¹ Herbert Krüger, Hans Nawiasky, Carl Schmitt, Paul Kirchhof, Ulrich Scheuner and Klaus Stern are proponents of this approach. For a comparison of state-centered and constitution-centered theories see Jakab, András, German Constitutional Law and Doctrine on State of Emergency—Paradigms and Dilemmas of a Traditional (Continental) Discourse, 7 German L.J., 453, 453–78 (2005).Google Scholar

² Ernst-Wolfgang Böckenförde, The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances [1978], in Constitutional and Political Theory: Selected Writings 100 (Mirjam Künkler & Tine Stein eds., 2017).Google Scholar

³ The objective of the Appropriation Bill is to give the government the authority to withdraw the necessary capital from the Consolidated Fund of India in order to meet expenses that might occur during the fiscal year. The convention for passing Bills in Parliament and in the state legislative assemblies is through a voice vote—the legislators orally communicate “aye” or “nay” when the motion is put to vote. But when some legislators do not want a voice vote and instead demand a division, the Speaker of the House must record every vote either through an electronic system, if available, or through the physical division of the legislators into the ayes and the nays.Google Scholar

⁴ See infra Appendix 1.Google Scholar

⁵ I am grateful to the anonymous reviewer for highlighting this concern.Google Scholar

⁶ India Const.Google Scholar

⁷ In S.R. Bommai v. Union of India, 3 SCC 1 (1994), Justice Sawant held, in paragraph 2, that Article 355 was not an independent source of power for interfering with the functioning of the State government but was in the nature of justification for the measures to be adopted under Articles 356 and 357.Google Scholar

⁸ In a Westminster parliamentary democracy, the head of the government is elected by the Parliament, unlike in a Presidential system where the President is elected directly by the people. In India, following the convention of the British system, the leader of the single largest party in Parliament is invited to form the government, which could be a majority government, if the party has a majority of legislators, or if it does not, then it could form a minority or a coalition government, with the support of some other parties in parliament. A similar system plays out at the federal state level in the legislative assemblies. It must be noted that the Indian constitution is unique in stipulating the protection of the states by the Union in Article 355; other Westminster parliamentary democracies do not contain such an Article.Google Scholar

⁹ Böckenförde, supra note 2, at 114.Google Scholar

¹⁰ Id. at 111.Google Scholar

¹¹ Id. at 114.Google Scholar

¹² Günter Frankenberg asks whether Böckenförde's model can account for the unforeseeable better than, for instance, the emergency constitution of the Basic Law of postwar Germany. Günter Frankenberg, Political Technology and the Erosion of the Rule of Law: Normalizing the State of Exception (2014).Google Scholar

¹³ The Armed Forces (Special Powers) Act, 1958 (India) http://nagapol.gov.in/PDF/The%20Armed%20Forces%20Special%20Powers%20Act%201958.pdf.Google Scholar

¹⁴ Frankenberg points out that Gertrude Lübbe-Wolff is right to critique Böckenförde on this. It is not possible to effectively rule out the political temptation to use a vague general authorization in an exceptional situation by following a model of necessity as justification. This is even more the case if an emergency provision under constitutional law establishes preconditions, even if they are only minimal, for instance, with regard to powers, procedures, and purposes. Frankenberg, supra note 12, at 110–20.Google Scholar

¹⁵ See Böckenförde, supra note 2, at 129.Google Scholar

¹⁶ Id. at 130.Google Scholar

¹⁷ Id. Google Scholar

¹⁸ Id. Google Scholar

¹⁹ India Const.Google Scholar

²⁰ See supra note 8, at 120.Google Scholar

²¹ See infra Appendix 1 for the full text of Article 356. The British colonial government introduced Section 93 as an insurance policy after the Government of India Act of 1935 delegated powers of governance to ministries formed by elected Indian political parties. The Congress Party—which had won the elections in eight of the 11 provinces at the time—protested strongly against the undemocratic provision of Section 93. It demanded that the British Viceroy give an assurance that the governor would not interfere with the working of the elected provincial governments. Viceroy Linlithgow did and Congress subsequently assumed office. See Daniyal, Shoaib, A Short History of the Colonial Origins of President's Rule and its Misuse in Independent India, Scroll.in, (Feb 1, 2016, 11:30 AM) https://scroll.in/article/802736/a-short-history-of-the-colonial-origins-of-presidents-rule-and-its-misuse-in-independent-india.Google Scholar

²² H.V. Kamath, CA Debates, Volume IX, 142–144.Google Scholar

²³ Id. Google Scholar

²⁴ Id. at 154.Google Scholar

²⁵ U.S. Const. art. IV, § 4.Google Scholar

²⁶ Sarkaria Commission Report, para. 6.2.07, http://interstatecouncil.nic.in/wpcontent/uploads/2015/06/CHAPTER_VI.pdf.Google Scholar

²⁷ CA Debates, supra note 22, at 177.Google Scholar

²⁸ See Article 356, cl. 3.Google Scholar

²⁹ See Article 356.Google Scholar

³⁰ Santhanam, K., Madras General, Vol. IX, 153.Google Scholar

³¹ See Böckenförde, supra note 2.Google Scholar

³² See Choudhary, Manju, Critical evaluation of some aspects of working of parliamentary form of government and federal system in India, Chapter 8 (2004), http://shodhganga.inflibnet.ac.in/bitstream/10603/58893/15/15_chapter%208.pdf.Google Scholar

³³ The report recommended that in a situation of political breakdown, the Governor should explore all possibilities of having a government that enjoyed majority support in the Assembly. If it is not possible for such a government to be installed, and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry if there is one to continue as a caretaker government. Such would require that the Ministry was defeated solely on a major policy issue, unconnected with any allegations of maladministration or corruption and that it would be agreeable for the outbound Ministry to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker government should be allowed to function. As a matter of convention, the caretaker government should merely carry on the day-to-day government and desist from taking any major policy decision. See Sarkaria Commission Report, supra note 26, para. 6.8.04. Having been invoked only thrice between 1950 and 1954, the number increased to nine occasions between 1965 and 1969; to twenty-one instances between 1975 and 1979, and eighteen times between 1980 and 1987. By 2016, it had been invoked 120 times.Google Scholar

³⁴ The forty-second Amendment extended the period for seeking Parliament's approval of the proclamation of Emergency under Article 356 to one year, as opposed to the earlier six-month limit. After the lifting of President's Rule, states had to enact new laws to undo the emergency provisions by amending Article 357. The Amendment also gave the Union Government the right to authorize the use of any central military force “for dealing with any grave situation of law and order in any State.” The President was empowered, in consultation with the Election Commission, to disqualify members of State Legislatures. See Forty-Second Amendment: http://indiacode.nic.in/coiweb/amend /amend42.htm.Google Scholar

³⁵ State of Rajasthan v. Union of India, (1977) 3 SCC 592 (India).Google Scholar

³⁶ This case was decided when Article 356 contained Clause 5, where the satisfaction of the President was final, and not to be questioned in a court. Clause 5 was deleted by the forty-fourth Amendment.Google Scholar

³⁷ The procedure for challenging president's rule is to first approach the relevant high court, and only later, the Supreme Court.Google Scholar

³⁸ Sunderlal Patwa v. Union of India (UOI) and ORS, 1993 AIR 214.Google Scholar

³⁹ Bommai v. Union of India, AIR 1994 SC 1918. Also see, Sorabjee, Soli J., The Bommai Judgment: A Critique, (1994) 3 SCC (Jour) 1.Google Scholar

⁴⁰ Judges in India tend to write separate judgments wherein they may agree with parts or the whole of their colleague's judgment. Notably, these separate judgements may be silent on some aspects. This makes it difficult to identify a majority ruling. One eminent constitutional scholar and lawyer has suggested that if a silence ought to be construed as agreement, and if a majority have similar views on an aspect of the case, that ought to be regarded as a majority ruling.Google Scholar

⁴¹ A.G. Noorani, President's Rule: Limits and Checks, 28 Frontline (Jun. 4–17, 2011), http://www.frontline.in/static/html/fl2812/stories/20110617281204500.htm.Google Scholar

⁴² Harish Chandra Singh Rawat v. Union of India, Writ Petition (M/S) No. 795 of 2016.Google Scholar

⁴³ Id. at para. 60.Google Scholar

⁴⁴ Id. at para. 69.Google Scholar

⁴⁵ Id. at para. 14.Google Scholar

⁴⁶ Id. at para. 96.Google Scholar

⁴⁷ Id. at para. 59Google Scholar

⁴⁸ Rajeev Dhavan, The Supreme Court's Order on Uttarakhand is Absurd, The Wire (Apr. 4, 2016).Google Scholar

⁴⁹ The Supreme Court asked the Center: How can the Union Cabinet sitting in New Delhi determine that a Money Bill was not validly passed in the Uttarakhand State Assembly and pave the way for imposing President's rule in the State? Accordingly, Justice Dipak Misra asked the Center, “[t]he million dollar question is when the Assembly Speaker said the Money Bill was passed on March 18, how did you say it was not?” In response, the Center insisted that the non-passage of the Money Bill would have seen the State slip into chaos and the President could not have let that happen. It submitted that the Speaker had refused a division of votes on the Money Bill despite a request from the “majority”—35 MLAs made up of 26 BJP MLAs and nine Congress rebels—in the House on March 18. This had proved that the government was already a “minority” from that day; insofar as the Center was concerned the real floor test happened on March 18 itself and there was no need for a further no-confidence motion. See Rajagopal, Krishnadas, President's Rule to Continue in Uttarakhand, The Hindu (Apr. 27, 2016), http://www.thehindu.com/news/national/uttarakhand-supreme-court-frames-seven-questions-to-centre/article8528152.ece.Google Scholar

⁵⁰ Bommai v. Union of India, AIR 1994 SC 1918.Google Scholar

⁵¹ Krishnadas Rajagopal, SC Stays Uttarakhand HC Judgement Quashing President's Rule, The Hindu (Apr. 22, 2016), http://www.thehindu.com/news/national/other-states/SC-stays-Uttarakhand-HC-judgement-quashing-Presidents-Rule/article14251707.ece.Google Scholar

⁵² The reason for allowing the disqualification to stand is articulated by one of the Supreme Court judges:Google Scholar

Justice Misra addressed senior advocate C.A. Sundaram, appearing for the nine dissident MLAs. Krishnadas Rajagopal, Uttarakhand Floor Test on May 10; Cong. Rebels Can't Vote, The Hindu (May 6, 2016), http://www.thehindu.com/news/national/Uttarakhand-floor-test-on-May-10-Cong.-rebels-cant-vote/article15618466.ece.Google Scholar