Emergency, Intervention and the Federal Principle

Canada. Sections 55 to 57 and 90 of the Constitution Act 1867 provide for reservation and disallowance of provincial legislation by the Governor General, powers that have fallen into complete disuse; the last disallowance was in 1943.

The Indian record and the correction

Article 356 has been used well over a hundred times. Until 1994 the President's satisfaction was widely treated as unreviewable, and proclamations were issued on Governors' reports without any test of majority support in the Assembly.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, changed it. A Bench of nine held:

that the proclamation is justiciable, and the satisfaction is open to review on the ground that it is based on wholly irrelevant or extraneous grounds or is mala fide;

that the material on which the satisfaction is based can be called for and examined, article 74(2) protecting the advice but not the material;

that the floor of the House is the appropriate forum for testing whether a ministry has lost majority support, and that a Governor's subjective assessment is not;

that the Assembly should not be dissolved until both Houses of Parliament have approved the proclamation, so that a wrongly dismissed government can be restored;

and that federalism and secularism are basic features of the Constitution.

The number of proclamations fell sharply afterwards, which is unusual evidence that a judgment changed political behaviour.

A worked example

A State government loses its majority and the Governor reports that the constitutional machinery has broken down.

Before Bommai. A proclamation could issue on the report, the Assembly could be dissolved at once, and the courts would not examine the material.

After Bommai. The proper course is a floor test. If a proclamation issues, the Assembly is suspended and not dissolved until both Houses approve, and the material is examinable.

In Germany. Article 37 requires the consent of the Bundesrat, so a chamber of Land governments must agree before any Land is coerced, and the measures must be necessary.

In Switzerland. Article 52 permits intervention only where the canton cannot preserve its constitutional order alone or with the aid of other cantons.

In the United States. Nothing corresponds. There is no power to dismiss a State government, and federal intervention against domestic violence requires an application by the State legislature or executive under Article IV section 4.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from a series of proclamations under article 356 dismissing State governments in Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh, some following the events of December 1992.

Held, by a Bench of nine. The proclamation is justiciable and the satisfaction reviewable for relevance and mala fides; the material may be examined, article 74(2) protecting only the advice; the floor of the House is the appropriate forum for testing majority support; the Assembly should not be dissolved before both Houses approve; and federalism and secularism are basic features.

Why it matters here. It is the leading authority on federal intervention anywhere on this syllabus and the reason the Indian power is now used far less.

Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, concerned a Governor who advanced the session of a Legislative Assembly on his own initiative during a political crisis and fixed its agenda, including the removal of the Speaker.

Held, by five judges. The Governor's powers under article 174 to summon, prorogue and dissolve are exercisable on the aid and advice of the Council of Ministers; the discretion preserved by article 163(1) is confined to functions the Constitution expressly requires him to exercise in his discretion; the Governor's actions and everything that followed were set aside.

Why it matters here. Intervention usually begins with a Governor, and this case confines what a Governor may do on his own before any proclamation issues.

Distinctions

What beginners get wrong

"Article 356 is an emergency provision like article 352." They are different. Article 352 concerns the security of India and requires a written Cabinet recommendation and a special majority; article 356 concerns the constitutional machinery of a State and requires only a simple majority in each House.

"The Governor's report is required." Article 356 says on receipt of a report from the Governor or otherwise, so the President may act without one.

"Bommai made article 356 unusable." It made it reviewable and set the floor test as the constitutional method. It remains available where the machinery has genuinely failed.

Limits and criticism

The ground is expressed as a conclusion rather than a fact, which is what made review difficult before 1994 and why Bommai had to work from the material rather than from the satisfaction.

Article 365 converts an administrative disagreement into a constitutional crisis, because failure to comply with a direction becomes evidence that the government cannot be carried on.

Germany's article 37 has never been used, which is the strongest argument that requiring the second chamber's consent is an effective safeguard.

Quick revision

1. India: article 356, satisfaction that the government of a State cannot be carried on in accordance with the Constitution; two months to approval; six months at a time; three years maximum with conditions after the first year.
2. Article 365: failure to comply with a Union direction may found the satisfaction.
3. Germany: article 37 federal coercion with the consent of the Bundesrat.
4. Switzerland: article 52, intervention where the canton cannot preserve its order; article 53 protecting cantonal existence and territory.
5. United States: Article IV section 4, the guarantee clause and protection against domestic violence on application.
6. Canada: disallowance and reservation under sections 55 to 57 and 90, disused since 1943.
7. S.R. Bommai v. Union of India, (1994) 3 SCC 1: justiciable, material examinable, floor test, no dissolution before approval, federalism a basic feature.

Test yourself

1. Set out article 356 and the safeguards on it. Where the President, on a Governor's report or otherwise, is satisfied that a situation has arisen in which the government of a State cannot be carried on in accordance with the Constitution, he may by Proclamation assume the functions of the State government and declare that the powers of the legislature shall be exercisable by or under Parliament, but may not assume the powers of a High Court. The Proclamation must be laid before each House and ceases after two months unless approved, continues six months at a time and not beyond three years, with additional conditions after the first year; and after S.R. Bommai it is justiciable, the material is examinable, and the Assembly should not be dissolved before both Houses approve.

2. What exactly did Bommai decide? That a proclamation under article 356 is justiciable and the satisfaction reviewable where based on wholly irrelevant or extraneous grounds or made mala fide; that the material on which it rests may be called for, article 74(2) protecting the advice and not the material; that the floor of the House is the appropriate forum for testing majority support; that the Assembly should not be dissolved until both Houses have approved; and that federalism and secularism are basic features of the Constitution.

3. Why has article 37 of the German Basic Law never been used? Because it requires the consent of the Bundesrat, a chamber composed of the governments of the Lander, before the Federation may compel any Land. A Land government will not readily vote to coerce another, so the political cost of invoking the power is prohibitive, and the disputes it would address are resolved instead through the Federal Constitutional Court and through negotiation.

4. Compare the American position. There is no power to dismiss a State government. Article IV section 4 guarantees each State a republican form of government, which has been treated as raising political questions rather than justiciable ones, and requires the United States to protect a State against invasion and, on the application of its legislature or of its executive when the legislature cannot be convened, against domestic violence. Federal intervention therefore depends on the State asking for it, except where federal law or property is at stake.