State Emergency- Failure of Constitutional Machinery Article 356
Article 356 says that, “if the President, on the receipt of the report from the
Governor or even without the report from the Governor is otherwise satisfied, that
a situation has arisen in which the Government of a state cannot be carried on in
accordance with the provisions of the constitution, he may issue a proclamation of
emergency.
By that proclamation:
1. The President may assume to himself all or any of the powers vested in a
Governor or authority in the state.
2. The President may declare that the powers of the legislature of the state shall
be exercised by or under the authority of parliament.
3. The President may make such incidental or consequential charges for giving
effect to the proclamation.
The President cannot however, assume to himself, any of the powers
vested in the High Court or suspend the operation of any provisions of the
constitution relating to High Court.
When state emergency is in operation the powers of the state
legislature are to be exercised by parliament. Parliament can confer on the
President the power to make laws for the states. Parliament may also
authorise the President to delegate such powers to any other authority as
specified by himself under Article 357.
The proclamation issued under Article 356 may be revoked or varied
by the President by a subsequent proclamation.
It should be noted that satisfied in Article 356 does not mean personal
satisfaction of the Governor but it is the satisfaction of the cabinet.
The satisfaction of the President can be challenged under two
grounds,
1. It has been exercised malafidely.
2. Based on wholly extraneous and irrelevant consideration, in that
case it would be no satisfaction of the President.
Procedure:
The proclamation of emergency shall be laid before each house of
parliament and shall remain in operation for 2 months. Unless before the expiry of
the period is approved by the Houses of parliament.
Any such proclamation can be revoked or varied by a subsequent
proclamation.
If any such proclamation is issued at the time when Loka Sabha is dissolved
or dissolution takes place within 2 months and the proclamation is passed by Rajya
Sabha but not passed by Loka Sabha, the proclamation ceases to operate after 30
days from the date Loka Sabha meets.
If the proclamation is approved by parliament it will remain in force for six
months.
Parliament can extend the proclamation in force for a maximum period of 3
years.
After 44th Amendment the term of 1 year has been substituted to 6 months.
In State of Rajasthan v/s Union of India when 9 assemblies were
dissolved and the President rule was imposed on the ground that the states no
longer represented the wishes of the people. (Rajasthan, Uttar Pradesh, Madya
Pradesh, Punjab, Bihar and Hrayana)
The states filed a suit challenging the validity of the directives issued by
Home- Minister to dissolve their Assemblies and seek fresh Mandate. The
petitioner claimed for an injunction to restrain the union Government from taking
in to consideration the report of Home Minister directives.
On behalf of the Government of India, it was contended the suit under
Article 131 was not maintainable because the dispute is of Political character
regarding the continuance of council of ministers.
The court held, the satisfaction of the President under Article 356 could not
be questioned.
The President does not act on the report of the Governor but on otherwise.
This means the satisfaction can be based on material facts other than Governor
report.
If the satisfaction is malafide and based on extraneous considerations or
irrelevant consideration, court would have jurisdiction to examine.
The chief justice observed that, a healthy convention should be developed so
that the power under Article 356 is neither exercised arbitrarily or capriciously.
It is not for the court to formulate and much less to enforce a convention to
regulate the exercise of such an executive power. This matter entirely vests with
the executive.
In S.R.Bommai v/s Union of India, the Supreme Court laid down a few
guidelines to proclaim state emergency.
1. Presidential Proclamation dissolving a state legislative Assembly is subject
to Judicial Review.
2. If the state Government works against secularism President rule can be
imposed.
3. There can be no wholesale dismissal of opposition ruled state governments
when a new political party assumes power at the centre.
4. If President rule is imposed on political considerations the courts can even
resolve the Assembly.
5. Imposition of Presidents rule and dissolutions the courts can even restore the
Assembly.
6. State Assembly can be dissolved only after Parliament approves the central
rule.
7. The Supreme Court or High Court can compel the central Government to
disclose material on whose basis the President rule was imposed.
8. The power of the President under Article 356 is a constitutional power, it is
not an obsolute power.
The existence of material facts is a pre condition to form the satisfaction to
impose Presidents rule.
Financial Emergency Article 360:
Article 360 if the President of India is satisfied, whereby, the financial
stability or credit of India is threatened, he may declare financial emergency.
The proclamation of financial emergency shall cease to operate at the expiry
of 2 months unless it is approved by houses of parliament.
But if the Loka Sabha is dissolved in 2 month but approved by Rajya Sabha
the proclamation cease to operate after 30 days from the date on which Loka Sabha
sits and after 30 days, Loka Sabha approves the resolution.
During the period of proclamation, the executive authority of the union shall
extend to the giving of directions to any state and to follow canons of financial
propriety as may be specified in the directions.
Any such direction may include reduction of salary and allowance of all or
any class of persons, including judges of High Court and Supreme Court.
It may also require that all financial bills or money bill to be reserved for the
consideration of President.
The during of the proclamation will be in operation for 2 months and shall
cease to operate after 2 months.
