Indian Constitutional Law

Such commissions are appointed to ensure that administration of the state is carried on in accordance to the provisions of the Constitution. However, the abuse of this power for political purposes cannot be ruled out. In his dissenting judgment in State of Karnataka v Union of India[i], the learned Judge held that such enquiry commission by the Union would impinge on the right of the state to function in its limited sphere allowed to it by the Constitution. Learned judge held that as there is no specific Article in the Constitution enabling the Union Government to cause an enquiry into Governmental function of the state, the power cannot be assumed by ordinary legislation, but resort must be had to a Constitutional Amendment.

The learned judge held that the word ‘enquiries’ in entry 45 of list III should not be given a wide meaning as conferring on the Union and the state governmental powers to enact a provision to embark on an enquiry as to the misuse of governmental powers by the other. ‘Government cannot be carried on in accordance with the provisions of the Constitution’ The expression is used in the same sense in Articles 355-356. It has a very wide scope. It means the failure of a state government to work according to the constitution, in circumstances which have no necessary connection with external aggression, internal disturbance or violence, though this maybe the cause of the failure in particular cases. In fact, Article 356 contemplates cases of constitutional breakdown due to causes other than external or internal aggression (in the form of an armed rebellion), for which provision has an earlier been made in Article 352, and the case of financial breakdown which is dealt in Article 360. Thus, the Constitution itself provides that a Proclamation under Article 356 can be issued on the mere ground that the state has failed to carry out any of the directions issued under any of the relevant provisions of the Constitution.[ii] When compared with cl.(1) of Article 352, it is evident that Article 356(1) does not speak of any emergency of any kind; in fact the word ‘emergency’ is not used anywhere in Article 356. It is a proclamation intended either to safeguard against the failure of the constitutional machinery in a state to repair the effects of breakdown. It may be either a preventive or a curative action. A court can however interfere with such an action by the President as has no connection with the breakdown of the constitutional machinery, e.g., if a suspension of a state government is ordered only because the Chief Minister belongs to a particular caste or creed. This would be an instance of ultra vires, that is the use of the power for a purpose other than that intended by the Article. Of course, while the marginal note to Article 356 uses the words ‘failure of constitutional machinery in states’, cl.(1) of the Article uses the words cannot be carried on in accordance with the provisions of the Constitution. The latter are indeed words of the widest import, and if applied literally, they might mean the failure of the state government to comply with each and every provision of the Constitution, and whatever maybe the extent or degree of such failure. Article 356 produces the chapter headings of Government of India Act, 1935. Machinery of Government does not ordinarily fail if this or that violation of the Constitution is violated, in the course of the states multifarious activities. The Directive Principles of State Policy which are “provisions of the Constitution” furnish a clearest instance of this. For example it would be absurd to suggest that if a state government did not carry out the Directive of State policy contained in Article 47 relating to the prohibition of intoxicating liquor that it can be said that there was a failure of constitutional machinery in the state.

The state has merely exercised its legislative power in permitting the use of intoxicating liquor under liquor licensing laws and the state must bonafide come to the conclusion that the introduction of prohibition might be attended with greater evils which are undoubtedly produced by the consumption of intoxicating liquor. But the expression “provisions of the Constitution” should be interpreted not in a narrow literal sense to signify only the formal words in the Constitution, but also comprising convention, usages and the democratic spirit underlying the Constitution. If forms of the Constitution are used to subvert its spirit, then the Constitution can be regarded as having broken down in the states. The exercise of the power under Article 356 is an extraordinary one and need to be used sparingly when the situation contemplated by Article 356 warrants to maintain democratic form of Government and to prevent paralyzing of the political process.

Single or individual act or acts of violation of the Constitution, good, bad or indifferent administration does not necessarily constitute failure of the Constitutional machinery or characterizes that a situation that has arisen which the Government of the state cannot be carried on in accordance with the Constitution. The powers given to the President by Article 365 are necessarily sufficient deterrent to State Governments not to defy directions given to them in the lawful exercise of the Union Government’s authority and power.[iii] The learned author further says “the exercise of that (i.e. power under Article 356) must be limited to a “failure of constitutional machinery”, that is, to preserving the parliamentary form of Government from internal subversion, or from carrying on of Government practically impossible. Again, power under Article 356 may be exercised where the Governments of the states have been conducted for a period of time in disregard to the Constitution and the law. In the Rajasthan case,[iv] however, there are some observations which interpret the wider expression in Article 356(1) as equivalent to the expression ‘breakdown of the constitutional machinery’. At any rate, most of the Judges use the two expressions as interchangeable. It would be conducive to the national interest if both the legal and political world in India adhere to the narrow interpretation[v] for the following reasons: (i) If the history of the provision is to guide its interpretation, the observation of the architect, Dr. Ambedkar, are emphatic on the point that the scope of the Article would be confined to the sense of ‘breakdown of constitutional machinery’- and that this was an exceptional provision which should be applied only in the last resort. (ii) Even if one seeks to exclude the marginal note of Article 356 and to confine the interpretation to the words (failure to carry on the Government of the state) in accordance with the provisions of the Constitution, but the failure to maintain the ‘form of the Constitution’, which in relation to the Provincial part of the Constitution meant the form of ‘responsible government’ as Krishnaswami Ayyar explained. (iii) The foregoing narrow interpretation would also follow that the premises explained by the framers of the Constitution themselves that Article 356 was a corollary or adjunct to the duty of the Union under Article 355 had been drafted on the model of Article IV(4) of the Constitution of the U.S.A. which enjoined the United States to guarantee to every state in the Union “ a republican form of government”. Broadly speaking that expression has been formed to mean “a form that, as distinguished from aristocracy, monarchy or direct democracy rests on the consent of the people and operates through representative institutions”.[vi] If that be so, neither the provisions in Article IV(4) of the American Constitution nor Article 355of the Indian Constitution (can be used to subvert the normal system of Government in a state on the plea of violation) of particular provisions of the Constitution, short of breakdown of the Constitutional machinery or form of representative and responsible government. (iv) This would follow from the interpretation given by the makers of the Constitution to Article 355(draft Article 277A) to which Article 356 was intended as a supplement. It was explained that the draft Article 277A was an amalgation of Article IV (4) of the American Constitution and s.61 of the Australian Constitution Act, which empowered the executive Government of the Common wealth to ‘maintain’ the Constitution. It does not appear that there is any case in which the expression ‘maintenance of the Constitution’ has been interpreted to enforcement of every provision of the Constitution Act, as distinguished from the constitutional system in toto. The expression ‘in accordance with the provisions of the Constitution’, in Article 355 is, therefore to be interpreted in the light of the other two serious situations which precede this expression, namely, ‘external aggression’ and ‘internal disturbance’. Therefore, it is the duty of the Union Government to protect (the states) against external aggression, internal disturbance and domestic chaos and to see that the Constitution is worked in a proper manner both in the states and the Union. If the Constitution is worked in a proper manner, in the States, that if responsible government as contemplated by the Constitution functions properly, th v) Dr. Ambedkar further explained that the federal system and the autonomy of the States within the sphere allotted to them by the Constitution were the foundations of the Constitution and that Articles 355-356 were introduced as exceptions to that normal system only when there was a likelihood of the failure of a state to maintain that system itself, in which case the Union would enforce its obligation to maintain that system: “… in view of the fact that we are endowing the provinces with plenary powers and making them sovereign within their own field. It is necessary to provide that if any invasion of the provincial field is done by the Centre it is in virtue of this obligation”, Namely the obligation to protect the states from external aggression or internal commotion or to maintain the Constitution in the Provinces i.e. the states. (vi) the very fact that the provision in Article 356 is included in Part XVIII as an ‘Emergency Provision’- even though as the Court has said, it has no relation to an emergency of any kind dealt with in Article 352- would lead to the conclusion that the situation contemplated in Article 356 is not one of mere irregularity or difficulty, but one in the nature of an emergency,- a breakdown of the Constitutional machinery, which calls for an abnormal remedy. In the Rajasthan case (para 40)[vii], BEG, C.J., preferred to take the wider interpretation of Article 356(1), to have both a preventive and a curative purpose, viz., (a) ‘to safeguard against the constitutional machinery in a state’, as well as to repair the effects of a breakdown. In view of the views expressed by Dr.Ambedkar and other supporters of the provision in the constituent assembly, the proper view would be whether the purpose can be preventive or creative, the power can be used only in extreme cases, viz., when there is an actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe particular provisions of the Constitution. The Proclamation dated 21.4.1989 under Article 356 was challenged before the Karnataka High Court and a full bench of the High Court dismissed the Writ Petition. The matter was taken in appeal before the Supreme Court and nine learned judges and considered the scope and power of Article 356.[viii] Similar proclamations were issued in regard to the Government of Rajasthan, Madhya Pradesh, Himachal Pradesh on 15-12-1992. The Government of UP was also dismissed by issuing a Proclamation on 6-12-1992. Meghalaya and Nagaland Governments were also dismissed by Proclamation. All these proclamations were challenged before the Supreme Court and they were disposed by a common judgment in Bommai S.R v Union of India[ix]. In that decision, the Court held that the proclamation under 356 in so far as states of Karnataka, Nagaland and Meghalaya were concerned,was unconstitutional. In S.R.Bommai v Union of India, [x]it was held that a proclamation under Article 356 is justiciable and the Courts could look into the materials or the reasons disclosed for issuing the proclamation to find out whether those materials or reasons were wholly extraneous to the formation of the satisfaction and had no rational nexus at all to the satisfaction reached under Article 356. The Court upheld the proclamation based on the Governor’s report of horse trading among the legislators. The Court rejected the argument that the Governor should have ascertained the support of the Chief Minister on the floor of the House. In so far as the proclamation of emergency in Madhya Pradesh was concerned, it was challenged initially before the High Court reported in Sunderlal Patwa v Union of India.[xi] The full bench of majority of two to one invalidated the Proclamation under Article 356 issued on 15-12-1992. These incidents, the majority did not find adequate to justify an action under Article 356 must be if such magnitude as to satisfy the President that it would be impossible for the Government to carry on the state administration in accordance with the provisions of the Constitution, as stated in Article 355. According to the High Court, no such ground or reason was made out for the invocation of power under Article 356. So far as the state of Nagaland was concerned, the same was also challenged before the High Court.

The Division Bench differed on the effective operation of Article 74(2) of the Constitution and hence the matter was referred to a third judge. But before the matter could be heard by the third judge, the Union of India moved the Supreme Court and the proceedings before the High Court was stayed. The Governor’s report was in that case was in consequence of split in the ruling Congress Party and on the allegations of horse trading and alleged connection of some members of assembly with insurgency. In regard to Meghalaya, the assembly was dissolved on the ground that the Constitutional functionary has failed to release the binding legal consequences of the orders of the Supreme Court and the Constitutional obligation to give effect to the said order. Article 356 was invoked in the State of Rajasthan, Madhya Pradesh and Himachal Pradesh on the ground that many members of the Assembly had participated in Kar Seva at Ayodhya after the demolition of Babri Masjid at Ayodhya. The proclamation was issued on the ground that “secularism” which is part of basic structure if the Constitution has been violated and the Governments of these states cannot discharge their functions honestly and effectively. The writ petitions challenging the proclamations in state of Rajasthan and Himachal Pradesh were transferred to the Supreme Court on the request of the Union of India.

Before considering the judgment in Bommai’s case, let us consider what transpired before the constituent assembly and its debates and also the recommendation of Justice Sarkaria Commission. Dr.Ambedkar observed, this drastic power as a penalty for unconstitutional acts done by a state government can be used only after other remedies have failed. In short, the Union cannot supersede a state government simply for the sake of ‘good government’ of the state.[xii] While exercising this power, the Government in power at the Centre will also remember that its only object as a member of the drafting committee explained was to act as a ‘safety valve’ to save the Constitution itself and was thus “to be tolerated as a necessary evil”. Its use must therefore to claim that toleration be few and far between. Just as the frequent use of the amending power takes away the sanctity and reverence which is the foundation of every written constitution, similarly a frequent use of the emergency provision in Article 356 lamentably demonstrates that we are neither fit for federalism nor the Parliamentary system of government. Sarkaria,J.,made the following recommendations: “1. Article 356 should be used sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a breakdown of Constitutional machinery in the state. All attempts should be made to resolve the crisis, its causes and exigencies of the situation. These alternatives may be dispensed only in cases of extreme emergency where the failure on the part of the Union to take immediate action under Article 356 will lead to disastrous consequences. 2. A warning should be issued to the errant state in specific terms that it is not carrying on the government of the state in accordance with the Constitution.

Before taking action under Article 356 any explanation received from the state should be taken into account. However, this may not be possible in a situation when not taking immediate action would lead to disastrous consequences. 3. When an “external aggression” or “internal disturbance” paralyses the state administration creating a situation drifting towards a potential breakdown of the constitutional machinery of the state, all alternative causes available to the Union for discharging its paramount responsibility under Article 355 should be exhausted to contain the situation.

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[i] State of Karnataka v Union of India, AIR 1978 SC 68 (para 40). [ii] State of Rajasthan v Union of India, AIR 1977 SC 1361 paras 28, 39, 40 (Beg. C.J); 124(Chandrachud, J.); 137(Bhagwati, J.); 209 (Fazl Ali. J). [iii] H.M. Seervai, Constitutional Law of India, 4th Edition, 2007 Reprint, Volume III at pages 3090-91. [iv] State of Rajasthan v Union of India, AIR 1977 SC 1361 paras 28, 39, 40 (Beg. C.J); 124(Chandrachud, J.); 137(Bhagwati, J.); 209 (Fazl Ali. J). [v] Sarkaria Commission has adopted this view [Rep. I, paras 6, 3, 23], p.94. [vi] Corwin & Peltason, Understanding the Constitution, (1967). [vii] State of Rajasthan v Union of India, AIR 1977 SC 1361 paras 28, 39, 40 (Beg. C.J); 124(Chandrachud, J.); 137(Bhagwati, J.); 209 (Fazl Ali. J). [viii] S.R.Bommai v Union of India, AIR 1994 SC 1918. [ix] S.R.Bommai v Union of India, AIR 1994 SC 1918 [x] S.R.Bommai v Union of India, AIR 199o Kant 5 (supra). [xi] Sunderlal Patwa v Union of India, 1993 Jab LJ 387 (FB). [xii] T.T.Krishnamachari, IX, C.A.D.,123, 125.

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