INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGES
1.5. DIRECTION OF THE CENTRE TO THE STATE UNDER ARTICLE 356 AND 365
Administration of state is governed by bureaucracy or by IAS officer under the direction of home ministry when art 365 apply. Governor of state send his report to president that state machinery is has fail to run administration in state. First use of 356 is held in Punjab in 1952.
Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. The essence of the Article is that upon the breach of certain defined state of affairs, as ascertained and reported by the Governor of the State concerned (or otherwise) the President concludes that the 'constitutional machinery' in the State has failed. Thereupon the President makes a 'Proclamation of Emergency,' dismissing the State Legislature and Executive. During a state of emergency, the President is vested with tremendous discretionary powers. Any 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. Having 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 Drafting 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 'separation of powers,' then common sense suggests that it is only to deal with the direst of circumstances and nothing less. But it seems that the remedial nature of the Article has been perverted to impose the domination of the Central Government upon a State Government 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 Article 356 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.
The Sarkaria Commission recommended extremely rare use of Article 356. The Commission observed that, although the passage, '. . . the government of the State cannot be carried on in accordance with the provisions of this Constitution . . .' is vague, each and every breach and infraction of constitutional provisions, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery. According to the Commission, Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the democratic fabric of the Constitution. The report discourages a literal construction of Article 356(1).
The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations, 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.
The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute, because the power under Article 356(1) is a conditional power. In the exercise of the power of judicial review, the court is entitled to examine whether the condition has been satisfied or not. So the controversy actually revolves around the scope and reach of judicial review. From the decisions in the case of State of Rajasthan v. Union of India and the Bommai case, it is clear that there cannot be a uniform rule applicable to all cases. It is bound to vary depending upon the subject matter, nature of the right, and other factors. However, where it is possible the existence of satisfaction can always be challenged on the ground that it is 'mala fides or based on wholly extraneous and irrelevant grounds.' The relevance of judicial review in matters involving Article 356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme Court held that it was not precluded from striking down a law passed prior to a Proclamation of Emergency, as ultra vires to the Constitution, just because the Proclamation was in force at that time.
Judicial review of the Proclamation under Article 356(1) was first tested in State of Rajasthan v. Union of India. The Supreme 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 President under Article 356 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. But unless the mala fides of the Presidential Proclamation is shown, the Courts have been exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of judicially manageable standards. This point is amply evident in the case of Minerva Mills and Others v. Union of India and Others, where the Supreme Court dwelt extensively on its power to examine the validity of a Proclamation of Emergency issued by the President. The Supreme Court in this matter observed, inter alia, that it should not hesitate to perform its constitutional duty merely because it involves considering political issues. At the same time, it should restrict itself to examining whether the constitutional requirements of Article 352 have been observed in the declaration of the Proclamation and it should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a situation of emergency.
Thus we can safely conclude that, though limited, the Presidential Proclamation under Article 356 is subject to judicial review.
Article 356 should be abolished'
Justice V.R. Krishna Iyer, former judge of the Supreme Court, has been one of India's most distinguished and original constitutional thinkers since Independence. He was interviewed by R. Krishnakumar in Thiruvananthapuram:
*The Supreme Court's majority judgment of March 11, 1994 in the Bommai case is considered a landmark judgment with respect to Centre-State relations in general and Article 356 in particular. What, in your assessment, is the essential difference between the situation pre-Bommai and post-Bommai?
Before the Bommai decision was rendered, the constitutional position was understood to mean excluding the jurisdiction of the Supreme Court when Article 356 was applied. But now the law is clear that it is possible for the court, it is proper for the judges, to examine whether the relevant power has been misused in the sense that it is arbitrary, mala fide or such that there is no reasonable material to support such a conclusion as the breakdown of the Constitution.
Indeed it must be acknowledged that even the Pakistan Court has taken a somewhat similar, view, even earlier than the Indian Court. Now, therefore, it is clear that reckless exercise of Article 356 power will meet with its Waterloo in the Court.
* Since experience, even in the post-Bommai period, suggests that few Central governments are able to resist the temptation to misuse the exceptional power conferred by Article 356 (and also related powers), do you think Article 356 should be abolished?
Speaking for myself, Article 356 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, except in a flagrant case under Article 365. This latter Article states that if any particular State defies a Central direction validly given, it shall be lawful for the President that is the Cabinet, to hold that the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is to say, if an Article 365 situation arises, Article 356 may be attracted. But the Court will go into the question whether the direction given by the Union to the State was itself valid. Only in a case of such valid direction within the competence of the Union being ignored by the State, can Article 356 come into operation.
My submission is that in over 100 cases, starting with the outrage perpetrated in Kerala in 1959, there has never been a legitimate use of Article 356. 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, Article 356 should be kept in cold storage, or even formally abolished.
The daring way in which the AIADMK is demanding the dismissal of the DMK Ministry in Tamil Nadu under Article 356 shows that political terrorism is apt to overpower constitutional propriety. What is still more shocking is that the AIADMK alleges an earlier agreement with the BJP that, if the latter came to power, President's Rule would be imposed in Tamil Nadu. This very statement is sufficient to hold that any exercise of Article 356 by the Centre is utterly untenable.
Madam Jayalalitha, innocent of Constitutional law, is guilty of the goofy demand for President's Rule not knowing that her very allegation of an antecedent understanding is sufficient to shoot down any stultifying exercise of Article 356 power!
* Article 356, which was sold to the Constituent Assembly as an emergency provision to deal with highly exceptional cases, has (as you have pointed out) been used over 100 times since the Republican Constitution was adopted in 1950. Looking at it historically, under what circumstances would the use of Article 356 be just, if at all?
The Sarkaria Commission has condemned the exercise of Article 356 power as almost always motivated or induced by extraneous considerations. It is time Article 356 power was handcuffed in the way Sarkaria has suggested, although personally I might go further to hold that only after Parliament passes a resolution in both Houses should President's Rule be used against a State. Why? Because it is a sabotage of federalism to usurp State power by the Centre and such a grave frustration of the basic structure of the Constitution needs strong limitations to be put on the exercise of the power. So it is that I demand a prior resolution by both Houses as a check on misuse.
* Constitutionally, new standards and restrictions have been laid down for the application of Article 356 (and at least by implication, the Governor's power to dismiss an elected State Government without recourse to Article 356). But between this new constitutional standard ordained by the Supreme Court and actual political conduct, there seems to be some kind of credibility gap. How can Bommai be better enforced in the rough and tumble of Indian politics?
The Bommai ruling is a severe warning to the Union Government. It must be open to the affected or intimidated State to move the Supreme Court by a quia timet action to stay hasty intervention in case there is clear indication of such a proposed action. It must be remembered that the State Cabinet is answerable to the State legislature and so long as it commands its confidence the pleasure of the Governor is a mere constitutional euphemism. The powers of the Governor as well as of the President have been explained at some length in Shamser Singh's case (Shamser v. State of Punjab, 1974). The President as well as the Governor are bound by the Cabinet's advice and to act in excess of such advice is to violate the Constitution and invite the Court's interdict.
* Would you like to comment on the constant demands made not only by the AIADMK, but also by other regional allies of the BJP such as the Samata party and the Trinamul Congress for Central action against elected State governments run by parties in opposition to the BJP and its allies? Also, would the pre-election agreement or understanding which Jayalalitha claims AIADMK had with the BJP for the dismissal of the Tamil Nadu Government render the use of Article 356 mala fide?
I have no doubt in my mind that demands by regional or even national parties to overthrow State-level democracy under Article 356 cannot be acceded by the Centre. This is not a matter of political vendetta or hostility or estrangement. Constitutional values must regulate the President's conscience when exercising Article 356 power. Noises made by regional parties or others cannot affect the voice of the Constitution. This applies to the Tamil Nadu party's demand as well as the clamour made against the West Bengal Government.
* When all is said, the Governor under the Indian Constitution seems to be nothing but a political agent of the Centre. What do you think can be done about this problem in a federal set-up?
The Governor under the Indian Constitution is a dubious functionary. He is a ceremonial figure as the head of the State and has solemn functions in that capacity. Some of them are really effective powers. As a rule, the Governor is bound by the advice of his Cabinet. He cannot be Janus-faced, looking in both directions. He cannot be a Central spy or an agent to carry out the Union's mandate.
Unfortunately he is in a very embarrassing position. Appointed by the Centre but obedient to the State Cabinet, he can be a pathetic functionary sometimes asked to perform pathetic measures by the Centre. He has to be an independent authority, his allegiance being wholly to the Constitutional obligations to act on the advice of the Council of Ministers. He may, as in England, caution, encourage, or otherwise give advice, but ultimately must abide by his Cabinet's recommendation for action. That is why sometimes it has been said that a Governor is a glorified cipher. So too the President.
But this is not wholly true. They have power to ask for information, explanation and reconsideration. Wisely used, these functions plus the power to refer Bills to the President, for consideration and assent, may make the Governor a factor to be reckoned with.
So it is that I hold the view that the Governor is more than a glorified cipher. He reigns, but does not rule. He advises, but is bound by the advice of his Ministers. He is an elder statesman but not an authority as the executive head of the State. Such is the delicate constitutional balance.
ARTICLE 365 IN THE CONSTITUTION OF INDIA 1949
365. Effect of failure to comply with, or to give effect to, directions given by the Union Where any State has failed to comply with or to give effect to any directions given in the exercise of the executive power of the Union under any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.
Constitution of India - Emergency Provisions
No Chapter of the Constitution has been subject of more acrimonious attack by the critics than those dealing with the emergency provisions. The Constituent Assembly witnessed one of its most agitated scenes during the discussion of these provisions. Many prominent members of the Assembly opposed the inclusion of these provisions in the Constitution as they thought that they were inconsistent with the democratic provisions embodied elsewhere. The majority of the members, however, favored the inclusion of these provisions, although reluctantly, as a precautionary measure, against possible disruptive forces destroying the newly established Union. The Constitution provides for three different categories of Emergency and in each case the President is empowered to declare the emergency.
If the president is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatened by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. It may be proclaimed even before the actual occurrence when external aggression is apprehended. But no such proclamation can be made by the President unless the Union Ministers of Cabinet rank, headed by the Prime Minister, recommend to him, in writing, that such a proclamation should be issued. The proclamation may be revoked subsequently; if not, it shall be laid before both Houses of Parliament. If Parliament does not approve of it within one month, it will become ineffective.
As soon as the emergency is proclaimed, the federal provisions of the Constitution cease to function in the area affected by the proclamation. As a result, there is a two-fold expansion of the authority of the Union. First, the executive power of the Union will extend to the giving of any direction to any State executive in the emergency area. Secondly, Parliament’s law-making power will extend to the subjects enumerated in the Sate List. Further, the President is empowered to prohibit by order the distribution of revenues that are normally to be assigned to the Sates under the financial provisions of the Constitution. However, all such orders have to be placed before each House of Parliament for its approval. The combined effect of the operation these provisions is the emergence of full-fledged unitary Government.
Constitutional Emergency in the States
If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a Sate cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to proclaim an emergency under Articles 356 and 365. As a result, 9I) he may assume to himself all or any of the functions of the State or he may vest all or any of those functions in the Governor or any other executive authority, (ii) he may declare that the powers of the State legislature shall be exercisable by Parliament; and (iii) he may make any other incidental or consequential provisions necessary to give effect to the objects of the Proclamation. The President, however, cannot assume to himself any of the powers vested in a High Court. The proclamation will have to be approved by both the Houses of Parliament in the same manner in which a war emergency proclamation has to be approved.
Suspension of Fundamental Rights:
During the period of emergency, as declared under the either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the emergency. However, such order are to be placed before Parliament as soon as possible for its approval.
If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its threatened, he may declare a financial emergency under Article 360. The proclamation in this case also should be approved by Parliament as in the other two cases of emergency. During the financial emergency, "the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the direction" or any other directions which the President may deem necessary for the purpose. Such directions may include those requiring the reduction of salaries and allowances of Government servants and even those of the Judges of the Supreme Court the High Courts.
So far, there have been four occasions when emergency of the first category was proclaimed by the President: 1962 (Chinese aggression), 1965 (Indo-Pakistan war), 1971 (Indo-Pakistan war before the emergence of Bangladesh) and 1975 (internal emergency). An analysis of these instances would indicate the purpose and the manner in which, in actual practice, a proclamation of emergency in the States will be made by the President. These may be summed up in the following terms:
I. The essential condition for the intervention by the Centre is the political instability of the State, that is the virtual breakdown of the Parliamentary System of the Government.
II. The Union will watch the situation of instability with utmost caution and provide every opportunity for the formation of an alternative ministry.
III. The proclamation of emergency will only be the last resort when (i) the existing ministry does not have the confidence of the legislature; and (ii) no alternative ministry can be formed.
IV. During the period of emergency, the legislative work of the State will be transferred to Parliament Delegation of such work to any administrative boy will be reduced to the minimum.
V. As soon as the political situation within the State 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 States have proved to be not only a protective device for responsible government in politically unstable States but also a blessing to political parties who ere unwilling and incapable to shoulder responsibility for a time on account of group rivalries or any other unfavorable circumstances. During a period of emergency, it is natural that the Executive becomes unusually powerful. This is a tendency of governments all over the world, federal or unitary. The experience of parliamentary democracies indicates that a Parliament is vigilant and through the members of the opposition particularly. it manages to compel the Executive to account for all its actions. Thus, Parliament has the power to check the Executive whenever the latter goes beyond reasonable limits. Emergency provisions. do not, in any way, cut Parliament out of the picture and Parliament has always the right to call the Executive to order; and if they find that the Executive has exceeded 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.
How effectively Parliament would and could function during a period of national emergency was a subject of speculation until 1962 when the President proclaimed emergency under Article 352. But the manner in which Parliament has dealt with the emergency shows that instead of the Executive arrogating to itself the powers of Parliament in the name of emergency. Parliament has subjected to Executive to greater control and security in all its actions vitally affection the nation. In fact, the debates in Parliament demonstrated the eagerness with which the Executive sought the approval of Parliament not only with regard to the action already taken by the Government but also that proposed for the future.
The only exception to this in practice was the internal emergency period of 1975-77. There was widespread abuse of executive power in many part of the country in many forms during this period. The extent of abuse became clear only after the lifting of emergency in 1977. Naturally the new Parliament, which came into being after the general elections of march 1977, was interested in prevention the repetition of such a situation in future and hence initiated steps to amend the Constitution suitably to limit the powers of the Government to proclaim internal emergency.
The 44th Amendment adopted by Parliament in December 1978 ensures that the proclamation of emergency can be made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be ground for declaration of emergency. Emergency can be proclaimed only when the security of the country is threatened by war, external aggression or armed rebellion. As an additional safeguard, proclamation of emergency will require approval within a month by a resolution of Parliament by a majority of the total membership and not less than two-thirds of the members present and voting. The provisions for financial emergency, again, show how the framers of the Constitution have drawn upon the experience of the working of federalism elsewhere.
Finally, one may consider the provision for the suspension of Fundamental Rights Apparently, this is by far the most unwholesome provision in the Constitution. The provision for the suspension of Constitutional rights does not means, however, that with the proclamation of emergency, there will be an automatic suspension of Fundamental Rights. It may be quite possible to keep the enforcement of the Fundamental Rights intact and there need not be a universal suspension throughout the country merely by reason of the proclamation. Further, the order of suspension should be placed before Parliament and it will be free to take whatever action it deems fit.
The working of the Constitution, so far, shows that the suspension of Fundamental Rights took place rarely. That happened as a result of the proclamation of national emergency in 1962, 1965, 1971 and 1975.
In contrast to the national emergencies mentioned above, Fundamental Rights were never suspended during any of the emergencies proclaimed in the States. That remains a good precedent. Even during the national emergency, suspension of Fundamental Rights should be restricted to the absolute minimum. There have been only few instances so far of the Union Executive behaving high-handedly towards the States or ignoring Parliament in the name of emergency. The apprehension that the President may act as a dictator is not one of the acute discomforts of our political thinking. On the other hand, the emergency provision has been, on the whole, justified when viewed from the experiences of the past.