Ladies and gentlemen, we have been conferred with this enormous duty to abide by the most basic law of our country. We must make sure that in this endeavour we create no errors and ensure that the lawful document is capable of governing the country even 100 years from now. Therefore, today we must ensure the necessity or requirement of a provision like Article 356 in Indian Constitution which imposes State Emergency
Article 356 of Indian Constitution empowers the central government to dismiss elected state governments and impose direct rule in the states.
The concept was introduced by the name of ‘Division of Powers’ at the British India time. It was performed as an experiment in which the British government entrusted the provinces with limited powers over their provinces, but at that point of time the people of India were having a faded faith over the British man therefore the British took care and precaution to keep sufficient check on the powers given to the provinces. These powers were manifested under Section 45 and 93 of the Government of India Act, 1935 where the Governor General and the Governor under certain circumstances can exercise nearly absolute power and control over the provinces.
Under Article 356(1) of the Constitution of India, 1950 if the President, on the receipt of report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the government of the State cannot be carried in accordance with the Provisions of the Constitution, the President may by proclamation
Assume to himself all or any of the functions of the government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State.
Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of the Parliament.
Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including
Provisions for suspending in whole or part the operation of any provisions relating to anybody or authority in the State.
State emergency is essentially declared on “failure of constitutional machinery” in a state. Nearly every state in India has been under state of emergency at some point of time. The state emergency is commonly known as ‘President Rule’
If the President is satisfied, on the basis of the report of the governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the constitution, he can declare emergency in the state. Such an emergency must be approved by the Parliament within a period of 2 months. If the emergency has to be extended for more than three years, it can be done by a constitutional amendment, which was happened in Punjab and Jammu and Kashmir. During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President
Article 356, and the way it has been put to use in recent years, is a matter of debate. This article was referred to as dead letter by B. R. Ambedkar, Chairman of the Drafting Committee. The framers of the Constitution had hoped that this emergency provision would be used as a last resort, invoked only if the constitutional machinery in a state had failed.
When the imposition of Art, 356 is on mere mala-fide and extraneous reasons (burden of proof on states) the Court has the power of judicial review.
“Scope of Judicial Review” On 21 March 1977, Emergency was lifted and the Janata Party
came to power. Within a few weeks, the order under 257 was sent to 9 States (Governors) from the Union Ministry (Home Minister Charan Singh) which asked them to step down the Chief Ministers otherwise Article 356 would be imposed in 6 out of 9 States the Proclamation of Emergency was made. Shanti Bhushan went on record to say that constitutional machinery had actually failed because the mandate of the people had come to the fore in the general elections that they did not want the Congress in power and for which they had legitimately invoked Art 356.
The Court said that the fact that the ruling party at the states is not the same as the ruling part in the centre is no reason to say that constitutional machinery has failed for imposition of Art 356 because that is the very basic federal feature of the Constitution
In S.R Bommai Vs Union of India Article 356 imposed in Karnataka as some members of ruling party had defected. Before an opportunity to conduct the “floor test” was given, Emergency was invoked. Similar circumstances had led to Emergency in Meghalaya and Nagaland. In light of the Ayodhya incident (Babri) emergency was also imposed in states like Madhya Pradesh. Rajasthan on grounds of preserving secularism
The Court explained how both the sets invoking emergency are different.
In the first scenario, the invocation might still fit into ‘Political Crisis’ but alternatives had not been discovered WHEREAS;
In the second scenario, it might come under ‘Internal Subversion’
According to the Sarkaria Commission’s Report, which analyzed 75 cases of President’s Rule from June 1951 to May 1987 and found in 52 cases out of 75, Article 356 has been used not meant for. Thus, the use of the article for political purposes is to uproot the federal character and democratic principle which is guaranteed by the judiciary as basic structure of the Constitution.
Sarkaria Commission recommended an indicative list and that there should be rules and a chapter and guidelines specifying that the Governor should issue guidelines and warnings giving ample opportunities to the State Governments to mend their ways before actually imposing presidents’ Rule. No perfect guideline has been laid down. Although, Sarkaria Commission guidelines are referred in places where the Supreme Court applies the ‘failure of constitutional machinery’ to specific case scenarios. The Sarkaria Commission report gives four broad categories i.e Political crisis, Internal Subversion, Public Disorder of such a magnitude such that the State’s security is endangered, Non-compliance with Constitutional Directions of Union Government.
The Commission decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions of Article 356, all attempts should be made to resolve the crisis at State level.
After the Supreme Court's judgment in the S. R. Bommai case, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.
The Majority in Supreme Court pointed out that actually President means the Union Govt. with the formal power, the actual power to proclaim emergency rests with the Union Government. Secondly, the question whether an incumbent minister has lost majority cannot be resolved in the Governors’ chamber and can only be resolved through a floor test which means the governor has to explore alternatives. Therefore, the Court ruled that Karnataka, Meghalaya and Nagaland were wrong in not conducting the floor test.
UTTARAKHAND- What happened similarly in Uttarakhand was that Arun Jaitley argued that internal subversion was being caused by the Rawat government with regards to the passing of bills because they were being passed even without majority and the provision of appropriations bills was being misused in the sense that it was being passed with a voice vote. The opposition went on to ask that the appropriation bills should be passed with due procedure. It should be remembered that there was still a Congress govt. However, 8 rebel MLA’s did a sting operation and brought before the governor evidence of internal subversion on 18 March 2016 and the sting operation was released. Rawat asked for an opportunity to show majority and wanted 10 days before conducting the floor test. The opposition, doubtful of 10 days, went to produce more videos and proof to the Governor. The Governor continuously went on to send Governor Reports to the Union Government every time the Opposition approached. On 26th march, the Union cabinet submitted a report to the President and at midnight the Emergency was imposed in Uttarakhand. It should be remembered here that if anyway the floor test was going to happen on Monday, why invoke an Emergency on Saturday night? Even though internal subversion can be claimed, yet ‘other and ample’ opportunities were not discovered by the Government and an opportunity was not given to the Rawat government to conduct the Floor Test.
Now there are two views, firstly, to prevent horse trading emergency was imposed, because the floor test would have been a result of horse trading and not a genuine floor test. The other reason to challenge it is that if we always allow this concern that horse trading may ensure that a floor test can never be conducted and that horse trading may happen is not sufficient to impose Emergency.
Arun Jaitley has went on record to say is the concern of a 10 day gap which is that horse trading will definitely happen in these 10 days. On the other hands, Uttarakhand citing SR Bommai says that the conduction of a floor test is essential according to this landmark decision.
The procedure is that when an appropriation bill fails then the Centre allocates funds, the procedure of which has been described in an Act which requires the imposition of Article
356. This was again a defense for the imposition of the Emergency given by Arun Jaitley. However, the SR Bommai decision does not make the conduction of floor test as mandatory; it is subject to the conditions in Karnataka, Nagaland and Meghalaya.
The scope of judicial review depends upon the material before the President. If the material in question is such that it induces a reasonable man to come to the conclusion that constitutional machinery has failed, but if no such material exists and the material cannot reasonably suggest that it is mala-fide or extraneous it is open to challenge via judicial review. This burden of proof falls upon the State to prove that either such material did not exist or was based on extraneous conditions. If it is thus proved, the Proclamation is struck down. You cannot make anyone liable for the Proclamation because it is a policy decision and the review is thus very limited. Thus, the scope of judicial review extends to the material, which although touted as a limited review is not actually that limited in nature. Such a material includes both the Governors’ Report as well as the definition of ‘or otherwise’ in Article 356 which thus includes any other reason upon which the President may rely for such imposition of the Emergency.
Thus, 2 main observations-
Not giving opportunity for conducting floor test is an indicator of mala-fide intention and there is no clear definition of failure of constitutional machinery.
The scope and extent of judicial review extends to the material upon which the President relied upon to finally impose the Emergency.
“No provision of the Constitution has been so often used, misused, and abused as Article 356, 108 times since 1954”
In my opinion rather than forming a government by illegal means it is better to dissolve the Assembly. In terms of political morality, the author agrees to the minority view. But constitutional morality allows for alternatives such as floor test to judge the strength of ministry, putting the legislature in suspended animation if occasion arises, speaking report by the Governor/advice based upon relevant material tendered by the Council of Ministers etc. If such alternatives do exist, the Governor should try them before recommending President’s rule.
Furthermore, the appointment of the Governor as per Sarkaria Commission’s recommendations is necessary to give clarity in the meaning of the expression ‘Failure of constitutional machinery in the State’.
Inter Alia, such an amendment must ensure that, if used at all, the recourse to Article 356 must be a last resort; one that is embraced after exhausting the options provided by other Articles in the Constitution such as 256, 257 and, more importantly, 355. Other measures, such as the condition that the Centre must formally communicate to a State the facts and reasons for proposing to bring it under President's Rule and give the State an opportunity to reply, are essentially intended to ensure that the proposed use of Article 356 is based on a rigorous method. Mr. Jaitley's suggestion that the Governor's report recommending President's Rule should be in the nature of a "speaking order" is virtually identical to the recommendation made by the National Commission to Review the Working of the Constitution (‘NCRWC’). This was that such a report should contain "a precise and clear statement of all the material facts and grounds, on the basis of which the President may satisfy him as to the existence or otherwise of the situation contemplated in Article 356." Like some other emergency provisions in the Constitution, Article 356 was introduced as an extraordinary safeguard, not something that is invoked in non-extreme circumstances. During the Constituent Assembly debates, Dr. B.R. Ambedkar even hoped it would be a "dead letter," something that would "never be called into operation." The purpose of the proposed constitutional amendment should be to ensure that this democratic vision of cooperative federalism comes true.
“Thank you and reminding the importance of this article and their sacred duty to Imbibe a constitution that is good”
Art 356, Constitution of India (1950)
Government of India, Constituent Assembly Debates, Vol. IX (New Delhi: Lok Sabha Secretariat, 1949)
S.R Bommai Vs Union of India, AIR 1994 SC 1918
The Sarkaria Commission Report (1987)
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
State of Rajasthan Vs Union of India, AIR 1977 SC 1361
D.D. BASU, Introduction to the Constitution of India, 19th ed.
National Commission to Review the Working of the Constitution, “A Consultation Paper on Article 356 of the constitution”, II, 2.1 (2002)
Soli Sorabjee, “Constitutional Morality Violated in Gujarat”, Indian Express, Pune, India, Sept. 21, 1996
4th year student || BBALLB (Hons.)
JAGRAN LAKECITY UNIVERSITY, BHOPAL