Copyright infringement not intended

In News:

• The Prime Minister of India stated in the Rajya Sabha that Union governments in the past had dismissed 90 elected state governments by “misusing” Article 356 of the Indian Constitution.

Emergency Provisions in the Indian Constitution:

• The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360.
  • These provisions enable the Central government to meet any abnormal situation effectively.
• The rationality behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution.
• During an Emergency, the Central government becomes all-powerful and the states go into total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution.
• This kind of transformation of the political system from federal during normal times to unitary during Emergencies is a unique feature of the Indian Constitution.

The Constitution prescribed three types of emergencies:

• An emergency due to war, external aggression or armed rebellion (Article 352). This is popularly known as a ‘National Emergency’.
  • However, the Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.
• An Emergency due to the failure of the constitutional machinery in the states (Article 356). This is popularly known as ‘President’s Rule’.
  • It is also known by two other names–‘State Emergency’ or ‘constitutional Emergency’. However, the Constitution does not use the word ‘emergency’ for this situation.
• Financial Emergency due to a threat to the financial stability or credit of India (Article 360).

President’s Rule:

• It is also known by two other names–‘State Emergency’ or ‘constitutional Emergency’.
• Grounds of Imposition - Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on following the provisions of the Constitution.
  • It is this duty in the performance of which the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in the state.
• The President’s Rule can be proclaimed under Article 356 on two grounds–one mentioned in Article 356 itself and another in Article 365:
  • Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on per the provisions of the Constitution. Notably, the president can act either on a report of the governor of the state or otherwise too (ie, even without the governor’s report).
  • Article 365 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 in which the government of the state cannot be carried on per the provisions of the Constitution.
• Parliamentary Approval and Duration - A proclamation imposing President’s Rule must be approved by both Houses of Parliament within 2 months from the date of its issue.
  • If approved by both Houses of Parliament, the President’s Rule continues for 6 months.
  • It can be extended for a maximum period of 3 years with the approval of the Parliament, every 6 months.
  • Every resolution approving the proclamation of the President’s Rule or its continuation can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that House present and voting.
  • The 44th Amendment Act of 1978 introduced a new provision to put a restraint on the power of Parliament to extend a proclamation of President’s Rule beyond one year. Thus, it provided that, beyond one year, the President’s Rule can be extended by six months at a time only when the following two conditions are fulfilled:
    • Proclamation of National Emergency should be in operation in the whole of India, or the whole or any part of the state.
    • The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

• • A proclamation of the President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

• Consequences of President’s Rule - The President acquires the following extraordinary powers when the President’s Rule is imposed in a state:
  • He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.
  • He can declare that the powers of the state legislature are to be exercised by the Parliament.
  • He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state.
• When the President’s Rule is imposed in a state, the President dismisses the state council of ministers headed by the chief minister.
• The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. This is the reason why a proclamation under Article 356 is popularly known as the imposition of ‘President’s Rule’ in a state.
• The President either suspended or dissolved the state legislative assembly.
• The Parliament passes the state legislative bills and the state budget. When the state legislature is thus suspended or dissolved.
  • A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule. This means that the period for which such a law remains in force is not coterminous with the duration of the proclamation. But it can be repealed or altered or re-enacted by the state legislature.
• The constitutional position, status, powers and functions of the concerned state high court remain the same even during the President’s Rule.
• Use of Article 356 Since 1950
  • The President’s Rule has been imposed on more than 125 occasions.
  • On several occasions, the President’s Rule has been imposed arbitrarily for political or personal reasons.
  • Hence, Article 356 has become one of the most controversial and most criticized provisions of the Constitution.

Origins of Article 356

• Article 356 was inspired by Section 93 of the Government of India Act of 1935.
  • Section 93 stated that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on per the provisions of the said Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion. However, the Governor could not encroach upon the powers of the high court.

Article 356 of the Indian Constitution

• The article says about the emergency provisions due to the failure of the constitutional machinery in the states, this is popularly known as ‘President’s Rule’.
  • It is also known by two other names ‘State Emergency’ or ‘constitutional Emergency’.
    • However, the Constitution does not use the word ‘emergency’ for this situation.
• The Article contains provisions for the imposition of “President’s Rule” in a state, by removing an elected government.
  • The Constitution intended Article 356 to be used only under extraordinary circumstances.
  • However, Union governments over the period repeatedly used the provision to settle political scores.
• According to the provisions of Article 356, the President’s Rule in a state can be imposed for six months at a time for a maximum duration of 3 years.
  • Every six months, Parliamentary approval to impose President’s Rule will be required again.

Application of Article 356 in Independent India

• During the early decades of Independence, the Union government used Article 356 against opposition governments in the states.
• Until 1959, the government had used the article six times.
• In 1966, Indira came to power, and after that Article 356 was used seven times between 1967 and 1969.
• Between 1970 and 1974, President’s Rule was imposed 19 times.
• Post-emergency, the Janata Party government used it in 1977 to summarily dismiss 9 state governments.
• In 1980, when Indira Gandhi returned to power her government imposed President’s Rule in 9 states.
• In 1992-93, the government dismissed 3 State Governments.

Supreme Court Verdict to curb misuse of Article 356

• In 1989, the Union Government dismissed the S R Bommai government in Karnataka. In its judgment in the S. R. Bommai v/s Union of India case, a 9-judge bench of the Supreme Court discussed the provisions of Article 356.
  • The court held that Article 356 can be invoked only in the situation of the physical breakdown of the Constitutional Government or when there is a ‘hung assembly’.
  • However, the provision cannot be used without giving the state government a chance to either prove its majority in the House or without instances of a violent breakdown of the constitutional machinery.
• Since the Court judgment, the arbitrary use of Article 356 has been largely controlled.

https://indianexpress.com/article/explained/explained-politics/pm-modi-indira-gandhi-misused-article-356-8434716/