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I. INTRODUCTION:
One of the chief- characteristics of the Indian Constitution is the way in
which the normal federal Constitution can be adapted to emergency situation.
It is the merit of the Constitution that it visualizes the circumstances when
the strict application of the federal principles might destroy the basic
assumption on which our Constitution is built.
The President cannot, however, assume to himself, any of the powers vested
in High Court or suspend the operation of any provisions of the Constitution
relating to the High Court.
When the Proclamation of Emergency is made under Art. 356 (1), the powers
of the State Legislature are to be exercised by Parliament. Parliament can
confer on the President the power to make laws for the States. Parliament
may also authorize the President to delegate such powers to any other
authority as specified by him. [Art.357 (1) (a)]. If the Lok Sabha is not in
session the President may authorize expenditure from the Consolidated Fund
of State, pending sanction of such expenditure by Parliament.
The Proclamation issued under Art. 356 (1) may be revoked of varied by the
President by a subsequent Proclamation.
It is to be noted that the word “satisfaction” in Art. 356 (1) does not mean the
personal satisfaction of the Governor but it is the satisfaction of the Cabinet.
The satisfaction of the President can, however, be challenged on two grounds
that (1) it has been exercised mala fide (2) based on wholly extraneous and
irrelevant grounds, because in that case it would be no satisfaction of the
President.1 In S.R. Bommai v. Union of India2 the Karnataka High Court has
held that the proclamation issued under Art. 356 is not wholly outside the
part of judicial scrutiny and the Court can examine whether the reasons
disclosed for issuing proclamation have rational nexus with the satisfaction
reached under Article 356.
It is to be noted that under Article 356 the President acts on a report of the
Governor or otherwise. This means that the President can act even without
the Governor’s report. This is justified in view of obligation of the Centre
imposed by Art.355 to ensure that the Government of the State is carried on
in accordance with the provisions of the Constitution. In view of it the
Centre’s ultimate responsibility to protect the constitutional machinery of the
States, the framers thought it proper not to restrict and confine the action of
the Centre merely on the Governor’s report. The Governor might not
sometimes make a report. The President can, therefore, act even without the
Governor’s report, if he is satisfied that such events occurred in a State,
which involve the special responsibility placed upon the Centre to maintain
the State under the Constitution.
A proclamation issued under Art. 356 shall be laid before each House of
Parliament and shall remain in operation for ‘two months’ unless before the
expiry of that period it has been approved by both Houses of Parliament.
[Clause (3) of Art.356]. Any such Proclamation may vet evoked or varied by
a subsequent Proclamation. If any such Proclamation is issued at the time
when Lok Sabha is dissolved or the dissolution takes place during the period
of two and the Proclamation is passed by the Rajya Sabha but not passed by
the Lok Sabha, the Proclamation shall cease to operate at the expiry of 30
days from the date on which the new Lok Sabha meets after the
reconstruction unless before the expiry of 30 days it has been also passed by
the Lok Sabha. If the Proclamation is approved by the Parliament it will
1
State of Rajasthan v. Union of India, AIR 1977 SC 1361.
2
AIR 1990 Kant 5.
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The 48th Amendment, 1984- Amended Cl. (5) Art. 356, and
inserted a new proviso in Cl. (5) namely, “provided that in the case of the
Proclamation issued under cl. (1) on the 6th day of October, 1983 with respect
to the State of Punjab, the reference in this clause to “any period beyond the
expiration of one year” shall be construed as reference to “any period beyond
the expiration of two years”. Under the existing clause (5) the Presidential
Proclamation of Oct. 6, 1983, with respect to Punjab could not continue in
force for more than one year unless the “special circumstances” mentioned
therein were satisfied. This was enacted to meet out the special
circumstances prevailing in the State of Punjab due to the Akali agitation.
Although the Legislative Assembly was kept in suspended animation and a
popular Government could be installed, but having regard to the prevailing
situation in the State the continuance of the Proclamation beyond Oct. 6,
1987, was necessary. The amendment makes the conditions in the existing
Art. 356 (5) inapplicable in case of the State of Punjab.
The (Constitution 64th Amendment) Act, 1990. Art. 356 were again amended
by the Constitution 64th Amendment Act. 1990 in order to provide for
extension of the President Rule in the State of Punjab for another 6 months as
the situation there was not favorable for holding Assembly elections. The
amendment added a new proviso after clause (4) in Art. 356 which
substituted the words “three years and six months” for the words “three
years” and also provided that the conditions laid down in Cl. (5) shall not
apply to the Proclamation issued under cl. (1) on 11th May, 1987 with respect
to the State of Punjab. The Constitution (67th Amendment) Act, 1990,
extended the period of President Rule in the State of Punjab for a further
period of 6 months. Accordingly, it has substituted the words “four years” for
the words “three years & six months” in Cl. (4) of Art.356 of the
Constitution.
Since the commencement of the Constitution the President Rule has been
imposed under Art.356 on more than hundred occasions. In most of the
cases, it has been imposed in the circumstances in which a stable ministry
could not be formed.
3
TABLE
PRESIDENT’S RULE IN STATES & UNION TERRITORIES
9-2-1974 18-6-1975
12-3-1976 24-12-1976
17-2-1980 7-6-1980
19-9-19964 23-10-1996
6. Haryana 3 21-11-1967 21-5-1968
30-4-1977 21-6-1977
6-4-1991 23-6-1991
7. Himachal Pradesh 2 30-4-1977 22-6-1977
15-12-19925 3-12-1993
8. Jammu & Kashmir 2 7-9-1989 6-11-1986
19-7-1990 9-10-1996
9. Karnataka 4 27-3-1971 20-3-1972
31-12-1977 27-2-1978
21-4-1989 20-11-1989
10-10-1990 17-10-1990
10. Kerala 9 23-3-1956 1-11-1956
1-11-1956 5-4-1957
31-7-1959 22-2-1960
10-9-1964 24-3-1965
24-3-1965 6-3-1967
4-8-1970 3-10-1970
5-12-1979 25-1-1980
21-10-1981 28-12-1981
17-3-1982 24-5-1982
11. Madhya Pradesh 3 30-4-1977 23-6-1977
17-2-1980 9-6-1980
15-12-19925 7-12-1993
12. Maharashtra 1 17-2-1980 9-6-1980
13. Manipur 7 21-11972 20-3-1972
28-3-1973 4-3-1974
16-5-1977 29-6-1977
14-11-1979 13-1-1980
28-2-1981 19-6-1981
7-1-1992 8-4-1992
1-1-1994 13-12-1994
14. Mizoram 1 7-9-1988 4-1-1989
15. Nagaland 3 22-3-1975 25-11-1977
7-8-1988 25-1-1989
4
Writ petition challenging the Proclamation is pending before the Gujarat High Court.
5
Writ Petition challenging Proclamation brought before the Supreme Court has been dismissed and
the validity of these Proclamation have been upheld by a 9-Judge Bench [Bommai v. Union of India,
A. 1994 S.C. 1918 (Para. 91(x),366)].
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2-4-1992 22-2-1993
16. Orissa 6 25-2-1961 23-6-1961
11-1-1971 3-4-1971
3-3-1973 6-3-1974
16-12-1976 29-12-1976
30-4-1977 6-6-1977
17-2-1980 9-6-1980
17. Patiala & East 1 4-3-1953 7-3-1954
Punjab States
Union(PEPSU)
18. Punjab 8 20-6-1951 17-4-1952
5-7-1966 1-11-1966
23-8-1968 17-2-1969
15-6-1971 17-3-1972
30-4-1977 20-6-1977
17-2-1980 7-6-1980
6-10-1983 29-9-1985
11-5-1987 25-21992
19. Rajasthan 4 13-3-1967 26-4-1967
30-4-1977 22-6-1977
17-2-1980 6-6-1980
15-12-19925 4-12-1993
20. Sikkim 2 18-8-1979 17-10-1979
25-5-1984 8-3-1985
21. Tamil Nadu 4 31-1-1976 30-6-1977
17-2-1980 9-6-1980
30-1-1988 27-1-1989
30-1-1991 24-6-1992
22. Tripura 3 21-1- 1972 20-3-1972
5-11-1977 4-1-1978
12-3-19936 9-4-1993
23. Uttar Pradesh 9 25-2-1968 26-2-1969
1-10-1970 18-10-1970
3-13-6-1975 8-11-1973
30-11-1975 21-1-1976
30-4-1977 23-6-1977
17-2-1980 9-6-1980
6-12-19927 4-12-1993
6
As a stop-gap arrangement to enable a fresh election of the State Assembly, which had not taken
place before the expiry of its term.
7
On ground of failure of B.J.P Government to prevent demolition of the disputed Babri Masjid
structure.
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18-10-19958 7-10-1996
18-10-19969 21-3-1997
24. West Bengal 4 20-2-1968 25-2-1969
29-6-1971 2-4-1971
19-3-1970 20-3-1972
30-4-1977 21-6-1977
25. Arunachal Pradesh 1 3-11-1979 18-1-1980
26. Goa 3 3-12-1966 5-4-1967
28-4-1979 16-1-1980
14-12-1990 25-1-1991
27. Meghalaya 1 10-10-1991 5-2-1992
28. Mizoram 2 11-5-1977 2-6-1978
11-11-1978 8-5-1979
29. Pondicherry 6 18-9-1968 17-3-1969
3-1-1974 6-3-1974
28-3-1974 2-7-1977
12-11-1978 16-1-1980
24-6-1983 16-3-1985
12-1-1991 4-7-1991
8
On the B.S.P. Government of Mayavati losing majority on the withdrawal of the support of the
B.J.P.
9
On the failure of any party to be able to form a government. A writ petition challenging the
Proclamation was allowed by the Allahabad High Court. An appeal is pending in the Supreme Court
(January 1997).
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the electorate”. It was contended that since their party was virtually rejected
in the present Lok Sabha elections a series doubt had been cast on their
enjoying the people’s confidence. When a Legislature no longer reflects the
wishes of the electorate he said, it should obtain a fresh mandate.
In State of Rajasthan v. Union of India,10 the States filed suits challenging the
validity of the directives issued by the Home Minister to the Chief Ministers
to dissolve their assemblies and seek a fresh mandate. The latter disclosed the
soul ground for the Proclamation under Art. 356 and that such a
Proclamation and the dissolution of their Legislative Assemblies upon the
grounds given in the letter were outside the scope of Art.356 of the
Constitution. It was also contended that the condition precedent to the
dissolution of the Assemblies is ratification by both the Houses of Parliament
and so that no dissolution can take place without ascertaining the wishes of
both the House of Parliament. The petitioners prayed for a permanent
injection restraining the Union of India from giving effect to the Home
Minister’s directive. On behalf of the Union of India, it was contended that
the suit under Art. 131 was not maintainable because the dispute of a
political character regarding the continuance of a Council of Ministers. It was
argued that the questions which arose gauging the existence of a “situation”
calling for action under Art.356 were non- justifiable. Mere intimation of
some facts did not justify prohibition to act in future on other facts. It could
not be predicted now what other facts may arise in future.
However, the court did not give a blank cheque to the Government to
dissolve Assemblies. The Court observe that if the satisfaction is mala fide
or is based on wholly extraneous and irrelevant grounds the court would
10
AIR 1977 SC 1361.
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On the basis of the facts given above, it may be submitted that the Janata
Government’s case for dissolution of nine Assemblies in 1977 stood on more
solid basis constitutionally (rejection of 42nd Amendment Act) and also
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The Union Government did not pay heed to the report of the Sarkaria
Commission in exercising its emergency power under Art.356. The
commission has pointed out that Art.356 can be used only in the event of
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In a historic judgment the Madhya Pradesh High Court by 2:1 majority held
that the Presidential order imposing President’s Rule in the State was invalid
and unconstitutional as being beyond the scope of Art.356 of the
Constitution. The Court said that in their report recommending the dismissal
of the Patwa Ministry and dissolution of the Assembly, the Governor failed
to substantiate how the constitutional machinery had broken down. There
was no evidence of the State Government having defied central directives.
Mere worsening the law and order situation in a state due to sudden break of
violence did not call for extreme step, of imposition of President Rule. The
Governor’s report to the Centre had not provided any other material to justify
the case for a constitutional breakdown in a State. The Court said that Central
intervention in a situation of deteriorating law & other could be justified
through the deployment of Army in the affected areas. But impositions of
President’s Rule straight way in these circumstances were beyond the scope
of Art.356. Apart from stating that the law and order situation was worsening
in Bhopal and some other towns in the state as a result to Ayodhya incidents.
The Governor’s report to the Centre had not provided any other material to
justify the case for a constitutional breakdown in the state. As regards the
contention that after it had been ratified by the Parliament, the Court cannot
sit in judgment on Presidential Proclamation; the Court said that the
Proclamation had been invalid for a period of 2 months before Parliament
gave its approval. The ‘invalid’ Proclamation had thus already in force
without Parliamentary approval. The Parliamentary order, the Court held,
Parliament did not sit in judgment over satisfaction of the President reached
on the advice of the Union Cabinet for imposing President’s Rule for 2
months, prior to the issue coming up before Parliament.
But the Court held that the imposition of President’s Rule in Nagaland in
1988, Karnataka in 1989 & Meghalaya in 1991 was unconstitutional and,
therefore, liable to be struck down. In these states, however, no action could
be taken as elections had subsequently taken place and new Government had
been installed and it was not possible to revive old State Assemblies. The
Judges unanimously held the President’s power under Art.356 to dismiss a
State Government and imposition of President’s Rule is subject to judicial
review. If the dismissal is found to be illegal then the court can revive the
dissolved State Assembly.
The Court held that no State Assembly can be dissolved simultaneously with
the imposition of President’s Rule. Dissolution of an Assembly can be done
only after Parliament had ratified the Presidential Proclamation. The Court
also ruled that the President can only dissolve the State Assembly after the
Proclamation has been approved by both Houses of Parliament and not
before. Until such approval is given, the President can only suspend the
Legislative Assembly.
The Court agreed with the seven judges Bench decision in the Rajasthan v.
Union of India that the Court could undertake judicial review of Presidential
Proclamation if allegations of mala fide exercise of power were made in the
petition. The majority held that “simply because a political party had
overwhelming majority at the Centre, it could not advise the President under
Art.356 to dissolve the Assemblies of opposition ruled states.”
11
(1994) 3 SCC 1.
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Regarding Art.74 (2) of the Constitution which bars an enquiry into the
question whether any or what advice was given by the Council of Ministers
to the President, the majority held that “it does not” bar the Court to call
upon the Union Government to disclose to the Court the material upon which
the President had formed the requisite satisfaction. The material on the basis
of which advice was tendered does not form part of the advice.
In this regard the Court has laid down the following guidelines:
1) Presidential Proclamation dissolving a State Legislative Assembly is
subject to judicial review.
2) If a State Government works against secularism, President’s Rule can be
imposed.
3) No wholesale dismissal of opposition ruled states Governments when a
new political party assumes power at the Centre.
4) If President’s Rule is imposed only on Political considerations the Court
can even restore the Assembly.
5) Imposition of President’s Rule and dissolution of State Assembly cannot
be done together.
6) State Assembly can be dissolved only after Parliament approves Central
Rule.
7) The Supreme Court or a High Court can compel the Union Government to
disclose material on whose basis President’s Rule is imposed on a State.
8) The power of the President under Art.356 is a constitutional power; it is
not an absolute power. The existence of material is a pre-condition to
form the satisfaction to impose the President’s Rule.
The majority judgment of the Court will act as a check on motivated and
arbitrary dismissal of State Governments by the Centre in future, as had
happened in a no. of cases in the past. The ruling of the Court that it will
examine the circumstances in which dismissal is made and if found to be
issued on mala fide grounds the Court can struck it down and revive the
Assembly and the Government will compel the political party in power at the
Centre to think twice before imposing the President’s Rule in a State. The
Court observed that Art.356 which Dr. Ambedkar had hoped would be a “dead
letter” of the Constitution had turned out to be a “dead letter” for a no. of State
Governments and Legislative Assemblies. The commencement of the
Constitution, the Court noted that the President Rule had been imposed on
more than hundred occasions.
While the majority judgment is laudable and will be able to put a bar on future
dismissal of a State Governments by the Centre on political considerations, it
would be pertinent to make a few comments on the decision of Court. First, the
Court took long time to deliver its verdict and allowed at least in cases of
Nagaland, Karnataka and Meghalaya illegality to be perpetuated and
ultimately deprived the citizens of those States to be governed by their chosen
representatives. Secondly, the test of “secularism” for dismissal of a State
Government is vague and untenable. The concept of secularism has been
misunderstood and interpreted only regard to Hindu fundamentalism. Does it
not apply to the Muslim terrorist who had instigated large scale of violence
causing break down of law and order in a state (Bombay & Kashmir or Kerala
where Muslim league is a constituent of ruling party) thereby, threatening the
ideal of secularism, thirdly, if secularism is a basic feature of the Constitution
then castles society is also a basic feature of the Constitution. In spite of the
Supreme Court judgment, several states are instigating caste frenzy (U.P &
BIHAR) threatening the unity and integrity of the nation. Should these
Governments be not dismissed?
The Indian Supreme Court failed to muster enough courage to hear the appeal
in time and giving its opinion. Instead, it allowed the illegality to be
perpetuated by postponing the date of hearing the appeal after 4 months. In the
mean time elections to these assemblies had been completed and new
Governments had been installed. The only consolation is that there will be a
check on such arbitrary dismissal in future.
12
The Hindustan Times, May 27,1993
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Mr. Pal filed a special leave Petition in the Supreme Court against the
judgment of the High court. The Supreme Court declined of the Allahabad
High court and ordered a new procedure of composite trail of strength for
virtually direct election of Singh or pal as the Chief Minister. In the
composite trail of strength, Mr. Kalyan Singh emerges victorious defeating
Mr. Pal by 225 to 196 votes in the Assembly.
Thus the decision of the High court and later its approval by the apex court
saved the democracy. The Government had thrown all democratic norms in
the dust-bin and floated the advice given by the President who had asked him
not to act in haste without giving Mr. Kalyan Singh a chance to prove its
majority on the floor of the House. This decision of the Supreme Court
would prevent the abuse of ar. 356 by power hungry politicians.
Regarding the claim of the petitioner for the revival of dissolved Assembly
the Court held that the in view of the election process was set in motion and
was at an advanced stage, in the larger interest, it would not be proper to
order revival of State Assembly. The Court avoided any confrontation
between the Legislature and the Judiciary by not ordering the revival of the
assembly. Secondly, the Court rightly left the matter to be decided by the
electorate which was the ultimate source of power. Had the Court revived the
13
(2006) 2 SSC 1.
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Assembly there would have been a serious controversy between the Judiciary
and the Legislature.
It is submitted, that the Court rightly decided in favor of the election process
to be completed believing in the judgment of the people which ultimately
rose to the occasion and gave a clear verdict. In view of the stringing remarks
by the Court on the role of the Governor, it is desirable that political parties
should re-think to implement Sarkaria Commission report which had
suggested that the Centre should recommend “persons who have not taken
too great a part in politics, generally and particularly in the recent past for
Governorship.” Also, the Court’s judgment holds a lesson for the President
who has to apply his mind before giving consent to the Cabinet’s
recommendations.
III. CONCLUSION:
State emergency is declared on failure of constitutional machinery in a state.
Nearly every state in India has been under a state of emergency at some point
of time or the other. The state of emergency is commonly known as
'President's Rule'.
If the President is satisfied, on the basis of the report of the Governor of the
concerned state or from other sources that the governance in a state cannot be
carried out according to the provisions in the Constitution, he can declare
emergency in the state. Such an emergency must be approved by the
Parliament within a period of two months.
It is imposed for six months and can last for a maximum period of three years
with repeated parliamentary approval every six months. If the emergency has
to be extended for more than three years, it can be done by a constitutional
amendment, as has happened in Punjab and Jammu and Kashmir.
During such an emergency, the President can take over the entire work of the
executive, and the Governor administers the state in the name of the
President. The Legislative Assembly can be dissolved or may remain in
suspended animation. The Parliament makes laws on the 66 subjects of the
state list. All money bills have to be referred to the Parliament for approval.
In this situation ministers of state legislature are not allowed to perform
action in state.14
THANKS
14
www.wikipidia.com. Article: STATE OF EMERGENCY IN INDIA.
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