Shivakantjha.org - Whether the Supreme Court can direct resorting to the Proclamation of Emergency for Constitutional break-down in a State?

Whether the Supreme Court can direct resorting to the Proclamation of Emergency for Constitutional break-down in a State?

By Shiva Kant Jha

Art 356 of the Constitution of India prescribes two pre-conditions for the Proclamation of Emergency for Constitutional break-down in a State:

(i)A "report from the governor of a State or otherwise, and

(ii) the satisfaction of the President to that effect.

The expression 'otherwise' comprehends persons other than a governor also. I believe even an ordinary citizen can report to the President about the constitutional break-down. During the Fodder Scam in Bihar even the Accountant General was considering to report to the President to declare such an Emergency in Bihar. The Supreme Court would surely come within the extended concept; and would be entitled to make an observation calling upon the Head of the Executive to act under the aid Article..

The Supreme Court takes constitutional oath to "uphold" the Constitution. Substantive powers to take steps needed to uphold the Constitution are surely vested in the Supreme Court, otherwise the oath becomes futile. In Marbury v. Madison [1] , the Chief Justice Marshall refers to the effect of the judge's oath in words which time cannot make stale till our Constitution meets the fate of the Weimer Constitution:

""...Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If such were the real state of things, this is worse than solemn mockery. To prescribe, or to take oath, becomes equally a crime."

What may happen if the President fails in declaring Emergency when in the opinion of the Supreme Court there is a clear break-down of the constitutional machinery. Better view would be the issue of mandamus to the Cabinet by whose advice the President is bound. The legal principles were developed by the Privy Council in n Teh Cheng Poh v. Public Prosecutor, Malaysia, 1980 LR, 458 PC at p. 472 . H. M. Seervai observes that ".. the importance of Poh's Case lies in the fact, that in the opinion of the Privy Council a mandamus would lie against the Cabinet to advise H.M. to revoke the Regulations." In Teh Cheng Poh v. Public Prosecutor [1980 LR, 458 PC at p. 472]: The Yang di-Pertuan Agong was immune from any proceedings whatsoever in any court. So mandamus to require him to revoke the proclamation would not lie against him. The Privy Council held: "This however, does not leave the courts powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion."

But it is essential to examine the nature of the observation by the Supreme Court. If it is made casually, and not as integral to the actual considered decision, the observation would have no effect, though the President is supposed to take that view into account. If the observation is integral to the decision in a given case, or part of its ratio, or material facts, the decision is binding, otherwise it is persuasive or merely suggestive. The power of Judicial Review is exercised to enforce a positive legal duty , but it can also be exercised to enforce culpable inaction on the part of a public authority. In Bommai Case an unconstitutional action was set aside. The recent observation by the Supreme Court, suggesting Art. 356 action against the Tamil Nadu, is, in effect, directed against certain inactions on the part of the government suggesting the breakdown of constitutional government.

The idea that no such action can be taken against an elected government is incorrect. All the organs are the creatures of our Constitution, and each organ has only granted power to be exercised in accordance with, and subject to, the constitutional provisions. The Supreme Court cannot be criticized for the observations it considered well deserved. The legal efficacy of such observations would depend on the nature of the matter before the Supreme Court, and materiality of the observations in that case. Even if the observations were casual, yet due importance must be given. Nothing turns on pretentious plea that the elected government is sovereign. Sovereignty is a matter of the distribution of powers, and limitations under our Constitution. The ultimate sovereignty is with 'We, the People'; and the constitutional organs have only delegated sovereign powers granted subject to limitations, express or implied.


[1] 2 L Ed 60 (1803)

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