Deconstructing Article 356: The Role of Judicial Review in Shaping Centre-State Dynamics

Authored by Devansh Yadav, a 3rd-year law student at National Law School of India University, Bangalore.

Supreme Court of India

Introduction

Article 356 falls under Part XVIII, titled “Emergency Provisions” of the Indian Constitution. It is modelled on Section 93 of the Government of India Act, 1935, which gave the Governor the authority to take sole responsibility for a province’s administration if its governmental machinery broke down. The purpose of Article 356 is underscored by Article 355, which states that it is the Union’s duty to protect every State from “external aggression and internal disturbances” and to ensure that the state government operates in line with the Constitution.

This paper will examine Article 356 within a quasi-federal framework and analyse how the Supreme Court has applied “Principled Caution” in its judicial review of proclamations under Article 356. The initial section of the paper will discuss the court’s judicial review process, arguing that the court, while adhering to “Judicially Manageable Standards”, has found objectivity within the provisions’ subjective standards. It uses “Principled Caution” to find a middle ground and take a more expansive view of its powers. The subsequent section will focus on the aftermath of the S.R. Bommai case, illustrating how the imposition of judicial review has been reduced due to judicial scrutiny. Despite this, the central government has continued to impose an emergency under Article 356 for political gain arbitrarily. Ultimately, this paper will show that the “Principled Caution” approach has made the court’s task arduous and its proceedings longer, ultimately weakening the dissolved state government. This situation necessitates institutional guidelines to check the President’s power under Article 356.

Judicial Review of Emergency: The Case of Principled Caution

Dr. Ambedkar believed that during emergencies, citizens should have their primary loyalty to the Centre rather than to their State. He contended that only the Centre could work for the country’s common good and general interests. The proclamation of emergency under Articles 352, 356, and 360 of the Indian Constitution is dependent upon the satisfaction of the President regarding the existence of the necessary conditions. In the Constitution, the President’s satisfaction means satisfaction in the constitutional sense.

In Shamsher Singh vs. State of Punjab, the court clarified that the President exercises their formal constitutional powers based on the advice of the Ministers, except in certain well-known exceptional situations. The State government's dismissal under Article 356 does not fall within such exceptions. Similarly, in Re: 370, the court reaffirmed that the limitations of Article 356 do not prevent the court from exercising Judicial Review of the proclamation.

However, Justice Ahmadi voiced concerns about the lack of judicially manageable standards for the justiciability of the President’s satisfaction. He suggested that the President’s satisfaction is grounded in political wisdom, which courts should avoid scrutinising. However, the learned judge did not explain the exact reasons for this stance. It can be assumed that since the President’s satisfaction implies that of the Council of Ministers, any challenge by the court to such satisfaction would encroach upon the Executive’s functioning. Article 74(1) of the Constitution states that the President acts on the aid and advice of the Council of Ministers. Article 74(2) further states that whether, and what, advice was tendered by the Ministers to the President shall not be inquired into by any court. However, in S.R. Bommai, the court held that there was no bar against scrutinising the material upon which the President issued the proclamation under Article 356. This approach demonstrates how the court has found objectivity within subjective standards.

The court’s position on judicial review under Article 356 is best described as one of “Principled Caution”, an approach through which the Court actively seeks areas for judicial examination despite numerous constitutional restrictions on justiciability.

Testing Judicial Reviewability:

Judicially Discoverable and Manageable Standard

The Doctrine of Judicially Discoverable and Manageable Standards (hereinafter ‘JDMS’) is closely linked to the ‘Political Question Doctrine’, which is invoked only if a dispute is “textually committed to another branch of government.” Therefore, JDMS are standards that courts must legitimately apply to reach a legal judgment. The primary powers of the Supreme Court are to apply the law to a specific subject and interpret constitutional provisions for application in a factual scenario.

Richard Fallon provides a list of considerations that the U.S. Supreme Court applies to establish judicially manageable standards. The primary concern is intelligibility, meaning the standard in the provision should be “capable of being understood” to be applicable for Judicial Review. In State of Rajasthan vs Union of India, the court held that the President’s satisfaction is subjective and cannot be determined by objective tests. It viewed the President’s decision as a political judgment based on an assessment of diverse and varied factors. The judges in S.R. Bommai strayed from this stance, dividing the President’s satisfaction into the materials contributing to the decision and the judgment itself.

In Jayantilal Amritlal Shodhan vs. F.N. Rana, Justice Shah distinguished the Centre’s general executive power from certain specific powers conferred on the President, such as the power to promulgate ordinances under Article 123 or the power to proclaim an emergency under Article 352, stating that these specific powers are independent of the advice of the Council of Ministers. However, the power of the President under Article 356 constitutes the general executive power of the Centre, making it subject to the aid and advice of the Council of Ministers.

In State of Rajasthan vs Union of India, the court stated that Judicial Review is applicable to check for any irrationality, illegality, impropriety, or mala fide intention in the President’s use of power, which leads to abuse of power. However, judicial tests designed to check the executive’s intention have been subjects of contestation in the judicial space. Critics argue that a multimember body such as the Council of Ministers has no unitary intent, thereby making the intent of the council unintelligible.

The primary objective of Judicial Review under Article 356 is to examine whether the condition precedent for the proclamation has been satisfied or not. This examination is limited to reviewing the necessary materials upon which the President reached satisfaction. The material must be such as would induce a reasonable person to perceive a breakdown of constitutional machinery. This test is akin to the “reasonable person” or “man on the Clapham omnibus” principle followed in common law. This places an objective limit on the subjective satisfaction of the President. It demonstrates how the court has adopted a stance of “principled caution” to ensure that the federal nature of the State is not violated by the Union’s arbitrary volition.

The Council’s Dilemma

The court’s other primary challenge was bypassing the restrictive clause (2) of Article 74, which bars courts from inquiring into the advice the Council of Ministers gave. Justice Ramaswamy’s reasoning regarding this issue provides an important focal point for discussion. The power under Article 74(2) is singularly restrictive toward the advice, but it does not advise the Council of Ministers, which it tendered but does not. Still, it does not affect Article 142, which gives the court the power to secure the “attendance of any person, discovery or production of any document or investigation.” Therefore, the restrictive clause under Article 74 and the constitutional power under Article 142 must be harmonised.

Justice K.G. Balakrishnan argues that the power conferred on the President is not absolute; it has checks and balances. Given the magnitude of powers vested in the President by the Constitution, it becomes paramount for the court to nullify mala fide proclamations.

There is an explicit limitation on reviewing the materials through which the Council of Ministers provides advice to the President. The material on record – the foundation for the advice or decision – does not receive total protection under Article 74(2). This reasoning implies that the court gains the authority to indirectly inquire into the advice tendered by the Council of Ministers. The court has drawn a fine line between the advice the Council of Ministers tendered and the material that led to that advice. The advice provided by the Council of Ministers through documents is a grey area that the court has not fully addressed. Material is defined as any document containing information pertaining to the precondition. The examination of such materials discreetly encroaches upon the immunity of the Council of Ministers concerning the advice they tender.

The “Principled Caution” approach takes a nuanced turn here as the courts tend to prioritise the supremacy of the fundamental principles (Basic Structure doctrine) of the Constitution over the functioning of the executive.

Article 356 After S.R. Bommai: Power Play or Safeguard?

After the Constitution took force on January 26, 1950, the President had to invoke Article 356 five times within ten years. Against this backdrop, critics argued that the provision was being invoked too frequently and that there should be limits on its use. They contended that Presidential intervention under Article 356 undermined democracy and the autonomy of the States, standing in direct opposition to the federal structure. Kishore K. Koticha, commenting from the nascent stage of the Indian Constitution, noted that the Presidential power of intervention should not be invoked on the slightest pretext. He warned that constant use of this power would endanger the federal structure of the State, as it could be exploited for political ends.

In the post-Nehru era, constitutional courts in India have gradually moved away from Judicial Restraint towards Judicial Activism. In A.K. Roy v. Union of India, the court held that after the repeal of Clause 5 of Article 356 by the 44th Amendment, the theory of complete immunity from Judicial Review could no longer hold. This view represented a paradigmatic shift in reasoning evident in S.R. Bommai, as it provided judges with a narrow area of examination to assess the constitutionality of proclamations.

Conclusion

Article 356 of the Constitution is a unique emergency provision, distinguished by its inherent political taint, making it more widely used than other emergency provisions. Since the proclamation is explicitly tied to the aid and advice of the Council of Ministers, it is fundamentally vulnerable to exploitation as a political tool to take control over opposition-ruled states. Judicial attempts to regulate this provision, beginning with the State of Rajasthan vs Union of India case, have been ineffective as a deterrent against the arbitrary imposition of Article 356 on minority-ruled states.

This paper’s central argument is that the court’s adoption of “Principled Caution” has precisely weakened its own regulatory capacity. By cautiously employing judicially manageable standards, the courts have limited the scope of their own review while gradually encroaching upon the executive’s immunity, creating a frustratingly grey area rather than a clear constitutional check. The consequence of this cautious approach is severe: to weaken regional parties in minority-ruled states. This objective is facilitated by the court’s cautious approach and the time-consuming review process, which can lead to subsequent changes in government, as seen in the Rameshwar Prasad case.

 The Supreme Court must, therefore, abandon its overly cautious stance concerning Article 356 and adopt a more confident position to safeguard the federal structure of the State effectively. The first essential step is the institutionalisation of exhaustive guidelines on the imposition of Article 356, establishing clear mandatory measures ranging from reasonable notice to the justification for extreme intervention. Only a definitive, institutionalised framework can effectively restrain the executive’s arbitrary power and prevent Article 356 from remaining a mere tool of partisan power play.