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Significant Provisions
1.0 Introduction
Ever since the Constitution of India has been adopted, the emergency provisions contained in Articles 352-356 have caused a great amount of controversy. Ironically what was intended very much to remain a dead letter by none other than the Chairman of the Constituent Assembly himself during the course of the debates - has in fact turned out to be a Damocles' sword ever hanging over those states which generally had gone hostile to the party/parties in power at the Centre. With more than a hundred occasions where these powers have been used to dismiss a state government, it has been proved that the reservations expressed by those against such provisions were/are not entirely invalid. It is worth recalling that a similar provision was found in the Government of India Act, 1935.
The problem of protecting the unity, integrity and sovereignty weighed very heavily with the framers of the constitution because of the following reasons:
- the communal frenzy preceding and accompanying partition;
- the administrative tasks created by partition;
- transfer of power and resettlement of refugees;
- tackling the food and economic crisis; and
- the problem of the Princely States etc.
Hence the framers of the Constitution ensured that several articles that granted more powers to the Centre to the disadvantage of the States, were included in the constitution.
2.0 CONSTITUTIONAL PROVISIONS
Article 352 — Proclamation of Emergency —
- If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Explanation - A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
- A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
- The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing.
- Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month 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 has been dissolved, or the dissolution of the House of the People takes place during the period of one month 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.
- A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4): 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 it would otherwise have ceased to operate under this clause: 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 reconstitution 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.
- For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.
- Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
- Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation,—
- (a)to the Speaker, if the House is in session; or
- (b)to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.
- The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or dexternal aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.
Article 353 — Effect of Proclamation of Emergency — While a Proclamation of Emergency is in operation, then—
- notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;
- the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List:
Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,—
- the executive power of the Union to give directions under clause (a), and
- the power of Parliament to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
Article 354 — Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation—
- The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.
- Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
Article 355 — Duty of the Union to protect States against external aggression and internal disturbance — 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.
Article 356 — Provisions in case of failure of constitutional machinery in States —
- If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation—
- 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;
- declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
- 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.
- Any such Proclamation may be revoked or varied by a subsequent Proclamation.
- Every Proclamation under this article shall be laid before each House of Parliament and shall, 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.
- A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of3 [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 of1 [six months] from the date on which under this clause it would otherwise have ceased to operate, 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 reconstitution 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: Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to "three years" shall be construed as a reference to five years.
- 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—
- 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
- 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 nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.
Article 357 — Exercise of legislative powers under Proclamation issued under article 356 —
- Where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent—
- for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf;
- for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof;
- for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.
- Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.
Article 358 — Suspension of provisions of article 19 during emergencies —
- While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
- Nothing in clause (1) shall apply—
- to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
- to any executive action taken otherwise than under a law containing such a recital.
Article 359 — Suspension of the enforcement of the rights conferred by Part III during emergencies —
- Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of 7[the rights conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (1A) While an order made under clause (1) mentioning any of 2the rights conferred by Part III (except articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation. (1B) Nothing in clause (1A) shall apply—
- to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
- to any executive action taken otherwise than under a law containing such a recital.
- 2.An order made as aforesaid may extend to the whole or any part of the territory of India. Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.
- 3.Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
Article 359A — Application of this Part to the State of Punjab. Rep. by the Constitution (Sixty-third Amendment) Act, 1989, s. 3 (w.e.f. 6-1-1990).
Article 360 — Provisions as to financial emergency —
- If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.
- A Proclamation issued under clause (1) -
- may be revoked or varied by a subsequent Proclamation;
- shall be laid before each House of Parliament;
- shall 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 is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), 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.
- During the period any such Proclamation as is mentioned in clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
- Notwithstanding anything in this Constitution—
- any such direction may include— (i)a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State; (ii)a provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State;
- it shall be competent for the President during the period any Proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
3.0 EXPLANATION OF THE PROVISIONS
3.1 National Emergency
Article 352 of the Indian Constitution deals with the provisions relating to imposition of a National emergency. National emergency is imposed whereby there is a grave threat to the security of India or any of its territory due to war, external aggression or armed rebellion. Such emergency shall be imposed by the president on the basis of written request by the council of ministers headed by the Prime Minister. However safeguards have been provided wherein parliamentary approval is required.
Every proclamation of emergency issued by the President is required to be laid before each House of Parliament, it will cease to operate after one month from the date of its issue unless in the meantime it is approved by the parliament. The proclamation can remain in effect for only six months at a time unless it is revoked by the President before the expiry of six months. For further continuance of emergency the resolution has to be passed by either house of parliament by a majority of not less than two-third members of the houses.
When an emergency is imposed under Article 352 the executive, legislative and financial power rests with the centre. The state legislatures, however, are not suspended. The Union Government under Article 250 of the constitution gets the power to legislate in regards to subjects enumerated in the state list. Except Articles 20 and 21 all the fundamental rights are suspended. Under Article 359 the President also has the power to suspend the right to move to the courts for enforcement of fundamental rights when a National emergency has been declared.
National emergency has been imposed thrice in the country - in 1962 at time of Chinese aggression, in 1971 during the Indo-Pak war, in 1975 on the grounds of internal disturbances.
3.1.1 The Maintenance of Internal Security Act (MISA)
The Maintenance of Internal Security Act was a controversial law passed by the Indian parliament in 1971 which gave the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers like
- indefinite "preventive" detention of individuals,
- search and seizure of property without warrants, and
- wiretapping in the quelling of civil and political disorder in India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security.
The legislation gained infamy for its disregard of legal and constitutional safeguards of civil rights and was used as a tool of political vendetta to imprison all political leaders who were in opposition to Indira Gandhi. During the period of national emergency (1975-1977) thousands of innocent people were believed to have been arbitrarily arrested, tortured and in some cases, forcibly sterilized.
The legislation was also invoked to justify the arrest of Indira Gandhi's political opponents, including the leaders and activists of the opposition Janata Party.
The 39th Amendment to the Constitution of India (1975) placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review; even on the grounds that it contravened the Fundamental Rights which are guaranteed by the Constitution, or violated the Basic Structure.
The law was repealed in 1977 following the election of a Janata Party-led government; the 44th Amendment Act of 1978 similarly removed MISA from the 9th Schedule.
Controversial successors to this legislation include the Terrorism and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act, criticized for authorizing excessive powers for the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil freedoms.
3.2 Failure Of Constitutional Machinery In State
Article 356 deals with the failure of constitutional machinery in state also known as the President's rule. If the president on Governor's report or otherwise is satisfied that the situation has arisen that the government can't be carried in accordance with the constitutional provisions then, he may issue State emergency.
President can declare emergency either by the report of Governor or he himself is satisfied that the situation is such that the emergency has to be imposed. But at times, President may declare emergency when a report is not received from the governor. This was done by President Venkataraman in 1991 in the state of Tamil Nadu even though he didn't receive a report from the governor.
The 42nd Amendment of the Indian Constitution made declaration of an emergency under Article 356 immune from judicial review. But later in the 44th Amendment this position was reversed and the legality of President's rule could be challenged.
The proclamation relating to state emergency shall be laid before each House of Parliament unless both Houses approve it, the emergency shall cease to have effect after the expiry of a period of two months. Further the duration of proclamation can be extended to 6 months each time by both Houses of Parliament by passing a resolution approving its continuance. Beyond the period of an year however, the proclamation can only be continued if the Election Commission certifies that it is not possible to hold election in the state or that territory.
3.2.1 Effects of State Emergency
- The president assumes all the executive power of the state himself. The state administration runs by him or any person appointed by him generally the Governor.
- During such proclamation, the state assembly is either dissolved or suspended. But the MLA's do not lose their membership of the Assembly.
- Parliament makes laws regarding the state list. The parliament only passes the budget for the state.
- The High court of the state functions independently.
- President also proclaims ordinances in the state.
During the state emergency the Union government has absolute control over the state except the judiciary.
If one looks at the past instances of state emergency in the country, three common grounds emerge that have been invoked under Article 356- breakdown of law and order, political instability, corruption and maladministration.
In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional on extraneous and irrelevant ground. The court said that the state governor misled the centre in recommending dissolution of state assembly.
3.3 Financial Emergency
The president under Article 360 of the constitution has the power to declare financial emergency if he is satisfied that the financial stability or the credit of India or any part of its territory is threatened. It has to be laid before both the Houses of Parliament and ceases to operate at the expiration of two months unless meanwhile approved by the resolution of Houses.
During the operation of financial emergency, the executive authority of the union extends to the giving of directions to any state to observe certain specified canons or financial propriety and such other directions that the President may find necessary. The directions may include reduction of salaries or allowance of those serving a state, of all those in connection with the affairs of union including judges of high court and Supreme Court. There has been no occasion of financial emergency in India.
3.4 S.R. Bommai's case
The Janata Party being the majority party in the Karnataka State Legislature had formed Government under the leadership of S.R. Bommai. In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal and the Ministry was expanded with addition of 13 members. Within two days, one K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support to the Ministry. On 19 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party. He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister did not command a majority in the Assembly. It was inappropriate under the Constitution, to have the State administered by an Executive consisting of Council of Ministers which did not enjoy a majority in the assembly. He, therefore, recommended to the President that he should exercise power under Article 356(1). However on the next day seven out of the nineteen legislators sent letters to the Governor complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly to prove the confidence of assembly in his government. However, the Governor without giving a chance to the Government to prove its majority sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1). On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356(3).
A writ petition was filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ petition.
The Supreme Court delivered its judgment in this case and brought the arbitrary exercise of this power under reasonable limits of control.
3.4.1 Highlights of the Supreme Court's judgement
The Supreme Court of India while delivering its judgment that ran into more than two hundred pages, for the first time very significantly held that the issue of proclamation of President's Rule under Article 356 would be subject to 'judicial review' - and had imposed several restrictions on the invocation of this Article. Those restrictions can be briefly stated as given below:
- That the power under article 356 is an extra-ordinary power and must be used sparingly;
- That the federal scheme is an inherent and essential feature of the Constitution and so no state government enjoying people's confidence should be arbitrarily dealt with;
- That the power should be used only as a last resort - that too only after exhausting all other remedies available under Article 355 in restoring normalcy, and unless urgent steps become imperative;
- The power can not be exercised as long as a duly constituted government is in power enjoying majority support, on the pretext of providing a good government.
- The power should not be invoked to dislodge any state government or party in power, on the ground that the party ruling at the state level did not fare well in the Lok Sabha elections. If such a thing were to happen it should be treated as a clear case of unconstitutionality.
- The power to suspend any state government should certainly precede a warning to be issued by the President to the erring state so as to give it an opportunity to correct itself. However such a warning can be avoided in a case of extreme urgency, if it might otherwise lead to disastrous consequences.
Also, the Apex Court has also categorically observed that the Article 356 should not be invoked:
- if any state corrects itself on receiving a warning from the President;
- to grant relief to any state from a situation of stringent financial exigencies or due to serious allegations of corruption;
- to settle political disputes, internal differences and intra-party problems of the ruling party/parties;
- to gain political advantage by a party in a power at the centre to the disadvantage of any state government;
- to disturb the democratic and federal fabric of the constitutional scheme;
- unless a situation of armed rebellion arises and not a simple condition of internal disturbance.
Moreover, the judgment made it crystal clear that "the provisions of clause (3) of Article 356 are obviously meant to be checked by Parliament on the powers of the President under clause (1) of the said Article. Thus, to give effect to the proclamation of the President's Rule and Article 356, the approval of both the houses of Parliament has become a precondition and hence it appears as if a situation of arbitrary exercise of this power would no more be available to any Government at the Centre.
4.0 ARTICLE 370
Temporary provisions with respect to the State of Jammu and Kashmir
Notwithstanding anything in this Constitution —
- the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
- the power of Parliament to make laws for the said State shall be limited to—
- those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
- such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. Explanation — For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;
- the provisions of article 1 and of this article shall apply in relation to that State;
- such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by 3order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
- If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
- Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
5.0 EXPLANATION OF ARTICLE 370
Part XXI of the Constitution of India deals with "Temporary, Transitional and Special provisions". Article 370 falls under this part. According to this article, the State of Jammu and Kashmir has been accorded special status. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K.
5.1 Six major effects of Article 370
- The State of Jammu and Kashmir is exempted from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indian Union.
- Indian Parliament's legislative power over Jammu and Kashmir is restricted to three subjects - defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only "consultation" with the State government was required since the State has already accepted them by the Instrument.
- But if other "constitutional" provisions or other Union powers were to be extended to Kashmir, the prior "concurrence" of the State government is required.
- This concurrence has to be ratified by the State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the Government of the State... be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon."
- The State government's authority to give the "concurrence" lasts only till the State's Constituent Assembly is "convened". It is an "interim" power. Once the Constituent Assembly met, the State government could not give its own "concurrence". Still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State's Constituent Assembly drafted the State's Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State's Constituent Assembly had finalised the scheme and dispersed, the President's extending powers ended completely.
- Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also "the recommendation" of the State's Constituent Assembly "shall be necessary before the President issues such a notification".
However, Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment "shall have effect in relation to the State of Jammu and Kashmir" unless applied by Order of the President under Article 370. That requires the concurrence of the State's government and ratification by its Constituent Assembly.
6.0 LEGISLATIVE POWERS OF THE PRESIDENT
Power of President to promulgate Ordinances during recess of Parliament:
- If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
- An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—
- shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
- may be withdrawn at any time by the President. Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
- If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
7.0 EXPLANATION OF PROVISIONS RELATING TO ORDINANCES
Article 123 of the Indian Constitution grants the President of India to promulgate ordinances if certain circumstances exist. Ordinances may relate to any subject that the parliament has the power to make law but this power can be used only in the following circumstances:
- When legislature is not in session: the President can only promulgate when either of the House of Parliament is not in session.
- Immediate action is needed: the President though has the power of promulgating the ordinances but same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
- Parliament should approve: after the ordinance has been passed it is required to be approved by the parliament within six weeks of reassembling. The same will cease to operate if disapproved by either House.
The President exercises this power only with the consent of the Council of Ministers headed by the Prime Minister. However, he may withdraw an ordinance at any time. The Ordinances may have retrospective effect and may modify or repeal any act of parliament or other ordinances. However, the Constitution cannot be amended through the route of ordinances.
7.1 Trends in the promulgation of ordinances
Ordinances promulgated from year 1950- 2008, are overwhelming in the areas of Finance (129 in number), Labor (46), commerce & Industry (28), Home Affair (102) and Law and Justice (29). Out of these a very few of them can be classified under actual emergencies, and hence necessary as a constitutional obligation.
While the number of Ordinances issued under the supervision of first, second, third and fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The ordinances promulgated increased thrice in the Fifth Lok Sabha, ie. 93 Ordinances were promulgated.
The up-going trend was reversed by the Janta Dal which during their three year term of governance promulgated only 34 Ordinances from 1977-1979. The next two governments had promulgated an average number of 10 Ordinances per year.
The Narasimha Rao Government from year 1991-1996 had promulgated an average of 21 ordinances per year and none of the ordinance had ever dealt with either the corruption scam or with the prevailing political instability. In fact none of them were re-introduced as Bill in the parliament. The National Democratic Alliance (NDA) Government from year 1998-2004 had promulgated an average of 14.6 Ordinances per year and later the UPA Government from year 2004-2009 had promulgated an average of 6.8 Ordinances per year. From the year 2009-2014, the number of ordinances passed was only 25.
7.2 Satisfaction of the President
One of the most crucial issues in the power to promulgate ordinances is the subject of President's satisfaction; that circumstances exist that requires immediate actions on part of the President. The apex court has not yet defined 'satisfaction of the President' and even whether the subjective satisfaction of the President can be questioned in the Court of Law. The Indira Gandhi led Government passed the 38th Constitutional (Amendment) Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the purview of Judicial Review. However, the 44th (Amendment) Act, 1978 deleted this clause, holding that the power of President could be challenged in the Court of Law if it is based on bad faith, corrupt motive or had any mala fide intention.
In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the subjective satisfaction of the President is not completely non-justiciable. Later in case of Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court over ruled its own decision and held that the Satisfaction of the President cannot be called in question in the Court of law and is out of Judicial Review.
7.3 Important Cases
In the case of R.C. Cooper v. Union of India, (Bank Nationalisation Case) the constitutional validity of the Twenty-fifth Amendment Act, 1971 was challenged which curtailed the right of property of an individual and permitted the acquisition of the same by the government for the public use, on the payment of compensation which has to be determined by the Parliament and not by the court of law. The Supreme Court examined the constitutionality of Banking Companies Ordinance, 1969 which had sought to nationalize 14 commercial banks in India. It was held that President decision can be challenged on the ground that no 'immediate action' was required on his part.
In the case of A.K. Roy v. Union of India, the Supreme Court while examining the constitutionality of the National Security Ordinance, 1980, which was issued to provide for preventive detention in certain cases, argued that the President's power of making Ordinances is not beyond the Judicial Review of the court. However, the Court was unable to explore the issues of the case further as the ordinance of the President was replaced by an Act. The court also pointed out the need to exercise judicial review over the President's decision only at substantial grounds and not otherwise at every 'casual challenge'.
In the case of S.K.G.Sugar Ltd v. State of Bihar, it was held that promulgating of an Ordinance by the Governor is purely upon the his subjective satisfaction and he is the sole Judge to consider the necessity to issue the Ordinance. His satisfaction is not a justiciable matter.
In the case of T. Venkata Reddy v. State of Andhra Pradesh, the petitioner challenged the constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinances, 1984. One of the grounds was that the Ordinance was void on account of the lack of mind used by the Governor and from the commencement of the same the state legislature was disapproving it. The ordinance is said to take effect as soon as it is promulgated by the President and ceases to operate by the legislative act.
One of the questions which was raised in the above mentioned case by the court was: "whether the validity of an Ordinance passed can be tested upon the similar grounds as to those on which an executive or judicial action is tested". In answering the question the Supreme Court cited its own earlier judgment given in K.Nagaraj v. State of Karnataka, and held that the Power of making Ordinances is a legislative action so the same grounds as related to the law making should be challenged than challenging the executive or judicial grounds.
Further in the case of S.R. Bommai v. Union of India the scope of Judicial Review was expanded. The Court held that where the action by the President is taken without the relevant materials, the same would be falling under the category of "obviously perverse" and the action would be considered to be in bad faith. The Supreme Court held that the exercise of power by the President under the Article 356(1) to issue proclamation is Justiciable and subject to Judicial Review to challenge on the ground of mala fide.
In case of State of Orissa v. Bhupendra Kumar Bose, the court held that the rights and obligations which are created by the Ordinance came into effect as soon as the Ordinance is promulgated and the same cannot be extinguished until a proper legislature by a legislative body extinguishes those rights and obligations of the Ordinances. However, where the Ordinances promulgated is an abuse of power and a kind of Fraud on the constitution, then, the state prevailing with such promulgation should immediately revive.
An ordinance would be made open to challenge on the following grounds:
- It constitutes colorable legislation; or
- It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
- It is violative of substantive provisions of Our Constitution such as an Article 301; or
- Its retrospectively is unconstitutional.
Ordinances are however framed by the executive body which is said to be a single, unified entity. The President is the head of the executive body who promulgate ordinances on the advice of the council of ministers. The most important requirement of the promulgation of the ordinances is the 'necessity to take the immediate action'. Then there will be no difficulty in ascertaining the satisfaction of the President when there is real need or necessity in promulgating the Ordinances.
In further the case of D.C. Wadhwa v. State of Bihar, the State of Bihar's promulgating and re-promulgating ordinances were challenged as there was promulgation of the same in "massive scale". Between the year 1967-81, 256 ordinances were promulgated and then re-promulgated and some among them remain into existence for up to 14 years. Chief Justice P.N. Bhagwati observed:
"The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet political ends of an individual. Though it is contrary to democratic norm for an executive to make a law but this power is given to the President to meet emergencies so it should be limited in some point of time."
The power of judicial review of ordinances was once again discussed in year 1998 in the case of Krishna Kumar Singh v State of Bihar, in this case the Supreme Court struck down many number of ordinances stating that no particular basis for the exercise of the Ordinance making power of the President had been shown. It also stated: "There was also no explanation offered for promulgating one ordinance upon another".
Though the sheer profligacy in ordinance making power of the President had compelled the Apex Court to perform some judicial review, there is still no clarity on the nature and extent of the judicial review of the court over the ordinances made by the President or the Governor.
In most of the cases Power of Ordinance making is a controversial topic and a topic of discussion. It tries to disturb the balance between the executive as well as legislative powers by bringing into the element of arbitrariness into the Constitutional System and disturbing the rule of law. Whenever such an ordinance making power is exercised by an Executive body it shows disregard to the legislature. Till now only a few grounds are established to challenge the validity of the Ordinances:
- directly violates a constitutional provision,
- president has exceeded his constitutional power,
- President had made a colorable use of his power.
8.0 IMPORTANT DOCTRINES
8.1 The Doctrine of Eclipse
The Doctrine of Eclipse provides that in case a law which existed before India's constitution was drafted is found to be inconsistent with the Fundamental rights enshrined in the Constitution, they would be invalid to the extent of such inconsistency. The main issue to be noted here is that the pre-constitutional law does not become void ab initio, it becomes void only to the extent of the conflict. When a Court strikes down a part of law, it becomes unenforceable to the extent it has been struck down. Hence, an 'eclipse' is said to be cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.
If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.
In Keshava Madhava Menon Vs. State of Bombay the issue was that there was a previous law which was in conflict with the freedom guaranteed under Article 19(1) (g) of the Constitution of India. The restrictions imposed under the pre-constitutional law could not be considered justifiable as explained by clause (6) of Article 19. The Honorable court held that this did not make the pre-constitutional law void in toto but only to the extent of such inconsistency.
A similar view was adopted by the courts in the case of Bhikaji Narain Dhakras and others Vs. The State of Madhya Pradesh. In this case the honorable court commented that "Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right".
The Supreme Court of India, in P Ratinam case, has held Section 309 of the Indian Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However, a constitutional bench in Gian Kaur case reversed this decision and held the section as constitutional whereby the eclipse was removed and it became operative again.
8.2 The Doctrine of Repugnancy
Repugnancy in Constitutional terms can be defined as a conflict between two or more parts of law. Article 254 of the Indian Constitution firmly entrenches the Doctrine of Repugnancy in the Indian constitution. Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:
- The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.
- The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated in List II or the State List in the Seventh Schedule.
- The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.
- Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
The Supreme Court in M. Karunanidhi Vs. Union of India summarized Article 254(1). It stated that "where the provisions of a Central Act and a State Act in the Concurrent list are fully inconsistent and absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy." It also laid down conditions to be laid down before repugnancy arises which were
- There should be a clear and direct inconsistency between the Central Act and the State Act.
- Such an inconsistency should be absolutely irreconcilable.
- The inconsistency between the provisions of the two Acts should of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
- That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
8.3 The Doctrine of Severability
The Doctrine of severability provides that if an enactment cannot be saved by construing it consistent with its constitutionality, it may be seen whether it can be partly saved. If a part of a statute turns out to be void, it should not affect the validity of the rest of it.
In R.M.D. Chamarbaugwalla v. The Union of India (UOI) the court stated that a significant principle of determination of constitutionality is whether the courts are reluctant to declare a low invalid on the grounds of unconstitutionality. The Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional.
The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable
In the case of Suresh Kumar Koushal and another v. Naz Foundation and Others the court observed that while the High Court and the Supreme Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality.
In Bhikaji Narain Dhakras And Others v. The State of Madhya Pradesh and another the honorable court observed that "Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right".
8.4 The Doctrine of Colourable legislation
The doctrine of colourable legislation is based on the rationale that what cannot be done directly cannot also be done indirectly. If the legislature having no power to legislate frames a legislation in a way that it is camouflaging the same as to make it appear to fall within its competence, the legislation thus enacted may be regarded as colourable legislation.
In the case of K.C Gajapti vs state of Orissa the honourable Supreme Court. while explaining the doctrine stated that "if the constitution of a state distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. Such transgression may be patent , manifest and direct, but may also be distinguished, covered and indirect and it is the latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements."
Over a period of time various judicial pronouncements have laid down the tests to determine whether a particular legislation is colourable. These tests are:
- The court must look to the substance of the impugned law not the nomenclature which has been given to it by the legislature.
- A colourable legislation is not concerned with motive. The main concern is whether it is ultra vires the legislature. Similarly if the legislature is competent enough to enact a particular law, then whatever motive which impelled it to act are irrelevant.
8.5 The Doctrine of Waiver
The Doctrine of Waiver is based on the rationale that a man not under legal liability is the best judge of his own interest. The concept of Fundamental Rights is a very important feature of the Constitution of India. These rights though sacrosanct are not absolute in nature. Our Constitution imposes various imposes various reasonable restrictions upon the exercise of fundamental rights.
According to the doctrine of waiver, a right can be waived subject to the condition that no public interest is involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental rights is a bit different. The fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the 'doctrine of waiver' cannot apply to provisions of law which have been enacted as a matter of Constitutional policy. This observation was made by the court in Basheshr Nath v. Income Tax commissioner.
Article 14 cannot be waived for it is an admonition to the state as a matter of public policy with a view to implement its object of ensuring equality. No person can therefore, by an act or conduct free the state of the solemn obligation imposed on it by the constitution. According to the constitution there is not distinction between fundamental rights enacted for the benefit of an individual and fundamental rights enacted in public interest.
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