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,
(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  ,
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
""...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.
 2 L Ed 60 (1803)