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Article 356: Proclamation Of Emergency And Its Open Misuse By Political Party

The dead letter of the Constitution, said B. R. Ambedkar. Here the topic of my research is Article 356 i.e. Proclamation of emergency and its open misuse by the ruling party. Article 356 refers to State Emergency i.e. President's Rule. It refers to the emergency imposed in the state due to the report of the governor, resulting to which the state functions according to the President. It explores different types of emergencies in the Constitution of India viz.

National emergency, State Emergency and financial emergency. The article takes you through the history of Article 356; as in from where, when and how State Emergency has been borrowed and implied. It also explains the circumstances under which the President's Rule can be executed; gives knowledge about the parliamentary approval and the duration of the State Emergency. The analysis reveals the misuse of emergency power by the ruling party for a long time. Hence, this article gives a detailed report on the proclamation of a State Emergency and its open misuse by the ruling party.

Introduction:
If the president is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution then the president can withdraw union, executive and legislative powers of the state which is called State Emergency.1 A dead letter of the Constitution said B. R. Ambedkar. But the reality now clearly contradicts Dr. Ambedkar's statement. So let's study President's Rule and its open misuse by the ruling party.

What is an emergency?

The emergency provisions are contained in part XVIII of the Constitution, from article 352 to 360.2 The term emergency may be defined as circumstances arising suddenly that calls for immediate action by the public authorities under the powers especially granted to them.3

According to our esteemed Constitution, there are three types of emergency provision as follows:
National emergency:
If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression then the president may proclaim a national emergency.

In India national emergency has been imposed thrice:

1962 – It was imposed due to Chinese aggression.
1971 – It was imposed during the Indo Pak war.
1975 – It was imposed by P. M. Indira Gandhi under the heading of internal disturbances.

State Emergency:

If the president is convinced that a situation has occurred in which the government of the state cannot be carried out by the provision of the govt. then the president may declare a State Emergency. It has been imposed several times.

Financial emergency:

A financial emergency is related to the economic stability of the country. Providentially, it hasn't been imposed in India yet.
Well, moving on to the main topic of discussion.

What is article 356?

The article 356 clearly states that:
If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution4 then the president may proclaim emergency in the concerned state.

This is called as State Emergency. It is also called President's Rule because as soon as the emergency is proclaimed in the state, it functions according to the President. The article 356 says that whenever a state fails to comply with or to give effect to any direction from the Centre, it will be lawful for the president to hold that a situation has arisen for the emergency.5

History:
It is frequently forgotten that India's Constitution is widely borrowed from a document that served as British India's Constitution in the last decade of British raj i.e. The Government of India Act, 1935. It was Section 93 of the Act that provided similar provisions of this Article in respect of the Governor of a province.6 In 1947, when the government was in the hands of Congress, section 93 was then inserted almost unchanged in India's New Republican Constitution as article 356. This is how article 356 came into existence.

Grounds of Imposition:
Article 356 carries the marginal heading Provisions in case of failure of Constitutional machinery in States.7
And such failure can be of following types:
  1. If the president on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, then the President's Rule can be imposed.8
     
  2. If any state fails to comply with or to give effect to any direction from the Centre, then the President's Rule can be imposed.9
In layman's words, the president rule can be imposed on the breakdown of law and order, political instability, corruption and maladministration.

Parliamentary Approval and Duration:

A proclamation imposing President's Rule must be approved by both the houses of parliament within two months from the date of issue.10 If approved by both the houses of Parliament, the President's Rule continues for six months and can be extended for a maximum period of three years.11 Well, the resolution approving the proclamation of President's Rule can be passed by either house of parliament only by a simple majority.

The 44th Amendment Act of 1978 introduced a new provision to put restrain on the power of Parliament to extend a proclamation of President's Rule beyond one year.12 Thus, provided to that, beyond one year, the President's Rule can be extended by six months at a time only when following conditions are fulfilled:
a proclamation of National Emergency should be in operation in the whole of India, or any part of the state;
the Election Commission must certify that the general elections to the legislative assembly of concerned state cannot be held in account of difficulties.13
A proclamation of President's Rule may be revoked by the president at any time buy a subsequent proclamation; such a proclamation does not require parliamentary approval.14

Proclamation of emergency is open misuse by Ruling party:

Since 1950, the President's Rule has been forced for over multiple times in our nation. On average, twice a year! Further, on a few events, the President's Rule has been forced arbitrarily for political or individual reasons. Hence, article 356 has gotten one of the most controversial and scrutinized arrangements of the Constitution.

According to the critics, the first use of Article 356 was itself a great misuse. Nehru, unhappy with Punjab C. M. Gopichand Bhargava in 1951, dismissed him even though, he enjoyed a majority in the assembly.15 Historian Granville Austin writes in this case:
the Congress has blended its interest with questionable national needs to take over a state government.16

On paper, much like section 93, Article 356 is only to be used in the case of failure of Constitutional machinery. However, it is not surprising to know that it has been used most often to guard the interest of the ruling party.

The significant explanations for the abuse of President's Rule in India is on the grounds that the Governor has no authoritative to counsel the Cabinet of Ministers while planning and sending the report to the president. Critics also include the case of 1977, when the Janata party was in power headed by Morarji Desai, he imposed President's Rule in nine states where Congress was in power. The two-year term of Morarji Desai from 1977-79 saw the provision being imposed for sixteen times. Later, when Congress came into power in 1980, it did the same. And so, Article 356 has been repeatedly abused, before the judgement of Bommai case.

S. R. Bommai vs Union of India (1994):

S. R. Bommai case is one of the most considered cases when talking about the President's Rule.

On March 11, 1994, a nine–judge Constitution bench of SC issued the historic order, which in a way put an end to the arbitrary dismissal of State Governments under the article 356 by spelling out restrictions.17 The verdict concluded that the power of the President to dismiss a State government is not absolute.18

One of the important issues decided by the majority is that State legislative assembly cannot be dissolved merely upon the issue of Presidential proclamation and before Parliamentary approval is accorded.19 The majority further held that until Parliament grants approval the legislative assembly can be suspended by:
suspending the provisions of Constitution relating to the legislative assembly under sub-clause (c) of clause (1)20.

The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation, the Court said.21

Hence, the Bommai Case brought about a change that curbed blatant misuse of article 356 to an extent.

Conclusion:
Allowing an unelected governor to dismiss elected state governments has led to a weakening of federalism and democracy in India.22 Dr. B. R. Ambedkar, while replying to the critics of this provision in the Constituent Assembly, hoped that the drastic power conferred by article 356 would remain a Dead Letter and would be used only as a measure of last resort.23 However, what was hoped to be a dead letter of the Constitution, has turned to be a Deadly Weapon against several state governments and legislative assemblies.24 This leads me to a question, Are our hearts dead enough to not keep Dr. Ambedkar alive?

End-Notes:
  1. M Laxmikant, Indian Polity, 16.5 [4thed, 2016] [McGraw Hill Education].
  2. Id. at 16.1.
  3. Malika Chhikara, Three types of emergencies under the Indian Constitution, Legal Service India, http://www.legalservicesindia.com/article/1834/Three-types-of-emergencies-under-the-Indian-Constitution.html#:~:text=The%20term%20emergency%20may%20be,powers%20especially%20granted%20to%20them%E2%80%9D.
  4. The Constitution of India, 228, (Govt. of India, Ministry of Law and Justice), (1st Apr. 2019).
  5. M. Laxmikanth, Indian Polity, 16.6 [4thed, 2016] [McGraw Hill Education].
  6. K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article 356 of the Constitution of India: A Comparative Critique, Vol. 8.1. March 2004 (http://www.ejcl.org/81/art81-4.html ).
  7. Justice Shri B. P. Jeevan Reddy, Dr. M. G. Rao, Shri. G. V. Ramakrishna, Article 356 of the Constitution, pg. 927, 1.4, National Commission to Review the working of the Constitution, (11th May, 2001). (http://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf)
  8. See supra note 4
  9. INDIA CONST. art. 365
  10. Laxmikanth, supra note 5.
  11. Laxmikanth, supra note 5.
  12. Laxmikanth, supra note 5.
  13. Laxmikanth, supra note 5.
  14. Laxmikanth, supra note 5.
  15. Shoaib Daniyal, A short history of the colonial origins of Presidents Rule and its misuse in independent India, (Feb 01, 2016, 11:30am), https://scroll.in/article/802736/a-short-history-of-the-colonial-origins-of-presidents-rule-and-its-misuse-in-independent-india.
  16. Ibid.
  17. TH, (The Hindu net desk), (18th May, 2018), (https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted-often/article23929119.ece).
  18. Ibid.
  19. Soli J. Sorabjee, Decision of the Supreme Court in S.R. Bommai v. Union Of India: A Critique, (1994) 3 SCC (Jour) 1.
  20. Ibid.
  21. See, supra note 18.
  22. Daniyal supra note 15.
  23. Laxmikanth supra note 5, at 16.8
  24. Ibid.

    Award Winning Article Is Written By: Ms.Zahoora Hamdule

    Awarded certificate of Excellence
    Authentication No: OT28016593550-6-1020

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