President's Rule

Article 365 connects Chapter II of Part XI to this article. Where a State has failed to comply with or give effect to a direction given by the Union under any provision of the Constitution, it shall be lawful 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 Constitution. The word is permissive, and after Bommai the holding is reviewable like any other satisfaction.

The history, which is the reason the law changed

Two figures tell the story and both belong in an answer.

Between 1950 and 1994 article 356 was invoked over a hundred times. Very few of those were cases of the constitutional machinery actually failing. The recurrent patterns were these: dismissal of a State government of a different party after a change of government at the Centre; dismissal on the ground that the ruling party in the State had lost the general election to the House of the People; dismissal of a ministry which had not been tested on the floor of the House; and dismissal on a Governor's report asserting a loss of majority which the Chief Minister denied.

The Sarkaria Commission, reporting in 1988, examined the use of the article and recommended that it be used sparingly, as a measure of last resort, after all alternatives had failed and after a warning to the State. It also listed situations that would not justify its use, and those are quoted at length in Bommai. Among them: maladministration in a State where a duly constituted ministry enjoys majority support; a recommendation of President's rule without exploring the possibility of an alternative government or fresh elections; a refusal to let a ministry demonstrate its majority through a floor test; and the massive defeat of the ruling State party in a general election to the House of the People.

The case that changed the law

Facts. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, decided 11 March 1994 by nine judges. A group of appeals and transferred cases about Proclamations dismissing the governments of Karnataka in April 1989, Nagaland, Meghalaya in October 1991, and Madhya Pradesh, Rajasthan and Himachal Pradesh in January 1993 following the demolition of the disputed structure at Ayodhya.

Held. The Court summarised twelve conclusions. Those that matter for this chapter are:

The satisfaction under article 356 is subjective, but the power is a conditioned power and not an absolute one: the existence of material is a pre-condition, and the satisfaction must be formed on relevant material. The Sarkaria recommendations merit serious consideration.

The Proclamation is not immune from judicial review. The Supreme Court or a High Court may strike it down if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) by the Forty-fourth Amendment removed the cloud on reviewability. When called upon, the Union must produce the material on which it acted, and cannot refuse if it seeks to defend the action. The court will not go into the correctness or the adequacy of the material; its enquiry is limited to whether the material was relevant.

Article 74(2) does not shield the material. It bars an enquiry into what advice was tendered, but it does not bar the court from calling on the Union to disclose the material on which the President formed his satisfaction, because the material on which advice was based does not become part of the advice.

The Assembly may not be dissolved before parliamentary approval. Though the power to dissolve is implicit in clause (1), it may be exercised only after both Houses approve the Proclamation under clause (3). Until then the President may only suspend the Assembly. Dissolution is not a matter of course.

If Parliament does not approve, the dismissed government revives and a suspended Assembly is reactivated, and acts done in the two months are not retrospectively invalidated though they may be reviewed or repealed.

If the court strikes down the Proclamation it may restore the dismissed government and revive the Assembly even if dissolved, and may declare that what was done in the interim remains valid.

And the two conclusions of wider importance: the Constitution has created a federation but with a bias in favour of the Centre, and within the sphere allotted to them the States are supreme; and secularism is a basic feature, so a State Government which pursues unsecular policies acts contrary to the constitutional mandate and renders itself amenable to action under article 356.

On the facts, the Karnataka and Meghalaya Proclamations were unconstitutional; those for Madhya Pradesh, Rajasthan and Himachal Pradesh were not.

Why it matters. It converted article 356 from a political power into a legal one. Three things in particular changed the practice: the requirement of relevant material, the disclosure obligation, and the rule that the Assembly may not be dissolved before Parliament approves, which preserves the possibility of restoring the government. The use of article 356 fell sharply after 1994, and that is the practical measure of the decision.

The floor test

One point deserves separate statement because it is where Bommai bites hardest.

The Court held that the proper forum for testing whether a ministry commands a majority is the floor of the House, not the Governor's subjective assessment and not a headcount conducted at Raj Bhavan. Where the question is whether the government still has the confidence of the Assembly, the Governor should require it to prove that on the floor.

The consequence has been a settled modern practice: where a government's majority is in doubt, a court will order a floor test, and will fix the time and sometimes the manner of it. That is the most frequently applied part of the decision.

What remains open

An answer should not present the matter as closed.

The satisfaction is still subjective and the review is narrow. The court asks whether the material was relevant, not whether it was sufficient or correct. A Union that assembles relevant material is difficult to challenge.

Restoration is a remedy that is rarely available in practice. By the time a case is decided, fresh elections have usually been held. In Bommai itself the Court said it would have struck down the Karnataka and Meghalaya Proclamations and restored the governments but for the intervening elections.

Article 355 offers a route around the safeguards, on the wider reading discussed in [Emergency and the Federal Balance].

The Governor's report remains the usual trigger, and the office that produces it is the one described in [The Governor], appointed and removable by the party the report may benefit.

A worked example

The ruling party in State B loses every seat in the State at a general election to the House of the People. The Governor reports that the ministry has lost the confidence of the people, though it has not been defeated in the Assembly and has not been asked to prove its majority. A Proclamation under article 356 is issued and, within a fortnight and before Parliament has met, the Assembly is dissolved.

Is the ground good? No. Bommai quotes the Sarkaria list of situations that do not justify article 356, and this is one of them in terms: the massive defeat of the ruling State party in a general election to the House of the People is not a failure of the constitutional machinery. So is the refusal to let a ministry demonstrate its majority through a floor test.

Is the satisfaction reviewable? Yes. The power is conditioned, not absolute; the satisfaction must rest on relevant material; and the Proclamation may be struck down if mala fide or based on wholly irrelevant or extraneous grounds. The court will not weigh the material's adequacy, only its relevance, and a ground the Sarkaria list expressly excludes is not relevant.

Must the Union disclose the material? Yes. Article 74(2) bars an enquiry into what advice was tendered, but not the production of the material on which the satisfaction was formed, because that material does not become part of the advice. If the Union wants to defend the Proclamation it cannot refuse.

Was the dissolution lawful? No. Bommai holds that although the power to dissolve is implicit in clause (1), it may be exercised only AFTER both Houses approve the Proclamation under clause (3). Until then the Assembly may only be suspended.

What relief follows? If the Proclamation is struck down the court may restore the dismissed government and revive the Assembly, and may declare that acts done meanwhile remain valid. The practical difficulty is timing: in Bommai itself fresh elections had intervened.

Quick revision

• Article 356: satisfaction that the government of a State cannot be carried on in accordance with the Constitution, on the Governor's report or otherwise. The High Court's powers are excluded from the Proclamation.
• Approval by both Houses within two months, six months at a time thereafter, three years maximum.
• Article 365: failure to comply with a Union direction may found the satisfaction.
• Sarkaria 1988: last resort, after a warning, and a list of situations that do not justify it.
• Bommai 1994: conditioned power, relevant material, reviewable for mala fides or wholly extraneous grounds, material must be disclosed, article 74(2) is no shield, no dissolution before parliamentary approval, restoration possible, floor test is the proper forum, federation with a bias to the Centre, secularism a basic feature.
• What remains: subjective satisfaction, narrow review, and restoration that usually comes too late.

Test yourself

1. Why does everything about article 356 follow from the fact that its trigger is a satisfaction rather than a fact?

2. What does article 356(3) require, and what happens if Parliament does not approve?

3. Give four situations from the Sarkaria list that do not justify a Proclamation.

4. State six of the conclusions in S.R. Bommai that bear on article 356.

5. Why is the floor test the proper forum, and what has that produced in modern practice?

6. What remains unsatisfactory about the position even after Bommai?