This article is written by Shraileen Kaur, student of ICFAI University, Dehradun. In this article, the author discusses in detail about the history, scope, concept, significance, application and character of Article 355 along with the role of federalism in proper implementation of Article 355 enshrined in the Constitution of India.

It has been published by Rachit Garg.

Introduction

The Constitution of India has always been recognized for advocating federalism. This federalism is different from the standard definition of federalism. The ‘Indian Federalism’ is known for maintaining an equilibrium between the centre and the states regarding the distribution of powers. For better governance, each organ has been allotted a specific area of jurisdiction. The distribution of power under the Indian Constitution condemns unreasonable encroachment into the sphere of another.

There are numerous doctrines that the judicial system in India recognizes dealing with the distribution of powers between centre and state such as the Doctrine of Repugnancy, Doctrine of Distribution of Powers, Doctrine of Severability, as well as Doctrine of Pith and Substance. However, in exceptional circumstances, the union is empowered to intervene in the sphere allotted to the state. One such intervention is elaborated under Part XVIII of the Indian Constitution which deals with provisions related to the emergency. Such interventions are deviations from the standard idea of federalism. 

Recently, an appeal to invoke Article 355 of the Indian Constitution was raised in connection to the Birbhum case of West Bengal. In the district of Birbhum, post the elections certain unscrupulous agents initiated violence leading to the loss of lives and property. However, despite the appeal by the people, Article 355 was not invoked. This article discusses the historical background, application, and scope of Article 355 of the Indian Constitution. 

Historical Background of Article 355

Initially, Article 355 of the Constitution of India was introduced as Article 277A in the Draft Constitution. Article 277A was not a part of the draft constitution in 1948. It was introduced through an amendment. 

In 1948, Article 277A of the draft constitution stated – 

It shall be the duty of the Union to protect each state against external aggression and internal disturbances and to ensure that the government of each state is carried on following the constitutional provisions.

While the discussions and debate on the draft constitution were in progress, the Chairman of the Drafting Committee of the Indian Constitution, Dr. Bhim Rao Ambedkar introduced Article 277A before the drafting committee. On 3 September 1949, this article was introduced with the prime objective of clarifying the intervention of the centre in the domain of the state. Such intervention must be used only in exceptional circumstances like an emergency, it shall not be arbitrary and must arise out of the obligation imposed by the constitution on the union. 

The Union was required under the Draft Article to defend states from external aggression as well as internal turmoil and to ensure that states operate in accordance with the Constitution.

During the debate on Article 277A, one of the members of the assembly pointed out that – 

The term ‘internal disturbance’ showcases ambiguity. It should be replaced with a term illustrating specificities such as ‘internal insurrection or chaos’. Specificity in the words of the constitution is a mandate which will help in preventing the unreasonable and arbitrary intervention of the union in the affairs of the state. 

Another member of the drafting committee emphasised the finer use of the conjunction. Under the draft article, the phrase ‘external aggression and internal disturbance’ have been used. However, the members suggested replacing ‘and’ with ‘or’. It will act as a safeguard and ensure that appropriate measures are taken if either situation arises. 

In favour of Article 277A, several members recommended having such powers even in other scenarios which are different from emergency situations.

After a detailed discussion and several debates, the suggestion and recommendations related to the draft were rejected. However, the actual draft article was approved by the constituent assembly on 4 August 1949. 

Purpose and scope of Article 355 of the Indian Constitution 

Article 355 of the Indian Constitution states about – 

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.

Even though this article has rarely been used, it is viewed as a tool to justify the implementation of emergency under the provisions of emergency. Two words stand out in this context: “internal disturbance” and “armed rebellion.” While Article 352 enables the centre to declare an emergency in the event of an armed rebellion, such a declaration cannot be issued in the event of an internal disturbance. So, according to the Supreme Court, Article 355 does not give the centre the authority to declare an emergency because of trivial internal disturbance without any armed rebellion and cannot rationalise a declaration of emergency under Article 352, nor can such disruption explain issuance of a proclamation under Article 356, unless it negates or prevents the State from carrying out its government in accordance with the provisions of the Constitution.

Advocating Article 355 in the constituent assembly, the chairman of the assembly, Dr. Bhim Rao Ambedkar stated the purpose of Article 355 as – 

“If the union is to intervene in the administration of state affairs, as we propose to sanction the union by virtue of draft Articles 277, 278, and 278-A, it must be by and under some mandate which the Constitution imposes upon the union. The invasion must not be an incursion that is incessant, arbitrary, and unauthorised by law. Therefore, in order to make it evident and unambiguous that draft Articles 278 and 278-A are not to be deemed as a wanton invasion by the Union upon the authority of the state, we propose to incorporate draft Article 277-A4 in the constitution of India .”

Outlining the role of Article 355 and Article 356, Dr. B R Ambedkar observed that – 

“We should anticipate that such articles will never be used and will remain a dead letter. If at all, they are brought into operation, I trust the President, who has all of these powers, will take all necessary safeguards before suspending provincial governance.”

However, the scope of measures anticipated for the execution of the obligation under Article 355, have shifted gradually but dramatically. The general framework has transitioned from the perspective that these operations should be limited to the case of emergencies, including those mentioned in Part XVIII of the Indian Constitution, to the presently prevalent perception that the centre can take any legally enforceable or constitutionally guaranteed action to discharge its duty. 

Considering the scope of Article 355 of the Indian Constitution, it is not confined merely to the events of internal disturbance and external aggression in different states. The same was stated in the case of H. S. Jain v, Union of India.

  1. H. S. Jain v. Union of India (1996)

In this case, a question was raised regarding the declaration of emergency in the state of Uttar Pradesh. In Uttar Pradesh, a state emergency was reimposed under Article 356. The ground for the reimposition of state emergency was the lack of any credible procedure for the formation of a democratic government post the elections of the legislative assembly. 

The Court held that by implication of Article 355 enshrined in the Indian Constitution, the Union was required to make sure that a new Legislative Assembly was formed by upholding the constitutional provisions. The statutory obligation imposed on the centre is to make sure that the administration of every State is conducted in conformity with the provisions of the constitution. Also, the democratic process was adopted to consider other options for forming a majority government in the state of Uttar Pradesh.

Considering the facts and circumstances of the case, the court observed that even though there had been a constitutional obligation to explore the available alternative, no alternate options were considered prior to the declaration of state emergency under Article 356. The declaration issued under Article 356 was thus overturned. It was also determined that the Article 355 mandated the central government to make sure that the state governments were carried on in conformity with the constitutional provisions, however, the same was not conformed with.  

Furthermore, several commissions also opined a similar view on the scope of Article 355. Some of these commissions are – 

  1. The Sarkaria Commission was formed in 1988 for examining the centre-state relations under Articles 245 to Article 293 in Part XI ‘Relations between the Union and the States’ of the Indian Constitution. 
  2. A National Commission was formed to review the working of the constitution in 2002. 
  3. The Punchhi Commission was formed in 2010 to review the Centre-State Relations (Article 245 to 293) under Part XI ‘Relations between the Union and the States’ of the Indian Constitution.

Application and character of Article 355 of the Indian Constitution

new legal draft

The application and character of Article 355 of the Constitution of India can be summed up under 2 major heads – 

Justification of executive action taken in response to Articles 352 and 356 

The reasoning provided by Dr. Ambedkar for the inclusion of Article 355 in the Indian Constitution is as follows – 

 “The Constitution of India is federal in character, and therefore the States have been delegated sovereign power within their own domain as well as plenary powers to ensure peace, order, and democratic governance for themselves with the exception of provisions allowing the Union to override any legislation passed by the States; it is therefore essential to provide that any incursion into the domain of the states, as permitted by Article 356, is carried out in fulfilment of an obligation imposed on the Union by the Constitution, otherwise such intrusion would be a wanton, arbitrary, as well as unauthoritative act. Article 355 has been explicitly included in Part XVIII, titled ‘Emergency Provisions’ for this reason.”

State of Rajasthan v. Union of India (1997)

During the hearing of the case, the then Chief Justice of India, Mirza Hameedullah Beg stated that – 

The initial portion of Article 355 which mentions the duty of the centre towards every state to provide protection from external aggression as well as internal disturbances would be the umbrella part covering the provisions of the declaration of emergency according to Article 352. This article includes only under grave and imminent danger under its ambit. 

The next portion of Article 355 states that it is the duty of the union to ensure that each state’s government is functioning in accordance with the constitutional provisions. This portion of Article 355 shall be the umbrella part covering the emergency proclamation under Article 356 of the Indian Constitution. 

The potential repercussions of this umbrella theory were that, while Article 355 establishes an obligation of the centre on the states, this obligation was seen as justifying the use of emergency intervention under Articles 352 and 356. Therefore, the theory failed to consider any other intervention as a substitute for this obligation.

Anticipating the judicious application of Articles 352 and 356, giving way to numerous alternate powers and obligations

The Constitution (44th Amendment) Act, 1978 replaced the phrase ‘internal disturbance’ with armed rebellion under Article 352 of the Indian Constitution. However, the 44th amendment did not make any changes under Article 355 of the Indian Constitution. The 44th amendment had widened the scope of Article 355 due to which it can not only include Article 352 and 356 under its ambit but also other provisions for the proclamation of emergency.  

S.R. Bommai v. Union of India (1994)

In this case, Judge P. B. Sawant opined that –

Article 355 is a rationale for the actions to be taken under Articles 356 and Article 357. It is not an autonomous authority for interfering with the structure and function of the State Legislature. However, It was also stated that ‘internal disturbance’ has a broader meaning than ‘armed rebellion’ and thus, while a declaration of emergency under Article 352 can only be issued in the event of an armed insurgency, such a declaration cannot be issued for internal disruptions caused by several other conditions.

Furthermore, it was noted that a pronouncement in accordance with Article 356 of the Indian Constitution cannot be approved except when the internal disturbance creates certain circumstances in which the State government cannot function in conformity with the Constitutional provisions. 

Notably, it was determined that trivial internal disturbances, which do not include armed rebellion, can neither defend a pronouncement of emergency under Article 352 nor can these kinds of disturbances recognize the implementation of the declaration of emergency under Article 356. It can only be done if the State government is prevented from carrying out its responsibilities in consonance with the Constitutional provisions. 

Henceforth, the last portion of Article 355, is no more solely a rationale for intervention under Article 356 but it also gives effect to autonomous powers and obligations. Article 355 places an obligation on the Centre and it also gives it the power to do all the necessary actions and use whatever measures are rationally essential to hold that duty effectively. As a result, the procedures outlined in Articles 352 and 356 should only be employed as a final measure in extreme cases. 

This implies that Article 355 is not simply a provision regarding emergency though it exists in Part XVIII Emergency Provisions and serves a purpose there, it is also an integral component in the broader federal architecture of the Constitution of India.

Role of federalism in implementation of Article 355 of the Indian Constitution

The term federalism has not been expressly mentioned in the Constitution of India. Hence, according to the Indian Constitution, the Indian Union is not expressly a federation. However, there are numerous articles and parts of the Indian Constitution that mention federalism in the Union of India. Some of these articles and parts are as follows – 

  1. Article 1 “India, that is Bharat, shall be a Union of States.”
  2. Article 245 to 263 – Part XI – “Relations between the Union and the States”
  3. Article 264 to Article 298 – Part XII – “Finance, Property, Contracts, and Suits.”

In the above-mentioned articles, the sphere of central government and state government is demarcated. Both the governments have been allocated a specific area for governance where they hold sovereignty in terms of power and authority. However, it is subjected to reasonable intervention by the central government in exceptional circumstances. The rationale behind giving these powers to the union is stated as – 

Given the country’s cultural pluralism, tolerance, and diversity, it is the duty of the Union to maintain India’s sovereignty and solidarity, as well as to make sure that the country’s obligation as a secular, democratic republic enshrined in the constitution of India is preserved in the States.”

The powers granted to the union are not absolute. There are several restrictions associated with it. These restrictions have been introduced keeping in mind the distinguishing features of the Constitution of India such as federalism, democratic governance, delegation, and decentralisation of powers.

Indian federalism acts as a facilitator for proper functioning of Article 355

Granville Austin, an American historian who helped in drafting the Indian Constitution, introduced the term ‘cooperative federalism’. He called this federalism the founding stone of the Indian Constitutional system. Cooperative federalism is nothing but an arrangement in a federal structure. It presumes that no government has been granted absolute sovereignty and independence in the sphere allotted to them.

During a debate in the constituent assembly, when arguments were raised against the centre-state relations and distribution of power not just in the context of Article 355 but the constitution as a whole, Dr. Ambedkar replied – 

“When it comes to the relationship between the Centre and the States, it is important to remember the fundamental idea that underpins it. The core concept of Federalism is that the legislative and executive powers are divided between the Centre and the States by the Constitution itself, not by any law passed by the Centre. The States are not reliant on the Centre for legislative or executive authority under our Constitution. In this regard, the Centre and the States are on an equal footing. As I already stated, the Constitution divides legislative and executive authority between the Centre and the Units, which is the essence of federalism.”

Even the Supreme Court in Re: Under Article 143 of the Indian Constitution (1965) ascertained that – 

The essence of federalism is the adequate allocation of limited powers among different organs of the government i.e., legislature, executive, and judiciary. The superiority of the law is necessary for the survival of a federal union because it protects the complex division of powers from being destroyed or harmed by the parliament. It meets the specific needs of states who would like to join together but are unwilling to give up their distinctiveness in the process.

Hence, the standard federalism with an Indian touch to it, not just facilitates and justifies Article 355 but also the constitution as a whole. 

The Union acts as a guardian protecting the state in need

Article 355 of the Indian Constitution mandates the Union to protect the states from internal disturbances and external aggression. The union needs to check whether the government of every state is working in accordance with the provisions mentioned in the constitution. If the union has been empowered to protect the states, it must also be provided with certain other powers from the constitution to efficiently execute their duties. 

Several times, it has been argued that the provisions of emergency under Articles 352 and 356 are enough to perform the duty of the union. However, there are certain counter arguments regarding the powers of the union. It states that the nature of Part XVIII ‘Emergency Provisions’ have specified some situations, not all the scenarios. Whenever a specified situation occurs, the provisions of emergency empower the President of India to undertake specific elements of the power vested in the Union or the State that would otherwise not vest in him.

The emergency that is specified under the ‘emergency provisions’ are as follows – 

  1. A situation of a grave emergency wherein the security and integrity of the Union of India or any part thereof is threatened either by war or external aggression or armed rebellion. (Article 352 – National Emergency)
  2. A situation of state emergency involving the breakdown of constitutional machinery in a particular state. It includes a state where the government in that state cannot be carried on in accordance with the provisions of this constitution. (Article 356 – State Emergency)
  3. A situation of ‘external aggression’ or ‘internal disturbance’. Such a situation is not serious enough to be included under the ambit of Article 352 as well as Article 356. However, The situation calls for immediate action by the union, the power for the same has been mentioned under Article 355 of the Indian Constitution. 
  4. A situation where there is a threat to the financial stability for credit of the Union of India or any part thereof. (Article 360 – Financial Emergency)

Henceforth, from the above-mentioned four scenarios, it can be deduced that the occurrence of any one of the stated events will lead to instability and threat to the security of India. As a result, the Emergency provisions seek to revoke the standard demarcation of rights and duties enshrined in the constitution to pave the way for an even more effective and concentrated structure capable of dealing with critical events.

Supplementary powers to the Union by virtue of Article 355 of the Indian Constitution

Article 355 provides several powers in addition to the power to the union to check the state’s administration. 

Power of the Parliament to legislate on the matters mentioned in the state list

The Indian Constitution authorises the Union to enact legislation on any matter mentioned under the State List of the VIIth Schedule. It includes all such matters that it considers necessary in the interest of the nation. Thus, the Union may use Article 249 to enact laws on matters that will assist it in maintaining proper governance of the states in financially difficult instances, such as local municipal authorities under Entry 5.

According to Article 249, the Parliament has the authority to legislate for the whole or any part of India’s territory in relation to any matter on the State List. Such legislation can be considered valid only if it is backed by at least two-thirds of the members of the Council of States who are present and voting. The council of States must affirm that enacting laws on that subject are necessary for the national interest. Additionally, if Article 249 is read with Article 251, It states that if a disagreement arises between a legislation enacted by Parliament under Article 249 and law passed by a state assembly, the Union law shall take precedence to the extent of the contradiction or repugnancy. This has been reaffirmed by several courts through the doctrine of repugnancy.

Power to legislate regarding defence and armed forces

The central government has the power to enact laws regarding the deployment and upkeep of armed troops in a State in aid of the civil power under Entry 2A of the Union List of the VIIth Schedule. Also, despite the fact that Entries 1 and 2 in the State List grant power to the states to make laws on matters related to public order and police, they are subjected to the Union List Entry 2A. 

Several commissions, including the National Commission to Review the Working of the Constitution, believe that the obligation of the union under Article 355 is to provide protection to the States against any foreign invasion or internal disturbance can be carried out through legislation enacted under these entries.

For instance, the Central Reserve Police Force Act of 1949 and the Border Security Force Act, 1968. Under these acts, the Union is empowered to intervene in the domain of the state to fulfill its obligations under Article 355. 

Financial support by the union to the states whenever in need

According to Article 275 of the Indian Constitution, the Parliament has the power to provide financial support to the states whom it considers in need. The power granted to the Union under Article 275 is in line with Article 355 of the Indian Constitution.

The ultimate decision regarding the grant of financial assistance lies in the parliament. If the parliament after analysing the current situation of a particular state decides to provide financial support to a particular state, it can do so. The parliament can give an adequate amount of money, as it deems fit for the situation. 

Relation Between Article 355 and Article 356

According to Article 356 of the Constitution of India, the Union has the power to take over the government of any state in case of failure or breakdown of constitutional machinery in a state. This article is also known as ‘President’s Rule’. 

As per the Article, 2 grounds are mentioned on which President’s rule can be proclaimed – 

  1. Article 356 authorises the President to issue a declaration if he believes that a scenario has arisen wherein a state’s government cannot be carried out in full compliance with the provisions of the constitution.
  2. According to Article 365, when a state refuses to comply with or abide by any direction from the centre, the President may declare that a condition has arisen in which the state’s government cannot be executed in accordance with the provisions of the constitution.

Post the imposition of the president’s rule, the President will be granted with certain powers to normalise the situation. However, these actions have the scope of judicial review. 

As Article 355 is said to provide power to other articles of the constitution, it also provides power to Article 356 of the Constitution of India. Article 356 can only be proclaimed if the governor of the state is satisfied with the unfavourable situation and he sends the report of the same to the president.

Case Laws related to Article 355 of the Indian Constitution 

Sarbananda Sonowal v. Union of India (2005)

In this case, questions were raised on the validity of the Illegal Migrants (Determination by Tribunals) Act, 1983. The Act was introduced as a solution to the problem of illegal migrants in the state of Assam. Under this act, the Union was empowered to detect as well as deport illegal migrants who were residing in Assam. The Apex Court after considering the facts and circumstances of the case held that – 

There was a scenario that amounted to foreign hostility and civil unrest. As a result, it was remarked that it has become the responsibility of the government at the central level to take all steps necessary to defend the State of Assam from external aggression and internal disturbance, as stipulated in Article 355 of the Indian Constitution. However, after a thorough examination of the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, it was decided that the Act as well as the Guidelines promulgated under it “override the constitutional authority embedded in Article 355 of the Constitution,” according to which the Union of India is obligated to protect each state against external aggression or internal disturbance. The Act was found to be ultra-wires because it violated Article 355 of the Indian Constitution.

Naga People’s Movement of Human Rights v. Union of India

In this case, the question was raised on the validity of the Armed Forces (Special Powers) Act, 1958 (AFSPA). Under this act, the Union is granted the power to send the centrally governed armed forces to help the forces of the state in any area which is designated as a ‘disturbed area’. 

The Supreme Court upheld the validity of the Armed Forces (Special Powers) Act, 1958 (‘AFSPA’). It stated that the legislature is competent to make laws on this subject under Entry 2A of the Union List of the VIIth Schedule. 

The Apex Court further observed that the provisions of the Armed Forces (Special Powers) Act, 1958 were enacted to empower the union to discharge its duty in accordance with Article 355 of the Constitution of India. This will prevent the declaration of state emergency under Article 356 by protecting the states from the escalation of situations that are grave in nature such as the breakdown of constitutional machinery or internal disturbances. 

Conclusion 

Since the adoption of Article 355 in the constitution of India, it has evolved from being a validatory provision for union intervention to genuinely being a facilitator and protector of the state from ‘internal disturbances and external aggression’. Initially, Article 355 was presumed to be a weapon in the hands of the union government for justifying the unreasonable encroachment into the domain of the state. Such intervention was in conjunction with the grave situations of emergency. Hence, the validation given by emergency provisions enshrined under the Indian Constitution in Part XVIII in Articles 352 to 360 was complementary. It has advanced to include other union activities that are not done in place of constitutional provisions of emergency but are undertaken to avoid specific imminent danger from deteriorating to the point where emergency response is a mandate. 

For a considerable time period, Article 355 has been used as a political tool by several political parties to enhance their powers unethically. The mechanism established for the declaration of an emergency by the President was not fulfilled and was abused. One such instance is the unnecessary and unconstitutional enhancement of the constitutional limit on how long an emergency can last. It has been violated in both Punjab as well as the then state of Jammu and Kashmir. However, there are several other such incidents throughout history where the provisions of the constitution are brutally abused. Considering the same, The Constitution (42nd Amendment) Act, 1976 as well as the Constitution (44th amendment) Act, 1978 was introduced. 

Additionally, the Indian Judicial System also intervened and resorted to the solution for the violations of the constitution. Hence, the need of the hour is to keep a check on the distribution of powers between the Union and the States for maintaining the balance of powers. 

Frequently Asked Questions 

Article 355 of the Indian Constitution is viewed from 2 different angles by the Indian courts, what are these?

Article 355 of the Constitution of India is from two different angles by the courts in India. The angles are as follows: 

The angle of law and order where the state has exclusive powers to make laws in matters of public order and police.

The angle of justification of emergency where the intervention by the union in state matters is justified.

Article 355 is contemplated under which part of the Constitution of India?

Article 355 is contemplated under Part XVIII ‘Emergency Provisions’ from Article 352 to Article 360 of the Constitution of India. 

Who has the power under Article 355 to invoke the emergency?

Under Article 355, the Union i.e., the government at the central level has the power to invoke an emergency. 

References


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