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Constitutional Governance - II Article 356 Eluting the ambiguity Term Term paper submitted in partial fulfilment of assessment asses sment in the subject of  Constitutional Governance - II 

Submitted by:

Submitted to:

Dhruva Sareen !55"

#ro$% Dr%" Dr%" &%'% (hatia

#urav shah !63"

)aculty o$ 'a*

Submitted on +arch ,! ./,0 ACKNOWLEDGEMENT

The note of acknowledgment is an indispensable part of the paper. The authors would like to give due credit to the people who have helped him through the course of this project.

The authors would like to thank the faculty of ‘Constituti ‘Constitutional onal Governance Governance – II! "rof. #$r.% &.'. (hatia for allotting them the very engaging and fascinating topic of ‘ Article ‘ Article 356 –   Elutin the Ambiuit!" . The authors would like to e)tend their heartfelt gratitude to him for  his pedagogy which has been instrumental instr umental in enhancing the authors a uthors learning. The authors would also like to thank the library staff which has been of immense help to them in their research work.

*+"age

INTRODUCTION There are times when even justice brings harm with it. -

Sophocles

If there is one article of the constitution that has been much abused! and as much maligned! it is article ,- of the Indian Constitution. / The article provides that if the president! on receipt of a report from the Governor of a 0tate or otherwise! is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of  the constitution! the president may by proclamation 1rticle ,- is one among the nine 1rticles! beginning from 1rt. ,-* and ending with 1rt. ,2! known as 3mergency "rovisions! enumerated in Chapter 45III of the Constitution. 1rt. ,- was introduced as $raft 1rticle *67! on 1ugust ,! /898 by the then :nion 'aw ;inister! $r. (.<. 1mbedkar! in the Constituent 1ssembly! and was cleared by it the subse=uent day. * 1rticle ,- is one of the major tools in the hands of the :nion Government enabling it to check any disruptive and separatist tendencies in their infancy. In order to keep our uni=ue >ederal system with its strong :nitary features in fact this potent medicine cannot be dispensed with., The Indian Constitution has strong centrali?ing features. 1rticle ,- empowers the central government to dismiss elected state governments and impose direct rule in the states. The / &hanna! @.<.! #se and $isuse of Article 356 ! (14I! :"3A$<1#3$.%! < 3CBA0T<:CTIAG T@3 < 3":('IC! #Aew $elhi @aranand "ublications%! /888! p. /-9.

* @ande! @.5.!  %imitations of Article 356 ! T@3 @IA$:! ;ay ! *22, as available on httpDDwww.hindu.comDthehinduDopD*22,D2-D2DstoriesD*22,2-2222/2*22.htm #'ast visited on /D,D/9%

, "rasad! Eanardhan! A&TIC%E 356 of the Constitution of India ! E1A1<$@1A "<101$ $ 5 0 as available on  httpDDwww.janardhanprasaddvs.comDarticleF,-.html #'ast visited on /D,D/9% ,+"age

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 .9 To prevent the

articles arbitrary use! several institutional safeguards were set in place. >irst! the president of  India! who makes the official proclamation of central rule in the states! can return the central cabinets recommendation for the imposition of central rule back to the cabinet for  reconsideration if he or she finds the invocation of the emergency provision unreasonable. 0uch a presidential response is seen in India as politically embarrassing to the central governmentit signals to the wider public that federal officials are misusing constitutional  provisions. 0econd! the government! having secured presidential assent! must get the  proclamation of central rule passed in both houses of "arliament within two months! failing which the proclamation ceases to be effective. This provision gives parliamentarians an opportunity to =uestion the governments decision and! if they find it arbitrary! vote down the  proclamation. >inally! a government decision to impose central rule in any state can be challenged in the courts.  Aone of these safeguards! however! prevented successive central governments from imposing 1rticle ,- in the states /27 times over nearly si) decades. In a large number of these cases! invocation of the emergency provision was arbitrary. 1rticle ,-! 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 (. <. 1mbedkar! Chairman of the $rafting 9 Government of India! Constituent Assembl! 'ebates! 5ol. I4 #Aew $elhi 'ok 0abha 0ecretariat! /898%! p. /66 H@ereinafter Constituent 1ssembly $ebate.

- This safeguard was introduced in /867. The president! however! cannot overrule a cabinet recommendation. >urther! if the cabinet sends the president the recommendation a second time! the president is obliged to assent to it. The president can return a recommendation only once.

 I A$I10 $3;BC<1CK  #Aew Kork Cambridge :niversity "ress! *22/%! p. /9, 9+"age

Committee.6 @e intended it to be used only as the last resort! but it has hardly ever been so. 1rticle ,- not only negates the federal character of the Indian "olitical 0ystem! but also militates against the democratic doctrine of Lpopular sovereigntyM since an elected government is suspended whenever "residents rule is enforced. Eudicial review of "residents rule clamping 1rticle ,- was completely shut out during the emergency by the ,7th 1mendment. @owever! it was revoked by the 99th 1mendment. 1 time came when judiciary had to intervene to interpret the scope of 1rticle ,-! and it happened when the 0upreme Court made its ruling in 0. <. (ommai v. :nion of India 7 case#/889%. The ape) court made it clear that the "residents rule is justiciable. The 0upreme Court or the @igh Court can strike down the proclamation if it finds it to be malafide. 1lso!  powers of the "resident under 1rticle ,- are not absolute – he must have taken the decision  based on some preFcondition . As far as the advice of the Council of Ministers is concerned, the advice itself cannot be reviewed BT the material on which the advice is given can be scrutini!ed. The court can also invalidate a proclamation if it finds suitable reasons for doing

so and can also overrule "arliament if need be. Thus we can say that because of the arbitrariness to which 1rticle ,- has been subjected to over the years! it has defeated the very purpose for which it was included in our Constitution. 1nd at the same time! judiciary has made it clear that the scope of 1rticle ,- is limited and it should only be used when there is no other option. +,o provision of the Constitution has been so often used misused and abused as Article 356 ./0 times since .1524 -

'4'4 asu1

1rticle ,- of the Indian Constitution has ac=uired =uite some notoriety due to its alleged misuse. The essence of the 1rticle is that upon the breach of certain defined state of affairs! as ascertained and reported by the Governor of the 0tate concerned #or otherwise% the "resident 6 CBA0TIT:3AT 1003;('K $3(1T3! *upra note 9 at p./9/.

7 0.<. (ommai v. :nion of India! #/889% , 0CC /

8 $.$. (10:! I AT I A$I1! /8th ed.! p. 97, -+"age

concludes that the Nconstitutional machineryN in the 0tate has failed. Thereupon the "resident makes a N"roclamation of 3mergency!N dismissing the 0tate 'egislature and 3)ecutive. $uring a state of emergency! the "resident is vested with tremendous discretionary powers. 1ny legislation or constitutional provision that abrogates any of the basic principles of democratic freedom is anathema to most people and the more so to the people of the largest democracy in the world. @aving just gained independence after a long and continuous struggle! the people of India would naturally have the greatest interest in preserving all the freedoms envisioned in a democratic society. If the members of the $rafting Committee of the Constitution included a  provision that permits a Government to dismiss a duly elected representative body of the  people and suspend those freedoms in violation of even the crudest interpretation of a Nseparation of powers!N then common sense suggests that it is only to deal with the direst of  circumstances and nothing less. (ut! it seems that the remedial nature of the Article has been perverted to impose the domination of the Central "overnment upon a #tate "overnment that does not subscribe to its views. Central control over regional governments is essential for the integrity of nations

that have federal systems of government! and 1rticle ,- was designed to preserve this integrity! but what remains to be seen is whether it is being used at the cost of sacrificing the interests of democratic freedom. 1rticle ,-/2 of the Constitution was most keenly discussed and debated in the Constituent 1ssembly. The >ounding >athers apprehended that! if and when it would be misused! it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of the article would not be used to strengthen the corporative federalism // but it would be /2 G. 1:0TIA! T@3 I A$I1A CBA0TIT:TIBA  CB 1 A1TIBA! #$elhi B)ford :niversity "ress%! /888! p./76O *ee P@31<3! &.C.! ;B$3 T@3 I A$I1A CBA0TIT:TIBA!

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// CBA0TIT:3AT 1003;('K $3(1T3! *upra note 9 at p./9/. +"age

used in resolving the ministerial crisis in the 0tate. /* 1s observed by 0hiban 'al 0a)ena LQ I   feel that b! these articles e are reducin the autonom! of the *tates to a farce4 These articles ill reduce the *tate Governments to reat subservience to the Central Government4  ut hat could the! do the! placed a hope in an apoloetic manner that 7 +8the9 articles ill never be called into operation and that the! ould remain a dead letter 4.3 @ere! it has to be seen in the conte)t of hope of Lrarest of the rareM use! that 1rticle ,- has  been used more than /*2 times! calculating an average more than two times in a year. 1ccording to the 0arkaria Commissions urther it is mentionable that there are four institutions surrounding this 1rticle ,-! they are! the "residentthe creature of the Constitution i.e. the constitutional head! the protector of the Constitution! the 0tate Governorthe constitutional office but seen as pawn on political chessboard! "arliament and the ultimate one is Eudiciary. @owever! it is seen that despite all these and presence of the Constitution! 1rticle ,- is not only misused  but abused as well.

/* Id . at p. /9,.

/, Id . at p. /66.

/9 Aational Commission to
/- &esavananda (harati v. 0tate of &erala! #/86,% 9 0CC **-. 6+"age

ARTICLE 356: THE GENESIS AND DEVELOMENT THE GOVERNMENT O! INDIA ACT "#35

This 1ct first introduced the concept of N$ivision of "owersN in (ritish India. It was an e)periment where the (ritish Government entrusted limited powers to the "rovinces. (ut since there was very little faith lost between the (ritish and the Indian people! the (ritish took precautions to keep a sufficient check on the powers given to the "rovinces. These  precautions were manifested in the form of emergency powers under 0ections 8, and 9- of this 1ct! where the Governor General and the Governor! under e)traordinary circumstances! e)ercised near absolute control over the "rovinces. / DRA!TING COMMITTEE O! THE CONSTITUENT ASSEM$L%

Bn 1ugust *8! /896! a $rafting Committee was set up by the Constituent 1ssembly. :nder  the chairmanship of $r. (.<. 1mbedkar! it was to prepare a draft Constitution for India. In the course of about two years! the 1ssembly discussed *!96, amendments out of a total of 6!,amendments tabled./6 Phen it was suggested in the $rafting Committee to confer similar powers of emergency as had been held by the GovernorFGeneral under the Government of India 1ct! /8,-! upon the "resident! many members of that eminent committee vociferously opposed that idea. $r. (abasaheb 1mbedkar then pacified the members stating +In fact I share the sentiments e:pressed b! m! ;one proper   precautions before actuall! suspendin the administration of the provinces4

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@e added + I hope the first thin he ill do ould be to issue a clear arnin to a  province that has erred that thins ere not happenin in the a! in hich the! ere intended to happen in the Constitution4 .0 (y virtue of this earnest advice given by the prime architect of the Indian Constitution! we can safely conclude that this is the very last resort to be used only in the rarest of rare events. 1 good Constitution must provide for all conceivable e)igencie s. Therefore this 1rticle is like a safety valve to counter disruption of political machinery in a 0tate. 1rticle ,-- states NIt shall be the duty of the :nion to protect every 0tate against e)ternal aggression and internal disturbance and to ensure that the government of every 0tate is carried on in accordance with the provisions of this Constitution.N/8 The word NotherwiseN in 1rticle ,-#/% was not included in the original draftO it was later introduced through an amendment! despite protests from members of the original $rafting Committee! stating that it was an open invitation to abuse the 1rticle. $r. 1mbedkar justified its introduction saying that 1rticle *661 #now 1rticle ,--% imposed a duty upon the Center to ensure that the 0tates are governed in accordance with constitutional provisions and that hence it would not be  proper for the "resident to base his decision solely on the report of the Governor of the 0tate.*2 There are certain differences in the provision relating to the failure of the constitutional machinery under the present Constitution and the powers dealt with in 0ections 9- and 8, of  the Government of India 1ct! /8,-. */ >irstly! the /8,- 1ct empowered the GovernorFGeneral to deal with a failure of the constitutional machinery at the Center #0ection 9-%. It also

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*2 $.$. (10:! CB;;3AT1 I A$I1! -th ed.! /882.

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empowered the GovernorFGeneral to deal with a similar situation in a "rovince #0ection 8,%. ** The present Constitution! however! does not intend to suspend the Constitution of a 0tate! but empowers the "resident to take steps in this regard! though he shall have to act on the report of the Governor or
** Id4

*, Id4 /2 + " a g e

USE O! ARTICLE 356

ARTICLE 356 TO $E USED RAREL%

In spite of the precautions laid down in 1rticle ,-! the 1rticle was invoked on several occasions by the Center due to ambiguities in its wording. It was only in /876 when the 0arkaria Commission submitted its report that part of the obscurity surrounding 1rticle ,- was cleared. The Commission! headed by Eustice <.0. 0arkaria! was appointed in /87, and spent four years researching reforms to improve CenterF0tate relations. The 0arkaria Commission*9 recommended e)tremely rare use of 1rticle ,-. The Commission observed that! although the passage! N. . . the government of the 0tate cannot be carried on in accordance with the provisions of this Constitution . . .N is vague! each and every  breach and infraction of constitutional provisions! irrespective of their significance! e)tent! and effect! cannot be treated as constituting a failure of the constitutional machinery. 1ccording to the Commission! 1rticle ,- provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a 0tate. 1ny abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report discourages a literal construction of 1rticle ,-#/%.*The Commission! after reviewing suggestions placed before it by several parties! individuals and organi?ations! decided that 1rticle ,- 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 0tate. (efore taking recourse to the provisions of 1rticle ,-! all attempts should be made to resolve the crisis at 0tate level. 1ccording to the CommissionNs report! these alternatives may be dispensed with only in cases of e)treme emergency! where failure on the part of the :nion to take immediate action under 1rticle ,- would lead to disastrous conse=uences. The report further recommended that a warning be issued to the errant 0tate! in specific terms that it is not carrying on the government of the 0tate in accordance with the *9 0arkaria Commission!
*- $r. 1rvind ". (hanu! Chanin )ace of Article 356( ?udicial @eal and ?er> ! I A$I1 '1PK3<0! *2/2 // + " a g e

Constitution. (efore taking action under 1rticle ,-! any e)planation received from the 0tate should be taken into account. @owever! this may not be possible in a situation in which not taking immediate action would lead to disastrous conse=uences. * In a situation of political  breakdown! the Governor should e)plore all possibilities of having a Government enjoying majority support in the 1ssembly. If it is not possible for such a Government to be installed and if fresh elections can be held without delay! the report recommends that the Governor  re=uest the outgoing ;inistry to continue as a caretaker government! provided the ;inistry was defeated solely on a major policy issue! unconnected with any allegations of  maladministration or corruption and agrees to continue. *6 The Governor should then dissolve the 'egislative 1ssembly! leaving the resolution of the constitutional crisis to the electorate. *7 $uring the interim period! the caretaker government should merely carry on the dayFtoFday government and should desist from taking any major policy decision. 3very "roclamation of 3mergency is to be laid before each @ouse of "arliament at the earliest! in any case before the e)piry of the twoFmonth period stated in 1rticle ,-#,%. *8 The 0tate 'egislative 1ssembly should not be dissolved either by the Governor or the "resident before a "roclamation issued under 1rticle ,-#/% has been laid before "arliament and the latter has had an opportunity to consider it. The CommissionNs report recommends amending 1rticle ,- suitably to ensure this. ,2 The report also recommends using safeguards that would enable the "arliament to review continuance in force of a "roclamation. ,/ * T@3 01<&1
*6 Id4 at  R .7.2*

*7 Id4 at  R .7.2,

*8 Id4 at  R .7.2-

,2 Id4 at  R .7.26

,/ Id4 at  R .7.28 /* + " a g e

/, + " a g e

&UDICIAL REVIEW

The susceptibility of a "roclamation under 1rticle ,- to judicial review is beyond dispute!  because the power under 1rticle ,-#/% is a conditional power. In the e)ercise of the power of   judicial review! the court is entitled to e)amine whether the condition has been satisfied or  not. 0o the controversy actually revolves around the scope and reach of judicial review. >rom the decisions in the case of #tate of $ajasthan v. nion of %ndia &' and the Bommai && case! it is clear that there cannot be a uniform rule applicable to all cases. The  Bommai   case was a landmark in the history of the Indian Constitution. It was in this case that the 0upreme Court  boldly marked out the paradigm and limitations within which 1rticle ,- was to function. In the words of Sol' So()*+ee! eminent jurist and former 0olicitorFGeneral of India!
,* *tate of &ajasthan v4 #nion of India ! #/866% , 0CC -8* H
,, (B;;1I C103! supra note 7 at R */-F/.

,9 0oli 0orabjee! Constitutional $oralit! iolated in Gujarat ! Indian 3)press! "une! India! 0ept. */! /88.

,- *tate of $= v4 harat *inh /86 1I< //62 /9 + " a g e

"roclamation of 3mergency! as ultra vires to the Constitution! just because the "roclamation was in force at that time., Eudicial review of the "roclamation under 1rticle ,-#/% was first tested in  #tate of   $ajasthan v. nion of %ndia&* ,  The 0upreme Court! being the ultimate interpreter of the

Constitution! has the power of judicial review on all actions emanating from or empowered  by any constitutional provision. Though the power of the "resident under 1rticle ,- concerns his political judgment and the courts usually avoid entering the political thicket! this  power does not enjoy blanket immunity from judicial review. It has to be determined in the individual cases on the basis of justifiability! which is distinct from judicial review. (ut unless the mala fides of the "residential "roclamation is shown! the Courts have been e)horted by the 0upreme Court to avoid delving into the "residentNs satisfaction for want of   judicially manageable standards. This point is amply evident in the case of Minerva Mills and +thers v. nion of %ndia and +thers & where the 0upreme Court dwelt e)tensively on

its power to e)amine the validity of a "roclamation of 3mergency issued by the "resident. The 0upreme Court in this matter observed! inter alia! that it should not hesitate to perform its constitutional duty merely because it involves considering political issues. 1t the same time! it should restrict itself to e)amining whether the constitutional re=uirements of 1rticle ,-* have been observed in the declaration of the "roclamation and it should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the e)istence of a situation of emergency. The theory of Lsatisfaction and the e)isting satisfactionM with reference to LadviceM ,8 under  1rticle 69#*% evolved in 0tate of
,6 < 1E10T@1A 5 :BI! supra note ,*.

,7 $inerva $ills v. #nion Bf India 1I< /872 0C /678

,8 In $oypack 0ystems #"% 'td. v. :nion of India! #/877% * 0CC *88! it was held that the noting of the officials which lead to the Cabinets decision form part of the advice. /- + " a g e

democratic light in
Phat (ommai99 did was to lay down certain guidelines and certain standards in e)ercising  power under 1rticle ,-. In fact! it is the case where we elucidated the meaning of the 1rticle! consistent with the spirit of the Constitution and the background in which the 1rticle 92 &ameshar =rasad ID v4 #nion of India! #*22% * 0CC /

9/ Arjun $unda v4 Governor of ?har>hand ! #*22-% , 0CC ,88

9* (B;;1I C103! supra note 7.

9, "er Eustice (" Eeevan
99 (B;;1I C103! supra note 7. / + " a g e

was enacted. It was brought to the notice of the 0upreme Court! and it was an undeniable fact! that the 1rticle was used indiscriminately! or misused as one may call it! on a number of  occasions! before the judgment in the (ommai case. 3ven at that time! it was said that on more than 82 cases! the power was e)ercisedO and in most of the cases! it appeared to be of  doubtful constitutional validity. That power was e)ercised to dismiss the 0tate Governments controlled by a political party opposed to the ruling party at the Centre. The 0upreme Court wanted to introduce certain clarity to regulate the power! by defining the power! by laying down standards according to which the power is to be e)ercised. 0ince the judgment of the 0upreme Court becomes the law of the land! it is obvious that the Central Government is bound by the judgment. It is therefore clear that after the (ommai case! the governments have been more careful! more on guard! more wary of e)ercising this  power! lest their e)ercise should be set aside by the Courts. 1s we all know! in the case of the dismissal of the :ttar "radesh Government! the  proclamation by the "resident was set aside by the 1llahabad @igh Court following the (ommai judgment. (ut for the (ommai judgment! it is obvious the @igh Court could not have set aside the order of the "resident. That is the difference between preF(ommai and  postF(ommai.9-

9- Eeevan ed misuse of Article 356 ! >
MISUSE O! ARTICLE 356 ARTICLE 356 SHOULD $E A$OLISHED

1rticle ,- deserves to be abrogated. The founding fathers were under the impression that this provision would be used only in the rarest of rare cases! that it would be virtually a sword which would never be taken out of its sheath! e)cept in a flagrant case under 1rticle ,-. This latter 1rticle states that if any particular 0tate defies a Central direction validly given! it shall  be lawful for the "resident that is the Cabinet! to hold that the government of the 0tate cannot  be carried on in accordance with the provisions of the Constitution. That is to say! if an 1rticle ,- situation arises! 1rticle ,- may be attracted. (ut the Court will go into the =uestion whether the direction given by the :nion to the 0tate was itself valid. Bnly in a case of such valid direction within the competence of the :nion being ignored by the 0tate! can 1rticle ,- come into operation. In over /22 cases! starting with the outrage perpetrated in &erala in /8-8! there has never been a legitimate use of 1rticle ,-. If the temptation to use this presidential power is perennial! as is seen by its continual abuse! the time has come for a change in constitutional perspective. In short! 1rticle ,- should be kept in cold storage! or  even formally abolished.9 &.s/'ce V,R, K('sh0) I1e(! former judge of the 0upreme Court! has been one of IndiaNs most distinguished and original constitutional thinkers since Independence. In an interview 96! he opined that! + efore the ommai decision as rendered the constitutional position as understood to mean e:cludin the jurisdiction of the *upreme Court hen Article 356 as applied4 ut no the la is clear that it is possible for the court it is proper for the judes to e:amine hether  the relevant poer has been misused in the sense that it is arbitrar! mala fide or such that  there is no reasonable material to support such a conclusion as the brea>don of the Constitution4 Indeed it must be ac>noleded that even the =a>istan Court has ta>en a  somehat similar vie even earlier than the Indian Court4 ,o therefore it is clear that  rec>less e:ercise of Article 356 poer ill meet ith its aterloo in the Court4 The daring way in which the 1I1$;& is demanding the dismissal of the $;& ;inistry in Tamil Aadu under 1rticle ,- shows that political terrorism is apt to overpower constitutional 9 Id4

96 & @1AA1! @.<.! *upra note /. /7 + " a g e

 propriety. Phat is still more shocking is that the 1I1$;& alleges an earlier agreement with the (E" that! if the latter came to power! "residentNs
97 *4&4 ommai v4 #nion of India ! #/889% , 0CC /

98 *hamsher *inh v4 *tate of =unjab /8 + " a g e

The Governor under the Indian Constitution is a dubious functionary. @e is a ceremonial figure as the head of the 0tate and has solemn functions in that capacity. 0ome of them are really effective powers. 1s a rule! the Governor is bound by the advice of his Cabinet. @e cannot be EanusFfaced! looking in both directions. @e cannot be a Central spy or an agent to carry out the :nionNs mandate. :nfortunately he is in a very embarrassing position. 1ppointed by the Centre but obedient to the 0tate Cabinet! he can be a pathetic functionary sometimes asked to perform pathetic measures by the Centre. @e has to be an independent authority! his allegiance being wholly to the Constitutional obligations to act on the advice of the Council of ;inisters. @e may! as in 3ngland! caution! encourage! or otherwise give advice! but ultimately must abide by his CabinetNs recommendation for action. That is h! sometimes it has been said that a Governor  is a lorified cipher4 *o is the =resident . (ut this is not wholly true. They have power to ask for information! e)planation and reconsideration. Pisely used! these functions plus the power to refer (ills to the "resident! for consideration and assent! may make the Governor a factor to be reckoned with. 0o it is that I hold the view that the Governor is more than a lorified cipher4 ;e reins but  does not rule4 ;e advises but is bound b! the advice of his $inisters4 ;e is an elder   statesman but not an authorit! as the e:ecutive head of the *tate4 *uch is the delicate constitutional balance45. CONSTITUTIONAL EMERGENC% IN THE STATES

If the "resident is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a 0tate cannot be carried on in accordance with eh provisions of the Constitution! he is empowered to proclaim an emergency under  1rticles ,- and ,-. 1s a result! #i% he may assume to himself all or any of the functions of  the 0tate or he may vest all or any of those functions in the Governor or any other e)ecutive authority! #ii% he may declare that the powers of the 0tate legislature shall be e)ercisable by "arliamentO and #iii% he may make any other incidental or conse=uential provisions necessary -2 & @1AA1! @.<.! *upra note /.

-/ & @1AA1! @.<.! *upra note /. *2 + " a g e

to give effect to the objects of the "roclamation. The "resident! however! cannot assume to himself any of the powers vested in a @igh Court. The proclamation will have to be approved  by both the @ouses of "arliament in the same manner in which a war emergency  proclamation has to be approved. *uspension of )undamental &ihts( $uring the period of emergency! as declared under the either of the two categories discussed above! the 0tate is empowered to suspend the >undamental undamental undamental urther! the Constitution empowers the "resident to suspend the right to move any court of law for the enforcement of any of the >undamental undamental
-* $.$. (10:! CB;;3AT1 I A$I1! 6th 3dn.! 5ol. /! p. --. */ + " a g e

I5. $uring the period of emergency! the legislative work of the 0tate will be transferred to "arliament $elegation of such work to any administrative boy will be reduced to the minimum. 5. 1s soon as the political situation within the 0tate becomes conductive to a responsible Government! it will be restored. Generally speaking in practice! the emergency provisions for Central intervention in cause of   breakdown of Constitutional machinery in the 0tates have proved to be not only a protective device for responsible government in politically unstable 0tates but also a blessing to political  parties who were unwilling and incapable to shoulder responsibility for a time on account of  group rivalries or any other unfavourable circumstances. $uring a period of emergency! it is natural that the 3)ecutive becomes unusually powerful. This is a tendency of governments all over the world! federal or unitary. The e)perience of parliamentary democracies indicates that a "arliament is vigilant and through the members of the opposition particularly. it manages to compel the 3)ecutive to account for all its actions. Thus! "arliament has the power to check  the 3)ecutive whenever the latter goes beyond reasonable limits. 3mergency provisions. do not! in any way! cut "arliament out of the picture and "arliament has always the right to call the 3)ecutive to orderO and if they find that the 3)ecutive has e)ceeded its powers in regard to the operation of any of the provisions enacted under the emergency laws! they can always  pull it up! even dismiss the ministry and replace it. @ow effectively "arliament would and could function during a period of national emergency was a subject of speculation until /8* when the "resident proclaimed emergency under  1rticle ,-*. (ut the manner in which "arliament has dealt with the emergency shows that instead of the 3)ecutive arrogating to itself the powers of "arliament in the name of  emergency. "arliament has subjected to 3)ecutive to greater control and security in all its actions vitally affection the nation. In fact! the debates in "arliament demonstrated the eagerness with which the 3)ecutive sought the approval of "arliament not only with regard to the action already taken by the Government but also that proposed for the future. The only e)ception to this in practice was the internal emergency period of /86-F66. There was widespread abuse of e)ecutive power in many part of the country in many forms during this period. The e)tent of abuse became clear only after the lifting of emergency in /866.  Aaturally the new "arliament! which came into being after the general elections of march /866! was interested in prevention the repetition of such a situation in future and hence ** + " a g e

initiated steps to amend the Constitution suitably to limit the powers of the Government to  proclaim internal emergency.-, The 99th 1mendment adopted by "arliament in $ecember /867 ensures that the proclamation of emergency can be made only on the basis of written advice tendered to the "resident by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be ground for  declaration of emergency. 3mergency can be proclaimed only when the security of the country is threatened by war! e)ternal aggression or armed rebellion. 1s an additional safeguard! proclamation of emergency will re=uire approval within a month by a resolution of  "arliament by a majority of the total membership and not less than twoFthirds of the members  present and voting. The provisions for financial emergency! again! show how the framers of  the Constitution have drawn upon the e)perience of the working of federalism elsewhere. >inally! one may consider the provision for the suspension of >undamental undamental undamental urther! the order of suspension should be placed before "arliament and it will  be free to take whatever action it deems fit. The working of the Constitution! so far! shows that the suspension of >undamental undamental undamental
-, E1IA! ;.".! *upra note , at p.62*. *, + " a g e

discomforts of our political thinking. Bn the other hand! the emergency provision has been! on the whole! justified when viewed from the e)periences of the past .-9  &elief in case of mala fide e:ercise of poer  In this regard! the Court observed that if the "residential "roclamation is held invalid Lthen notwithstanding the fact that it is approved by both @ouses of "arliament! it will be open to the court to restore the status =uo anteM and bring back to life the 'egislative 1ssembly and ministry.-- The Court also held that in appropriate cases and if the situation demands it! the @igh CourtD0upreme Court have the power by an interim injunction to restrain the holding of  fresh elections to the 'egislative 1ssembly pending the final disposal of the challenge to the validity of the proclamation but not in such a manner as to allow the 1ssembly to continue  beyond its original term. This it can do to avoid a fait accompli and to prevent Lthe remedy of   judicial review #from% being rendering fruitlessM.- The political significance of the decision is that it will act as a bar on motivated and arbitrary dismissal of the 0tate Governments by the Centre as had happened in a number of cases in the recent past. The unseating of a ministry commanding a majority in the 1ssembly by applying 1rticle ,- is a virtual dismissal through back door. Aow that the courts could go into the circumstances of the dismissal and declare the act as unconstitutional leading to the declaration of status =uo ante! the party in power at the Centre will think twice before embarking on the adventurous course of imposing "residents
-9 0ukumar et. al.! Article 356 )or and Aainst( A &ane of &eflection ! >
-- 033<51I! @.;.! CBA0TIT:TIBA B> I A$I1! 5ol III! 9th ed. *227! p. ,/2-

- Id . at p. /98

-6 3ditorial! A %andmar> erdict ! T@3 @IA$:! ;arch! /9! /889. *9 + " a g e

CONCLUSION

1rticle ,- of the Constitution was most keenly discussed and debated in the Constituent 1ssembly. The >ounding >athers apprehended that! if and when it would be misused! it would violate not merely the federal character of the polity envisaged by them but also make a mockery of democratic principles. It seems that they were very much sure that the provision of the article would not be used to strengthen the corporative federalism / but it would be used in resolving the ministerial crisis in the 0tate. -7 1s observed by 0hiban 'al 0a)ena +7 I feel  that b! these articles e are reducin the autonom! of the *tates to a farce4 These articles ill reduce the *tate Governments to reat subservience to the Central Government4 51 ut  hat could the! do the! placed a hope in an apoloetic manner that 7 +8the9 articles ill  never be called into operation and that the! ould remain a dead letter4 6/ It has to be borne in mind that the success or failure of constitutional provisions depends on the final analysis not upon the elegance of the language in which they are couched! important though that be! it depends more upon the way they are actually worked. :sed properly and in the right spirit! article ,- can subserve national interests! be misused and abused for ulterior   purposes! it would operate as an instrument of oppression. / It is evident that there is a lack  of effective safeguards against the abuse of 1rticle ,- of the Indian Constitution. The safeguard of Nparliamentary approvalN F outlined in 1rticle ,-#,% F of a "roclamation under  1rticle ,-#/% could be biased because the "arty that is in power at the Center generally dominates "arliament by a majority vote. >urthermore! even a vote in "arliament declaring a  particular imposition #or failure to impose% of "residentNs
-7 CBA0TIT:3AT 1003;('K $3(1T3 ! *upra note 9 at p./9/.

-8 Id  at p. /9,.

2 Id at p. /66.

/ & @1AA1! @.<.! *upra note /. *- + " a g e

@owever! the repeal of 1rticle ,- is not advisable because the Indian polity is rife with crises and there has to be some contingency against a constitutional deadlock in a 0tate. The  AC
* ACP