Q.

During an Emergency, as Constitutional machinery fails, the system converts itself into
a unitary feature". When the Constitution of India itself contemplates situations of
emergency in its various provisions, why would an emergency be termed as ' failing of
constitutional machinery.' Critically examine the same in light of the Indian Constitution.

Ans: India has a very unique federal structure with a mix of unitary features and during the
emergencies, these union features overpowers the federal structure in our Nation. The entire
government converts itself into a unitary system, residing more powers to the Union
thereby failing the constitutional machinery. It is a period of recession or standstill where
all the fundamental rights bestowed upon the citizens of the country by the Constitution are
taken away except the one under Article 20 and 21. Under the Indian Constitution we have
three kinds of Emergency: National emergency (Art. 352), State Emergency (Art. 356) and
Financial Emergency (Art. 360). Under Art. 356, the President is given the power to
suspend the State government and establish/impose the President’s rule in the State only
where the President believes that the situation in the State is such that the government of
that particular state is not functioning in accordance of the provisions under the
Constitution or to put it in other way the Constitutional machinery of the State has
collapsed. It is the duty of the Union government under Art. 355 to ensure that the
governments in all the States carry out their functions according to the provisions of the
Constitution. A failure of Constitutional Machinery can happen in the form of political
crisis, physical breakdown of the state government, internal subversion or inability to
maintain law and order. Once this state emergency or constitutional emergency is declared,
the President will become the executive head of the State. The President may assume upon
himself the functions of the Govt. of the State and also the powers exercised by the
Governor of the State. Furthermore, the State will fall under direct control of the Union
government and there will be no Council of Ministers at the State. The idea behind this
provision was adopted from Sec. 93 of the Government of India Act. There were a lot of
criticisms and opposition against the incorporation of this provision under the Constitution.
However, the makers of the Constitution deemed such a provision is necessary for the
preservation and stability democracy in India. But there has been reports of misuse of these
powers vested on the President and the very context of State emergency was questioned.
The Sarkaria Committee put forward many instances of misuse of this emergency
provisions by the Union government. Former Prime Minister Indira Gandhi used Art. 357
for more than 20 times to remove majority governments and in 1977, the Janata
government removed several State governments under the grounds of political instability or
corruption or breakdown of law and order. This all clearly indicates the increase in the
mishandling of the State emergency under the Constitution for political reasons.
The case of S R Bommai v. UOI 1 is the landmark case which dealt with the power
of the President during a State Emergency. In the present case, the government of
Karnataka led by S R Bommai was dismissed on April 1989 under Art 356 and the
President’s rule was imposed in the State on the ground that the Bommai government has
lost majority due to large scale defections. Bommai was denied any opportunity to prove
his majority in the Assembly and therefore he moved a petition at the SC. In March 1994, a
historic 9 judge bench of the SC issues the order to put an end to the arbitrary use of the
provisions under Art. 356. They came with certain guidelines and restrictions to be
followed while declaring a State emergency. The court said that Art. 356 can only be
justified if there is breakdown in the constitutional machinery and not an administrative
machinery of the State. Furthermore, the President shall not take any actions unless the
proclamation has been approved by the Parliament. The Centre should give a warning to the
State before declaring any emergency and the State is given a period of one week to reply.
It was also observed by the SC that the powers imposed by the President during a State
emergency are subject to judicial review. So as seen before, during a State emergency the
federal feature and separation of powers is completely stripped down and the Union
government takes over the administrative rule of the State. There has been several instances
of misuse of these powers under Art. 356 and we had judgements that put forward the
restrictions and directions to be followed while declaring national emergency. However, it
is necessary to have further amendments to tackle any arbitrary use of power by the Union
over the State during these emergencies.

1
AIR 1994 SC 1918