Article 356: Legal Analysis

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SC stayed an Andhra Pradesh High Court order to embark on a judicial inquiry into whether there is a constitutional break down in-state machinery.

In the absence of the Governor’s report recommending the President’s rule, the President can rely on any other material to conclude that the constitutional machinery in a state has collapsed. While considering the question of material, the Supreme Court had held that it is not the personal whim, wish, view, or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose.

President’s rule is the suspension of state government and imposition of direct central government rule in a state. President’s Rule implies the suspension of a state government and the imposition of direct rule of the Centre. This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.

Under Article 356, this move can be taken (1) If the President, on receipt of the 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 by the provisions of this Constitution

A proclamation of the President’s Rule can be revoked through a subsequent proclamation in case the leader of a party produces letters of support from a majority of members of the Assembly and stakes his claim to form a government.

The revocation does not need the approval of Parliament.

Any proclamation under Article 356 —which stands for six months — has to be approved by both Houses in the Parliament session following it.

This six-month time frame can be extended in phases, up to three years.

On December 18, 2020, while hearing a petition between The State of Andhra Pradesh & Ors vs Reddi Govinda Rao, the Supreme Court of India stayed the order passed by the Andhra Pradesh High Court. About this order, the Bar and Bench reported that “in any case, have you seen an order like this? As an apex court, we find it disturbing. Issue notice, stay. List immediately after vacation”.

In this context, it is necessary to put forth the facts of the case. On October 1, the Andhra Pradesh High Court had passed an order mentioning on the next date, learned senior counsel appearing on behalf of the State may come prepared to assist the Court as to whether in the circumstances, which are prevailing in the State of Andhra Pradesh, the Court can record a finding that there is a constitutional breakdown in the State or not.

The High Court passed this order while hearing more than 15 habeas corpus petitions questioning the illegal detention of the persons by the police in the State under Article 226 of the Constitution. The petitioners prayed for producing the persons before the court by the police. The matter is primarily about the police excesses in the State and is executive.

It seems to appear that the High Court of Andhra Pradesh made the observations based on Article 356, i.e, imposition of President’s rule in certain situations as part of emergency provisions. It is uncommon for a high court to make observations on the status of constitutional breakdown in a State.

Only the President of India upon the receipt of the report from Governor of the State is empowered to proclaim emergency in case of failure of constitutional machinery in State. Article 356 (1) reads “If the President, on receipt of a 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 by the provisions of this Constitution”

But the writ powers of the courts are not without limitations. These are to be exercised in coherence with the “rule of law” and within the ambit of the doctrine of separation of powers. Article 356 needs to be seen in conjunction with other such Articles 352-359 and 360 (financial emergency) and not alone. In the context of judicial control, the courts do not have suomotu power to extend the scope of judicial review for promulgating or imposing the President’s rule in the State.

While arguing the case of Griswold v. Connecticut, 381 U.S. 479, 501 (1965), Justice Harlan expressed the need for judicial self-restraint, “Specific” provisions of the Constitution, no less than “due process” lend themselves as readily to personal interpretations by judges whose constitutional outlook is simple to keep the Constitution in supposed tune with the times.

The AP High Court order in this particular case is an indication of the non-self-restraint judiciary as it appears to have crossed the ‘Laxman Rekha of the Constitution by entering into the domain of the executive. It equated the police excesses with constitutional failure, which is factually incorrect.

The AP High Court order is a consequence of not heeding the observations of Kamath. In the case of State of Rajasthan v. Union of India, AIR 1977 SC 1361, the then Chief Justice Hameedullah Beg observed that “our difficulty is that the language of Article 356 is so wide and loose that to circumscribe and confine it within a straitjacket will not be just interpreting or construing it but will be Constitution-making legislation which, again, does not, strictly speaking, lie in our domain”.

Since 1950, Article 356 has been misused for political purposes in more than 120 instances. The ambiguity of the word “otherwise” in the provision has been misused by many of the Governors to dissolve the majority governments in the States.

The imposition of the President’s rule in a State is an exclusive purview of the executive and not of the judiciary. The AP High Court order stands in violation of the doctrine of the separation of powers and federal governance. The time has come to remove the word “otherwise” in Article 356 through a constitutional amendment.

The state has said in its appeal that constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown in the state.

The said fact is essentially an executive function and is necessarily required to be based on a detailed factual analysis. The courts simply do not have any means to decide such question. In fact, the order is a serious encroachment on the powers of the executive as enumerated under the Constitution and is thus violative of the doctrine of separation of powers, it said, while urging the apex court to set aside the order.

Author: Aakchad Nath

Editor: Kanishka VaishSenior Editor, LexLife India.

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