A Dead Letter

On 4 August 1949 the Constituent Assembly of India had been arguing about the emergency provisions for more than five hours. B. R. Ambedkar, who was steering the draft, stood up to reply and did not deal with most of the amendments. When H. V. Kamath objected that he was answering only the verbal ones, Ambedkar said he was replying to those he thought had any substance in them and could not go on discussing every amendment moved. The President of the Assembly declined to make him do otherwise.

Then he addressed the general complaint, which was that the articles were open to abuse.

"I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes," he said. "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 expressed by my honourable Friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter."

What the articles do

Part XVIII of the Constitution provides for three kinds of emergency. One is national, on grounds of war, external aggression or armed rebellion. One suspends the enforcement of certain rights while such a proclamation is in force. The third, and the one that has done the work, allows the Union to take over the government of a state on the ground that the constitutional machinery there has failed.

The draft published in the Gazette of India Extraordinary on 26 February 1948 sets the machinery out with unusual clarity, because it carries marginal notes summarising each article in a few words. Beside draft article 279 the note reads: suspension of provisions of article 13 during emergencies. Article 13 in that draft sat in Part III, the fundamental rights.

The proclamation dismissing a state government could run for six months, be extended by resolution of both Houses of Parliament, and remain in force for up to three years.

Where they came from

They were not invented in 1949. The phrase at the centre of the provision, failure of the constitutional machinery, came out of the statute the Constitution was replacing. Ambedkar said as much during the debate: the expression, he told the House, is used in the Government of India Act 1935, and everybody must be quite familiar with its meaning, so no further explanation was necessary.

Pandit Hriday Nath Kunzru put the objection squarely. The power to take over the administration of a province when the constitutional machinery fails, he argued, was a new thing, not found in any constitution. Ambedkar disagreed and pointed him to the American guarantee that the United States shall maintain a republican form of government in every state.

The comparison was not a close one. The American clause is a duty owed to the states. The Indian article is a power exercised over them.

The safeguard that was not written down

In the same reply, Ambedkar told the House how he expected the power to be used, and it is worth quoting in full because of what happened to it.

"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."

A warning, then an election, then dismissal. Three steps, in order, with the voters getting the second word.

None of that is in the article. It was said on the floor of the House by the man defending the draft, and it went into the record of the debates rather than into the text anybody would later have to obey. What went into the text was a power, exercisable on the satisfaction of the President, who acts on the advice of the Union cabinet.

What happened to it

The article has been used somewhere in the region of 124 times, which is not the behaviour of a dead letter.

It is not a party question, and anybody presenting it as one is selling something. The practice was built up under Congress governments, most aggressively in the 1970s and 1980s, and it has been continued since by their opponents, who inherited the mechanism and found it just as convenient. The pattern repeats with the parties swapped: a state government of the wrong colour, a Governor's report, defections, a Speaker's disqualifications, a proclamation signed at speed, and no floor test.

The cost lands on the same people every time. A state's voters elect an assembly and lose it to a decision taken in Delhi in an evening, and whatever they voted for waits.

The courts moved slowly. In State of Rajasthan in 1977 a seven judge bench opened a narrow space for review, with Justices Bhagwati and Gupta observing that merely because a question has a political colour, the court cannot fold its hands in despair and declare judicial hands off. The Sarkaria Commission reported in 1988 that the power should be used very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail.

The real change came on 11 March 1994, when nine judges decided S. R. Bommai. The court held that a proclamation is open to judicial review where the satisfaction behind it is mala fide or rests on wholly extraneous and irrelevant grounds. It held that Article 356 can be invoked only where non-compliance with the Constitution creates an impasse incapable of being remedied and governance of the state has become impossible. And it held that a floor test in the assembly is the only legitimate test of a majority, and that a Governor's opinion cannot substitute for one.

That last holding is, almost word for word, the second of Ambedkar's three steps. It took forty five years and nine judges to put into law what he had assumed everybody would simply do.

The marginal note in the 1948 draft is still the shortest accurate description of what the emergency provisions are for, and it took the printers five words.

Sources

• Constituent Assembly of India, "Debates of 4 August 1949" (Ambedkar declining to reply to every amendment and the exchange with H. V. Kamath and the President; his acknowledgement that the articles could be abused or employed for political purposes and his hope that they would remain a dead letter; the three steps of a warning, then an election, then resort to the article; his statement that the expression failure of machinery comes from the Government of India Act 1935; and Kunzru's objection that the power was new, with Ambedkar's answer pointing to the American guarantee of a republican form of government).
• Government of India, "Draft Constitution of India, published in the Gazette of India Extraordinary, 26 February 1948" (draft article 278 on proclamations and their duration of six months, extension by resolution of both Houses and a maximum of three years; and draft article 279 with the marginal note describing it as the suspension of the provisions of article 13, in Part III, during emergencies).
• Afroz Alam, LiveLaw, "Article 356: A Living Monster" (the count of roughly 124 impositions; the observation that both major national parties have used the provision against each other's state governments and the description of the pattern of Governor's reports, defections, disqualifications and proclamations without a floor test; the Sarkaria Commission's recommendation that the power be used very sparingly, in extreme cases, as a measure of last resort; the quotation from Justices Bhagwati and Gupta in State of Rajasthan, 1977; and the holdings in Bommai on judicial review and on the situation being incapable of remedy).
• Supreme Court of India, "S. R. Bommai v. Union of India, 11 March 1994" (the nine judge decision; the narrow area in which the President's satisfaction is open to review, being where it is mala fide or based on wholly extraneous and irrelevant grounds; and the holding that a floor test in the assembly is the legitimate test of a majority).
• Inter-State Council Secretariat, Government of India, "Report of the Sarkaria Commission" (the Commission constituted by notification of 9 June 1983 under Justice R. S. Sarkaria to review the working of arrangements between the Union and the states, reporting in January 1988 with 247 recommendations).
• Constituent Assembly of India, "Debates of 3 August 1949" (the first day of the debate on the emergency articles, taken up from article 276, and the amendments moved against them).