In this blogpost, Priyanshu Upadhyay, student, Christ University, Bangalore writes about the background, nature and scope of Article 356 of the Indian Constitution also talks about whether emergency in Arunachal Pradesh is valid or not.

Introduction

State of Arunachal Pradesh is going through a tough time. Governor of the State has sought for the imposition of emergency on the ground of constitutional background. The Centre on request of the Governor recommended to the President and had got his assent for the imposition of President’s rule within the state. The decision of Central Government has been attacked by all the rivals of BJP where they claim that the act is arbitrary and against the Constitutional principles. The act has been justified on the ground that there is a constitutional breakdown within the state.

Constitution of India under Article 356 deals with constitutional breakdown within a State and imposition of emergency. The words ‘constitutional breakdown’ is mentioned under the article but has not been defined. Not-defining makes the Article ambiguous and paves the way for misuse and arbitrariness. In order to understand the scope and application of Article 356, it is important to analyze it in the light of its background and judicial decisions.

Background  Of Article 356

Part XVIII of the Indian Constitution lays down emergency provisions under Article 352 – 360. Article 352 provides for the proclamation of emergency with reference to the security of India or any State from war, external aggression or armed rebellion. Article 353 lays down the effect of the proclamation of emergency under Article 352, and Article 354 provides for application of provisions relating to the distribution of revenues while a Proclamation of Emergency is in operation. Article 355 provides for the duty of the Union to protect States against external aggression and internal disturbance, and Article 356 provides for emergency Provisions in case of failure of constitutional machinery in States.

In order to understand the emergency provisions, it is necessary to analyze them in the light of their background history and intention of the legislature. The emergency provisions of the Indian Constitution are pari materia to the emergency provisions under the Government of India Act, 1935. Article 352 and 353 are based on Section 102 of the 1935 act wherein Section 102 provided for the power of the federal legislature to legislate if an emergency is proclaimed. Section 45 under part II chapter V of the Government of India Act, 1935 provided for failure of constitutional machinery for the federation. Part II chapter VI under Section 93 provided for such failures in the provinces.

Now, the wordings of Section 355 and 356 reproduce the language used in Section 45 and 93 of the Government of India Act, 1935. The only point of difference was relating to fundamental rights which were not to be under the 1935 Act. The Article was introduced with the intention of being used in rarest of the rare cases but certainly this has not happened. It is amongst the most used provisions under the Indian constitution. In the draft constitution, Articles 277 and 278 under Part XIII contained the emergency provisions. The present article 356 is a revised and redrafted article. In the constitutional assembly debates with reference to Article 278, now 356, Dr. Ambedkar stated:

“I hope the first thing (the president ) will do would be to issue a mere warning to a province that has erred that things were not happening in the way in which they were intended to happen in the constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people to settle matters by themselves. It is only when these two remedies fail, that he would resort to this article.”[1]

The intention behind the inclusion of Article 356 was clearly explained in the Sarkaria Commission report. It stated, even though article 356 was patterned upon the controversial section 93 of the 1935 Act – with this difference that instead of the Governor, the President is vested with the said power – it was yet thought necessary to have it in view of the problems that the Indian republic was expected to face soon after independence. The socio-political experience of the framers of the Constitution made them acutely aware that security of the Nation and the stability of its policy could not be taken for granted. The road to democracy was not expected to be smooth. The vast difference in social, economic and political life, the diversity in languages, race and region, were expected to present the nascent republic with many a difficult situation.[2]

Scope And Application Of Section 356

Article 356 provides for the imposition of emergency in case of failure of constitutional machinery in States. According to the article, the president on receipt of a report from the governor of a State or otherwise, that the government of the State is not being carried according to constitutional provisions, impose the emergency situations as provided under Article 356. The two most important elements of Article 356 are:

1. ‘On receipt of a report from governor or otherwise’, and
2. ‘A situation has arisen in which the Government of the State cannot be carried on in accordance with the constitution.’

The above-mentioned elements due to their ambiguity attract an exhaustive analysis. Till date the position regarding the two elements have not been clearly laid down, this has opened them for debates and criticisms. So, the

1. ‘on receipt of the report from Governor or otherwise’

Governor is an executive head of a State. Under Article 159 the governor takes oath in name of god that “he will to the best of his ability preserve, protect and defend the Constitution.” So, it is the prime duty of the Governor to protect, preserve and defend constitutional provisions within state. Continuing the same intention, Article 356 confers power to the Governor in case of failure of constitutional machinery within states. With the use of words ‘ president ……is satisfied that’, establishes that the report of the governor need not be always implemented, the satisfaction of President is required.

According to Article 163(1), there shall be a council of ministers with Chief Minister at the head to aid and advise the Governor, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.  Giving of report under Article 356(1) is not so mentioned in the constitution as a function to be exercised by him in his discretion, it is obvious that in the matter of the Governor reporting to the President that there has been a breakdown of the constitutional machinery must necessarily be a matter in which the Governor cannot possibly act on the advice of his Council of Ministers.[3] The reason is that as a result of the report of the Governor, the State Government would be suspended so, the council of ministers cannot be expected to sign their own death warrant.[4]

Further, the words ‘or otherwise’ depict that the President can under Article 356(1) act on the information received from other sources other than Governor’s report. So the President can act on any report either submitted by Governor or any other person or authority. According to Article 74(1) of the Constitution the council of ministers with the Prime Minister at the head shall aid and advise the President. In the case of State of Rajasthan v. Union of India[5], ratio laid down was that, according to article 74(1) whether President has or has not received a report from the Governor; he can act under Article 356(1) only with the aid and advice of the council of ministers, without which no proclamation under Article 356 can be an issue.

1. ‘A situation has arisen in which the Government of the State cannot be carried on in accordance with the constitution.’

The president’s action under Article 356(1), in general terms, is referred as imposition of emergency but in case of State of Rajasthan v. union of India[6], it was brought out that, when compared with Article 352(1), it is evident that Article 356(1) does not speak of any ‘emergency’ of any kind, the word ‘emergency’ is not used anywhere under Article 356. But, in general, terms and due to the consequences provided under Article 356 it is generally referred as an emergency.

Now, the words ‘carried on in accordance with the constitution’ should not be interpreted literally. If interpreted literally, it would cover failure on the part of Sate Government with regards to all the provisions of the constitution, whatever might be degree and extent of such failure. The machinery of government does not ordinarily fail if this or that provision of the constitution is violated by the acts of the state. Example, an emergency cannot be imposed if a state did not carry out the directive principle of the state. A literal construction of the wide general words of Article 356 which could enable the Union executive to cut at the root of the democratic parliamentary form of government in the states must be rejected in favour of a construction which would preserve that form of government. The exercise of that power must be limited to a ‘failure of constitutional machinery’ that is. To preserving, the parliamentary form of government from internal subversion, or from a deliberate deadlock created by the party or a group of parties, or from a deadlock arising from an indecisive electoral verdict which makes the carrying of the government practically impossible.[7]

In the case of Birinder Singh Rao v. Union of India[8], the Samyukta Dal to which the Chief minister belonged had the support of majority in the assembly, there was no vote in assembly showing lack of confidence in the ministry, still the Governor submitted report under Article 356(1) owing to the fact that large-scale defections were going on between the various parties in the assembly for some time, the position of the ministry was precarious, and no alternative government with a stable majority could be formed. Further, in the case of Bijayananada Patnaik v. President of India[9], in one of its observations pointed out that, the Governor would be justified in recommending President’s rule only after a ministry fall for want of majority, and there is no one else to from an alternative ministry, and not in anticipation of such fall.

Article 356 can be best understood in the light of Sarkaria commission report submitted in 1987. Sarkaria commission in its report opined that when a duly constituted ministry, which has not been defeated on the floor of the house, has lost its majority, the ministry must be provided with an opportunity to demonstrate its majority through ‘floor-test’ by calling an early session of the parliament. If the governor recommends imposition of President’s rule on his subjective assessment that the ministry no longer commands the confidence of the assembly, it would be a case of improper use of the power under Article 356(1).[10] The report explains the phrase ‘“the government of the State cannot be carried on in accordance with the provisions of this Constitution’ into four possible situations of,

(a) Political crisis.

(b) Internal subversion.

(c) Physical break-down.

(d) Non-compliance with constitutional directions of the Union Executive.[11]

According to the report, a constitutional breakdown may be the outcome of the political crisis or deadlock. This may occur where— (i) after a General Election no party or coalition of parties or groups is able to secure an absolute majority in the Legislative Assembly, and, despite exploration of all possible alternatives by the Governor, a situation emerges in which there is  a complete demonstrated inability to form a government commanding confidence of the Legislative Assembly; (ii)a Ministry resigns or is dismissed on loss of its majority support in the Assembly and no alternative government commanding the confidence of the Assembly can be formed; (iii) the party having a majority in the Assembly refuses to form or continue the Ministry and all possible alternatives explored by the Governor to find a coalition Ministry commending a majority in the Assembly, have failed.

Further, constitutional breakdown due to internal subversion as provided under the report includes situations: (i) where the government of a State, although carried on by a Ministry enjoying majority support in the Assembly, has been deliberately conducted for period of time in disregard of the Constitution and the law; (ii) Where the Government of the State deliberately creates a deadlock, or pursues a policy to bring the system of responsible government envisaged by the Constitution, to a stand till; (iii) Where the State Government, although ostensibly acting within the constitutional forms, designedly flouts principles and conventions of responsible Government to substitute for them some form of dictatorship; And in each of the situations (i), (ii) and (iii) the alternative steps, including other correctives and warnings, fail to remedy the distortion or bring back the errant State Government to the Constitutional path, (iv)Where a Ministry, although properly constituted, violates the provisions of the Constitution or seeks to use its constitutional powers for purposes not authorised by the Constitution and other correctives and warnings fail; (v) Where the State Government is fomenting a violent revolution or revolt with or without the connivance of a foreign power.

Constitutional breakdown due to physical breakdown can take place: (i) Where a Ministry, although properly constituted, either refuses to discharge its responsibilities to deal with a situation of ‘internal disturbance’, or is unable to deal with such a situation which paralyses the administration, and endangers the security of the State. (ii) Where a natural calamity such as an earthquake, cyclone, epidemic, flood, etc. of unprecedented magnitude and severity, completely paralyses the administration and endangers the security of the State, and the State Government is unwilling or unable to exercise its governmental power to relieve it.

The breakdown due to non-compliance by a State Government with the directions of the Union Government can take place:— (i) Where a direction issued by the Union in the exercise of its executive power under any provision of the Constitution, such as, Articles 256, 257 and 339(2) or, during an Emergency under Article 353, is not complied with by the State Government in spite of adequate warning and opportunity, and the President thereupon holds under Article 365 that a situation, such as that contemplated in Article 356, has arisen; (ii) If public disorder of any magnitude endangering the security of the State, takes place, it is the duty of the State Government to keep the Union Government informed of such disorder, and if the State fails to do so, such failure may amount to impeding the exercise of the executive power of the Union Government and justify the latter giving appropriate directions under Article 257(1). If such a direction given to the State by the Union Executive under Article 257(1) is not complied with inspite of adequate warning, the President thereupon may hold that a situation such as contemplated in Article 356 has arisen.

Emergency In Arunachal Pradesh: Valid Or Not?

The president has assented to the report of Governor and the recommendations of Union Government for the imposition of emergency under Article 356. The Governor has asserted that the State is witnessing constitutional breakdown since December 2015, and emergency is inevitable. The decision of the governor and central government has been criticized by the present chief minister of the state and congress party on the ground of being arbitrary and unnecessary. The decision of central government would be justified if there is a nexus between the reasons of the central government and the elements of Article 356.

The centre justifies the imposition of emergency on the grounds that:

1. The Congress Government has been in minority for the past several months,
2. The ministry of home affairs states that the State has been witness to recurred insurgency as well as attempts by China to claim a large part of its territory, so it is imperative and in the interest of the country that the state is socially, economically & political stable.
3. The governor of the State has stated that there is a serious political instability and war like situation within the State.
4. The requirement under Article 174 has not been fulfilled, and it is more than six months between two sessions of the state assembly.

Now, Arunachal Pradesh is suffering from political instability since December 2015. On December, 16, 2015, 21 rebels congress MLA’s joined hands with 11 BJP & independents to impeach the speaker. The act was criticized by the speaker by labeling illegal and unconstitutional. Further, 21 rebel party MLA’s, including 14 disqualified a day before, with the help of BJP and independent legislators, congregated at a community hall after the State Assembly.

Further, the concern of china intervening into the borders has always been a problem for the Indian government. China on a number of occasions claims some parts of Arunachal Pradesh and has also taken steps with regards to that. Security problems have existed within the state which can only be solved if there is coordination between the actions of central and state government. Imposition of emergency is not a solution to the problem of china it can only be resolved when the actions of State and Central Government coalesce together.

Now, Article 174 of Indian Constitution reads, (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) The Governor may from time to time— (a) prorogue the House or either House; (b) dissolve the Legislative Assembly. The holding of assembly sessions is very important, and if it does not take place after a continuous warning, then it is a serious violation of constitutional provisions.

The actions under Article 356 should be taken only if no alternate remedy is available with the Governor. The Centre has the responsibility to make sure that in case there is any instability within the state it must be provided with enough aids and opportunities to resolve them. Dr. Ambedkar’s observations that the President would issue a warning is important because such a warning serves a number of purposes. It would force the Union to specify with some particularity in what respects the Govt. of the State was not being carried according to the constitutional provisions. On receipt of such warning the state Government has 2 options:

1. Admit the charges
2. Show that the Government is carried on in accordance with the constitutional provisions.

The congress has filed a petition before the Apex court against the decision of Centre. The apex court has summoned both the centre and governor for explaining and justifying the decisions.  The centre in order to justify its decision must show that no other resort was available.

Conclusion

Article 356 was borrowed pari material from the Governments of India Act, 1935. the article was included with the view that it would be used under serious rarest of the rare cases but has been used over 100 times till now. The reason behind the increasing usage of Article 356 is that when there is a different party at centre and state and in order to take complete control, the centre through the governor imposes Article 356. In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India, “After the Supreme Court’s judgment in the S. R. Bommai case, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.”[12]

Further, giving off warning is necessary under Article 356 so that it is not used to destroy the autonomy of the States.  The arbitrary usage of Article 356 would result in destroying the federal nature of our constitution which is also one of the basic features of the constitution. It needs to be remembered that only the spirit of “cooperative federalism” can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority. Under our constitutional system, no single entity can claim superiority.

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References:

[1] C.A.D. Vol. 9, page 177

[2] Sarkariya report

[3] Samsher Singh v. State of Punjab, AIR 1974 SC 2192(paras 55,138)

[4] Durga Das Basu, Shorter Constitution of India, 14^th edition, Vol. 2, 2009, Pg. 2166

[5] ibid

[6] AIR 1977 SC 1361 (paras 169, 188A, 201)

[7]  H.M. Seervai, constitutional law of india, 4^th edtn. Vol. 3, 2006 Pg. 3092

[8] AIR 1968 P&H 441 (paras 11,12)

[9] AIR 1974 Or. 52

[10] Sarkaria Commission Report, http://interstatecouncil.nic.in/Sarkaria/CHAPTERVI.pdf; visited on 02.01.2016s

[11] ibid

[12] Soli Sorabjee; Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept. 21, 1996