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Article 356 : Competency of Judiciary to Advise the President
by T.C.A. Ramanujam and T.C.A. Sangeetha

Cite as : (1998) 6 SCC (Jour) 7


The Patna High Court has raised a hornet's nest by its observation in the Sanyukt Nagrik Samiti case* that the various irregularities committed in the employment programme under the Jawahar Rojgar Yojna in Sahebganj District of the State of Bihar as pointed out by the Comptroller & Auditor General of India made it appear that the state of affairs was ripe for the President to invoke Article 356 of the Constitution and dismiss the State Government on the ground of breakdown of the constitutional machinery. Chief Justice Mr B.M. Lal and Mr Justice S.K. Singh declared that the recommendation of the Governor was not conclusive regarding invocation of Article 356 and that the High Court was also competent to report to the President on the situation in the State of Bihar.

President's emergency powers

It may be mentioned that Article 356 confers emergency powers on the President. The Constitution envisages three types of emergency. The first is when the security of the country is threatened by war or external aggression or armed rebellion1, the second when the financial stability or credit of the country is threatened2 and the third when there is a failure of the constitutional machinery in a State3 . The external emergency powers were invoked for the first time during the Chinese Aggression in 1962 and again at the time of the war with Pakistan in 1971. The imposition of internal emergency in June 1975 was the only occasion when national emergency on grounds of internal disturbance was proclaimed, and it evoked protests and controversies. By the 44th Amendment of the Constitution, the words, "internal disturbances" in Article 352 were substituted by "armed rebellion". So in future there will be no case of national emergency on the ground of internal disturbances in the country.

It is only recourse to Article 356 to dismiss the elected State Governments that has provoked utmost controversy. This power vested with the President has been used or abused more than 100 times so far. About one-fourth of such proclamations were issued by the non-Congress Governments at the Centre. It is a tribute to the founding fathers of our Constitution that despite vehement criticism of Article 356, political parties have not been able to come to any agreeable solution either to delete or to restrict the scope of the article. The Patna High Court's observations widen the scope of the controversy in India now.

Breach of federal principle

Supersession of State Governments by the federal Government on the ground of failure of the constitutional machinery in the State is peculiar to the Indian constitutional scheme. But it is well established in U.S.A. that resistance from the States to the execution of the federal laws4 or to the authority of the federal Government may be visited with armed intervention by the federal Government to maintain the "indissoluble union" of the States constituting the Federation.

It is in pursuance of this right that President Lincoln justified his course in sending the national militia into the Southern States during the Civil War of 1861 treating it as a war against the Union. In 1957, President Eisenhower sent federal troops to Little Rock to enforce the Federal Court ruling on desegregation. Again, in 1962 President Kennedy had to send 700 Federal Marshalls to enforce law against racial discrimination in educational institutions. Schwartz comments that the new federalism in the U.S. is characterised by the predominance of federal authority. Thus America, though a model for a federal State, had to interfere in State administration quite often.

India is not exactly a federal State. It can at best be described as "quasi-federal". So interference with State administration might be more frequent. Article 356 was inserted into the Constitution after a great deal of debate. It is a measure of federal coercion. It can be resorted to not only in the case of temporary dislocation in the political machinery in a State, but also when a State refused to carry out the directions given to the States by the Union in exercise of the powers conferred in this regard by Article 355 of the Constitution.

Judicial review of Article 356

Resort to Article 356 has been the subject-matter of judicial review in a long chain of cases. Whether the Presidential Proclamation is justiciable or not was open to doubt at one particular point of time. After all, the satisfaction of the President is subjective though based on certain objective criteria. The Supreme Court itself found it difficult to lay down any definite criteria. The confusion in this regard can be seen in the observations of the Supreme Court in State of Rajasthan v. Union of India5 . In that case the Supreme Court examined the legality of the dismissal of nine Congress Governments by the Janata Party Government in Delhi in 1977 consequent on the massive defeat of the Congress Party. The Court observed: (SCC p. 662, para 150)

"The satisfaction of the President is a subjective one and cannot be tested by reference to any objective test. ... There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of the United States has described as, 'judicially discoverable and manageable standards'. It would largely be a political judgment based on assessment of diverse and varied factors...."6 The Court, however, went on to lay down that if the decision is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it.

The Bommai case

The turnaround in the view of the Supreme Court came about in S.R. Bommai v. Union of India7. It held that the Presidential Proclamation is clearly justiciable. Following the ruling of the Pakistan Supreme Court in the case of Nawaz Sharif wherein the exercise of the Presidential power was held unconstitutional and open to judicial correction, the Indian Supreme Court laid down in Bommai case7 that the Presidential Proclamation will have to be scrutinised by the judiciary. The Court also took note of the Sarkaria Commission's recommendations with regard to invoking of Article 356. Some of the situations which will not warrant resort to Article 356 on the ground of failure of constitutional machinery identified in the Sarkaria Commission Report and the Bommai case7 are as under:

(1) A situation of maladministration in a State, where a duly constituted Ministry enjoys support of the Assembly.

(2) Where a Ministry resigns or is dismissed on losing majority support and the Governor recommends imposition of President's Rule without exploring the possibility of installing an alternative government.

(3) Where a Ministry has not been defeated on the floor of the House, the Governor on his subjective assessment recommends supersession and imposition of President's Rule.

(4) Where in general elections to the Lok Sabha the ruling party in the State has suffered a massive defeat.

(5) Where there is a situation of internal disturbance but all possible measures to contain the situation by the Union in discharge of its duty under Article 355 have not been exhausted.

(6) Where no prior warning or opportunity is given to the State Government to correct itself in cases where directives were issued under Articles 256, 257, etc.

(7) Where the power is used to sort out intra-party problems of the ruling party.

(8) Where there are only allegations of corruption against the Ministry.

(9) Where there are only stringent financial exigencies of the State.

Exercise of the power for a purpose extraneous or irrelevant to those which are permitted by the Constitution would be vitiated by legal mala fide.

Though each of the above situations by itself may not warrant the imposition of President's Rule, a simultaneous presence of two or more of the conditions or a cumulative assessment of the situation by the President may definitely warrant interference under Article 356. Thus, maladministration by itself may not be a single cause. But serious charges of corruption, arbitrary exercise of power in a manner not permitted by the Constitution and various other facts taken together will certainly warrant imposition of President's Rule. Probably, it was such a situation which led the Patna High Court to make the observations in question.

The significance of the use of "otherwise" in Article 356

The controversy over the Patna High Court's opinion arises from the fact that generally it is not expected of the judiciary to recommend the action under Article 356. The judiciary, say the critics, can sit in judgment after the proclamation has been made but by itself it should not recommend the imposition of President's Rule. It is necessary to mention in this context that Article 356(1) requires the President to be satisfied about the break-down of the constitutional machinery in the State on a report from the Governor of a State "or otherwise". What happens when the Governor refuses to recommend action under Article 356? This was the situation faced by the President during the time when the LTTE's presence was being increasingly noted in the State of Tamil Nadu. The ruling party was considered by unbiased observers as being "hand-in-glove" with the foreign insurgents leading to turmoil in the Tamil Nadu State. LTTE was having a free run. Their rivals were being massacred on the streets of Madras and were not being allowed to escape. However, the Governor did not recommend imposition of emergency under Article 356. It is to take care of such situations that the founding fathers incorporated the words, "or otherwise" in Article 356(1). Dr Ambedkar explained in the Constituent Assembly thus:

"We must give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks fit to act in the fulfilment of his duty."8

Needless to point out the judiciary is one of the organs of the State and has a duty to bring to the notice of the President the "state of affairs" that prevails in the State. Even in the case of State of Rajasthan case5 Justices Bhagwati and A.C. Gupta had observed: (SCC p. 660 & 661, para 149):

"[M]erely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. ... merely because a question has a political colour, the Court cannot fold its hands in despair and declare 'judicial hands off'."

This view was reiterated by Bhagwati, J. in Minerva Mills Ltd. v. Union of India9 . The Supreme Court's advisory jurisdiction also supports the view that it can recommend dismissal.

Under certain contingencies the President approaches the Supreme Court for advice with regard to the validity of a proposed legislation. Such advice has not come in the way of the subsequent hearing before the very same court with regard to the tenability of such legislation. In such a situation if the High Court recommends to the President consideration of action under Article 356, it is for the President to act on such advice or disregard the same after consideration. But its power to make such recommendation is intact.

The view of the Andhra Pradesh High Court

The Andhra Pradesh High Court had considered a situation similar to the one that confronted the Patna High Court. A writ petition was filed in 1987 containing serious complaints against the then Chief Minister of Andhra Pradesh, N.T. Rama Rao alleging break-down of the constitutional machinery. The matter was strenuously argued and the Court was called upon to decide whether Article 356 should be invoked. Nani Palkhivala was appearing for the then Chief Minister and the Attorney General appeared on notice from the Court. The Full Bench of the Andhra Pradesh High Court responded to the question thus:

"The question concerning the imposition of the President's Rule is a matter entirely within the jurisdiction of the President of India, who may act upon the advice tendered to him by the Union Government. There are no grounds to think that the Union Government is unaware of what has been happening in the State of Andhra Pradesh or that the Union Government failed to take any action even though it is satisfied that conditions exist in that State justifying the imposition of the President's Rule. While we refuse to give any direction to the Central Government in the terms prayed for by the petitioner, we have no doubt that the representation filed by the petitioner as well as the details set out in this judgment will receive consideration of the Central Government and an appropriate decision will be taken."

Though the Court harped on the satisfaction of the Central Government, it did not rule out its involvement. It is felt that the Patna High Court has also not crossed this limit. It was acting in the course of a public interest litigation. Its recommendation is adding fillip to the development of the law in this sector. The judge, as Lord Denning pointed out, "is not a mere mechanic or a mere mason laying brick on brick without thought to the overall design. He has to be an architect thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends."


The judges in India have to adopt such a dynamic attitude. Otherwise, what is the alternative left before the polity when the legislature supports a corrupt executive in a State and the Union Cabinet chooses to turn a blind eye to the happenings in the State? The Patna verdict recommending President's Rule in Bihar comes as "manna" to the oppressed populace deprived of basic constitutional remedies in their fight against corruption.

*     The Hindu dated 12-8-1997 Return to Text

  1. See Article 352 of the Constitution Return to Text
  2. See Article 360 of the Constitution Return to Text
  3. See Article 356 of the Constitution Return to Text
  4. See Debs, In re, 158 US 564 (1895) Return to Text
  5. (1977) 3 SCC 592 Return to Text
  6. Ibid Return to Text
  7. (1994) 3 SCC 1 Return to Text
  8. CAD Return to Text
  9. (1980) 3 SCC 625 Return to Text
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