WHETHER THE PRESIDENT IS BOUND BY THE ADVICE OF THE COUNCIL OF MINSITERS’ ADVICE DURING THE PROCLAMATION OF EMERGENCY
THIS ARTICLE WAS WRITTEN BY JENNIFER PHILIP, STUDENT OF SCHOOL OF LAW, BENNETT UNIVERSITY.
Emergency
“I do not believe that a democratic society has the obligation to acquiesce in its own dissolution”[1]. This is an excerpt from a newspaper report which was published a month after the country witnessed its third National Emergency[2]. It signifies the impact that a declaration of emergency has on the citizens of a country. It is therefore necessary for the Constitution to have proper provisions governing it so that it does not become a tool to take away the rights of the citizens, especially in a democratic country like India. Part XVIII of the Constitution of India contains the Emergency Provisions. Three different types of emergencies are mentioned:
No other Constitution had a parallel provision at the time when the emergency provisions were being discussed in the Constituent Assembly. After gaining independence, the political scenario of the country was such that the members of the Constituent Assembly felt the need to have included certain provisions during internal aggressions or war like situations. The President who is the Constitutional Head of the State can declare emergency in National Emergency instances: “the security of India or of any part thereof if threatened, whether by war or external aggression or armed rebellion”[6]. India witnessed three National Emergencies, the first two on the grounds of external aggression and the last one due to internal disturbances causing political instability. State emergency can be declared if “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution”[7]. Financial Emergency is called in situations “whereby the financial stability or credit of India or any part of the territory thereof is threatened”[8]. It has never been declared till date. It is an extraordinary condition wherein the federal powers do not remain in order and powers rest in the hands of the Central Government. Fundamental Rights except the Right to Life under Article 21 gets limited and the government can act as per its whims and fancies. People could be taken into detention even without giving proper reasons by calling it as an act done to safeguard the security of the nation.
Should President be guided by the aid and advice of the Council of Ministers during the proclamation of Emergency?
In none of the nine articles of this part of the Constitution has been an explicit mention as to whether the President is to be guided by the aid and advice of the Council of Ministers. But Article 74 of the Constitution lays downs that the President has to exercise his functions and act in according to the aid and advice of the Council of Ministers. Declaration of Emergency is a significant power given to the head of the State and therefore he is bound by the Constitutional provision of taking the aid and advice of the Council of Ministers.
Article 352[9] envisages that the President cannot declare emergency unless issuance of such a Proclamation has been communicated to him in writing by the Cabinet. The Cabinet does not include the whole of the Council of Ministers but only those mentioned in Article 75 of the Constitution. But it has to be laid before each House of the Parliament. During the proclamation of the third emergency, Fakhruddin Ali Ahmed[10], declared emergency by acting on the advice of the then Prime Minister Smt. Indira Gandhi. She had not consulted her Cabinet before advising the President to do so.
Is the President bound by the aid and advice of the Council of Ministers or whether the President has the power to refuse to invoke emergency against the aid and advice of the Council of Ministers?
This was a matter of great debate in the Constituent Assembly when the Constitution was being drafted. H.V.Kamath was of the opinion that “Though there will be Cabinet to aid him, nowhere have we laid down that he must accept the advice of the Council of Ministers. There will not be any check on him”[11]. According to him such wide powers, if given to the President would subvert the Constitution itself. Even though it is not explicitly mentioned in the Constitution that the President is bound by the advice of the Council of Ministers, it is set up by the conventions. All the three emergencies declared were in accordance with this convention. Articles 352(1), 356 and 360 of the Constitution of India which deals with three emergencies require the satisfaction of the President to be the criteria for declaring emergency. In Shamsher Singh v State of Punjab, it was held that “the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but is the satisfaction of the President or Governor in the constitutional sense under the Cabinet system of government”[12]. This judgement overruled the earlier view of personal satisfaction of President in Sardari Lal v Union of India and Ors.[13] Satisfaction of the Council of Ministers implies that the President is bound by the aid and advice of the Council of Ministers. Unless he acts according to their advice he cannot comply by the satisfaction as in the provisions contained in the Constitution. On the review by courts on the validity of the declaration of state emergencies, it was held that if there is a misuse of the power then it can be reviewed[14].
In case of the proclamation of State Emergency, “satisfaction of the President should be the result of comprehending in his owns way the facts and circumstances relevant to the subjective satisfaction. Satisfaction should be of the President alone, which is of the Council of Ministers”[15]
“When a President is to be impeached for the violation of the Constitution, the charge shall be preferred by either House of Parliament”[16]. Noncompliance of the provisions of the Constitution by the President is the criteria for him to be impeached. No President would go against the Constitution for him to be impeached from his office. This could be one of the reasons why a separate provision or an explicit mention of this is not given in the Constitution. No President till date has been impeached from his office and this shows the great power which the Constitution of India has.
Why would have such a power given to the Council of Minsters?
Even though the President is the head of the nation[17], he is bound by the aid and advice of the Council of Ministers. The Constitution gives immense power to the Council of Ministers. Though the President is the vested with executive powers under Article 53(1)[18], he/she has to take the advice of the Prime Minister as well as the Council of Ministers while exercising these functions[19] and this was also upheld by the Supreme Court[20]. One reason can be because of the democratic character of the Indian Constitution. Council of Ministers are directly elected by the people whereas the President is indirectly elected by the Electoral College[21]. Democracy is when the real power vests in its citizens and they could exercise this power only through the representatives they elected. It may also be based on the presumption that the elected representatives would not make a mistake and the President should not be given arbitrary powers so as to prevent him from being a dictator. Emergency is a time when the country turns from a federal system to a unitary state. The situation when the basic human rights of many are curbed is not to be taken lightly and any decision regarding the imposition of such a state should not be done without proper consultation. This does not mean that the Council of Ministers cannot do wrong or make no mistake. But it is always better that more people are consulted before taking such decisions making it a democratic process. Another reason would be the consideration as to the difficulty in judging as to whether it is an emergency situation or not by the President as he is also a human being, and that the discretion of an individual may lead to a wrongful choice also.
Conclusion
Dr. B.R. Ambedkar while including emergency provisions in the Constitution of India wanted it to be a dead letter[22]. But there have been many instances when emergency was proclaimed in the country. Even though the power to proclaim emergency rests with the President of the nation, he will have to obtain the aid and advice of the Council of Ministers. No explicit mention regarding this is not given in the emergency provisions but many judgements have held that the satisfaction of President whenever required would mean the satisfaction of the council of ministers. This would prevent the President from acting arbitrarily, thereby upholding the democratic feature of the Constitution.
[1] Saturday Review, 9th August 1975
[2] https://timesofindia.indiatimes.com/readersblog/rationaletalks/national-emergency-1975-1303/ (last visited on April 11, 2021)
[3]INDIAN CONST art 352
[4] INDIAN CONST art 356
[5] INDIAN CONST art 360
[6] Supra,3
[7] Supra, 4
[8] Supra,5
[9] Supra, 3
[10] https://www.downtoearth.org.in/blog/when-trains-ran-on-time-44920 (last visited on April 11, 2021)
[11] Constituent Assembly Debates 2nd Aug 1949
[12] Shamsher Singh v State of Punjab AIR 1975 SCR (1) 814
[13] Sardarin Lal v Union of India AIR 1971 3 SCR 461
[14] State of Rajasthan v Union of India 1977 AIR 1361
[15] S.R. Bommai v Union of India AIR 1990 Kant 5
[16] INDIAN CONST art 61
[17] Dr. B. R. Ambedkar while introducing the Draft Constitution, http://164.100.47.194/Loksabha/Debates/Result_Nw_15.aspx?dbsl=144&ser=&smode= (last visited on April 11, 2021)
[18] Article 53(1) of the Constitution of India, 1950
[19] Article 75 of the Constitution of India, 1950
[20] Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549
[21] Article 55 of the Constitution of India
[22] Constituent Assembly Debates, 4th Aug 1949
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