EMERGENCY PROVISIONS

By | January 1, 2017

EMERGENCY PROVISIONS

Emergency

The term ’emergency’ may be defined as ‘a difficult situation arising suddenly and demanding immediate action by public authorities under powers specially granted to them by the constitution or otherwise to meet such exigencies’. Dr. Ambedkar claimed that the Indian federation was unique inasmuch as in times of emergency it could convert itself into an entirely unitary state. The position was upheld by the Supreme Court in Gulam Sarwar verses UOI.

“The constitution of India is unique in respect that it contains a complete scheme for speedy re-adjustment of the peace-time governmental machinery in moments of national peril. These provisions may appear to be particularly in a constitution which professes to be built upon an edifice of fundamental rights and democracy. But the provisions must be studied in the light of India’s past history; India had her in glorious days whenever the central power grew weak. It is far well that the constitution guards against the forces of disintegration. events may take place threatening the very existence of the state and if there are no safeguards against such eventualities the state together with all that is desired to remain basic and immutable, will be swept away”.

In India, three types of emergency are available under the constitution. These are:

(a) National emergency (proclamation of emergency).

(b) Failure of constitutional machinery in a state.

(c) Financial emergency.

[A] National Emergency (Article 352)

If the president is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation.

Grounds for proclamation of emergency: – ‘National Emergency’ is imposed due to war, external aggression or armed rebellion i.e. when there is a threat to the security of the country or any territory thereof. The president shall not issue a proclamation unless a decision of the union cabinet that such a proclamation may be issued (or varied), has been communicated to him in writing. Such a proclamation may be made even before the actual war, external aggression or rebellion if the president is satisfied that there is imminent danger thereof.

The provisions of article 352 were made more stringent by the constitution 44th amendment act, 1978. To prevent the misuse of emergency provisions, the words ‘armed rebellion’ were substituted for ‘internal disturbance’. The expression “internal disturbance” was found to be too vague and wide; it may cover a minor disturbance of law and order or even a political agitation. it gave wide discretion to the executive to declare emergency even on flimsy grounds. for instance, in 1975, the emergency was declared on the ground of internal disturbance by the then prime minister Indira Gandhi because the opposition parties had given a call to launch a movement with a view to compelling her to resign from her post as her election to the lok sabha was declared void by the Allahabad high court.

Thus, after the 44th amendment, ‘internal disturbance not amounting to armed rebellion’ would not be a ground for the issue of a proclamation of emergency. This change has restricted the scope of what may be known as ‘internal emergency.’

It may also be noted that the president shall declare emergency only on the ‘written advice’ of the cabinet and not merely on the advice of prime minister as was done by the Prime Minister Indira Gandhi in 1975. She had advised the president to proclaim emergency without consulting her cabinet. The cabinet was simply informed about the proclamation of emergency. Thus, cl. (3) was added to article 352 by the 44th amendment to prevent the recurrence of such a situation in future.

There have been three proclamations of national emergency in India – in 1962 at the time of Chinese aggression, in 1971 in the wake of war with Pakistan and in June 1975 on grounds of internal disturbance.

Approval and Duration of proclamation: – Every proclamation is required to be laid before each house of the parliament, and is to cease to operate at the expiration of 1 month (before 44th amendment, it was two months, without the approval of both houses of parliament) from the date of its issue unless in the meantime it has been approved by resolutions of both the houses. However, once approved by parliament, the proclamation may continue for 6 months at a time unless revoked by the president earlier. Resolutions approving the proclamation or its continuance have to be passed by both house of parliament by a majority of the total membership and not less than 2/3rd of those present and voting.

Provided that if and so often as a resolution approving the continuance in force of such a proclamation is passed by both houses of parliament the proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause.

Revocation of proclamation: – Prior to 44th amendment, a proclamation of emergency once approved by both houses of parliament could be revoked by the president by making a fresh proclamation. Thus, the executive was the sole judge to decide as to when the proclamation should be revoked. In other words, once approved by parliament, emergency could remain in force indefinitely i.e. so long as the executive wanted it to continue. There was no provision for periodical review by parliament every six months.

Now, after the 44th amendment, firstly, a proclamation may be revoked by the president by making a subsequent proclamation. Secondly, the 44th amendment requires a periodical review, every six months, of the proclamation by both houses of parliament. thirdly, the president shall revoke the proclamation of emergency, if the lok sabha passes a resolution disapproving the proclamation (or varying it) or its continuance in force; for this, a notice in writing signed by not less than one-tenth of the total number of members of the lok sabha is needed.

Judicial review of proclamation: – A view was prevalent that the question whether emergency exists is essentially a political question entrusted by the constitution to the union executive and therefore not justiciable before the court.

However, in Minerva Mills Ltd. verses UOI, it was held that there is no bar to judicial review of the validity of a proclamation of emergency issued by the president under article. 352. Merely because a question has a political complexion, it is no ground why the court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination. The court’s power, however, is limited only to examining whether the limitations conferred by the constitution have been observed or not. the court cannot go into question of adequacy of the facts and circumstances on which the president’s satisfaction is based unless it can be shown that there is no satisfaction of the president at all (in that case the exercise of the power would be constitutionally invalid). Where at all, the satisfaction is absurd or perverse or mala fide or based on wholly extraneous and irrelevant grounds, it would be no satisfaction at all and it would be liable to be challenged before a court of law.

 Consequences of proclamation of emergency

(1) Effect of proclamation of emergency: – Though the state legislature and government are not suspended, the executive, legislative and financial powers rest in the Centre. Notwithstanding anything in this constitution, the executive power of the union shall extend to the giving of directions to any state as to the manner in which the executive power thereof is to be exercised. The union parliament acquires the power to legislate on any subject included in the state list (article 353). But such emergency legislation ceases to have any effect at the expiry of 6 months after the proclamation ceases to operate. also, it may be noted that the executive power of the union to give directions and the power to make laws shall also extend to any state other than the state where emergency is in force, if the security of India or any part of the territory is threatened by activities in or in relation to that part of the territory of India in which the proclamation of emergency is in operation.

Again, it may be noted that the law-making power of the state is not suspended during the emergency. The state can make law but it is subject to the overriding power of the union parliament. Article 354 provides for acquisition of powers by union executive relating to distribution of revenues.

While a proclamation of emergency is in operation, life of parliament can be extended by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate [article 83(2)].

(2) Effect on fundamental rights (articles 358-359)

As soon as the emergency is proclaimed on the ground of war or external aggression, all the freedoms guaranteed by article 19 are automatically suspended. art. 358 make it clear that in the case of proclamation under article. 352, article. 19 shall not restrict the power of the state to make any law or to take any executive action abridging or taking away the fundamental rights guaranteed by art. 19. But, any law so made shall, to the extent of the incompetency, cease to have effect as soon as the proclamation ceases to operate. However, things done or omitted to be done during emergency cannot be challenged even after the emergency was over on the ground of the concerned emergency law had violated article 19.

It may be noted that 44th amendment excluded the ground of ‘armed rebellion’; thus, if emergency is declared on this ground, freedoms guaranteed by art. 19 cannot be suspended. Further, the amendment made it clear that article 358 will only protect ’emergency laws’ from being challenged in a court of law and no other laws which are not related to the emergency. Prior to this, the validity of even other laws, which were not related to emergency, could not be challenged under article 358.

article 359(1) lays down that where a proclamation of emergency is in operation, the president may by order declare that the right to move any court for the enforcement of such of the rights conferred by part 111 (except articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. Thus, the president has the power to suspend the right to move courts for the enforcement of any of the fundamental rights (except articles. 20 and 21) for a period not exceeding the proclamation of emergency.

The main difference between article 358 and article 359 is that fundamental rights are automatically suspended during emergency (article. 358), while under article. 359 it is president who gives the order. However, every order made under clause (1) shall, as soon may be after it is made, be laid before each house of parliament. Further, under article. 359, the fundamental rights are not suspended, it is the right to seek remedy that is suspended.

The constitution (38th amendment) act, 1975, added a new clause (1-a) in art. 359 which provide that while an order under article. 359(1) is in operation, nothing in part 3 shall restrict the power of the state to make any law or to take any executive action. But, any law so made shall, to the extent of the incompetency, cease to have effect as soon as the proclamation ceases to operate (except as respects things done or omitted to be done before the law so ceases to have effect). The 44th amendment, besides saving articles 20 and 21 from the purview of emergency also provides that those laws that are not related to the emergency can be challenged in a court even during the emergency.

The proclamation of emergency does not invalidate a law which was valid before the proclamation.

Duty of union to protect states (article 355)

Article 355 lays down that “it shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this constitution.”

Such provisions are also found in other federal constitutions i.e. USA and Australia. But in US and Australia the center acts only when the request is made by states, while there is no such pre-condition under article. 355. The center can thus interfere even without the state’s request. Further, it is this duty in performance of which the Centre takes over the government of state under article 356 in case of failure of the constitutional machinery in the state. in other federations, the centre cannot do so.

Article 355 may be invoked by the centre to interfere in the affairs of the state under certain situations like state’s failure to provide adequate protection to the central government agencies in the state, the destruction of the properties of central government by agitators, etc. on several occasions, the central government has appointed commissions of inquiry under commission of inquiry act, 1952, to go into charges of omission or commission, bordering on corruption, against the state chief ministers, ex-chief minister, ex-ministers.

In Sarbananda Sonowal verses UOI , the supreme court for the first time got an opportunity to interpret the word “aggression” used in article. 355. It held that the unabated influx of illegal migrants of Bangladesh into Assam leading to perceptible change in the demographic pattern of the state and contributory factor behind the outbreak of insurgency in the state having dangerous dimensions of greatly undermining national security is an act of aggression.

The court observed: the word “aggression” is not to be confined only with “war”. Though war would be included within the ambit and scope of the word “aggression” but it comprises many other acts which cannot be termed as war. According to the traditional international law, “war is a contest between two or more states through their armed forces, for the purpose of overpowering each other and imposing conditions of peace as the victor pleases”. But with the passage of time, the nature of war has considerably changed. Modern war may involve not merely the armed forces of belligerent states but their entire population. The framers of the constitution have consciously used the word “aggression” and not “war” in article. 355.

President’s rule in states (‘state emergency’) (article 356)

‘‘Failure of constitutional machinery in state”if the president on governor’s report, or otherwise is satisfied that a situation has arisen in which government of a state can’t be carried on in accordance with the constitutional provisions, he may issue a proclamation to that effect [cl. (1)].

The following consequences ensue on the issuance of a proclamation under article 356(1):-

(1) President may assume to himself all or any of the functions of the state government, or powers vested in governor, or anybody or authority in the state other than state legislature.

(2) President may declare that powers of legislature of state shall be exercisable by 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.

The president cannot, however, assume to himself, any of the powers vested in high court, or to suspend any constitutional provision relating to it [proviso, article. 356(1)].

The proclamation issued under article. 356(1) may be revoked or varied by the president on a subsequent proclamation [article. 356(2)].

it is to be noted that under article. 356 the president acts on a report of the governor or on information received otherwise. This means that the president can act even without the governor’s report. This is justified in view of the obligation of the centre imposed by article 355 to ensure that the state government is carried on in accordance with the constitutional provisions. In view of the centre’s ultimate responsibility to protect the constitutional machinery of the states, the framers thought it proper not to restrict the centre’s action merely on the governor’s report. The governor might not sometimes make a report.

Article 365 also provides that where any state failed to comply with or to give effect to union directives; it shall be lawful for the president to hold that such a situation has arisen in which the state government cannot be carried on in accordance with the constitutional provisions.

Duration of proclamation under article 356

Article 356(3) provides that a proclamation relating to state emergency shall be laid before each house of parliament and unless both houses approve it by a resolution, it shall cease to have effect (except the one which revokes the earlier one) at the expiration of two months, unless in the meantime, it has been approved by resolutions of both houses of parliament. If approved, it will be valid for six months.

however, proviso to clause (3) provides that if any such proclamation is issued at the time when lok sabha is dissolved or the dissolution takes place during the period of two months and the proclamation is passed by the rajya sabha but not by the lok sabha, it shall cease to operate at the expiry of 30 days from the date on which the new lok sabha meets, unless before the expiry of 30 days it has also been passed by the lok sabha.

Article 356(4) provides that the duration of proclamation can be extended by 6 months each time by both houses of parliament passing resolutions approving its continuance. the proviso to clause (4) lays down that the maximum period for which a proclamation can remain in operation is 3 years from the date it is issued under article 356(1). Thereafter, the president’s rule must come to an end and the normal constitutional machinery to be restored in the state.

Article 356(5) [inserted by 44th amendment], however, lays down that beyond 1 year a proclamation can be continued only if emergency under article. 352 were in operation in the whole of India or in the whole or any part of the concerned state, and the election commission certifies that it is not possible to hold elections to the state legislature. This provision has put a restraint on the power of parliament to extend a proclamation; it can be extended beyond one year only if special circumstances exist.

It may be noted that in Punjab, the president’s rule was imposed for 5 years but for this the constitution was amended several times.

Revocation of proclamation under article 356

A proclamation issued under article 356(1) expires:

(1) After two months of its making, if it is not presented for approval before both houses of parliament.

(2) Even before two months, if the proclamation on presentation to the houses of parliament, fail to get approval from any house.

(3) after 6 months from the date of proclamation, in case no further resolution is passed by the houses of parliament after the passage of the initial resolution approving the said proclamation.

(4) After the expiry of 6 months from the passage of the last resolution of approval passed by parliament subject to an overall maximum limit of 3 years from the date of proclamation. Continuance of the proclamation beyond one year is subject to special circumstances.

(5) The date on which the president issues a proclamation of revocation.

 

 

Exercise of legislative powers under proclamation issued under article 356 (article 357)

When a proclamation is made under article 356(1), the powers of the state legislature are to be exercised by parliament. Parliament can confer on the president the power to make laws for the states. Parliament may also authorize the president to delegate such powers to any other authority as specified by him subject to such conditions as he may impose [article 357(1)(a)]. The president may authorize (when the lok sabha is not in session), expenditure from the state consolidated fund pending its sanction by parliament [article. 357(9c)].

A law made under these provisions by parliament or the president, or the authority in which the power to make laws is vested under article 357(1) (a), may confer powers and impose duties upon the union officers or authorities [article 357(1) (b)]. Such a law continues to have effect, to the extent it could not have been made but for the issue of the proclamation under article 356(1), even after the proclamation ceases. Such a law may, however, be altered, repealed or amended by the state legislature [article 357(2)].

Thus, the life of a law made by parliament/ president during the operation of article 356 proclamations is not co-terminus with the subsistence of the proclamation. The law does not come to an end automatically as soon as the proclamation is revoked (though the power of the union to make laws for the state concerned on the subject within the state list ceases). An action by the state legislature is necessary to change these laws.

Distinction between article 352 and article 356

(1) Article 352 (‘national or internal emergency’) restricts central government’s intervention to a situation of war, external aggression, or armed rebellion. Article 356 (‘state emergency’) applies to a situation of failure of constitutional machinery in a state.

That means under article 352, the relationship of all states with the centre undergoes a change. But, under article 356, the relationship of only the concerned state with the centre is affected.

(2) It may be noted that in comparison to article 352, under article. 356, the state legislature remains suspended and dissolved. Laws for the state are made by parliament and the governor administers the state on behalf of the president.

in case of national emergency, the state governments and legislatures continue to function normally and exercise the powers assigned to them under the constitution. all that happens under article. 352 is that the centre gets concurrent powers of legislation in state matters and thus it can make the states follow a uniform all-India policy.

(3) While article. 352 affects fundamental rights, fundamental rights remain unaffected under article. 356.

(4) A proclamation under article 352 has to be approved by parliament within a month and thereafter every six months. But, there is no maximum duration prescribed for the operation of such a proclamation. Thus, it can be continued indefinitely.

The proclamation under article 356 is to be approved by parliament within two months, and thereafter every six months, and the maximum period for which it can remain in force is three years.

(5) Though the scope and purpose of articles 352 and 356 are very different, there might arise a situation when article 356 may have to be invoked to effectuate article 352 examples when a state government does not cooperate with the centre in defence matters, or in quelling internal disturbances, or when it encourages the same.

Control over president’s action under art. 356

(a) Parliamentary control

The consideration of the proclamation of president’s rule in states has been specifically vested by the constitution in parliament. The proclamation has to be initially laid before each house of parliament. Parliament can thus discuss at this time whether the proclamation should or should not have been made by the central government.

Further, the proclamation has to be ratified by parliament every six months. The idea behind periodic parliamentary ratification of continuance of the proclamation under article 356 is to afford an opportunity to parliament to review for itself the situation prevailing in the concerned state so that the central executive does not feel free to keep the proclamation in force any longer than what may be absolutely necessary. The central government is responsible and accountable for all its actions to parliament. A safeguard against any misuse of power by the executive is that the ultimate authority to decide whether a proclamation under article 356 is to be continued or not lies with the parliament.

In 1999, a proclamation under article 356(1) was issued in state of Bihar; the state government and the state legislature were suspended. The proclamation was approved by the lok sabha but when it became clear that the rajya sabha would not approve it, because of the opposition by the opposition parties which were in a majority in that house, the government revoked the proclamation later in exercise of power under article 356(2). The state government was installed in office and the state legislature which had been suspended was then revived.

(b) Judicial review of presidential action under article 356

The satisfaction of the president under article 356 and the basis thereof “are subjective and are not subject to objective tests by judicial review.” the question involves high executive and administrative policy and the court will find out no standard for resolving it judicially.

In 1975, the 38th constitution (amendment) act introduced cl. (5) in article 356 barring judicial review of a proclamation under article 356(1) on any ground. The clause made presidential ‘satisfaction’ to issue a proclamation under article. 356(1) as ‘final and conclusive’ which ‘shall not be questioned in any court on any ground.’ this clause was, however, withdrawn by the 44th constitution (amendment) act, 1978.

In the below-discussed case, it was held that in spite of the broad ambit of the power under article. 356, a presidential proclamation could be challenged if power was exercised mala fide, or on “constitutionally or legally prohibited” grounds, or for “extraneous or collateral purposes.”

Scanning of article 356

India’s federal system is one in which the structural-functional balance is in favour of the centre vis-a-vis the units, namely, the states. The constitution-makers stumbled on some provisions of the American and Australian constitutions to the effect that the federal government should ensure the maintenance of the constitution by the constituent states. In fact all the major federal countries of the world have either expressly kept some provision of this nature in their constitutions itself or have evolved it through judicial decisions to counter exceptional insurgencies in the federal units.

The purpose of article 356 is that the centre can take remedial action to put the state government back in its place so that it can function according to the constitution. Any misuse or abuse of power by the central government will damage the fabric of federalism.

Despite its utility, article 356 has often remained under a cloud of criticism. The language of article 356, which is quite wide and loose, has made the matter worse. Article 356 has been described as “an indiscriminate and politically motivated invasion of the union to supersede the state government”. Article 356 do violate the federal nature of the polity and has often been misused by the union for political gains. Even those who are staunchly opposed to its use invite the union government to resort to it when the rival party is in the saddle. Article 356 is also criticized as being undemocratic, because people of the state has no say in the matter.

Dr. Ambedkar, the architect of article 356, had said that article 356 should normally remain a “dead-letter” and would be used only as a last resort. However, until now, it has been used nearly 100 times (at the average rate of two instances per year) and on grounds as diverse as could be imagined. Such large scale recourse to article 356 undermines the prestige and authority of state governments, and is therefore against public interest.

It is worth noting that article 356 finds its place in part 17 of the constitution relating to emergency provisions. it is also to be noted that as per article. 355, it shall be the duty of the union to protect every state against external/internal disturbances and to ensure that the government of the state is carried on in accordance with the constitutional provisions. This implies that the union government has the obligation to do whatever is in its power to help the state in its endeavor to conform to the constitution. Only when the union fails in its attempt or finds it impossible to do anything then it should think of the next step, namely action under article 356. The prescription of the constitution is far from looking at the first opportunity to interfere. The power given under article 356 is not the offshoot of a right, but the compliance of a duty. It is the performance of this duty which justifies the total invasion of the state field. this shows that action under article. 356 is to be taken not out of liking, but out of compulsion when circumstances are so grave as it cannot be dispensed with.

Proper grounds for application of article 356

(1) Hung Assembly Scenario – Where, after a general election, no party is able to secure a working majority in the legislative assembly. Or, where the party having a majority declines to form a ministry and the governor’s attempt to find a coalition ministry able to command a majority have failed. Or, where a ministry having resigned & the governor finds it impossible to form an alternative government.

It may be noted that when a new state is created as a result of territorial reorganization or upgrading of a union territory and there is no legislature for such state until election is held therefore, resort may be had to article 356 as a “stop-gap” arrangement.

(2) Corruption, maladministration, etc. president’s rule may be imposed when there is gross mismanagement of the affairs of a state government, or abuse of its power, or corruption on the part of the state government.

(3) Acting contrary to the constitution of India A subversion of the constitution by the state government while professing to work under the constitution or creating disunity or disaffection among the people to disintegrate the democratic social fabric, or to subvert its ‘basic features’ such as federation, secularism or democracy. Thus, the president’s rule may be imposed when a political party seeks to subvert the principles of responsible government and sets up a party dictatorship.

(4) Acting contrary to the union directives – where a state government fails to comply with the directions issued by the union under the article 257(2)-(3); 353a; 360(3); 339(2), even after warning.

(5) Failure to meet an extraordinary situation – example an outbreak of unprecedented violence, a great natural calamity such as a severe earthquake, a flood, or a large epidemic, etc. failure to meet such situation amounts to an abdication of its governmental power by the state government.

(6) Security concerns – a danger to national integration or security of the state (calling for an application of articles. 352 or 355) or aiding or abetting national disintegration or a claim for independent sovereign status.

 Improper grounds

(1) Improper action by governor in case of political instability – where, after the resignation of a chief minister, or after the dismissal of the ministry on losing the majority support in the assembly, the governor recommends dissolution under article 356, without probing the possibility of the formation of an alternative government.

where the governor declines the request of a ministry which has not been defeated on the floor of the house and recommends its supersession, without giving the ministry an opportunity to demonstrate its majority support through the ‘floor-test’ and acting solely on his subjective assessment that the ministry no longer commands the confidence of the assembly. The floor-test may be dispensed with only in exceptional circumstances, such as an atmosphere of violence; it was not possible to convene a sitting of the assembly for the purpose [s.r. bommai case].

(2) Overwhelming defeat in the lok sabha elections –the union government cannot dismiss a duly elected state government on the sole ground that the ruling party in the state suffered an overwhelming defeat in the election to the lok sabha (as held in bommai case, thus, disapproving contrary view in state of rajasthan verses uoi case).

Further, if a state government is punished by repeated dissolution of its assembly, within a short period, the action under art. 356 is improper (state of rajasthan verses uoi case).

(3) Power used merely for achieving ‘good government”the power cannot be used by the union executive merely for achieving ‘good government’ in a state, even while the ministry is enjoying confidence of the majority in the assembly. The cause must be a ‘failure of the constitutional machinery’.

Further, every noncompliance with a particular provision of the constitution does not call for action under article. 356. The non-compliance shall be such as to give rise to such a situation where the state government cannot be carried on in accordance with the constitutional provisions.

(4) Situation of ‘internal disturbance’ – where, in a situation of ‘internal disturbance’ not amounting to or verging an abdication of its governmental powers by the state government, all possible measures to contain the situation by the union, in the discharge of its duty under article 355, have not been exhausted.

If one looks at the past instances of imposition of president’s rule in India, three common grounds emerge that have been invoked under article 356 – Breakdown of law and order, political instability, corruption and maladministration.

Maintenance of public order is a constitutional power and responsibility of the state [entry 1, list If failure to maintain public order on the part of a state government be taken as its failure to ‘carry on the government in accordance with constitutional provisions’ within the purview of articles. 355-356, failure to maintain good local government [entry 5, list 2] or public health [entry 6, list 2], may also be legitimate grounds for intervention of the union under articles. 355-356. such a wide interpretation would make the federal system under the Indian constitution a mere license at the will of the union government. it is only when the situation becomes so grave as it cannot be controlled by the state government it should be open to the state concerned to seek the help of the union, as in the constitution of America and as indicated in article 355 of our constitution. If the internal disturbance acquires the dimensions of an armed rebellion the proper course would be an action under article. 352.

Another ground frequently resorted to, is political instability. Instability is inherent in the parliamentary system. England too experienced such situation. In bommai case, the Supreme Court ruled that the political instability invoked in respect of the states of Karnataka, Meghalaya and Nagaland was not a valid ground. Further, political instability is not a problem of the union, but that of the governor, who is the constitutional head of the state and has to handle the situation as per the traditions of parliamentary democracy. It is true that the lack of discipline and decorum among public men hampers the smooth working of the system. Resort to violence within the precincts of the assembly, or refusal of the chief minister to step down when a criminal charge is impending or even framed, or frequent defections and change of loyalties by the legislatures, shatters the parliamentary system. But they are by themselves no reason to invoke article. 356. These maladies of the political body have to be treated appropriately. The recourse to article 356 will be justified only if no caretaker ministry may be put in place, or when election in the immediate future is not possible.

The third ground often invoked is corruption and maladministration. That is no ground to dislodge a government installed by public verdict and answerable to the electorate. If the union government can have the right to stamp out a state government from power on that account, state governments may also ask the union government to step down when corruption and maladministration become rampant in the union government.

Sarkaria commission’s recommendations

The Sarkaria commission has recommended that the president’s rule can be used only in the event of the political crisis, internal subversion, physical break-down, and, non-compliance with constitutional directives of the union executive. The commission has pointed out that approval of the parliament is to be secured before imposing the president’s rule.

The commission inter alia recommended that before invoking article 356, a warning in specific terms should be given to the erring state. All alternatives should be exhausted to contain the situation and all attempts to resolve the crisis at the state level should be made. Such alternatives may be dispensed with only in case of extreme urgency. The governor’s report under article 356(1) should be speaking document and the material facts/grounds on which article 356 is invoked must be made an integral part of the proclamation issued under article 356(1) for the purpose of judicial review.

Suggestions

The consensus of opinion appears to veer round to amending the article 356 to prevent its misuse instead of abrogating it altogether. An amendment in general terms (with explanation to the general rule in enumerating circumstances in which the powers should not be invoked) will do. it is suggested that the president’s satisfaction as envisaged by art. 356 should be reached at after consultation with a five-member committee consisting of prime minister, attorney general of India, chairman of rajya sabha, leader of the opposition party in lok sabha and the governor of the concerned state. it is also suggested that the corresponding provision should be made for the union as well (recent indications are that the union government is not immune from failure of constitutional machinery); in such a case, there is more chance of the article being construed correctly and not being misused as in the past.

Judicial review is a good safeguard to keep down the frequency of proclamations but a lasting solution resides elsewhere. a healthy convention should be developed so that the power under article 356 is neither exercised capriciously nor arbitrarily. The emphasis should be put on developing the practice in consonance with the spirit of the constitution. This can be achieved if all the political parties appreciate the fact that in a democratic set up it is quite probable that beneficiary of article. 356 today might become the victim of it tomorrow. Thus article 356 should be restored to only in case of failure of constitutional machinery. Since it is an emergency provision, it should be strictly construed.

In ADM Jabalpur verses Shivkant , the court observed that the maxim – salus populi est suprema lax is important in regard to a declaration or proclamation under article 352 or 356; the stability of a state or country and its people are matters of paramount importance. And, it was on that principle which this court, deprived of the power to examine or question any materials on which such declaration may be based, has to base its decision regarding the validity of a proclamation.

Comments – these cases show that the central government takes a broad view of the expression “the government of the state cannot be carried on in accordance with the provisions of the constitution” and feels justified in invoking article 356(1) for intervening in the administration by the state government.

In State of Karnataka verses Union of India, the Supreme Court observed: “the kind of federation established in India has a strong unitary bias, with power given to the centre of supervision, in certain circumstances, of the state government. Hence, it cannot be said that centre can take no action which result in interference with the governmental functions of the state government”.

However, in the historic judgment – S.R. Bommai verses Union of India; the supreme court has laid down various guidelines in regard to the use of article. 356, which, it is hoped, would put a check on arbitrary dismissal of state governments in future and strengthen the federal structure of Indian polity.

The Supreme Court in the Bommai case observed: “in view of the pluralist democracy and the federal structure that has been accepted under the constitution, the party or parties in power at the centre and in the states may not be the same. Therefore, there is a need to confine the exercise of power under article 356(1) strictly to the situation mentioned therein which is a condition precedent to the said exercise.”

 [C] Financial Emergency (Article 360)

The president is authorized by article 360 to declare by a proclamation financial emergency if he is satisfied that the financial stability or credit of India or any part of its territory is threatened. It has to be laid before both houses of parliament and ceases to operate at the expiration of two months unless meanwhile approved by the resolutions of the two houses. Once approved by parliament, unlike proclamations under article 352, it may continue indefinitely until revoked or varied.

During the operation of financial emergency, the executive authority of the union extends to the giving of directions to any state to observe certain specified canons or financial propriety and such other direction that the president may find necessary or adequate. These directions may include reduction of salaries or allowances of all those serving a state and reserving for the president’s consideration all money bills and other bills under art. 207 after these are passed by the state legislatures. The president may also direct reduction in salaries, etc. of all those serving in connection with the affairs of union including judges of the Supreme Court and the high courts. Thus far, there has been no occasion for the promulgation of financial emergency in India.

_________________________________________________

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

What did I miss? Don't forget to leave your valuable feedback

This site uses Akismet to reduce spam. Learn how your comment data is processed.