Monday, May 9, 2016


Article 365 of our Constitution Provides : "365. Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this 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 provisions of this Constitution."
Such a situation may happen where there is a crisis in numerical majority of the ruling party / coalition or where the confrontation between the state and central ruling ruling parties have reached a point of no-return but, that does not mean, the impasse can be allowed to go on. The invocation of the provision under this Article is coercive in nature. True, the Central Government has to direct the State Government for compliance of an instruction which has a constitutional validity. But, mere exercise of power is not enough because the central government has to prove beyond doubt . that the issuance of the direction was for greater public interests . The Hon'ble President does not exercise this power as a matter of routine, because, the state Government is also a constitutionally elected which cannot be dislodged by a single stroke of a pen. For a judicious application of this power, he may give due consideration to all relevant circumstances, including the response, if any, of the State Government to the direction. Mere non-compliance of a routine nature of thing cannot merit such a drastic step. It is desirable to ensure that, every insignificant aberration or a contravention of the constitutional provision of a technical nature does not culminate in the proposal for initiation of Art 365 process. So Art 365 is a process to see whether the remedial measure as provided in Art 355/356 , is applicable. One thing has to kept in mind, that Article 365 constitutionally validates the Presidential opinion that the a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. But it never prescribes that the acceptance of Council of Minister's recommendations accepted mandatory. It is the Presidential discretion to ensure the correctness / justification of application of such a drastic step.
When the Art 365 application has finally been approved by the Hon'ble President, there are two ways of dealing with the situations.
The Chief Minister and the Council of Ministers function to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (Art 163) provided there is no situation meriting the invocation of Art 365.  The Governor cannot dismiss his Council of Ministers so long as they continue to command a majority in the Legislative Assembly.  Conversely, he is bound to dismiss them if they lose the majority but do not resign.
355. Duty of the Union to protect States against external aggression and internal disturbance.—It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
As per this Article , the Central Government through the Hon’ble President may issue warning or stricture to the State Government , asking it to adhere to the provisions of Constitution. But, nowhere, such a process has been expressly written in any statute. But it seems most logical step.
If this application of Article 355 fails to deliver the desired result, that , that Article 356 of Constitution can be invoked. The provision says the following
356. Provisions in case of failure of constitutional machinery in States.—(1) 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, the President may by Proclamation—
(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 or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
But as per Constitutional experts ,  the power under Article 356 should be used very sparingly and only when President is fully satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
In the landmark judgement of the Hon’ble Apex court in S.R. Bommai vs Union Of India on 11 March, 1994 Equivalent citations: 1994 AIR 1918, 1994 SCC (3) 1(Bench: Pandian, S.R. (J), Ahmadi, A.M. (J) (J), Verma, J.S. (J) Sawant, P.B., Ramaswamy, K. & Agrawal, S.C. (J), Yogeshwar Dayal Reddy, B.P. (J) inter-alia the following were summarized
The Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) [which was introduced by 38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on the reviewability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken
If the court strikes down the Proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the Proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the Government/Legislative Assembly or other competent authority to review, repeal or modify such acts, orders and laws.

Also Buta Singh case: Governers Report must be verified by COM before being used as the basis for imposing President's Rule

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