CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA 823001

Failure of Constitutional Machinery in

State under Constitution of India

SUBMISSION TO

Mrs. Poonam Kumari

Asst. Professor

School of Law and Governance

CONSTITUTIONAL LAW – II

ASSIGNMENT BY - JATA SHANKAR

(3nd Sem)

[Failure of Constitutional Machinery in State under Constitution of India] Page1

 ENROLLMENT NO :-
CUSB1713125017

ACKNOWLEDGEMNT

Every project big or small is successful largely due to the effort of a number of wonderful souls
who have always given their valuable advice and lent their helping hands.

I owe my sense of gratitude to almighty god for showing his blessing throughout the completion
of this project. I am highly indebted to “Mrs Poonam Kumari” for her guidance and constant
supervision as well as for providing necessary information regarding the project during class
lectures. However, it would not have been possible without the kind support and help of many
individuals and organizations. I would also like to extend my gratitude to my colleague,
librarian, and non- teaching staff who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned above. The subject matter of the
project work is very revolutionary and it helped me a lot to know and learn about articles and
provisions mentioned under Indian constitution.

Last but not the least I place a deep sense of gratitude to my family members who has been
constant source of inspiration during the presentation of this project.

Jata Shankar

[Failure of Constitutional Machinery in State under Constitution of India] Page2

 CONTENT

INTRODUCTION........................................................................................................................................4-5
Right to Information and constitution of India..........................................................................................7
Right to know under article 21……………………………………………………………………………………………………….9
Article 19 .............................................................................................................................................9

Evolution of Right to Information.............................................................................................11

Case laws...........................................................................................................................11-14

Right to Information in International Forum..........................................................................16

Limitation of RTI.........................................................................................................................18

Conclusion....................................................................................................................................19

Biblography.................................................................................................................................20

[Failure of Constitutional Machinery in State under Constitution of India] Page3

 Introduction

Indian constitution came up with a quasi federal model of governance, which means that our
constitution is primarily a unitary constitution with few federal flavours. 1 In cases of acute
necessity our constitution turns out to be a unitary constitution, as like in case of emergency
where the overriding power in respect of legislation and execution of such legislation is left
within the purview of centre. Our constitution makers were concerned about the federal structure
of governance, but in case when the sovereign is itself in danger, they decided it’s better to
preserve the sovereign in opposite to camouflage as a federal polity. Framers of constitution were
also aware about the fact that India being a country with a lot of diversities and socio- economic
disparities, the security of the country has to be taken seriously and the Union has to be given
enough power so as to protect the states from any kind of external aggression or internal
disturbances.2

Article 356 provides for imposition of president’s rule in states to combat a situation in which the
government of the state cannot be carried in accordance with the provisions of this constitution. 3
The constitution framers sought it to be the ‘last resort’ after exhausting all other relief
available.4 But the idea about ‘president rule’ of the drafting committee wasn’t far away from its
exploitation. Article 356 was increasingly used as a political weapon. The indiscriminate use of
this provision made H.V. Kamath remark, ‘if Dr. Ambedkar would have been alive today he
would have concerned about the fact that it is not mending the constitution but ending it.’5

Article 356, and the way it has been put to use in recent years, is a matter of debate. This article
was referred to as dead letter by B. R. Ambedkar, Chairman of the Drafting Committee. 6 Even

1
2
3
4
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949), p. 177
[Hereinafter Constituent Assembly Debate].
5
6
CONSTITUENT ASSEMBLY DEBATE, Supra note 4
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though, this article is exploited by the bureaucrats more than any other provision of this
constitution. Article 356 not only negates the federal character of the Indian Political System,
but also militates against the democratic doctrine of “popular sovereignty” since an elected
government is suspended whenever President’s rule is enforced. Judicial review of President’s
rule clamping Article 356 was completely shut out during the emergency by the 38th
Amendment.7 However, it was revoked by the 44th Amendment. The provision under article 356
came up with disruption within the pillars of democracy.

Thus, the critical analysis of these provisions becomes the subject matter of this assignment
besides explaining the scope of these provisions, the amendments under it and the change that
has taken place in its implementation over the period of time.

Constitutional Provisions

The procedure and functionary of ‘president rule’ can be understood with the collaboration of
article 355, 356 and 357.
7

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Article 355 imposes an obligation upon the Centre to ensure that each State Government is
carried on in accordance with the Constitution while Article 356 was designed to strengthen the
hands of the Centre to discharge this obligation and to protect a State against necessary
circumstances, the framers of the Constitution felt it important not to bind the Centre to act under
Article 356 on Governor's report.8 Article 357 confers powers to the Parliament to exercise at the
time of President's rule.

Article 355 imposes two duties on the Union of India :-

(i) to protect every state from external aggression and internal disturbance

(ii) to insure that the government of every state is carried on in accordance with the provisions of
the constitution. 9

The two limbs of Article 355 are not interdependent as constitutional break-down can take place
in a state even without there being a situation of ‘external aggression’ or ‘internal disturbance’. 10
Thus it means a situation like external aggression and internal disturbance must be accomplished
with failure of constitutional machinery for proclamation of president rule. But a mere failure of
constitutional machinery notwithstanding with external aggression and internal disturbances is
compatible for pronouncement of this type emergency.

Justifying the inclusion of article 355 in the Constitution Dr. Ambedkar suggest the Constituent
Assembly that in view of the fact that the Constitution provided for two sets of governments –
Union and the States – each of them assigned with some specified powers and neither of them
can interfere in the authoritative jurisdiction of other unless expressly provided in the
constitution.11

Thus this article contains all the circumstances in which centre can take suo moto for protection
of states.

8
9
10
11

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 Invocation

A bare perusal of the title of the Article gives the idea about its invocation i.e. in case of ‘failure
of the constitutional machinery in States’. But what actually constitutes this failure is a question

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of interpretation, as this expression can be given indefinite connotations. But, some situations of
the breakdown of the constitutional machinery can be laid down as follows:

1. No party in the Assembly has a majority in the State Legislative Assembly to be able to form
government.

2. A government in office loses its majority due to defections and no alternative government can
be formed.

3. A government may have majority support in the House, but it may function in a manner
subversive of the Constitution.

4. The State Government does not comply with the directions issued by the Central Government
under various constitutional provisions.

5. Security of the State may be threatened by a widespread breakdown of law and order in the
State. 12

One of the latest examples of invocation of this Article could be that of Delhi when it was
recently placed under the President’s rule from 14 February, 2014 – 11 February, 2015 due to
resignation given by Arvind Kejriwal from the post of Chief Minister.

History

Having just gained independence after a long and continuous struggle, the people of India would
naturally have the greatest interest in preserving all the freedoms envisioned in a democratic
society. If the members of the Drafting Committee of the Constitution included a provision that
permits a Government to dismiss a duly elected representative body of the people and suspend
12
M.P. Jain, Indian Constitutional Law; at p. 742 (8th Ed., 2011), LexisNexis Butterworths Wadhwa.
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those freedoms in violation of even the crudest interpretation of a ‘separation of powers,’ then
common sense suggests that it is only to deal with the direst of circumstances and nothing less.
But it seems that the remedial nature of the Article has been perverted to impose the domination
of the Central Government upon a State Government that does not subscribe to its views. Central
control over regional governments is essential for the integrity of nations that have federal
systems of government, and Article 356 was designed to preserve this integrity, but what remains
to be seen is whether it is being used at the cost of sacrificing the interests democratic freedom.

The development of Art. 356 can be assessed with help of these few instruments and incidents:

The Government of India Act, 1935

This Act first introduced the concept of ‘Division of Powers’ in British India. It was an
experiment where the British Government entrusted limited powers to the Provinces. But since
there was very little faith lost between the British and the Indian people, the British took
precautions to keep a sufficient check on the powers given to the Provinces. These precautions
were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where
the Governor General and the Governor, under extraordinary circumstances, exercised near
absolute control over the Provinces.13

Drafting Committee of the Constituent Assembly

On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the
chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the
course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635
amendments tabled.14 When it was suggested in the Drafting Committee to confer similar powers
of emergency as had been held by the Governor-General under the Government of India Act,
1935, upon the President, many members of that eminent committee vociferously opposed that
idea. Dr. Baba saheb Ambedkar then pacified the members stating:

13
See Jain M.C, Kagzi, The Constitution of India (1958).
14
See Dhavan, Rajeev & Jacob,Alice, Indian Constitution (1978).
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‘In fact I share the sentiments expressed by my Hon’ble friend Mr. Gupte yesterday that the
proper thing we ought to expect is that such articles will never be called into operation and that
they would remain a dead letter. If at all they are brought into operation, I hope the President,
who is endowed with these powers, will take proper precautions before actually suspending the
administration of the provinces.’

He added: ‘I hope the first thing he will do would be to issue a clear warning to a province that
has erred, that things were not happening in the way in which they were intended to happen in
the Constitution.’ By virtue of this earnest advice given by the prime architect of the Indian
Constitution, we can safely conclude that this is the very last resort to be used only in the rarest
of rare events. A good Constitution must provide for all conceivable exigencies. Therefore this
Article is like a safety valve to counter disruption of political machinery in a State. Article 355
states: ‘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.’ The word ‘otherwise’ in Article 356(1) was not included
in the original draft; it was later introduced through an amendment, despite protests from
members of the original Drafting Committee, stating that it was an open invitation to abuse the
Article. Dr. Ambedkar justified its introduction saying that Article 277A (now Article 355, cited
above) imposed a duty upon the Center to ensure that the States are governed in accordance with
constitutional provisions and that hence it would not be proper for the President to base his
decision solely on the report of the Governor of the State.

An analogy between Article 356 and Sections 45 and 93 of the Government of India Act,

1935

There are certain differences in the provision relating to the failure of the constitutional
machinery under the present Constitution and the powers dealt with in Sections 45 and 93 of the
Government of India Act, 1935. Firstly, the 1935 Act empowered the Governor-General to deal
with a failure of the constitutional machinery at the Center (Section 45). It also empowered the
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Governor-General to deal with a similar situation in a Province (Section 93). The present
Constitution, however, does not intend to suspend the Constitution of a State, but empowers the
President to take steps in this regard, though he shall have to act on the report of the Governor or
Ruler of the State. Secondly, under Section 93 of the 1935 Act, the executive and legislative
powers of a State could be assumed by the Governor, acting at his discretion. The present
Constitution has separated the two powers: the President, assuming executive powers, and the
Union Parliament, assuming legislative powers.

Recommendations of Sarkaria Commission Regarding Article 356

The Sarkaria Commission recommended extremely rare use of Article 356. The Commission
observed that, although the passage, ‘. . . the government of the State cannot be carried on in
accordance with the provisions of this Constitution . . .’ is vague, each and every breach and
infraction of constitutional provisions, irrespective of their significance, extent, and effect,
cannot be treated as constituting a failure of the constitutional machinery.

According to the Commission, Article 356 provides remedies for a situation in which there has
been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this
drastic power would damage the democratic fabric of the Constitution. The report discourages a
literal construction of Article 356(1).15 The Commission, after reviewing suggestions placed
before it by several parties, individuals and organizations, decided that Article 356 should be
used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a
breakdown of constitutional machinery in a State. Before taking recourse to the provisions of
Article 356, all attempts should be made to resolve the crisis at State level.

15
Hasan, Zoya & E. Sridharan, India's Living Constitution: Ideas, Practices,Controversies, (2002).
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 Procedure of Invocation of Emergency

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 Misuse of Emergency

“No provision of the Constitution has been so often used, misused,

and abused as Article 356,

108 times since 1954”.16

Any legislation or constitutional provision that abrogates any of the basic principles of democratic
freedom is anathema to most people and the more so to the people of the largest democracy in the world

. If the members of the Drafting Committee of the Constitution included a provision that permits a
Government to dismiss a duly elected representative body of the people and suspend those freedoms in
violation of even the crudest interpretation of a ‘separation of powers,’ then common sense suggests that
it is only to deal with the direst of circumstances and nothing less

16
10 D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA, 19th ed., p. 483
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 Judicial Review

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 Case laws

Before analyzing the Pre and Post Bommai Era cases or incidents one needs to be aware of the landmark
case of S.R Bommai v. Union of India. S. R. Bommai v. Union of India was a landmark in the history of
the Indian Constitution. It was in this case that the Supreme Court boldly marked out the paradigm and
limitations within which Article 356 was to function. In the words of Soli Sorabjee, eminent jurist and
former Solicitor-General of India, ‘After the Supreme Court’s judgment in the S. R. Bommai case, it is
well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is
manifest that there is an impasse and the constitutional machinery in a State has collapsed.’ The views
expressed by the various judges of the Supreme Court in this case concur mostly with the
recommendations of the Sarkaria Commission and hence need not be set out in extenso. However, the
summary of the conclusions of the illustrious judges deciding the case, given in paragraph 434 of the
lengthy judgment deserves mention:

(1) Article 356 of the Constitution confers a power upon the President to be exercised only where he is
satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance
with the provisions of the Constitution. Under our Constitution, the power is really that of the Union
Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is
subjective in nature.

(2) The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute
power. The existence of material - which may comprise of or include the report(s) of the Governor - is a
pre-condition. The satisfaction must be formed on relevant material. The recommendations of the
Sarkaria Commission with respect to the exercise of power under Article 356 do merit serious
consideration at the hands of all concerned.

(3) Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of
Article 356, it must be held, having regard to the overall constitutional scheme that the President shall
exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not
before. Until such approval, the President can only suspend the Legislative Assembly by suspending the
provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The
dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is
found necessary for achieving the purposes of the Proclamation.

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(4) The Proclamation under clause (1) can be issued only where the situation contemplated by the clause
arises. In such a situation, the Government has to go. There is no room for holding that the President can
take over some of the functions and powers of the State Government while keeping the State Government
in office. There cannot be two Governments in one sphere.

(5) (a) Clause (3) of Article 356 is conceived as a check on the power of the President and also as a
safeguard against abuse. In case both Houses of Parliament disapprove or do not approve the
Proclamation, the Proclamation lapses at the end of the two-month period. In such a case, Government
which was dismissed revives. The Legislative Assembly, which may have been kept in suspended
animation gets reactivated. Since the Proclamation lapses — and is not retrospectively invalidated – the
acts done, orders made and laws passed during the period of two months do not become illegal or void.
They are, however, subject to review, repeal or modification by the Government/Legislative Assembly or
other competent authority.

(b) However, if the Proclamation is approved by both the Houses within two months, the Government
(which was dismissed) does not revive on the expiry of period of the proclamation or on its revocation.
Similarly, if the Legislative Assembly has been dissolved after the approval under clause (3), the
Legislative Assembly does not revive on the expiry of the period of Proclamation or on its revocation.

(6) Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was
tendered by the Ministers to the President. It does not bar the Court from calling upon the Union Council
of Ministers (Union of India) to disclose to the Court the material upon which the President had formed
the requisite satisfaction. The material on the basis of which advice was tendered does not become part of
the advice. Even if the material is looked into by or shown to the President, it does not partake the
character of advice. Article 74(2) and Section 123 of the Evidence Act cover different fields. It may
happen that while defending the Proclamation, the Minister or the official concerned may claim the
privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in
accordance with the provisions of Section123.

(7) 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 the 38 th (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

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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.

(8) 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. 17

Thus it can be seen from the conclusions of this Bench of the Supreme Court that the President’s power
under Article 356 is not absolute or arbitrary. The President cannot impose Central rule on a State at his
whim, without reasonable cause.

The present situation in India shows that the ‘dead-letter’ provision - as Dr. Ambedkar hoped it would be -
has become a frequently invoked, not-so-dead Article; it has been activated more than a hundred times till
today.18 The National Commission to Review the Working of the Constitution (NCRWC), which was
established on February 22, 2000, on the basis of a joint resolution of the Government of India, Ministry
of Law, Justice and Company Affairs (Department of Legal Affairs), submitted its extensive report in
March 2002.19 In its analysis, the NCRWC stated that in at least twenty out of the more than one hundred
instances, the invocation of Article 356 might be termed as a misuse. It is difficult to believe that, during
his tenure as the Governor of the State of Uttar Pradesh, Romesh Bhandari made any real effort to install
a popularly elected government or to conduct a constitutionally mandated floor-test to test the strength of
the Legislative Assembly in the State for identifying a majority party before prompting the application of
the Article by the President.20 After the fall of the Mayawati Government in the State of Uttar Pradesh, it
might have been justifiable to impose President’s Rule. But it was also necessary to hold fresh elections
as soon as possible. The mala fides of the Union Executive in preventing the assumption of office by an
unfavorable political entity became clearly manifest in Governor Bhandari’s actions and the decision of
the United Front Government at the Center, to re-impose President’s Rule in Uttar Pradesh. The worst
damage may possibly have been done through the office of the Governor, because the Governor cannot be
held responsible for his or her actions. H. M. Seervai pointed out that the Governor can be removed only
by the President and that the President acts on the advice of the Council of Ministers; hence the Governor
is in office pretty much at the pleasure of the Union Executive. 21 This may act as a bias whenever the
Governor’s duty requires him to go against the desires of the Union Executive. In its report, the NCRWC

17
Ibid.
18
Pylee, M.V, Our Constitution Government & Politics, (2002).
19
Basu, Durgadas, Commentary on the Constitution of India, (1989).
20
Ibid.
21
Seervai,H.M, Constitutional Law of India, (1996).
[Failure of Constitutional Machinery in State under Constitution of India] Page17
recommended that the President should appoint or remove the Governor in consultation with the Chief
Minister of the State. This may act as a restraint on the misuse of power by the Office of the Governor.
Another example of misuse of Article 356 was the imposition of President’s Rule in the State of Gujarat
from September1996 to October 1996, following the incidents of violence indulged in by members of the
Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be
treated as an instance of failure of the constitutional machinery; it would otherwise become very easy for
malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the
Assembly and thereby prompting improper invocation of Article 356. 22 The correct procedure to be
followed in such a situation is to pass suitable legislation for disqualifying the guilty legislators.

On the other extreme of misuse of Article 356 was the failure of the Union Executive – which was of the
same political belief as the Government of Narendra Modi in Gujarat - to invoke Article 356 during the
carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat. To quote the
words of Fali Nariman, noted lawyer and nominated member of the Upper House (Rajya Sabha) of the
Indian Parliament during a parliamentary debate: ‘Vital statistics tells us that there are more than 100000
persons in refugee camps and more than 30,000 people have been chargesheeted. Are these figures not
enough to compel the Government to take action under articles 355 and 356?’ Fali Nariman also rightly
pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged
a situation where an emergency has arisen in a State where the ruling party is of the same political
persuasion as the one at the Center and, hence, the Center might be biased against dissolving that
government by invoking Article 35623. He also pointed out that the word ‘otherwise’ in the text of Article
356 becomes instrumental in such a situation to allow the President to act without waiting for the
‘Governor’s Report.

22

23
Sorabjee, Soli J., Law & Justice An anthology, (2006).
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[Failure of Constitutional Machinery in State under Constitution of India] Page19
 CONCLUSION

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 BIBLIOGRAPHY

BOOKS -
 Introduction to the Constitution of India ( D D Basu )
[Failure of Constitutional Machinery in State under Constitution of India] Page21
  Bare Act- The Constitution of India
 Constitutional law of India ( V N Shukla )


INTERNET –


 Lawoctopus.com
 Indiankanoon,com

UNPUBLISHED SOURCES –

[Failure of Constitutional Machinery in State under Constitution of India] Page22