Executive Discretion and Article 356 of the Constitution of India: A Comparative Critique

Abstract

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

JEL Classification: K10, N40