hereupon, the $resident ma"es a :$roclamation of
1.2
Objecties
)et in the above perspective or bac"ground, the broad ob-ective of the study is to> +. #eeply analy?e the mentioned article.
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. #raw out its current impact in India and hold appropriate conclusions.
1.!
"co#e o$ t%e stud&
(he present $ro-ect is an attempt to analy?e the scheme of $residential rule under Article 356 as envisaged under the Indian Constitution and what it entails. It also draws out criticisms from the analysis drawn out from the duration of this pro-ect and concludes the study thusly.
1.
(et%odolo)& o$ t%e stud&
iven a study of this "ind, a descriptive analytical method had been used in the creation of the detailed analysis the pro-ect entails.
2. T*+ "COP+ O, ARTIC-+ !/ 8nder Article 3560+2 if the $resident, on the receipt of report from the overnor of a )tate or otherwise is satisfied that a situation has arisen in which the government of the )tate cannot be carried in accordance with the $rovisions of the Constitution, the $resident may by proclamation> 0a2 Assume to himself all or any of the functions of the government of the )tate and all or any of the powers vested in or exercisable by the overnor or any body or authority in the )tate other than the egislature of the )tate. 0b2 #eclare that the powers of the egislature of the )tate shall be exercisable by or under the authority of the $arliament.
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0c2 !a"e such incidental and conse@uential provisions as appear to the $resident to be necessary or desirable for giving effect to the ob-ects of the $roclamation, including provisions for suspending in whole or part the operation of any provisions relating to any body or authority in the )tate. (he proviso to Article 356 0+2 rules out the assumption of the powers of the =igh Court. (he proclamation of dissolution has to be ratified within months by both =ouses of the $arliament. (he power under Article 356 0+2 is an emergency provision but is not an absolute power. (he power is conditional, the condition being the formation of satisfaction of the $resident as contemplated by Article 3560+2. (hus, the power is to be exercised by the $resident in exceptional circumstances, as
0On t%e recei#t o$ a re#ort $ro t%e oernor or ot%er3ise' i"e the $resident, the overnor is to act in accordance with the aid and advice of the
Council of !inisters by virtue of Article +630+2. (he overnor%s report for the imposition of $resident%s rule will fall within the ambit of the discretionary power as in Article +6302 of the Constitution. (his is so because the overnor cannot possibly act in accordance with the advice of the Council of !inisters, who cannot give an advice pre-udicial to their interest6 (he expression or otherwise% means that the $resident may act on the information received from sources other than the overnor%s report. (his includes reports from a 8nion !inister or from the Council of !inisters. (he $resident can only act in accordance with the advice of the Council of !inisters. (he dissolution can also be ordered on the satisfaction that a situation has arisen in which the overnment of the )tate cannot be carried in accordance of the provisions of the Constitution. )atisfaction can be reached by the $resident on report from the overnor of the )tate,
! Rameshar Prasa' /. 0nion o In'ia, (") " SCC 1, 9! para. 9 State o Ra2sthan /. 0nion o In'ia IR 19 SC 131 at paras. 19, 188-, "1 Samsher Singh /. State o P%n2a4 IR 19! SC "19" paras. , 138
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or on other material or solely on the report itself.
(he marginal note to Article 356 uses the words failure of constitutional machinery in )tates% while Clause 0+2 uses the words cannot be carried on in accordance with the provisions of the Constitution%. (he latter expression is of a very wide import meaning thereby failure to comply with each and every provision of the Constitution. (he leading opinions in )tate of a-asthan v. 8nion of India ,gives a wider meaning to the expression e@uating it with :brea"down of the constitutional machinery%. (he interpretation will be discussed at length in light of the -udicial pronouncement in ).. 7ommai and ameshwar $rasad cases. 0"atis$action'
(he expression :satisfaction% means not the personal satisfaction of the $resident but a legitimate inference drawn from the material placed before him. (his satisfaction is the satisfaction of the Council of !inisters. 8nder Article 40+2, the $resident is to act on the aid and advice of the Council of !inisters.
2.1
Deelo#ent o$ Article !/
a2 (he overnment of India Act, +35 (his Act first introduced the concept of :#ivision of $owers; in 7ritish India. It was an experiment where the 7ritish overnment entrusted limited powers to the
Rameshar Prasa' /. 0nion o In'ia (") " SCC 1, 9 at para. ! 8 I4i' at para. "11 9 IR 19 SC 131
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$rovinces. 7ut since there was very little faith lost between the 7ritish and the Indian people, the 7ritish too" precautions to "eep a sufficient chec" on the powers given to the $rovinces. (hese precautions were manifested in the form of emergency powers under )ections 3 and 5 of this Act, where the overnor eneral and the overnor, under extraordinary circumstances, exercised near absolute control over the $rovinces. b2 #rafting Committee of the Constituent Assembly n August , +4, a #rafting Committee was set up by the Constituent Assembly. 8nder the chairmanship of #r. 7.. Ambed"ar. it was to prepare a draft Constitution for India. In the course of about two years, the Assembly discussed ,43 amendments out of a total of 4,635 amendments tabled. Dhen it was suggested in the #rafting Committee to confer similar powers of emergency as had been held by the overnor1eneral under the overnment of India Act, +35, upon the $resident, many members of that eminent committee vociferously opposed that idea. 7y 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. A good Constitution must provide for all conceivable exigencies. (herefore this Article is li"e a safety valve to counter disruption of political machinery in a )tate. Article 355 states> :It shall be the duty of the 8nion to protect every )tate against external aggression and internal disturbance and to ensure that. the government of every )tate is carried on in accordance with the provisions of this Constitution. (he word :otherwise; in Article 3560+2 was not included in the original draftE it was later introduced through an amendment, despite protests from members of the original #rafting Committee, stating that it was an open invitation to abuse the Article. #r. Ambed"ar -ustified its introduction saying that Article 44A 0now Article 355, cited above2 imposed a duty upon the Center to ensure that the )tates are governed in accordance with constitutional provisions and that hence it would not be proper for the $resident to base his decision solely on the report of the overnor of the )tate. c2 An analogy between Article 356 and )ections 5 and 3 of the overnment of India Act, +35
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(here are certain differences in the provision relating to the failure of the constitutional machinery under the present Constitution and the powers dealt with in )ections 5 and 3 of the overnment of India Act. +35. Firstly, the +35 Act, empowered the overnor1eneral to deal with a failure of the constitutional machinery at the Center 0)ection 52. It also empowered the overnor1eneral to deal with a similar situation in a $rovince 0)ection 32.(he present Constitution, however, does not intend to suspend the Constitution of a )tate, but empowers the $resident to ta"e steps in this regard, though he shall have to act on the report of the overnor or uler of the )tate. )econdly, under )ection 3 of the +35 Act, the executive and legislative powers of a )tate could be assumed by the overnor, acting at his discretion. (he present Constitution has separated the two powers> the $resident, assuming executive powers, and the 8nion $arliament, assuming legislative powers.
2.2
I#ortance o$ Article !/
Article 356 of the Indian Constitution has been the victim of bad governance during the last five decades. therwise it is in no way incongruous that it would re@uire recast or annulment. 7y the ignominious acts of the men who wielded absolute governmental power, they got astray from the path of good governance and tried to ma"e the said article appear rogue in its content. (he provision of 356 is @uite in "eeping with the exigencies of art of governance of the states in a manner that the administration of the )tate runs on proper lines and interference from the Center is neither re@uired nor feasible. Gon1interference by the Center is in the interests of the totality of the country. (he existence of Article 356 in the 8nion constitution is a political necessity because in course of time all the diversities shall get absorbed in the system that shall ma"e India loo" a country having the ingredients of one compact nation with different religions and religious communities wal"ing hand1in1hand and having well of the country at heart.
2.!
Criticis o$ Article !/
Article 356 gave wide powers to the central government to assert its authority over a state if civil unrest occurred and the state government did not have the means to end
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the unrest. (his is one of the articles that gave the Indian constitution some amount of unitary character. (hough the purpose of this article is to give more powers to central government to preserve the unity and integrity of the nation, it has often been misused by the ruling parties at the center. It has been used as a pretext to dissolve state governments ruled by political opponents (hus, it is seen by many as a threat. to the federal state system. )ince the adoption of Indian constitution in +5/, the central government has used this article several times to dissolve elected state governments and impose $resident%s rule.
(he article was used for the first time in $un-ab on / *une +5+. It. has also been used in the state of $atiala and
strict
guidelines
for
imposing
president%s
rule.
)ubse@uent
pronouncements by the )upreme Court in *har"hand and other states have further whetted down the scope for misuse of Article 356. =ence since the early ///, the number of cases of imposition of $resident%s rule has come down drastically. Article 356 has always been the focal point. of a wider debate of the federal structure of government in Indian polity. (he )ar"aria Commission on Center1)tate relations has recommended that Article 356 must be used very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a brea"down of constitutional machinery in the state
!. CURR+NT "ITUATION IN INDIA
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(he present situation in India shows that the :dead1letter; provision 1 as #r. Ambed"ar hoped it would be 1 has become a fre@uently invo"ed, not1so1dead ArticleE it has been activated ++ times till today. (he Gational Commission to eview the Dor"ing of the Constitution 0GCDC2, which was established on February , ///, on the basis of a -oint resolution of the overnment of India, !inistry of aw, *ustice and Company Affairs 0#epartment of egal Affairs2, submitted its extensive report in !arch //. In its analysis, the GCDC stated that in at least twenty out of the more than one hundred instances, the invocation of Article 356 might be termed as a misuse. It is difficult to believe that, during his tenure as the overnor of the )tate of 8ttar $radesh. omesh 7handari made any real effort to install a popularly elected government or to conduct a constitutionally mandated floor1test to test the strength of the egislative Assembly in the )tate for identifying a ma-ority party before prompting the application of the Article by the $resident. After the fall of the !ayawati overnment in the )tate of 8ttar $radesh, it might have been -ustifiable to impose $resident;s ule. 7ut it was also necessary to hold fresh elections as soon as possible. (he mala fides of the 8nion
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constitutional machineryE it would otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation of Article 356. (he correct procedure to be followed in such a situation is to pass suitable legislation for dis@ualifying the guilty legislators.
!.1
,ailure to ino4e +er)enc& Po3ers
n the other extreme of misuse of Article 356 was the failure of the 8nion :9ital statistics tells us that there are more than +///// persons in refugee camps and more than 3/,/// people have been charge1 sheeted. Are these figures not enough to compel the overnment to ta"e action under articles 355 and 356J; Fali Gariman also rightly pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged a situation where an emergency has arisen in a )tate where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invo"ing Article 356. =e also pointed out that the word :otherwise; in the text of Article 356 becomes instrumental in such a situation to allow the $resident to act without waiting for the :overnor;s eport.;
. CONC-U"ION 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. =owever article 356 provides such a noxious power to the central government, which was used ++ times in the history of Indian politics. Gow it is very necessary to "now
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that article 356 is not limited up to the state emergency, it is not limited up to the political brea"down but article 356 become the dar" side of Indian #emocracy. Article 356 is no further dead letter of our constitution. Gevertheless 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 )ar"aria Commission or annihilate article 356 from our constitution to prevent mala fide use of this article. =owever after the intervention of one of the three pillar of our constitution i.e. Indian -udiciary, the fre@uently use of article 356 was a bridge and after ).. 7ommai case where )upreme Court provide the proper guidelines for the proclamation of state emergency and has power to invo"e 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 re@uire. 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 -udicious use, so as to benefit ultimately citi?ens when they are genuinely hampered by dysfunctional governance.
. R+,+R+NC+" 7oo"s1 #.#. 7asu, Introduction to Constitution of India, 0+th LLswapsushias.blogspot.inL 1 $residential rule http>LLlex1warrier.inL/+L/Larticle13561constitution1critical1analysisL
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