9 February 2023

What is Article 356, which Modi says Indira Gandhi misused 50 times?

GS-2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Recently, the Prime Minister mentioned in the Rajya Sabha that during the tenure of Congress governments at the center, Article 356 of the Constitution was misused to dismiss 90 state governments. Furthermore, the former Prime Minister Indira Gandhi is said to have used this article to dismiss elected state governments on 50 occasions.

Article 356 of the Indian Constitution outlines the procedure for the implementation of "President's Rule" in a state, leading to the dismissal of the elected government.

Although the article was meant to be used only in exceptional circumstances, it has been repeatedly utilized by central governments, including the Janata government where members of the BJP's predecessor, the Jana Sangh, were involved, for political gain.

Background of Article-356

• Article 356 empowers the President to withdraw to the Union the executive and legislative powers of any state “if he 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”.
• This article was based on Section 93 of the 1935 Government of India Act. 
• This section gave the governor of a province the power to assume control of the government if it could not function according to the provisions of the act, while maintaining the power of the high court. 
• This was meant to provide a "controlled democracy" under British rule by allowing for some autonomy, while retaining ultimate power in the hands of the authorities.

President’s Rule

• President's Rule can be proclaimed under two provisions –

• Article 356 gives the President the authority to impose President's Rule if he believes the state government cannot be run according to the Constitution. 

• This can be based on a report from the state governor or on the President's own assessment.

• Article 365 allows the President to impose President's Rule if a state fails to follow directions from the Centre. 

• In this case, the President can determine that the state government cannot function in accordance with the Constitution.

President's Rule parliamentary approval and duration

• President's Rule must be approved by both Houses of Parliament within 2 months of issuance.
• If the Lok Sabha is dissolved, the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, if approved by the Rajya Sabha.
• Approval from both Houses of Parliament allows President's Rule to continue for 6 months, with a maximum extension of 3 years every 6 months.
• A resolution for President's Rule or its continuation can be passed by a simple majority of members present and voting.
• Beyond 1 year, President's Rule can only be extended by 6 months if a National Emergency is in operation and the Election Commission certifies that elections can't be held due to difficulties.

• This provision was introduced by 44^th Amendment Act of 1978.
• However, in the past, President's Rule has been extended for much longer periods under special circumstances, such as the case of Punjab, which was under President's Rule from 1987 to 1992 due to the rise of militancy.

• President's Rule can be revoked by the President at any time without parliamentary approval.

Consequences of President’s Rule

• When President's Rule is imposed in a state, the President acquires extraordinary powers and the state council of ministers headed by the Chief Minister is dismissed. 
• The President, through the state governor, carries out the state administration with the help of advisors. 
• The state legislative assembly may be suspended or dissolved and the Parliament passes the state legislative bills and budget. 
• The Parliament, President, or any specified authority can make laws for the state, delegate power to make laws, authorize expenditure, and promulgate ordinances. 
• Laws made during President's Rule remain operative even after its duration but can be repealed or altered by the state legislature. 
• The constitutional position, status, powers, and functions of the state high court remain unchanged during President's Rule.

Article 356 as a Political Tool in Independent India:

• Article 356 of the Indian Constitution has been imposed on over 125 occasions since 1950. 
• It has been used as a political weapon in India, particularly during the era of Congress dominance at the center. 
• The provision has been criticized for being imposed arbitrarily, often for political or personal reasons, making it one of the most controversial provisions in the Constitution. 
• The first instance of its use was in Punjab in 1951 and since then almost all states have been brought under President's Rule at some point.
• It was used to dislodge state governments belonging to the Left and regional parties, with Jawaharlal Nehru using it six times, including against the first-ever communist government in Kerala. 
• The usage of the article continued with Indira Gandhi using it seven times between 1967 and 1969. 
• During the 1970s, President's Rule was imposed 19 times. 
• After the Emergency, the Janata Party government dismissed nine Congress state governments and Indira Gandhi's 1980 return to power saw President's Rule imposed in nine states. 
• In 1992-93, Prime Minister Narasimha Rao used it to dismiss three BJP governments and the government of Kalyan Singh in Uttar Pradesh.

Curbing Misuse of Article 356

• The 38^th Amendment Act of 1975 established the President's satisfaction in invoking Article 356 as final and conclusive, making it immune to challenge in a court of law. 

• However, this protection was removed by the 44^th Amendment Act of 1978, making the President's satisfaction subject to judicial review.

• The political misuse of Article 356 was curbed through the landmark case of S. R. Bommai v. Union of India in 1989, after the Centre dismissed the S R Bommai government in Karnataka.
• A nine-judge Supreme Court bench in 1994 provided guidelines on when President's Rule can be imposed, such as – 

• The presidential decree implementing the President's Rule is open to review by the courts.
• The President's approval must be based on pertinent information. The court can invalidate the President's action if it is based on irrelevant or improper grounds, or if it is found to be malicious or arbitrary.
• The responsibility is on the central government to demonstrate that relevant information exists to justify the President's Rule.
• The court cannot examine the accuracy of the information or its sufficiency, but it can determine whether it is pertinent to the action.
• If the court deems the presidential proclamation unconstitutional and invalid, it has the power to reinstate the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.
• The state legislative assemblyshould only be dissolved with the approval of Parliament. Until such approval is granted, the President can only suspend the assembly. If Parliament fails to approve the proclamation, the assembly will be reactivated.
• Secularism is one of the Constitution's "fundamental principles." Therefore, a state government pursuing anti-secular policies is subject to action under Article 356.
• The issue of the state government losing the confidence of the legislative assembly should be decided within the assembly, and the ministry should not be removed until this has been determined.
• When a new political party takes power at the centre, it does not have the authority to dismiss state ministries formed by other parties.
• The power under Article 356 is an exceptional power and should only be used in exceptional circumstances.

• The court also ruled that Article 356 cannot be used without giving the state government an opportunity to prove its majority in the assembly or without instances of violent constitutional breakdown. 
• This decision has largely prevented arbitrary use of Article 356 since the judgment.

Cases of Proper and Improper Use

• The Supreme Court, in the Bommai case of 1994, based on the report of the Sarkaria Commissionon Centre-State Relations (1988), outlined the proper and improper circumstances for exercising power under Article 356. 

The imposition of President's Rule in a state would be appropriate in the following situations:

1. A "Hung Assembly" occurs when no party secures a majority in the assembly after general elections.
2. The party with a majority in the assembly refuses to form a ministry and the governor is unable to find a coalition ministry with a majority in the assembly.
3. A ministry resigns after its defeat in the assembly and no other party is willing or able to form a majority-commanding ministry.
4. The state government disregards a constitutional directive from the central government.
5. Internal subversion, where the government is intentionally acting against theConstitution and the law or is inciting a violent uprising.
6. Physical breakdown, where the government deliberately fails to fulfil its constitutional obligations and endangers the security of the state.

The imposition of President's Rule in a state would be considered improper in the following situations:

1. A ministry resigns or is dismissed after losing majority support in the assembly and the governor recommends President's Rule without investigating the possibility of forming an alternative ministry.
2. The governor assesses the support of a ministry in the assembly and recommends President's Rule without allowing the ministry to prove its majority in the assembly.
3. The ruling party, with a majority in the assembly, experiences a significant defeat in the general elections to the Lok Sabha, as was the case in 1977 and 1980.
4. Internal disturbances that do not amount to internal subversion or physical breakdown.
5. State maladministration or allegations of corruption against the ministry or severe financial difficulties in the state.
6. The state government is not given prior warning to rectify itself, except in cases of extreme urgency that would lead to disastrous consequences.
7. The power is used to resolve intraparty problems within the ruling party or for a purpose that is extraneous or unrelated to the purpose for which it was granted in the Constitution.

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