241909563 impact-of-emergency

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FEDERALISM: IMPACT OF EMERGENCY
1

2. SUBMITTED BY: RAJWANT SINGH BAMEL
COURSE INSTRUCTOR: AJEY SANGAI
ENROLLMENT NO: 20091034
SEMESTER VIII
2

3. ABSTRACT
The paper aims to analyse the impact of emergency on the federal structure. The paper
will make a comparative study of various Constitutions, mainly USA, Switzerland, West
Germany and India. Canada might also been analysed with respect to the impact of
external emergency. Its main aim is to analyse and evaluate the Indian position
with respect to the other Constitutions as to the extent to which the federal
powers are eroded during these times.
3

4. SYNOPSIS
Title
The title of my paper is “Federalism: Impact of Emergency”. I particularly chose this
topic to examine the Impact that the imposition of an Emergency will have on the
federal structure under various constitutions.
Relevance
Federalism is a system of government which has had a huge amount of impact in the
modern world. It has been a political thought which has many dimensions and has been
interpreted in many ways. In the subject of Comparative Constitution, federalism forms a
very interesting and important case of study. When the Indian, perspective is taken,
federalism has not been a concept of much debate until the emergency. However, in post
emergency India, the concept of federalism has been brought into light and has been
examined. Hence, a comparative analysis of the impact of emergency in the federal
structure remains very relevant.
Research Methodology
The research methodology that will be adopted is purely doctrinal and analytical in
nature. Various noted texts, articles, primary legislations are being studied and a
comparative analysis will be done. All the materials referred will duly be acknowledged.
Research Questions
1.How does an emergency impact the federal system in various constitutions?
2.What is the position India when evaluated against the other constitutions on the
impact of emergency on federalism?
4

5. Hypothesis
Emergency is a situation in which essentially the federal structure in all Constitutions is
eroded to an extent. The Federal structure in India has often been criticised for being
oriented towards the Union. However, a comparison with other constitutions on the
impact of emergency on the federal structures proves that it is not so.
5

6. Chapter 1
INTRODUCTION
Federalism is a political philosophy in which the power to govern is shared between
National and State governments, creating what is often called a federation.
1
Dicey stated
that federalism is a national constitution for a body of states which desires union and
does not desire unity. The essence of a federation is the existence of union and its states
and the division of power between the union and the states. Federalism also serves the
purpose of preventing the rise of an autocratic government which absorbs the powers of
others and threatens the liberty of an individual.
In Federal Constitutions such as United States of America, Australia and Canada, the
defence of the war power is conferred on the Federation. The power which is limited in
times of peace expands in times of war or imminent threat of war.
2
And during a war, for
practical purposes, these federal governments function as a unitary government, since in
the modern times, it is essential that the total resources of the country be available to be
mobilised by the Central government. The extent of the war powers is often left to the
interpretation of the courts.
Emergency presents very unique circumstances. In India, the concept of federalism by
itself has not been given high importance and was not subjected to much debate until the
Emergency has been imposed in India. Till then the existence of the Congress
government in the Centre and large number of States prevented the problem of Federal
government coming to the power. However, when the Janata Party came to the power at
the Centre and in a large number of states, after the parliamentary and state elections
which were held in 1977, a few states in which the Congress Ministries continued to
function suddenly became aware of that our constitution was a federal one and that the
states have the rights which they could enforce against the Union.
In importance that emergency played in India with respect to federalism can be seen
from the facts that the chapter of “Federalism in India” started to feature only from the
third edition of H.M. Seervai’s book Constitutional Law of India
3
. It says that, “the emergency
and its aftermath have brought the question of Federalism into prominence and made it necessary to
devote a Chapter to it in the third edition.”
4
Although it is accepted and expected that the federal structure is diminished and the
powers of the federal powers are expanded during an emergency situation, it is essential
also important to see, the extent to which such powers are eroded.
1
Available at http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Federalism.html
2
Available at http://www.mightylaws.in/729/indian-constitution-federal
3
H. M. Seervai, Constitutional Law of India, Vol. 1, 4
th
Edn, Universal Law Publishing Co., 1991
4
H. M. Seervai, Constitutional Law of India, Vol. 1, 4
th
Edn, Universal Law Publishing Co., 1991, p. 283
6

7. Chapter 2
EXTERNAL EMERGENCY
When in 1959, Dicey in his book Law of Constitution opined
5
that in comparison to a
unitary government, a federal government would be a ‘weak government’, he was without
the experience of the two world wars which have eventually ended up changing the
federal system (including that of the United States of America with which he primarily
made his analysis).
In the modern times, there is very little doubt that in case of war or any other external
aggression, active participation or passive defence would equally call prompt, effective
and unified response. This would obviously be obstructed when the resources and
decision making is divided amongst two coordinating but separate governments. This
lead to most post- war federal Constitutions providing for express provisions in the
Constitution itself which federal system temporarily into a unitary one in case of such
external emergency. Prominent amongst those federations are India and West Germany.
In countries such as USA or Australia whose Constitution has been defined before the
events of the devastating wars, there is a lack of specific emergency powers. However,
the Judiciary in these states has come to the rescue and aided in the expansion of the
federal power, by a liberal interpretation of the powers of defence which the Federal
Legislature already has under the Constitution.
6
The impact of the external emergency upon the federal structure will be studied under
the two different heads of – (a) Judicial Interpretation and (b) Emergency Provisions
provided under the Constitution.
A. Expansion of Federal Powers through Judicial Interpretation
2.1. USA
As has been mentioned before, there is no expression provision for the expansion of the
federal powers during external emergency which has been provided in the Constitution.
This lacuna has been filled with the help of the Judicial Interpretation. Generally, all
executive and legislative power relating to defence or war vests with the Union as per the
Constitution and the states have no scope for participation.
This executive power is derived from Article II, S. 2(1) of the Constitution which makes
the President of the United States of America, the ‘Commander in Cheif of the Army and
Navy.’ Although there have been protests from time to time that the powers vested in
5
A.V. Dicey, Law of Constitutional Law, 10
th
Edn., Universal Law Publishing Co., 1885, p. 138
6
C.H. WHEARE, Federal Government, 4
th
Edn., Oxford University Press, 1963, p. 199.
7

8. the President are very wide, the Congress and the Supreme Court have supported this
power of the President.
In the case of Ludecke v. Watkins
7
it has been held that, the powers as Commander-in-
chief include the power to initiate as well as to conduct the war and the send troops. The
Court also held that war power of the President is not subjected to judicial review.
However, in the case of Youngstown v. Sawyer
8
it has been held that the during the war
time, the power of the President does not extend to the taking of possession of a private
property without the authority of law.
The federal powers which have been supported by the Supreme Court on certain broad
principles are as follows:
1.The power given by the Constitution to the Executive and Congress extends to
every matter and activity so related to war as substantially to affect its conduct and
progress” and “embraces every phase of national defence”.
9
2.The passing of laws by the Congress under the garb of executing its powers,
which is not allowed as a general rule, is allowed when it is done so for purpose of
national defence.
3.It is not for any court to set in review of the wisdom of the actions taken by these
branches of the Government or substitute its judgement for theirs.
10
4.The reserved powers of the State under the 10
th
amendment would not come into
play so long as the Congress was exercising any of its enumerated powers, such as
the ‘war powers’ but would revive as soon as the possibilities of demobilisation
after the termination of hostilities are over.
11
These ‘war powers’ as have been interpreted by the Supreme Court include
imposing of a curfew
12
, detention of suspected persons for a reasonable period of
time without trial
13
, to regulate the prices
14
, control the distribution and ration the
consumption of essential commodities
15
.
7
(1948) 335 US 160 (166)
8
(1952) 343 US 579 (587)
9
Hirabayashi v. U.S (1943) 320 US 81 (93-94)
10
Hirabayashi v. U.S (1943) 320 US 81
11
Woods v. Miller (1948) 333 US 138 (144)
12
Hirabayashi v. U.S (1943) 320 US 81
13
Ex parte Endo (1944) 323 US 283
14
Yakus v. US (1944) 321 US 414
15
Steuart v. Bowles (1944) 322 US 398 (403)
8

9. B. Emergency Provisions provided for in the Constitution
2.2 India
Although there was much debate and compromise which was involved in the shaping of
the federal structure in the Indian Constitution, the Constitutional makers have faced no
difficulty when it came to emergency that was caused due to “war” that a modern war
could not be fought without the complete control and moboloisation of all resources of
the country, and a unified policy. This is what was meant by Dr. B.R. Ambedkar when he
said:
“the residual loyalty of the citizen in an emergency must be to the Centre and not to the
Constituent States. For it is only the Centre which can work for a common end and for the
general interests of the country as a whole.”
16
2.2.1 Proclamation of an emergency
The Union Executive in such cases is given power to proclaim an emergency under
Article 352 of the Constitution, in order to benefit from the emergency provisions which
expand the scope of the Union government. The power in this Article belongs to the
Union Executive subjected to the approval of the Parliament. The Proclamation may be
issued by the President on the grounds of war or external aggression or armed rebellion.
This extends to the times not only when an actual war has been ensued but also to the
time when there is the threat of an imminent danger. The Proclamation of the president
is to be made only when he is satisfied as to the existence of some threat or imminent
danger to the security of India or any part thereof. This is not to be however, only the
subjective satisfaction of the president alone but should have been suggested by the
Union Cabinet. Unless it is approved by both the houses of the Parliament within a
period of one month, such a Proclamation will cease to be in force.
2.2.2 Revocation of Emergency
Prior to the 44
th
amendment, the revocation of a Proclamation was not provided for and
was left to the discretion of the Union Executive. However, after the 44
th
amendment a
Proclamation can come to an end when,
1.Upon the expiry of one month, a resolution has not been passed in both the
houses of the Parliament. (In case of the houses having been discolved within this
16
Available at http://www.ambedkar.org/ambcd/63F2.Third%20Reading%20of%20Draft
%20Const17.11.1949%20to%2026.11.1949.htm
9

10. time, the Proclamation gets a life of 30 days from the first sitting of the house
provided that the council of states have approved of the same.)
2.In case of it being approved by both the houses of the parliament, it expires 6
months after the day when the last approval has been obtained (with a 2/3
rd
majority in both the houses).
3.The President is also bound to issue a revocation when the house of the people
has passed a resolution disapproving the continuance of a Proclamation. For this
the house can be convened even when not in session by a notice given by 1/10
th
of the members to the Speaker.
2.2.3 Justifiability of the Proclamation
The 38
th
Amendment to the Indian Constitution has inserted Clause 5 to the Article 352
which sought to bar the judicial review of the Proclamation under Article 352. This was
substituted by the 44
th
Constitutional amendment which removed the bar on the Judicial
review. Hence now it is possible for there to be judicial review on the Proclamation made
under Article 352. For example,
1.That the Proclamation which has been made is wholly extraneous and irrelevant
for which the powers under Article 352 are conferred or that there is no
reasonable nexus between the reasons that are disclosed and the satisfaction of the
President.
17
2.That the exercise of the power has been mala fide.
18
However, it is to be kept in mind that the onus to prove the allegation of mala fide or
colourable exercise is upon the person who has challenged the validity of the
Proclamation and since there is nothing in Article 352 which requires the President to
recite the grounds on which his satisfaction has been made, the chance of success in such
a litigation are very slim and the onus lies very heavily.
2.2.4 Impact of Proclamation on federal structure
The Proclamation of an emergency has an impact on the legislative, executive and
financial powers of the states. Some examples of these are:
1.As per Article 250, the Parliament gets the power to legislate upon the state
matters. This does not mean that the state legislature is suspended, but any law
17
A.K. Roy v. Union of India AIR 1982 SC 710
18
State of Rajasthan v. Union of India AIR 1977 SC 1361
10

11. that is passes by the state legislature and which is repugnant to the law passed by
the Union shall stand repelled (as per Article 251).
2.As per Article 353, the executive power of the Union is extended over the states.
a.Under the normal circumstances, the Union Executive has the power to give
directions to the state which are covered under Article 256-257. But when an
emergency has been proclaimed, as per Article 353 (a) the Union executive can
given directions to the state executive on any matter. This essentially makes the
state executive completely in control of the Union executive.
This power was used by the Union executive in the year 1963 during the
Chinese aggression when the states were issued directions to pay special
attention to the expansion of scientific education, construction and efficient
maintenance of roads in relation to the war efforts.
b.In order to execute the laws which are made by the Parliament under the
extended jurisdiction, the Parliament may assign them to the Union executive
instead of the state executive as per Article 353 (b).
3.As per Article 354, the President shall have the Constitutional power to modify
the provisions of the Constitution which are relating to the allocation of the
financial resources between the Union and the States, by his order. Such an order
shall be subjected to the approval of the Parliament and no such order shall
operate beyond the financial year in which the Proclamation by itself ceases to
operate.
In the light of these observations, it can be seen that in the Indian Constitution, during a
war, the structure changed into a completely unitary one. In order to avoid abuse of these
provisions which have been inserted, there have been many amendments which have
been brought about. By the 1976 amendment it was made clear that the Proclamation
need not be made to all the states and can be made just to one part of the country.
Through 1978 amendment it was also brought about that the approval of the parliament
is to be brought about in one month as opposed to two months. The same amendment
also brought about the change that 2/3
rd
approval of the both of the houses voting is to
be acquired as opposed to the simple majority which was present before that.
Chapter 3
INTERNAL EMERGENCY
The present chapter aims to deal with the incidence of emergency which is cause by
internal or domestic violence, in so far as it has an impact on the federal structure.
11

12. Needless to say, the provisions in the various federal Constitutions are not of the same
nature.
3.1 USA
The Constitutional provision which provides for the Internal Emergency is the last part
of Article IV, Section 4, which says that,
"The United States...shall protect each of them against invasion; and on Application of the Legislature,
or of the Executive (when the Legislature cannot be convened) against domestic Violence."
It imposes a duty upon the Union to protect the states against the ‘domestic violence’ but
such a duty arises only when the state legislature applies to the Union or in cases where
the Legislature cannot be convened, the state Executive applies to the Union for
protection against such incidence of violence. Many questions have been arisen with
respect to the application of this provision-
1.Upon which organ of the Union is the duty imposed? The Judiciary has held that
this duty, with the corresponding power has been vested in the Legislature of the
Union to provide as to how this duty should be discharged as well as to determine
the means which are proper to be adopted to fulfil this guarantee. The Supreme
Court has held that the entire matter under the provision is political in nature and
the courts cannot interfere with any grievance which an individual or a group of
individuals may have resulting from the exercise of this power by the Congress or
by its delegate.
19
2.A legislative body cannot quell and insurrection or a rebellion and hence this
power must be delegated by the Legislature to the Union Executive. The Congress
has, accordingly, passed an act in 1795 where it delegates it powers to the
President by which it was made lawful that the President of the United States may,
on the application the legislature of such states or the executive call forth such
number of militia of any other state or states as he may judge sufficient to
suppress such an insurrection.
3.In situations when two rival factions in the course of a rebellion claim to be the
lawful government of the state, the courts have held that it is upon the Congress
20
to decide as to who forms the legitimate claim for the state and would get the
assistance of the Union. Since this might take time, the President under the
delegated powers that are invested on him can make a decision as who would get
the assistance of the Union in the fight.
4.It is also to be noted that neither the congress nor the President are obliged to
send in forces as soon as a request has been made by either of the states.
19
Luther v. Borden (1849) 7 How 1
20
Texas v. White (1869) 7 Wall 700
12

13. However, if in the opinion of the President the national interest is being harmed
or would likely to be harmed, then the forces can be sent even without the request
being made by the state or even against the protest of the Governor.
It is this power of the President under the Act which has been used more often in the
recent years to quell domestic violence than under Article IV, Section 4. The Congress
also has the Constitutional power [Art1, s. 8(15)] to provide for the employment of the
federal militia in order to execute the laws of the Union or to suppress any insurrections
in a state
21
, without any application from the state concerned. This power was delegated
to the President by the Congress through an Act. The use of the power for the removal
of obstacles for the freedom of inter-state commerce or transportations of the mails,
cause by a strike has been approved by the courts.
22
3.2 Switzerland
Article 16 of the Switzerland Constitution provides for the internal emergency and reads
as follows-
(1)“In the case of internal troubles or when danger threatens from another Canton, the government
of the threatened Canton must immediately inform the Federal Council in order to enable it to
take appropriate measures within the limits of its competence (Article 102 (3), (10) and (11))
or to summon the Federal Assembly. In urgent cases, while immediately informing the Federal
Council, the government is entitled to seek help from other Cantons, which are bound to provide
it.
(2) Whenever the cantonal government is unable to summon help, the competent federal authority
may intervene without being called upon; this authority is bound to do so whenever the security of
Switzerland is at stake.
(3) In the event of a federal intervention, the federal authorities shall ensure that the provisions of
Article 5 are observed.
(4) The costs shall be borne by the Canton requesting or giving cause for a federal intervention,
unless the Federal Assembly should decide otherwise in view of special circumstances.”
23
Article 16 has been used in various occasions and the following conclusions can be
drawn by the use:
1.The words ‘necessary measures’ indicate that the foregoing powers are virtually
unlimited and this includes the raising of troops, sending them, appointing a
commissioner to take over the civil administration of the Canton after the military
operations.
21
ibid
22
In re Debs, (1895) 158 US 564
23
Article 16 of the Constitution of Switzerland, available at http://www.servat.unibe.ch/icl/sz01000_.html
13

14. 2.The object of such federal intervention would be:-
(a)The term to suppress ‘internal disorder’ is a very wide expression which
includes not only the armed rebellion but also the riots resulting from a
general strike. Usually the federal government is moved by the Cantonal
government, however, the federal government can move on its own when
such an application is made impossible due to the extent of the disorder or
when it would threaten the national security on the whole.
(b)To protect a Canton from the aggression from another canton or the threat
thereof.
(c)To protect the territorial sovereignty of a canton, its Constitution, the rights
and liberties of its people and the right and the powers conferred by the
people on the authority.
3.3 India
In India, the internal emergency is covered under Article 355 of the Constitution which is
analogus to the provision under Article IV section 4. The words that have been used
under this are “internal disturbance”. In the year 1976, an amendment was made to
Article 352 which substituted the words “internal disturbances” with “armed rebellion”.
During this time, no such amendment was made to the Article 355. This was done so
that even in times of peace, the Union is competent to perform its ‘duty’ under Article
355 to meet any serious breakdown of law and order in a state, by restoring to means
other than under Article 352, such as-
1.Issuing directions to the State governments under Articles 256-257 and in case of
failure the Union may apply Article 356 read with Article 365.
2.The union may send its ‘armed forces’ in aid of the civil power of the state
concerned to suppress the disorder. There would be no problem in such cases
when the state itself considers the aid of the Union forced necessary in the view of
the inadequacy of its police force to meet an abnormal situation. Such as in the
case of Bihar. The question arises as to whether the union can send in its force
without the request made by the state unilaterally. This can be answered by the
amendment of 1976 which has inserted Entry 2A in list 1 and the amendment of
Entry 1 and 2 in list 1. After this amendments, it can be safelt said that the union
can send in its forces in cases of ‘internal disturances’ which need not be any thing
like ‘armed rebellion’ but my be a grave situation of law and order which in the
opinion of the Union, the state police are unable to deal with. The Union forces
which are deployed during this time are be in the control of the Union completely.
Article 257A which has been inserted by the 1976 amendment has provided that
14

15. these forces shall be under the control of the state government but this has been
subsequently been removed by the 44
th
amendment.
Chapter 4
EMERGENCY OWNING TO BREAKDOWN OF
CONSTITUTIONAL MACHINERY
Article 356 of the Indian Constitution gives the right to the Union to suspend the state
legislature and executive and to assume its power when according to the Union
Executive; the situation has arisen in which the government of the state cannot be carried
on in accordance with the provisions of the Constitution.
In the classic pattern of federalism such as USA and Australia, the states are autonomous
and independent entities within the sphere assigned to them by the Constitutional
division of powers. Hence, there is no question of suspending the Constitutional
machinery of a state in a federal government. In case of a revolution or a subversion of
the republican form of government, the military intervention by the federal government
to restore the normal conditions might be justified. The Indian Constitution goes one
step further and empowers the Federal government to supersede the Constitutional
machinery in a state to take up its administration as if it were a sub division of a unitary
state, whenever it is satisfied that a situation has arisen in the state in which the
government of the state cannot be carried on in accordance with the Constitutional provisions.
This later expression is wide that it can be interpreted to include not only the
maintenance of the republican institutions of the Constitution or the suppression of
domestic violence but any problem that may arise during the course of working of the
Constitution which may usually not call for a military intervention. It is also to be noted
that Article 356 has no connection with any emergency caused by war or external
aggression.
4.1 USA
While introducing the draft Article 278 (corresponding to article 356 of the Consitution),
Dr. Ambedkar said that he was merely following Article IV, Section 4 of the American
Constitution. The second part of the Article IV(4) authorises the federal government to
protect the states from domestic violence by military intervention. But the power is to be
exercised by the Union only at the request of the states and cannot be exercised by the
Union unilaterally.
The nearest analogy is to be found in the first part of Article 4 Section 4 which says that-
15

16. “The United States shall guarantee to every state in the Union a republican form of
government.”
The Supreme Court has held that the question whether a state has a republican form of
government or not is a political question and that the determination by the Congress
cannot be questioned by the courts.
24
The responsibility for this duty and power thus
devolved on the congress.
In short, the violation of the guarantee of the republican form of government in a state
cannot be challenged in the courts.
25
Even though the question has been held to be non-
justifiable, it has been brought before the Supreme Court on many occasions and it is
during these unsuccessful litigations, that the nature of the American provisions in the
Constitution can be understood. The court has refused to interfere in instances such as
when even by a state introduced devices of direct democracy, such as initiative or
referendum
26
, even by such a referendum the state statue is invalidated. The court has
however observed that even though it refused to interfere with the distribution of power
among the state institutions where democracy form is retained, the setting up of a military
government as the permanent form of government of a state would be denial of the republican
form.
27
In short, the court would not interfere with the acts of the congress made in
discharge of its duty to maintain a republican form of government in a state
28
or with the
acts done by the President in executing such acts
29
or acts done by a state in alleged
violation of the Republican guarantee in Article IV, Section 4.
30
The court would however, interfere where the Union in performing its duty to maintain
the republican form of government in a state, violates some other provision of the
Constitution. Such as in the case of Coyle v. Smith
31
where the Supreme court has held
that the statue passed by the state of Oklahoma locating its capital was valid
notwithstanding its agreement with the Union by virtue of the act of the Congress which
has imposed the limitation.
It is to be noted that Article IV (4) does not prescribe the mode in which it may be
enforced against a state which failed to maintain a republican form of government. On all
occasions in which it has been used it was by sending military forces against the erring
states. In 1795, the power of the President to send troops was conferred by the Congress
by enacting a statue for this purpose, to quell insurrection in any state, and since then,
Article IV (4) per se has ceased to be of any practical use.
32
24
Luther v, Borden (1848) 7 How 1 (42)
25
Pac. States v. Oregon (1912) 223 US 118 (141, 150)
26
Pac. States v. Oregon (1912) 223 US 118
27
Luther v, Borden (1848) 7 How 1 (42)
28
Mississippi v. Johnson (1867) 4 Wall 475
29
Mississippi v. Johnson (1867) 4 Wall 475
30
Baker v. Carr, (1962) 369 US 186
31
(1911) 221 US 559.
32
Congress Publication on the Constitution of USA (1972), p. 852.
16

17. Apart from the statutory provisions, the President has, under Article II, section 3 of the
Constitution, the duty and power to “take care that the federal laws be faithfully
executed”. He can deploy the armed forces in execution of this power. Together with this
is the President’s power as the Commander-in-Chief.
33
The Occasions and purposes for which military forces have so far been resorted to by the
president to suppress serious disorders and unConstitutional refusal of any state to
enforce the Federal Constitution or its laws are:
1.To suppress the rebellion against the existing government in the Rhode Island in
1941-42.
34
2.To enforce the Supreme Court decisions on desegregation against the Southern
states.
3.To protect civil right marchers, in the exercise of their rights under the federal
Constitution.
The Conclusion is that Article IV, section 4 confers upon the union a coercive right
to take military action whenever it is of the opinion that the state has or is going to
have a non-republican form of government. However, it does not enable the Union
to subvert the machinery set up by the State Constitution.
4.2 Switzerland:
Under the Switzerland Constitution, the Union may send its military force when the
Constitution or Constitutional government is threatened either by internal disorder (e.g,
by a revolution as has happened in Ticino in 1890) or by another Canton.
The intervention in Switzerland however goes one step ahead of the of the Unites
States of Amercia where the Union may appoint a Commissioner to take over the
civil administration of a Canton at the end of military operations.
4.3 India
Probably one of the most controversial and abused provisions of the Indian Constitution,
Article 356 reads as follows:
356. Provisions in case of failure of Constitutional machinery in State
(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a
situation has arisen in which the government of the State cannot be carried on in accordance with he
provisions of this Constitution, the President may be Proclamation
33
Mississippi v. Johnson (1867) 4 Wall 475
34
Cf. Luther v. Borden (1848) 7 How 1 (42)
17

18. (a) assume to himself all or any of the functions of the Government of the State and all or any of the
powers vested in or exercisable by the Governor or any body or authority in the State other than the
Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of
Parliament;
(c) make such incidental and consequential provisions as appear to the president to be necessary or
desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or
in part the operation of any provisions of this Constitution relating to any body or authority in the State
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers
vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision
of this Constitution relating to High Courts
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation
(3) Every Proclamation issued under this article except where it is a Proclamation revoking a previous
Proclamation, cease to operate at the expiration of two months unless before the expiration of that period
it has been approved by resolutions of both Houses of Parliament Provided that if any such Proclamation
(not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the
People is dissolved or the dissolution of the House of the People takes place during the period of two
months referred to in this clause, and if a resolution approving the Proclamation has been passed by the
Council of States, but no resolution with respect to such Proclamation has been passed by the House of
the People before the expiration of that period, the Proclamation Shall cease to operate at the expiration
of thirty days from the date on which the House of the People first sits after its reConstitution unless
before the expiration of the said period of thirty days a resolution approving the Proclamation has been
also passed by the House of the People
(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of
six months from the date of issue of the Proclamation: Provided that if and so often as a resolution
approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the
Proclamation shall, unless revoked, continue in force for a further period of six months from the date on
which under this clause it would otherwise have ceased to operating, but no such Proclamation shall in
any case remain in force for more than three years: Provided further that if the dissolution of the House of
the People takes place during any such period of six months and a resolution approving the continuance
in force of such Proclamation has been passed by the Council of States, but no resolution with respect to
the continuance in force of such Proclamation has been passed by the House of the People during the said
period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the
House of the People first sits after its re Constitution unless before the expiration of the said period of
thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the
House of the People
18

19. (5) Notwithstanding anything contained in clause ( 4 ), a resolution with respect to the continuance in
force of a Proclamation approved under clause ( 3 ) for any period beyond the expiration of one year from
the date of issue of such Proclamation shall not be passed by either House of Parliament unless
(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the
whole or any part of the State, at the time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force of the Proclamation approved under
clause ( 3 ) during the period specified in such resolution is necessary on account of difficulties in holding
general elections to the Legislative Assembly of the State concerned: Provided that in the case of the
Proclamation issued under clause ( 1 ) on the 6th day of October, 1985 with respect to the State of
Punjab, the reference in this clause to any period beyond the expiration of two years
The peculiarities of this provision of the Constitution as compared to those of other
Constitutions are broad such as that, in the US Constitution it is sought to maintain the
‘republic form of the government’ in the states. Whereas in the Indian Constitution, it
can be revoked for the maintenance of the entire Constitution. It also includes the power
to suspend the state’s existing government which is not provided for under any other
Constitution.
4.3.1 History
The Government of India Act, 1935
The Government of India Act, 1935 first introduced the concept of ‘Division of powers’
in British India as an experiment by which the British Government had entrusted limited
powers to the Provinces. The British however, took precautions to keep a sufficient
check on the powers given to the Provinces. These precautions were manifested in the
form of emergency powers through Sections 93 and 45 of the Act, where the Governor
of the province and the Governor General, under extraordinary circumstances, exercised
near absolute control over the Provinces.
35
Drafting Committee of the Constituent Assembly
When it was suggested by Dr. B. R.Ambedkar in the Drafting Committee that similar
powers of emergency should be conferred under the Constitution for the President as
had been held by the Governor-General under the Government of India Act, 1935,
vociferously opposition was made by many members of the committee idea. Dr. B. R.
Ambedkar while defending this provision has held that:
“...such articles will never be called into operation and they would remain a dead letter. If at all
they are brought into operation, I hope the President, who is endowed with these powers, will take
proper precautions before actually suspending the administration of the provinces. I hope the first
35
National Commission to Review the Working of the Constitution, A consultation paper on Article 356 of the Consitution,
available at h tt p ://la w m i n . n ic . i n / n c r w c/ f i n al r e por t/ v 2b2 - 5. h tm (last visited on 20
th
Sepetember, 2012)
19

20. thing he will do would be to issue a mere warning to a province that has erred, that things were
not happening in the way in which they were intended to happen in the Constitution. If that
warning fails, the second thing for him to do will be to order an election allowing the people of the
province to settle matters by themselves. It is only when these two remedies fail that he would
resort to this article.”
Going by the words of Dr. Ambedkar it can safely be concluded that Article 356 is to be
used as very last resort in the rarest of rare events. This article has been provided as a
safety valve to counter disruption of political machinery in a State and in order to provide
for all the conceivable exigencies.
Article 355 of the Constitution states that:
“It shall be the duty of the Union to protect every State against external aggression and internal
disturbance and to ensure that the government of every state is carried on in accordance with the
provisions of this Constitution.”
The word ‘otherwise’ in Article 356(1) was not present in the initial draft. It introduced at a
later point of time through an amendment, despite of the protests from Draftion
Committee members that it was nothing but an open invitation to abuse the Article. Dr.
Ambedkar justified its introduction of the word ‘otherwise’ by saying that Article 277A
(the now Article 355, provided above) imposed a duty on the Union to ensure that the
governance of the States is in accordance with the Constitutional provisions and hence it
would not be proper for the President to make his decision based solely on the report of
the Governor of a State.
4.3.2 Effects of the use of Article 356
The effect of the use of Article 356 in the issue of a Proclamation of failure of
Constitutional Machinery are drastic indeed and are provided under Article 357 of the
Constitution. Its impact on the entire federal fabric is no less serious than that of a
Proclamation of an external emergency under Article 352; in certain aspects it tends to
even more severe.
The duration of such a Proclamation would be for two months. However, if the
Proclamation was issued when the Houses of the People was dissolved or dissolution
took place during the period of two months, the Proclamation would cease to operate on
the expiry of 30 days from the day on which the house of people first meet unless the
Proclamation is approved by the Parliament. The life of the Proclamation can be
extended for 6 months at a time subjected to a maximum duration of three years.
When the state legislature is suspended by the Proclamation made under Article 356, it
shall be competent for –
20

21. (a)the parliament to delegate powers to make laws for the state to the President or
any other authority specified by him;
(b)for the President to authorise, when the House of the people in not in session
expenditure from the consolidated fund of the state pending the sanction of such
expenditure from the Parliament;
(c)for the President to promulgate ordinance for the administration of the state
when the Parliament is not in session [Art 357]. By the such a promulgation, the
President may –
·Assume to himself all or any functions of the Executive of the State or any
authority save the High Court;
·Declare that the powers of the legislature of the state shall be exercisable by or
under the authority of the Parliament. In short, by such Proclamation, the Union
would assume control over all the functions in the state administration except the
Judiciary. It would mean that all the Council of Ministers in the State shall stand
dismissed and all the executive power shall be vested in the Governor under the
direction and control of the President. Usually, the President appoints ‘adviser’ to
guide the Governor during the continuance of the emergency.
·An extreme illustration as to how a Proclamation under Art 356(1) may paralyse
even the other provisions of the Constitution relating to the state concerned is
illustrated by the Punjab case, where under the Proclamation under Article 356 (1)
relating to Punjab, the President suspended the operation of Article 174 as a result
of which, it was no longer possible for the Governor to summon the State
Assembly for any sitting during the continuance of the Proclamation. It was held
that even thought the operation of the provisio to Artcile 3 could not operate as
regards the State of Punjab, is that a bill for reorganisation of that states could be
brought before the Parliament and was enacted which greatly affected the state
without the consent of the state legislature even though such a consent of the
legislature was required under the Provisio to Artcie 3.
4.3.3 Amendments:
The rigours subversion of the federal system has been minimised by the amendment of
1978 where by the clause 5 was introduced to Article 356 whereby even though as per
Article 356, the Proclamation can be extended for a period of 3 years with fresh
parliament approval every 6 months, it is not essential that two more conditions are to be
satisfied to when the Proclamation is to be extended for a period beyond one year-
21

22. (a)That at the time of passing such a resolution by the Parliament, there is in
operation in the state or any other part thereof, a Proclamation of emergency
under Article 352
(b)That the election commission certifies that an extension beyond one year of the
Proclamation under Article 356 is necessary on account of the difficulties in
holding the general elections to the State Legislative Assembly, unless the
Proclamation is further extended.
As a result of this, thus, the dissolution of the State Legislature and a fresh general
election, to restore the normal federal structure cannot be postponed beyond one
year unless both of the two rare contingences mentioned above co-exist.
Another manner in which the power has been sought to be curbed by the 1978
amendment is that the ‘finality’ clause (5) which has been inserted by the 38
th
amendment
act of 1975 has been omitted. In the result the President’s satisfaction, as to the need for
issuing a Proclamation under Article 356 (1) shall be open to judicial review, at least on
the ground of mala fide. Mala fide, however, is so difficult to establish that its existence
appears only in legal literature. Judges could not find mala fide even in extreme case such
as in the case State of Rajasthan v. Union of India
36
Frequent issues not intended
The very fact that it is under the same part as Article 352 it can be seen that Article 356 is
be used only sparingly when the internal emergency is of such a nature that it is similar to
that of external emergency as dealt with in Article 352 and takes the shape of an armed
rebellion. It is hence only logical that the repeated use of the article which was to be a
dead letter has revoked various criticisms.
4.3.4 Th e S a r k a r ia Co mm ission R e p o rt , 1987
In spite of the precautions that are laid down under Article 356, it was invoked on
numerous occasions by the Union due to ambiguities which are present in its wording. In
the year 1987, the report was submitted by the Sarkaria Commission were a part of the
obscurity surrounding Article 356 were cleared. The Commission which was headed by
Justice R.S. Sarkaria, was appointed in the year 1983 and had spent four years in
researching reforms for the improvement of the Center-State relations.
The Sarkaria Commission recommended that there should be a rare use of Article 356.
The Commission observed that, although the passage, ‘. . . the government of the State cannot
be carried on in accordance with the provisions of this Constitution . . .’ is vague, every breach and
infraction of Constitutional provisions by the states, irrespective of their significance,
extent, and effect, cannot be treated as constituting a failure of the Constitutional
36
AIR 1977 SC 1361
22

23. machinery. According to the Commission, Article 356 provides remedies for a situation
in which there has been an actual breakdown of the Constitutional machinery in a State.
Any abuse or misuse of this drastic power would damage the democratic fabric of the
Constitution and discouraged the literal construction of Article 356(1).
37
The Commission, after reviewing suggestions placed before it by several parties,
individuals and organizations, decided that Article 356 should be used sparingly, as a last
measure, when all available alternatives had failed to prevent or rectify a breakdown of
Constitutional machinery in a State. It held that all attempts should be made to resolve
the crisis at State level before a recourse to Article 356 is taken.
38
According to the Commission’s report, these alternatives may be dispensed with only in
cases of extreme emergency, where failure on the part of the Union to take immediate
action under Article 356 would lead to disastrous consequences. The report further
recommended that a warning be issued to the State, in specific terms that it is not
carrying on the governance of the State in accordance with the Constitution. Any
explanation which is received from the State should be taken into account before the
Union makes an attempt to take action under Article 356.
The report also imposes an obligation on the Governor that, in a situation of political
breakdown, the Governor should explore all the possibilities of having a Government
which enjoys the majority support in the Assembly. In case of no such majority, the
Governor may request the outgoing Ministry to continue as a caretaker government till
fresh election can be provided that the Ministry was defeated solely on a major policy
issue, which is unconnected with any allegations of maladministration or corruption and
agrees to continue. The Governor should then dissolve the Legislative Assembly, leaving
the resolution of the Constitutional crisis to be decided by the electorate.
The report also recommended appropriately that Article 356 should be amended to
include in the Proclamation, the material facts and grounds basing on which the
emergency has been invoked. This, it is observed in the report, would make the remedy
of judicial review on the grounds of mala fides more meaningful and the check of
Parliament over the exercise of this power by the Union Executive more effective.
39
The
report also emphasized that the Governor’s report which is the starting point for the
Presidential action under Article 356, should be a ‘speaking document, containing a precise and
clear statement of all material facts and grounds on the basis of which the President may satisfy himself as
to the existence or otherwise of the situation contemplated in Article 356.’ The Commission’s report
also recommended that wide publicity in all media should be given to the Governor’s
Report.
40
37
The Sarkaria Commission Report, ¶ 6.3.23 (1987).
38
Id. at 6.8.01.
39
Id. at 6.8.07.
40
Id. at 6.8.09 and 6.8.10
23

24. While discussing the report of the Sarkaria Commission it is also worthy to take notice
that the views expressed by Sri P.V. Rajamannar, former Chief Justice of the Madras
(Chennai) High Court, who headed the Inquiry Commission by the State of Tamil Nadu
to report on Center-State relations, also concur broadly with the views taken by the
Sarkaria Commission. However, these enjoy the status of being of only persuasive value
and not binding upon the governments.
4.3.5 Judicial review
The fact that a Proclamation under Article 356 maybe subjected to judicial review is
beyond doubt. The court is to examine in such cases whether the conditions that have
been laid down are satisfied or not.
However, till the Bommai case the role played by the Judiciary was quite restricted and due
the chances of success in a litigation where a Proclamation has been made were very slim.
Dr. Durga Das Basu in his book Comparitive Federalism
41
which was written in the year
1986 i.e, before the Sarkaria Commission report and the Bommai case notes,
"Hence, the off-chance of judicial intervention cannot be regarded as sufficient to prevent improper and
frequent uses of this drastic power”
The Judicial review of the Proclamation under Article 356(1) was first tested in the case
of State of Rajasthan v. Union of India
42
. The Supreme Court in this matter observed, inter
alia, that it should not hesitate to perform its Constitutional duty merely because it
involves considering political issues. At the same time, it should restrict itself to
examining whether the Constitutional requirements of Article 352 have been observed in
the declaration of the Proclamation and it should not go into the sufficiency of the facts
and circumstances of the presidential satisfaction in the existence of a situation of
emergency.
4.3.6 S.R. Bommai v. Union of India
The case of S.R. Bommai v Union of India
43
was a landmark in the history of the Indian
Judiciary. It was brought about when the emergency was imposed on the state of
Karnataka. In this case the Supreme Court boldly marked out the paradigm and
limitations within which Article 356 is to function. In the words of Soli Sorabjee, ‘After
the Supreme Court’s judgment in the S. R. Bommai case, it is well settled that Article 356 is an
extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and
the Constitutional machinery in a State has collapsed.’
44
41
Dr. Durga Das Basu, Comparative Federalism, 2
nd
Ed., Lexis Nexis, 1987, p. 317
42
A.I.R. 1977 SC 1361.
43
S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297
44
Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune, India, Sept 21, 1996.
24

25. The views that were expressed by the various judges were on the same lines of the
Sarakaria Commission report which has been referred to extensively in the judgement. In
order to sum up the limitations that have been set out, Paragraph 434 of the judgment is
the most appropriate and is as follows:
“(1) Article 356 of the Constitution confers a power upon the President to be exercised only
where he is satisfied that a situation has arisen where the Government of a State cannot be
carried on in accordance with the provisions of the Constitution. Under our Constitution, the
power is really that of the Union Council of Ministers with the Prime Minister at its head. The
satisfaction contemplated by the article is subjective in nature.
(2) The power conferred by Article 356 upon the President is a conditioned power. It is not an
absolute power. The existence of material - which may comprise of or include the report(s) of the
Governor - is a pre-condition. The satisfaction must be formed on relevant material. The
recommendations of the Sarkaria Commission with respect to the exercise of power under Article
356 do merit serious consideration at the hands of all concerned.
(3) Though the power of dissolving of the Legislative Assembly can be said to be implicit in
clause (1) of Article 356, it must be held, having regard to the overall Constitutional scheme
that the President shall exercise it only after the Proclamation is approved by both Houses of
Parliament under clause (3) and not before. Until such approval, the President can only suspend
the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative
Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a
matter of course. It should be resorted to only where it is found necessary for achieving the
purposes of the Proclamation.
(4) The Proclamation under clause (1) can be issued only where the situation contemplated by the
clause arises. In such a situation, the Government has to go. There is no room for holding that
the President can take over some of the functions and powers of the State Government while
keeping the State Government in office. There cannot be two Governments in one sphere.
(5) (a) Clause (3) of Article 356 is conceived as a check on the power of the President and also
as a safeguard against abuse. In case both Houses of Parliament disapprove or do not approve
the Proclamation, the Proclamation lapses at the end of the two-month period. In such a case,
Government which was dismissed revives. The Legislative Assembly, which may have been kept
in suspended animation gets reactivated. Since the Proclamation lapses — and is not
retrospectively invalidated - the acts done, orders made and laws passed during the period of two
months do not become illegal or void. They are, however, subject to review, repeal or modification
by the Government/Legislative Assembly or other competent authority.
(b) However, if the Proclamation is approved by both the Houses within two months, the
Government (which was dismissed) does not revive on the expiry of period of the Proclamation or
on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval
under clause (3), the Legislative Assembly does not revive on the expiry of the period of
25

26. Proclamation or on its revocation. (6) Article 74(2) merely bars an enquiry into the question
whether any, and if so, what advice was tendered by the Ministers to the President. It does not
bar the Court from calling upon the Union Council of Ministers (Union of India) to disclose to
the Court the material upon which the President had formed the requisite satisfaction. The
material on the basis of which advice was tendered does not become part of the advice. Even if the
material is looked into by or shown to the President, it does not partake the character of advice.
Article 74(2) and Section 123 of the Evidence Act cover different fields. It may happen that
while defending the Proclamation, the Minister or the official concerned may claim the privilege
under Section 123. If and when such privilege is claimed, it will be decided on its own merits in
accordance with the provisions of Section123.
(7) The Proclamation under Article 356(1) is not immune from judicial review. The Supreme
Court or the High Court can strike down the Proclamation if it is found to be mala fide or
based on wholly irrelevant or extraneous grounds. The deletion of clause (5) [which was
introduced by the 38th (Amendment) Act] by the 44th (Amendment) Act, removes the cloud on
the reviewability of the action. When called upon, the Union of India has to produce the material
on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action.
The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to
see whether the material was relevant to the action. Even if part of the material is irrelevant, the
court cannot interfere so long as there is some material which is relevant to the action taken.
(8) If the Court strikes down the Proclamation, it has the power to restore the dismissed
Government to office and revive and reactivate the Legislative Assembly wherever it may have
been dissolved or kept under suspension. In such a case, the Court has the power to declare that
acts done, orders passed and laws made during the period the Proclamation was in force shall
remain unaffected and be treated as valid. Such declaration, however, shall not preclude the
Government/Legislative Assembly or other competent authority to review, repeal or modify such
acts, orders and laws.”
45
45
S.R Bommai v. Union of India, AIR 1994 SC 1918
26

27. CONCLUSION
The current paper mainly looks into the Constitutions of USA, Switzerland, and India. It
has been tried to gauge the impact of an emergency on the federal structure of these
Constitutions and evaluate the provisions of the Indian Constitution in comparison to
the other Constitutions.
Emergency in general is a not an ordinary situation but an extra ordinary one where the
day to day activities of the government have been disturbed for some reason and extra
ordinary measures have been called for in response to the same. The Federal structure as
a whole represents an inherent weakness as has been noted by A.V. Dicey in comparison
to a unitary form of government since in a unitary form of government when faced with
such situations the resources of the country remain united and can be efficiently used. In
the Federal system, various provisions have been introduced into the Constitution itself
which intended to remedy this flaw. In some cases the judiciary has stepped in enhanced
the power of the Union such times. The basic principle behind these attempts to remedy
the inherent weakness is that in cases of emergency, the powers of the federal
government are expanded. However, the extent to which such an expansion takes place is
what has been observed in the current paper.
The main differences that are found in all the enforcement of all the types of emergency
between the Indian Constitution and other Constitutions are broadly that,
1.The words which have been used in the Indian Constitution are broad in their
scope as compared to the other Constitutions and are capable of wide
interpretations. The words used by other Constitutions are less broad usually and
although Switzerland sometimes tend to use equally broad words (such as
‘necessary measures’ and ‘internal disorder’ in Article 16 of the Switzerland
Constitution for Internal emergency measures), the interpretation that is made
under the Indian Constitution is lead to higher erosion of the federal powers than
in other constitutions.
2.The federal powers expand during these emergencies both to the legislative power
and executive power of the state under the Indian Constitution whereas in the
United States Constitution it remains only to the expansion of the legislative
power. The proviso to Article 73(1) expressly states that the executive power of
the Union shall not extend in any state matters within the legislative competence
of the State except to the extent that the Constitution or a law made by the
Parliament may otherwise provide otherwise. The Switzerland Constitution
provides for the appointment of a commissioner to take on the civil powers of the
Cantons.
27

28. 3.In all the Constitutions, when it is not a case of external war, the state
governments are to make an application for intervention by the Union
government. This can superseded by these Constitutions only in rare cases when
there is high severity of danger. In Indian Constitution, this decision is made only
to the subjective satisfaction of the Union. This according to the author is the
point where the federal powers are being completely eroded. That in cases of
internal emergency or that of breakdown of constitutional machinery, the
intervention by the Union is only upon the subjective satisfaction of the Union.
4.The financial emergency which can be imposed under the India Constitution is a
unique feature which is not seen in the other constitutions. Though it has not
been misused, it poses a large potential for abuse by the Union and undermines
the federal structure since the financial autonomy of the states might be
jeopardised.
However, the federal structure of India has not been eroded in any other provision as
much as that of Article 356 of the Constitution which is a very drastic power given to the
Union. There is no provision in the other Constitution which mirrors this provision. The
abuse of this Article which has lead to the erosion of federalism has been the subjected to
severe criticism. Although, after the S.R Bommai case, the abuse of this article by its
constant use has been prevented, the powers that are extended to the Union still remain
very broad and unparalleled in the other Constitutions.
It was started off with the hypothesis that, “Emergency is a situation in which essentially
the federal structure in all Constitutions is eroded to an extent. The Federal structure in
India has often been criticised for being oriented towards the Union. However, a
comparison with other constitutions on the impact of emergency on the federal
structures proves that it is not so.” The hypothesis is proved wrong and the author is of
the opinion that the provisions under the Indian Constitutions are indeed severe
compared to the others, especially during emergencies when the state is essentially
converted into a sub division of the Union. There is an erosion of the federal structure
during these times as compared to the other Constitutions. Although the judiciary has
stepped in at times to prevent this, there is still a far way to go.
REFERENCES
Books
·A.V. Dicey, Law of Constitutional Law, 10
th
Edn., Universal Law Publishing Co.,
1885
·C.H. WHEARE, Federal Government, 4
th
Edn., Oxford University Press, 1963
28

29. ·Dr. Durga Das Basu, Comparative Federalism, 2
nd
Ed., Lexis Nexis, 1987
·H. M. Seervai, Constitutional Law of India, Vol. 1, 4
th
Edn, Universal Law Publishing
Co., Delhi, 1991
·Hamid Khan, Muhammad Waqar Rana, Comparative Constitutional Law; Pakistan
Law House, Karachi, 2008.
Cases
USA
·Baker v. Carr, (1962) 369 US 186
·Cf. Luther v. Borden (1848) 7 How 1 (42)
·Hirabayashi v. U.S (1943) 320 US 81
·In re Debs, (1895) 158 US 564
·Ludecke v. Watkins, (1948) 335 US 160 (166)
·Luther v. Borden (1849) 7 How 1
·Mississippi v. Johnson (1867) 4 Wall 475
·Pac. States v. Oregon (1912) 223 US 118 (141, 150)
·Texas v. White (1869) 7 Wall 700
·Woods v. Miller (1948) 333 US 138
·Youngstown v. Sawyer (1952) 343 US 579 (587)
India
·A.K. Roy v. Union of India AIR 1982 SC 710
·S.R. Bommai v Union of India (1994) 3 SCC 1
·State of Rajasthan v. Union of India AIR 1977 SC 1361
29