Emergency powers and President's Rule under Article 356

1. The scheme of Part XVIII

The 44th Amendment also required that a proclamation under Article 352 be made only on the written advice of the Union Cabinet, that it be approved by each House by a special majority within one month, and that the Lok Sabha may disapprove it by a simple majority. It removed the 38th Amendment’s clause making the President’s satisfaction final, and restricted extension of President’s Rule beyond one year (Article 356(5)).

2. The lesson of 1975–77

During the internal emergency the Supreme Court held in ADM Jabalpur v. Shivkant Shukla (1976) that while enforcement of Article 21 was suspended under Article 359, no detenu could seek habeas corpus. Khanna J’s lone dissent, that the right to life does not owe its existence to the Constitution and cannot be extinguished by executive order, is now the law. The majority was expressly overruled in K.S. Puttaswamy v. Union of India, 2017 INSC 801, and the 44th Amendment made Articles 20 and 21 non-suspendable. In theory this is Carl Schmitt’s problem: the sovereign is the one who decides on the exception. The Indian answer after 1978 is to make the exception itself subject to law.

3. Article 356 before Bommai

Ambedkar hoped the provision would remain a dead letter, used only as a last resort. In practice it was invoked often, including mass dismissals of opposition State governments in 1977 and 1980. In State of Rajasthan v. Union of India (1977) the Court treated the question as largely political and declined to interfere. The Sarkaria Commission (1988) found that a large share of proclamations had been made for political reasons and recommended that the provision be used sparingly, after warning to the State, and that the floor of the House be the test of majority.

4. S.R. Bommai v. Union of India (1994)

A nine-judge Bench in S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, considered the dismissal of the Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh governments. The propositions to learn:

1. A proclamation under Article 356 is justiciable. The President’s satisfaction is subjective but must rest on relevant material; the court may examine whether there was material, whether it was relevant, and whether the power was used mala fide or on extraneous grounds.
2. Article 74(2) bars inquiry into the advice tendered, not into the material on which it was based. The Union must disclose that material.
3. The question of majority must be tested on the floor of the House, not in the Governor’s chamber.
4. The Legislative Assembly should not be dissolved until both Houses of Parliament have approved the proclamation; until then it may only be kept in suspended animation. If Parliament disapproves, or the court strikes down the proclamation, the dismissed government and assembly may be restored.
5. Secularism and federalism are basic features. A State government that pursues unsecular policies may be said to be failing to carry on government in accordance with the Constitution; on that basis the dismissals of the BJP governments after the 1992 demolition were upheld.

The Karnataka, Meghalaya and Nagaland proclamations were held unconstitutional, though relief was moulded because fresh elections had intervened.

5. After Bommai

• Rameshwar Prasad v. Union of India, 2006 INSC 42, (2006) 2 SCC 1: the dissolution of the Bihar Assembly in 2005, before any government had been formed, to prevent an alleged attempt to form one by inducements, was unconstitutional. The Governor’s report was based on no relevant material, and the Governor cannot refuse a claim to form a government on the speculation that the majority was obtained improperly. The Court did not restore the dissolved House, as elections were under way.
• Nabam Rebia v. Deputy Speaker, 2016 INSC 526: the events in Arunachal Pradesh leading to President’s Rule rested on unconstitutional actions of the Governor, and the status quo ante was restored. The Uttarakhand episode in the same year was resolved by a floor test ordered by the Court.
• In re: Article 370 of the Constitution, 2023 INSC 1058: while upholding the 2019 abrogation, the Court considered actions taken when Jammu and Kashmir was under President’s Rule. It held that the exercise of power under Article 356 is subject to judicial review, but that not every decision taken during the proclamation can be challenged as an ordinary administrative act; a challenger must show that the action was mala fide or extraneous, and that there is no reasonable nexus with the purpose of the proclamation. Critics argue that allowing irreversible constitutional changes during President’s Rule, when no State legislature exists to consent, sits uneasily with the federal reasoning of Bommai.

6. Articles 355 and 365: the Union’s duty and its directions

The syllabus asks about the Centre’s responsibility for internal disturbance within States and its directions to States. Article 356 is the last step in a sequence that begins elsewhere.

• Article 355 imposes a duty on 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 Constitution. Ambedkar presented it as the justification for Article 356: because the Union bears the duty, it needs the power. In Bommai several judges read the two together, so that Article 355 supports lesser measures (advice, warnings, deployment of forces) before the drastic step of a proclamation.
• Deployment of forces. Entry 2A of List I, added by the 42nd Amendment, lets the Union deploy armed and other forces in aid of the civil power in a State. In Naga People’s Movement of Human Rights v. Union of India, 1997 INSC 763, a Constitution Bench upheld the Armed Forces (Special Powers) Act, 1958, including the Union’s power to declare an area “disturbed”, but required the declaration to be for a limited period and reviewed periodically, and laid down do’s and don’ts for the forces.
• Article 355 as a justiciable duty. In Sarbananda Sonowal v. Union of India, 2005 INSC 287, the Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, holding that large-scale illegal migration into Assam amounted to “external aggression and internal disturbance” and that the Act made it impossible for the Union to discharge its Article 355 duty.
• Directions. Article 256 requires States to exercise executive power so as to ensure compliance with Union laws, and Article 257 requires them not to impede the Union’s executive power; the Union may give directions under both. Article 365 provides that if a State fails to comply with such directions, the President may hold that a situation has arisen in which its government cannot be carried on in accordance with the Constitution, opening the way to Article 356. The Sarkaria Commission recommended that Article 365 be used only after the State has been given a chance to explain and comply, and Bommai subjects any such finding to the same review.

The Punchhi Commission (2010) proposed “localised emergency” under Article 355 for a district or part of a State, so that the Union could act against local breakdown without displacing an elected government. The proposal has not been enacted, but it states the modern view: the Union’s response should be proportionate to the disturbance.

7. Comparative perspective

Article 48 of the Weimar Constitution (1919) let the President suspend rights and govern by decree, and its use in 1930–33 is the standard warning. The German Basic Law responded by placing emergency powers in Parliament’s hands and by making the core of rights unamendable (Article 79(3)). The United States Constitution has no general emergency clause; Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer (1952) set out a three-category test of presidential power that Indian writers borrow when asking whether the executive acts with, without or against the legislature’s will. Article 4 of the ICCPR permits derogation only in a public emergency threatening the life of the nation, officially proclaimed and strictly required, and never from certain rights, including the right to life and freedom from torture.

How this is examined

Expect “Critically examine the Supreme Court’s approach to Article 356 with special reference to S.R. Bommai”, or a question on the 44th Amendment safeguards, or a problem: a Governor reports a breakdown after a split in the ruling party and recommends dissolution. Apply Bommai in order: material, relevance, floor test, no dissolution before parliamentary approval, restoration as remedy, and cite Rameshwar Prasad on Governors’ reports. For a question on the Union’s responsibility for internal disturbance, or on Articles 355 and 365, use section 6.