Emergency and the Constitution of India

D.K. SINGH
I
The Constitution contemplates three kinds of emergencies.' The most
extensive of these is a national emergency which is commenced by a procla-
mation issued by the President whereby the security of India or any part of
its territory is threatened by war or external aggression or internal distur-
banco. In the classic federations, the emergency situations, like the two
World Wars, have been adequately and effectively met by the federal
governments, with the approval of courts which gave an expansive inter-
pretation to the defence power. The makers of the Constitution drew upon
the experiences of those' federations and expressly provided for a situation
which had already come to be recognised in those countries.

In India, the emergency was proclaimed for the first time in September,
1967, when the Chinese attacked its northern borders. The proclamation
declared that a grave emergency existed whereby the security of India was
threatened by external aggression. The emergency continued until January,
1968 when it was lifted by another proclamation issued by tbe President.
Another proclamation of emergency was issued after the Pakistani aggres-
sion in December, 1971. This proclamation was withdrawn in April 1977.
Thus, during the last fifteen years emergency has been in operation for
almost twelve years. It certainly appears to be very unusual if emergency
means an extraordinary situation which necessitates taking drastic action
and disturbing the normal operation of the constitutional provisions. The
very fact that the emergency has been continued for such a long time gives
an impression that emergency provisions have not been used for the pur-
poses for which these are meant to be used. It may also be noticed that
while the emergency provisions were already in operation under the 1971
proclamation, a fresh proclamation was issued declaring emergency in June,
1975 whereby, as was explained, the security of India was threatened by the
so-called internal disturbances. Apparently, there was no need for this
declaration as all the measures which were taken by the government to
meet the 'internal disturbance' situation could have been taken under the
powers already possessed by it after tbe declaration of emergency in Decem-
ber, 1971. However, the issuance of the 1975 proclamation has anum ber
Professor, Faculty of Law, University of Delhi.
\. See articles 352 to 360, The Constitution of India; the national emergency. the
failure of cofistitutional machinery in the states and the financial emergency.
 Emergency and the Constitution of India 289
of implications, firstly, presumably a distinction may have to be made
between an external emergency or an emergency arising due to war or
external aggression and an internal emergency or jin emergency arising due
to internal disturbance; secondly, the purposes for which the emergency is
proclaimed become questionable in a court of law, so that if emergency is
declared to meet the exigencies of war or external aggression it cannot be
used for meeting the exigencies of internal disturbance; thirdly, a corollary
follows from the above that the satisfaction of the President declaring an
emergency itself becomes questionable and that the satisfaction of the
President in this regard does not mean subjective satisfaction. These
implications become directly relevant to the enjoyment of fundamental
rights guaranteed under the Constitution, though the Constitution permits
during the period of emergency the suspension of some of the fundamental
J;.ights and also the suspension of the enforcement of other fundamental
rights. They also raise the problem of power and the jurisdiction of the
Supreme Court and the High Courts in this context so much so that the
Supreme Court had to determine whether the writ of habeas corpus could
be issued for the enforcement of the right to personal liberty. To overcome
these implications, the Constitution has since been amended affirming that
the President can issue different proclamations on different grounds-war,
external aggression or internal disturbance, even if a proclamation has been
issued for a specific purpose and is in operation." A proclamation of
emergency may be revoked at any time by a subsequent proclamation.
The President can issue a proclamation of emergency not only when the
actual occurrence of the events have taken place but also when there is an
imminent danger thereof. The underlying idea of this provision is if the
actual occurrence specified is to be guarded against, it is desirable that the
power should be given when the President is satisfied that there is an
imminent danger ofany of the specified events taking piace.
The decision of the President that the security of India is threatened or
there is an imminent danger of its being threatened by war or external
aggression or internal disturbance cannot be challenged in a court of law.
He is the sole judge to decide whether in view of the specified events it is
necessary to declare an emergency. It has to be so because an emergency is
declared on the basis of assessment of the state of affairs which call for
swift and drastic action, and as such it is only the executive which is quali-
fied to take an action OIl the assessment of the information available to it.
The power to make such a declaration can no doubt be exercised only
when the President is satisfied about the necessity of taking such an action,
it does not require any condition precedent for the exercise of the power.
Whenever an emergency is proclaimed, it is presumed that the President
2. The Constitution (Thirty-eighth Amendment) Act, 1975.
290 Indian Constitution: Trends and Issues

must have satisfied himself about the existence of specified events. It is

now expressly provided by an amendment that such satisfaction is finally
conclusive and beyond judicial review.s However, it may still be argued
whether the action of thePresident in declaring an emergency or continu-
ing it can be questioned on the ground of mala fides', though it is almost
impossible to prove mala fides on the part of the President.

It must now, however, be assumed that the power of the President to

issue a proclamation of emergency can be exercised without reference to his
council of ministers. The President is only a constitutional head and he
exercises his powers on the aid and advice of the council of ministers. It
has come to light that the 1975 emergency (internal) was proclaimed by the
President only on the advice of the Prime Minister, and the other members
of the council of ministers were simply informed later of the issuance of
the proclamation as a/ait accompli. The course of action adopted in this
case is no doubt improper, but the remedy lies not in the courts but in the
collective and individual responsibility of the ministers to Parliament."
The remedy rests on the vigilance and alertness on the part of the members
of Parliament to ensure that the government in power does not misuse the
exercise of these powers.
However, there are a few in-built restrictions on the arbitrary exercise of
the power to proclaim emergency by the President. It is obligatory that a
proclamation of emergency shall be laid before both Houses of Parliament
and shall cease to operate at the expiry of two months unless before the
expiry of that period it has been approved by resolutions of both Houses of
Parliament. Thus, during the period of emergency Parliament continues
to function and exercise its control over the action of ministers. How long
a proclamation shall continue is again a matter for the decision of the
President, and it is beyond judicial review. Yet, a question may arise
whether the emergency once approved by the President can be continued
even after the specified events necessitating the proclamation disappear.
Presumably, it can be so until revoked by another proclamation on the
advice of the council of ministers. It is true that the council of ministers
is responsible to Parliament, but one crack of the party whip makes the
members of the majority party fall in line with the council of ministers,
and to that extent, Parliament is itself rendered ineffective once it has
performed its assigned function. There also does not appear to be any
legal remedy against the indefinite continuance of emergency. This was
exactly what had happened after the 1971 proclamation. The Simla Pact

3. Ibid.
4. See Ghulom Sarwar v. Union of India, A.I.R. 1964 S.C. 381,403.
S. Articles 74 (2), 75 (3), The Constitution 0/ India.
 Emergency and the Constitution 0/ India 291

of 1972 and the resumption of diplomatic relations with Pakistan in 1975 as

a deliberate step eroded tbe basis of this proclamation. But the emergency
was continued until 1977 when it was lifted only after the government in
power was ousted after the parliamentary elections.

A number of consequences follow from the issuance of tbe proclama-

tion of emergency. Firstly, the executive authority of the Union extends to
the giving of directions to any state as to the manner in which the executive
. power in the state is to be exercised. In normal situations, subject to
certain exceptions, the executive authority of the Union does not extend to
giving such directions. Secondly. the legislative power of the Union extends
to matters enumerated in the State List. Simultaneously, Parliament
acquires the power to make laws conferring powers or duties on officers
of the Union Government in respect of matters, which may fall within the
legislative or executive competence of the state government. Thirdly, the
President may by order alter the financial arrangements between the state
and the Union as worked out in the constitutional provisions.

During the period of emergency, the fundamental rights guaranteed to

the citizens are adversely affected. The rights guaranteed in article 19, such
as the freedom of speech and expression, freedom to move throughout the
territory of India etc., are automatically suspended, and both the legislature
and the executive come to possess authority to make laws or to take any
executive action in deregation of article 19.' During the period of emer-
gency or thereafter, a citizen cannot challenge the validity of a law or any.
action taken thereunder on grounds of violation of the rights guaranteed
by this article. The proclamation of emergency, however, does not operate
to validate a legislative provision which was invalid before the proclamation
of emergency," The President is also invested with power to issue an order
declaring that the right of any person to move any court for enforcement
of any of the fundamental rights, as may be specified, shall stand suspended
during tbe period of proclamation of emergency." Until recently there was
a difference of opinion whether things done and laws made in contravention
of the fundamental rights guaranteed by tbe Constitution may be cballenged
in a court by appropriate proceedings after the emergency is lifted. This
position has now been made clear by an amendment to the Constitution
which deprives a person of a remedy for the enforcement of his fundamental
rights altogether"

6. Article 358.
7. See. e.g., Bennett Coleman & Co. v, Union of India (1973) 2 S.C.R. 757.
8. Article 359, The Constitution 0/ India.
9. Supra Dole 2.
292 Indian Constitution : Trends and Issues

Following the proclamation of emergercy in 1962 in the wake of

Chinese aggression, the President issued an order suspending the enforce-
ment of the fundamental rights to life and personal liberty and against
arbitrary arrest and detention and also the right to equality, but only if a
person was deprived of his rights under action taken in the exercise of his
power by the executive in accordance with the Defence of India Rules
promulgated during the emergency. But the presidential order issued in
1975 to deal with internal disturbances was formulated in the broadest terms
and barred totally the right to move any court for the enforcement of the
rights of a person. On a challenge to the 1962 presidential order and the
rules made thereunder, the Supreme Court took the precaution of pointing
out that a detenu would not be deprived of his right to move the
appropriate court for a writ of habeas corpus on the ground that his
detention has been ordered mala fide. It was futher pointed out that
notwithstanding the presidential order, and the rules made thereunder, a
detenu is entitled to question the executive action on grounds, such as,
excessive delegation." However, in 1975, the Supreme Court, accepting
the state's argument, construed the order of 1975 so widely as to bar the
citizen altogether from questioning a detention order even on the grounds
of malafides or sheer illegality. So a whole set of unprecedented restrictive
legislation had been enacted followed by the passing of the Constitution
(Forty-second) Amendment, f976.

The founders of the Constitution regarded the rights as fundamental

and gave them such primacy as to declare that the State shall not make any
law which takes away or abridges these rights. The Supreme Court and
the High Courts were given original jurisdiction to enforce these rights and
any person aggrieved in this regard could move the Supreme Court or the
High Courts for appropriate remedies in the form of writs. To make these
rights really fundamental, the right to move the Supreme Court for the
enforcement of fundamental rights itself was raised to the status of a
fundamental right.'! Thus, the suspension of these fundamental rights or
the right to move the Supreme Court for their enforcement as a
consequence of the proclamation of emergency should be viewed as an
exceptional measure to be used only in times of national distress. That
this power would be misused or abused for improper purposes was beyond
the contemplation of the makers of the Constitution. After all, no political
system can be devised on the assumption that the political power would be
misued or abused, and the lesser, men might utilise these powers to establish
authoritarian and arbitrary rule.

10. Makhan Singh v. State of Punjab, A.1. R. 1964, S.C. 381.

II. Articles 32 and 226, The Constitution of India.
 Emergency and the Constitution of India 293

A review of the past events have amply made clear that the emergency
provisions can be used in such a manner as may make a farce of the
democratic set-up by prolonging the rule of the party in power beyond the
permissible period. The misuse or abuse of the emergency provisions is
no more a theoretical proposition. It is true that the grant of power is
based on the assumption that it would not be misused or abused. It is
also true that the effective check against such misuse or abuse of power is
the sense of political responsibility, the pressure of public opinion, and the
fear of public uprising. But the conferment of enormous power coupled
with total immunity from judicial review invest it with dangerous uniqueness,
as has been the recent experience. Recently, a proposal has been made by
the Home Minister on the floor of the Parliament to repeal the power to
declare emergency altogether from the Constitution. This is one of the
several proposals which have come into circulation in order to put some
kind of limitation on the declaration of emergency and its continuance there-
after under the existing provisons. The proposal not only strikes out the
power to invoke emergency under any circumstances whatsoever but also
wishes to make sure that no government is in future in a position to repeat
what has happened during the period of internal emergency proclaimed in
June, 1975 and the subsequent nineteen months. While this affirmation of
faith in democratic institutions and the efficacy of normal law of the land
in a difficult situation is welcome, it is pertinent to remember that these
separate issues should not be treated as if they were one and the
same. It is true that tbe former regime abused the emergency provisions
in a variety of ways, but it does not follow that the makers of the
Constitution were wholly mistaken in the belief that the Indian constitutional
system might not be able to face emergency rights. However, it was not
envisaged that there might be a President who would sign an emergency
proclamation without even making sure that the cabinet had approved it or
the cabinet which would be so supine as to acquiese in the imposition of
the emergency for the sole purpose of helping the Prime Minister to defy
established conventions. The makers of the Constitution could not, there-
fore, provide for safeguards which would have made it impossible for a
Prime Minister to misuse or abuse the emergency provisions. But in the
light of recent experience it should now be possible to introduce reasonable
in-built safeguards into the existing constitutional framework by way of
amendments, such as:
(i) The proclamation of emergency may be issued by the President, not
on the aid and advice, but in consultation with the council of
ministers, so that the President is equally responsible for taking the
decision.

(ii) The proclamation of emergency may be made subject to the

294 Indian Constitution: Trends and Issues

approval by both Houses of Parliament by a majority of not less

than three-fourths of the total membership of the House of the
People within fourteen days from the date of the proclamation.
(iii) Any continuation of emergency beyond a period of three months
should be made subject to affirmative resolution passed by a
majority of not less than three-fourths of the total membership of
the House of the People, so that the emergency does not continue
for an unlimited period at the arbitrary discretion of the executive.
Such a resolution should be passed every three months for
extension of the duration of emergency.

According to the existing provisions, the emergency .may be proclaimed

whereby the security of India is threatened by 'internal disturbance'.
'Internal disturbance', however, must be comparable in gravity to the repell-
ing of external aggression. Otherwise, 'internal disturbance' by itself may
mean to include all kinds of problems of law and order ranging from public
disorder to threat to the security of a state. This is made amply clear by
the use of the word 'grave' preceding the word 'emergency' in clause (I) of
article 352. And it should be so, keeping in view the serious fall-outs of
the declaration of emergency on the functioning of the government, the
transformation of the union-state relations and above all the encroachment
on the fundamental rights of citizens. Moreover, the maintenance of law
and order within a state is primarily the responsibility of the state govern-
ment and it would be an unjustifiable interference with the state's autonomy
. if the Central Government could intervene on a slight pretext. However,
this is a unique feature of the Indian Constitution where unlike other federal
constitutions, external and internal emergencies have been dealt with on an
equal footing with identical consequences. For example, in U.S.A., in the
case of domestic violence Which may go even to the extent of creating a
situation amounting to taking measures on a war-footing, the Central
Government has no power to intervene unless requested to do so by the state
legislature or by the executive if the legislature is not in session.
After having the experience of the last emergency which was proclaimed
due to internal disturbance, a suggestion has been made for the deletion of
the expession 'internal disturbance' in clause (I) of Article 352. There
appears to be some merit in this suggestion if a close look is made at other
relevant provisions in the Constitution in this context. To deal with
problems of law and order, the relevant constitutional provisions which
attract attention in this context are as follows:
(i) Under article 356, the President's rule may be imposed in a state if
the President is satisfied that the government in a state cannot be
carried on in accordance with the provisions of the Constitution.
 Emergency and the Constitution of India 295
It is now formally established that if the problems of law and order
in a state have assumed proportions so as to be beyond the resour-
ces of the state government. it may be said that a situatton has
arisen which warrants the intervention of the President under
article 356. In such a situation, once the President's rule is imposed
in the state, the Union Government can deal with 'internal distur-
bance' through the law enforcement machinery at its command
coupled with the necessary powers available under the preventive
detention law.
(ii) The imposition of President's rule in a state is a serious matter as
it brings about suspension or dismissal of the government of a
state in power even when the government commands the confidence
of the legislature elected directly by the people. However, short of
taking action under article 356, the Union Government can deal
with 'internal disturbance' by carrying out its duty imposed upon it
by virtue of article 355, which imposes on the Union Government a
duty to protect every state against external aggression or internal
disturbance and to ensure that the government of every state is
carried on in accordance with the provisions of the Constitution.
For example, armed forces or the Central Reserve Police can be
despatched to a state if the state fails to give adequate protection to
the Central Government agencies in the state so that these may keep
on functioning normally or fails to protect Central Government
properties in the state against destruction by agitators or strikers,
in spile of articles 256 and 257. Reading articles 3.55 and 356, it
may be said that they are complementary to each other. In U.S.A.,
the Supreme Court bas upheld the right of the President to intervene
anywhere by the use of federal troups, if necessary, when distur-
bances in a state reach such a proportion as to interfere with the
national services." In 1963, the Federal Government deployed
national militia to deal with racial disturbances in Little Rock and
to secure compliance with the decision of the government on racial
integration though much against the wishes of the state concerned.
In Switzerland, the Federal Authority is empowered to intervene on
its own initiative if disorder within cantons endanger safety of the
Nation.
(iii) If the maintenance or restoration of law and order in any area
within the territory of India have assumed such proportions that
these cannot be effectively dealt with by the civilian government
with the resources at its command and the situation warrants imme-
diate action, martial law can be enforced and any excesses or
12. Supra note 2.
296 Indian Constitution : Trends and Issues

illegalities committed during that period may be legalised by

passing an Indemnity Act by virtue of article 35.
The above provisions in between themselves give sufficient powers to
the Union Government to deal effectively with 'internal disturbance' inclu-
ding the grave situation whereby the security of India is threatened. It
could thus be argued that the deletion of 'internal disturbance' in clause (I)
of article 35:! may not make such of a difference in this connection. On
the other hand, the misuse of power assumed by the Union Government in
consequence of the declaration of emergency may also not arise.
Finally, it is suggested that article 358 should be deleted from the
Constitution altogether. The automatic suspension of fundamental rights
enshrined in article 19 is an extreme step which should be the last resort in
any situation. It is true that in order to meet a certain emergency situation,
it may become necessary to suspend the operation of article 19 and deprive
the citizens of their basic rights. But that does not necessarily mean that
it should always be the case. Deprivation of the rights of citizens is a
serious matter, and every effort should be made to see that the citizens
should continue to enjoy their rights in so far as it is possible for the
government to deal with a situation without in any way compromising with
the taking of adequate or effective measures. It is all the more so, if it is
realised that the operation of emergency proclaimed under article 352 can
be confined to a part of the territory of India. if necessary. Moreover,
under certain situations it may also not be necessary to suspend all the
seven rights guaranteed under article 19, and the suspension of one or a few
of them may be adequate to deal with the situation.

Reading articles 358 and 359 together one finds that with the
proclamation of emergency under article 352, fundamental rights such as the
right to acquire, hold and dispose of property or the right to practice any
profession etc. arc automatically suspended, whereas the suspension of other
rights such as the right to liberty are left to be dealt with at the discretion
of the President. This differential treatment of the rights in itself is not a
desirable proposition, besides the fact that there may be a genuine difference
of opinion as to the automatic suspension of all the rights or some of them.
If it is agreed that article 358 should be deleted, article 359 can take care of
all the rights guaranteed in article 19 in the same manner as is the case with
other rights, and the suspension of the right to move a court for the
enforcement of these rights may as well be left at the discretion of the
President, who may take such action as is necessary, in his opinion, to meet
the demands of the situation.

These suggestions cannot be foolproof but nothing can be foolproof in

such matters as basically the decisions are taken to a great extent based on
 Emergency and the Constitution of India 297

political expediencies. Indeed, a Constitution, however perfect, cannot by

itself ensure the survival and the health of democratic institutions. That
calls for vigilant people capable of subordinating personal and sectional
interests to the greater public good and political parties alert to the designs
of scheming leaders and able to resist attempts at concentration of powers
in one person or a clique. Perhaps, on the basis of experience of classic
federations in dealing with external domestic threats, it can be argued that
India has no need to retain the emergency provisions in its Constitution
under even strong safeguards against its possible misuse or abuse. But a
country like 1ndia can face greater difficulties than ever anticipated in the
past, and the government may genuinely need special powers to deal with
them. India is both a developing country and a democracy, and the
problems it has to face vary greatly from those prevalent in the classic
federations. Though there is some merit in the proposal tbat the emergency
provisions should be deleted from the Constitution and fall in line with
other federal countries, that does not clinch the issue. That will put very
heavy responsibilities on the Supreme Court, and one may not be able to
say with certainty whether the Indian Supreme Court will rise up to the
expectations to meet the challenge and deliver the goods. There is another
factor which may also be related to the experience of other developing
countries which are ruled mostly by dictatorial or semi-dictatorial regimes
and may have its own repercussions on the Indian scene. Any drastic
change in the basic framework of the constitutional set-up in India at this
stage would also be creating a situation which is quite likely to get out of the
context.
II
Another set of provisions under the head of emergency provisions
empower the President to impose President's rule in a state. In the
exercise of this power the President can assume to himself all or any of the
functions of the state government and all or any of the powers exercisable
by the governor or anybody or authority in the state, and declare that the
powers of the state legislature shall vest in Parliament. The duration of
such a proclamation is two months. However, after ratification by Parlia-
ment it can be continued for six months. It can be extended further by
Parliament with an outside limit of three years. The President's satisfaction
in this regard again is final and conclusive and beyond judicial review.P
The President may issue such a proclamation if he is satisfied that a
situation has arisen in which the government of the state cannot be carried
on in accordance with the provisions of the Constitution. For example,
the exercise of executive power of the state in derogation of the provision

13. See, e.g., in Re Debs 158 U.S. 564 (1894)

298 Indian Constitution : Trends and Issues
of the Constitution, which puts an obligation on the state executive to
comply with the directions issued by the Union Government may provide
for a situation in which such a proclamation may be issued. Another
situation may arise if a stable ministry is not found possible due to political
uncertainties in the state assembly, or inability to find a leader acceptable
to the majority of the members in the state assembly; such situations arise
if there are a number of parties which do not have a clear majority in the
assembly and they are not able to come to some sort of a compromise to
from a coalition government. There have been several occasions for
resorting to the President's rule, and on most occasions it has been due to
circumstances in which a stable ministry could not be formed.
During the President's rule in a state, a state assembly may either be
dissolved or suspended. If the state assembly is dissolved, steps are taken
to have fresh elections for constituting a new legislative assembly in the
state. During the period the President's rule is in operation, Parliament is
empowered, (i) to confer power on the President for making laws for the
state and to authorise him further to delegate to any authority, (ii) to
authorise the President or any other authority on his behalf for making laws
and imposing duties upon the Union and its officers and authorities, and
(iii) to authorise expenditure from the Consolidated Fund of India when
the House of the People is not in session.
So far there have been about forty occasions when the President's rule
was imposed in several states. But there are three situations which require
special mention. One was in the State of Kerala in 1959. Though the
Communist Ministry enjoyed the majority in the legislature, the President's
rule was imposed as it was thought that there was a state-wide movement
where all the people except communists belonging to the various political
parties, religions and creeds joined hands to safeguard the democratic
rights, which, it was claimed, were being destroyed by the Communist
Government which had been functioning in a partisan manner and pursuing
discriminatory policies. The political situation in the state at that time was
full of hatred, violence and created problems of law and order which
assumed proportions so as to disrupt the normal life in the state. The
advice tendered by the Union Government to the state ministry to hold
fresh elections was not acceptable. Thereafter, the President intervened
and imposed the President's rule. A constitutional question was raised at
that time as to whether the President's rule could be imposed when there is
a ministry properly constituted and commanded the majority in a
legislature. On the other hand, the President's action was sought to be
justified on the ground that the situation of Jaw and order in the state
assumed such proportions as to be beyond the resources of the state, and
it was a situation which warranted an intervention of the President.
 Emergency and the Constitution of India 299

The phrase 'in accordance with the provisions of the Constitution' was
interpreted as referring to all provisions of the Constitution, including its
preamble wherein the people of India have resolved to constitute India into
a democratic republic, and if any action of the ministry, or party in power,
amounts to subversion of the democratic principles, a situation is thereby
created providing an occasion for invoking the President'S rule. However,
the imposition of President's rule on this occasion received the approval of
Parliament. Even otherwise, the better opinion appears to be that the
President's rule can be justified if he is satisfied that the ministry has lost
the support of the people, even if it enjoys the confidence of the legislature,
at any rate, so long as the decision is taken on reasonable and proper
grounds. A similar situation arose in Gujarat in 1974 when the President's
rule was imposed after a situation of law and order was created due to
students' agitation, resignation of a sizeable number of the members of the
State Assembly, and hunger strike by Morarji Desai.
Another unusual situation created for the imposition of the President's
rule was in the State of Haryana, where the ministry appeared to be
enjoying the confidence of the majority, though precarious, of members of
the State Assembly. On receipt of the report of the Governor, the
President'S rule was imposed. It was revealed in the Governor's report
that due to defection of the members of the state assembly on a large scale,
their loyalty being flexible, and abuse of power by ministers resulting in
political instability in the state, no alternative ministry could be. formed. It
was mentioned that even if the ruling party or the opposition could establish
its majority, still there was no peace or stability. These circumstances were
sufficient to warrant the imposition of the President's rule in the state.1f,

This year an unprecedented situation arose in nine states after a total or

almost total rejection of candidates put up by the ruling party in the recent
parliamentary, elections. As a result, it was argued that it could no longer
be assumed that in these states the legislative assembly and the council of
ministers, which belonged to the ruling party, continued to reflect the views
or wishes of the electorate. The parliamentary elections after the nineteen
months' internal emergency was said to be not an ordinary election. It was
a revolution. It was pointed out that a climate af uncertainty was
prevailing in the states where the Congress Party was routed. A sense of
diffidence had been created at .different levels of administration. People
at large no longer respected the propriety of the Congress Governments in
those states continuing without seeking a fresh mandate from the electorate.
On the other hand, doubts were raised if the President's rule was to be
imposed on grounds, such as, running counter to the spirit of federalism

14. Rao BirelldraSi1lgh v, Union of India, A.I.R. 1968 P. & H. 441.

300 Indian Constitution: Trends and Issues

which permitted different ruling parties at the Centre and in states, calling for
resignation of ruling party's Members of Parliament if the states they came
from returned no Janta Party governments. However, the President's rule
was imposed in those states, the state assemblies were dissolved, and an
announcement was made seeking a fresh mandate from the people. Several
reasons were given for justifying the action of the President:

(i) It is possible that in a federal polity, issues facing the electorate in

the assembly elections differ from the issues in the Parliamentary
elections. But the situation in the Parliamentary elections was
very different as national and state policies were indistinguish-
able during the emergency, and these very policies became the
principal issues during the Parliamentary elections, and were
rejected by the electorate almost wholesale. It was regarded as
an unequivocal expression of lack of confidence also in the state
governments.
(ii) The primary issues before the electorate concerned the excesses and
abuses committed during the emergency by the states, committed
on their own, as well as under the direction of the Union Govern-
ment, the suppression of all human rights and freedoms without
any remedy by the states as well as the Union governments and
the manner of the implementation of their various policies and
programmes. The unmistakable rejection of these policies made
it clear that the state ministries no longer enjoyed the confidence of
the electorate.
(iii) Where there are reasons to believe that an assembly in the state
no longer represents the sense of the electorate, a fresh appeal to
the electorate becomes necessary and obligatory. A ministry
enjoying the confidence of the state assembly does not have a right
to continue in office unless it is demonstrably clear that it continues
to enjoy the confidence of the electorate as well. The recent
Parliamentary elections gave clear indications that the assemblies
and the ministries no longer enjoyed the confidence of the elctorate,
(il') A climate of uncertainty and widespread sense of diffidence at all
levels of administration had come to exist in these states as mani-
fested in the wanton haste with which decisions of considerable
importance were taken in different states in utter disregard of
financial and administrative proprieties and consequences. Besides,
the handling of the law and order situation gave rise to serious
threats to the security and stability in these states. An inde-
finite continuance of ministries in these states would make the
situation worse.
 Emergency and the Constitution of India 301

(v) When there is no harmony between the electorate and its represen-
tatives, the essential feature of the government being carried on in
accordance with the provisions of the Consitution would be found
missing. The lack of harmony has perceptibly led to the break-
down of responsibility, authority and confidence in these states.

In the last situation, the Centre did not even secure reports from the
Governors to the effect that governments in the concerned states could no
longer be carried on according to the provisions of the Constitution. The
Union Government itself willfully took the decision to impose the President's
rule in these states.

Since 1959 when the Communist Ministry was dismissed in Kerala, it

has been evident that a state government has no protection against the
Centre if the latter chooses to act arbitrarily. So far this had not aroused
much concern because until recently the Congress Party had been in power
both at the Centre and in most of the states. Now that the Janata Party
has almost replaced the Congress at the Centre and also in the states, the
situation in which the President's rule may be imposed has become complex.
It has become necessary to tackle this problem specially when the Supreme
Court cannot offer any protection to a state government at odds with the
Centre for no faults of its own. 15 It is not altogether surprising that the
existing norms established by the Constitution and conventions should have
come under a strain because no one could have anticipated the outcome of
the last Parliamentary elections. But the constitutional provisions in this
regard have been fully exposed bringing out their lacunal which will need
to be attended to if the federal nature of the polity is to the maintained. Re-
asonably well defined norms have to be evolved for the guidance of the
Union Government rather than it be guided by the elusive considerations.
It is suggested:
(i) The President's rule may be imposed by the President, not on the
aid and advice, but in consultation with the council of ministers.
(ii) The imposition of the President's rule may be made subject to the
approval of the House of the People by a majority of not less than
three-fourths of the total membership of that house within a fort-
night from the date of the proclamation.
(iii) Until the approval of the President's rule by the Parliament the
state legislature should be kept in suspension.
(iv) Any decision to keep the state assembly in suspension or to dissolve
it should be made subject to the approval of the House of the

J 5. State of Rajasthan v. Union of India, A.I.R. J977 S.c. 1361.

302 Indian Constitution: Trends and Issues

People by a majority of not leas than three-fourths of the total

membership of that House.
(v) If the state assembly is kept in suspension beyond a period of six
months, it should be made subject to judicial review so that the
President's rule docs not continue for an unlimited period at the
arbitrary discretion of the executive.
These suggestions again cannot be foolproof, and, ultimately. much
will depend upon the growth of healthy conventions in the working of the
constitutional machinery in this regard. Important as are constitutional
provisions, and also legislative measures, in themselves, equally important
are the needs to strengthen the democratic process in our body polity.