Article 365

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Sbjecie Liing of Aicle
Chonological Liing of
Aicle
Aicle Ecliel on he
Inene
Moe Aicle...
CONSTITUTIONAL LAW
The cope of Aicle 365 of he Coniion
b K. Madhusudhana Rao
+
Cite as : (2000) 4 SCC (Jour) 1
A. Aicle 365, concep and meaning
In the DraIt Constitution oI India a number oI 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 draIt was silent as to the nature and extent oI the
power to be conIerred on the Union to ensure that these directions
were carried out. To Iill this gap
1
the DraIting Committee
incorporated a new Article 365 which runs as Iollows:
"365. Whee an Sae ha failed o compl ih, o o gie
effec o, an diecion gien in he eecie of he eecie
poe of he Union nde an of he poiion of hi
Coniion, i hall be lafl fo he Peiden o hold ha a
iaion ha aien in hich he Goenmen of he Sae
canno be caied on in accodance ih he poiion of hi
Coniion."
In understanding the nature and the scope oI the power vested in
the President by Article 365 the phraseology used in this article is to
be analysed Iurther. The crucial words in this regard are, "any
directions given in the exercise oI the executive powers oI the Union
under any oI the provisions oI this Constitution". In other words the
meaning oI the expression "any direction" must be understood to
mean that any directions issued under any oI the provisions oI this
Constitution in the exercise oI the executive power oI the Union
2
.
Thus this article can validly be invoked only iI:
(1) any direction is given by the Union in the valid exercise oI its
power under any oI the provisions oI the Constitution; and
(2) such direction has not been complied with or given eIIect to by
the State.
The words "it shall be lawIul Ior the President to hold" occurring in
Article 365 do not impose an obligation. They only conIer power,
the exercise oI which is a matter oI discretion with the President. On
every non-compliance with the Union direction, irrespective oI its
extent and signiIicance, the President (in eIIect the Council oI
Ministers) is not bound to hold that a situation has arisen in which
the Government oI 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
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, iI
any, oI the State Government to the direction. In response to the
direction the State Government might satisIy the President that the
direction had been issued on wrong Iacts or misinIormation, or that
the required correction has been eIIected. The President should also
keep in mind that every insigniIicant aberration Irom the
constitutional path or a technical controvention oI constitutional
provisions by the Iunctionaries oI 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 oI Iailure on the part oI
a State Government to comply with or to give eIIect to any
constitutional direction given in the exercise oI the executive power
oI the Union. ThereIore, the extraordinary powers under Article
365 are necessary but should be exercised with great caution and in
extreme cases.
3
Explaining the meaning oI Article 365 Sawant, J. in S.R. Bommai v.
Union of India
4
observed that Article 365 is more in the nature oI
a deeming provision. He Iurther stated that Iailure to comply with or
to give eIIect to the directions given by the Union under any oI the
provisions oI the Constitution is one oI the situations contemplated
by the expression "Government oI the State cannot be carried on in
accordance with the provisions oI this Constitution" occurring in
Article 356.
Rejecting the contention
5
that the only situation in which the power
under Article 356 can be invoked by the President is the Iailure oI
the State Government to comply with or to give eIIect to the
directions given in the exercise oI the executive power oI the Union
under any oI the provisions oI 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 oI the State cannot be carried on in
accordance with the provisions oI the Constitution. It cannot be
read as exhaustive oI the situation where the President may Iorm the
said satisIaction. He reasoned that the expression, "it shall be lawIul
Ior the President" occurring in Article 365 vests discretionary power
in the President which has to be exercised Iairly. Each and every
Iailure "ipso Iacto" does not give raise to the requisite situation
6
contemplated by Article 356. The President has to judge in each
case whether the requisite satisIaction has arisen or not
7
.
The Sarkaria Commission cited the Iollowing illustrations as an
indication oI break-down oI the constitutional machinery in a State
due to non-compliance with the directions issued by the Union
Government
8
.
1. Where a direction issued by the Union in the exercise oI its

1. Where a direction issued by the Union in the exercise oI its
executive power under any oI the provisions oI 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 oI 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. II public disorder oI any magnitude endangering the security oI
the State, takes place, it is the duty oI the State Government to
keep the Union Government inIormed oI such disorder and iI the
State Iails to do so, such Iailure may amount to impeding the
exercise oI the executive power oI the Union Government and
justiIy the latter giving appropriate directions under Article 257(1).
II such a direction given to the State by the Union executive under
Article 257(1) is not complied with in spite oI adequate warning, the
President thereupon may hold that the situation such as
contemplated in Article 356 has arisen.
B. Aicle 365 and he Conien Aembl Debae
Article 365 was introduced into the Constitution at the revision
stage just 11 days beIore the Constitution was adopted by the
Constituent Assembly. This provision was extensively discussed on
Tuesday 15th November, 1949
9
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 oI reIerence to the DraIting Committee
and that the Committee went beyond its mandate. When Dr B.R.
Ambedkar sought to justiIy the adoption oI Article 365 by making a
reIerence to Section 126 oI the Government oI India Act, 1935
10
,
Pt. H.N. Kunzru said that while adopting certain provisions oI the
Government oI India Act, 1935 into the DraIt Constitution, some
provisions oI that Act were deliberately omitted implying thereby
that Section 126 was one such provision which was omitted while
preparing the DraIt Constitution. Advocating Ior the deletion oI
Article 365, he strongly maintained that reIerence to Section 126 oI
the Government oI India Act, 1935, in this connection, would not
justiIy the language oI Article 365
11
.
Pt. Thakurdas Bhargava, arguing that Article 365 is redundant, said
that iI the Provincial Government reIuses to abide by an important
provision oI the Constitution even aIter the Government oI India
issued the instructions to the Provincial Governments to abide by it,
then the language oI Article 356
12
is suIIicient to meet the needs oI
such a situation
13
. Supporting Ior the deletion oI Article 365 he
explained the impact oI this article on the stability oI the Provincial
Governments in the Iollowing words:
"The Provincial Governments will be in constant Iear and will
constantly tremble beIore 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
given to any person. Ministers and Provincial Governments will
have no security or stability and will change at the whim or caprice
oI the Prime Minister."
14
However, the insertion oI Article 365 was supported by other
Members
15
oI 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 diIIiculties created by the
Iissiparous tendencies existing in the country.
DeIending 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 Iailure to carry out those directions is
practically negativing the directions which the Constitution proposes
to give to the Centre. Every right must be Iollowed by a remedy. II
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 diecion nde he Coniion
Under various provisions oI the Constitution, the Union Government
is authorised to issue directions to the States which would have the
impact oI encroaching upon the State Iield in excess oI that
permitted by the scheme oI the Constitution
17
.
Article 53 oI the Constitution provides that the executive power oI
the Union is vested in the President and he shall exercise his power
either directly or through oIIicers subordinate to him in accordance
with the provisions oI the Constitution. Article 73 says that the
executive power oI the Union extends (a) to matters with respect to
which the Parliament has power to make laws; and (b) to the
exercise oI such rights, authority and jurisdiction as are exercisable
by the Government oI India by virtue oI any treaty or agreement. In
other words the executive powers oI the Union comprehends the
power to administer or to carry into eIIect valid laws made by
Parliament and the exercise oI its treaty powers
18
.
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 oI the Centre
extends to the giving oI such directions to a State as may appear to
the Centre to be necessary Ior the purpose
19
. This makes the State
executive subservient to the Union executive power.
Article 257(1) provides that the executive power oI the State is to
be so exercised as not to impede or prejudice the exercise oI 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
Ior that purpose.
Under Article 257(2) the Centre may give directions to a State as
Under Article 257(2) the Centre may give directions to a State as
to the construction and maintenance oI means oI communication
declared in the direction to be oI national or military importance,
although "communications" is a State subject
20
. However, this does
not restrict the power oI 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 oI communication as part oI its
Iunctions with respect to naval, military and air-Iorce works.
Article 257(3) empowers the Centre to give directions to a State as
to the measures to be taken Ior the protection oI the Railways
within the State. "Railways" is a Central subject
21
but "police" is a
State subject
22
. Consequently the protection oI railway property lies
within the Iield oI 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 Ior that
purpose the Centre is given power to give directions to the States
23
.
Article 257(4) provides that the Centre shall pay sums to the States
in respect oI extra costs incurred by the States Ior complying with
the directions issued by the Centre under Article 257(2) and (3).
When a proclamation oI emergency is made under Article 352 the
executive power oI the Union extends to the giving oI directions to
any State as to the manner in which the executive power thereoI is
to be exercised. This is possible by virtue oI Article 353(a).
When a Iinancial emergency is declared under Article 360 the
Centre may give directions to a State, inter alia, to observe certain
canons oI Iinancial propriety by virtue oI 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 oI schemes speciIied in the direction to
be essential Ior the welIare oI the Scheduled Tribes in the State.
Article 344(6) empowers the President to issue directions to give
eIIect to the recommendation oI the Language Commission
|appointed under Article 344(1)| aIter they were scrutinised by a
Parliamentary Committee.
Under Article 347, on demand being made in that behalI, the
President may, iI he is satisIied that a substantial portion oI a State
desires the use oI any language spoken by them to be recognised by
that State, direct that such language shall also be oIIicially
recognised throughout the State or any part thereoI Ior such
purpose as he may speciIy.
Under Article 350-A a State is obligated to provide Iacilities Ior
instruction in the mother tongue at the primary stage oI children
belonging to a linguistic minority and the President has been
empowered to issue such directions to any State as he considers
necessary.
necessary.
Under para 6 oI the FiIth Schedule oI the Constitution the President
can declare areas to be scheduled areas and can issue directions in
regard to the administration oI these areas.
II the Union Government issues any directions under any oI the
provisions enumerated above and iI any State Government Iails to
comply with them, such Iailure answers the situation contemplated
by Article 365.
D. The ignificance of Aicle 365
The incorporation oI Article 365 in the Constitution is not without
signiIicance. The Constitution has not provided Ior separate Iederal
agencies to execute the Iederal laws. II the Union is to implement
them through the State Government by issuing directions to them,
the Union must have necessary power to seek obedience Irom the
States Ior the implementation oI Union directions. To achieve this
objective power is given to the President under Article 365
24
. But
inconsiderate use oI these directions can upset the constitutional
balance between the Union-State relationship
25
.
R.S. Gae has suggested that Parliament could, in case where the
State has Iailed to carry on the directions issued by it, pass a law
empowering the Central Government to call upon the State
Ministers and the authorities oI the State to implement the directions
issued by the Union Government and impose a penalty Ior Iailure to
do so. To achieve this purpose he is in Iavour oI invoking Article
258(2)
26
. II this suggestion is Iollowed then Article 365,
consequently Article 356, need not be invoked. As per his opinion
recourse to Article 365 can be had only iI the State Legislature
expressly prohibits the Ministry Irom 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 Ieature in regard to Articles 256 and
257 is that the only condition to be satisIied beIore the issue oI such
directions is the unilateral satisIaction oI the Government oI India, as
both the articles (Article 256 and 257) contained the expression
"such directions to a State as may appear to the Government oI
India to be necessary Ior that purpose". ThereIore this Committee
advocated Ior the repeal oI Articles 256, 257 and 365.
Alternatively this Committee suggested that iI 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 oI the
Inter-State Council.
28
It is submitted that the view taken by the Rajmannar Committee is
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 Iar as the Union directions are concerned.
E. Aicle 365 and fedealim
The Constitution has established Iederalism in India. But the political
transIormation that occurred in the country has produced certain
signiIicant changes in this area:
1. The Iederalism that normally envisages "competitive Iederalism" in
which both the Union and State Government compete with each
other Ior identiIication and operation in the constitutional structure
has given way to "cooperative Iederalism" which helps the Iederal
system to act in unison by minimising Iriction and also by promoting
cooperation among the various constituent Governments oI the
Federal Union Ior the purpose oI achieving certain desired national
goals
29
. In the process this cooperative Iederalism gave way to the
development oI "organic Iederalism" wherein the Iederation and the
Iederating units Iunction as part oI one organism to achieve the
common governmental purposes that are mentioned in the
constitutional document. ThereIore what is discernible is that the
Indian Iederalism in its working has been moved Irom the theoretical
Iramework oI cooperative Iederalism towards an organic Iederalism
to be placed towards the unitary end oI the Iederal spectrum.
30
2. Though the Iramers oI the Constitution have established a Iederal
policy in India, the long and continuous Congress rule under the
leadership oI Nehru and Indira Gandhi has put in hibernation the
Iederal Ieatures oI the Indian Constitution. But they came to the Iore
when regional parties rose to voice local demands and grievances
and to rectiIy economic imbalances created by centralised planning.
The growth oI the regional parties has Iurther resulted in the
Iormation oI coalition Governments both at the Union and State
level on the basis oI common minimum programmes/national
agendas Ior governance. Every regional party agrees to participate
in the coalition Government by giving deIerence to local needs and
sentiments. In the process it may so happen that a regional party
may eIIectively raise its voice in the Iunctioning oI the Union
Government. In this atmosphere oI 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 suIIicient
powers to issue directions to the States to act towards the
achievement oI goals set by the Constitution. To ensure this Article
365 has a signiIicant role to play under the Indian constitutional
scheme.
F. Conclion
From the Ioregoing analysis the Iollowing propositions would
emerge:
1. The Iramers oI the Constitution intended to make the Central
Government strong enough to tide over the diIIiculties created by
the Iissiparous tendencies. Article 365, in their view is one oI the
measures to achieve the said purpose. At present the Indian polity is
conIronted with problems like parochial tendencies, nepotism,
religious conIlicts, 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 oI the unity and integrity
oI 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 Irom the State Governments. Hence this is one oI the
purposes Ior which the power under Article 365 is to be used.
3. Article 365 is intended not only to supply an additional ground
Ior the President's action under Article 356 but also to restrict and
conIine the scope oI 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
Ialls within the compass oI this article or not. He has to exercise this
discretionary power Iairly so as to limit the scope oI Article 365 by
taking into consideration the Iederal principle underlying the
Constitution.
5. Dr B.R. Ambedkar said in the Constituent Assembly that beIore
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). II the Union Government issues any
such warning then non-compliance with such warning by the State
Government answers the situation contemplated by Article 365.
+ Assistant Professor, Department of Law, Andhra
University Return to Text
1. Originally the provisions oI the DraIt Constitution relating to
Iinancial emergency contained a clause which speciIied that
Iailure on the part oI the State to comply with any directions
issued by the Union under the article would be deemed to be
Iailure on the part oI the State Government to carry on the
Government oI the State in accordance with the provisions oI
the Constitution. This provision was accepted by the
Constituent Assembly, but at the revision stage the DraIting
Committee separated this clause Irom the Iinancial provisions
Committee separated this clause Irom the Iinancial provisions
and introduced Article 365. See B. Shiva Rao, "The
Framing of India's Constitution: A Stud" (New Delhi:
IIPA: 1968), p. 822. Return to Text
2. Krishna P. Shetty, "President's Power under Article 356 of
the Constitution - Theor and Practice" in Alice Jacob
(Ed.): Constitutional Developments Since Independence
(Bombay: Tripathi: 1975), p. 342. Return to Text
3. Sarkaria Commission Report on Centre-State Relations, Part
I (New Delhi: Government oI India: 1988), pp. 106-07.
Return to Text
4. (1994) 3 SCC 1 at 104 (Ior himselI and on behalI oI
Kuldeep Singh, J. Similar view was expressed by K.
Ramaswamy, J. who held a minority view - Ibid at p. 190.
Return to Text
5. Submitted by Ram Jethmalani, counsel Ior the petitioner.
Return to Text
6. "The Government oI the State cannot be carried on in
accordance with the provisions oI this Constitution." Return to
Text
7. (1994) 3 SCC 1 at 273 (Ior himselI and on behalI oI
Agrawal, J.). Return to Text
8. Sarkaria Commission Report on Centre-State Relations, Part
I, (New Delhi: Government oI India: 1988), p. 173, para
6.4.12. Return to Text
9. XIX CAD 503 Return to Text
10. Section 126 oI the Government oI India Act, 1935
empowered the Governor General to give directions to the
provinces and iI it appears to the Governor General that
eIIect 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 oI carrying out the directions given by
the Governor General. Return to Text
11. XI CAD 509 Return to Text
12. It provides provisions in case oI Iailure oI the constitutional
machinery in States. Return to Text
14. XI CAD pp. 512-13 Return to Text
15. 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 oI
Article 365. Return to Text
17. K. Subba Rao, "Some Constitutional Problems" (Bombay:
University oI Bombay: 1970), p. 44. Return to Text
18. Krishna P. Shetty, "President's Power under Article 356 oI
the Constitution - Theory and Practice" in Alice Jacob (Ed.):
Constitutional Developments Since Independence
(Bombay: Tripathi: 1975), p. 343. Return to Text
19. The High Court oI Calcutta held that the provisions oI Article
256 are mandatory which must be complied with by the
States in Ja Engineering Works Ltd. v. State of W.B.,
States in Ja Engineering Works Ltd. v. State of W.B.,
(AIR 1968 Cal 407) in the Iollowing Iact-situation: the State
oI West Bengal issued a circular to the police oIIicers in the
State not to intervene in case oI "gherao" oI the industrial
establishments by its workers. A writ petition was Iiled in the
Calcutta High Court challenging the circular. Treating Article
256 mandatory, the circular issued by the State Government
to its oIIicers not to enIorce certain sections oI the Criminal
Procedure Code (a Central law) was struck down as being
in violation oI Article 256. Return to Text
20. Entry 13, List II, Schedule VII oI the Constitution oI India.
Return to Text
21. 21 Entry 22, List I, Schedule VII oI the Constitution oI India.
Return to Text
22. Entry 2, List II, Schedule VII oI the Constitution oI India.
Return to Text
23. M.P. Jain, "Indian Constitutional Law" (Bombay: Tripathi:
1987), pp. 352-53. Return to Text
24. H.M. Seervai, "Constitutional Law oI India", Vol. III
(Mumbai: Tripathi: 1996), p. 3091. Return to Text
25. P.B. Mukherji, "The Critical Problems oI the Indian
Constitution", (Bombay: University oI Bombay: 1968), p. 28.
Return to Text
26. 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 oI the State has
no power to make the laws, conIers powers and imposes
duties or authorises the conIerring oI powers and the
imposition oI duties, upon the State or oIIicers and authorities
thereoI. Return to Text
27. R.S. Gae, "Administrative Relations between the Union and
the States", Vol. III, No. 3, JCPS. 1 (1969) at pp. 10-14.
Return to Text
28. Report oI the Centre-State Relations Enquiry Committee
(Madras: Government oI Tamil Nadu: 1971) pp. 22-23.
Also see P.B. Mukherji "The Critical Problems oI the Indian
Constitution" (Bombay: University oI Bombay: 1968), p. 27.
Return to Text
29. M.P. Jain, "Indian Constitutional Law" (Bombay: Tripathi:
1987), p. 379. Return to Text
30. ProI. A. Lakshminath, et. al. "Nehruvian Federalism and its
Contemporary Relevance", Vol. I, AULJ, 1993 at p. 56.
Return to Text
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