Article-356 (Proclamation Of Emergency) Is Often Misused By Ruling Party
This Blog is written by Rithu from Ramaiah college of law, Bangalore. Edited by Oshin Suryawanshi.
According to article 356(1), if the president, after receiving a report from the state governor or other parties, believes that there is a situation where he cannot lead the state government in accordance with the provisions of the constitution, the president may issue a public announcement: carry out all or some of the functions of the state government, and all or some of the powers granted or exercised by the governor or any agency or authority in the state, except the state legislature. Declare that the powers of the state legislature may be exercised by or under the authority of Parliament. Formulate the incidental and corresponding regulations that the President deems necessary or desirable to achieve the objectives of the Proclamation, including regulations that suspend the implementation of any regulations related to any agency or authority in the state in whole or in part.
The exception of article 356(1), excludes the assumption of the authority of the Superior Court. The dissolution announcement must be approved by both houses of parliament within two months. The power provided for in article 356(1), is an emergency provision, but it is not absolute power. This power is conditional, and the condition is that the President’s satisfaction is constituted in accordance with article 356(1). Therefore, the President exercises power in special circumstances, because the emergency in itself means an abnormal situation, a situation that requires urgent corrective action. But, interestingly, Article 356 does not use the term “emergency”. The expressions of article 356 can be elaborated as follows:
‘On the receipt of a report from the Governor or otherwise, Like the President, the Governor is to act in accordance with the aid and advice of the Council of Ministers by virtue of Article 163(1). The Governor’s report for the imposition of Presidentʼs rule will fall within the ambit of the discretionary power as in Article 163(2) of the Constitution. This is so because the Governor cannot possibly act in accordance with the advice of the Council of Ministers, who cannot give a bit of advice prejudicial to their interest.’
The term “otherwise” means that the president can take action based on information received from sources other than the governor’s report. This includes reports from the Union Minister or the Council of Ministers. The president can only act on the recommendations of the Council of Ministers. It is also possible to order the dissolution when is fulfilled. In this case, the national government cannot execute it in accordance with the article of the Constitution. The president may be satisfied with the report itself based on the state governor’s report or other materials or just the report itself. Even if there is no report in, the president may consider other relevant materials for dissolution. Therefore, the expression “otherwise” has a very wide range. However, the governor is not a decision-making body according to article 356. His report will be reviewed by the Council of Ministers, and the final decision will be made by the President in accordance with article 174 of the Constitution. `There has been a situation in which, according to the provisions of this constitution, the state government cannot operate in. The article 356 uses the words “failure of the state constitutional mechanism “, and use “cannot” according to the provisions of the constitution. The following statement has a very broad meaning and therefore did not comply with all articles and of the Constitution. Main views in the Rajasthan lawsuit Union of India, according to Beg CJ) Chandrachud J, Bhagawati J and Fazl Ali J give expressions in its broader meaning, it is equated with “the rupture of the constitutional mechanism.” An explanation will be discussed in depth based on S.R.’s judicial decision. Bommai and Rameshwar Prasad cases. The term “satisfaction” does not refer to the personal satisfaction of the president, but a reasonable inference from the materials submitted to him. This satisfaction is the satisfaction of the Council of Ministers. According to Article 74(1), the President must act on the assistance and recommendations of the Council of Ministers.
JUDICIAL REVIEW UNDER SECTION 356
In several cases, the court has raised the issue of judicial review under section 356. The first such case occurred in the Kerala High Court of K.K. Aboo v Union of India. In this case, the court refused to include the announcement under section 356 in the constitutionality. Later in Rao Birender Singh v. Haryana, ruled that the president did not act on behalf of the federal administration when exercising powers under Article 356, but acted in a constitutional capacity. Therefore, some of the presidents are not subject to court jurisdiction. In A. Sreeramula, In Re, the scope is considered in more detail. It is considered that the prohibition of judicial review under Article 356 is because presidential satisfaction is basically a political issue. I want the first to enter an internal political issue. Andhra Pradesh High Court in Hanumantha Rao v. Andhra Pradesh and Orissa High Court in Bijayananda Patnaik v. President of India. Therefore, the court supported the actions of the central government. Interestingly, none of them is for consideration by the Supreme Court. The Supreme Court faced the issue for the first time in Rajasthan v. the United States. Union of India.
PRESIDENT S.R. BOMMAI CASE
Acted in accordance with article 356 of the Indian Constitution and promulgated presidentially reigns in six states between 1989 and 1992. These reigns were challenged at different moments and were judged by the Supreme Court of the Dominican Republic. Bommai vs. Union of India. The court almost unanimously held that in K.Ramaswamy J’s partial opposition case, the court made the following assertions:
(1)The announcement was based on constitutional concession based on considerations that have nothing to do with doing with the purpose or Power under Section 356, that is, the constitutional mechanism of a state collapses, or, in other words, there is no “reasonable link” between the reasons for disclosure and satisfaction. The President, because in this case it can be said that the ` of the President is not fulfilled, a condition for the exercise of the powers provided for in article 356.
(2) The exercise of power under section is malicious, because a statutory order lacking in good faith does not exist in the law. Judge K. Ramaswamy did not support the administrator’s satisfactory route. Note in the above paragraph pointed out: “Judicial review of the Presidential Proclamation is not concerned with the merits of the decision but to the manner in which the decision had been reached. The satisfaction of the President cannot be equated with the discretion conferred upon an administrative agency, of his subjective satisfaction upon objective material like in detention cases.”
The author argued that Bomai reached an agreement with Rajasthan in that judicial review cannot be abandoned because the issue caused political problems. The minimum review the area indicated by Rajasthan was abandoned in Bommai, giving it further scope and extension. Bommai’s observations will be critically analyzed in the project.
Article 356 of the Constitution of India authorizes the president to “if he is convinced that the state government cannot be implemented in accordance with the regulations, he may withdraw the executive and legislative powers of any state from the Constitution of the Federation.” As discussed, it can be used in the rarest cases when the situation is out of control and the centre is accountable to the country.
In summary, the Rameshwar Prasad judgment is likely to be seen as a brake on ‘s arbitrary exercise of the power to dissolve the Legislative Assembly and an affirmation of ‘s democratic and federal principles. However, two different viewpoints highlight the possible positions of more than viewpoints in this situation. Most people seem to insist on moderate use of Article 356, while a few people did not express such opinions. He believes that instead of forming a government illegally, it is better to dissolve the parliament. In terms of political ethics, the author agrees with the minority views.
However, constitutional morality allows alternatives, such as basic tests to judge the strength of the department, placing the legislature in suspended animation if the situation arises, the report of the governor’s speech/recommendations based on related materials presented by the Council of Ministers, etc. If such alternatives exist, the governor should test them before recommending the president’s rule. Furthermore, according to the recommendation of the Sarkaria Committee, appointing a governor is necessary to clarify the meaning of the expression “the state constitutional mechanism failed.” In recent years, the Bommai and Rameshwar Prasad judgments examined the abuse of Section 356 by. However, section 356 is still used. Therefore, the author concludes that the governor must act responsibly and must minimize the use of Section 356, making it only used in rare cases, so that conforms to the spirit of the drafters, and Section 356 is incorporated into the Constitution.