AUTHORITY TO RECOMMEND PRESIDENT'S RULE UNDER ARTICLE 356 OF THE
CONSTITUTION
Author(s): K. Madhusudhana Rao
Source: Journal of the Indian Law Institute , January-March 2004, Vol. 46, No. 1
(January-March 2004), pp. 125-132
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43952424
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Indian Law Institute is collaborating with JSTOR to digitize, preserve and extend access to
Journal of the Indian Law Institute
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
125
AUTHORITY TO RECOMMEND PRESIDENT'S RULE
UNDER ARTICLE 356 OF THE CONSTITUTION
ARTICLE 356 of the Constitution empowers the President
president's rule in a state if he is satisfied from the report of t
of the state or 'otherwise' the effect that 'the Government of the State
cannot be carried on in accordance with the provisions of the
Constitution'. The expression 'the Government of the State cannot be
carried on in accordance with the provisions of the Constitution' is of
very wide import and it gives wide discretionary powers to the President
in invoking the powers under this article.
Till now on 102 occasions proclamations were made under article
356. 1 The President can invoke article 356 not only on the report of the
governor of a state but also otherwise. So far on three occasions the
President invoked the 'otherwise' clause in article 356(1) while imposing
president's rule. First time in 1977 when the president's rule was imposed
in 9 states, viz., Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh,
Punjab, Orissa, West Bengal, Haryana and Himachal Pradesh by the
union government headed by the Janata Party. Second time was in
1980 when the president's rule was imposed in 9 states by the Union
Government headed by the Congress (I) Party, viz., Uttar Pradesh, Bihar,
Rajasthan, Madhya Pradesh, Punjab, Orissa, Tamil Nadu, Gujarat and
Maharashtra.2 Third time was in 1991, when the president's rule was
imposed in Tamil Nadu by the Union Government headed by the Janata
Dal (Socialist) Party under the hegemony of Sri Chandrasekhar.
When this was the position, the Patna High Court judgment of
1997 created controversy in this matter when it observed that the high
court was also competent to report to the President recommending
president's rule in the state in Samyukta Nagarik Samiti case.3 This
case arose out of public interest litigation filed by Samyukta Nagarik
Samiti, which pointed out that government funds were siphoned off
without work being executed, a fact confirmed by the Controller and
1. Lok Sabha Secretariat, President's Rule in States and Union Territories (New
Delhi 1996) - This data include the recent proclamations made in the State of
Manipur in June 2001 and in the State of Uttar Pradesh in March 2002.
2. Krishna K Tummala, 4 India's Federalism under Stress' Asian Survey 32 (June
1992) 538.
3. The Hindu 12 Aug 1997at 1 (Vizag.ed.).
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
1 26 JOURNAL OF THE INDIAN LA W INSTITUTE [ Vol . 46 : 1
Auditor General (CAG) Report, but sought to be rebutted
commissioner of the state government. The CAG had detecte
diversion; defalcation and fraudulent payments amounting to Rs
during 1995-96 and 1996-97 and pointed out that this kind of irr
prevailed throughout the state. The CAG specifically pointe
various irregularities committed in the implementation of the em
programmes under the Jawahar Rozgar Yojana in Sahebganj Dis
the State of Bihar. The counter affidavit filed by the commiss
the state government was considered false by the court. On th
the high court observed that the state of affairs was ripe for the
to invoke article 356 of the Constitution and dismiss the state go
on the ground of break down of the constitutional machinery.
CJ. and S.K. Singh J. declared that the recommendations of the
were not conclusive regarding the invocation of article 356 and
high court was also competent to report to the President on the
in the State of Bihar.4 In other words, according to the Pat
Court, irregularities in implementing employment programme
Jawahar Rozgar Yojana - a welfare scheme, for that matter any
scheme, amounts to breakdown of constitutional machinery
within the meaning of article 356.
The above stated observation of the Patna High Court on th
of article 356(1) has given rise to two mutually contradictory v
The first view
According to the first view the court is competent to recommend
president's rule on the ground of breakdown of constitutional machinery
in a state. In support of this view the proponents of this view assigned
the following reasons:5
1. Serious charges of corruption, arbitrary exercise of power in a
manner not permitted by the Constitution and other factors
taken together will certainly warrant the imposition of
president's rule. They say, that this is the situation the Patna
High Court has been faced with that led to the above stated
observation.
2. Though normally the President forms the necessary satisfaction
on the report of the governor, at times the governor may refuse
4. T.C.A. Ramanujam and T.C.A. Sangeetha, "Art. 356: Competency of Judiciary
to advise the President" (1998) 6 SCC (Jour) 7 - Also see, T.C.A. Ramanujam and
T.C.A. Sangeetha, "Court Competent to recommend President's Rule" The Hindu 2
Sep. 1997at 25, (Vizag ed).
5 . Ibid.
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
2004] NOTES AND COMMENTS 1 27
to submit and he may refuse to
such situation, they say, the co
matter to the President and in
For this position they have re
B.R. Ambedkar:6
We must give liberty to the P
there is no report by the G
President has certain facts w
which he thinks fit to act in t
3. Basing upon this they argued t
of the state and has a duty to brin
the state of affairs that preva
matters brought to its attentio
they have cited Tamil Nadu situation of 1991, in which
president's rule was imposed, although the governor refused to
give the report, on the ground that the LTTE7 activities were
increased in the state with which the ruling party was alleged
to be "hand-in-glove" with foreign insurgents leading to turmoil
in Tamil Nadu. The LTTE's rivals were massacred on the streets
of Chennai (then Madras) and the culprits were allowed to
escape. It is to cover such situations, they argued, that the
founding fathers incorporated the words 'or otherwise' in article
356(1), implying that the words "or otherwise" gives
jurisprudence for the courts also to recommend president's rule.
In support of their argument they have also quoted the A. P.
High Court observation in D. Satyanarayana v. N.T. Rama
Rao 8 wherein it was observed that:9
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 A. P. or that the Union
Government failed to take any action even though it is
satisfied that the conditions exist in that state justifying
the imposition of the President's Rule. While we refuse
6. IX CAD 134.
7. Liberation Tigers of the Tamil Ealem.
8. AIR 1988 AP 69.
9. Supra note 4, SCC (Journal) at 1 1 .
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
1 28 JOURNAL OF THE INDIAN LA W INSTITUTE | Vol . 46 : 1
to give any direction to the Central Government in
terms prayed for by the petitioner, we have no do
that the representation filed by the petitioner as w
as the details set out in his judgment will recei
consideration of the Central Government and an
appropriate decision will be taken.
4. The critics say that the judiciary is not expected to recom
the action under article 356(1) because the judiciary may hav
to sit in judgment after the proclamation has been made. Th
have countered this criticism on the reason that under certain
contingencies the President approaches the Supreme Court for
advice (under article 143) with regard to the validity of a
proposed legislation. Such advice has not come in the way of
the subsequent hearing before the same court with regard to
the tenability of such legislation.10 Hence, according to them,
the advice tendered by the high court also will not come in the
way of reviewing the proclamation by it, although the
proclamation is issued basing upon its recommendation.
Stressing upon the need to have dynamic judges in India, they said,
that the judge, as pointed out by Lord Denning,1 1 "is not a mere mechanic
or a mere mason laying brick on brick without thought to 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 civilized society itself depends".
The second view
The other view took the position that the courts (judiciary) are not
competent to make a report to the President on the breakdown of the
constitutional machinery in a state. Hence the courts are not competen
to recommend president's rule. The proponents of this view advanc
the following reasons in support of their argument:12
1. The word 'report' used in connection with the governor is
rather inappropriate in connection with the high court, because
the high court is an independent body which has no duty to
make a report to the President as in the case of a governor and
hence it is argued that the Patna High Court was not justified
10. Id. at 10-11.
1 1 . ¡bid.
12. Alladi Kuppuswamy, "Was the Patna High Court Right?" The Hindu 1 Oct.
1997 aUl2. (Vizag ed.).
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
2004] NOTES AND COMMENTS 1 29
in stating that it was also com
President.13
Though the word 'otherwise' is of wide import, the framers of
the Constitution never expected that the report of breakdown
of constitutional machinery would be made by the judiciary
under this 'otherwise' clause. Undoubtedly, the word
'otherwise' may give scope for the President to take cognizance
of the observations made by a court in a case before it, but it
does not mean or imply that the court is competent to make a
report to the President.
2. On the meaning of the expressions "break-down of
Constitutional machinery" and "the government of the state
cannot be carried on in accordance with the provisions of the
Constitution," Dr. Ambedkar pointed out during the debates
that it would not refer to the failure to comply merely with
some provisions of the Constitution but to "the form of the
Constitution". Hence if the government of the state cannot be
carried on in accordance with the provisions of the Constitution
dealing with the parliamentary system of the government then
only article 356 is to be invoked. It cannot be said that the
irregularities committed under the Jawahar Rozgar Yojana in
one district of Bihar would amount to the government not being
carried on in accordance with the provisions of the Constitution
so as to justify the imposition of the president's rule.
Consequently, it is not justifiable for the court on these facts
and circumstances to say that this is the appropriate case for
the imposition of president's rule.14
3. Just as any act of the executive is subject to judicial scrutiny,
the proclamation is also subject to judicial review in certain
circumstances. Though the 'satisfaction' of the President under
article 356(1) is subjective, the courts can set aside the
proclamation if it is made upon a consideration totally
extraneous or irrelevant to the breakdown of the constitutional
machinery.15 In such case, it can be said that there is no
satisfaction of the President. The court also can interfere in
case of a mala fide exercise of power. Again, if the union
cabinet relies upon the 'report' of the governor, which gives
no fact or circumstances but only the governor's opinion, the
court can interfere.
13. Ibid.
14. ibid.
15. SR. Bommai v. Union of India , (1994) 3 SCC 1.
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
1 30 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 46 : 1
It is possible that a proclamation, if and when made by th
on the report of the high court, may be challenged on the
the observations were wholly unwarranted and merely in th
the opinion of the high court. In such case the high court w
in an embarrassing position of having pre-judged the issue
permissible for the high court to go into the validity of the
as it amounts to violation of principles of natural justice. H
submitted that in such matters which are likely to come up
court for adjudication it would not be proper for them t
opinion in advance.16
Conclusion
On a perusal of the pros and cons of both the views, the secon
view that the court has no power to report to the President or
recommend for president's rule - seems to be reasonable not only
the arguments advanced therein but also for the following reasons:
1 . The Indian Constitution is based upon the theory of separat
of powers, which implies that the judiciary should not exercis
the powers of the governor under article 356, which are
expressly vested in the governor, President and the Parliament
2. The text of article 356 included the word 'Governor' but not
the high court and this omission is not advertent but deliberat
3. Under the Indian Constitution the governor holds dual capacity
On the one hand, he is the constitutional head of the state an
is part of the state apparatus. On the other hand, he is th
representative of the central government in the state and th
provides a link with the centre.17 In making a report to th
President under article 356 (1) the governor acts not only
the head of the state but also as the representative of the centr
who is under an oath to preserve, protect and defend th
Constitution and law.18 But a high court cannot be regarded a
the representative of the centre without militating against th
ideals underlying the Constitution.
4. Under article 143(1), if at any time it appears to the Presid
that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that i
is expedient to obtain the opinion of the Supreme Court upon
16. Supra note 12.
17. M.P. Jain, Indian Constitutional Law (1987) at 187.
18. Art. 159 of the Constitution of India.
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
2004] NOTES AND COMMENTS 1 3 1
it, he may refer the question
consideration and the Supreme C
as it thinks fit, report to the Pr
Under this article it is upto the
opinion or not on valid reasons
Supreme Court is not binding on
143 empowers the President to
the Supreme Court and it never
to the President, or the high cou
Supreme Court cannot give any
being asked by the President un
Article 143 is not part of the a
part of advisory machinery de
(the executive) in discharge of h
has not envisaged any advisory
India, what is good in the case o
143 may not be good in the cas
advisory role at all, under the co
Though the American doctrine o
is acting as a judicial self-limitat
adumbrated under the Indian Con
operating under the Indian Co
Hence, without there being a c
the high court or the Suprem
questioning the validity of th
justifiable nor tenable to expre
these issues while hearing oth
expressed by the court which i
before it, it can at the most be
not having binding nature.22
5. The courts in India are techn
implying that they are created u
which gives/governs their jurisd
no jurisdiction at all to act. Accor
either in the Constitution or in
the high court or the Supreme C
President on the failure of con
and to recommend president's ru
19. V.N. Shukla, The Constitution of In
20. H.M. Seervai, Constitutional Law of
21. Bernard Schwartz, American Constit
22. R.W.M. Dias, Jurisprudence (1985)
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
1 32 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 46 : 1
in India should be restrained totally from express
opinions in this regard. Otherwise, their opinions wil
inoperative on the ground of jurisdictional errors.
6. A number of provisions are incorporated in the Indian
Constitution guaranteeing independence of judiciary because
only an impartial and independent judiciary can stand as a
bulwark for the protection of the rights of the individuals and
mete out evenhanded justice without fear or favour.23 As such,
the courts are not expected to act as advisory bodies to the
executive.
Whereas a governor holds office during the pleasure of the
President24 although a five-year tenure is fixed by the
Constitution25 he also acts as the representative of the centre.
In this capacity the governor can make a report to the President
about the breakdown of the constitutional machinery in a state.
Hence, the position of the governor cannot be equated with
that of a high court or Supreme Court, which are enjoying
independent powers under the Constitution.
7. A distinguishing feature of a judicial decision is the doctrine
of stare decisis . It envisages that judicial decisions have a
binding force.
But the phraseology used in article 356(1), i.e., "the President lmay'
by proclamation" gives the President the discretionary power to invoke
or not to invoke article 356 because of the non-mandatory nature of the
power vested by it on the President. In case, a high court or the Supreme
Court advises the President to issue a proclamation and if the President
refuses to issue a proclamation relying upon the advice given by the
court then the court would have to face an embarrassing position besides
calling an end to the constitutional government in the country.
For the reasons cited above it would be advisable for the courts in
India not to make a report to the President about the failure of
constitutional machinery in a state. The constitutional provisions have
not vested this power in them.
K. Madhusudhana Rao *
23. They are Arts 121 and 211, 124(2), 124(2) Proviso (b), 124(4), 125(1),
146(1). 146(3) etc.
24. Art. 156 (1).
25. Art. 156(3).
* Asst. Professor, Department of Law, Andhra University PG Centre, Etcherla,
Srikakulam Distt. (A. P.).
This content downloaded from
3.109.195.217 on Fri, 17 Jan 2025 18:10:24 UTC
All use subject to https://about.jstor.org/terms
