TUTORIAL SESSION 4| 10TH – 14TH FEBRUARY 2025

Outline:

 Theory
 Rahul Sagar
 Bommai and Article 356

THEORETICAL PERSPECTIVES (LONG SHADOW READING)

This is essentially a political theory question of how we situate martial
law or emergency provisions within a constitutional framework. The key
question is the state of exception something within the framework of the
law or located instead in a lawless space- a vacuum of law? Carl Schmitt,
proposed that essentially the sovereign of a state is he who decide what
is the state of exception and how to respond to it. Thus, whatever the
sovereign decides is extra-legal but has the force of law. So, the state
exists in this theory before the law, which is then created by the state.
This is kind of where the idea of “constituent power” also comes from
and here the source is not legal but political- the will of the people
power.
On the other hand, the Diceyan approach, based in liberalism, is the idea
that even the state of exception is governed within the rule of law and
does not justify anything outside the ordinary. Schmitt disagreed with
this because reality has shown how often the state does whatever it
wants to respond to an emergency and so considers the Diceyan view to
be a liberal fallacy. However, within the Diceyan approach there is an
idea that the executive may need certain freedom to respond to the
emergency. So, they may take extra legal measures. However, these
would later be subjected to review under the law by either passing a law
granting immunity for those actions or judicial review.
The other idea is that of an accommodation model where the law itself
gives the sovereign a certain flexibility in dealing with the emergency but
also places limits on these powers- sort of what we have in India.
However, the Schmittian critique is that the limits are really just an
illusion again and more or less abused.
ADDITIONAL DISTRICT MAGISTRATE, JABALPUR V. SHIVKANT SHUKLA,
AIR 1976 SC 1207
 FACTS: In exercise of the powers conferred by Clause (1) of Art.
352 of the Constitution The President of India, by proclamation
dated December 23, 1971 declared that a grave emergency exists
whereby the security of India is threatened by external aggression
and the Maintenance of Internal Security Act 1971 was published
on July 2 1971, for effectively dealing with the emergency. On
November 16, 1974, the President of India, in exercise of the
powers conferred by Clause (1) of Art. 359 of the Constitution
declared: (a) that the right to move any court with respect to
orders of detention which have already been made or which may
hereafter be made under s. 3(1)(c) of the MISA 1971 for the
enforcement of the rights conferred by Articles 14, 21 and
Clauses (4) (5), (6) and (7) of Article 22 ; and (b) All proceedings
pending in any court or the enforcement of any of the aforesaid
rights with respect to all orders of detention made under the
said section 3(1)(c) shall remain suspended.
Various persons detained under Section 3(1) of the MISA filed
petitions in different High Courts for the issue of the writ of habeas
corpus. When those petitions came up for hearing, the Government
raised a preliminary objection to their maintainability on the
ground that in asking for release by the issuance of a writ of
habeas corpus, the detenus were in substance claiming that they
had been deprived of their personal liberty in violation of the
procedure established by law, which plea was available to them
under Article 21 of the Constitution only. The right to move for
enforcement of the right conferred by that article having been
suspended by the Presidential Order dated June 27, 1975 the
petitions, according to the Government, were liable to be dismissed
at the threshold.
The preliminary objection has been rejected for one reason or
another by the High Courts of Allahabad, Bombay, Delhi,
 Karnataka, Madhya Pradesh, Punjab and Rajasthan. Broadly, these
High Courts have taken the view that despite the Presidential
Order it is open to the detenus to challenge their detention on the
ground that it is ultra vires, as for example, by showing that the
order on the face of it is passed by an authority not empowered to
pass it, or it is in excess of the power delegated to the authority, or
that the power has been exercised in breach of the conditions
prescribed in that behalf by the Act under which the order is
passed, or that the order is not in strict conformity with the
provisions of the Act. Some of these High Courts have further held
that the detenus can attack the order of detention on the ground
that it is mala fide, as for example, by showing that the detaining
authority did not apply its mind to the relevant considerations, or
that the authority was influenced by irrelevant considerations, or
that the authority was actuated by improper motives. Being
aggrieved by the finding recorded by these High Courts on the
preliminary point, the State Government and the Government of
India have filed these appeals, some under certificates granted by
the High Courts and some by special leave granted by this Court.
The High Courts of Andhra Pradesh, Kerala and Madras have
upheld the preliminary objection.
 ISSUE: The main contention was whether Article 21 was the
repository of all rule of law in India or rule of law is such a basic
feature that it must be complied with irrespective of which articles
are suspended. Respondents were arguing that pre-Constitutional
rights did not merge with the FRs and so they continued to exist
even after the Constitution.
 RULE: J Beg: The only Rule of Law which can be recognised
by courts of our country is what is deducible from our
Constitution itself. The Constitution is an embodiment of the
highest "positive law" as well as the reflection of all the rules
of natural or ethical or common law Lying behind it which
can be recognised by courts. The spirit of law or the Rule of
 Law Cannot hover ominously around like some disembodied
ghost serving as a substitute for the living Constitution. It
has to be found always within and operating in harmony with
and never outside or in conflict with what our Constitution
enjoins. His while tenor is that there can be no common law or
rule of law outside the constitution and so if that is suspended, that
is it.

The Majority basically agrees that the rule of law was taken from
natural law and then uplifted to the level of an FR reposed in
Article 21 and now that it is suspended there is no other right.
Chandrachud J. goes a step further to say that since Article 359
suspends all rights, irrespective of merger of the rule of law natural
right with the FR, all rights related to personal liberty and freedom
stand suspended.

 J Khanna, DISSENT:
The effect of the suspension of the right to move any court
for the enforcement of the right conferred by Article 21, in
my opinion, is that when a petition is filed in a court, the
court would have to proceed upon the basis that no reliance
can be placed upon that article for obtaining relief from the
court during the period of emergency. Question then arises
as to whether the rule that no one shall be deprived of his
life or personal liberty without the authority of law still
survives during the period of emergency despite the
Presidential Order suspending the right to move any court
for the enforcement of the right contained in Article 21. The
answer to this question is linked with the answer to the
question as to whether Article 21 is the sole repository of the
right to life and personal liberty. After giving the matter my
earnest consideration, I am of the opinion that Article 21
cannot be considered to be the sole repository of the right to
life and personal liberty. The right to life and personal
liberty is the most precious right of human beings in
civilised societies governed by the rule of law… Even in the
absence of Article 21 in the Constitution, the State has got
no power to deprive a person of his life or liberty without the
authority of law. This is the essential postulate and basic
assumption of the rule of law and not of men in all civilised
nations. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by
laws would cease to have any meaning. The principle that no
one shall be deprived of his life or liberty without the
authority of law is rooted in the consideration that life and
liberty are priceless possessions which cannot be made the
plaything of individual whim and caprice and that any act
which has the effect of tampering with life and liberty must
receive sustenance from and sanction of the laws of the land.
Article 21 incorporates an essential aspect of that principle
and makes it part of the fundamental rights guaranteed in
Part III of the Constitution. It does not, however, follow from
the above that if Article 21 had not been drafted and
inserted in Part III, in that event it would have been
permissible for the State to deprive a person of his life or
liberty without the authority of law… I am unable to
subscribe to the view that when right to enforce the right
under Article 21 is suspended, the result would be that there
would be no remedy against deprivation of a person's life or
liberty by the State even though such deprivation is without
the authority of law or even in flagrant violation of the
provisions of law. The right not to be deprived of one's life or
liberty without the authority of law was not the creation of
the Constitution. Such right existed before the Constitution
came into force. The fact that the framers of the
Constitution made an aspect of such right a part of the
fundamental rights did not have the effect of exterminating
 the independent identity of such right and of making Article
21 to be the sole repository of that right. Its real effect was
to ensure that a law under which a person can be deprived of
his life or personal liberty should prescribe a procedure for
such deprivation or, according to the dictum laid down by
Mukherjea, J. in Gopalan case, such law should be a valid
law not violative of fundamental rights guaranteed by Part
III of the Constitution. Recognition as fundamental right of
one aspect of the pre-constitutional right cannot have the
effect of making things less favourable so far as the sanctity
of life and personal liberty is concerned compared to the
position if an aspect of such right had not been recognised
as fundamental right because of the vulnerability of
fundamental rights accruing from Article 359. I am also
unable to agree that in view of the Presidential Order in the
matter of sanctity of life and liberty, things would be worse
off compared to the state of law as it existed before the
coming into force of the Constitution.

RAHUL SAGAR-EMERGENCY POWERS

 Through this piece, Sagar tries to argue that despite the provisions
and extensive Supreme Court decisions on these matters, these
provisions still have many loopholes which can be exploited but just
haven’t been because of 1) calmness on the international front (wars
involving India) and 2) relatively weak Union govt made by coalitions.
o Gopal Subramanium also makes a similar point that post-
emergency amendments to these sections have also added to the
confusion and muddle.
 Sagar first explores the CAD on these Articles, coming to the idea that
they don’t really deal with emergency in the conventional sense, but
rather with a concept of “militant democracy”. Article 356 seems to be
added to battle what would have been under Article 352 as “internal
disturbances” so the actual purpose seems to be to quell political
 dissidence, such as the influence of communism through electoral
politics or been through violence which is why it may have been
placed in the “emergency” Part. Similarly he discusses how Article
360 has been placed as a financial equivalent of militant democracy to
be able to curb spending by the State due to populist measures.

1. ARTICLE 352 CASES

 This has been invoked 3 times in India: 1) In 1962 during Indo-Sino
War, 2) 1971 Indo Pak War and 3) 1975 Emergency
 Note that Article 359 seems to apply only to national emergencies
and not state ones.

MAKHAN SINGH TARSIKKA V. STATE OF PUNJAB, AIR 1964 SC 381.

 FACTS: Makhan Singh Tarsikka and many other were detained
under the Defense of India Act, and all of these petitions were
being heard together by the Supreme Court. Their contention was
that s. 3(2)(15)(1) and s. 40 of the Defence of India Act, 1962 (No.
51 of 1962) and Rule 36(1)(b) under which they have been detained
are constitutionally invalid, because they contravene their
fundamental rights under Articles 14, 21 and 22(4), (5) & (7) of the
Constitution, and so, they claimed that an order should be passed
in their favour directing the respective State Governments to set
them at liberty. These petitions have been dismissed by the High
Court level on the ground that the Presidential Order which has
been issued under Art. 359 of the Constitution creates a bar which
precludes them from moving the High Court under s. 491 (1) (b)
Cr. P. C.
 ISSUE: The first question is : what is the true scope and effect of
the Presidential Order which has been issued under Art. 359
(1) ? The answer to this question would depend upon a fair and
reasonable construction of Art. 359(1) itself. The second question is
: does the bar created by the Presidential Order issued under Art.
359(1) operate in respect of applications made by detenues under
section 491 (1) (b) of the Code? The answer to this question would
 depend upon the determination of the true character of the
proceedings which the detenues have taken under s. 491(1)(b),
considered in the light of the effect of the Presidential Order issued
under Art. 359(1).
 Attorney General relied on Liversidge v. Anderson (1942)
(foundational admin law case in India- sets limits for judicial
review- HOL decision-colonial continuity since it only said "need to
be satisfied" and doesn't look at what they need to look at being
satisfied) The minority in Anderson by lord Atkin said that laws are
not silent in a state of exception- they may change but they speak
the same language. Says that the judges are standing b/w the
citizen and the executive alter that any coercive etc of the state is
justified in law. So Atkins takes the position that law constitutes the
state and so there is law in an emergency also unlike Carl Schmitt.
 ARTICLES: 358. While a Proclamation of Emergency is in
operation, nothing in article 19 shall restrict the power of the State
as defined in Part III to make any law or to take any executive
action which the State would but for the provisions contained in
that Part be competent to make or to take, but any law so made
shall, to the extent of the competency, cease to have effect as soon
as the Proclamation ceases to operate, except as respects things
done or omitted to be done before the law so ceases to have effect
 359-(1) Where a Proclamation of Emergency is in operation, the
President may by order declare that the right to move any Court for
the enforcement of such of the rights conferred by Part III as may
be mentioned in the order and all proceedings pending in any court
for the enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation is in force
or for such shorter period a may be specified in the order.
(2)Any order made as aforsesaid may extend to the whole or any
part of the territory of India."
 RULE: Majority by J Gajendragdkar agreed with the HCs: In other
words, [by Article 358] the suspension of Art. 19 is complete
 during the period in question and legislative and executive
action which contravenes Art. 19 cannot be questioned even
after the emergency is over. Article 359, on the other hand,
does not purport expressly to suspend any of the
fundamental rights. It authorises the President to issue an
order declaring that the right to move any court for
enforcement of such of the rights in Part III as may be
mentioned in the order and all proceedings pending in any
court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the
Proclamation is in force or for such shorter period as may be
specified in the order. What the Presidential Order purports
to do by virtue of the power conferred on 'the President
by Art. 359(1) is to bar the remedy of the citizens to move
any court for the enforcement of the specified rights. The
rights are not expressly suspended, but the citizen is
deprived of his right to move any court for their
enforcement. That is one important distinction between the
provisions of Art. 358 and Art. 359(1).
 Also clarifies that the scope of Article 391(1) includes moving HC
under Article 226 and not just Article 32 rights since it says “any
court”.
 The prohibition contained in the said Article and the
Presidential Order will apply as much to proceedings under
s. 491(1)(b) as to those under Art. 226(1) & Art. 32(1). In
this connection, it is hardly necessary to emphasise that in
deciding the present question, we must take into account the
substance of the matter and not attach undue or
exaggerated importance to the form of the proceedings.
 Also gave ideas for how citizens could still challenge their
detention:
o If in challenging the validity of his detention order,
the detenu is pleading any right outside the rights
 specified in the Order, his right to move any court in
that behalf is not suspended, because it is outside Art.
359(1) and consequently outside the Presidential Order
itself.
o If they can prove that the order suffers from malafides
o If a detenu contends that the operative provision of the
law under which he is detained suffers from the vice of
excessive delegation and is, therefore, invalid, the plea
thus raised by the detenu cannot at the threshold be
said to be barred by the Presidential Order.
 COMMENT: So overall the court sides with the majority in
Liverside saying that the determination of what constitutes an
emergency and the order is a Political question and not for the
court to decide.
 DISSENT: J Subba Rao, Disagreed that Sec 491 is also affected by
Article 359. He emphasises that there is a difference in Article 35
and 359, while the former suspends the right, the latter only
suspends the remedy. Under Arts. 32 and 226, an affected
party can approach the Supreme Court or the High Court, as
the case may be, only in the manner prescribed under Art.
32(2) or Art. 226 i.e., by way of writs and orders mentioned
therein : he must ask the court for the enforcement of this
fundamental right. The relief implies that he must establish
that he has a fundamental right, that his fundamental right
has been infringed by the State and, therefore, the Court
should give the appropriate relief for the enforcement of
that right. Both the right as well as the procedure are the
creatures of the Constitution. Whereas s. 491 of the Code
assumes the existence of the "rule of law" and confers a
power on the High Court… Briefly stated, Art. 359 provides
for the suspension of some constitutional rights in the
manner prescribed thereunder. The statutory rights are left
to be dealt with by the appropriate Legislature in exercise of
 the powers conferred on them. The argument that the
intention of the makers of the Constitution in enacting Art.
359 would be defeated, if s. 491 of the Code was salvaged,
does not appeal to me. to direct persons in illegal detention
to be set at liberty. It is not bound by any technical
procedures envisaged by the Constitution.

ADDITIONAL DISTRICT MAGISTRATE, JABALPUR V. SHIVKANT SHUKLA,

AIR 1976 SC 1207
 Doesn’t address the question of whether the Proclamation can be
reviewed.
 So Rahul Sagar concludes with some observations about Article
352:
1. That the question of review is still open for Article 352.
However decisions of detention during emergency are
reviewable thanks to Amendment 44 which prevented the
suspension of Art 20 and 21 during an emergency.
2. That Art. 352 really gives us very fragile protection, it really
is dependent on operation.
3. That our courts need to be ready to step in case of
emergencies unlike in the ADM case where basically the
majority insisted that people place their trust in the
executive. All 4 in the majority went on to be CJIs as well…

2. ARTICLE 356 CASES

 He mainly discusses the Rajasthan and Bommai decisions.
 He makes the following observations on the basis of these cases:
1. That Bommai was welcome in identifying situations
procedural requirements for a valid imposition of President’s
Rule, including the need for Parliament to agree on the
dissolution of State Legislature.
2. However, Bommai leaving upon the grounds for imposing
President’s Rule, including expanding on malafides is
concerning, leaves open too much discretion.
 3. Bommai also sets a dangerous precedent in saying that basic
structure and preambulatory values (like Secularism) can
also be invoked validly to declare President’s rule, apart from
combatting internal subversion and non-compliance, mainly
because these concepts are vague and easily politicised.
 His main point is a caveat that court decisions have not really made
these provisions any clearer so only time will tell how these are
invoked in the future.

ARTICLE 356 SOLI SORABJEE

He gives us an account of the history before the Bommai decision on
Article 356. Very useful reading to understand the arguments made in
Bommai and what was actually held by the majority. He starts with an
exposition on the Rajasthan Case

STATE OF RAJASTHAN V. UNION OF INDIA, AIR 1977 SC 1361.

FACTS: In the general elections to Parliament held in March 1977 the
ruling Congress party suffered a massive defeat in nine States viz. Bihar,
U.P., Himachal Pradesh, Haryana, Madhya Pradesh, Orissa, Punjab,
Rajasthan and West Bengal. On 17-04-1977, the Union Home Minister
addressed a letter to the Chief Minister of each of these States asking
them to advise their respective Governors to dissolve the Assemblies and
seek a fresh mandate from the people. This was followed by a broadcast
of the Law Minister whose theme was that the government in the
Congress ruled States had forfeited confidence of the electorate and their
continuance in office was undemocratic. Six states, viz. the States of
Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, and
Orissa filed writ petitions in the Supreme Court under Article 32. The
main submission of the petitioners was that the Home Minister's letter
and the radio broadcast of the Law Minister constituted a clear threat of
dissolution of the assemblies and disclosed grounds which were prima
facie outside the purview of Article 356 of the Constitution.

RULING: The Court held that merely because this was a political
question does not mean the courts need to shrink back. However, these
 decisions are subjective and consider a large number of factors making
the determinable of judicially manageable standards of review tricky. So
they set the standard of JR to be:

But one thing is certain that if the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would have jurisdiction to examine
it ...22 This is the narrow minimal area in which the exercise of power under
Article 356, clause (1) is subject to judicial review and apart from it, it cannot
rest with the Court to challenge the satisfaction of the President that the
situation contemplated in that clause exists

Using this, on facts the court held that since there was a massive defeat
of Congress at the state level, this was not an irrelevant consideration in
regards to the stability and operation of governance between the centre
and states.

S.R. BOMMAI V. UNION OF INDIA, AIR 1994 SC 1918 ( 9 JUDGE

BENCH)

Judges/ Interpretatio Scope of Judicial review of 356

Issues n of Article
356
JJ Sawant Used Most extensive JR among opinion, held that the
and wherever President's satisfaction has to be based on objective
Kuldip governance material and further that the objective material
Singh of the state available either from the Governor's report or
has reached from other information or both must indicate that the
an impasse government of the State cannot be carried on in
which accordance with the provisions of the Constitution.
cannot be Consequently, the validity of the proclamation issued by
solved the President under Article 356(1) is judicially
otherwise. reviewable to the extent of examining whether it
was issued on the basis of any material at all or
whether the material was relevant or whether the
proclamation was issued in the mala fide exercise
of the power. Once such material is shown to exist, the
satisfaction of the President based on the material is
not open to question. It is for the Union to show that
the relevant facts existed for Proclamation.
JJ Not for Conclude that it is a subjective decision, so cannot go
Jeevanred every into the material. even if part of the material is
dy and noncomplian irrelevant, the court cannot interfere so long as there is
Agarwal ce by the some material which is relevant to the action taken
state but
only whrever Soli Sorabjee comments on how technically, this makes
State the majority only a majority because there is no explicit
government rejection of the point on materials by Jeevanreddy and
cannot be Agarwal.
carried out
in
accordance
with the
Constitution
J Pandian - Agrees with Sawant and Kuldip on material relevance
and with Jeevanreddy and Agarwal on the fact that if
 there is material is irrelevant point.
Minority Agrees with Make 4 main points:
(JJ majority  No judicially manageable standards for review on
Ahmadi, this question
Verma,  This is a subjective enquiry granted to the President
Dayal and so how can we set narrow standards of review
K  Cannot apply adminsitrative standards here, apart
Ramaswa from malafides
my)  Since Article 352 is also not subject to JR, neither
should 356 since they are both emergency
provisions.
Consens Basically Presidential proclamation issued under Article 356 of
us there is the Constitution is not completely beyond judicial
consensus review.
that not All the judges are also agreed that mala fides provides a
every non ground for judicial interference. The main zone of
compliance disagreement has been about the area and extent of
can lead to judicial review and justiciability of the Presidential
invoking proclamation.
356.

 So basically we now have 3 standards of review from lowest to

highest:
1. Malafides
2. Some material
3. Relevant material
o Bommai doesn’t really clarify if 2 or 3 is the standard
unfortunately because majority somehow agrees with both.
 Floor tests: The majority view is that the floor of the House is the sole
constitutionally ordained forum. The assessment of the strength of the
Ministry is capable of being demonstrated and ascertained publicly in
the House. Hence when such demonstration is possible, it is not open
to bypass it and instead depend upon the subjective satisfaction of the
Governor or the President. Such private assessment is an anathema to
the democratic principle, apart from being open to serious objections
of personal mala fides.148 This rule can be departed from only in an
extraordinary situation where because of all-pervasive violence a free
vote is not possible in the House. Bommai also said that Imposition of
President's rule and dissolution of State Assembly cannot be done
together. And that State Assembly can be dissolved only after
Parliament approves Central rule.