Thursday, April 20, 2017

President's Rule Under Article 356 of Indian Constitution

As mentioned in the previous article, Article 352 of the Indian Constitution gives the President of the country, the power to declare national emergency.

There are total 3 kinds of emergencies that can be declared according to our Indian constitution.

In this article, we shall talk about the second type of emergency which is applied in States.

This kind of emergency is known as president's rule or state emergency or constitutional emergency.

According to Article 355 of the Indian constitution, the center has been bestowed a duty to ensure that the government of every state of the country works according to the provisions which are mentioned in the Indian Constitution.

If for some reason the state government acts unconstitutionally or is incapable of maintaining law and order, then under Article 356 of the Indian constitution, the center has the power to take over the governance of such states.

Such a situation is popularly known as imposition of president's rule in a state.

Grounds on which Article 356 of Indian Constitution or the president's rule can be proclaimed in a state

1. If the president is satisfied that a certain situation has come up in a state such that the Governance of that state is not being carried on constitutionally, then, according to the provisions mentioned in Article 356 of the Indian Constitution, the president can declare a proclamation of state emergency.

2. He can also be advised by the governor of the state of such a situation.

3. The third reason for the declaration of state emergency is that whenever a state fails to comply with any directions provided by the central government, the president, under Article 356 of the Indian constitution can consider this situation worthy of state emergency.

Process for the declaration of president's rule according to Article 356 of Indian Constitution

So far we know the conditions under which the president can declare president's rule in a state.

Any such proclamation must be approved by both the houses of the Parliament which are Lok Sabha and Rajya Sabha within 2 months of its issue.

But if at the time of the proclamation of president's rule, the lok Sabha has been dissolved due to any reason, such a proclamation is valid till 30 days from the fisrst sitting of Lok Sabha.

Also if the Lok Sabha is dissolved within 2 months of the proclamation of president's rule, even then it is valid only for 30 days after the reconstitution of Lok Sabha.

However in the absence of Lok Sabha, Rajya Sabha must give its approval to the proclamation in the meantime.

Once president’s rule has been approved by both houses of the Parliament it continues for 6 months only.

It can be extended for a period of maximum 3 years after it has been approved by the parliament every six months.

Again if during these 6 months the Lok Sabha is dissolved due to any reason before it could approve its continuation then Rajya Sabha must approve the continuation of president rule, which will be valid till 30 days from the first sitting of Lok Sabha.

Another important point is that to gain the approval of the Parliament, the president's rule proclamation can be passed by a simple majority in both the houses.

In other words unlike a national emergency, which requires a special majority in each house, president's rule can be passed by a simple majority, that is, the majority of the members of the house which are present and voting.

The provision for the extension of president’s rule in a state was amended by the 44th Constitutional Amendment Act of 1978.

This amendment limited the power of parliament to extend president's rule in a state longer than one year.

It states that after 1 year the president's rule can only be extended by 6 months at a time, if and only if the following conditions are fulfilled:

a. National emergency has been declared in the country or a part of the country.
b. The general elections of the legislative Assembly of the concerned state cannot be conducted due to certain difficulties, the fact of which must be certified by the Election Commission.

Revocation of President's Rule

The process to revoke the president's rule is quite simple.

The president can revoke this proclamation at any time without the approval of the parliament.

Scope of Judicial Review with regard to President's Rule under Article 356 of Indian Constitution

By the 38th amendment act of 1975, the provision of President’s satisfaction to impose Article 356 of Indian Constitution was made final and conclusive.

According to this amendment, the power of the president to impose President’s rule was deemed so that it could not be challenged in a court of law.

However, this was later removed by the 44th amendment act of 1978 which provided that the satisfaction of the president could be challenged in a court of law.

In 1994, in Bommai case, the Supreme Court laid down the following recommendations regarding the imposition of president’s rule in a state:

1. The president’s proclamation of state emergency is subject to judicial review.

2. The basis on which the president has proclaimed president’s rule must be on relevant material. It can be revoked or struck down by the court if the grounds are found to be irrelevant or malafide.

3. The burden to provide proof of relevant material on the basis of which the proclamation was made lies with the Centre

4. The court cannot delve into the correctness of the material provided by the Centre. It can only judge if the material is relevant to the emergency proclamation

5. If the material is found to be unconstitutional or invalid, the court can revive the suspended state legislative assembly

6. The state legislative assembly should only be dissolved after the proclamation has been approved by the president. Until then, it can only be suspended.

7. If a state is found to be acting against the secular nature of the constitution, it is liable for Article 356.

8. The powers mentioned in article 356 are exceptional. These powers should be exercised occasionally and only in cases of true emergencies and not for political gains.

For example, in case of internal disturbances, it is not fit to impose president’s rule unless the situation amounts to physical violence.

9. Article 356 should not imposed without giving the state governments a warning to rectify themselves. However, this can be skipped in cases of extreme urgencies.


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