Governance

State Emergency in India

The controversy with regard to the emergency provisions present in the constitution has been a long lasting one. The main aim of the paper is to provide a brief analysis of the provisions relating to state emergencies. The paper will be divided into three main sections. The first will deal with a brief analysis of the emergency provisions, the second will deal with the main issues that contribute to the controversy with regard to emergencies with references to case law and finally, the last section of the paper will constitute an analysis of the emergency recently proclaimed in Arunachal Pradesh.

The emergency provisions are laid down in Part XVIII of the Indian constitution and are provisions laid down from A.352-A.360. There are three kinds of emergencies that can be declared in India which are: 1) National Emergencies 2) State Emergencies 3) Financial emergencies.

The most important article pertaining to this paper would be A.356, which deals with state emergencies. Under this article, if the governor of a state sends a report to the president stating that there has been a failure of constitutional machinery in the state and if the president is satisfied by this report that the government of the state will not be able to function in accordance to the constitution, then a state emergency can be imposed. The president can assume any or all of the functions of the state government and can also restrict the powers of the state legislature by putting it under the purview of the parliament and can make any provision that he/she deems fit in order to regain order in the state. But it is also stated here itself that the president cannot take away the powers of the High Court of the state. The procedure for imposing such an emergency is laid down within this article as well. One thing that must be clarified is that this does not mean that the state legislatures are dissolved, they are still present but they are only limited in their scope. In a situation where a state law is in contravention of a central law the latter would prevail.  A.356 is mainly based on A.93 of the Government of India act, 1935. ‘Constitutional machinery’ under this article has not clearly been defined, but a few instances that could qualify as such are political crises, physical breakdowns and internal subversions. [1]A.357 deals with the exercise of legislative powers under a proclamation under A.356.

In order to fully comprehend these provisions it is also necessary to look at the intention of the legislature while formulating them, which is clearly emphasized on in the Sarkaria Commission Report. The Constitution-framers introduced these provisions out of a necessity of ensuring order and peace within the country, there was a need to have provisions that would help in dealing with critical situations, which require control. It is also essential to keep in mind that these provisions were being debated upon at a time when the country was in turmoil. The road to democracy was not expected to be a smooth one and the constitution framers were well aware of the fact that the security of the nation shouldn’t be taken for granted.

There are several issues that have been raised with regard to emergencies on the national as well as the state level. For the purpose of this paper, the problems with regard to state emergency will be discussed in detail.A.356 is one of the most controversial as well as one of the most highly debated provisions of the constitution. According to BR Ambedkar, the chairman of the drafting committee said this provision should be used only in the rarest of the rarest cases and he wanted it to function as a “dead letter” but this provision has been used around 115 times counting the emergency that was declared in Uttarakhand this year. Ambedkar also said that if this provision was ever to be used then the President while taking such a decision must take all necessary precautions.

There are two main criticisms that A.356 faces: a) The impact that it has on the federal system. b) The impact that it has on the fundamental rights.

A.356 gives very wide powers to the Centre to interfere in matters of the state. This article enables the Centre to involve itself in matters of the state at any instance of unrest that might occur that the state might not be able to curb. This of course points to a more unitary form of a government, which becomes a part of the larger argument that this infringes the federal structure that is to be preserved. This article is meant for the Centre to interfere only when it is an absolute need to assist the state in returning to normalcy but this provision has been misutilized by ruling parties at the Centre to trump state governments that disagree with them. This article has been called anti-democratic as well. The power of the governor under A.356 has received wide criticism as he is the executive head of the state and there is no restriction that is placed on his power of sending a report to the president for such issuance which becomes a problem when one looks at the fact that the Governor can send a report any time to the president if a situation seems unfavorable. Since the landmark judgment of Keshavnanda Bharati V. State of Kerala, democracy and federalism are viewed as part of the basic structure of the constitution, which point to the fact that this article can violate both of these fundamental principles. One of the main issues with regard to this report is that it is not open to the public, which means that it cannot be scrutinized, and the reasons that the governor states were initially unknown. For a democracy, transparency is one of the most important factors and this definitely does not prove that.

This provision is very well known for the partisan use of it as the only condition that is required for the imposition would be the president’s satisfaction. This provision was misused the most during the earlier years starting from 1954 when the rule was first imposed in Punjab. Many a times when state governments would reuse to follow orders from the Centre, they would be dissolved under this article. One of the most popular examples for this would be the dissolution of nine Congress state legislative assemblies by the Janata party in 1977. When these assemblies did not agree to voluntarily dissolve the assemblies as guided by the then acting president, they were dissolved. [2] President’s rule was imposed the maximum number of times in the 1970’s and the 1980’s. This misuse of power was only curtailed when the landmark judgment of SR Bommai v Union Of India that was given in 1994 which emphasized on federalism. It was a nine-judge bench case, which laid down several guidelines for the imposition of president’s rule so that it could not be used as a tool by ruling parties to control opposition parties. It was also the first time a presidential proclamation was struck down.

The main issues that were discussed in this case was the extent of power that the president had under this article and till what extent could such a decision be judicially reviewable. The majority in this case recognized the fact that this article has the capacity to violate basic features of the condition such as democracy and federalism which is why it is necessary to look into the material or the advice that a president receives in such a matter but at the same time this can be done only through the parameters that are set out for judicial review which are irrationality, maladies and illegality.  They all unanimously agreed that this article must be subject to judicial review and emphasized on the fact that the satisfaction of the president must be on relevant considerations but at the same time the court cannot look into the merits of the material but they should look into the fact of whether such a decision was actually required. Moreover such a decision can be struck down if it is based on irrelevant or extraneous materials and if it’s malafide order. The Union in such a case is also required to submit the materials that they have based their decision on. One of the most important outcomes of this case were the guidelines that were laid out, which were greatly influenced by the Sarkaria Commission report: 1. The majority that is enjoyed by the Council of Ministers will be tested on the floor of the House. 2. The Centre must convey a warning to the state and it should be given one week to reply. 3. The court cannot question the advice given by the council of ministers to the President but only the material used.. 4. The court will provide a remedy if there has been a misuse. 5.  Article 356(3) is the limitation placed on the power. The president cannot take any irreversible action until the parliament approves the proclamation i.e. he cannot dissolve the assembly. 6. This article can only be used when there’s a breakdown of constitutional machinery and not administrative machinery. 7. This Article has to be used very sparingly by the Centre.[3]

These guidelines have since significantly curbed the misuse of this article. This article was even more limited in the case of Rameshwar Prasad v Union of India in which the only source of material that the president relied on was the report sent by the governor and the court called into the question of whether the facts that were stated by the governor were legitimate ones. The court came to a conclusion that the governor had misused the power under this article and the sole aim for his report was to stop the opposition party from coming into power and the fact that he relied on were all general assumptions so the order was struck down.

Keeping all of this in mind, it is essential to examine the emergency that was imposed in Arunachal Pradesh on January 26th, 2016. One of the main issues of this emergency was the role of the governor in issuing a report to the president under A.356. This situation again got into light the way in which this article was previously misused by ruling parties to overthrow opposition parties. The disruption in the state all started off in the month of November, 2015 when 21 MLA’S who were against the then Chief Minister Nabam Tuki (Congress) decided to skip a party meeting in order to resolve the crisis that was occurring in the state unit as there were attempts to overthrow the chief minister by then state’s former finance minister Kalikho Pul. These MLA’S had refused to attend the meeting and also struck a blow to his authority by saying that his leadership does not have any substance. Following this, in December the Governor of the state, Jyoti Prasad Rajkhowa decided to advance the assembly session from January 2016 to December 2015. This decision was taken without consulting the council of ministers, which included Tuki. He also issued directions to the House to place a motion in the house to replace the speaker Nabam Rebia. As a result of this direction, on December 16,2015, 20 congress MLA’S and 11 BJP MLA’S as well as two others impeached the speaker, this session took place in a community Centre and not the assembly. The next day itself there was a no confidence motion that was brought in by the BJP party against the state government, The former finance minister Kalikho Pul who was dismissed was elected as the legislative party leader and Tuki’s government was “voted out”.[4] All this led to so much of commotion that even the gates of the assembly were locked. When the Gauhati high court was initially considering the issue all the actions of assembly were stayed till February 2.2016 but later on they upheld the directions that were given by the Governor on January 13,2016 and the actions of the governor were said to be constitutional. The next day, the Supreme Court referred this matter to a constitutional bench due to a number of petitions that were arising out of the judgment given by the Gauhati High Court. Finally, a meeting was held between the Union Cabinet and the President on January 24th where they recommended the imposition of president’s rule in the state due to the internal affairs, and this call was taken due to report that was sent by the governor of the state. On January 26th, the president assented to the recommendation of the Union and president’s rule was imposed in the state of Arunachal Pradesh. One thing to be noted here is that this decision was taken during the pendency of the hearing dealing with the powers of the governor, which was shocking. The Congress party then challenged the imposition of the rule.

The main reasons for political unrest in the state were deemed to be the actions of the governor. There were six reports in total that were sent by the governor to the president with regard to this issue.[5] Some of the reasons that he stated in the reports were issues such as threats, an encounter with one of the council of ministers that almost led to physical assault and cow slaughter. These reports raised accusations against the chief minister of working with a Naga militant group, there were also details about the sacrificing of a bison in front of the assembly hall the same day that the issue with regard to the assembly sessions had occurred. The governor had also raised issues about how Mr. Tuki was using the youth population to protest against the governor outside his house.[6]The Supreme Court whilst hearing a petition about the validity of the rule asked for these reports. These reports were the ones that the Centre relied upon for the imposition. As laid down in the SR Bommai case, the judiciary can ask for material that the Centre has relied on for imposition of president’s rule.

The imposition of the emergency was justified on several grounds such as: a) There was turmoil within the state so there were chances of internal disturbance b) The congress government led by Nabam Tuki had been in minority for the last few months because of the breakup of the party.

The president’s rule was eventually revoked but what led to it? One February 16th, Mr. Tuki asked for an order restraining the governor from swearing in a new chief minister after the Union Cabinet recommended the revocation of the President’s rule. The attorney general in this regard raised the contention that it cannot be granted because the judiciary cannot restrain a constitutional authority from performing his duty. The Supreme Court accepted this contention but also said that the most they could was award an interim order in the way of asking for the records of disqualification of the 14 Congress MLA’S by the speaker as defectors which was raised as an argument against why the new chief minister couldn’t be sworn in because then there wouldn’t be a majority in the floor of the house as you cannot take the vote of disqualified MLA’s. But a prima facie examination of these records showed that these MLA’S were dismissed without being properly heard which led to the vacation of this order, which resulted in the revocation of the rule.

One of the most surprising elements that happened after the emergency was revoked was the fact that Kalikho Pul, the former finance Minster who was clearly against Mr. Tuki was signed on as the acting chief minister of the state with help from rebel politicians of the Congress. This government was supported by the BJP. This was one of the most controversial aspects of the political scenario in the state, which questioned the authority of the governor. The anti-defection law was also got into the picture here because of the fact that these rebel congress members were joining hands with the BJP. It is important to scrutinize this scenario as well because this situation also points out the fact that the BJP was trying to overthrow the government and install a puppet regime in it’s place.

There were two main questions with regard to this political scenario which were: a) Could the governor summon the assembly in advance and can he decide the agenda of the session which was to deal with the no-confidence motion with the Tuki government? B) The validity of the president’s rule based on this discretion, so if the first question is answered in the negative, it would also disqualify the president’s rule.

In a 331-page judgment, a constitution bench of the Supreme Court in the early month of July quashed all the orders given by the governor and termed them as unconstitutional which is the most important part of this analysis as it points out how the governor can overstep his authority. There were three separate judgments that were given by Justices Khekhar, Lokur and Misra and they unanimously quashed the order of the governor to advance the assembly sessions and described the political events as a “Thrashing to the constitution and spanking to the governance” [7] The bench stated that the governor is not an all-pervading constitutional authority and moreover he is an executive nominee and not an elected representative. He cannot use his discretionary powers to dissolve and summon sessions; it is imperative for him to take the aid and advice of the council of ministers as under A.163 (3). Not doing so is simply unconstitutional. The speaker is also not an authority that is under the Governor’s charge and he cannot advice the speaker in these matters. Moreover, the governor cannot concern himself with what happens within a political party, it is the political party’s responsibility to make decisions and he cannot interfere in their internal matters. Also, the bench pointed out that the governor has no role to play in the disqualification of MLA’S under the tenth schedule. It is a constitutional impropriety.

This situation has significantly raised the question of misuse of this article by ruling parties again, which is visible in the events that unfolded. The issuances of such proclamations must be made more stringent. It must be imperative for the Centre to prove that there was no other alternative than this particular route. Guidelines that have been laid out by the Pucchi and Sarkaria commission must be seriously considered. A concept called the ‘“localized emergency” set out in the Puncchi commission should be legally laid out which explains that the situation must be tackled at the state level without the Centre taking control.[8] This allows for a more federal approach and also allows the state to handle it’s own affairs without unnecessary interference. As stated in the Sarkaria report, there should be a prior notice given to the state so that there can be any rectification if possible instead of the Centre just swooping in. Another important guideline is that this article must be used very sparingly which is not taken seriously and it must be included in the legal framework. A.356 must be used as a last resort and must be imposed only in situations where there has actually been a failure of “constitutional machinery”. Moreover even if there does arise a situation where there is a need for the Union to deploy forces in the said state, it must still do so in a co-operative manner and must not overrule the state’s views as laid down in the Puncchi commission.[9]Legal imposition of such guidelines will help in smoothening Centre-state relations. There have been many other guidelines that must be considered but it is imperative to realize that only honest politics can resolve such issues. There has been a lot of evolvement in the way these situations are now handled but the Centre must take the concept of “cooperative federalism” more seriously and disagreement between the two units must not result in these tussles.

Author: Maithili Parimi

References

[1] Sakaria Commission. 1998. Print.

[2] Dua, Bhagwan D. “Presidential Rule In India: A Study In Crisis Politics.” University of California Press, June 1979. Web. 29th Oct. 2016.

[3] Dave, Jaimin R. “S. R. Bommai v. Union of India.” S. R. Bommai v. Union of India. Legal Service India, n.d. Web. 02 Nov. 2016

[4] Ghosh, Deepshikha. “After Court Verdict, Congress’s Nabam Tuki Takes Charge As Arunachal Chief Minister:  10 Points.” NDTV 14 July 2016: n. pag. Print.

[5] Phukan, Sunil Prabhu and Sandeep, and Anindita Sanyal. “Why Arunachal Pradesh Governor Called For President’s Rule.” NDTV.com. NDTV, 28 Jan. 2016. Web. 01 Nov. 2016.

[6] Sanyal, Anindita. “Why Arunachal Pradesh Governor Called For President’s Rule.” NDTV 29 Jan. 2016: n. pag. Print.

[7] Krishnadas Rajagopal. “SC Quashes Arunachal Governor’s Order, Restores Tuki Govt. to Power.” The Hindu [New Delhi] 13 July 2016: n. pag. Print.

[8] “President Rule: A DEAD LETTER.” N.p., n.d. Web. 29 Oct. 2016.: http://www.iasscore.in/national-details-304.html

[9] Kumar, Ajit. “M M Punchhi Commission Report on ‘Constitutional Governance and the Management of Centre-state Relation'” IASmaker.com. N.p., 21 Sept. 2013. Web. 03 Nov. 2016.