Part XVIII of the constitution deals with such a situation that arises in the state of India.

Let’s first read those provisions:

  1. Duration of State Legislatures.—(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the Assembly:

Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.

(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

Article 174(2)

(2) The Governor may from time to time

(a) Prorogue the House or either House;

(b) dissolve the Legislative Assembly

Article 355: Duty of the Union to protect States against external aggression and internal disturbance.—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 this Constitution.

Dictum:

Naga Peoples Movement vs Union of India

Reference in this context may be made to Article 355 of the Constitution whereunder a duty has been imposed on 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. In view of the said provision, the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. There can be a situation arising out of internal disturbance which may justify the issuance of a proclamation under Article 356 of the Constitution enabling the President to assume to himself all or any of the functions of the Government of the State. That would depend on the gravity of the situation arising on account of such internal disturbance and on the President being satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with provisions of the Constitution.

  1. Provisions in case of failure of constitutional machinery in State:

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the president to be 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 shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation

(3) Every Proclamation issued under this article except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation Shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People

(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operating, but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People

(5) Notwithstanding anything contained in clause ( 4 ), a resolution with respect to the continuance in force of a Proclamation approved under clause ( 3 ) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless

(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause ( 3 ) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned: Provided that in the case of the Proclamation issued under clause ( 1 ) on the 6th  day of October 1985 with respect to the State of Punjab, the reference in this clause to any period beyond the expiration of two years

Precedent:

What is an emergency?

Privy Council in Bhagat Singh and others v. The King-Emperor,(“) where the Privy Council, dwelling on the question of whether the existence of an emergency was justiciable or not observed thus :

” A state of emergency is something that does not permit of any exact definition; It connotes a state of matters calling for drastic action, which is to be judged as such by someone. It is more than obvious that someone must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision.

When and how President can declare a state of emergency?

Division Bench of the Andhra Pradesh High Court in S. R. K. Hanumantha Rao v. State of Andhra Pradesh.  It is obvious that exercise of discretion under Art. 356 by the President is purely a political matter and depends on the advice that the President gets from the Council of Ministers. The Council of Ministers is the best judge to assess the needs of the situation, the surrounding circumstances, the feelings and aspirations of the people, and the temper of the times. If on an overall assessment of these factors the Council of Ministers in their political wisdom or administrative expediency decide to tender particular advice to the President. The Courts cannot enter into this arena which is completely beyond judicial scrutiny. Even if the Chief Ministers did not think it advisable to dissolve the Assemblies, their views are not binding [ (1975) 2 A.W.R. 277 ].

Intervention of Courts

The Court does not possess the resources which are in the hands of the Government to find out the political needs that they seek to subserve and the feelings or the aspirations of the nation that require a particular action to be taken at a particular time. It is difficult for the Court to embark on an inquiry of that type. Thus, what the Constitution (Forty-second Amendment) Act, 1976 has done by adding clause (5) to Art. 356 is to give statutory recognition to the law laid down by the Courts long before.

Obiters

Under Art. 356(1) (a) the President is empowered to assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor. The power to dissolve the Assembly is contained in Art. 174(2) of the Constitution which empowers the Governor to prorogue or dissolve the Legislative Assembly. This very power by force of Art. 356(1) (a) is conferred on the President implicitly, and once this power is conferred by the application of Art. 356(1) (a) the President has the undoubted jurisdiction to dissolve the Legislative Assembly by assuming the same power which the Governor has under Art. 174(2). A Division Bench of the Kerala High Court in K. K. Aboo v. Union of India and others,(1) while interpreting this particular aspect of Art. 356 observed as follows: “Art. 356(1) (b) empowers the President, whenever he is satisfied of a Constitutional breakdown in the State, to issue a Proclamation declaring inter alia, “that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.” That necessarily implies a power to dissolve the State Legislature. No resort therefore need be had by the President to the provisions of Art. 356 (1) (a) read with Art. 172 or Art. 174 to dissolve the State Legislative Assembly. The power to dissolve the State Legislature is implicit in Cl. _(1)     (b) of Art. 356 itself”.

Article 174(2) (b) of the Constitution expressly vests the power of dissolving the legislative assembly in the Governor even if that had to be on the advice of the Council of Ministers in the State, but the power to give such advice would automatically, be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a proclamation under Article 356(1) of the Constitution. Dissolution by the President after the proclamation would be as good as dissolution by the Governor of a State whose powers; are taken ‘over. The position of the Governor as the Constitutional Head of State as a unit of the Indian Union as well) as the formal channel of communication between the Union and the State Government, who is appointed under article       155 of the Constitution “by the President by warrant under his hand and seal,” was also touched in the course of arguments before us. On the one hand, as the Constitutional Head of the State. he is ordinarily bound, by reason of a constitutional convention, by the advice of his Council of Ministers conveyed to him through the Chief Minister barring very exceptional circumstances among which’ may be as pointed out by my learned brothers Bhagwati and Iyer, JJ., in Shamsher Singh’s case, supra (p. 875) a situation in which an appeal to the electorate by dissolution is called for. On the other hand, as the defender of “the Constitution and the law” and the watch-dog of the interests of the whole country and the well-being of the people of his State in particular, the, Governor is vested with certain discretionary powers in the exercise of which he can act independently. One of his independent functions is the making of the report to the Union Government on the strength of which Presidential power under Article 356(1) of the Constitution could be exercised. In so far as he acts in the larger interests of the people, appointed by the President” to defend the Constitution and the Law” he acts as an observer on behalf of the Union and has to keep a watch on how the administrative machinery and each organ of constitutional Government is working in the State. Unless he keeps such a watch over all governmental activities and the State of public feelings about them he cannot satisfactorily discharge his function of making the report which may form the basis of the Presidential satisfaction under Article 356(1) of the Constitution. Indeed, the usual practice is that the President acts under Article 356(1) of the Constitution only on the Governor’s report. But, the use of the words “or otherwise” (in article 356) show that Presidential satisfaction could be based on other material as well. This feature of our Constitution indicates most strikingly the extent to which inroads have been made by it on the federal principles of Government.

Can Advice tendered by the Ministers to the President be inquired into?

The advice tendered by the Ministers to the President cannot be inquired into. It is also clear beyond doubt that the amended article 74(1) of the Constitution, whose validity has not been challenged before us by any party, makes it obligatory on the President to act in accordance with the advice tendered by the Union Council of Ministers, to him through the Prime Minister.  [( read conflicting views under head Powers of Court) below.]

Is it necessary to place Proclamation before each house of the parliament?

Proclamations under article 356(1)   are bound to be placed under Article 356(3) of the Constitution before each house of Parliament. Article 356(3) makes it clear that the only effect of even a failure or refusal by either House of Parliament to approve the proclamation is that it ceases to operate after two months.

The minimum period of operation of proclamation: Legality of what is done during the period:  It operates for at least two months. Hence, whatever is done in these two months cannot be held to be illegal for ‘that reason alone. It is true that the exercise of power under article 356 of the Constitution is subject to Parliamentary control. This means that it is subject to such control as the two Houses, out of which the Council of States really represents the State Assemblies, may be able to exercise during the period for which the proclamation lasts. But, the existence of such Parliamentary control, as a safeguard, cannot possibly nullify the legality of what is done in the period during which the Proclamation lasts.

Power of Courts :

The satisfaction of the President is a subjective one and cannot be decided by reference to objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is  ‘  of such a nature that its decision must necessarily be left to the executive branch of Government.  It cannot by its very

nature be a fit subject matter of judicial determination and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot, in the circumstances, go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the  Central Government is based.  That would be a dangerous exercise for the court,  both because it is not a fit instrument for determining a question of this kind and also because the court would thereby usurp the function of a   Central Government and in doing so enter the “Political thicket” which it must avoid if it is to retain its legitimacy with the people. { [ State Of Rajasthan & Ors.  vs Union of India  on 6 May 1977 [ 7 Judges bench ] }

However subsequently in the matter of S.R.Bommai vs Union of India in 1994 apex court, the larger bench [ 9 Judges Bench] held that:   if the Proclamation is approved by both the Houses within two months, the Government (which was dismissed) does not revive on the expiry of the period of Proclamation or on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval under clause (3), the Legislative Assembly does not revive on the expiry of the period of Proclamation or on its revocation. Article 74(2) merely bars an inquiry into the question of whether any and if so, what advice was tendered by the Ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. The deletion of clause (5) [which was introduced by 38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on the reviewability of the action.

Should the Central Government or the President approach State Government before proclamation?

A dispute clearly postulates that there must be opposing claims which are sought to be put forward by one party and resisted by the other.  One of the essential ingredients of Article 131 is that the dispute must involve a  legal right.  based on law or fact.   If the  Central Government chooses to advise the  President to issue a Proclamation,  the President has got no option but to issue the  Proclamation.  This manifestly shows that the  Central Government has a legal right to approach the  President to issue a  Proclamation for dissolution of an Assembly as a part of the essential duties that a Council of  Ministers has to perform while aiding and advising the  President. The  State  Governments, however, do not possess any such right at all. There is no provision in the  Constitution that enjoins that the State Government should be consulted, or their concurrence should be obtained before the  Council of Ministers submit their advice to the President regarding a  matter pertaining to the State so far as the dissolution of an assembly concerned.

State of disturbance failure of machinery explained:

Sunderlal Patwa vs Union of India on 2 April 1993

The heading of Article 356 is “provision in case of failure of constitutional machinery.” With this heading to the Article, the other important expression used is “a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution”. According to us, if the key expression “failure of the constitutional machinery in the State” and “in a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution,” are compared with Clause (I) of Article 352 of the Constitution, 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 of the Constitution. It is a proclamation intended either to safeguard against the ‘failure of the constitutional machinery in a State’ or to repair the effect of breakdown. As held in Rajasthan case (AIR 1977 SC 1361)

Dr. K. Kesava Rao vs Union of India  on 23 December 2003

Andhra Pradesh High Court held that Article 356 visualizes a situation one in the nature of the breakdown of constitutional machinery in the State, which calls for abnormal remedy provided under Article 356. The use of Article 356 can be made unless it is held that the Government cannot be carried on in accordance with the provisions of the Constitution of India. However, mere dissolution of the Assembly on the advice of the Council of Ministers cannot be a ground for invoking jurisdiction under Article 356 of the Constitution of India.

Conclusion:

Every proclamation must be strictly construed

 In S.R. Bomtnai v. Union of India, AIR 1984 SC 1918, the distinction between judicial review and justiciability was considered. Sri Justice J.S. Varma (as his Lordship then was), observed as under:

“…. There are no judicially manageable standards for scrutinizing such materials and resolving such a controversy. By its very nature, such controversy cannot be justiciable. It would appear that all such cases are, therefore, not justiciable… It would appear that in situations wherein the failure of constitutional machinery has to be inferred subjectively from a variety of facts and circumstances, including some imponderables and inferences leading to a subjective political decision, judicial scrutiny of the same is not permissible for want of judicially manageable standards. These political decisions call for judicial hands off envisaging correction only by a subsequent electoral verdict, unless corrected earlier in Parliament…”

 

Shruti Desai

2nd May 2022