As we know that Indian Constitution is considered to be the lengthiest Constitution all over the world, there is nothing to be wondered about the complex characteristics of this Constitution. The basic reason of this complex nature can be said that its characteristics were borrowed from other foreign countries. For examples, the concepts of Parliamentary democracy, rule of law and Bicameral legislature were borrowed from UK; the concept of suspension of Fundamental Rights during the time of Emergency was borrowed from Germany, and centrifugal form of federalism where the center is stronger than the states was borrowed from Canada, etc. In spite of being borrowed from other countries, the Indian Constitution has some unique characteristics.
Concept of Federalism in the Indian Context:
Now, the question comes whether the Constitution of India refers to a Federal or Unitary form of Government. Many eminent jurists gave their opinion about this. But, it is quite difficult to put our form of Government in the strict mould of Federal or Unitary form of Government.
K.C Whear rightly described it as “Quasi Federal, but not strictly federal”. So, it can be truly said that it is a conglomeration of both the features of Federal and Unitary. It is because of that it consists of a ‘Unitary State with subsidiary Federal features’.
In the broader sense, it would be appropriate to say that “the Indian Constitution is Federal in Structure and Unitary in Spirit.” Even the Chairman of the Drafting Committee, Dr. Ambedkar had thus rightly clarified that, “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances”. That’s why throughout the Constitution, India has been described as ‘Union of India’, not ‘United States of India’.
‘The Drafting Committee wanted to clarify that though India was a federation, it was not the result of any voluntary agreement between the States. Though the country is divided into many States, it is basically for administrative purposes which do not in any way affect its functioning as an integrated unit’. The same was observed in the case State of West Bengal vs. Union of India by the Hon’ble Supreme Court of India that decentralization of authority in India was primarily to facilitate smooth governance of a large nation and therefore, it contains many centralizing features also.
Indian Constitution is not a ‘traditional federal constitution’. If we briefly discuss some of the basic features of the Indian Constitution, it will be easier to understand this concept and in the end, we will surely find out a suitable conclusion to decide the topic- “Do Emergency Provisions modify the Federal Character of Indian Constitution?”
Indian federalism is mainly designed on the working of federalism in Canada, the USA, and Australia. It has some features of Federal as well as the Unitary Government mentioned below-
Basic Features of Federal Government:
1. Division of Powers:
If we look at the 7th Schedule of the Constitution of India, it refers to 3 types of lists- I. Union List, II. State List and III. Concurrent List. There are some powers that are vested in Central Government, some powers are vested on State Governments and some powers are also vested in both the Central and State Governments.
2. The supremacy of the Indian Constitution:
All the laws and authorities throughout India must be in true allegiance to the Constitution of India as the Supreme law of the land. If any law, passed by the legislature contravenes any part of the Constitution, the Supreme Court has the power to declare that particular law as Unconstitutional.
3. Dual forms of Governments:
There are 2 types of Governments – one Central Government at the Centre and other State Governments at the respective states. They both are vested with their powers and responsibilities.
4. Independence of Judiciary:
Independence of the Judiciary is considered to be one of the most important features of the Federal structure of the Constitution. There are 4 tires of Courts throughout the Country and they all enjoy their respective powers. There are 25 High Courts in the respective States and those serve as the Court of Records. There is also a Supreme Court that has the highest Constitutional authority to safeguard our fundamental rights.
5. Bicameral form of the legislature:
There are 2 types of legislature in India. One is at the Centre consisting of 2 houses namely Lok Sabha and Rajya Sabha. There are also state legislatures in the States. They all enjoy their respective powers to make legislation as per the powers conferred by Constitution.
Basic Features of Unitary Government:
1. The procedure of Constitutional amendments:
In case of initiating Constitutional amendments, only the Central Government is vested with this power. State Governments can’t initiate such amendments.
2. All India Services:
Only the Union Government can implement any All India Service.
3. Inequality in State Representation:
Unlike other federal states, representation in the legislature is not on an equal basis.
4. Deployment of Armed Forces:
The Union Government can deploy armed forces without the consent of the State Government.
5. Emergency Provisions:
The Emergency Provisions includes 3 types of Emergencies as contained in Part XVIII of the Constitution of India –
(i) Article 352 of the Indian Constitution – National Emergency in case of external aggression or war and internal disturbances.
(ii) Article 356 of the Indian Constitution- President’s Rule or State Emergency in case of failure of constitutional machinery in States.
(iii) Article 360 of the Indian Constitution- Financial Emergency.
Effects and Impacts of Emergency Provisions on Federal Structure of Indian Constitution:
As we know that the power to proclaim any of the above-mentioned Emergencies only lies on the Union Government, there are sufficient loopholes through which the Centre can impose President’s Rule in any of the States forcefully without the consent of the State.
Thus sometimes the Emergency provisions create harmful impacts on the federal character of the Indian Constitution. For this reason, the Emergency Provisions have been misused several times in history. It happens especially in the case of the Proclamation of President’s Rule under Article 356. The main reason for the misuse of this provision is that sometimes the Union Government imposes such Emergency for their political gain dominating the voice of the State Government.
If we look back at the President’s Rule imposed by the Central Government led by Bharatiya Janata Party (BJP) in the year 2016 on the Congress-ruled State of Uttarakhand on the ground of failure of Constitutional machinery. Later it was challenged in Uttarakhand High Court and consequently, the President’s Rule was overruled by the High Court in the case Harish Chandra Singh Rawat vs. Union Of India And Another.
In another very notable case S.R. Bommai vs Union Of India to prevent the blatant misuses of the proclamation of this State Emergency under Article 356, the Supreme Court issued some guidelines which must be followed to proclaim such an Emergency. The bold steps taken by the Supreme Court were admired by many eminent jurists. Former Solicitor General and eminent Indian jurist Soli Sorabjee said, “After the Supreme Court’s judgment in the S. R. Bommai case, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed”.
As because during the time of the proclamation of this Emergency, the Centre acts like a Unitary form of government, it is obvious that using Article 356 without any sufficient and reasonable grounds will be an attack on the federal structure of the Constitution of India. Thus judicial review forms a very essential part to proclaim the Emergency provisions to check whether there is any mala fide intention in the proclamation of an Emergency. It must be always ensured that the Emergency has been proclaimed as the situation really demands.
Article 356 states that the President is satisfied with the reports of the Governor of the State that there is a situation where the Constitutional machineries are unable to act in accordance with the provisions of the Constitution may proclaim President’s Rule. It must be passed by parliament. It has the following impacts-
- The President assumes the power to himself all or any of the powers or functions of the State Government other than the power of the High Court.
- The President can declare that the powers of the State legislature shall be exercisable by or under the authority of the union parliament.
- The President can make necessary provisions for giving effects to the objects of the proclamation.
As an exception of the powers of the President mentioned in Article 356 during the time of State Emergency, President does not have the power to assume the powers vested on the High Court to himself or cannot suspend in whole or in part of the operation of any provisions of the Constitution of the High Court.
“When a state is under President’s Rule, the elected state government (led by the Chief Minister and the Council of Ministers) is dismissed and Council of ministers is suspended at the legislature, and administration is conducted directly by the Governor of the state. The Governor is an appointee of the President and thus, effectively, a functionary of the Union Government (the central or federal government). Thus the imposition of President’s Rule negates the federal character of the Indian political system, where administration usually is shared between the Union and State governments. It also militates against the democratic doctrine of popular sovereignty, since an elected government is suspended. These reasons have made use of Article 356 controversial. Nevertheless, it was used repeatedly by central governments to suspend state governments (of opposite political parties) based on genuine reasons or trumped-up excuses.”
“The Sarkaria Commission which was appointed to review the Centre–State relations also recommended that Article 356 should be used only as a last resort. The Commission also suggested that the State Legislative Assembly should not be dissolved unless the proclamation is approved by the Parliament. It further suggested that all possibilities of forming an alternative government should be fully explored before the Centre imposes emergency in a State on grounds of breakdown of Constitutional machinery.”
Even though the President’s Rule was imposed in many cases on mainly political grounds and criticized by many eminent jurists, there are also some instances where it was imposed as the situation really demanded. In the case- State Of Rajasthan & Ors. Etc. Etc vs Union Of India, a seven member’s Constitution bench of the Supreme Court unanimously rejected the petitioner petition and upheld the Centre’s action of dissolving three assemblies under Article 356 as constitutionally valid.
If we keep a view on National Emergency under Article 352 of Indian Constitution, it deals with such a Constitutional provision to be applied, whenever the President is satisfied with the fact that a grave emergency exists because of the threat on the internal peace, security, stability and governance of the country or a part thereof. It ordinarily happens at the time of war, external aggression, or internal rebellion. It also must be passed by parliament. The impacts of the National Emergency are-
1. The Federal form of the Government transforms into the Unitary form of Government. The authority of the Union Government increases and the parliament assumes the power to make laws for the whole country or a part thereof even on those matters which are mentioned in the State list as per the 7th Schedule of Indian Constitution.
2. President assumes the executive power of the States and can issue directions on the States in the exercise of the executive power and modify the provisions of distribution of revenues between the Centre and States.
3. During this Emergency, the Lok Sabha can extend tenure by a period of 1 year at a time. But the same cannot be extended beyond 6 months after the proclamation ceases to operate. The tenure of State Assemblies can also be extended in the same manner.
4. The Fundamental Rights under Article 19 are automatically suspended and this continues till the end of Emergency as per Article 358.
The question of misusing this provision has also been raised several times and judicial review became very essential to decide the questions. The 38th Constitutional Amendment in 1975 ignites the questions more because Clause 5 was inserted to Article 352 saying that the ‘satisfaction’ of the president as used in Article 352(1) and (3) is to mean “final and conclusive” and “could not be challenged in any court of law”. Thus the process of judicial review which is one of the basic structures (as per the Basic Structure Doctrine, formulated by Supreme Court in the landmark case Kesavananda Bharati vs. State Of Kerala And Anr) of Indian Constitution as held by the Supreme Court in the famous case Minerva Mills Ltd. & Ors vs. Union Of India & Ors is violated.
The discussion of abuse in proclaiming remains incomplete without mentioning the most controversial National Emergency proclaimed by Indira Gandhi led Congress Government in 1975 bringing 42nd Constitutional Amendment which is well known as ‘Mini-Constitution. In this period, there was a violation of the fundamental rights of the people on a large scale; drastic press censorship was imposed. A large number of persons were put in preventive detention without justification. By the 44th Amendment, later on, the provision of Article 352(5) inserted by the 38th Amendment to the constitution was revoked.
Therefore the present position on this matter is that it is up to the Supreme Court to decide whether it will treat the ‘satisfaction’ of the president to issue a proclamation of emergency, or to vary it or to continue it, as ‘final’ and ‘non-justiciable’, or as being subject to judicial review on some grounds. In the Minerva Mills case, Justice P.N Bhagwati strictly pointed out, “Whether the precedent in proclaiming the emergency under Article 352 had applied his mind or whether he acted outside his powers or acted mala fide in proclaiming the emergency could not be excluded from the scope of judicial review.”
It is also obvious that the provisions of the National Emergency disturb the Federal structure of the Indian Constitution. Again, there may be a situation when the proclamation of the Emergency is very necessary. As per Article 355, it is the duty of the Union Government to protect States against external aggressions and internal disturbances. But, if we look at the above-mentioned cases, the judicial review again can be considered as very essential to ensure that the particular provision is not being used without any justifiable and valid grounds and the federal structure is not being violated for political gain. If only the situation demands, then it can be proclaimed to cope with the extraordinary circumstances protecting the peace, security integrity, and sovereignty of the nation or any part thereof. Otherwise, it will harm the federal character of the Indian Constitution.
Now, coming to the Financial Emergency under Article 360 of Indian Constitution, the President being satisfied with the fact that financial stability or credit of the country is in danger, a state of Financial Emergency can be proclaimed by him and like other 2 types of Emergency provisions, here also the legislative and executive powers will go on the hands of Union Government. It also must be approved by parliament. It has the following impacts-
1. The Union Government may give direction to any of the States regarding financial matters.
2. The President may ask the States to reserve all the money bills for the consideration of the Parliament after they have been passed by the State Legislature.
3. The President may issue directions to the States to reduce the salaries and allowances of all or any class of persons in government service
4. The President may also give directions for the reduction of salaries and allowances of the Central Government employees including the Judges of the Supreme Court and the High Courts.
In this type of Emergency situations, the Federal structure of the Constitution ceases to work and the Unitary form of Government starts functioning. Like the other 2 types of Emergencies, the Federal Structure of the Constitution gets affected. It must only be used when the situation and circumstances really demand. It is to be noted that such type of Emergency was never proclaimed in the country till now.
We must understand the main purposes of these Emergency Provisions. Dicey once said that federalism is a weak form of government because it refers to the division of powers between the Centre and States. Whenever any emergency situation comes, the normal functioning of the State Governments cannot be run smoothly. On the other hand, in order to protect the country’s peace, security, stability, sovereignty, and integrity, it becomes very necessary for the Union Government to take over all the executive and legislative powers of the States or any part thereof to cope with the extraordinary situations.
To answer the main topic specifically, the Emergency Provisions undoubtedly modifies the Federal Character of the Indian Constitution. Yet, the provisions of Emergency don’t necessarily violate the basic features Constitution because, in the introduction part, we have already got a clear idea that the Indian Constitution is not fully federal or fully unitary. It is a blend of both types of governments. For this reason, the Constitution authorizes the Central Government to act as a Unitary Government whenever a unified action is necessary in order to maintain the smooth operation of the Government.
On another aspect, these provisions give excessive executive and legislative power to the Centre and it can be misused if these are not used on valid and reasonable grounds. Many times in history, these provisions have been misused in spite of the safety measures taken by the legislature in the 44th Constitutional Amendment. Even though the suspension of fundamental rights has been tried to be justified many times, these are very basic ingredients for democracy. Therefore any unjust violation of fundamental rights during the time Emergency as happened in the National Emergency of 1975 should not be repeated.
So, before proclaiming any Emergency, all other ways to form an alternative Government must be looked into and the proclamation of Emergency must be the last resort as suggested by Sarkaria Commission. Like other, federal countries such as Australia, Canada, the parliament must restrict uses of Emergency Provisions only when the real situation demands, and judicial review must be given prerogative position to check and prevent the arbitrary use of discretionary powers available to the parliament and executive under these Emergency Provisions as because it is equally important for the ruling party to protect the Checks and Balances between the legislature, executive and judiciary.