Since there is alot of talk going on President Rule in Bengal, my take on the subject which i wrote elsewhere
Do these guys even understand what president rule is? what are the conditions for the imposition of such emergency and whether the center even has the power to impose president rule on extremely weak grounds? For this we must peruse the Indian Constitution however before we peruse, we must understand one thing and that is that Constitutions are read in a flow with preceding articles providing meaning to the successive article. There is no greater dishonesty than to take an article out of context and simply start brandishing it. This is true for all legislations for example in the justice qazi faez isa judgment, the superior court used various articles preceding article 209(5) to define said article and the powers conferred within it and the same principle was applied in Income Tax Ordinance section 116. Another example would be the calls for the imposition of Article 145 In Karachi, which I highlighted could not be done due to the preceding articles defining it different. No sentence nor article can be taken out of context within the constitution.
Let us reproduce Article 356
356. 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 he 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 any body 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 any body 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 6 th 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
With the above let us peruse two more articles
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
352. Proclamation of Emergency
(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof
(2) A Proclamation issued under clause (I) may be or revoked by a subsequent proclamation
(3) The President shall not issue a Proclamation under clause (I) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a Proclamation may be issued has been communicated to him in writing
(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month 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 has been dissolved, or place during the period of one month 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
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation under clause ( 4 ); 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 it would otherwise have ceased of operate under this clause Provided further that if the dissolution of the House of the People takes place during any such period of six months an a resolution approving 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
(6) For the purpose of clause ( 4 ) and ( 5 ), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (l) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation
(8) Where a notice in writing signed by not less than one tenth of the total number of members of the House of the People has been given of, their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (l) or a Proclamation varying such Proclamation,
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or as the case may be, by the President, for the purpose of considering such resolution
(9) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not here is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation
The above two are the preceding articles to Article 356. India has a long and painful history of Center dissolving state assemblies and proclaiming emergencies in various states. It was due to this that the Courts were forced to define the powers of Article 356 since it was abused to the whims of the center.
Before we enter there let us look into Article 352, the First Article in the Chapter of emergency provisions. It sets into three main conditions for the proclamation of emergency. It can only happen when there is a grave security situation within the state and the state is engulfed in chaos and this situation happens due to the following;
Armed Rebellion
External Aggression
This is extremely important to understand that Article 352 speaks solely of external aggression or armed rebellion. Now in this article the constitution equated both armed rebellion and external aggression to be of the same severity. What does that mean? It means that the severity of the armed rebellion must be of such a nature that is equivalent of an external aggression aka in a manner that breaks down the constitutional structure of the state. Where the Center feels that the State is helpless and must be provided aid and here we come to Article 355 which contains the thread that connects 365(1) and 352 and 360 and this thread is reproduced above and it contains two major words. The duty of the state is to protect each state against
External Aggression
Internal disturbance
I am sure you have noticed that Armed rebellion has changed to internal disturbance. Did the constitution impede itself and the framers fall flat? That is not so. It may look like the constitution just impeded its own Articles like Article 239 (5) and 239(6) impeded Article 184(3) within the Pakistani Constitution 1973. The Article did exactly what a constitutions Article is supposed to do and built on the previous Article. Here it took the route of Internal disturbance to empower 365 (1) which contains emergency based on the fall out of the constitutional setup.
The first thing was that armed rebellion solely would empower the Center to dissolve opposition governments on any small matter by declaring it a state emergency and secondly not all incidents that require the Center to interfere relate solely with Invasions or Rebellion. There are incidents where the State legislature simply ceases to work. What happens when a coalition breaks down and the CM is from a minority party? What happens if a no confidence motion is passed? What happens if the CM loses control of the parliament? Where the state machinery ceases to function? Remember the Center is supposed to protect the state and not the state government. Its interference is mandated in the above situations but these are not armed rebellions nor external aggressions. Thus We have Article 355 which contains the term “Internal Disturbance” but that opens its own interpretation after all if armed rebellion could be interpreted by the state to mean any group of thieves rebelling against the state and taking control of some village as “Armed Rebellion” to remove an opposition government then so can Internal disturbance which can include the group of thieves or the state opposition protesting. It can enter many scenarios and this was the question that the Indian Supreme Court had to undertake in the landmark judgment “S.R.Bommai vs Union of India”.
If I went to explain the judgment itself then this will be too long so here we will take inspiration and the meanings of the judges and what they adjudged.
The provisions of Emergency relate to Center-State relations and here we must wonder what form of structure does India have? Does it have Central structure, Semi-Federal or Federal. The Counsels argued that the Indian Federal structure was more In line with the US federal structure which allows for vast state powers and autonomy. The Indian Court disagreed. I took inspiration from the Madras High Court judgment
M. Karunnanidhi v. Union of India where the court held
“[T]here may be a federation of independent States, as it is in the case of United States of America. As the name itself denotes, it is a Union of States, either by treaty or by legislation by the concerned 4 (1977) 4 SCC 608: AIR 1978 SC 68: (1978) 2 SCR 1 5 AIR 1977 Mad 192: (1977) 1 MLJ 182 States. In those cases, the federating units gave certain powers to the federal Government and retained some. To apply the meaning to the word 'federation' or 'autonomy' used in the context of the American Constitution, to our Constitution will be totally misleading.
The feature of the Indian Constitution is the establishment of a Government for governing the entire country. In doing so, the Constitution prescribes the powers of the Central Government and the powers of the State Governments and the relations between the two. In a sense, if the word 'federation' can be used at all, it is a federation of various States which were designated under the Constitution for the purpose of efficient administration and governance of the country. The powers of the Centre and States are demarcated under the Constitution. It is futile to suggest that the States are independent, sovereign or autonomous units which had joined the federation under certain conditions. No such State ever existed or acceded to the Union."
Here the courts pointed out that the power of the Center to make new states is a power not allowed in the US Federal structure and the center, along with other powers, is empowered a lot more than the US structure and thus must not be compared to the US Federal Structure and the courts held the opinion of various jurists which question whether India can be described as fully and strictly Federal. The Court held that India was “Quasi-Federal”.
This is important to understand since we need to grasp exactly what governs the relationship between Center and State.
With this we once again come back to Internal Disturbance. The first thing we must notice, again is the pairing. The Word “Internal Disturbance” was paired with External Aggression. This means that the term “Internal Disturbance” Cannot be treated lightly and must of such intensity that the state structure has completely broken down and the Center has no other option but to intervene. The courts defined “Internal Disturbance” to hold a larger connotation than mere Armed Rebellion and spoke of what I held that the Successive Article built on the Preceding Article but held that the emergency provisions cannot be utilized on any matter not specifically mentioned within the said Articles and the Court pointed out that the “Internal disturbance” must be a consequence of the “Armed Rebellion” aka the state machinery has broken down and the state cannot continue with its constitutional duty. This must be the consequence of the Armed Rebellion thus adjoining the thread between Armed Rebellion, External Aggression and Internal Disturbance. The courts pointed that the center cannot interfere in the state simply on any small instances of Disturbances and cannot make that the excuse to violate its constitutional authority. The evidence of this was seen in the Karnataka Emergency Proclamation whose reason was given that S.R. Bommai did not command the majority of the parliament and the president dissolved the state assembly without even providing a proper reason. This was in 1989. The Center resisted the plea against the proclamation by stating that no government could form majority government anymore and thus the constitutional state structure could not function. The Superior Court declared that the proclamation was malafide and illegal since the governor had taken no steps to ascertain the situation nor launched any investigation on allegations of horse trading nor did he contact the MLA that switched party nor formed a proper committee and simply wrote the report to the President. The Court here used this reasoning and we can see that the court is severely against any easing of the emergency procedure and here we see that the court asked the governor why he hadn’t left no stone unturned in solving the problem? The court held that the proclamation cannot be made arbitrarily and is the last resort to be undertaken when there exist no other option.
@Kaptaan @Nilgiri @Joe Shearer @Waz @Yankeestani @T-123456
