FEDERALISM: IMPACT OF EMERGENCY

SUBMITTED BY: RAJWANT SINGH BAMEL

COURSE INSTRUCTOR: AJEY SANGAI
ENROLLMENT NO: 20091034
SEMESTER VIII

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.

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
3

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?

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.

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
1
2

Available at http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Federalism.html
Available at http://www.mightylaws.in/729/indian-constitution-federal

of H.M. Seervais book Constitutional Law of India3. 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.

H. M. Seervai, Constitutional Law of India, Vol. 1, 4th Edn, Universal Law Publishing
Co., 1991
4
H. M. Seervai, Constitutional Law of India, Vol. 1, 4th Edn, Universal Law Publishing
Co., 1991, p. 283

Chapter 2
EXTERNAL EMERGENCY
When in 1959, Dicey in his book Law of Constitution opined5 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
Interpretation

of

Federal

Powers

through

Judicial

2.1. USA
5

A.V. Dicey, Law of Constitutional Law, 10th Edn., Universal Law Publishing Co., 1885, p.
138
6
C.H. WHEARE, Federal Government, 4th Edn., Oxford University Press, 1963, p. 199.

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 the President are very wide, the Congress and the Supreme
Court have supported this power of the President.
In the case of Ludecke v. Watkins7 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. Sawyer8 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

(1948) 335 US 160 (166)

(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
8

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 prices14, control the distribution and ration the
consumption of essential commodities15.

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

11

Woods v. Miller (1948) 333 US 138 (144)

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)
16
Available at http://www.ambedkar.org/ambcd/63F2.Third%20Reading%20of%20Draft
%20Const17.11.1949%20to%2026.11.1949.htm
12

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 44th amendment, the revocation of a Proclamation was
not provided for and was left to the discretion of the Union
Executive. However, after the 44th 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 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.

10

2.2.3 Justifiability of the Proclamation

The 38th 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 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
17
18

A.K. Roy v. Union of India AIR 1982 SC 710

State of Rajasthan v. Union of India AIR 1977 SC 1361

11

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
12

an impact on the federal structure. 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 provision1. 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

19

Luther v. Borden (1849) 7 How 1

13

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. 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 state21, 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
20
21
22

Texas v. White (1869) 7 Wall 700

ibid
In re Debs, (1895) 158 US 564

14

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.
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
23

Article 16 of the Constitution of Switzerland, available at

http://www.servat.unibe.ch/icl/sz01000_.html

15

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 as1. 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 these forces shall be under the control of
the state government but this has been subsequently been
removed by the 44th amendment.

Chapter 4
EMERGENCY OWNING TO BREAKDOWN
CONSTITUTIONAL MACHINERY

OF

Article 356 of the Indian Constitution gives the right to the Union to
suspend the state legislature and executive and to assume its
16

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 thatThe United States shall guarantee to every state in the Union
a republican form of government.
17

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
referendum26, 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. Smith31 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.

24
25
26
27
28
29
30
31

Luther v, Borden (1848) 7 How 1 (42)

Pac. States v. Oregon (1912) 223 US 118 (141, 150)
Pac. States v. Oregon (1912) 223 US 118
Luther v, Borden (1848) 7 How 1 (42)
Mississippi v. Johnson (1867) 4 Wall 475
Mississippi v. Johnson (1867) 4 Wall 475
Baker v. Carr, (1962) 369 US 186
(1911) 221 US 559.

18

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
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 Presidents 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 nonrepublican 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.

32
33
34

Congress Publication on the Constitution of USA (1972), p. 852.

Mississippi v. Johnson (1867) 4 Wall 475
Cf. Luther v. Borden (1848) 7 How 1 (42)

19

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
(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
20

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
(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
21

(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 states 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
35

National Commission to Review the Working of the Constitution, A consultation paper

on Article 356 of the Consitution, available at
http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited on 20th Sepetember,
2012)

22

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 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.
23

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
(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
24

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(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.

25

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 38th amendment act of 1975 has been omitted.
In the result the Presidents 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 India36
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 The Sarkaria Commission Report, 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 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
36

AIR 1977 SC 1361

26

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 Commissions 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
37
38

The Sarkaria Commission Report, 6.3.23 (1987).

Id. at 6.8.01.

27

more effective.39 The report also emphasized that the Governors

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
Commissions report also recommended that wide publicity in all
media should be given to the Governors Report. 40
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 Federalism41 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 India42 . The
Supreme Court in this matter observed, inter alia, that it should not
39
40
41
42

Id. at 6.8.07.
Id. at 6.8.09 and 6.8.10
Dr. Durga Das Basu, Comparative Federalism, 2nd Ed., Lexis Nexis, 1987, p. 317
A.I.R. 1977 SC 1361.

28

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 Courts 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
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
43

S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297

Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian Express, Pune,
India, Sept 21, 1996.
44

29

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.

30

(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 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
31

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

32

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
33

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.
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.
34

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, 10th Edn., Universal Law
Publishing Co., 1885
C.H. WHEARE, Federal
University Press, 1963

Government,

4th

Edn.,

Oxford

Dr. Durga Das Basu, Comparative Federalism, 2nd Ed., Lexis

Nexis, 1987
H. M. Seervai, Constitutional Law of India, Vol. 1, 4th 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)
35

 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

36