Article 356: The Core and the Penumbra

                    Article 356: The Core and the Penumbra

Article 356 is one of the most controversies creating article in Indian politics. There were instances of its use which was termed as misuse by many. The Article conform great power to the President of quashing a constitutionally elected government. Different articles facilitate the functioning of this power like 256, 257, 355, 365 these article talks about the situations in which the power can be used. The President comes under the executive but he was controlled by the Council of Ministers which comes under legislative. This creates an imbalance and to check it Judiciary is present which interprets the provisions and problems to the best solution of the situation. This paper analyzes the relationship and power dynamics between these three above institutions with respect to the President’s rule in any state. The case study of President’s rule in Uttarakhand in 2016 was taken to under the situation more clearly. Different case laws and judges opinions have been discussed which gives us the test to check whether the situation is under control of the constitution or not. The report of Sarkaria commission has also been discussed. The conclusion that we came on is that it majorly depends on case to case basis but state must show some accountability and the Union must give some time the states to make the situation normal to preserve the federal structure of the country.

Article 356 is one of the most used (misused) and popular article in Indian politics. This article has proved one of the most powerful tools to strike down states governments. The power that Article 356 provides to executive is immense. This power needs a check and judiciary acts as supervisor regarding this. But there are many instances in which this power gets unchecked. In this paper we are looking all these aspects and critically analyze these one by one. The proclamation of President’s rule has always raised questions on Union government of the country. The history has many instances where this article has been use blatantly by many different governments constituting of different political parties for different reasons. There are some landmark cases which have put a limit on these blatant abuses of power. Committees are formed to contemplate on specifics on the phrases of the provision. The area of penumbra is the phrase “the government of the state cannot be carried on in accordance with the provisions of the Constitution”. The judiciary has interpreted this phrase many a time in different
cases. In this paper also we will look at some landmark judgments and analyze them.

At the time of incorporating this article in the Indian constitution Dr. Ambedkar took a vote while assuming that this article will remain a dead letter in the future. He expressed his fear when he says that if any situation arises in which the power conferred under this article is used by the president then the union will become a judge of the quality of governance done by the state. India is a ‘union of states’ it means that states derives their power from the Union. So here Union is placed above states. States have their autonomy but they are contained in order to protect sovereignty of India. The type of citizenship in India is single citizenship that is governed by union and not by states. The giving up of autonomy by states was returned with the security that the union provides to them. This condition for giving security is mentioned in Article 355 which states that centre must protect the states from any kind of external aggression or internal disturbance and ensure that the
functioning of the state is going in accordance with the Constitution. The way in which all these must be done is mentioned in Article 356. The article contains the heading ‘provisions in case of failure of constitutional machinery’ and in other places in article it is mentioned ‘not in
accordance with the constitution’. Article 355 also uses the same phrase while mentioning about duties of central to protect state.

The power conferred to the President by this article is huge, that is to make a proclamation of President’s rule a president can go by oneself without any report from the governor. In most of the situations president is of the ruling party and this power can be used in those states where the ruling party is not ruling. However, this proclamation can always be challenged before judiciary of the country. But there are instances when there was an attempt to takeaway this power of judiciary. 38th constitutional amendment was one such attempt, the amendment has inserted clause (5) which states that President’s rule proclaimed under clause (1) can’t come under judicial review. But this
clause was replaced by 44th amendment.

The above was derivation of power. In this chapter we will look at the situations in which President’s rule can be proclaimed in a state. The above articles broadly tell us what constitutes as state not functioning in accordance with the provision of the constitution. There is no specific mention of which events can lead us to the above conclusion. There is a mention that a noncompliance with the executive direction given by the union will constitute a situation where the President can say the functioning is not according to the constitution.6 But this type of literal interpretation can demolish the federal structure of the country. There will always be a minor conflict or dispute when the state and the central have different ruling parties and this conflict cannot give power to the union to impose President’s rule and control all executive and legislative powers of the state.

There are certain cases which contemplate on this question of what are the pre-requisites to proclaim President’s rule in a state. The most important case in this discussion is S.R Bommai vUoI7. The case first interprets 356 section by section. Since President is the one having
discretionary power in proclaiming, they have first looked at what all is required for a President to derive at the conclusion. The method or approach the judges have interpreted from the language of the article is of “objective material”. They stated that the report of the governor or any other source which comes under the word ‘otherwise’ must contain some material facts based on which the president can take decision. Here the question is about the facts not about the decision that President whether is right or wrong but there has to be some relevant facts on which decision can be taken. In essence, we can say that the decision to impose President’s rule must have a reason it
cannot be arbitrary.

So in the situation of the Uttarakhand state in 2016 there was a claim by the opposition that the present Congress government has lost its confidence. So here 9 out of 36 (35 is the majority) left Congress and they are declared as defected and issued a show cause notice. So the initial demand of the opposition was to dissolve present government and hold fresh election. Governor asked the CM to proof majority. Congress claimed they have the majority and will do a floor test. But there is a claim by BJP that the CM was trying to buy MLAs and there is a sting operation of the same. So the initial demand of dissolution turned into a demand of President’s rule on the ground that the Congress is not able to pass Appropriation Bill and there are malpractices going on for the floor test and hence the functioning is not according to the constitution. The ground they termed for proclamation of President’s rule is ‘breakdown of governance’. The four broad categories which were given by Sarkaria Commission are- 1. Political crisis 2. Internal Subversion 3. Physical Breakdown 4. Non- compliance with union executive. The current situation will come under first category. So here there is no report by the Governor, The President took the decision on the advice of Union cabinet which was of the same party which is in opposition in Uttarakhand. President’s rule is proclaimed and the state assembly is put under suspended animation. Suspended animation means the members will remain members but the assembly will not meet.

In this paper we have looked at how the Union executive derives its power to act upon any state. We have looked at what kind of situation is necessary in a state to take it under president’s rule. This particular case is a common happening with regard to application of 356. The claim of opposition that the present government has lost the confidence of the house must be dealt wisely by both the Governor and the President. The present government is the duly elected government and dissolution will not under constitutional values if done on lack of evidences. In this case the responsibility of both Governor and the President increases, here President is of same party who is ruling in the state but the evidence was so serious that he goes for a proclamation ignoring all possibilities which is not reasonable. But Judiciary did its duty diligently and stored the deserving government. Supreme Court here analyzed the situation perfectly and gone for a middle ground so that democratic values remain protected. The allegation was not particularly of a constitutional breakdown but it was more of unethical and illegal electoral practices which can create imbalance in the state administration. So it can come under the category of improper
functioning or s it is termed ‘breakdown of governance.


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