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The scope of Article 365 of the Constitution
by K. Madhusudhana Rao+
Cite as : (2000) 4 SCC (Jour) 1
A. Article 365, concept and meaning
In the Draft Constitution of India a number of provisions enabling the Union Government to issue directions to the States during normal times as well as during emergency were proposed to be included. But the draft was silent as to the nature and extent of the power to be conferred on the Union to ensure that these directions were carried out. To fill this gap1 the Drafting Committee incorporated a new Article 365 which runs as follows:
"365. Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution."
In understanding the nature and the scope of the power vested in the President by Article 365 the phraseology used in this article is to be analysed further. The crucial words in this regard are, "any directions given in the exercise of the executive powers of the Union under any of the provisions of this Constitution". In other words the meaning of the expression "any direction" must be understood to mean that any directions issued under any of the provisions of this Constitution in the exercise of the executive power of the Union2.
Thus this article can validly be invoked only if:
(1) any direction is given by the Union in the valid exercise of its power under any of the provisions of the Constitution; and
(2) such direction has not been complied with or given effect to by the State.
The words "it shall be lawful for the President to hold" occurring in Article 365 do not impose an obligation. They only confer power, the exercise of which is a matter of discretion with the President. On every non-compliance with the Union direction, irrespective of its extent and significance, the President (in effect the Council of Ministers) is not bound to hold that a situation has arisen in which the Government of the non-complying State cannot be carried on in accordance with the Constitution. The President should exercise this drastic power in a reasonable manner with due care and circumspection, and not mechanically. He should give due consideration to all relevant circumstances, including the response, if any, of the State Government to the direction. In response to the direction the State Government might satisfy the President that the direction had been issued on wrong facts or misinformation, or that the required correction has been effected. The President should also keep in mind that every insignificant aberration from the constitutional path or a technical controvention of constitutional provisions by the functionaries of the State Government would not necessarily and reasonably lead one to hold that the Government in the State cannot be carried on in accordance with the Constitution.
Thus Article 365 acts as a screen to prevent any hasty resort to the drastic action under Article 356 in the event of failure on the part of a State Government to comply with or to give effect to any constitutional direction given in the exercise of the executive power of the Union. Therefore, the extraordinary powers under Article 365 are necessary but should be exercised with great caution and in extreme cases.3
Explaining the meaning of Article 365 Sawant, J. in S.R. Bommai v. Union of India4 observed that Article 365 is more in the nature of a deeming provision. He further stated that failure to comply with or to give effect to the directions given by the Union under any of the provisions of the Constitution is one of the situations contemplated by the expression "Government of the State cannot be carried on in accordance with the provisions of this Constitution" occurring in Article 356.
Rejecting the contention5 that the only situation in which the power under Article 356 can be invoked by the President is the failure of the State Government to comply with or to give effect to the directions given in the exercise of the executive power of the Union under any of the provisions of the Constitution and not in any other case, Jeevan Reddy, J. observed that Article 365 is a "permissible" provision. It merely sets out one instance in which the President may hold that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It cannot be read as exhaustive of the situation where the President may form the said satisfaction. He reasoned that the expression, "it shall be lawful for the President" occurring in Article 365 vests discretionary power in the President which has to be exercised fairly. Each and every failure "ipso facto" does not give raise to the requisite situation6 contemplated by Article 356. The President has to judge in each case whether the requisite satisfaction has arisen or not7.
The Sarkaria Commission cited the following illustrations as an indication of break-down of the constitutional machinery in a State due to non-compliance with the directions issued by the Union Government8.
1. Where a direction issued by the Union in the exercise of its executive power under any of the provisions of the Constitution, such as, Articles 256, 257 and 339(2) or, during an emergency under Article 353, is not complied with by the State Government in spite of adequate warning and opportunity, and the President thereupon holds under Article 365 that a situation, such as that contemplated in Article 356 has arisen;
2. If public disorder of any magnitude endangering the security of the State, takes place, it is the duty of the State Government to keep the Union Government informed of such disorder and if the State fails to do so, such failure may amount to impeding the exercise of the executive power of the Union Government and justify the latter giving appropriate directions under Article 257(1). If such a direction given to the State by the Union executive under Article 257(1) is not complied with in spite of adequate warning, the President thereupon may hold that the situation such as contemplated in Article 356 has arisen.
B. Article 365 and the Constituent Assembly Debates
Article 365 was introduced into the Constitution at the revision stage just 11 days before the Constitution was adopted by the Constituent Assembly. This provision was extensively discussed on Tuesday 15th November, 19499 in the Assembly.
In the Constituent Assembly some members opposed this article vehemently. Pt. H.N. Kunzru maintained that this new article was not warranted by the terms of reference to the Drafting Committee and that the Committee went beyond its mandate. When Dr B.R. Ambedkar sought to justify the adoption of Article 365 by making a reference to Section 126 of the Government of India Act, 193510, Pt. H.N. Kunzru said that while adopting certain provisions of the Government of India Act, 1935 into the Draft Constitution, some provisions of that Act were deliberately omitted implying thereby that Section 126 was one such provision which was omitted while preparing the Draft Constitution. Advocating for the deletion of Article 365, he strongly maintained that reference to Section 126 of the Government of India Act, 1935, in this connection, would not justify the language of Article 36511.
Pt. Thakurdas Bhargava, arguing that Article 365 is redundant, said that if the Provincial Government refuses to abide by an important provision of the Constitution even after the Government of India issued the instructions to the Provincial Governments to abide by it, then the language of Article 35612 is sufficient to meet the needs of such a situation13. Supporting for the deletion of Article 365 he explained the impact of this article on the stability of the Provincial Governments in the following words:
"The Provincial Governments will be in constant fear and will constantly tremble before him (the Prime Minister). Such a provision will invest the Central Government with absolutely arbitrary power and I maintain that arbitrary power should not be given to any person. Ministers and Provincial Governments will have no security or stability and will change at the whim or caprice of the Prime Minister."14
However, the insertion of Article 365 was supported by other Members15 of the Assembly on the ground that the Centre should be strong enough and it should have strong control over the Provincial Governments to tide over the difficulties created by the fissiparous tendencies existing in the country.
Defending Article 365, Dr B.R. Ambedkar observed that the new article contained a "consequential provision" because:
"... once there is power given to the Union Government to issue directions to the States that in certain matters they must act in a certain way, it seems to me that not to give the Centre the power to take action when there is failure to carry out those directions is practically negativing the directions which the Constitution proposes to give to the Centre. Every right must be followed by a remedy. If there is no remedy then obviously the right is purely a paper right, a nugatory right which has no meaning, no sense and no substance."16
C. Union directions under the Constitution
Under various provisions of the Constitution, the Union Government is authorised to issue directions to the States which would have the impact of encroaching upon the State field in excess of that permitted by the scheme of the Constitution17.
Article 53 of the Constitution provides that the executive power of the Union is vested in the President and he shall exercise his power either directly or through officers subordinate to him in accordance with the provisions of the Constitution. Article 73 says that the executive power of the Union extends (a) to matters with respect to which the Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. In other words the executive powers of the Union comprehends the power to administer or to carry into effect valid laws made by Parliament and the exercise of its treaty powers18.
Article 256 imposes a general obligation on the States to so exercise their executive power as to ensure compliance with the laws made by Parliament and the executive power of the Centre extends to the giving of such directions to a State as may appear to the Centre to be necessary for the purpose19. This makes the State executive subservient to the Union executive power.
Article 257(1) provides that the executive power of the State is to be so exercised as not to impede or prejudice the exercise of the Centre's executive power and the Centre can give such directions to a State as may appear to the Central Government to be necessary for that purpose.
Under Article 257(2) the Centre may give directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance, although "communications" is a State subject20. However, this does not restrict the power of Parliament to declare highways or waterways to be national; nor is the Centre's power restricted with respect to the national highways or waterways nor its power to construct and maintain means of communication as part of its functions with respect to naval, military and air-force works.
Article 257(3) empowers the Centre to give directions to a State as to the measures to be taken for the protection of the Railways within the State. "Railways" is a Central subject21 but "police" is a State subject22. Consequently the protection of railway property lies within the field of the State Government. It may be that in a particular case the Centre may desire that the railway property be protected by taking special measures by the State and for that purpose the Centre is given power to give directions to the States23. Article 257(4) provides that the Centre shall pay sums to the States in respect of extra costs incurred by the States for complying with the directions issued by the Centre under Article 257(2) and (3).
When a proclamation of emergency is made under Article 352 the executive power of the Union extends to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. This is possible by virtue of Article 353(a).
When a financial emergency is declared under Article 360 the Centre may give directions to a State, inter alia, to observe certain canons of financial propriety by virtue of Article 360(3).
In addition to the above provision, in certain matters concerning minorities and language also the Central Government has power to issue directions to the States. Under Article 339(2) the Central Government is empowered to give directions to a State as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the State.
Article 344(6) empowers the President to issue directions to give effect to the recommendation of the Language Commission [appointed under Article 344(1)] after they were scrutinised by a Parliamentary Committee.
Under Article 347, on demand being made in that behalf, the President may, if he is satisfied that a substantial portion of a State desires the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout the State or any part thereof for such purpose as he may specify.
Under Article 350-A a State is obligated to provide facilities for instruction in the mother tongue at the primary stage of children belonging to a linguistic minority and the President has been empowered to issue such directions to any State as he considers necessary.
Under para 6 of the Fifth Schedule of the Constitution the President can declare areas to be scheduled areas and can issue directions in regard to the administration of these areas.
If the Union Government issues any directions under any of the provisions enumerated above and if any State Government fails to comply with them, such failure answers the situation contemplated by Article 365.
D. The significance of Article 365
The incorporation of Article 365 in the Constitution is not without significance. The Constitution has not provided for separate federal agencies to execute the federal laws. If the Union is to implement them through the State Government by issuing directions to them, the Union must have necessary power to seek obedience from the States for the implementation of Union directions. To achieve this objective power is given to the President under Article 36524. But inconsiderate use of these directions can upset the constitutional balance between the Union-State relationship25.
R.S. Gae has suggested that Parliament could, in case where the State has failed to carry on the directions issued by it, pass a law empowering the Central Government to call upon the State Ministers and the authorities of the State to implement the directions issued by the Union Government and impose a penalty for failure to do so. To achieve this purpose he is in favour of invoking Article 258(2)26. If this suggestion is followed then Article 365, consequently Article 356, need not be invoked. As per his opinion recourse to Article 365 can be had only if the State Legislature expressly prohibits the Ministry from implementing the Union direction.27
But this suggestion was controverted by the Rajmannar Committee on the reason that according to Gae's suggestion the Cabinet would be subject to two masters and should be responsible to both, viz. the Central Government and the State Legislature. The Committee opined that this is an impossible position under the constitutional provisions. Further the Rajmannar Committee expressed the view that the most objectionable feature in regard to Articles 256 and 257 is that the only condition to be satisfied before the issue of such directions is the unilateral satisfaction of the Government of India, as both the articles (Article 256 and 257) contained the expression "such directions to a State as may appear to the Government of India to be necessary for that purpose". Therefore this Committee advocated for the repeal of Articles 256, 257 and 365. Alternatively this Committee suggested that if these articles are to be retained, no direction contemplated in Articles 256 and 257 should be issued except in consultation with and with the approval of the Inter-State Council.28
It is submitted that the view taken by the Rajmannar Committee is misconceived because the Constitution established responsible government in which the executive, that is the Cabinet, is made responsible to the legislature. Similarly, the constitutional provision made the State Government responsible to the Central Government so far as the Union directions are concerned.
E. Article 365 and federalism
The Constitution has established federalism in India. But the political transformation that occurred in the country has produced certain significant changes in this area:
1. The federalism that normally envisages "competitive federalism" in which both the Union and State Government compete with each other for identification and operation in the constitutional structure has given way to "cooperative federalism" which helps the federal system to act in unison by minimising friction and also by promoting cooperation among the various constituent Governments of the Federal Union for the purpose of achieving certain desired national goals29. In the process this cooperative federalism gave way to the development of "organic federalism" wherein the federation and the federating units function as part of one organism to achieve the common governmental purposes that are mentioned in the constitutional document. Therefore what is discernible is that the Indian federalism in its working has been moved from the theoretical framework of cooperative federalism towards an organic federalism to be placed towards the unitary end of the federal spectrum.30
2. Though the framers of the Constitution have established a federal policy in India, the long and continuous Congress rule under the leadership of Nehru and Indira Gandhi has put in hibernation the federal features of the Indian Constitution. But they came to the fore when regional parties rose to voice local demands and grievances and to rectify economic imbalances created by centralised planning. The growth of the regional parties has further resulted in the formation of coalition Governments both at the Union and State level on the basis of common minimum programmes/national agendas for governance. Every regional party agrees to participate in the coalition Government by giving deference to local needs and sentiments. In the process it may so happen that a regional party may effectively raise its voice in the functioning of the Union Government. In this atmosphere of coalition politics the Union Government must govern the country keeping in view national goals and ideals underlying the Constitution.
In order to achieve the commonly-desired goals under the Constitution the Union Government must be armed with sufficient powers to issue directions to the States to act towards the achievement of goals set by the Constitution. To ensure this Article 365 has a significant role to play under the Indian constitutional scheme.
F. Conclusion
From the foregoing analysis the following propositions would emerge:
1. The framers of the Constitution intended to make the Central Government strong enough to tide over the difficulties created by the fissiparous tendencies. Article 365, in their view is one of the measures to achieve the said purpose. At present the Indian polity is confronted with problems like parochial tendencies, nepotism, religious conflicts, petty political interests, cross-border terrorism in addition to political instability. In this socio-political atmosphere Article 365 has a role to play in the interest of the unity and integrity of India.
2. The Union Government has no separate agencies to implement the Union laws. Consequently the Union Government is given power under Article 365 to secure compliance with the Union directions from the State Governments. Hence this is one of the purposes for which the power under Article 365 is to be used.
3. Article 365 is intended not only to supply an additional ground for the President's action under Article 356 but also to restrict and confine the scope of the word "otherwise" in Article 356 to the grounds mentioned in Article 365.
4. Article 365 is a permissible provision under which the President has a discretionary power to judge whether a particular situation falls within the compass of this article or not. He has to exercise this discretionary power fairly so as to limit the scope of Article 365 by taking into consideration the federal principle underlying the Constitution.
5. Dr B.R. Ambedkar said in the Constituent Assembly that before invoking the President's rule provision by the Centre, a warning must be given to the erring State mentioning that things are not happening in the way in which they are intended to happen in the Constitution (IX CAD 177). If the Union Government issues any such warning then non-compliance with such warning by the State Government answers the situation contemplated by Article 365.
- Originally the provisions of the Draft Constitution relating to financial emergency contained a clause which specified that failure on the part of the State to comply with any directions issued by the Union under the article would be deemed to be failure on the part of the State Government to carry on the Government of the State in accordance with the provisions of the Constitution. This provision was accepted by the Constituent Assembly, but at the revision stage the Drafting Committee separated this clause from the financial provisions and introduced Article 365. See B. Shiva Rao, "The Framing of India's Constitution: A Study" (New Delhi: IIPA: 1968), p. 822.
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- Krishna P. Shetty, "President's Power under Article 356 of the Constitution - Theory and Practice" in Alice Jacob (Ed.): Constitutional Developments Since Independence (Bombay: Tripathi: 1975), p. 342.
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- Sarkaria Commission Report on Centre-State Relations, Part I (New Delhi: Government of India: 1988), pp. 106-07.
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- (1994) 3 SCC 1 at 104 (for himself and on behalf of Kuldeep Singh, J. Similar view was expressed by K. Ramaswamy, J. who held a minority view - Ibid at p. 190.
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- Submitted by Ram Jethmalani, counsel for the petitioner.
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- "The Government of the State cannot be carried on in accordance with the provisions of this Constitution."
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- (1994) 3 SCC 1 at 273 (for himself and on behalf of Agrawal, J.).
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- Sarkaria Commission Report on Centre-State Relations, Part I, (New Delhi: Government of India: 1988), p. 173, para 6.4.12.
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- XIX CAD 503
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- Section 126 of the Government of India Act, 1935 empowered the Governor General to give directions to the provinces and if it appears to the Governor General that effect has not been given to any such directions he can in his discretion issue orders to the Governor who was to act in his discretion in the matter of carrying out the directions given by the Governor General.
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- XI CAD 509
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- It provides provisions in case of failure of the constitutional machinery in States.
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- XI CAD 511
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- XI CAD pp. 512-13
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- Shri K. Santhanam at XI CAD 153; Shri R.K. Sidhwa at XI CAD 515; Shri Brajeswar Prasad at XI CAD 515; Shri Mahavir Tyagi at XI CAD 517, supported the retention of Article 365.
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- XI CAD 507
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- K. Subba Rao, "Some Constitutional Problems" (Bombay: University of Bombay: 1970), p. 44.
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- Krishna P. Shetty, "President's Power under Article 356 of the Constitution - Theory and Practice" in Alice Jacob (Ed.): Constitutional Developments Since Independence (Bombay: Tripathi: 1975), p. 343.
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- The High Court of Calcutta held that the provisions of Article 256 are mandatory which must be complied with by the States in Jay Engineering Works Ltd. v. State of W.B., (AIR 1968 Cal 407) in the following fact-situation: the State of West Bengal issued a circular to the police officers in the State not to intervene in case of "gherao" of the industrial establishments by its workers. A writ petition was filed in the Calcutta High Court challenging the circular. Treating Article 256 mandatory, the circular issued by the State Government to its officers not to enforce certain sections of the Criminal Procedure Code (a Central law) was struck down as being in violation of Article 256.
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- Entry 13, List II, Schedule VII of the Constitution of India.
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- 21 Entry 22, List I, Schedule VII of the Constitution of India.
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- Entry 2, List II, Schedule VII of the Constitution of India.
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- M.P. Jain, "Indian Constitutional Law" (Bombay: Tripathi: 1987), pp. 352-53.
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- H.M. Seervai, "Constitutional Law of India", Vol. III (Mumbai: Tripathi: 1996), p. 3091.
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- P.B. Mukherji, "The Critical Problems of the Indian Constitution", (Bombay: University of Bombay: 1968), p. 28.
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- Article 258(2) provides that a law made by Parliament which applied in any State may, notwithstanding that it relates to a matter with respect to which the legislature of the State has no power to make the laws, confers powers and imposes duties or authorises the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
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- R.S. Gae, "Administrative Relations between the Union and the States", Vol. III, No. 3, JCPS. 1 (1969) at pp. 10-14.
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- Report of the Centre-State Relations Enquiry Committee (Madras: Government of Tamil Nadu: 1971) pp. 22-23. Also see P.B. Mukherji "The Critical Problems of the Indian Constitution" (Bombay: University of Bombay: 1968), p. 27.
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- M.P. Jain, "Indian Constitutional Law" (Bombay: Tripathi: 1987), p. 379.
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- Prof. A. Lakshminath, et. al. "Nehruvian Federalism and its Contemporary Relevance", Vol. I, AULJ, 1993 at p. 56.
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