President Rule Under the Emergency Provisions

Article submitted by Lakshay Mehta, Ideal Institute of Management and Technology, School of Law Delhi.

Introduction

India basically has the world's largest constitution i.e. originally the Indian Constitution when enacted was having 395 Articles, now it has 448 Articles, 25 parts and 12 schedules. Our Constitution gives us 6 Fundamental Rights (originally 7 Fundamental Rights -Right To Property was later Converted into Legal Rights) which are defined under the Part III of the Constitution . It gives us Fundamental Rights and also remedies if our Rights have been violated. When rights are been violated a person can appeal to Supreme Court via Article 32 and High court via Article 226. Our Constitution also provides measures and provisions that can be sought to if there is a mechanical failure or an extraordinary situation in the country under Part-XVIII . These provisions are basically called Emergency Provisions, so basically during the period of Emergency our Fundamental Rights can be overridden. So in this paper we will talk about the State Emergency/President Rule.

What is State Emergency/President Rule?

As Per Article 355, It shall be the duty of the Union to protect every State against the external aggression and the Internal Disturbance and to make sure that every Government of the State is carried on in accordance to the Constitution. Under Article 356 if the President is satisfied with the report of the Governor or otherwise there exists a great emergency in which the administration of the state cannot be followed in accordance with the provisions defined in the constitution. So, by invoking Article 355 the President can dismiss the State Government and take over the State administration to himself or his representative i.e. most likely the Government of that State will be administered by the President.

Questions Regarding the President Rule?

1. Is it Applicable on the Union Territories (UT)?

2. Is it Applicable on the Jammu and Kashmir?

3. How will it be Applicable on the States?

4. How does it Affects Our General Lives?

Answers

1. President Rule will be applicable only to 3 Union Territories: Delhi, Jammu & Kashmir and Pondicherry as they are only three Union Territories with legislation and President Rule is not applicable on the rest of Union Territories .

2. Yes President Rule will be applicable On Jammu and Kashmir because Jammu &Kashmir is Union Territory with legislation.

3. President Rule will be applicable on the States due to various reasons i.e war, postponement of elections etc

4. It does not effect our General Lives everything is normal despite President Rule.

Reasons for the President Rule:

1. The Governor prepares a report of the states, whether the states are following constitutional provisions or not, if president is satisfied from the report of Governor that particular state or States are not following constitutional provisions then the President Rule can be imposed there.

2. After the Prescribed time Period specified by the President, the State Government still unable to elect its Chief Minister then President Rule will be imposed till the state government elect its next Chief Minister.

3. If the President feels that the particular State or States are not following basic principle of the secularism then President Rule can be imposed there still situation is normal.

4. After the election if the party was indulged in wrongful practices, then the No confidence motion can be passed, if the Party fails to prove majority then President Rule can be imposed.

5. If the elections does not take on the prescribed time limit as suggested by the Parliament then president rule will be imposed.

Effects of the President Rule/State Emergency:

Executive: State Government is dissolved and the Executive power of the State has been transferred to Legislature.

Legislature: State Legislature does not function so basically State Legislature is dissolved or suspended.

Financial Relation: No impact on the distribution of Financial Resources from the Centre and State.

Amendments in the President Rule/State Emergency

1. 42nd Constitution Amendment Act, 1976 extended the Period of Emergency from 6 months to 1 Year.

2. 44th Constitutional Amendment Act, 1978 reverted the Period of Emergency from 1 year to 6 months. It basically divides maximum period of operation i.e. 3 years of the operation into the 1 year under the normal circumstances and max 2 years in which the two basic conditions must be satisfied :

a. A Report from the Election Commission in which the Election can’t be taken because of war, external rebellion etc.

b. A Proclamation of National Emergency (Art. 352) should be in operation in whole or a part of the State.

Basic Structure about How A President Rule Can Get Extension or Not

Parliament has to basically choose whether to cancel the President Rule in that State or The President Rule will be continuing due to the prevailing conditions. If there is no stand by the Parliament in less than 2 months then automatically President Rule shall be cancelled. If Parliament approves the President Rule then it get extended for another 6 months and after 6 Months if conditions are not good or conditions worsened ,then President Rule can get extension for 2 more years if two basic condition has been satisfied as mentioned above.

So Basically President Rule can get extension for Maximum 3 Years which is basically divided into 1 Year for Normal Circumstances and 2 Years for Extra Ordinary Situation i.e. as defined by the 44th Constitutional Amendment Act 1978.

How many times the President Rule has been implemented across the states?

Now a days we see in every social media platform that the State has implemented the president rule , so it has now become a common trend in democratic country India . Notably 27 of the 29 states comes under the President Rule at least once since 1950. The two states Chhattisgarh and Telangana has been the only exception of the President rule i.e. till now not a single news of these two states under any kind of President Rule.

The list of States where the President Rule was imposed maximum times:

1) Uttar Pradesh -10 times.

2) Bihar -9 times.

3) Kerala, Manipur, Orissa, Punjab – 8 times.

In which State President Rule was first implemented?

The first President Rule was imposed in the Punjab for a period of 302 days i.e. between 20 June 1951 and 17 April 1952. During the President Rule the Punjab Assembly was kept under suspension for Nine Months, Twenty Eight Days to Congress Government get its act together.

When maximum time limit for imposing President Rule is 3 years ,why the time limit under Section 356 has been increased in Punjab and Jammu And Kashmir ?

There are only 2 occasion when beyond the stipulated time period i.e. 3 years as defined by the Constitution :

1. Punjab was under the President Rule for 3510 days which is about 10 years ,much of this was happened in 1980s during the height of the militancy in Punjab, hence Punjab was under continuous lockdown between period of 1987 and 1992 .There is a special proviso in the constitution which applies only to the Punjab and it ends when the situation restores .

Proviso- {Provided also that in the Case of the Proclamation issued under the clause(1) on the 11th day of the May,1987 with the reference to the State Of Punjab, the reference in the first proviso to this clause to three years shall be construed as a reference to(five Year)} .

2. Jammu And Kashmir comes second as it was under the President Rule for 2061 days(close to 6 years) much of this was a continuous stretch between period of 1990 and 1996 .There is a special proviso in the Constitution which applies only to the Jammu & Kashmir it ends when the normal situation restores

Proviso-{Provided that in the Case of the Proclamation issued under the clause(1) on the 18th day of the July,1990 with the reference to the state of Jammu And Kashmir ,the reference in the first proviso to this clause to three years shall be construed as a reference to(seven years.)}

Case Laws

1. Hargovind Pant V/s Dr.Raghukul Tilak & Ors[i] : The main issue in this case was whether a Governor can be considered a employee of the Government Of India or not. The Rajasthan High Court held that even though Governor is appointed by the President himself but it is only a mode of appointment, so Governor is not the employee of the state.

2. Rameshwar Prasad V/s Union Of India[ii] : This case is also known as Bihar Dissolution Case .The main facts of the case that the elections took place in state of Bihar in the year 2005 by the election Commission of India and its results was out by the year 2005 .The Bihar Assembly consists of total 243 seats and party to come into power & form a government requires to cross the golden mark of 122 seats . Since After the Election no party individually or with collation can form the government which results in the imposition of the President Rule. Following the imposition of the President Rule, Top two major coalition parties (BJP- NDP & RJD-JDU) were indulged in the wrongful practice .Then the Governor of Bihar bought the situation before the Hon’ble President Abdul Kalam, but it was unnoticed but after the second letter this matter was taken seriously. This lead to emergency meeting with the President , which took the decision to dissolve the Bihar Legislative Assembly even before Assembly had its first meeting .Thus it was held that the Presidential proclamation dissolving State Assembly under Art 356 was held unconstitutional on extraneous and irrelevant ground.The Court held that the State Governor misled the Centre in recommending dissolution of the State Assembly .

3. S.R Bommai V/s Union Of India [iii]:This case is one of the Landmark Cases of the Constitutional Law. The main facts of the case were: Janata Dal Party in the power led by the S.R. Bommai. After the few days, some of the member of the Janata Dal Party left , So the main question was whether the Janata Dal Party was in majority or not . So the Floor test was suggested by the S.R. Bommai to showcase whether the Party has the majority or not, but the Governor refuses and Article 356 was applied in the State of Karnataka. This decision was challenged by the S.R. Bommai in the Supreme Court. The Supreme Court held that Article 365 gives :

a. President conditional powers not the absolute powers.

b. President Satisfaction must be relevant, not subjective, mala fide, irrational.

Supreme Court held that the Presidential Proclamation on the State Of Karnataka was held unconstitutional because satisfaction was not based on the relevant ground.

Certain Principles was laid down in this case:

1. Art 356 gives President extra ordinary powers.

2. Art 356 does not give absolute powers to the President.

3. President Rule can be subjected to Judicial Review.

4. A new ground for invoking Article 356 was Secularism: if the Government feels that the Secularism Principle is not followed in the particular state, then Article 356 can be implemented.

Criticism

Article 356 has been widely criticized on the ground that it gives certain provisions to the party, coalitions in the Centre to misuse its democratic powers. Since the introduction of the Article 356, D.R. B.R. Ambedkar called this the death letter in the Indian Constitution. The rival Party running in the different state governments was dissolved by those at the Centre by making misuse of this article.

Conclusion :

Since after the introduction of the Article 356 there are many situations in which this article was widely misused by the Party who is basically in power by just dissolving the rival party running in the various State Governments with the help of Article 356 . After the landmark case of S.R. Bommai the strict enforcement of the test of majority of council of ministers on floor of the Assembly must be ensured, as decided by the Supreme Court. So in fact the use and misuse of the provisions regarding the President Rule will depend on the intention of ruling party or coalition at the centre. As The Rajendra Prasad once said “We have developed a democratic constitution but for the successful working of that institution we need those people who have willingness to respect the view point of the others & capacity for the compromise also. So our Country India needs today nothing more than a honest man who will have the interested to protect the country at the first place.

[i] 1979 AIR 1109, 1979 SCR (3) 972 [ii] Writ Petition (civil) 257 of 2005 [iii] 1994 AIR 1918, 1994 SCC (3) 1