A Comparative Critique

K. Jayasudha Reddy and Joy V. Joseph

Article 356 of the Constitution of India, which deals with presidential discretionary powers of emergency, has long been the favored topic of political debate - and, at times, the cause of much ire - within the legal intellectual community in India. This paper examines the rationale behind the invocation of this Article by almost every Government that came to power in India and its implications for the democratic fabric of India. The historical development of this Article helps us to gauge the rationale behind its inclusion in the original draft of the Constitution. This serves as an estimate of the severity of events that would qualify to trigger this provision and helps us examine the validity of some of the recent applications of this Article. Studying similar and contrasting provisions that deal with executive discretionary powers in two other Constitutions, the American and the Malaysian, helps us to develop an analogy between contemporaneous developments in this area in three different sociopolitical environments.

Keywords: Article 356, Constitution, India, emergency, President, directives, federalism, discretionary powers

Cite as: K. Jayasudha Reddy and Joy V. Joseph, Executive Discretion and Article 356 of the Constitution of India: A Comparative Critique, vol 8.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (March 2004), <http://www.ejcl.org/81/art81-4.html>

1. Introduction
2. Federalism in India
3. The development of Article 356
3.1 The Government of India Act, 1935
3.2 Drafting Committee of the Constituent Assembly
3.3 An analogy between Article 356 and Sections 45 and 93 of the Government of India Act, 1935
4. The Sarkaria Commission Report, 1987
4.1 Background
4.2 Rare use of Article 356
4.3 Avoiding disastrous consequences
4.4 The Governor's obligation to explore alternatives
4.5 The Proclamation of Emergency and the Governor's Report
5. S. R. Bommai v. Union of India
6. Judicial review
7. Comparative analysis
7.1 Emergency powers of the President of the United States of America
7.2 Executive discretion under the Malaysian Constitution
8. The current situation in India
9. Failure to invoke emergency provisions
10. Conclusion
Appendix I: Specific sections of Part XI of the Constitution of Malaysia
Appendix II: Article 356

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