siddhanth assignment consti

8/6/2019 Siddhanth Assignment Consti..

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CONSTITUTIONAL LAW TERM ASSIGNMENT:

Failure of Constitutional Machineryin State (Art. 356):

Submitted By: Submitted To:

Siddhanth Pandey Mrs. Kanchan Samtani

(09BAL035)


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INTRODUCTION

A notable feature of the Indian Constitution is the way in which the normal peace-time

federalism can be adapted to an emergency situation. The framers of the Constitution felt that, in

an emergency, the Centre should have overriding powers to control and direct all aspects of

administration and legislation throughout the country.

The Constitution envisages three types of emergencies :

(i) Emergency arising from a threat to the security of India.(ii) Breakdown of Constitutional machinery in a State(iii) Financial emergency

Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the

Constitution and adversely affects the rights of the people. Such a proclamation should,

therefore, be issued only in exceptional circumstances and not merely to keep an unpopular

government in office as happened in June 1975 when an emergency was declared on the ground

of internal disturbance without there being adequate justification for the same.

As a consequence thereof, the emergency provisions (especially Arts. 352 and 356) have been

extensively amended by the Constitution (44th

amendment) Act, with a view to introduce a

number of safeguards against abuse of power by the executive in the name of emergency.


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came into power at the Centre, the Congress Party was almost wiped out in North Indian States.On this excuse, Desai Government at the Centre dismissed nine State governments where

Congress was still in power. This action of Morarji Desais

Effects of Imposition of Presidents Rulein a State:

The declaration of emergency due to the breakdown of Constitutional machinery in a State hasthe following effects:

(i) 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.

(ii) 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.

(iii) The President can make any other incidental or consequential provision necessary to giveeffect to the object of proclamation.

The 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 imposedpurely 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 formgovernments in states have 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 inthe Constitution to restrict the misuse of this Article.

The Supreme Court held in the Bommaicase that the Assemblymay not bedissolved tillthe Proclamation is approvedby the Parliament. On a few occasions such as when Gujral

Government recommended use of Article 356 in Uttar Pradesh, the President returned therecommendation for reconsideration. The Union Government took the hint and dropped the

proposal.


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Consequences of Invoking Art. 356:

Article 356(1) has been invoked a number of times since the advent of the Constitution. This has

happened roughly on an average once every six months or nearly as many as 115 times during

1950-2007. It happens whenever the Center takes over a State Government. Hitherto, the center

has acted only when the Governor has reported the failure of the constitutional machinery in the

State and in no case has the Center acted otherwise. The Governor makes his report to the

President in his discretion and e is under no constitution obligation to act in this matter on the

advice of the Council of Ministers.

The proclamation issued by the President under Art. 356(1) is placed before Parliament. If it is

expected to remain in force only for two months, then no further action is necessary. But if it is proposed to keep it in force for a longer period, it is to be ratified by both Houses when a

discussion is held on the circumstances leading to the issue of proclamation and on the

advisability or otherwise of the Central intervention.

Under Art. 356(1) (a), the President can assume to himself the powers of the Governor. One of

the Governors powers is to dissolve the Legislative Assembly. Consequently, when the

President issues a proclamation and assumes the Governor Powers, the power to dissolve the

Assembly and hold fresh election is automatically transferred to the President. Therefore, the

Presidential proclamation may dissolve the State Legislature and arrangements of holding fresh

elections are set afoot. In effect, the Governor acts on the advice of the Union Ministry. TheGovernor becomes responsible to the Central Government which is responsible to the

Parliament. The Council of Ministers in the State does not remain in the office. It usually resigns

suo moto in anticipation of the Centers action. If it does not do so, it can be dismissed from the

office.

In the meantime, Parliament becomes entitled to exercise the authority and the powers of the

State Legislature whether it is suspended or dissolved. Parliament being a busy body finds it

extremely burdensome to itself exercise the legislative power for the concerned state, and pass

all the legislative measures needed for the State concerned. Necessary time would not be

available to Parliament for the purpose and measures of all- India importance would be held up.


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When Art. 356 Invoked?

The sweep of the phrase, the government of the state cannot be carried on in accordance with

the provisions of this Constitution in Art. 356(1) has indefinite connotations. Failure of the

constitutional machinery in a state may arise because of various factors; these factors are diverse

and imponderable. Nevertheless, some situations of the breakdown of the constitutional

machinery may be as follows:

1. No party in the Assembly has a majority in the State legislative assembly to beable to form the government.

2. The government in office loses its majority due to defections and no alternativegovernment can be formed.

3. A government may have majority support in the House, but it may function in amanner subversive of the Constitution. As for example, it may promote

fissiparous tendencies in the state.

4. The State government does not comply with the direction issued by the CentralGovernment under various Constitutional provisions.

5. Security of the State may be threatened by a wide spread breakdown of law andorder in the State.

6. It may be debatable whether Art. 356 (1) can be invoked when there are seriousallegations of corruption against the Chief Minister and the Ministers in a State.

Art.356 has been invoked in the State of Uttar Pradesh because it didnt appear to be feasible to

form a stable Government. In the general election held for the State legislature, the public gave afragmented verdict with no party having a majority in the House; and no party wanted to support

any other party to form the Government. The leader of the Samajwadi party staked his claim as a

single largest party to form the government. He claimed that he would prove his majority on the

floor of the House. Implicit in the statement was the fact that being in power, it would be easier

for him to engineer defections from the other parties. The Governor was not satisfied with his

claim. On the recommendation of the State Governor, the Central Government imposes the

Presidents rule in the State on March.9 2002. This is an instance of Presidents rule being

invoked in a State because it was not possible to form a viable Government in the State due to

politically fragmented Legislature.


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Comparative-Analysis

Emergency powers of the President of the United States of America

The Constitution in a democracy can be considered a written manifestation of the will of thegeneral public; and hence the Constitution should be considered superior to any of the three

organs of Government. Therefore, it cannot be assumed that any power that has not beenexpressly granted by the Constitution is implied. Article 1 8 of the US Constitution gives

Congress the power to make rules and regulations to deal with and provide for emergencies.

These powers, it would seem, are for Congress to grant, and are not vested directly in thePresident. So we can say that only Congress has such powers, which have been assigned to it by

the Constitution. But instead Presidents (ChiefExecutives) have assumed that these emergency powers are an executive privilege. For example, during the Civil War, President Lincoln

suspended habeas corpus and curtailed other individual freedoms such as free speech and private property. When Congress intervened and his actions were questioned, he responded: 'It is

believed that nothing has been done beyond the constitutional competency of Congress. It wasChief Justice Taney who pointed out that '[the] president is commander in chief, but the two-year

limit on military appropriations ensures that the House can disband the army if, in theirjudgment, the president used, or designed to use it for improper purposes.

According to the Constitution, during national emergencies only the 'habeas corpus clause' can

be suspended by Congress and the President.

Justice Jackson, concurring in the judgment in the 1952 SteelSeizure case, outlined a practical

test for the constitutionality of executive action:

1. When the President acts pursuant to an express or implied authorization of Congress,his authority is at its maximum, for it includes all that he possesses in his own right plus

all that Congress can delegate. In these circumstances, and in these only, may he be said(for what it may be worth) to personify the federal sovereignty. If his act is held

unconstitutional under these circumstances, it usually means that the Federal Governmentas an undivided whole lacks power. A seizure executed by the President pursuant to an

Act of Congress would be supported by the strongest of presumptions and the widestlatitude of judicial interpretation, and the burden of persuasion would rest heavily upon

any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of

authority, he can only rely upon his own independent powers, but there is a zone oftwilight in which he and Congress may have concurrent authority, or in which itsdistribution is uncertain. Therefore, congressional inertia, indifference or quiescence may

sometimes, at least, as a practical matter, enable, if not invite, measures on independentpresidential responsibility. In this area, any actual test of power is likely to depend on the


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imperatives of events and contemporary imponderables rather than on abstract theories oflaw.

3. When the President takes measures incompatible with the expressed or implied will of

Congress, his power is at its lowest ebb, for then he can rely only upon his ownconstitutional powers minus any constitutional powers of Congress over the matter.Courts can sustain exclusive presidential control in such a case only by disabling the

Congress from acting upon the subject. Presidential claim to a power at once soconclusive and preclusive must be scrutinized with caution, for what is at stake is the

equilibrium established by our constitutional system.

This gives rise to the aspect of questionability of executive exercise of powers. The power ofjudicial review was established by the Supreme Court as early as 1803 in the matter ofMarbury

v. Madison. In this case, a suit was brought against the then Secretary of State, James Madison,in the form of a petition for a writ of mandamus. This judicial remedy in the original jurisdiction

was available to the Supreme Court under the Judiciary Act of 1789. In denying the writ, ChiefJustice Marshall ruled that the original jurisdiction of the Supreme Court was established by the

Constitution and could not be enlarged or reduced by any means other than constitutionalamendment, and therefore he held that the Judiciary Act of 1789 was unconstitutional.

Thus it can be seen that the judiciary does have the right to question executive authority withrespect to national emergencies and, furthermore, that any dispute arising thereof is considered to

be 'judicially reviewable.' Though the situations of emergency envisaged in the American contextdiffer from those in the Indian context, there is definitely a commonality as to the magnitude of

events qualifying as an emergency. In 1934, a Supreme Court ruling defined an emergency as'urgency and relative infrequency of occurrence as well as equivalence to a public calamity

resulting from fire, flood, or like disaster not reasonably subject to anticipation. This rulingconcurs with the rare invocation of emergency rule in India according to the Indian Constitution.

It was the National Emergencies Act (50 U.S.C. 1601-1651) by which the President was asked to

'declare formally the existence of a national emergency and to specify what statutory authority,activated by the declaration, would be used, and provided Congress a means to countermand the

President's declaration and the activated authority being sought.

The aspects of an emergency condition as put forward by Edward Corwin reflect characteristicsstrikingly similar to Article 356 of the Indian Constitution. The first is the temporal character of

national emergency - sudden, unforeseen, and of unknown duration. This can be compared to

the Drafting Committee and Sarkaria Commission's envisaged 'rarest of rare circumstances'application of Article 356 in India. The extension of Article 356 in gradual time intervals concurswith the 'unknown duration' aspect of a national emergency in the United States.

The second aspect according to Corwin ispotential gravity - a dangerous and life-threateningsituation. This is in concurrence with the Sarkaria Commission Report's recommendations to

resort to Article 356 only if not doing so would lead to 'disastrous consequences.'


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The third aspect is perception - who discerns a phenomenon of emergency? Corwin'sconclusion is that the American Constitution is guiding but not conclusive; this is analogous to

the finding that the Indian Constitution, though it prescribes symptoms and criteria for qualifyingan emergency, leaves it primarily to the judgment of the Governor of the State, in the form of the

'Governor's Report,' and to presidential discretion, in the form of the well-known 'otherwise' term

in Article 356, to decide that a situation of emergency has arisen.

The fourth aspect of a national emergency according to Corwin is the element of response to a

sudden situation that cannot always be dealt with according to rule and that requiresimmediate action. This aspect is a combination of other aspects and adds a qualifier, viz. that

there is no existing active rule that can counter the situation. This aspect is personified in thevery first clause of Article 356: 'a situation has arisen in which the government of the State

cannot be carried on in accordance with the provisions of this Constitution.'

The striking difference between emergencies as envisaged in the American Constitution is thatthey pertain solely to national emergencies. Hence, even if the situation affects a part of the

country or a particular State, the scope of the stand-by powers of emergency of the President ofthe United States is national in character, whereas the scope of the powers under Article 356 of

the Indian Constitution is restricted to particular States. This has its advantages anddisadvantages. The advantage in the American instance is obvious; it gives the President wider

latitude in mobilizing the whole country to deal with an emergency situation in one part. Thedisadvantage is that national emergency powers curtail individual rights at a national level, even

if the emergency is regional in character. The recommendations of the Special Committee and aseries of congressional debates culminated in the 1976 enactment of the National Emergencies

Act, which rendered ineffective the four existing proclamations of emergency, requiring a newproclamation to activate standby extraordinary powers of the President.

The Act in essence returned all standby emergency powers to dormancy two years after theStatute's approval. It further provided a procedure for future declarations and their congressional

regulation. The checks and balances prescribed under the National Emergencies Act, are similarto the controlled method of escalation provided by the extensions of proclamations in graded

time intervals, required under Article 356 of the Indian Constitution.

In a legislative sense, the regulations of emergency powers of the Executive in the United Statesof America and in India are pretty similar, theoretically. Practically, it is a totally different story

altogether. Public opinion in the United States of America is active enough to act as a restraintagainst executive excesses, whereas public opinion in India is yet to become such a substantive

force. This is partially compensated by the vigilance of judicial activism.


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Thecurrent situation in India:

The present situation in India shows that the 'dead-letter' provision - as Dr. Ambedkar hoped itwould be - has become a frequently invoked, not-so-dead Article; it has been activated more than

a hundred times till today. The National Commission to Review the Working of the

Constitution (NCRWC), which was established on February 22, 2000, on the basis of a jointresolution of the Government of India, Ministry of Law, Justice and Company Affairs(Department of Legal Affairs), submitted its extensive report in March 2002. In its analysis, the

NCRWC stated that in at least twenty out of the more than one hundred instances, the invocationof Article 356 might be termed as a misuse. After the fall of the Mayawati Government in the

State of Uttar Pradesh, it might have been justifiable to impose President's Rule. But it was alsonecessary to hold fresh elections as soon as possible. The mala fides of the Union Executive in

preventing the assumption of office by an unfavorable political entity became clearly manifest inGovernors actions and the decision of the United Front Government at the Center, to re-impose

President's Rule in Uttar Pradesh. The worst damage may possibly have been done through theoffice of the Governor, because the Governor cannot be held responsible for his or her actions.

The Governor can be removed only by the President and that the President acts on the advice ofthe Council of Ministers; hence the Governor is in office pretty much at the pleasure of the

Union Executive. This may act as a bias whenever the Governor's duty requires him to go againstthe desires of the Union Executive. In its report, the NCRWC recommended that the President

should appoint or remove the Governor in consultation with the Chief Minister of the State. Thismay act as a restraint on the misuse of power by the Office of the Governor.

Another example of misuse of Article 356 was the imposition of President's Rule in the State of

Gujarat from September1996 to October 1996, following the incidents of violence indulged in bymembers of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the

Assembly cannot be treated as an instance of failure of the constitutional machinery; it would

otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation ofArticle 356. The correct procedure to be followed in such a situation is to pass suitable

legislation for disqualifying the guilty legislators.


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But the Court held that the imposition of Presidents Rule in Nagaland in 1998, Karnataka in

1989 and Meghalaya in 1991 was unconstitutional and, therefore, liable to be struck down.


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Conclusion:

It is evident that there is a lack of effective safeguards against the abuse of Article 356 of theIndian Constitution. The safeguard of 'parliamentary approval' - outlined in Article 356(3) - of a

Proclamation under Article 356(1) could be biased because the Party that is in power at the

Center generally dominates Parliament by a majority vote. Furthermore, even a vote inParliament declaring a particular imposition (or failure to impose) of President's Rule to bewrongful cannot undo the damage already done.

However, the repeal of Article 356 is not advisable because the Indian polity is rife with crises

and there has to be some contingency against a constitutional deadlock in a State. The NCRWCalso advised against the repeal of Article 356, stating that this would create an imbalance in

Union-State relations in upholding constitutional governance throughout India and that in manymore instances than not the use of Article 356 was inevitable. Another option is to introduce

further checks on the exercise of power under Article 356, by amendment. Even this is notadvisable because it defeats the very purpose of the Article of dealing expeditiously with

emergencies of constitutional failure in a State.

Therefore, the most practical course left open may be to let history take its course. Eventually,the public opinion in India will awaken to the fact that Article 356 may veritably have become a

noose that is slowly tightening around the neck of democracy in India, suffocating the right ofthe people under the Constitution. In the meantime, to nurture budding public opinion we do

have a resource not to be underestimated, which is the power of judicial review of the SupremeCourt, which has on more than one occasion shown that it is a power to be reckoned with.

So we will have to suffice for now with occasional outcries against the Union Executiveunsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called Article

356.

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