Two of the three emergencies in the Constitution operate on the States rather than on the nation. Article 356 deals with a failure of constitutional machinery in a State, and Article 360 with a threat to the financial stability or credit of India. Article 356 has been invoked well over a hundred times; Article 360 has never been invoked.
President's Rule under Art.356
Article 356(1) provides that if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, he may by Proclamation do three things.
| Clause | Power |
|---|---|
| Art.356(1)(a) | Assume to himself all or any of the functions of the Government of the State, and all or any of the powers vested in the Governor or in any body or authority in the State other than the Legislature |
| Art.356(1)(b) | Declare that the powers of the State Legislature shall be exercisable by or under the authority of Parliament |
| Art.356(1)(c) | Make such incidental and consequential provisions as appear necessary, including suspending in whole or in part the operation of any provision relating to any body or authority in the State |
| Proviso | The President may not assume any of the powers vested in or exercisable by a High Court, nor suspend any provision relating to High Courts |
The source of the power is Art.355, which imposes on the Union the duty to ensure that the government of every State is carried on in accordance with the Constitution. Article 356 is the instrument by which that duty is discharged. Article 365 supplies an additional gateway: where a State fails to comply with a direction given under the Union's executive power, the President may hold that such a situation has arisen.
Duration and Approval
| Stage | Rule |
|---|---|
| Laying and approval | The Proclamation must be laid before each House and ceases to operate at the expiration of two months unless approved by resolutions of both Houses, by simple majority |
| First period | Once approved, it continues for six months from the date of the Proclamation |
| Extension | Extendable by six months at a time, subject to fresh approval on each occasion |
| Outer limit | Three years in all |
| Condition after one year (Art.356(5)) | Beyond one year an extension requires both: that a Proclamation of National Emergency be in operation in the whole of India or in the whole or part of the State, and that the Election Commission certify that continuance is necessary on account of difficulties in holding a general election to the State Assembly |
Why Art.356(5) matters. Inserted by the 44th Amendment, it makes prolonged President's Rule practically very hard, since it requires a national Emergency to be running as well. The mischief it addressed was the use of Art.356 to govern a State from the Centre for years together. Note that the approval majority for Art.356 is only a simple majority, unlike the two thirds required for Art.352, which is one reason Art.356 has been used so much more freely.
The Development of Judicial Control
Facts: After the general election of 1977 returned a new government at the Centre, the Union wrote to the Chief Ministers of nine States in which the previously ruling party had been heavily defeated, suggesting that they advise dissolution of their Assemblies since they had lost the confidence of the electorate. The States sued under Art.131 challenging the threatened action under Art.356.
Issue: Whether the President's satisfaction under Art.356 is justiciable.
Held: By majority the suits failed. The Court took a narrow view of justiciability, holding that the satisfaction under Art.356 is subjective and largely a matter of political judgment on which the Court is not equipped to pronounce, and that it could be examined only in the most limited circumstances, such as where the action was based on wholly extraneous considerations or was mala fide. It also accepted that a heavy electoral defeat at a general election to the House of the People could be a relevant consideration in judging whether a State Government retained the confidence of the people.
Relevance: The starting point, and now substantially superseded by S R Bommai. Cite it to show the earlier deferential position and the reasoning that the later case rejected, particularly the notion that the verdict in a parliamentary election bears on a State Government's mandate.
Facts: A Bench of nine Judges considered several Proclamations together. In Karnataka, the Governor reported that the Chief Minister had lost his majority on the strength of letters of withdrawal of support, without allowing him to face the Assembly, although he had asked for the opportunity. In Meghalaya a Proclamation followed disputed counting of votes. In Nagaland a Proclamation followed a split in the ruling party. In Madhya Pradesh, Rajasthan and Himachal Pradesh, Proclamations followed the demolition of the disputed structure at Ayodhya, on the ground that the State Governments could not be trusted to implement the constitutional commitment to secularism.
Issue: Whether a Proclamation under Art.356 is justiciable; what evidence establishes loss of majority; and what may be done pending parliamentary approval.
Held: The Court laid down the governing propositions.
First, the Proclamation is justiciable. The Court may examine whether there was any material at all and whether the material was relevant to the conclusion reached, though it will not sit in judgment on the sufficiency or adequacy of the material, nor substitute its own satisfaction.
Second, the burden lies on the Union to produce the material on which the satisfaction was reached.
Third, the floor of the House is the only forum for testing whether a Ministry enjoys majority support. A Governor's assessment based on letters, or on his own opinion of a party's cohesion, is no substitute, and the Karnataka Proclamation was struck down precisely because the Chief Minister was denied the chance to prove his majority in the Assembly.
Fourth, the Assembly may not be dissolved before both Houses of Parliament have approved the Proclamation. Until then it should at most be kept in suspended animation, since dissolution is irreversible and would defeat parliamentary control.
Fifth, if the Proclamation is struck down, the Court may restore the status quo ante, reviving the Assembly and the Ministry.
Sixth, federalism and secularism are basic features, and a State Government acting against the constitutional commitment to secularism may properly attract Art.356. On this footing the Proclamations relating to the three States after Ayodhya were upheld, while those relating to Karnataka, Meghalaya and Nagaland were held bad.
Relevance: The single most important case in this unit. An answer should set out the six propositions in order and identify which Proclamations were upheld and which struck down, since the case cuts both ways.
Facts: After an inconclusive election in Bihar the Assembly was kept in suspended animation and then dissolved before it had met even once, on the strength of the Governor's reports that attempts were being made to win over legislators by allurement and that a government so formed would not reflect the popular will.
Issue: Whether an Assembly that has never met may be dissolved on a report resting on apprehension of defection rather than on material.
Held: The Proclamation, so far as it dissolved the Assembly, was unconstitutional. A Governor's report cannot rest on surmise, conjecture or apprehension. He is not a constitutional guardian of political morality, and post-election realignment among parties is not by itself illegitimate. Since fresh elections had already intervened by the time judgment was delivered, the Court declined to restore the dissolved Assembly, granting a declaration instead.
Relevance: Applies and extends Bommai to the pre-first-meeting situation, and illustrates the practical limit of the remedy where events have overtaken the litigation.
The Sarkaria Commission's guidance, largely echoed in Bommai, is that Art.356 should be used sparingly and as a measure of last resort, that a warning should ordinarily precede it, that all alternatives should be exhausted, that the Governor's report should be a speaking document disclosing the material, and that the report should be made public.
Financial Emergency under Art.360
| Provision | Rule |
|---|---|
| Art.360(1) | The President may declare a Financial Emergency if satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of its territory is threatened |
| Art.360(2) | The Proclamation must be laid before each House and ceases at the expiration of two months unless approved by both Houses. There is no maximum duration; once approved it continues until revoked |
| Art.360(3) | The Union's executive power extends to giving directions to any State to observe such canons of financial propriety as may be specified, and such other directions as the President deems necessary |
| Art.360(4)(a) | Directions may include reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State |
| Art.360(4)(b) | Directions may require all Money Bills and other financial Bills passed by a State Legislature to be reserved for the President's consideration |
| Art.360(4) further | The President may direct the reduction of salaries and allowances of persons serving the Union, including the Judges of the Supreme Court and of the High Courts |
Two points of significance. First, this is the only circumstance in which the salaries of Judges may be reduced, the ordinary protection in Arts.125 and 221 being displaced. Second, the original Art.360(5), which made the President's satisfaction final and conclusive and not questionable in any court, was deleted by the 44th Amendment, 1978, so the Proclamation is now reviewable on the same footing as the others.
Illustrations
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Dismissal without a floor test: A Governor reports that the Chief Minister has lost his majority, relying on letters of withdrawal of support, and refuses him an opportunity to face the Assembly. Applying S R Bommai (1994), the floor of the House is the only test and the Proclamation is bad.
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Dissolution before approval: A Proclamation is issued and the Assembly dissolved the same week, before Parliament has approved it. Applying Bommai, dissolution before parliamentary approval is impermissible; the Assembly should be kept in suspended animation.
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Restoration of the status quo: A Proclamation is struck down and the Assembly had only been suspended. The Court may revive the Assembly and the Ministry.
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Assembly never met: An Assembly is dissolved before its first sitting, on a report apprehending horse trading. Applying Rameshwar Prasad (2006), the report rests on conjecture and the dissolution is unconstitutional.
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Sufficiency not examined: The Union produces material which is thin but relevant. The Court will not weigh its adequacy, its enquiry being confined to whether there was any material and whether it was relevant.
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Failure to obey a direction: A State refuses to comply with a lawful direction under Art.256. Under Art.365 the President may hold that constitutional machinery has failed, but the satisfaction remains reviewable and Art.356 is a last resort.
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Extension beyond one year: A Proclamation is extended into a second year with no national Emergency in force. This offends Art.356(5), which requires both a subsisting Proclamation under Art.352 and an Election Commission certificate.
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Three year limit: A State has been under President's Rule for three years and the Union seeks a further extension. Article 356(4) forbids it, three years being the outer limit.
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High Court powers: A Proclamation purports to transfer to the President the powers of the State's High Court. This offends the proviso to Art.356(1), which excepts High Courts entirely.
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Judges' salaries reduced: During a Financial Emergency the President directs a reduction in the salaries of High Court Judges. This is competent under Art.360(4), notwithstanding Art.221(2).
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State Money Bills reserved: During a Financial Emergency the President directs that all Money Bills passed by a State Legislature be reserved for his consideration. This is expressly permitted by Art.360(4)(b).
Recall Check
- State the three powers in Art.356(1) and the one matter expressly excepted by the proviso.
- Set out the six propositions in S R Bommai.
- What two conditions must be satisfied to extend President's Rule beyond one year?
Key Cases
S R Bommai v Union of India (1994) S R Bommai v Union of India 1994
Issue: Justiciability of a Proclamation under Art.356, the proof of loss of majority, and the permissibility of dissolution before approval.
Rule: The Proclamation is justiciable as to the existence and relevance of material but not its sufficiency; the floor of the House is the only test of majority; the Assembly may not be dissolved before parliamentary approval; federalism and secularism are basic features.
Held: The Karnataka, Meghalaya and Nagaland Proclamations were held bad, while those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh were upheld.
State of Rajasthan v Union of India (1977) State of Rajasthan v Union of India 1977
Issue: Whether the President's satisfaction under Art.356 is open to judicial scrutiny.
Rule: The satisfaction is subjective and reviewable only in the narrowest circumstances, such as mala fides or wholly extraneous considerations.
Held: The suits failed. The decision has since been substantially superseded by S R Bommai.
Rameshwar Prasad v Union of India (2006) Rameshwar Prasad v Union of India 2006
Issue: Whether an Assembly that has never met may be dissolved on a report apprehending defection.
Rule: A Governor's report cannot rest on surmise or conjecture, and post-election realignment is not by itself illegitimate.
Held: The dissolution was unconstitutional, though restoration was refused because fresh elections had intervened.
Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) Nabam Rebia v Deputy Speaker 2016
Issue: The extent of the Governor's discretion in dealing with a divided House.
Rule: Art.163 confers no general discretion, and the Governor may not interfere in the internal affairs of the House or take sides in a party dispute.
Held: The Governor's actions were unconstitutional and status quo ante was restored.
Distinctions
| Basis | Art.352 | Art.356 | Art.360 |
|---|---|---|---|
| Ground | War, external aggression, armed rebellion | Failure of constitutional machinery in a State | Threat to the financial stability or credit of India |
| Extent | Whole of India or a specified part | A particular State | Whole of India or a part |
| Approval period | One month | Two months | Two months |
| Approval majority | Two thirds present and voting, and a majority of total membership | Simple majority | Simple majority |
| Each continuance | Six months | Six months | No periodic renewal required |
| Maximum duration | No outer limit | Three years | No outer limit |
| Effect on State legislature | Continues; Parliament gains concurrent power | May be dissolved or suspended; Parliament exercises its powers | Continues, but financial Bills may be reserved |
| Effect on fundamental rights | Arts.358 and 359 operate | None | None |
| Times invoked | Three | Over a hundred | Never |
| Basis | State of Rajasthan (1977) | S R Bommai (1994) |
|---|---|---|
| Justiciability | Very narrow | Established, as to existence and relevance of material |
| Burden | Effectively on the challenger | On the Union to produce the material |
| Test of majority | Governor's assessment could suffice | Only the floor of the House |
| Dissolution | Not addressed as a limit | Not before parliamentary approval |
| Remedy | None practically available | Restoration of status quo ante |
| Electoral defeat at the Centre | Treated as a relevant consideration | Rejected as a ground |
Flashcards
What is the ground for a Proclamation under Art.356?
That a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution.
On what may the President act under Art.356(1)?
On receipt of a report from the Governor or otherwise, so a Governor's report is not indispensable.
What may the President not assume under Art.356?
Any of the powers vested in or exercisable by a High Court.
Within what period must a Proclamation under Art.356 be approved, and by what majority?
Two months, by a simple majority of both Houses.
What is the maximum duration of President's Rule?
Three years.
What two conditions apply to an extension beyond one year?
A Proclamation of National Emergency must be in operation in the whole of India or in the whole or part of the State, and the Election Commission must certify that continuance is necessary owing to difficulties in holding a general election.
What is the only forum for testing majority support?
The floor of the House (S R Bommai, 1994).
May the Assembly be dissolved before Parliament approves the Proclamation?
No. It should at most be kept in suspended animation.
How far may a court examine the material for the President's satisfaction?
It may examine whether there was any material and whether it was relevant, but not its sufficiency or adequacy.
On whom does the burden of producing the material lie?
On the Union.
Which two basic features were affirmed in *S R Bommai*?
Federalism and secularism.
Can a Governor's report rest on apprehension of horse trading?
No. Rameshwar Prasad (2006) held that surmise and conjecture will not do.
What is the ground for a Financial Emergency?
That the financial stability or credit of India or of any part of its territory is threatened.
What directions may be given during a Financial Emergency?
Directions to observe canons of financial propriety, to reduce salaries and allowances, and to reserve State Money Bills for the President's consideration.
Whose salaries may be reduced during a Financial Emergency?
Those of persons serving the Union or a State, including the Judges of the Supreme Court and the High Courts.
Has a Financial Emergency ever been proclaimed?
No.
What did the 44th Amendment do to Art.360(5)?
It deleted the clause making the President's satisfaction final and conclusive, so the Proclamation is now reviewable.
Exam Scenario
Problem: In State Y, thirty of the eighty members of the ruling party write to the Governor withdrawing support from Chief Minister Latha. Latha writes to the Governor asking to be allowed to prove her majority on the floor of the House at the earliest opportunity. Without summoning the Assembly, the Governor reports to the President that the Ministry has lost its majority and that money is changing hands. A Proclamation under Art.356 is issued the next day and the Assembly is dissolved the same evening. Parliament approves the Proclamation seven weeks later. Latha petitions the High Court. Meanwhile, faced with a fiscal crisis, the Union proclaims a Financial Emergency and directs State Y to cut the salaries of all its employees and of the Judges of its High Court by fifteen per cent, and to reserve all Money Bills for the President. Advise.
Step 1: Test the Proclamation against the floor test in S R Bommai
Applying S R Bommai v Union of India (1994), the floor of the House is the only forum for testing whether a Ministry retains majority support. Letters of withdrawal of support are no substitute for a division.
Latha had expressly asked for the opportunity and was denied it. This is on all fours with the Karnataka Proclamation in Bommai, which was struck down for precisely this reason, so the Proclamation is bad on this ground alone.
Step 2: Test the Governor's report for relevant material
Applying Rameshwar Prasad v Union of India (2006), a Governor's report cannot rest on surmise, conjecture or apprehension, and he is not a guardian of political morality.
Post-election or mid-term realignment among legislators is not by itself illegitimate, and the remedy for defection is the Tenth Schedule, not Art.356. The report is therefore not a speaking document disclosing relevant material.
The standard of review has moved a long way from the earlier position.
| Basis | State of Rajasthan v Union of India (1977) | S R Bommai v Union of India (1994) |
|---|---|---|
| Justiciability | Very narrow, the satisfaction being subjective | Established, as to the existence and relevance of the material |
| Sufficiency of material | Not examined | Still not examined; the enquiry stops at existence and relevance |
| Burden of producing material | Effectively on the challenger | On the Union |
| Test of majority | The Governor's assessment could suffice | Only the floor of the House |
| Standing today | Substantially superseded | The governing authority |
Step 3: Take the dissolution and the timing as separate points
Applying Bommai, the Assembly may not be dissolved before both Houses have approved the Proclamation. Until then it may at most be kept in suspended animation, because dissolution is irreversible and would defeat parliamentary control over the exercise of the power.
Dissolution on the very evening of the Proclamation is therefore unconstitutional irrespective of the merits of the Governor's report.
The approval after seven weeks raises no defect, being within the two month period allowed by Art.356(3), so the Proclamation had not lapsed.
| Basis | Art.356 | Art.352 |
|---|---|---|
| Period for approval | Two months | One month |
| Majority required | Simple majority of both Houses | Two thirds present and voting, and a majority of total membership |
| Position on these facts | Approval at seven weeks is good | The Proclamation would already have lapsed |
Step 4: Advise on the remedy, in this order
- Seek restoration of the status quo ante under Bommai, reviving the Assembly and the Ministry.
- Seek interim relief against the holding of fresh elections, since Rameshwar Prasad shows the Court may confine itself to a declaration once fresh elections have intervened.
- Failing restoration, take the declaration, which still establishes the invalidity of the Proclamation and of the dissolution.
Step 5: Test the Financial Emergency directions
| Direction | Authority | Validity |
|---|---|---|
| Observe canons of financial propriety | Art.360(3) | Competent |
| Cut salaries and allowances of persons serving State Y | Art.360(4)(a) | Competent |
| Reserve all State Money Bills for the President | Art.360(4)(b) | Competent |
| Cut High Court Judges' salaries by fifteen per cent | Art.360(4) | Competent, notwithstanding Art.221(2) |
Art.221(2) forbids variation of a High Court Judge's salary to his disadvantage during his term, but Art.360(4) expressly authorises the President to direct reduction of the salaries of Judges of the Supreme Court and the High Courts. A Financial Emergency is the only circumstance in which judicial salaries may be reduced, so the direction is valid.
The Proclamation itself remains reviewable, the original Art.360(5) finality clause having been deleted by the 44th Amendment.
The seven week approval is not a defect. Art.356(3) allows two months and a simple majority. Do not import the one month period and the two thirds majority from Art.352.
Dissolution is a separate ground from the floor test. It is void for having preceded parliamentary approval, whatever the merits of the Governor's report.
Sufficiency of the material is not reviewable. The enquiry is confined to whether there was any material and whether it was relevant, and the burden of producing it lies on the Union.
Restoration may be unavailable in practice. Rameshwar Prasad refused to revive a dissolved Assembly once fresh elections had intervened, so how quickly Latha moves decides her prospects.
Judicial salaries are not protected here. Art.221(2) yields to Art.360(4), and this is the only situation in which it does.
Conclusion. The Art.356 Proclamation is unconstitutional for denial of a floor test and for a report resting on conjecture. The dissolution is separately void for having preceded parliamentary approval. Restoration is available in principle if sought promptly. All the financial directions, including the reduction of judicial salaries, are valid.
See Also
- National Emergency (Article 352) : the third kind of emergency, and the comparison of thresholds and safeguards.
- The Governor and Councils of Ministers : the Governor's report and the limits of his discretion.
- Administrative Relations : Art.365, the gateway from non-compliance with a direction to Art.356.