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Let us see various provisions of the Indian Constitution.

Article 352 in The Constitution of India

  1. Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof

 Note: This power was exercised in the year 1977

Article 355 casts duty on the state to provide safety and security.

  1. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

44th Amendment:

The Forty-fourth Constitutional Amendment substituted “armed rebellion” for “internal disturbance” in Article 352. “Internal disturbance” is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President’s rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution.

What is Internal Disorder: ( Source Sarkaria Commission Report)

6.3.04 It is difficult to define precisely the concept of ‘internal disturbance’. Similar provisions, however, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression “internal disorder”. The Constitutions of the United States of America and Australia use the expression ‘domestic violence’. The framers of the Indian Constitution have, in place of this term, used the expression ‘internal disturbance’. Obviously, they have done so as they intended to cover not only domestic violence, but something more. The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy.

Instances:

Gujarat.—(9-2-1974) The anti-price-rise agitation in Gujarat turned into a mass movement with demands for removal of the Ministry and dissolution of the Assembly. Army had to be called in at some places to deal with violence. Ultimately, the Government had to resign despite having a ‘majority’. The Chief Minister also recommended suspension of the Assembly. President’s rule was proclaimed consequent to the resignation of the Council of Ministers and the Assembly was kept suspended. The agitators also started requesting or coercing legislators to resign. The Union Government passed the Thirty-third amendment to the Constitution empowering the speaker or Chairman not to accept letters of resignation if he was satisfied that they were not voluntary and genuine. On March 11, 1974 Shri Morarji Desai went on an indefinite fast demanding the dissolution of the Assembly which was conceded on March 15, 1974.( Source Sarkaria Commission Report)

Note: This was prior to 44th Amendment

 Judgments:

Sunderlal Patwa vs Union of India

Article 356 is independent of Article 355 of the Constitution and the exercise of power thereunder cannot be regulated by the duty cast on the Union under Article 355 to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Even otherwise, on the face of Article 355, the action taken under Article 356 of the Constitution can be justified on the ground that the duty cast on the Union to protect every State against internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution is discharged by issuing a Proclamation under Article 356. This view finds support from what was said by Beg. C.J. in paragraph 40 of the judgment in Rajasthan case (AIR 1977 SC 1361) , which is as follows: “….. Now, the provisions dealing with the proclamation of emergency under Article 352, which has to be grave and imminent, seem to be covered by the first part of the duty of the Union towards a State mentioned in Article 355, but the second part of the duty mentioned in Article 355, seems to be of a somewhat different and broader character. The second part seems to cover all steps which are enough “to ensure” that the Government of every State is carried on in accordance with the provisions of Constitution. Its sweep seems quite wide. It is evident that it is this part of the duty of the Union towards each State which is sought to be covered by a proclamation under Article 356.

  1. Provisions in case of failure of constitutional machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this constitution relating to any body or authority in the State Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts

Distinction and differences amongst all provisions:

while Article 355 refers to three situations, namely (i) external aggression, (ii) internal disturbance, and (iii) non-carrying on of the Government of the States, in accordance with the provisions of the Constitution, Article 356 refers only to one situation, namely, the third one. As against this, Article 352 which provides for Proclamation of emergency speaks of only one situation, namely where the security of India or any part of the territory thereof, is threatened either by war or external aggression or armed rebellion. The expression “internal disturbance” is certainly of larger connotation than “armed rebellion” and includes situations arising out of “armed rebellion” as well. In other words, while a Proclamation of emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a Proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. A mere internal disturbance short of armed rebellion cannot justify a Proclamation of emergency under Article 352 nor such disturbance can justify issuance of Proclamation under Article 356(1), unless it disables or prevents carrying on of the Government of the State in accordance with the provisions of the Constitution. Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other Articles in the same Part of the Constitution.

President assuming power Explanation:

The exercise of the powers under Sub-clauses (a),(b) and (c) of Article 356(1)  may also co-exist with a mere suspension of the political Executive and the Legislature of the State. Sub-clause ( c)  of Article 356(1)  makes it clear. It speaks of incidental and consequential provisions to give effect to the objects of the Proclamation including suspension in whole or part of the operation of any provision of the Constitution relating to any body or authority in the State. It has to be noted that unlike Sub-clause (a), it does not exclude the Legislature of the State. Sub-clause (b)  only speaks of exercise of the powers of the Legislature of the State by or under the authority of the Parliament. What is further, the assumption of only some of the functions of the Government and the powers of the Governor or of any body or authority in the State other than the Legislature of the State under Sub-clause (a),  is also conceivable with the retention of the other functions and powers with the Government of the State and the Governor or any body or authority in the State. The language of Sub-clause (a) is very clear on the subject. It must be remembered in this connection that where there is a bicameral Legislature, the Upper House, that is,  the Legislative Council cannot be dissolved. Yet under Sub-clause (b) of Article 356(1)  its powers are exercisable by or under the authority of Parliament. The word used there is “Legislature” and not “Legislative Assembly”. Legislature includes both the Lower House and the Upper House, that is,  the Legislative Assembly and the Legislative Council. It has also to be noted that when the powers of the Legislature of the State are declared to be exercisable by or under the authority of the Parliament under Article 356(1) (b) , it is competent for Parliament under Article 357, to confer on the President the power of such Legislature to make laws and to authorise the President to delegate the powers so conferred, to any other authority to be specified by him. The authority so chosen may be the Union or officers and authorities thereof. Legally, therefore, it is permissible under Article 356(1)  firstly, only to suspend the political executive or any body or authority in the State and also the Legislature of the State and not to remove or dissolve them. Secondly, it is also permissible for the president to assume only some of the functions of the political executive or of any body or authority of the Stale other than the Legislature while neither suspending nor removing them. The fact that some of these exercises have not been resorted to in practice so far, does not militate against the legal position which emerges from the clear language of Article 356(1) .

Can Presidential Order be subject matter of review?

In A. K. Roy v. The Union of India, AIR 1982 SC 710 it was held  that the Proclamation under Article 356 of the Constitution is open to judicial review, where it has been made, upon consideration, which is wholly extraneous, irregular and irrelevant to the purpose for which the power under Article 356 of the Constitution has been conferred by the Constitution.

When President Rule can be imposed?

S.R.Bommai vs Union of India

  1. It will be convenient at this stage itself, also to illustrate the situations which may not amount to failure of the constitutional machinery in the State inviting the presidential power under Article 356 (1) and where the use of the said power will be improper. They are:

( i) A situation of maladministration in a State where a duly constituted Ministry enjoying majority support in the Assembly, is in office. Imposition of President’s rule in such a situation will be extraneous to the purpose for which the power under Article 356 has been conferred. It was made indubitably clear by the Constitution framers that this power is not meant to be exercised for the purpose of securing good government.

(ii)  Where a Ministry resigns or is dismissed on losing its majority support in the Assembly and the Governor recommends, imposition of President’s rule without exploring the possibility of installing an alternative government enjoying such support or ordering fresh elections.

(iii) Where, despite the advice of a duly constituted Ministry which has not been defeated on the floor of the House, the Governor declines to dissolve the Assembly and without giving the Ministry an opportunity to demonstrate its majority support through the ‘floor test’, recommends its supersession and imposition of President’s rule merely on his subjective assessment that the Ministry no longer commands the confidence of the Assembly.

(iv) Where Article 356 is sought to be invoked for superseding the duly constituted Ministry and dissolving the State Legislative Assembly on the sole ground that, in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a massive defeat.

(v)  Where in a situation of ‘internal disturbance’, not amounting to or verging on abdication of its governmental powers by the State Government, all possible measures to contain the situation by the Union in the discharge of its duty, under Article 355, have not been exhausted.

(vi)  The use of the power under Article 356 will be improper if, the President gives no prior warning or opportunity to the State Government to correct itself. Such a warning can be dispensed with only in cases of extreme urgency where failure on the part of the Union to take immediate action, under Article 356, will lead to disastrous consequences.

(vii)  Where in response to the prior warning or notice or to an informal or formal direction under Articles 356, 257, etc., the State Government cither applies the corrective and thus complies with the direction, or satisfies the Union Executive that the warning or direction was based on incorrect facts, it shall not be proper for the President to hold that “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution”. Hence, in such a situation, also, Article 356 cannot be properly invoked.

(viii) The use of this power to sort out internal difference or intra-party problems of the ruling party would not be constitutionally correct.

(ix)  This power cannot be legitimately exercised on the sole ground of stringent financial exigencies of the State.

(x) This power cannot be invoked, merely on the ground that there are serious allegations of corruption against the Ministry.

(xi)  The exercise of this power, for a purpose extraneous or irrelevant to the one for which it has been conferred by the Constitution, would be vitiated by legal mala fides.

Sarkaria Commission Report which was formally constituted per Government of India, Ministry of Home Affairs Notification No. IV/11017/1/83-CSR, dated June 9, 1983. Subsequently, two more members were inducted. Shri B. Sivaraman was appointed on July 7, 1983 and Dr. S. R. Sen on July 27, 1983 to study Centre State relations expressed its views on  Article 355:

6.3.13 It is important to distinguish ‘internal disturbance’ from ordinary problems relating to law and order. Maintenance of public order, excepting where it requires the use of the armed forces of the Union, is a responsibility of the States (Entry 1, List II). That being the case, ‘internal disturbance’ within the contemplation of Article 355 cannot be equated with mere breaches of public peace. In terms of gravity and magnitude, it is intended to connote a far more serious situation. The difference between a situation of public disorder and ‘internal disturbance’ is not only one of degree but also of kind. While the latter is an aggravated form of public disorder which endangers the security of the State, the former involves relatively minor breaches of the peace of purely local significance. When does a situation of public disorder aggravate into an “internal disturbance’ justifying Union intervention, is a matter that has been left by the Constitution to the judgement and good sense of the Union Government.

Constituent Assembly on adoption of Article 356

‘The salient features of this provision’, in the words of Shri Alladi Krishnaswami Ayyar (speaking in the Constituent Assembly), “are that immediately the proclamation is made, the executive functions (of the State) are assumed by the President. What exactly does this mean? As members need not be repeatedly reminded on this point, ‘the President’ means the Central Cabinet responsible to the whole Parliament in which are represented representatives from the various units which form the component parts of the Federal Government. Therefore, the State machinery having failed, the Central Government assumes the responsibility instead of the State Cabinet. Then, so far as the executive government is concerned, it will be responsible to the Union Parliament for the proper working of the Government in the State. If responsible government in a State functioned properly, the Centre would not and could not interfere.

While the Proclamation is in operation, Parliament becomes the Legislature for the State, and the Council of Ministers at the Centre is answerable to Parliament in all matters concerning the administration of the State. Any law made pursuant to the powers delegated by Parliament by virtue of the Proclamation is required to be laid before Parliament and is liable to modification by Parliament. Thus, a state under President’s rule under Article 356 virtually comes under the executive responsibility and control of the Union Government. Responsible government in the State, during the period of the Proclamation, is replaced by responsible government at the Centre in respect of matters normally in the State’s sphere.

In winding up the debate on the emergency provisions, Dr. Abmedkar observed:

“In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact I share the sentiments expressed by my honourable friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces”.

Instances of President Rule since 2000:

2001

Manipur: After the 2000 elections, the government did not last more than a year. After months of chaos, alleged horse-trading and a vote of no-confidence, Manipur was brought under President’s Rule on June 3, 2001. It lasted 277 days.

2002

Uttar Pradesh: From March 8 to May 3, President’s rule was in force in Uttar Pradesh on account of an indecisive outcome of state elections.

Jammu and Kashmir: From October 18 to November 2, President’s rule was in force in Jammu & Kashmir because of an indecisive outcome of state elections.

2005

Bihar: President’s rule was in force in Bihar From March 7 to November 24 on account of an indecisive outcome of state elections. In this case, the Supreme Court ruled that the imposition of President’s rule without giving the elected legislatures a chance to form a new government was unconstitutional.

Goa: The government of the state was dismissed after a controversial confidence vote secured in the Assembly by CM Pratap Sinh Rane. President’s rule was in force here from March 4 to June 7.

2007

Karnataka: President’s Rule was in force in the state from October 9 to November 11 and then from November 20 till May 27, 2008, due to the elected government’s loss of majority.

2008

Jammu and Kashmir: The government of the then Chief Minister, Gulam Nabi Azad, was reduced to a minority following the withdrawal of support by key ally People’s Democratic Party (PDP), in the wake of massive 10-day protests against the allotment of forest land to Sri Amarnath Shrine Board. President’s Rule was in force in the state between July 11, 2008, and January 5, 2009.

2009

Jharkhand: Between January 19 and December 29, President’s Rule was in force in Jharkhand due to the elected government’s loss of majority. In 2010, too, Jharkhand was under President’s rule from June 1 to September 11. In 2013, BJP’s ruling coalition partner JMM withdrew its support to the government. Chief Minister Arjun Munda had to resign and President’s rule was in force from January 18 to July 12.

2014

Andhra Pradesh and Telangana: President’s rule was evoked in the Telangana area on June 2 and bifurcated Andhra Pradesh areas on June 8 after 100 days.

Delhi: Arvind Kejriwal resigned as Delhi chief minister after failing to table the Jan Lokpal Bill in the Assembly. Delhi was brought under the President’s rule on February 14 and stayed under it until February 11, 2015.

Maharashtra: The Congress-led government in the state was dismissed after it separated from its allies. President’s rule was in force for 33 days starting from September 28.

2015

Jammu and Kashmir: A hung verdict in the Jammu and Kashmir elections of 2015 led to the imposition of President’s Rule for 51 days, from January 9 to March 1. The following year, death of Chief Minister Mufti Mohammad Sayeed led to President’s rule again for 87 days, from January 8 to April 4.

2016

Arunachal Pradesh: Congress MLAs joined hands with the BJP, destabilizing the state government. So, President’s rule was evoked and stayed in force from January 25 to February 19. The Supreme Court declared the imposition of President’s rule as ultra vires and reinstated the dismissed Congress-led government in the state.

Uttarakhand: The collapse of CM Harish Rawat’s government following a split in the state unit of the Congress party led to President’s rule being imposed in the state twice — from March 27 to April 21, and then from April 22 to May 11.

2018

Jammu and Kashmir: Chief Minister Mehbooba Mufti resigned following withdrawal of support by coalition partner BJP. The state was under President’s rule from June 19 to October 30. On October 31, J&K was split into two Union Territories — Jammu and Kashmir, and Ladakh — and that ended the President’s rule by default.

Conclusion:

Government is reluctant to impose President Rule because it is within purview of Courts for  review and mostly struck down by Courts with strictures. This is subsequent to 44th amendment. In case of West Bengal there are videos and press reports about violence. But the same are subject to present provisions of the Constitution. There are also incidents of exodus but can it be said internal disturbance is matter to be reviewed and decided by Courts.

Shruti Desai

5th May,2021