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Article 356 & 365

(Querist) 30 March 2011 This query is : Resolved 
Hello,


Respected members of this forum plz provid me information about article 356 & 365

in the reference of direction of the center to the state..

Plz explain the article 365.

Thnx

Smith Sharma {Lawyer}


Gulshan Tanwar (Expert) 11 April 2011
Art.356 - Failure of Constitutional Machinery in State:

Art.356 says that if the president on receipt of a report from the governor of the state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution he may issue a proclamation. By that proclamation
1)- The president may assume to himself all or any of the powers vested in or exercisable by the governor to anybody or authority in the state;
2)- The president may declare that the powers of the legislature of the state shall be exercised by or under the authority of parliament;
3)- The president may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of proclamation.

"Satisfaction" in Art.356(1) does not mean the personal satisfaction of the Governor but it is the satisfaction of the cabinet. The satisfaction of the president can, however, be challenged on two grounds that
(1)It has been exercised malafide;
(2) Based on wholly extraneous and irrelevant grounds, because in that case it would be no satisfaction of the president.

In S.R.Bommai Vs. UOI, the Karnataka High Court has held that the proclamation issued under Art.356 is not wholly outside the part of judicial scrutiny and the court can examine whether the reasons disclosed for issuing proclamation have rational nexus with the satisfaction reached under Art.356.

NINE ASSEMBLIES DISSOLUTION IN 1977
NINE ASSEMBLIES DISSOLUTION IN 1980

JUDICIAL GUIDELINES:
1. President proclamation dissolving a state legislative assembly is subject to judicial review;
2. If a state government works against secularism, president's rule can be imposed;
3. No wholesale dismissal of opposition ruled states governments when a new political party assumes power at the centre;
4. If president's rule is imposed only on political considerations that court can even restore the assembly;
5. Imposition of presidents rule and dissolution of State assembly cannot be done together;
6. State assembly can be dissolved only after Parliament approves central rule;
7. The SC or HC can compel the Union Government to disclose material on whose basis president's rule is imposed on a state;
8. The Power of the president under Art.356 is a constitutional power, it is not absolute power. The existence of material is a pre-condition to form the satisfaction to impose the president's rule.




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