SUBMITTED TO

DR. ATUL KUMAR

TIWARI
ASSOCIATE
PROFESSOR
(CONSTITUTIONAL
LAW)
RMLNLU, LUCKNOW

SUBMITTED BY
K S ARARTIK
ENROLLMENT NO.-
210101059
SECTION - A (BATCH-
CONSTITUTIONAL LAW - II 2026)
TOPIC – JUDICIAL REVIEW 4th SEMESTER
VIS-À-VIS ARTICLE 356 (B.A.LLB)
 ACKNOWLEDGEMENT

Apart from the efforts of myself, the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my
gratitude to the people who have been instrumental in the successful completion of
this project. I would like to show my greatest appreciation to our Constitutional Law
– II Associate Professor Dr Atul Kumar Tiwari. My gratefulness for his tremendous
support and help knows no bounds. Without his encouragement and guidance this
project would not have materialized. I also thank the library staff of Dr Ram
Manohar Lohiya National Law University for their help.

I would also like to take a moment to thank my parents and friends who helped me
with their valuable suggestions and guidance and have been helpful in various phases
of the completion of the project.

Finally, I would like to thank my batchmates that helped me throughout.

K S ARARTIK

(210101059)
 ABSTRACT

There has been much discourse in recent times regarding the validity and

constitutionality of the current jurisprudence regarding the time at which a

legislative assembly exactly comes into existence and as such can be dissolved based

on a proclamation of failure of Constitutional Machinery under Article 356 of the

Constitution. In light of the same, the jurisprudence and rationale must be tracked in

times like today when a strong Centre can sometimes dampen the spirit of

federalism.
 INTRODUCTION

Article 356 enables the President, acting on the advice of the Union government, to

proclaim a regional emergency when "a situation has arisen in which the government

of the State cannot be carried on in accordance with the provisions of this

Constitution." Article 356(1) provides that if the President is "satisfied", based on a

report from the Governor or otherwise, that such a situation exists, he has the power

to issue a Proclamation and act in one of three ways: firstly, to directly exercise the

executive powers of the State government; secondly, to transfer the legislative

powers of the State legislature to Parliament; and, thirdly, to make any incidental or

consequential provisions to give effect to the above. The provision also vests in the

President the power to suspend wholly or partially the provisions of the Constitution

relating to any authority in the State. Initially, a proclamation under Article 356 was

the exercise of a prerogative power6 by the executive branch of government and

therefore beyond constitutional judicial review. However, a litany of cases has arisen

since the first time Article 356 was put in motion in the state of Punjab, all of which

have led to great evolutions in jurisprudence surrounding the same.

 ANALYSIS

In Rao Birinder Singh v. Union of India,1 the Punjab and Haryana High Court held

that it had no jurisdiction to review the material upon which the President was

"satisfied". Similarly, the High Court of Andhra Pradesh held that the exercise of

power under Article 356 was not justiciable.2 When the issue came up to the

Supreme Court in State of Rajasthan v. Union of India,3 the Court unanimously

dismissed the suit and held that the exercise of power under Article 356 was beyond

the scope of judicial scrutiny. The Court also highlighted the broad scope of Article

356, noting that such a proclamation could be "either a preventive or a curative

action", and stressed that the President's satisfaction under Article 356 was

subjective in nature, and thus could not be assessed with reference to any test.

However, the Court conceded that the exercise of the power may be challenged on

the ground that satisfaction was mala fide or based on "wholly extraneous and

irrelevant grounds" as this would signify that there had been no satisfaction at all.

Importantly, Article 356 at the time contained clause (5) that made the President's

satisfaction "final and conclusive". This was an important justification for the court's

decision denying judicial oversight over the executive decision. Subsequently, this

provision was repealed through the Constitution Forty-fourth Amendment Act,

1978. In S.R. Bommai v. Union of India,4 the Supreme Court developed the extent

and scope of judicial review under Article 356. The Court held, inter alia, that the

1
1988 SCC OnLine P&H 53.
2
AIR 1974 AP 106.
3
AIR 1971 SC 1361.
4
AIR 1994 SC 1918.
power under Article 356(1) was reviewable on several grounds. It inquired into

whether relevant data was considered and the reasoning was justifiable and not mala

fide. In this case, the Court applied the entire range of administrative law grounds

for the review of executive action to an Article 356 proclamation and no longer

treated it as a prerogative power. Further, it suggested that such proclamations were

subject to basic structure review to ensure that they did not damage or destroy basic

features of the Constitution. Applying these tests, the court invalidated three

proclamations that had been issued under Article 356(1). It further asserted that so

long as a State was performing its duty in conformity with the Constitution, there

was no question of issuing a proclamation under Article 356(1) merely because a

different political party was in control of the Union Government. S.R. Bommai

significantly expanded the scope of judicial review by holding that Article 356 was

to be exercised under certain guidelines which were subject to judicial review. In

Rameshwar Prasad, the Court marginally extended the Bommai holding.

Rameshwar Prasad arose as a result of the elections in the State of Bihar in 2005

which delivered a fractured verdict. Because of a hung assembly, the Governor

recommended that President's rule be imposed under Article 356. Subsequently,

political shuffles ensued between parties and the National Democratic Alliance

(NDA) claimed to have the requisite numbers to form a government. The Governor,

however, wrote to the President informing him that financial incentives had made

politicians switch their support, and then submitted a final report to the President

recommending dissolution of the assembly. The assembly was dissolved and the
constitutionality of the dissolution was challenged before the Supreme Court. With

respect to judicial review of the proclamation under Article 356, Sabharwal CJ.

reiterated Bommai and held that though "the sufficiency or otherwise of the material

cannot be questioned, the legitimacy of inference drawn from material is certainly

open to judicial review". He further held that "it is open to the Court... to examine

the question whether the Governor's report is based upon relevant material or not;

whether it is made bona-fide or not; and whether the facts have been duly verified

or not". Applying these standards to the facts of the case, the proclamation was found

to be unconstitutional. Significantly, the Court confined its power to revive the

dissolved assembly. The constitution of a legislative assembly after an election and

the executive proclamation of emergency which dissolves an elected assembly

requires a complex interaction between the executive and the legislative branches of

government. The constitutional relationship between the executive and the

legislature is worked out in cases such as U.N.R. Rao v. Indira Gandhi5 and Samsher

Singh v. State of Punjab.6 In U.N.R. Rao, the Supreme Court dealt with whether an

executive government could exist if the legislature had been dissolved. Referring to

Article 74(1) of the Indian Constitution, under which there "shall" be a Council of

Ministers to aid and advice the President, the court held that the Council of Ministers

would remain in office even when the House of the People (Lok Sabha) had been

dissolved. The Court reasoned that if Article 74(1) was interpreted as merely

directory in nature (i.e., if it was interpreted to mean that there "may" be a Council

5
AIR 1971 SC 1002.
6
(1974) 2 SCC 831.
of Ministers), then it could create a situation where the President may function

independently without a Council of Ministers. Hence, even where the assembly was

dissolved for any reason, the parliamentary form of government under the Indian

Constitution requires a democratically elected executive branch that advises the

President. This conclusion is supported by the premise that the presidential form of

government had been expressly rejected by the Constitution framers. In Samsher

Singh, the Supreme Court dealt with the Governor's power to recruit persons to the

judicial service under Article 234 of the Constitution. The petitioners argued that the

Governor should act in his personal capacity and not under the aid and advice of the

Council of Ministers. The Court held that the Indian Constitution embodies the

parliamentary or cabinet form. of government that exists in the United Kingdom,

and thus the President or Governor is merely a formal head in the Indian

constitutional scheme. The Court reiterated its position in Ram Lawaya Kapur v.

State of Punjab7 where it had held that before the executive can perform its duties it

must have the confidence of the legislature and that executive action takes place

subject to the control and authority of the legislature. This view has been confirmed

in later decisions such as S.R. Bommai. Rameshwar Prasad does not deal specifically

with the cabinet in any way; it is concerned with the relationship between the

executive branch of government and the legislative assembly in the context of the

formation of a new government after an election.

7
(1952) 2 SCC 225.
 CONCLUSION

The force of the argument in Rameshwar Prasad as set out by Sabharwal CJ. is that

the Constitution does not envisage a scenario where if no party can form a

government due to a fractured verdict, the Governor can neither appoint an executive

government (for want of majority strength) nor dissolve the assembly (since there

has been no meeting)! If this paradox were allowed to come about, then an assembly

would exist even where there is no possibility of the formation of executive

government, and the Governor would not have the power to resolve the situation.

Hence, Rameshwar Prasad merely sets out the chronological sequence of events after

an election by which the legislature is duly constituted even before an executive

government is formed. At no time does the case posit a relationship between these

two branches of government. Sabharwal CJ, in fact, cites with approval Justice

Reddy's view in Bommai that "what is necessary is that that Government should

enjoy the confidence of the house" thereby confining the relationship between the

executive and the legislature in India's Parliamentary democracy.