Author: Pari Agrawal
TABLE OF CONTENTS
- Research Problem
- Existing Legal Situation
- Literature Review
- Scope and Objectives
- Research Questions
- Research Methodology
- What is an Emergency?
- Types of Emergencies
- National Emergency
- State Emergency
- Financial Emergency
- Justiciability of Proclamation under Article 356
- S. R. Bommai v Union of India
- Misuse of Powers
- Political Misuse of Article 356
- Sarkaria Committee Report
Part XVIII of the Constitution of India lays down the emergency provisions under Article 352 – 360. Article 352 provides for the proclamation of emergency concerning the security of India or any State from war, external aggression, or armed rebellion. Article 353 lays down the effects of the proclamation of emergency under Article 352, and Article 354 states the application of the provisions relating to the distribution of revenues when a Proclamation of Emergency is in operation. Article 355 states that it is the duty of the Union to protect the States from external aggression and internal disturbance, and Article 356 provides for the emergency provisions in case the constitutional machinery in States fails.
Under the provisions of Article 350, 352, and 356 the president has the power to declare an emergency either in the whole territory of India or in any State or part of it.
During an emergency, any rights including Fundamental rights except for Article 20 and 21 can be suspended by the President, and the Parliament can also pass a resolution to impose President’s rule in any State.
The emergency provisions of the Indian Constitution have been amended by the constitution (44th Amendment) Act, to prevent the misuse of power by the executive in the name of emergency. In 1975, an emergency was declared due to internal disturbance and no other concrete justification was provided. Hence, amendments have been made so that the repetition of these situations becomes difficult.
Article 352 provides that if the president is satisfied that a serious emergency exists wherein the security of India or any part of it is threatened, either by war or external aggression or armed rebellion, he may proclaim an emergency in the whole country or any part of it, as specified in the proclamation.
Article 356 of the constitution provides that when a proclamation is made, the powers of the state legislatures are to be exercised by or under the authority of the parliament. It also states that the parliament can then confer on the president, the power of the state legislature to make law. This happens when the constitutional machinery of a state fails.
Article 360 provides that if the president is satisfied that a situation has occurred wherein the financial stability of India or part of the territory is threatened, he may make a declaration to that effect by a proclamation.
1.2 Research Problem:
The main aim of this research paper is to study the emergency provisions when the constitutional machinery in a state fails i.e., state emergency or Article 356. It also includes the detailed study of landmark cases like S.R Bommai vs Union of India, State of Rajasthan vs Union of India. The research work also focuses on the justiciability of the proclamation under Article 356 and the scope and reach of judicial review of Article 356. It also focuses on certain notable recommendations of the Sarkaria Commission Report. Finally, the research work ends by giving a brief note on the recent developments of Article 356 after the landmark Bommai’s judgment.
1.3 Existing Legal Situation:
India’s first prime minister, Jawaharlal Nehru, invoked Article 356 eight times, during his 17 years in power. Later, Lal Bahadur Shastri imposed President’s rule in Kerala (in September 1964).
Indira Gandhi holds the record for implementing Article 356 a total of 50 times in 14 years, the maximum number of times.
More recently, after the landmark verdict of the Supreme Court on the S.R. Bommai case in 1994, the article is being used cautiously. The argument that the president’s rule was being misused by parties in power was accepted, with the court issuing strict guidelines on its imposition.
The United Progressive Alliance (UPA) government, led by Manmohan Singh, invoked the president’s rule 12 times in different states. Similarly, the National Democratic Alliance government, led by Narendra Modi, resorted to the president’s rule three times during its 20-month rule.
Besides Arunachal Pradesh, the president’s rule was imposed in Maharashtra after the Congress-Nationalist Congress Party alliance split ahead of the assembly elections in October 2014. It was also imposed in Jammu and Kashmir after the latest assembly election.
1.4 Literature Review:
Mohapatra, Sudhanshu Ranjan, President’s Rule in the States of India A critical assessment of Article 356 of the Indian constitution, Shodhganga
This research paper talks about the origin of the President’s Rule in India and the Imposition of State emergency and its evaluation. It also studies the presidential proclamation under article 356 and the judicial review and the legal and constitutional ramifications of the president’s rule.
Ayush Verma, State emergencies and the fundamental rights, iPleaders
This article talks about the emergency provisions and the amendments to these provisions. It also talks about the state emergencies, previous state emergencies, and the fundamental rights during such emergencies. It also discusses the Sarkaria Committee and its landmark cases.
Krishnendra Joshi, Position and Powers of the President, iPleaders
This article provides the basics of the Constitution of India such as how is the President of India elected, what are the qualifications of a President, and the manner of election of the President. It also talks about the meaning of impeachment and the powers of the President.
Venkat Ananth, How President’s Rule in India has been imposed over the years, Mint
This article studies the President’s rule in India with the help of statistics and numbers to support their ideologies and arguments. It states when does President’s rule gets imposed and how has it been imposed over the years.
Sakshi Saroha, What is Article 356 of the Indian Constitution, Jagran Josh
This article explains why article 356 is in the news and the provisions under this article. It also discusses the political misuse of Article 356. This article also studies the landmark case of S. R. Bommai vs Union of India along with the guidelines laid down by the Supreme Court.
1.5 Scope and Objectives:
This research paper talks about Article 356 of the Indian Constitution and the President’s Rule in India and its justiciability with reference to the Sarkaria Committee and the Landmark cases. This paper also analyses Article 356 and the types of emergencies that can be imposed or declared by the President. Not only does this paper discusses the power to declare emergencies, but also brings forth the idea of how it has been imposed in the past years.
The objectives of this research paper are:
- To understand the meaning of emergency, President’s Rule and Article 356 of the Indian Constitution.
- To find out the justiciability of proclamation and misuse of powers under Article 356.
- To study the notable recommendation of the Sarkaria Committee and the landmark case S. R. Bommai vs Union of India.
1.6 Research Questions:
- Is the proclamation made under Article 356 of the constitution of India justiciable?
- What is the relevance of Bommai’s case for preventing the misuse of power by the executive under Article 356?
- How has the Sarkaria Committee Report helped to frame guidelines for the prevention of misuse of power under Article 356?
The Indian Constitution (38th Amendment) Act added clause 5 in Article 356 preventing judicial review on any grounds. It declared the satisfaction of the President as final and conclusive which shall not be questioned in any court on any ground. However, the Indian Constitution (44th Amendment) Act removed this clause in the year 1978. The case of State of Rajasthan vs The Union of India and S. R. Bommai vs Union of India have a great significance for getting a clear idea about the justiciability of the proclamation under Article 356 of the Constitution.
Article 356 of the Indian Constitution has led to great misuse of political powers of the same article. After the landmark case of Bommai, the misuse of powers under Article 356 has reduced to great extent. However, it is still being used.
Although Article 356 is still in use, The Sarkaria Committee Report directed for the rarest use of this article. The Sarkaria Committee Report provides safeguards against situation where there has been a breakdown of the constitutional machinery in the state. It suggests that any misuse of the power under Article 356 of the constitution would destroy the democratic feature of the Indian Constitution. The report has recommended to issue warning to the states where the constitutional machinery has failed. It further recommends that there should be proper amendment of Article 356 to include in the proclamation the material facts and ground for the invocation of Articl2 356 clause 1. This will help in preventing the misuse of powers under the article.
1.8 Research Methodology:
The doctrinal method was followed for conducting research on this topic. Various books were referred to, and so were many websites and journal articles, for a clear view of the research paper. Journals and websites such as SCC, Lexis Nexis, iPleaders, Mint, etc. were used for conducting research. Cases referred were taken from case law search engines like Casemine and Supreme Court Observer.
2. What is an Emergency?
Emergency means a situation in which there is a failure of the governance system and which calls for immediate action to be taken so that the appropriate steps can be taken timely to tackle such situation.
In an Emergency, the Centre takes control over all the powers relating to decision-making to ensure that speedy remedies are provided for the situation which has arisen. Thus, it can be said that while the Emergency is imposed in India, it becomes a Unitary form of Government for the period of Emergency.
In India, the makers of the constitution had realized that some situations may arise in the future in which there will be a need for such provisions and therefore they had adopted this provision in the constitution to ensure that India would be ready for such situations.
While Emergency provisions are necessary, it should not be resorted to by the Government for every problem which arises in the nation and thus all of the other alternative methods for solving such a situation should be used, and only when these methods cannot be used to effectively tackle such a situation, Emergency can be used for solving the grave problem.
2.1 Types of Emergencies:
Part- XVIII of the Indian Constitution deals with the Emergency provisions i.e., Articles 352 to 360. The constitution provides for three types of emergencies. The power of imposing all types of emergencies is bestowed upon the President. This concept of emergency is taken from the Weimar Constitution of Germany. The three types are as follows –
2.1.1 National Emergency:
Article 352 of the Constitution of India lays down the provision of a National Emergency. This emergency can be applied if any extraordinary situation arises that may threaten the security, peace, stability, and governance of the country or any part of it.
An emergency can be imposed whenever any of the following grounds occur:
Article 352 states that if the President is ‘satisfied’ that the security of India is threatened, then he can proclaim that effect regarding the whole of India or a part thereof.
For the proclamation of National emergency, it is not necessarily important that external aggression or armed rebellion actually takes place. Even if there is a possibility that such a situation occurs, a national emergency can be proclaimed.
The case of Minerva Mills vs Union of India was an important judgment. It was held in this case that there can be no bar to judicial review of determining the validity of the proclamation of emergency issued by the President under Article 352 (1) of the constitution. The powers of the courts are limited to examining whether the limitations discussed by the Constitution have been observed or not. It can check whether the President’s satisfaction is on valid grounds or not. If the President is satisfied that the grounds for national emergency exist but the grounds of the same are irrelevant, then the President will not be considered ‘satisfied’.
In India, National Emergency has been enforced 3 times to date.
2.1.2 State Emergency:
Article 356 states that if the President, after receiving a report from the Governor of a State or otherwise, is satisfied that such a situation exists where the Government of a State cannot be carried according to the provisions of the Constitution, he may issue a proclamation. Article 355 enforces the center to provide security to the States from any external aggression or internal disturbance to continue their governance in an orderly manner. Article 356 provides for the provisions for imposing an emergency in the state where its constitutional machinery has failed. This is known as State Emergency.
The Judiciary has played an important role in cases of State emergencies as well. It ensures that no random emergency is declared in a State. In Rameshwar Prasad vs Union of India, the proclamation of emergency imposed in Bihar under Article 356 was challenged. The Assembly had not even met once and it was dissolved because there was an attempt to gather the majority by illegal means but there no material at all, let alone relevant material, for proving the same. The Court held that the grounds provided for in this proclamation were irrelevant and therefore, the proclamation was held unconstitutional.
A state emergency can be proclaimed on the ground that the constitutional machinery of that state has failed to work properly. In this Emergency, when the Governor of the state is satisfied that the State is not functioning as per the Constitutional provisions, then he may write his report to the President of India. Further, if the President is satisfied by the report, he may impose the President’s rule. Subsequently, the President will become the executive head of the state.
In India, till 2018, President’s Rule was imposed 126 times by the President of India. Maximum times the President’s Rule was imposed during Indira Gandhi’s regime i.e., 35 times.
2.1.3 Financial Emergency:
The Constitution of India not only provides for Emergency in cases of threat of security to India at the National and State level, but it also gives recognition to the economic threat that may also arise in certain situations. Therefore, in case of occurrence of such an occasion, Article 360 provides for the provision for imposing Financial Emergency in the Country.
As per Article 360, a Proclamation of Financial Emergency may be issued, if the President believes that such a situation exists where the financial stability of India or any part of the territory is threatened.
Financial Emergency can be proclaimed on the ground that when a situation arises in the country which leads to a financial crisis, the President of India may impose an emergency to tackle the situation. In such a situation, the Central Authority may reduce the budget or cut the budget given to the State, and salaries of the government officials may be deducted.
3. Justiciability of Proclamation under Article 356:
A proclamation is made under Article 356 of the constitution when the state fails to work as per the constitution. This is when Article 356 declares that the parliament will exercise all the powers of the state legislature and also the parliament can confer this power to the president who can then make laws for the state. When a proclamation is issued under Article 356 by the president, it has to be placed before both the houses of the parliament and it is effective for two months. But if the circumstances are such that it has to be in force for a longer period then it has to be ratified by both the houses of the parliament.
There were several attempts to bring the matter of invocation of Article356 before the courts for scrutiny, but such attempts have not succeeded.
In Bijayananda vs President of India, the high court of Odisha gave a very instructive judgment. The court held that “in sending his report to the president under Article 356, the governor is to act directly and not with the aid and advice of the council of ministers”. Whether the governor’s report is malafide or is based on some extraneous facts cannot be questioned in a court of law. It is not justiciable against the governor because of the protection and immunity provided under Article 361 (1).
Due to this immunity and protection, there is the misuse of power by the executive which ultimately creates problems for the common public. When the president proclaims Article356 he has to consider the advice tendered by the council of ministers. The information upon which the president shows his “satisfaction” is of very wide amplitude. It is upon him, whether he decides based on the governor’s report or relies on any other information. This clearly showed that the satisfaction of the president and the source of information is not justiciable.
The satisfaction of the president with the declaration of emergency is purely subjective in nature and is not subjected to objective tests by judicial review. The Andhra Pradesh High Court also held that the “satisfaction” of the president was not justiciable in any court of law.
These cases settled the principle that the action of the president and the governor under Article 356 was not questionable and hence not justiciable. The constitution (thirty-eighth Amendment) Act added to clause 5 in Article356 preventing judicial review on any grounds. It made the “satisfaction” of the president “final and conclusive” which “shall not be questioned in any court on any ground”. However, the constitution (44th Amendment) Act removed this clause in the year 1978.
The case of the State of Rajasthan vs Union of India and S.R Bommai vs Union of India has great significance for getting a clear idea about the justiciability of the proclamation under Article 356 of the constitution.
- S. R. Bommai vs Union of India:
President’s Rule was imposed in 1989. As a result of which, the government of S.R. Bommai, the Chief Minister of the Janata Dal government in Karnataka between 1988 and 1989 was dismissed on April 21, 1989. This was done under Article 356 of the Constitution as it was the most common way to keep opposition parties away. The government was dismissed because the Bommai government lost the majority resulting in large-scale defections engineered by several party leaders of the day. P. Venkata Subbaiah, the then-governor, refused to allow Bommai to test his majority in the Assembly despite presenting him with a copy of the resolution passed by the Janata Dal Legislature Party.
Bommai first moved to the Karnataka High Court against the Governor’s decision to recommend President’s Rule, where his writ petition was dismissed. He then moved to the Supreme Court.
- Whether the president’s rule inflicted in the six states is constitutionally valid?
- Whether the president has unchained rules to proclaim Article 356(1) of the Indian Constitution. The answer to this question depends upon the answers to the questions below:
– If yes, what is the scope of the judicial review in this regard?
– What does the phrase “a situation has arisen in which the government of the state cannot be carried on under the provisions of this constitution” used in Article 356 (1) mean?
Supreme Court Judgement:
The case took almost five years to get to a logical conclusion. On March 11, 1994, a Constitution Bench of nine-judges of the Supreme Court issued the historic order. This put an end to the arbitrary dismissal of State governments under Article 356 by providing for the restrictions.
4. Misuse of Powers:
A quick peek at the data shows that Article 356 has been used over 100 times since independence as noted by the Sarkaria Committee Report.
Sometimes, the legitimate state governments have been fired to either make them fall in line or to give the Union government’s own party a chance to obtain power in the state. To claim authority, Union governments have precisely assumed the role Dr. Ambedkar feared they would – that of being determinants of quality of governance in the states.
The 1970s and 80s will be remembered for the most vindictive use of Article 356. From 1971 to 1984, it was used 59 times. During the period 1977-79, it was used the maximum number of times during which the Morai Desai government ruled. It was used by the post-emergency Central government as a vendetta against state governments ruled by Congress. Later, Indira Gandhi returned the favour after coming back to power in 1980. Thereafter, during the period 1980-84, it was used 17 times.
Although Jawaharlal Nehru also misused Article 356 to dismiss the majority Communist government of Kerala, Indira Gandhi is known for having used it as a weapon against state governments most of the time. Its frequency increased sharply post-1967 when the Congress party lost power in several states of India.
In fact, Indira Gandhi during an emergency closed judicial review of even the Presidential order securing Article 356 through the 38th Constitutional Amendment Act. However, thanks to the 44th Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article 356, as predicted by Dr. Ambedkar, was restored.
4.1 Political Misuse of Article 356:
In the report of 2015, Sarkaria Committee noted that since independence, Article 356 has been used over 100 times. In almost all the cases, it was used for political concerns rather than any genuine problem.
Indira Gandhi, the former Prime Minister, used Article 356 nearly 27 times to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc.
In 1977, when the Janata government formed the government for the first time, it removed nine state Congress governments.
Manipur witnessed the repeated application of Article 356 and long periods of violence due to the uneven internal politics of the state.
The states of Uttar Pradesh and Bihar have been on the center’s radar due to their fragmented polity.
4.2 Sarkaria Committee Report:
The Sarkaria Commission was headed by Justice R.K Sarkaria. It was appointed in the year 1983 and worked to improve center-state relations. The Sarkaria Commission Report clearly shows that this power has been used over 100 times since independence. Despite the precautions laid down in Article 356, this article had been invoked several times by the center that has resulted in its gross misuse. Article 356 was misused the most in the period of the 1970s- 80s.
In fact, Indira Gandhi during an emergency closed judicial review of even the Presidential order clamping Article 356 through the 38th Constitutional Amendment Act. However, the 44th Constitutional Amendment Act was introduced in 1978 by Morarji Desai. Further, the original Article 356, as predicted by Dr. Ambedkar, was restored.
The Sarkaria Commission directed the rare use of Article 356. According to this commission, Article 356 provides safeguards against situations where there has been a breakdown of the constitutional machinery in the state. It also suggests that any misuse of this power would destroy the democratic feature of the Indian Constitution. This report after considering all the suggestions came to the opinion that this article should be used sparingly and in the rarest of rare cases where no other alternative is there. The report also recommended issuing a warning to the particular state where the constitutional machinery had failed.
Before proclaiming Article 356, the explanation received from the state should be properly analysed and considered. Also, the report recommends that the government should try its best of having a government with majority support in the Assembly. In case the same is not possible there should be fresh elections without any delay and the Governor should request the outgoing ministry to act as a caretaker government. The commission also recommends that the state legislative assemblies should not be dissolved before the proclamation of emergency. It further recommends that there should be a proper amendment of Article 356 to include in the proclamation the material facts and grounds for the invocation of Article 356 (1). This will prevent the misuse of power under Article 356.
The provisions of emergency were added in the constitution for national security and countering extraordinary issues. Even the forefathers of the Constitution figured that in the future such situations may occur which would require special powers, for the State to respond and handle the situation. The emergency provisions since independence have been used multiple times. For a significant period, the use of these by the State was not ethical and was used as a political tool to continue their political control. The procedure laid down for the proclamation of emergency by the President was not followed and was misused. The limitation of maximum time till when an emergency can continue as set by the Constitution was breached in the State of Punjab and Jammu & Kashmir as well.
Due to these incidents of misuse, some amendments were introduced to these provisions in the 44th Amendment Act. Meanwhile, the Indian Judiciary to an extent closed its doors to any sort of human rights violation. In many judgments of the Supreme Court, the power of a person to approach the court of law in case their Fundamental Rights violation was discussed. After the 44th Amendment Act, it was agreed by the Court that in any case, no person can be stripped of his right to life and personal liberty. Articles 20 and 21 could not be suspended even in case of an emergency. The Supreme Court also made it clear that all the fundamental rights remain for its only power to move to court for their enforcement is suspended. Hence, when during an emergency, if any person is stripped of his fundamental rights, he can move to the court for remedy.
The landmark judgment of S.R Bommai vs Union of India has a great significance in improving center-state relations. In this case, the Supreme Court provided the guidelines and discussed in detail the provision of Article 356 and its related issues. The present scenario in India shows that the “dead letter” provision has been invoked several times in all these years. According to a report given by NCRWC, out of hundred times of invocation of this provision at least twenty times, it has been misused. From this, it shows that there is a lack of safeguard against the misuse of power under Article 356.
To overcome this problem, amendments should be made that check the exercise of power under Article 356. However, after Bommai’s judgment, the misuse of power under Article 356 has reduced to a great extent. This double-edged sword called Article 356 should be used as a last resort in cases where the constitutional machinery in a state fails, otherwise, this will become a noose that will tighten around the neck of the Indian democracy and would defeat the rights of people under the constitution.
Table of Books:
- M.P. Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2016).
- Dr. J. N. Pandey, Constitutional Law of India (54th edn, Central Law Agency).
- Dr. Durga Das Basu, Introduction to the Constitution of India (20th edn, Lexis Nexis 2010).
Table of Journals:
- Jaimin R. Dave, “A Key to Presidential Proclamation under Article 356 of Constitution of India”, Institute of Law, Gujarat.
- Surendra Pandey, Article 356: Its Use and Misuse.