United States Constitution and Article

Indian Constitution is quasi-federal in nature. In the view of K. C. Wheare Indian Constitution has established a system of Government which is at the most quasi-federal, almost devolutionary in character, a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features. Our constitution says “India, that is Bharat, shall be a Union of States”. Unlike U. S. Constitution which is typically federal in nature Indian constitution envisages a constitution set up in which the states will compromise the federal nature in the national interest or for maintaining the unitary feature of the administration.

One such instance where state loses its federal nature and total independence is when there is operation of Article 356 of the constitution in the state. This is one of the situations where in the state is totally under the control of the Union. Our constitution makers with lot of foresight had incorporated this provision, to invoke only in the rarest of the rare circumstances when there are circumstances justifying emergency as given under Article 355.

But ever since the origin of the constitution this article is being misused because of power politics and political high handedness, and more often state governments have been made the scapegoat of ‘non-practical politics’ and have been made to quit office under the constitutional umbrella of Article 356. The Draft Constitution Section 188 had given whole powers for the Governor in matters regarding proclamation of emergency; Clause (4) of Article 188 evidences this fact. Furthermore, under Article 278 the report of the governor was made a condition precedent for the president to proclaim emergency in the state.

Later when the matter within the constituent Assembly regarding manner of election of president was settled down Article 278 was side-lined and a new Article, 277 A (the present Article 355) was introduced. In addition to that the word “otherwise” was appended to Article 357 and it attracted a lot of criticism and finally Ambedkar hoped emergency provision regarding the state to remain as a dead letter in the constitution. But there took place and is taking place a wide disparity between the vision and the reality, ever since the origin of the Constitution the provision has been invoked for more than 110 times and many a times for the political purposes by the party in power in the centre.

State of Rajasthan v. Union of India shows an instance wherein Article 356 was misused by the ruling party. The facts was that in the 4th general elections Janatha party came into power and the then Union minister wrote a letter to the Chief ministers of nine congress party ruled states that they should seek a fresh mandate from the people, the legislatures of the state were constitutionally entitled to complete their term.

It was said that a kind of uncertainty prevailed in those states with the existing political party in power. Anticipating that the President was intending to exercise his power under Article 356, six of the states filed suits before the Apex court praying for interim injunction but the suit were dismissed and Presidents rule was imposed immediately after the verdict. In the case the Court has given a narrow interpretation of judicial review in the matter of Article 356.

Following the case, in 1978 a constitutional amendment was passed by the legislature and with this the then Clause (5) to Article 356 which says “Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and shall not be questioned in any court on any ground”. Thereafter the Sarkaria Commission Report which remapped the centre state relations also set out certain guidelines for the wise use of Article 356. The following instances are regarded as apt situations for the implementation of emergency provision in the state; * Political Crisis.

* Internal Subversion * Physical Breakdown * Non-compliance with constitutional directions of Union executive Another landmark episode regarding Article was the decision of the Hon’ble Supreme Court in S. R. Bommai v. Union of India, following are some of the pertinent observations made by the Court; 1. The satisfaction of the President should be real and genuine; the Court could look into the materials or reasons disclosed for issuing the proclamation to find out whether those reasons or materials are wholly irrelevant or extraneous.

2. Though the satisfaction of the President is subjective, it has to be based on objective reasons. 3. Further it was held that the President was under an obligation to produce the material on which an action under Art. 356 (1) is based. 4. The Court could not go into the correctness or the adequacy but could see the relevancy of the action. 5. If any state acts in a manner calculated to subvert secularism, it can lawfully regarded as a situation in which the state government cannot be carried on in accordance with the constitution. 6.

Whether a particular ministry is enjoying majority or not a matter to be decided not in the Governors chamber but on the floor of the House. 7. The dissolution of the legislative assembly is not a sine-qua-non of the proclamation. 8. Article 356 (3) is a check on Presidents power and if the proclamation is not approved within two months by two hours the proclamation will automatically get lapsed and if at all dissolution was made that too will become invalid. So the state assembly should be kept in suspended animation till the approval of proclamation by the House.

If we analyse the instances in which Article 356 has been invoked we can easily come to a conclusion that Article 356 stand as the most over active provision in the Constitution. The cumulative impact of its misapplication has been the erosion of the federal principles embodied under the Indian Constitution. In S. R. Bommai’s case Court made it clear that Article 356 neither creates a right nor a power, it is only a mechanism of or an incident of Central Governments duty under Articles 356 and 356 to be exercised only when the situation is not capable of being remedied at all action will become legitimate.

Otherwise “it is an invasion of federal principle”. After Sarkaria Commission Report and S. R. Bommai judgment there is a slight change in the situation. In U. P. (1997) and in Bihar (1998) the President asked the Union Cabinet to reconsider its decision under Art. 356. In the days to come let us hope that the political parties may not abuse the provision, the implementation of the recommendations of the Sarkaria Commission Report can bring about a sea change in the prevailing condition. Lastly to quote Ramaswamy J in S. R. Bommai’s case; “…. (W)isdom lies in moderation and not in excess”.

——————————————– [ 2 ]. In the words of Dr. B. R. Ambedkar “Our constitution cannot be called ‘federal’ or ‘unitary’ in the ideal sense of the term. It is quasi-federal. See J. N. Pandey, Constitutional Law of India, Edn. 2009 [ 3 ]. Article 1(1) of the Indian Constitution [ 4 ]. Article 356: Provisions in case of failure of constitutional machinery in States – the President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers.

The President is also subjected to exercise the powers of the government of such state by Proclamation. The Proclamation issued under such circumstances becomes ineffective after 6 months from the date of issuance, if not revoked during this time period. All such Proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months. The Legislative powers of such state shall also be exercised by the Parliament.

In the Houses of Parliament there are certain rules and regulations regarding the expiry of the Proclamation and the time period normally depends upon the fact whether it has been revoked earlier or not. [ 5 ]. Duty of the Union to protect States against external aggression and internal disturbance – this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation's territory. [ 6 ].

Article 188 of the Draft Constitution was to the following effect : Power of Governor in grave emergencies – (1) If any time, the Governor of a State is satisfied that a grave emergency has arisen which threatens the peace and tranquility of the state and that is not is possible to carry on the State in accordance with the provisions of this Constitution, he may, by proclamation, declare that his functions shall, to such extent as may is be specified in the proclamation, be exercised by him in his discretion, and any such proclamation may contain such incidental and consequential provisions as may appear to him 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 anybody or authority in the State.

Provided that nothing in this clause authorizes the Governor to suspend either in whole or in part the operation of any provisions of this Constitution relating to the High Courts. (2) The proclamation shall be forthwith communicated by the Governor to the President who may, thereupon either revoke the proclamation or take such action as he considers appropriate in exercise of the emergency powers vested in him under Article 278 of this Constitution.

(3) A Proclamation under this article shall cease to operate at the expiration of two weeks unless revoked earlier by the Governor or by the President by public notification. (4) The functions of the Governor under this Article shall be exercised by him in his discretion. ” [ 7 ]. See Article 278 of Draft Indian Constitution [ 8 ]. Article 277A- It shall be the duty of the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. [ 9 ]. See, H. M. Seervai, Constitutional Law of India, Vol. 3, 3rd Edn. 1984, p.2624, para 29. 17; Also see, J.

N. Pandey, The Constitutional Law of India, 45th Edn. , 2008, p. 719 [ 10 ]. AIR 1977 SC 1361 [ 11 ]. It was held that Presidents satisfaction is open to judicial review only in exceptional cases in order to find out whether the decision is malafide, based on wholly irrelevant or extraneous grounds. [ 12 ]. See 44th Amendment Act, 1978 [ 13 ]. For details see Sarkaria Commission Report on Centre-State Relations available at www. interstatecouncil. nic. in [ 14 ]. (1994) 3 SCC 1: AIR 1994 SC 1918. [ 15 ]. Sarkaria Commission Report on Centre-State Relations, Vol. 1, 1998, p. 171 [ 16 ]. (1994) 3 SCC 1 [ 17 ]. Ibid at p. 218.