The dead letter of the Constitution
, said B. R. Ambedkar. Here the
topic of my research is Article 356 i.e. Proclamation of emergency and its open
misuse by the ruling party. Article 356 refers to State Emergency i.e.
President's Rule. It refers to the emergency imposed in the state due to the
report of the governor, resulting to which the state functions according to the
President. It explores different types of emergencies in the Constitution of
National emergency, State Emergency and financial emergency. The
article takes you through the history of Article 356; as in from where, when and
how State Emergency has been borrowed and implied. It also explains the
circumstances under which the President's Rule can be executed; gives knowledge
about the parliamentary approval and the duration of the State Emergency. The
analysis reveals the misuse of emergency power by the ruling party for a long
time. Hence, this article gives a detailed report on the proclamation of a State
Emergency and its open misuse by the ruling party.
If the president 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 then the president can withdraw union, executive and
legislative powers of the state which is called State Emergency.1 A dead
letter of the Constitution
said B. R. Ambedkar. But the reality now clearly
contradicts Dr. Ambedkar's statement. So let's study President's Rule and its
open misuse by the ruling party.
What is an emergency?
The emergency provisions are contained in part XVIII of the Constitution, from
article 352 to 360.2 The term emergency may be defined as circumstances arising
suddenly that calls for immediate action by the public authorities under the
powers especially granted to them.3
According to our esteemed Constitution,
there are three types of emergency provision as follows:
If the President is satisfied that a grave emergency exists whereby the security
of India or any part of the territory thereof is threatened, whether by war or
external aggression then the president may proclaim a national emergency.
In India national emergency has been imposed thrice:
1962 – It was imposed due to Chinese aggression.
1971 – It was imposed during the Indo Pak war.
1975 – It was imposed by P. M. Indira Gandhi under the heading of internal
If the president is convinced that a situation has occurred in which the
government of the state cannot be carried out by the provision of the govt. then
the president may declare a State Emergency. It has been imposed several times.
A financial emergency is related to the economic stability of the country.
Providentially, it hasn't been imposed in India yet.
Well, moving on to the main topic of discussion.
What is article 356?
The article 356 clearly states 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 Constitution4 then the president may proclaim
emergency in the concerned state.
This is called as State Emergency
. It is also called President's Rule
because as soon as the emergency is proclaimed in
the state, it functions according to the President. The article 356 says that
whenever a state fails to comply with or to give effect to any direction from
the Centre, it will be lawful for the president to hold that a situation has
arisen for the emergency.5
It is frequently forgotten that India's Constitution is widely borrowed from a
document that served as British India's Constitution in the last decade of
British raj i.e. The Government of India Act, 1935. It was Section 93 of the Act
that provided similar provisions of this Article in respect of the Governor of a
province.6 In 1947, when the government was in the hands of Congress, section 93
was then inserted almost unchanged in India's New Republican Constitution as
article 356. This is how article 356 came into existence.
Grounds of Imposition:
Article 356 carries the marginal heading Provisions in case of failure of
Constitutional machinery in States.7
And such failure can be of following
- 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, then the President's Rule can be imposed.8
- If any state fails to comply with or to give effect to any direction
from the Centre, then the President's Rule can be imposed.9
In layman's words, the president rule can be imposed on the breakdown of law and
order, political instability, corruption and maladministration.
Parliamentary Approval and Duration:
A proclamation imposing President's Rule must be approved by both the houses of
parliament within two months from the date of issue.10 If approved by both the
houses of Parliament, the President's Rule continues for six months and can be
extended for a maximum period of three years.11 Well, the resolution approving
the proclamation of President's Rule can be passed by either house of parliament
only by a simple majority.
The 44th Amendment Act of 1978 introduced a new provision to put restrain on the
power of Parliament to extend a proclamation of President's Rule beyond one
year.12 Thus, provided to that, beyond one year, the President's Rule can be
extended by six months at a time only when following conditions are fulfilled:
a proclamation of National Emergency should be in operation in the whole of
India, or any part of the state;
the Election Commission must certify that the general elections to the
legislative assembly of concerned state cannot be held in account of
A proclamation of President's Rule may be revoked by the president at any time
buy a subsequent proclamation; such a proclamation does not require
Proclamation of emergency is open misuse by Ruling party:
Since 1950, the President's Rule has been forced for over multiple times in our
nation. On average, twice a year! Further, on a few events, the President's Rule
has been forced arbitrarily for political or individual reasons. Hence, article
356 has gotten one of the most controversial and scrutinized arrangements of the
According to the critics, the first use of Article 356 was itself a great
misuse. Nehru, unhappy with Punjab C. M. Gopichand Bhargava in 1951, dismissed
him even though, he enjoyed a majority in the assembly.15 Historian Granville
Austin writes in this case:
the Congress has blended its interest with
questionable national needs to take over a state government.16
On paper, much like section 93, Article 356 is only to be used in the case of
failure of Constitutional machinery. However, it is not surprising to know that
it has been used most often to guard the interest of the ruling party.
The significant explanations for the abuse of President's Rule in India is on
the grounds that the Governor has no authoritative to counsel the Cabinet of
Ministers while planning and sending the report to the president. Critics also
include the case of 1977, when the Janata party was in power headed by Morarji
Desai, he imposed President's Rule in nine states where Congress was in power.
The two-year term of Morarji Desai from 1977-79 saw the provision being imposed
for sixteen times. Later, when Congress came into power in 1980, it did the
same. And so, Article 356 has been repeatedly abused, before the judgement of
S. R. Bommai vs Union of India (1994):
S. R. Bommai case is one of the most considered cases when talking about the
On March 11, 1994, a nine–judge Constitution bench of SC issued the historic
order, which in a way put an end to the arbitrary dismissal of State Governments
under the article 356 by spelling out restrictions.17 The verdict concluded that
the power of the President to dismiss a State government is not absolute.18
of the important issues decided by the majority is that State legislative
assembly cannot be dissolved merely upon the issue of Presidential proclamation
and before Parliamentary approval is accorded.19 The majority further held that
until Parliament grants approval the legislative assembly can be suspended by:
suspending the provisions of Constitution relating to the legislative assembly
under sub-clause (c) of clause (1)20.
The dissolution of Legislative Assembly
is not a matter of course. It should be resorted to only where it is found
necessary for achieving the purposes of the Proclamation, the Court said.21
Hence, the Bommai Case
brought about a change that curbed blatant misuse
of article 356 to an extent.
Allowing an unelected governor to dismiss elected state governments has led to
a weakening of federalism and democracy in India.22 Dr. B. R. Ambedkar, while
replying to the critics of this provision in the Constituent Assembly, hoped
that the drastic power conferred by article 356 would remain a Dead Letter
and would be used only as a measure of last resort.23 However, what was hoped to
be a dead letter of the Constitution, has turned to be a Deadly Weapon
several state governments and legislative assemblies.24 This leads me to a
question, Are our hearts dead enough to not keep Dr. Ambedkar alive?
- M Laxmikant, Indian Polity, 16.5 [4thed, 2016] [McGraw Hill Education].
- Id. at 16.1.
- Malika Chhikara, Three types of emergencies under the Indian
Constitution, Legal Service India, http://www.legalservicesindia.com/article/1834/Three-types-of-emergencies-under-the-Indian-Constitution.html#:~:text=The%20term%20emergency%20may%20be,powers%20especially%20granted%20to%20them%E2%80%9D.
- The Constitution of India, 228, (Govt. of India, Ministry of Law and
Justice), (1st Apr. 2019).
- M. Laxmikanth, Indian Polity, 16.6 [4thed, 2016] [McGraw Hill
- K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article
356 of the Constitution of India: A Comparative Critique, Vol. 8.1. March
2004 (http://www.ejcl.org/81/art81-4.html ).
- Justice Shri B. P. Jeevan Reddy, Dr. M. G. Rao, Shri. G. V. Ramakrishna,
Article 356 of the Constitution, pg. 927, 1.4, National Commission to Review
the working of the Constitution, (11th May, 2001). (http://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf)
- See supra note 4
- INDIA CONST. art. 365
- Laxmikanth, supra note 5.
- Laxmikanth, supra note 5.
- Laxmikanth, supra note 5.
- Laxmikanth, supra note 5.
- Laxmikanth, supra note 5.
- Shoaib Daniyal, A short history of the colonial origins of Presidents
Rule and its misuse in independent India, (Feb 01, 2016, 11:30am), https://scroll.in/article/802736/a-short-history-of-the-colonial-origins-of-presidents-rule-and-its-misuse-in-independent-india.
- TH, (The Hindu net desk), (18th May, 2018), (https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted-often/article23929119.ece).
- Soli J. Sorabjee, Decision of the Supreme Court in S.R. Bommai v. Union
Of India: A Critique, (1994) 3 SCC (Jour) 1.
- See, supra note 18.
- Daniyal supra note 15.
- Laxmikanth supra note 5, at 16.8
Award Winning Article Is Written By: Ms.Zahoora Hamdule
Authentication No: OT28016593550-6-1020