Historically, the proximate origin of these ’emergency’ powers can be traced back to the Government of India Act, 1935. Section 93 of the Act provided that if the Governor of a Province was satisfied that a situation has arisen in which the government of the Province cannot be carried on in accordance with the provisions of this Act, he may by proclamation assume to himself all or any of the powers vested in or exercisable by a Provincial body or authority, including the Ministry and the Legislature, and to discharge the functions thus assumed in his discretion.
The only exception was that he could not encroach upon the powers of the High Court. Similar powers were conferred on the Governor-General under Section 45, which was a part of the Federal Scheme. However, this Part never came into operation.
The Constitution-framers were deeply concerned with the need for ensuring peace and tranquillity throughout the country. External aggression in Jammu and Kashmir, the emergence of disruptive forces and wide-spread violent disturbances in the wake of partition, demonstrated to them the imperative necessity of making special provisions for effectively and swiftly dealing with grave situations of law and order.
The need for conferring special powers on the Union Government was accepted. It was agreed that the President would be given the powers of superseding the State Legislature and Government. Initially, it was also envisaged that the Governor could issue a proclamation that a state of emergency had arisen in which peace and tranquillity could not be maintained and the Government of the State carried on in accordance with the Constitution.
An important issue for consideration before the framers was, whether the President and the Governor, or either of them, should be vested with special responsibilities to be discharged by them in the exercise of their discretion, for such purposes as maintenance of peace and tranquillity.
It was decided at a very early stage of constitution-framing that the President should have no such special powers and that he would exercise all his functions on the advice of his Council of Ministers. However, the question of vesting the Governors with discretionary powers remained under prolonged consideration.
At a later stage, the Constituent Assembly decided that the Governor should not be an elected, but be a nominated functionary. Consequent upon this decision, the Constituent Assembly, departing from the provisions of the Government of India Act, 1935, limited the Governor’s powers to merely furnishing a report to the President of the circumstances showing that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
Thus, finally, the Constituent Assembly decided that the responsibility of intervention in the administration of a State, when it was faced with a threatened or actual break-down of the Constitutional arrangements, would be exclusively that of the President, in effect, of the Union Government, and the Governor would have no authority in such a situation to assume, in his discretion, the powers of the State Government even for a short period. The provisions so finalised, it was considered, would be broadly in accord with the basic principle of Parliamentary democracy, the Union Government being accountable for all its actions to Parliament.
Rationale and Purpose of Articles 355 and 356
The underlying principle and purpose of introducing Article 355 was explained by the Chairman of the Drafting Committee in the Constituent Assembly. It was stressed that our Constitution, notwithstanding that many of its provisions bestow overriding powers on the Centre, nonetheless gives, on the federal principle, plenary authority to the Provinces to make laws and administer the same in the field assigned to them.
That being so, if the Centre is to interfere in the administration of provincial affairs, it must be, by and under some obligation which the Constitution imposes upon the Centre. It was emphasised that the ‘invasion’ by the Centre of the Provincial field “must not be an invasion which is wanton, arbitrary and unauthorised by law”.
The introduction of a provision casting a duty on the Union to protect the States 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’ was therefore, considered essential to prevent such an unprincipled invasion.
Articles 355 and 356 not unprecedented
In reply to the criticism that such provisions were not found in any other Constitution, it was pointed out in the Constituent Assembly that they were based on the principle underlying Article IV, Section 4 of the United States Constitution, which provides:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence”.
The first part of this provision is known as the Guarantee Clause and the second part the Protection Clause. It was explained in the Constituent Assembly that, in principle, the Guarantee Clause conforms to the latter part of the Draft Article 277A (now Article 355) of our Constitution which is designed to maintain in every State the form of responsible Government as contemplated by the Constitution.
The Protection Clause of Article IV(4) corresponds to the first part of Article 355, with this difference that, instead of the expressions “invasion” and “domestic violence”, the framers of our Constitution preferred to use the terms “external aggression”, and “internal disturbance”, respectively, which are of relatively wider amplitude.
To understand the full significance of the duty imposed on the Union by the Article referred to above to ensure that the Government of every State is carried on in accordance with the Constitution, it will be useful to examine in some depth the Guarantee Clause in Article IV(4) of the United States Constitution.
A vast potential is rooted in the sweeping and unqualified language of the Guarantee Clause. Indeed, in the course of American history, it has assumed protean forms. President Lincoln in 1861 sought in this clause an authorisation for extraordinary national authority to put down rebellion, to strike down slavery, to assume certain basic civil and potential rights for freed ‘blacks’ and to effectuate programmes to deal with problems during the Reconstruction (1861-1877).
The guarantee is considered as “a tremendous store-house of power to reshape the American federal system”. An American author who has made an exhaustive survey of the past uses of the Guarantee Clause, sums up his views about the nature, the potential uses and dangers of this power, as follow:
“This Clause is, in Sumner’s simile, a giant, and should be watched carefully, since its tremendous power can be dangerous as well as protective to republican liberty…… The Guarantee is prophylactic; the federal government is to ‘protect as well as restores’ republican government in the States. It imposes affirmative obligations on both nation and states; it ‘still exists as an independent and untapped source of federal power, by which the Central Government can assume the fuller realisation of our society’s democratic goals’………
The characteristics of republicanism must be dictated by contemporary values. Those values will not only include the present spirit of the national government, but also the current expectations of the American peoples, such as access to the ballot and equal access for all to housing, employment, education, transportation and numerous other things, when sufficiently touched with a public interest”.
Article IV(4) of the American Constitution does not prescribe the manner in which the guarantee as to the republican form of government may be enforced against a State. It has no provision analogous to Articles 356 and 357, authorising the Union Government or the President to suspend or supersede the Constitutional machinery in a State.
The Constitution-framers recognised that the provisions of Articles 355 and 356 were necessary to meet an exceptional situation where break-down of the Constitutional machinery occurs in a State. At the same time, they hoped for the growth of healthy conventions which would help ensure that these extraordinary powers were used most sparingly, in extreme cases, for the legitimate purposes for which they were intended.
An important point made during debates in the Assembly, was, that mere mal-administration by a duly constituted Government in a State, was not a good ground for invoking Article 356. It was emphasised that, if responsible government in a State is to be maintained, the electors must be made to feel that the power to apply the proper remedy, when misgovernment occurs, rests with them. It was felt that, in many cases of political break-down, the proper course would be to dissolve the Legislative Assembly and go back to the people to seek through a fresh election, the right answers.
Dr. B.R. Ambedkar, Chairman of the Drafting Committee, explained the purpose and nature of these provisions. Emphasising the need for caution and restraint in their application, he observed:—
“I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact I share the sentiments……that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces.
I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article”.
In sum, the Constitution-framers conceived these provisions as more than a mere grant of overriding powers to the Union over the States. They regarded them as a bulwark of the Constitution, an ultimate assurance of maintaining or restoring representative government in States responsible to the people. They expected that these extraordinary provisions would be called into operation rarely, in extreme cases, as a last resort when all alternative correctives fail.