June 24, 2021
Federalism is the key strength of constitution and government structure in India.While drafting the constitution the word “union” was chosen rather than the word “federation”just to show that the people may be divided into different states for convenience of administration but the country is one integral whole, its people a single people living under a single imperium derived from a single source.[1] But there are many ways of transforming a federal system into a unitary one, the simplest way is by proclaiming emergency. Even after including federalism in a part of basic structure[2], the central government by taking unfair benefit under part XVIII of the Indian Constitution has violated the basic structure of the government administration. One of the provisions included in this part is state emergency, Articles 356 and 357 of the Constitution offer certain measures for dealing with a condition that arises from a state's constitutional machinery failing.[3]
In this article we will discuss about the provisions of state emergency and instances of misuse and what is the Supreme Court’s perspective on this.
FAILURE OF CONSTITUTIONAL MACHINERY IN STATE
In the words of Dr. Bhim Rao Ambedkar “such articles will never be called into operation and that they would remain a dead letter.”[4]Even after the constitution makers declared it a dead letter, the central government has repeatedly used and abused it in their own favor. Article 356 provides for proclamation of state emergency on the satisfaction of president on the drastic situation of state where it can be functioned according to law.
CONTROVERSY OVER INCLUSION OF “OTHERWISE”
Article 356 includes proclamation on the basis of “governor’s report”on failure of state administration to the president’s or “otherwise”.[5] H.V. Kamath, an Indian Politician has criticized the word ‘otherwise’ and said only god knows what this ‘otherwise’ means.[6]
What happens, however, if the Governor declines to recommend initiative under Article 356? Because of these circumstances, the framers of the constitution added the words “or otherwise” to Article 356(1). As also stated by Dr. B.R. Ambedkar that:
“We must give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks fit to act in the fulfilment of his duty”.[7]
As also stated by Supreme Court that “whenever the said satisfaction is required of the President or the Governor, it should be in the constitutional sense and not otherwise”.[8]
So, from the above discussion, it can be concluded that the inclusion of “otherwise” is necessary but due to inclusion of this particular word it is on the sole discretion of the president who,under article 74 of Indian Constitution, act on the advice of the council of ministers to impose state emergency under article 356 or not.
NO DEFINITE BOUNDARIES
As discussed in the previous topic, it is on the sole discretion of the government to invoke article 356 in a state or not. It has no definite boundaries like mentioned in Article 352 other than moral conscience of the bench.
While Article 352 can only be invoked in three cases of war, external aggression, or armed rebellion, Article 356 applies at any time when constitutional machinery collapses in a state in number of ways, including political breakdown in the state, the inability of a stable ministry to hold public office, the breakdown of law and order, corruption or misuse of its authority,subversion of constitution or of the democratic social fabric, etc.[9]
D.D. Basu made the distinction as one being the response to the existence of state and other being response to the dissolution of constitutional machinery in a state.[10]
Article 356 has given wide scope in order to maintain law and order situation in a state but the central government has molded it to take advantage and remove the rule of opposite party government sometimes in some states.
INSTANCES OF USE AND MISUSE
Article 356 has been misused several of times like in 2002 the president’s rule imposed in the state of Uttar Pradesh on the report of the governor, who didn’t even pay heed to the actual situation going in UP. Other similar instances arisein 1953 in Pepsu, in 1954 in Andhra,in 1951 in Punjab, in 1956 in Travancore-Cochin and in 1961 in Orissa, in all these situations Governor of the respective state on unreliable sources and without taking into consideration the actual situation of state made its report and the president based on that report, imposed state emergency.[11]
Another dramatic instance happened in 1977, after the 1975 emergency people’s anger came out and congress lost the general election and overtaken by the Janata Party, which later dissolved all congress ruled state at that time under President’s rule. History repeated itself in 1980 where congress again emerged as the majority and dismissed the Janata government from 9 states under article 356. These proclamations were highly questioned as they were not based on any Governor’s report as also observed by Sarkaria commission that -
“these all cases are typical instances of wholesale misuse of article 356 for political purposes, extraneous to the one for which the power has been conferred by the constitution”[12]
Wade and Forsyth[13] also criticizes the political nature of the decision making where courts are incapable of taking any cognizance of misuse of power.
Untilthe year 2000, article 356 has been invoked as many as 100 times. In present day, it seems difficult to use the power under article 356 as the NDA government enjoys majority in the LokSabha but lacks the majority in Rajya Sabha.
JUSTICIABILITY OF THE PROCLAMATION UNDER ARTICLE 356
Judicial review under article 356 was first came up under consideration in KK Aboo v. UOI, where thewrit petition challenging the center's proclamation was dismissed by the Kerala High Court.[14]Again, in Rao Birinder Singh v. The Union of India, the court ruled that it has no jurisdiction to question president’s satisfaction and don’t even have authority to make him disclose the material on which he formed his satisfaction.[15] In Jyotirmoy Bose v Union of India, the Calcutta High Court rejected writ petition challenging president’s proclamation issued under article 356. The court also rejected the contention of petitioner that president should act on his own discretion and not on the advice of council of ministers while proclamation of emergency.[16]
Bijayananda Patnaik v President of India[17] is anextremely informative decision on article 356 given by Orissa High Court, where the court ruled that the governor must act independently, not with the assistance and advice of the ministers, when sending his report to the president. And that report cannot be challenged in a court of law, whether it is false or based on fictitious evidence.Because of the governor's immunity under Article 361(1) of the Constitution, it is not justiciable.[18]
The court also recommended that, upon the collapse of the ministry, the governor should ask the opposition leader to form the government. also, the governor should not be concerned with whether or not the opposition government will be stable in the future.[19]
The Andhra Pradesh High Court also asserted that the satisfaction of the presidentwas not a justiciable matter.[20] (Para 15).
The matter of doubt was cleared by the Constitution (thirty-eighth Amendment) Act, 1975, which declared that the ‘satisfaction’ of president “shall be final and conclusive and shall not be questioned in any court on any ground”.[21]However, the constitution's Forty-fourth Amendment later repealed this provision.
RAJASTHAN V. INDIA[22]
The matter was heard by a seven-judge constitutional bench after the State of Rajasthan (along with several other states) filed an original suit under Article 131 challenging the Union of India's invocation of Article 356 in these states. The court's general stance is that it will not intervene with the center's exercise of power under article 356 solely because it encompasses "political and executive policy and expediency unless any constitutional provision was being violated."[23]
And, under article 356(5), the court cannot investigate or challenge the president's satisfaction on any basis unless and until it is shown that the president used "patent abuse of this clause or an excess of authority on admitted facts" on grossly perverse and irrational grounds.[24]
Bhagwati J, emphasizedthat –
“The satisfaction of President under article 356 is ‘subjective and cannot be tested by reference to any objective test’ or by ‘judicial review’. But if it can be shown that there is no satisfaction of the president at all, the exercise of the power under article 356(1) would be constitutionally invalid”.[25]
Most of the justices said that if the satisfaction is not genuine or is based on completely irrelevant and superfluous grounds, the court has authority to investigate it because there would be no satisfaction of the president in the matter in which he is expected to be satisfied.
SR BOMMAI[26]
The great significance of this case can be gauged from the fact that the Supreme Court had to decide the validity of six promulgation issued in six different state arising due different scenario’s ranging from ram janmbhoomi-babri demolition to defection of ministers.
Seven opinions were rendered by a nine-judge bench that considered the different issues raised in these cases. On the basis of the judges' consensus, the following key propositions can be stated:
The majority of chief minister in the house will be determined on the floor of the house, not in governor’s chamber overruling the Karnataka High Court’s order in the Bommai case.[27]
Rather than blatantly writing the letter to the president, the governor should first try to explore the possibility of establishing an alternative ministry.[28]
The president should declare a state of emergency based on some material evidence that the state government cannot function in accordance with the law. The validity of content can also be challenged in court.[29]
The satisfaction cannot be challenged if based on such valid material.
The legislative assembly's dissolution is not an inevitable or mandatory result of the proclamation's issuance. It can only be used when it is absolutely necessary to accomplish the proclamation's goal. Article 356(3) makes it illegal to dissolve the assembly until the parliament approves the proclamation.[30]
If the proclamation is declared unconstitutional by the court notwithstanding the parliament's approval, the president's decision is rendered null and void.[31]
In Bommai, the Supreme Court, by showing its judicial creativity, aims to promote a set of fundamental constitutional principles like parliamentary system, secularism, federalism and control over the executive.
The court stated that power conferred under article 356 is not an absolute power but a conditioned power. The court went on to say that a state government may enjoy a majority in the assembly, but if it subverts the basic value of secularism, it can be dismissed under Article 356(1).[32]
[3]Shetty, President’s Power under Article 356 of
the Constitution-Theory and Practice, in ILI, Constitutional Developments Since
Independence, 335 (1975), ILI, President’s Rule in the States; Report of the
Sarkaria Commission.
[4]Constitutional Assembly Debates, India, available at: http://loksabhaph.nic.in/writereaddata/cadebatefiles/C04081949.html.
(Visited on April 28, 2021).
[5]The Constitution of India, art. 356.
[7]Competency of Judiciary to advise the President by T.C.A. Ramanujam and T.C.A. Sangeetha, (1998) 6 SCC J-7.
[9]M.P. Jain, Indian Constitutional Law 742
(LexisNexis, Haryana, 8th edn., 2020).
[10]DD Basu, Commentary on the Constitution of
India, (LexisNexis, 8th edn., 2011).
[11]Supra Note 9.
[12]Report, 175, pg. 18.
[13]Wade William and Christopher Forsyth, Administrative
Law, 420-421, (Oxford University Press, England, 9th ed.).
[14]KK Aboo v. UOI, AIR 1965 Ker 229.
[15]Rao Birinder Singh v. The Union of India and
Ors., AIR 1968 P&H 441.
[16]Jyotirmoy Bose v Union of India, AIR 1971 Cal 122.
[17]Bijayanand v President of India,AIR 1974 Ori
52.
[18]Ibid, at 15.
[19]Ibid, at 25.
[21]the Constitution (thirty-eighth Amendment) Act,
1975.
[23]Ibid, at 28.
[24]Ibid, at 7.
[25]Ibid, at 10-11.
[27]Ibid, at 127-128.
[28]Ibid, at 277.
[29]Ibid, at 2.
[30]Ibid, at 48.
[31]Ibid, at 124.
[32]Ibid, at 219.
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