4.4) STATE EMERGENCY Art. 356 Art. 356 reads that356. Provisions in case of failure of constitutional machinery in States.

(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 this Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. Reason beingIt is the duty of the Union Government to ensure that governance of a State is carried on in accordance with the provisions of the Constitution. Under Article 356, the President may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a situation has arisen under which the Government of the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the President is called proclamation on account of the failure (or breakdown) of constitutional machinery. In popular language it is called the Presidents Rule.

Procedure of proclaiming state emergencyLike National Emergency, such a proclamation must also be placed before both the Houses of Parliament for approval. In this case approval must be given within two months, otherwise the proclamation ceases to operate. If approved by the Parliament, the proclamation remains valid for six months at a time. It can be extended for another six months but not beyond one year. However, emergency in a State can be extended beyond one year if (a) a National Emergency is already in operation; or if (b) the Election Commission certifies that the election to the State Assembly cannot be held. Procedure of revoking state emergencyAny such Proclamation may be revoked by a subsequent Proclamation. Every Proclamation shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. Effect of state emergencyThe declaration of emergency due to the breakdown of Constitutional machinery in a State has the following effects:

The President can assume to himself all or any of the functions of the State Government or he may vest all or any of those functions with the Governor or any other executive authority. The President may dissolve the State Legislative Assembly or put it under suspension. He may authorize the Parliament to make laws on behalf of the State Legislature. The President can make any other incidental or consequential provision necessary to give effect to the object of proclamation. Criticism of Presidents RuleThe way Presidents Rule was imposed on various occasions has raised many questions. At times the situation really demanded it. But at other times, Presidents Rule was imposed purely on political grounds to topple the ministry formed by a party different from the one at the Centre, even if that particular party enjoyed majority in the Legislative Assembly. Suspending or dissolving assemblies and not giving a chance to the other political parties to form governments in states has been due to partisan consideration of the Union Government, for which Article 356 has been clearly misused. In view of the above facts, Article 356 has become very controversial. In spite of the safeguards provided by the 44th Amendment Act, this provision has been alleged to be misused by the Union Government. That is why, there is a demand either for its deletion or making provision in the Constitution to restrict the misuse of this Article. The Sarkaria Commission which was appointed to review the CentreState relations also recommended that Article 356 should be used only as a last resort. The Commission also suggested that the State Legislative Assembly should not be dissolved unless the proclamation is approved by the Parliament. It further suggested that all possibilities of forming an alternative government should be fully explored before the Centre imposes emergency in a State on grounds of breakdown of Constitutional machinery. The Supreme Court held in the Bommai case that the Assembly may not be dissolved till the Proclamation is approved by the Parliament. On a few occasions such as when Gujral Government recommended use of Article 356 in Uttar Pradesh, the President returned the recommendation for reconsideration. The Union Government took the hint and dropped the proposal.

4.5) Important Case Law relating to State Emergency: S.R.Bommai vs. Union of India The case of S.R.Bommai vs. Union of India is a very landmark case in the purview of the Indian Constitutional history relating to the proclamation of emergency under Article 356 of the Constitution. The case mainly came up with the issue, of the power of the President to issue

proclamation under Article 356 of the Constitution including the power to dissolve State Legislative Assemblies and also issues relating to federalism and secularism as a part of basic structure. The facts and the situation that how the case arises is given below:Bommais case came before a bench of 9 judges. On 21st April 1989, the President issued a Proclamation under Art. 356 of the Constitution dismissing the Bommai Government and dissolving the Legislative Assembly of the State of Karnataka. A writ petition was filed on 26th April, 1989 challenging the validity of the Proclamation. A special bench of 3 judges of the Karnataka High Court dismissed the writ petition. On 11th October 1991, the President issued a Proclamation under Article 356(1) dismissing the Government of Meghalaya and dissolving the Legislative Assembly. On 7th August 1988, the President issued a Proclamation dismissing the Government of Nagaland and dissolving the State Legislative Assembly. The validity of the Proclamation was challenged in the Guwahati High Court. The petition was heard by a Division Bench comprising of the Chief Justice and Hansaria J. The bench differed on the effect and operation of Art. 74(2) and hence the matter was referred to the third Judge. But before the third Judge could hear the matter, the Union of India was granted special leave to appeal and further proceedings in the High Court were stayed. On 15th December 1952, the president issued a Proclamation under Article 356 dismissing the State Governments and dissolving the Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh. The validity of these Proclamations was challenged by Writ Petition in the appropriate High Courts. The Madhya Pradesh High Court allowed the Petition but Writ Petition relating to Rajasthan and Himachal Pradesh were withdrawn to the Supreme Court. The arguments in the case of Bommai commenced in the first week of October 1993 and were concluded in the last week of December 1993. The hearing was interrupted thrice because of Dashera and Diwali holidays and the brief absence of Pandian J. from the bench.

The case of Bommai not only comprised of the issue of Proclamation of emergency by the President but it also has different types of issues relating to secularism and federalism of the Constitution in the Indian context. It also enhances in the matter of judicial review of Article 365 of the Constitution which is capable of exercise in testing invalidating proclamation.

Secularism Secularism is also a part of basic structure as the basis of the Indian Constitution is that all citizens are equal and that the religion of a citizen is irrelevant in the matter of his enjoyment of Fundamental Rights. The Constitution ensures equal freedom for all religion and provides that the religion of the citizen has nothing to do in socio-economic matters. Justice Sawant and Justice B.P. Jeevan Reddy observed that the concept of secularism is not merely a passive attitude of religious tolerance. It is also a positive concept of equal treatment of all religions. This concept was not expressly incorporated in the constitution at the stage of its making, but its operation was visible in the Fundamental Rights and Directive Principles. The concept of secularism, though not expressly stated in the constitution, was nevertheless, deeply embedded in the constitutional philosophy. In 1976, through 42nd amendment of the Constitution, the concept of secularism came into being. The constitution does not define the word secular as it is a very elastic term and not capable of any precise definition it is kept undefined. In the view of Justice Ramaswamy, secularism is not anti-god. In Indian context secularism has a positive content. The Indian Constitution embodies the positive concept of secularism and has not accepted the American doctrine of secularism i.e. the concept of erecting a wall of separation between Religion and State. The concept of positive secularism separates spiritualism with individual faith. Federalism The context of S.R. Bommai also gives us an idea about the federal structure of India, so this is the second issue that came up. The question of Federalism arose in connection with the main topic of discussion, of the power of President to proclaim the failure of Constitutional Machinery, under Art.356. In this connection Justice Sawant and Kuldip Singh observed that federalism was an essential feature of our Constitution and were a part of basic structure. Justice Jeevan Reddy observed that, the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis--vis the States does not mean that they are mere appendages of the Centre. With the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More appropriately, the court should not adopt an approach or interpretation, which

has the effect of or tends to have the effect of whittling down the power reserved to the State. Thus federalism in India is not a matter of administrative convenience, but one of principle. After the issue of secularism and federalism in the context of this case we move on to the next crucial issue which belongs to the:Dissolution of the Legislative Assembly- Article 174(1) (b) confers powers on the Governor to dissolve the legislative assembly of the State before the expiration of the term of five years. In normal circumstances, the Assembly is not dissolved till the expiry of the term and so long the Ministry is enjoying support in the House. When the ministry has lost the majority support and no alternative to stable the ministry is possible, he may exercise his discretion and dissolve the Legislative Assembly. In this case the Supreme Court has held that the Assembly should not be dissolved until the proclamation made under Article 356 of the Constitution by the President, has been approved by both the Houses of Parliament. Therefore dissolution by the President after the issuance of the proclamation would be as good as dissolution of the Assembly by the Governor whose powers are taken over. Another issue which can be looked upon is the Non-Justiciability of the Cabinet advice - It mainly relates to the scope and ambit of Article 74(2) of the Constitution, which bars the Court from embarking upon an inquiry as to whether any advice was tendered by the Council of Ministers to the President. The Supreme Court clarified the implications of Article 74(2) and held that no Court is concerned with what advice was tendered by the Minister to the President. The court is only concerned with the validity of the order and not with what happened in the inner council of the President and the Ministers. An order cannot be challenged on the ground that it is not in accordance with the advice tendered by the Minister or that it is based on no advice. If the president acts without the advice of the Ministers, it may be a case of impeachment, but according to the Court it is the act of the President. Article 74(2) protects and preserves the secrecy of the deliberation between the President and his Council of Ministers. Its scope is limited. This Article cannot override the basic provisions of the Constitution relating to Judicial Review. It does not mean that the government will not justify the Act of the President taken in exercise of his functions. When an Act or Order of the President is questioned in a Court, it is for the Council of Ministers to justify the same by disclosing the materials which formed the basis of the Act.

Through this content of Article 74(2) implications, we came to the point of Judicial Review: Judicial review came with the question of politics and relating to this Justice Ahmadi held that the opinion formed by the President on the basis of Governors report reflects his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing political decisions. Therefore by the very nature of things governing decisions under Article 356, they are not justificable. Justice Ramaswamy held that, the satisfaction required under Article 356 is a political one and is not judicially manageable as long as the decision does not suffer from malafide irrationality, it cannot be challenged merely on the grounds that material was inadequate or insufficient. Justice Jeevan Reddy expressed the same opinion and held that judicial review is not concerned with the merits of the decisions but the manner in which it is taken. However he also concurred with Justice Sawants conclusion who held that the Proclamation issued under Article 356 is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether it was relevant or whether it suffered from malafides, but also held that sufficiency of the material cannot be questioned. It is the only the legitimacy of the inference drawn from such material, which is open to judicial review. One of the most important issue of this case without which the case is incomplete is the Scope and Ambit of Article 356. Presidents rule is invoked under Article 365, only on the occasion in, a situation resulting from instability of the state government, or in a situation resulting from the law and order problems, or frequent defections and change of loyalties by the legislators, or on the ground of corruption, mal administration, misuse of power for partisan ends. An unusual instance of the invocation of Article 356 and the imposition of Presidents rule in the States took place in 1977 after the lifting of the Emergency of 1975 as the general elections for Lok Sabha were held in 1977. The Supreme Court of India has lain down a number of guidelines which reflects the majority view. Those are: Article 356 confers extra ordinary power on the President. This power should be exercised sparingly and with great circumspection. The court referred to the observations made by Dr. B.R. Ambedkar on Article 356.He hoped that the emergency provisions would be invoked in rarest of rare cases. The court also endorsed the recommendations of the Sarkaria Commission in regard

to the use of Article 356. The Commission recommended that before invoking Article 356(1) a warning in specific terms should be given to the State. All alternatives should be exhausted to contain the situation and all attempts to resolve the crisis of the State level should be made. Though Article 356 does not expressly speak of the dissolution of the Legislative Assembly of the State, however, such power is implicit in sub-clause (a) of Article 356(1). Since Article 174(2) (b) empowers the Governor to dissolve the Legislative Assembly and the President under Article 356(1) (a) assumes to himself the powers and functions of both of the Government and the Governor. He can dissolve the Legislative Assembly as part of the proclamation issued under Article 356(1) or by a subsequent order. The court relating to the power to dissolve the Legislative Assembly, said that Clause (3) of Article 356 requires the Proclamation to be laid before both Houses of Parliament. The President has the power to suspend the Legislative Assembly under Article 356 (1) (c) before the approval of the Proclamation by the Parliament. The High Court or Supreme Court shall have the jurisdiction to entertain a writ petition questioning the Proclamation if it is satisfied that the writ petition raises arguable question with respect to the validity of the Proclamation. If the situation demands, the court may also stay the dissolution of the Legislative Assembly. Clause (3) of Article 356 is conceived as a control on the power of the President and also a safeguard against abuse. Thus if the two Houses of Parliament do not approve the issuance of Proclamation, both the State Government and the State Assembly can be revived. If the proclamation issued is held invalid by the Court, then, notwithstanding the fact that it is approved by the both House of Parliament, it will be open to the Court to restore the status quoi ante to the issuance of Proclamation and hence to restore the Legislative Assembly and the Ministry. In all cases where the Ministry loses majority support, it was held that the proper course for testing the strength of the Ministry was holding the Test on the floor of the House, except in case where the holding of the floor test was considered not possible.

It was held that Article 74(2) did not bar the Court from calling upon the Union Council of Ministers to disclose the material upon which the President had formed the requisite satisfaction. It was held that the power of the President under Article 365 of the Constitution is a constitutional power and not an absolute power. Conclusion: The case of S.R.Bommai is a vast case consisting of more than 200 pages of decision given by the Supreme Court of India. It is an important development in the Constitutional Law of India. As a part of comprehension I have tried to trace out some of the main issues of the case and how are they implied. I have dealt with the issue of secularism and federalism, and have mentioned the view of almost all the judges, who has given the opinion that a federal and secular structure is an essential feature of the Constitution of India and State governments, and comprises of the basic structure. The issue of dissolution of Legislative Assembly which deals with Article 174(1)(b) is given in the context of the dissolution of the State Assembly by the President under Article 356 of the Constitution which cannot be done until the proclamation is verified by both the Houses of Partliament.It is held by the court relating to the non-justiciability of the cabinet advice that no court is concerned with the advice tendered by the Ministers to the President as it is only concerned with the validity of the order and is protected by Article 74(2) of the Constitution. Article 356 has been summed up in this case and has given extraordinary powers to the president which must be used sparingly during the situation of protection of a democratic form of Government and to prevent paralysis of the political process. The majority view in this case is the test laid down in the Barium Chemicals Ltd. and the decisions for adjudging the validity of administrative action, which cannot be for testing the satisfaction of the President under Article 356. The dissenting by Sawant and Kuldip Singh JJ. held that the parameters of judicial review developed in the field of administrative law are not antithetical in the field of constitutional law and they equally apply to the domain covered by Constitutional Law.