Reforming emergency powers: Sarkaria, NCRWC, Punchhi and the "dead letter" question

Detail

Why reform was needed: the Article 356 machinery

• President's rule means the Union takes over a state's government when the state cannot be run "in accordance with the Constitution" (Art. 356). It is also called State Emergency or constitutional emergency.
• How it works, step by step [4]:

Step	What happens	Time limit or majority
1	The Governor sends a report, or the President is satisfied in some other way	—
2	The President issues the Proclamation. The state's executive powers pass to the President, and its law-making powers pass to Parliament (Art. 356(1)(a)-(b))	—
3	Both Houses of Parliament must approve it	Within 2 months, or it lapses
4	Once approved, it continues	6 months at a time
5	Further extensions	Every 6 months, up to 3 years in total

• Exception: the Punjab Proclamation of 11 May 1987 was allowed to run for up to 5 years [4].
• Ceiling added by the 44th Amendment (1978): President's rule can continue past one year only if two conditions are both met:
• a National Emergency (Art. 352) is in force; and

• the Election Commission certifies that elections cannot be held.

• Where the High Court fits: a Proclamation cannot touch the High Court's powers (Art. 356(1)(c)) [4].

• Law-making under President's rule: Art. 357 lets Parliament hand the state's law-making power to the President [4].
• The record of misuse: the article was used many times to dismiss opposition-ruled state governments. This led to demands from the states, and then to three national reviews.

Early state demands to delete or curb Arts. 356-357

• Rajamannar Committee (1969): set up by the DMK government of Tamil Nadu to study Centre-state relations.
• It asked for Arts. 356 and 357 to be omitted (removed) from the Constitution.

• It also asked for stronger safeguards for state autonomy.

• West Bengal memorandum (1977): sent by the Left Front government.

• It asked for Arts. 356, 357 and 360 to be deleted. Art. 360 is the Financial Emergency.

• It also asked for more powers and money for the states.

• Anandpur Sahib Resolution (1973; adopted again in 1978): passed by the Akali Dal.

• It asked for wide autonomy for the states.
• It wanted the Centre limited to a few subjects: defence, foreign affairs, currency, communications and railways.

• It did not specifically ask for Art. 356 to be deleted. It belongs to the same push for state autonomy.

• These pressures led the Centre to set up the Sarkaria Commission in 1983.

Sarkaria Commission (appointed 1983, reported 1988)

• What it was: a commission on Centre-state relations headed by Justice R.S. Sarkaria. Federalism (Class 11, Ch 7) discusses it in more detail.
• Its verdict: keep Art. 356, but use it "very sparingly", only in extreme cases and only as a last resort after every other option has been tried.
• Safeguards it proposed:
• Warn the state first. Tell it what is wrong and give it a chance to correct course.
• Explore an alternative government. If the House is hung (no party has a majority) or the ministry has collapsed, the Governor should first try to form another government.
• A "speaking document": the Governor's report should give the facts and reasons in full. It should also be published, so Parliament and the public can judge it.

• No dissolution before approval: the assembly should not be dissolved until Parliament has approved the Proclamation.

• A broader proposal: set up a permanent Inter-State Council under Art. 263. This would be a forum where the Centre and the states regularly discuss their disputes.

• Its effect: most of these safeguards were not made law. In 2007 the states' reluctance to adopt Sarkaria's recommendations was itself listed among the matters the next commission had to examine [3].

S.R. Bommai v. Union of India (1994): the courts step in

• The case: the Karnataka government was dismissed in 1989. A nine-judge bench gave its judgment in 1994.
• What the Court held:
• Judicial review: courts can check whether a Proclamation under Art. 356 was lawful.
• Floor test: whether a ministry has a majority must be tested by a vote on the floor of the House. It must not be decided in the Governor's residence.
• No dissolution before approval: until both Houses approve the Proclamation, the assembly can only be kept in suspended animation (suspended, not dissolved).
• Restoration: if a court strikes down the Proclamation, it can restore the dismissed government.

• Secularism is part of the basic structure (core features of the Constitution that Parliament cannot destroy). A state government that acts against secularism can be removed under Art. 356.

• Why it matters for reform: Bommai turned several of Sarkaria's suggestions into binding law laid down by the court. Later commissions asked for this judge-made law to be written into the Constitution's text.

NCRWC (2000-2002, Justice M.N. Venkatachaliah)

• What it was: the National Commission to Review the Working of the Constitution. It was set up in 2000 and reported in 2002. Class 11, Ch 9 refers to it.
• On Art. 356:
• Do not delete it. Use it sparingly.
• Codify Bommai, which means writing the safeguards into the Constitution itself:
  • check majority through a floor test;
  • do not dissolve the assembly before Parliament approves;
  • the Governor's report must give reasons and be a speaking document;
  • warn the state before acting.

Punchhi Commission (2007-2010)

• Its setup: the second Commission on Centre-State Relations was set up on 27 April 2007. It was chaired by Justice M.M. Punchhi, a retired Chief Justice of India [2].
• Its report: submitted on 31 March 2010, with 273 recommendations [2].
• Part of its brief: to examine whether a law backing Art. 355 could allow the Centre to send central forces into states on its own (suo motu) [3].
• Its proposals on emergency powers:
• Localised emergency. The emergency-type powers under Arts. 355 and 356 would apply only to a district or part of a state, for up to three months.
  • Example: armed violence in one district → emergency-type powers apply there only → the elected state government keeps running the rest of the state.
  • It works like surgery instead of a full takeover.
• Write Bommai into Arts. 355-356. This would make the safeguards part of the Constitution's text, not just the courts' rulings.

• Central forces without consent. The Union could deploy central forces in a state without the state's consent, but only for a limited period. The Governor's role would be clearly spelt out.

• Defining the key duty: Art. 355 places a duty on the Union to:

• protect every state from external aggression and internal disturbance; and
• ensure every state is governed according to the Constitution.

Punchhi saw Art. 355 as a less drastic tool than Art. 356.

The three bodies compared

Point	Sarkaria (1988)	NCRWC (2002)	Punchhi (2010)
Keep Art. 356?	Yes, as a last resort	Yes, used sparingly	Yes, plus a narrower "localised" option
Warn the state first	Yes	Yes	Yes (through codifying Bommai)
Floor test / alternative government	Explore an alternative government	Floor test	Write Bommai into the text
Dissolution before Parliament approves	No	No	No
New idea	Inter-State Council (Art. 263)	Codify Bommai	Localised emergency for up to 3 months; central forces without consent

The debate: delete Art. 356 or keep it?

• Case for deleting it:
• State autonomy: a state government elected by the people can be removed by the Centre.
• Partisan misuse: Art. 356 has often been used against opposition-ruled states.

• Other tools already exist:

  • Art. 355: the Union's duty to protect states;
  • Art. 365: if a state fails to follow Union directions, the President may hold that its constitutional machinery has failed;
  • the courts.

• Case for keeping it:

• Real breakdowns have happened, for example in Punjab (1987-92), J&K and Manipur (Class 12, Ch 7).
• Hung assemblies: sometimes no party or alliance can form any government.

• Physical breakdown: large-scale violence can stop the state government from working.

• A middle path: the commissions all chose to keep Art. 356 but restrict it. Punchhi's localised emergency is the most targeted version of this approach.

Has Art. 356 become a "dead letter"?

• Ambedkar's hope: in the Constituent Assembly, Ambedkar said such articles would ideally never be used and would stay a "dead letter" (a law on paper that is never used). Art. 356 was debated on 3-4 August 1949 and adopted on 4 August 1949 [4].
• Use has fallen since Bommai, but it has not stopped.
• Court remedies come late:
• Bommai was decided in 1994, five years after the Karnataka dismissal of 1989. By then the remedy had no practical value for the dismissed government.

• Rameshwar Prasad (2006): the Court held that the 2005 dissolution of the Bihar assembly was unconstitutional. Even so, it did not restore the assembly, because fresh elections were already under way.

• Political checks:

• The Rajya Sabha: a Proclamation needs approval from both Houses. A Rajya Sabha controlled by the opposition can block it.

• The President can send the advice back for reconsideration once (Art. 74(1)).

• The link back to federalism: emergency powers remain the stress test of cooperative federalism. How the Centre uses Arts. 355-356 shows whether the Union and the states treat each other as partners or as rivals.

Prelims Hooks

• Rajamannar Committee (1969, Tamil Nadu) asked for Arts. 356 and 357 to be omitted. The West Bengal memorandum (1977) asked for 356, 357 and 360 to be deleted.
• Sarkaria Commission: set up in 1983, reported in 1988, chaired by Justice R.S. Sarkaria. It called Art. 356 a "last resort" and recommended an Inter-State Council under Art. 263.
• "Speaking document" means a Governor's report that states its reasons and is published. This was a Sarkaria recommendation that NCRWC repeated.
• NCRWC: chaired by Justice M.N. Venkatachaliah and reported in 2002. It said retain Art. 356 and codify the Bommai safeguards.
• Punchhi Commission: set up on 27 April 2007 and reported on 31 March 2010 with 273 recommendations [2].
• Localised emergency (Punchhi) applies Arts. 355-356 to a district or part of a state for up to three months.
• Art. 356 timeline: approval needed within 2 months; then 6 months at a time; 3 years maximum. Punjab's Proclamation of 11 May 1987 was an exception allowed up to 5 years [4].
• Trap: going beyond one year needs both a National Emergency and an Election Commission certificate (44th Amendment, 1978). One condition alone is not enough.
• Case-principle pairs: S.R. Bommai (1994) set the floor test, judicial review and suspended animation before approval. Rameshwar Prasad (2006) held the Bihar dissolution unconstitutional, but the assembly was not restored.

Mains Points

• Delete or reform? Deleting Art. 356 would leave the Union with no tool when there is a real breakdown (Punjab, hung assemblies). Keeping it unchanged invites partisan misuse. All three commissions chose to keep it with safeguards. The best answer is to codify Bommai, as NCRWC and Punchhi proposed.
• Localised emergency as a balanced fix: it targets the troubled district and leaves the elected state government in charge everywhere else. The risk is that it lets the Centre step in more often, especially if central forces can be sent without the state's consent.
• The limits of court remedies: Bommai came five years late, and Rameshwar Prasad restored no assembly. Judicial review deters misuse but cannot fully repair the damage. Political checks (the Rajya Sabha, the President) and a Governor's report that states its reasons are needed as well.
• Cooperative federalism: Sarkaria's Inter-State Council (Art. 263) and its rule of "warn first" both rely on dialogue rather than takeover. Art. 356 has become a "near-dead letter" mainly through court rulings and political limits. Its text has not changed.