Short essay on Criticism in the Constituent Assembly

Critics in the Constituent Assembly characterised these provisions as too sweeping and autocratic.

“Coming to this grand finale and crowning glory of this chapter of reaction and retrogression,” observed K.T. Shah. I find one cannot but notice two distinct currents of thought underlying and influencing throughout the provisions of this chapter: (1) to arm the Centre with special powers against the units and (2) to arm the government against the people.

Looking at all the provisions of this chapter particularly and scrutinising the powers that have been given in almost every article, it seems to me, the name only of liberty or democracy will remain under the Constitution.”

H.V. Kamath who was another severe critic said:

“I fear that by this single chapter we are seeking to lay the foundation of a totalitarian State, a police State, a State completely opposed to all the ideals and principles that we have held aloft during the last few decades, a State where the rights and liberties of millions of innocent men and women will be in continuous jeopardy, a State where if there be peace, it will be the peace of grave and the void of the desert.”

According to H.N. Kunzru, the emergency financial provisions were a serious threat to the financial autonomy of the States.

While the whole chapter on emergency provisions was the subject of severe attack, two articles in the chapter were its special target. These were Article 358 and 359 which dealt with the suspension of the freedoms guaranteed under Article 19 and the suspension of the provision for the enforcement of Fundamental Rights through the courts including the Supreme Court.

All these criticisms are serious and they reflected the fears of many members of the Constituent Assembly as well as large sections of the public.

Nevertheless, looking back after a lapse of over five decades, one feels that if one can forget what happened during the internal Emergency that existed from June 1975 to January 1977 which was indeed a dark period in the history of constitutional government in India, much of it was the result of imaginary fears, an extreme sense of idealism, lack of appreciation of the general nature of the Constitution and the working of federal constitutions in general.

The fierce attacks made against these provisions and the fears expressed about them in the Assembly and outside during the time of the framing of the Constitution seem to have lost their sharpness in the light of the experience of the last five decades.

An analysis of these criticisms becomes easier now since the working of the Constitution during the first five decades as a whole has demonstrated certain reasonably clear trends. For such an analysis, it is proposed to classify these criticisms under the following heads:-

(1) The federal character of the Constitution will be destroyed and the Union will become all powerful.

(2) The powers of the State both the Union and the Units will entirely be concentrated in the hands of the Union Executive.

(3) The President will become a dictator.

(4) The financial autonomy of the States will be nullified.

(5) Fundamental Rights will become meaningless and, as a result, the democratic foundations of the Constitution will be destroyed.

These may be examined one by one. It is true that the federal character of the government will be transformed into a unitary one as a result of the Proclamation of Emergency. But this is more or less true in almost any federation during a period of grave national emergency.

The safety and security of the nation is the responsibility of the Union. The claim for the maintenance of the federal character has not the same importance as the requirements of national security.

In case of a conflict between the two, the latter should prevail. But such a situation is an exceptional one. Hence the provisions to meet any emergency are the result of abundant caution.

The specific circumstances under which the Centre may be called upon to take over the administration of a State may be detailed. There may be for example, a physical breakdown of the government in the State owing to widespread internal disturbance or external aggression and for some reason or other, law and order cannot be maintained.

Naturally, without the Centre’s intervention there will be nothing but chaos. Then there may be a political breakdown. This is a point which requires careful analysis.

A political breakdown can happen when no ministry can be formed or the ministries that can be formed are so unstable that the government actually breaks down.

Normally, according to the Constitution, when there is great instability in government, the proper procedure will be to dissolve the Legislative Assembly and reconstitute it.

If after dissolution also, the same factions are reproduced in the local legislature and they make a ministry impossible, it will then be inevitable for he Centre to step in. Then there is a third contingency of economic breakdown.

The necessity for a strong Union to meet any eventuality was widely accepted during the period when the Constitution was being framed.

The war in Kashmir, the recalcitrant attitude of some Princely States against joining the Union, armed insurrection in the Telengana region of Hyderabad State, the circumstances that called for the ‘police action’ in Hyderabad and a number of other disruptive forces, all these were shaking the very foundations of the newly founded Union.

Critics of the emergency provisions seem to forget the fact that for the first time in centuries, India has established a single administration embracing the entire country.

The Union was too precious an achievement and it could not be allowed to be destroyed under the impact of disruptive forces generated by linguism, regionalism or provincialism from within or aggressive forces from without.

The States are incapable of successfully facing an external threat and are not always trustworthy in meeting an internal crisis. Diversity of authority in an emergency will spell disaster.

The very first decade of the working of the Constitution had vindicated the wisdom of these provisions. During this period there have been six occasions when the President had to proclaim an emergency as a result of the breakdown of constitutional machinery in some of the States.

The first such proclamation was made in 1951 when in the Punjab, the Bhargava ministry resigned and an alternative ministry could not be formed. The proclamation of emergency was made on the basis of a report of the then Governor of the Punjab, to whom was later delegated, by the President, the executive power to carry on the State’s administration during the period of emergency.

At the same time, the legislative power of the State was given over to Parliament. The emergency, however, was only for a short period and Parliamentary government was re-established immediately after the termination of the emergency.

Not only did the Centre show no eagerness to keep the State under its direct control longer than was absolutely necessary, but it also helped the local political conditions to stablise order that a stable ministry could soon be formed.

The second occasion for the proclamation of emergency arose in 1952 when after the first general elections the formation of a stable ministry was found impossible in the PEPSU State. There was first Congress ministry which soon lost its majority in the Legislature.

A coalition ministry which followed it was incapable of functioning smoothly on account of dissensions within the coalition. As a result of the proclamation of emergency, the State Legislature was dissolved.

The Union appointed one of its senior Civil Service officers as Adviser to the Rajapramukh to carry on the administration during the emergency. Within six months new elections were held and the Congress Party came back to power with a stable majority.

The third occasion arose in 1954 in the newly created Andhra State under rather unusual circumstances. The ruling Prakasam ministry was supported by the Congress Party and a number of independents. But the Government had only a slender majority in the State Legislature.

The defection of some of its supporters in a crucial vote of no-confidence, arising out of the implementation of the recommendations of the committee which reported on the working of prohibition in the State, brought about its downfall.

The opposition members who joined hands to defeat the ministry belonged to three parties besides independents and dissident Congress members. Naturally, it was not easy for such disparate elements to join together for the formation of a new ministry.

Moreover, the members of the then State Assembly were elected in the first general election to the Legislature of the former composite State of Madras from which /Andhra was created in 1953. In the circumstances, public opinion within the State itself was in favour of a new election.

But the defeated Prakasam ministry was unwilling to carry on even as a care-taker government during the period required for holding the new election. The Governor’s report had made these points clear and in the light of them the President proclaimed the emergency, and took over the administration.

The President’s rule, however, came to an end with the formation of a stable government after the election to the State Assembly in 1954.

The fourth occasion which necessitated the proclamation of emergency arose in 1956 when the then Congress ministry of the former State of Travancore-Cochin resigned as a result of its loss of majority in the Legislature.

Since no other party was capable of forming an alternative ministry, taking over the administration by the Union became inevitable. As in the case of PEPSU, an Adviser was appointed to assist the Raja pramukh to who was delegated the executive power of the State.

The emergency lasted for about a year during which the new State of Kerala was formed and the second general elections held.

Although the election did not produce a stable majority for any party in the State Legislature a coalition of the Communist members and some independents made the restoration of Parliamentary government possible in the State in 1957 immediately after the results of the election were declared.

The fifth occasion for a proclamation of emergency arose under unusual circumstances once again in the State of Kerala. These circumstances developed after the assumption of power in that State in 1957 by the Communist Party of India.

A popular agitation in the State supported by the entire opposition began gathering momentum from the beginning of 1959. Soon it assumed formidable proportions and a State-wide civil disobedience movement took the law and order position in the State to a situation of utter collapse.

In the circumstances the Governor of the State reported to the President in July 1959 that he had come to the conclusion that the administration of the State could not be carried on in accordance with the Constitution any more.

On the basis of this report the proclamation of emergency was issued by the President on 31st July 1959. The emergency lasted only for seven months at the end of which elections were conducted to constitute a new Assembly in the State.

The election of February 1960 brought to an end the political uncertainty in the State and a new ministry with an overwhelming majority in support of it was installed in the State in February 1960.

The sixth occasion which necessitated the proclamation of emergency arose in 1961 when the coalition ministry of the Congress Party and the Ganatantra Parishad in Orissa State which was functioning for over three years found it impossible to continue any longer.

The ministry submitted its resignation to the Governor on whose advice the proclamation of emergency was made by the President.

The emergency did not last even six months. For, in the mid-term elections of June to the Orissa Assembly, the Congress Party was returned with a comfortable majority and as a result, a Congress Ministry was soon installed in office.

The constitutional machinery broke down again in Kerala, for a third time, necessitating the seventh proclamation of emergency by the President in 1964 as a result of a successful no-confidence motion against the ministry. No alternative ministry was possible and hence the President had to proclaim an emergency.

On July 5, 1966, President’s rule was proclaimed in the Punjab making the number of such proclamations. The President’s rule in the State was necessary to facilitate the smooth transfer of power to the two new States of Punjabi Sabha and Haryana created by reorganising the Punjab.

Between 1967 and 1983 there were in all 65 proclamations of emergency in the States. Between 1984 and 1998 there were twelve such proclamations. ¹

These instances indicate the purpose and the manner in which in actual practice a proclamation of emergency will be made by the President. They may be summed up in the following terms:–

(1) The essential condition for the intervention of the Centre is the political instability in the State, that is, the virtual breakdown of the Parliamentary system of government.

(2) The Union will watch the situation of instability with utmost caution and provide every opportunity for the formation of an alternative ministry.

(3) If a new election after the dissolution of the State Legislature is called for to remedy the situation, the defeated ministry may be allowed to carry on the administration as a care-taker government pending the new election.

(4) The proclamation of emergency will only be the last resort when (i) the existing ministry does not have the confidence of the Legislature, (if) no alternative ministry can be formed, and (iii) the defeated ministry is unwilling or unable to carry on as a care-taker government pending new election.

(5) During the period of emergency, the legislative work of the State will be transferred to Parliament. Delegation of such work to any administrative body will be reducing to the minimum.

(6) As soon as the political situation within the State becomes conducive to responsible government, it will be restored.

In the cases detailed above, Central intervention almost invariably brought about the emergence of stable ministries at the termination of the emergency.

Thus, in practice, the emergency provisions for Central intervention in case of a breakdown of constitutional machinery in the States, have proved to be not only a protective device for responsible government in politically unstable States but also a blessing to political parties who were unwilling to shoulder responsibility for a time on account of group rivalries or any other unfavourable circumstances.

It must however be admitted that there have been occasions when the Union Government has resorted to the dismissal of State Governments only on political consideration.

The two conspicuous examples are the dismissal of Congress Governments by the Janata Government in 1977 and Janata Governments by the Congress (I) Government in 1980.

During a period of emergency, it is natural that the Executive becomes unusually powerful. This is a tendency of governments all over the world, federal or unitary.

The experience of parliamentary democracies indicates that if a Parliament is vigilant and through the members of the Oppositions, particularly, it manages to compel the Executive to account for all its actions.

Thus, Parliament has the power to check the Executive whenever the latter goes beyond reasonable limits. Emergency provisions do not in any way cut Parliament out of the picture, and Parliament has always the right to call the Executive to order; and if they find that the Executive has exceeded their powers in regarded to the operation of any of the provisions enacted under the emergency laws, they can always pull them up; they can even dismiss the ministry and replace them.

Many critics have drawn attention to the position of the President during an emergency. They think that the President can become a dictator, if he so wishes during the emergency.

But this is not quite so. We have already seen the real scope of the President’s powers. The chances of his becoming a Caeser or a Tzar are practically nil.

There is hardly an occasion when the President can rule the country without the assistance of a Council of Ministers. To think of the President and the Ministers combining in a conspiracy to flout the Constitution by maintaining a perpetual emergency and dissolving the House of the People every time it comes into being, is a fear arising more out of a basic mistrust in the strength of democracy and its institutions than an understanding of the working of democratic governments.

No Constitution can avoid such a situation if those who are charged upon to work it deliberately try to wreck it. It cannot be helped under any system of government, whatever might be the constitutional provisions.

Even if the President is bent upon acting autocratically with or without the ministry, by declaring emergencies, it is impossible for him to carry on the administration without the approval of Parliament.

For, there is no provision in the Constitution authorising the President to appropriate funds without Parliamentary sanction. Hence, at the most, the President may carry on his autocratic rule until the end of the current financial year; to run the administration any further he would need the support of Parliament.

How effectively Parliament would and could function during a period of national emergency was a subject of speculation until 1962. When the President proclaimed emergency under Article 352.

But the manner in which Parliament has dealt with the emergency and functioned during the emergency show that instead of the Executive arrogating to itself the powers of Parliament in the name of emergency, Parliament has subjected the Executive to greater control and scrutiny in all its actions vitally affecting the nation.

In fact, the debates in Parliament demonstrated the eagerness with which the Executive sought the approval of Parliament not only with regard to the actions already taken by the Government but also those proposed for the future.

The only exception to this in practice was the Internal Emergency period of 1975-1977. There was widespread abuse of executive power in many parts of the country in many forms during this period. The extent of abuse became clear only after the lifting of emergency in 1977.

Naturally, the new Parliament which came into being after the General Elections of March 1977, was interested in preventing the repetition of such a situation in future and hence initiated steps to amend the Constitution suitably to limit the powers of the Government to proclaim internal emergency.

The Amendment (Forty-fifth) adopted by Parliament in December 1978 ensures that proclamation of emergency can be made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be a ground for declaration of emergency.

Emergency can be proclaimed only when the security of the country is threatened by war, external aggression or armed rebellion. As an additional safeguard, proclamation of emergency will require approval within a month by resolution of Parliament by a majority of the total membership and not less then two-thirds of the members present and voting.

The provisions dealing with financial emergency were introduced at a time when the economic situation in India, soon after the coming of Independence, had become suddenly serious.

Explaining the reasons for their incorporation in the Constitution, Ambedkar said: “This article more or less follows the pattern of what is called the National Recovery Act of the United States passed in 1933 which gave the President power to make similar provisions in order to remove the difficulties, both economical and financial that had overtaken the American People, as a result of the great depression.”

The provisions for financial emergency, again, show how the framers of the Constitution have drawn upon the experience of the working of federalism elsewhere. There has, however, been no occasion so far to make use of these provisions. Even the financial crisis of 1991 did not lead the country to the declaration of a financial emergency.

Finally, one may consider the provision for the suspension of Fundamental Rights. Apparently this is by far the most unwholesome provision in the Constitution.

The provision for the suspension of constitutional rights does not mean however that with the proclamation of emergency, there will be an automatic suspension of Fundamental Rights.

It may be quite possible to keep the enforcement of the Fundamental Rights intact and there need not be a universal suspension throughout the country merely by reason of the proclamation. Further, the order of suspension should be placed before Parliament and it will be free to take whatever action it deems fit.

The working of the Constitution so far shows that the suspension of Fundamental Rights took place only rarely. That happened as a result of the proclamation of national emergencies in 1962, 1965, 1971 and 1975.

The proclamation did not, however, affect all the Fundamental Rights embodied in the Constitution. Those affected were Articles 14, 19, 20, 21 and 22. The implication of such suspension have been dealt with in detail elsewhere earlier in this work. ¹

In contrast to the national emergencies mentioned above Fundamental Rights were never suspended during any of the emergencies proclaimed in the States. That remains a good precedent. Even during a national emergency, suspension of Fundamental Rights should be restricted to the absolute minimum.

There have been no instances so far of the Union Executive behaving high-handedly towards the States or ignoring Parliament in the name of emergency. The apprehension that the President may act as a dictator is not one of the acute discomforts of our political thinking.

On the other hand, the emergency provisions have been on the whole, justified when viewed from the experience of the past.

The only exceptions have been the occasions when constitutional emergency was declared in States when government with majority support in the Legislative Assembly was in office.

The action of the Janata Government of Morarji Desai soon after it came into power in 1977 in dismissing the Congress governments in several states was condemned by the Opposition Parties as politically motivated.

In 1980 when Indira Gandhi came back to power she paid back in the same coin by dismissing the Janata Governments which were then in power in the States. Such actions were undoubtedly not in the spirit of the Constitution.

In 1997, the Central Cabinet sought to impose emergency in Uttar Pradesh and sent its advice to the President. The President, however, sent back the matter to the Cabinet asking it for reconsideration. On reconsideration, the Cabinet decided to accept the advice of the President and did not proceed further in the matter.

In 1999 a Presidential Proclamation was issued dismissing the Government of Bihar on the ground that law and order had failed in that State. The Proclamation, however, was not ratified by Parliament and hence the dismissed government in Bihar was reestablished.

The decision of the Supreme Court in the Bombay case asserting the competence of the Court to review the justification or otherwise of every case of proclamation of emergency in the States seems to have made the Union Government to realise that judicial intervention might declare invalid a declaration of emergency, if imposed without adequate justification. That, indeed, has been a healthy development.