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Tag: Indian Constitution

  • Committees of the Constituent Assembly (Indian Constitution)

    In this article, we will discuss Committees of the Constituent Assembly (Indian Constitution). So, let’s get started.

    Committees of the Constituent Assembly (Indian Constitution)

    The Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others were minor committees. The names of these committees and their Chairman are given below:

    Major Committees
    Union Powers Committee – Jawaharlal Nehru
    Union Constitution Committee – Jawaharlal Nehru
    Provincial Constitution Committee -Sardar Patel
    Drafting Committee – Dr. BR Ambedkar
    Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel. This committee had the following five sub-committees:
    (a) Fundamental Rights Sub-Committee J.B. Kripalani
    (b) Minorities Sub-Committee – H.C. Mukherjee
    (c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bardoloi
    (d) Excluded and Partially Excluded Areas (other than those in Assam) Sub-Committee – A.V. Thakkar
    (e) North-West Frontier Tribal Areas Sub-Committee
    Rules of Procedure Committee – Dr. Rajendra Prasad
    States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
    Steering Committee – Dr. Rajendra Prasad

    Minor Committees
    Finance and Staff Committee – Dr. Rajendra Prasad
    Credentials Committee-Alladi Krishnaswami Ayyar
    House Committee – B. Pattabhi Sitaramayya
    Order of Business Committee – Dr. K.Munshi
    Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad
    Committee on the Functions of the Constituent Assembly – G.V. Mavalanlar
    Ad hoc Committee on the Supreme Court – S. Varadachari (Not an Assembly Member)
    Committee on Chief.Commissioners’ Provinces – B. Pattabhi Sitaramayya
    Expert Committee on the Financial Provisions of the Union Constitution – Nalini Ranjan Sarkar (Not an Assembly Member)
    Linguistic Provinces Commission – S.K. Dar (Not an Assembly Member)
    Special Committee to Examine the Draft Constitution – Jawaharlal Nehru
    Press Gallery Committee – Usha Nath sen
    Ad-hoc Committee on Citizenship – S. Varadachari (Not an Assembly Member)

    Drafting Committee
    Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:
    Dr. B.R. Ambedkar (Chairman)
    N. Gopalaswamy Ayyangar
    Alladi Krishnaswamy Ayyar
    Dr. K.M. Munshi
    Syed Mohammad Saadullah
    N. Madhava Rau (He replaced BL Mitter who resigned due to ill-health)
    T.T. Krishnamachari (He replaced D.P. Khaitan who died in 1948)

    The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February, 1948. The people of India were giveneight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October, 1948. The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141 days.

  • President of India (Part-4)

    In this article, we will discuss President of India (Part-4). So, let’s get started.

    Vacancy in the President’s Office

    • A vacancy in the President’s office can occur in any of the following ways:
    • On the expiry of his tenure of five years.
    • By his resignation.
    • On his removal by the process of impeachment
    • By his/her death
    • Otherwise, for example, when he becomes disqualified to hold office or when his election is declared void.
    • When the vacancy is going to be caused by the expiration of the term of the sitting President, an election to fill the vacancy must be held before the expiration of the term. In case of any delay in conducting the election of new President by any reason, the outgoing President continues to hold office (beyond his term of five years) until his successor assumes charge. This is provided by the Constitution in order to prevent an ‘interregnum’. In this situation, the Vice-President does not get the opportunity to act as President or to discharge the functions of the President. If the office falls vacant by resignation, removal, death or otherwise, then election to fill the vacancy should be held within six months from the date of the occurrence of such a vacancy. The newly-elected President remains in office for a full term of five years from the date he assumes charge of his office.
    • When a vacancy occurs in the office of the President due to his resignation, removal, death or otherwise, the Vice-President acts as the President until a new President is elected. Further, when the sitting President is unable to discharge his functions due to absence, illness or any other cause, the Vice-President discharges his functions until the President resumes his office.
    • In case the office of Vice-President is vacant, the Chief Justice of India (or if his office is also vacant, the seniormost judge of the Supreme Court available) acts as the President or discharges the functions of the President.
    • When any person, i.e., Vice-President, chief justice of India, or the seniorbmost judge of the Supreme Court is acting as the President or discharging the functions of the President, he enjoys all the powers and immunities of the President and is entitled to such emoluments, allowances and privileges as are determined by the Parliament.

  • President of India (Part-3)

    In this article, we will discuss President of India (Part-3). So, let’s get started.

    Term Impeachment and Vacancy

    • Term of President’s Office
    • The President holds office for a term of five years from the date on which he enters upon his office. However, he can resign from his office at any time by addressing the resignation letter to the Vice-President. Further, he can also be removed from the office before completion of his term by the process of impeachment.
    • The President can hold office beyond his term of five years until his successor assumes charge. He is also eligible for re-election to that office. He may be elected for any number of terms. However, in USA, a person cannot be elected to the office of the President more than twice.
    • Impeachment of President
    • The President can be removed from office by a process of impeachment for ‘violation of the Constitution. However, the Constitution does not define the meaning of the phrase ‘violation of the Constitution’.
    • The impeachment charges can be initiated by either House of Parliament. These charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice should be given to the President. After the impeachment resolution is passed by a majority of two-thirds of the total membership of that House, it is sent to the other House, which should investigate the charges. The President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the Impeachment resolution by a majority of two-thirds of the total membership, then the President stands removed from his office from the date on which the resolution is so passed. Thus, an impeachment is a quasi-judicial procedure in the Parliament. In this context, two things should be noted: (a) the nominated members of either House of Parliament can participate in the impeachment of the President though they do not participate in his election; (b) the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment of the President though they participate in his election.
    • No President has so far been impeached.

  • President of India (Part-2)

    In this article, we will discuss President of India (Part-2). So, let’s get started.

    Qualifications Oath and Conditions

    Qualifications for Election as President
    A person to Be eligible for election as President should fulfil the following qualifications:
    He should be a citizen of India.
    He should have completed 35 years of age.
    He should be qualified for election as a member of the Lok Sabha.
    He should not hold any office of profit under the Union government or any state government or any local authority or any other public authority.A sitting President or Vice-president of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate.
    Further, the nomination of a candidate for election to the office of President must be subscribed by at least 50 electors as proposers and 50 electors as seconders. Every candidate has to make a security deposit of ₹15,000 in the Reserve Bank of India. The security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled. Before 1997, number of proposers and seconders was ten each and the amount of security deposit was ₹2,500. In 1997, they were increased to discourage the non-serious candidates.

    Oath or Affirmation by the President
    Before entering upon his office, the President has to make and subscribe to an oath or affirmation. In his oath, the President swears:
    to faithfully execute the office;
    to preserve, protect and defend the Constitution and the law; and
    to devote himself to the service and well-being of the people of India.
    The oath of office to the President is administered by the Chief Justice of India and in his absence, the seniormost judge of the Supreme Court available.
    Any other person acting as President or discharging the functions of the President also
    undertakes the similar oath or aftirmation.

    Conditions of President’s Office
    The Constitution lays down the following conditions of the President’s office:
    He should not be a member ot either House of Parliament or a House of the state legislature. If any such person is elected as President, he is deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
    He should not hold any other office of profit.
    He is entitled, without payment of rent, to the use of his official residence (the Rastrapathi Bhavan).
    He is entitled to such emoluments, allowances and privileges as may be determined by Parliament.
    His emoluments and allowances cannot be diminished during his term of office.
    In 2018, the Parliament increased the salary of the President from ₹1.50 lakh to ₹5 lakh per month”. Earlier in 2008, the pension of the retired President was increased from ₹3 lakh per annum to 50% of his salary per month”. In addition, the former Presidents are entitled to furnished residence, phone facilities, car, medical treatment, travel facility, secretarial staff and
    office expenses upto 1,00,000 per annum. The spouse of a deceased President is also entitled to a family pension at the rate of 50% of pension of a retired President, furnished residence, phone facility, car, medical treatment, travel facility, secretarial staff and office expenses upto ₹20,000 per annum.
    The President is entitled to a number of privileges and immunities, He enjoys personal immunity from legal liability for his official acts. During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts. He cannot be arrested or imprisoned. However, after giving two months’ notice, civil proceedings can be instituted against him during his term of office in respect of his personal acts.

  • President of India

    In this article, we will discuss President of India (Part-1). So, let’s get started.

    President of India (Part-1)

    Articles 52 to 78 in Part V of the Constitution deal with the Union executive. The Union executive consists of the President, the Vice-President, the Prime Minister, the council of ministers and the attorney general of India
    The President is the head of the Indian State. He is the first citizen of India and acts as the symbol of unity, integrity and solidarity of the nation.

    Election of the President
    The President is elected not directly by the people but by members of clectoral college
    consisting of the elected members of both the Houses of Parliament the elected members of the legislative assemblies of the states, and
    the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry’.
    Thus, the nominated members of both of Houses of Parliament, the nominated members of the state legislative assemblies, the members (both elected and nominated) of the state legislative councils (in case of the bicameral legislature) and the nominated members of the Legislative Assemblies of Delhi and Puducherry do not participate in the election of the President, where an assembly is dissolved, the members cease to be qualified to vote in presidential election, even if fresh elections to the dissolved assembly are not  held before the presidential election.

    The Constitution provides that there shall be unitormity in the scale of representation of different states as well as parity between the states as a whole and the Union at the election of the President. To achieve this, the number of votes which each elected member of the legislative assembly of each state and the Parliament is entitled to cast at such election shall be determined in the following manner:

    Every elected member of the legislative assembly of a state shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the state by the total number of the elected members of the assembly.

    Every clected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to members of the legislative assemblies of the states by the total number of the elected members of both the Houses of
    Parliament.

    The President’s election is held in accordance with the system of proportional representation by means of the single transferable vote and the voting is by secret ballot. This system ensures that the successful candidate is returned by the absolute majority of votes. A candidate, in order to be declared elected to the office of President, must secure a fixed quota of votes. The quota of votes is determined by dividing the total number of valid votes polled by the number of candidates to be elected (here only one candidate is to be elected as President) plus one and adding one to the quotient.

    Each member of the electoral college is given only one ballot paper. The voter, while casting his vote, is required to indicate his preferences by marking 1, 2, 3, 4, etc. against the names of candidates. This means that the voter can indicate as many preterences as there are candidates in the fray.
    In the first phase, the first preference voteshh are counted. In case a candidate secures the required quota in this phase, he is declared elected. Otherwise, the process of transfer of votes is set in motion. The ballots of the candidate securing the least number of first preference votes are cancelled and his second preference votes are transferred to the first preference votes of other candidates. This process continues till a candidate secures the required quota.

    All doubts and disputes in connection with election of the President are inquired into and decided by the Supreme Court whose decision is final. The election of a person as Presídent cannot be challenged on the ground that the electoral college was incomplete (ie, existence of any vacancy among the members of electoral college). If the election of a person as President is declared void by the Supreme Court, acts done by him before the date of such declaration of the Supreme Court are not invalidated and continue to remain in force.

    Some members of the Constituent Assembly criticised the system of indirect election for the President as undemocratic and proposed the idea of direct election. However, the Constitution makers chose the indirect election due to the following reasons:

    The Indirect election of the President is in harmony with the parliamentary system of government envisaged in the Constitution. Under this system, the President is only a nominal executive and the real powers are vested in the council of ministers headed by the prime minister. It would have been anomalous to have the Presidente elected directly by the people and not give him any real power.

    The direct election of the President would have been very costly and time and energy-consuming due to the vast size of the electorate. This is unwarranted keeping in view that he is only a symbolic head.

    Some members of the Constituent Assembly suggested that the President should be elected
    by the members of the two Houses of Parliameent alone. The makers of the Constitution did no
    prefer this as the Parliament, dominated by one political party, would have invariably chosen a candidate from that party and such a President could not represent the states of the Indian Union. The present system makes the President a representative of the Union and the states equally.
    Further, it was pointed out in the Constituent Assembly that the expression proportional representation in the case of presidential election is a misnomer. Proportional representation takes place where two or more seats are to be filled. In case of the President, the vacancy is only one. It could better be called a preferential or alternative vote system. Similarly, the expression single transferable vote’ was also objected on the ground that no voter has a single vote, every voter has plural votes.

  • Preamble of Indian Constitution (Part-3)

    In this article, we will discuss Preamble of Indian Constitution (Part-3). So, let’s get started.

    Preamble of the Constitution

    Significance of the Preamble
    The Preamble embodies the basic philosophy and fundamental values-political, moral and religious-on which the Constitution is based. It contains the grand and noble vision of the Constituent Assembly, and reflects the dreams and aspirations of the founding fathers of the Constitution. In the words of Sir Alladi Krishnaswami lyer, a member of the Constituent Assembly who played a significant role in making the Constitution, “The Preamble to our Constitution expresses what we had thought or dreamt so long’.
    According to K.M Munshi, a member of  the Drafting Committee of the Constituent Assembly, the Preamble is the ‘horoscope of our sovereign dermocratic republic’.
    Pandit Thakur Das Bhargava, another member of the Constituent Assembly, summed up the importance of the Preamble in the following words: “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution. It is a proper yardstick with which one can measure the worth of the
    Constitution’.
    Sir Ernest Barker, a distinguished English political scientist, paid a glowing tribute to the political wisdom of the authors of the Preamble. He described the Preamble as the ‘key-note’ to the Constitution. He was so moved by the text of the preamble that he quoted” it at the opening of his popular book, Principles of Social and Political Theory (1951).
    M. Hidayatullah, a former Chief Justice of India, observed, ‘Preamble resembles the Declaration of Independence of the United State of America, but is more than a declaration. It is the soul of our Constitution. which lays down the pattern of our political society. It contains a solemn resolve, which nothing but a revolution can alter.

    Preamble as part of the Constitution
    One of the controversies about the Preamble is as to whether it is a part of the Constitution or not.
    In the Berubari Union case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble. Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that Preamble is not a part of the Constitution.
    In the Kesavananda Bharati case (1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. In the LIC of India case” (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution.
    Like any other part of the Constitution, the Preamble was also enacted by the Constituent Assembly; but, after the rest of the Constitution was already enacted. The reason for inserting the Preamble at the end was to ensure that it was in conformity with the Constitution as adopted by the Constituent Assembly. While forwarding the Preamble for votes, the President
    of the Constituent Assembly said, “The question is that Preamble stands part of the Constitution’. The motion was then adopted. Hence, the current opinion held by the Supreme Court that the Preamble is a part of the Constitution, is in consonance with the opinion of the founding fathers of the Constitution.
    However, two things should be noted:

    The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature.

    It is non-justiciable, that is, its provisions are not enforceable in courts of law.!

    Amenability of the Preamble
    The question as to whether the Preamble can be amended under Article 368 of the Constitution arose for the first time in the historic Kesavananda Bhurati case (1973). It was urged that the Preamble cannot be amended as it is not a part of the Constitution. The petitioner contended that the amending power in Article 368 cannot be used to destroy or damage the basic elements or the fundamental features of the Constitution, which are enshrined in the Preamble.
    The Supreme Court, however, held that the Preamble is a part of the Constitution. The Court stated that the opinion tendered by it in the Berubari Union (1960) in this regard was wrong, and held that the Preamble can be amended, subject to the condition that no amendment is done to the basic features In other words, the Court held that the basic elements or the fundamental features of the Constitution as contained in the Preamble cannot be altered by an amendment under Article 368
    The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional
    Amendment Act, which has added three new words-Socialist, Secular and Integrity-to the Preamble. This amendment was held to be valid.

  • Unittary Features of Indian Constitution

    In this article, we will discuss Unittary Features of Indian Constitution. So, let’s get started.

    Unittary Features of Indian Constitution

    Besides the above federal features, the Indian Constitution also possesses the following unitary or non-federal features:

    Strong Centre
    The division of powers is in favour of the Centre and highly inequitable from the federal angle. Firstly, the Union List contains more subjects than the State List. Secondly, the more important subjects have been included in the Union List. Thirdly, the Centre has overriding authority over the Concurrent List. Finally, the residuary powers have also been left with the Centre, while in
    the US, they are vested in the states. Thus, the Constitution has made the Centre very strong.

    States Not Indestructible
    Unlike in other federations, the states in India have no right to territorial integrity. The Parliament can by unilateral action change the area, boundaries or name of any state. Moreover, it requires only a simple majority and not a special majority. Hence, the Indian Federation is “an indestructible Union of destructible states”. The American Federation, on the other hand, is described as “an indestructible Union of indestructible states”.

    Single Constitution
    Usually, in a federation, the states have the right to frame their own Constitution separate from that of the Centre. In India, on the contrary, no such power is given to the states. The Constitution of India embodies not only the Constitution of the Centre but also those of the states. Both the Centre and the states must operate within this single-frame. The only exception in this regard was the case of Jammu and Kashmir which had its own (state) Constitution.”

    Flexibility of the Constitution
    The process of constitutional amendment
    is less rigid than what is found in other federations. The bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple majority or by special majority. Further, the power to initiate an amendment to the Constitution lies only with the Centre In US, the states can also propose an amendment to the Constitution.

    No Equality of State Representation
    The states are given representation in the Rajya Sabha on the basis of population. Hence, the membership varies from 1 to 31. In Us, on the other hand, the principle of equality of representation of states in the Upper House is fully recognised. Thus, the American Senate has 100 members, two from each state. This principle is regarded as a safeguard for smaller states.

    Emergency Provisions
    The Constitution stipulates three types of emergencies-national, state and financial. During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation is not found in any other federation.

    Single Citizenship
    In spite of a dual polity, the Constitution of India, like that of Canada, adopted the system of single citizenship. There is only Indian Citizenship and no separate state citizenship All citizens irrespective of the state in which they are born or reside enjoy the same rights all over the country. The other federal states like US, Switzerland and Australia have dual citizenship, that is, national citizenship as well as state citizenship.

    Integrated Judiciary
    The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the state high courts below it. This single system of courts enforces both the Central laws as well as the state laws In US, on the other hand, there is a double system of courts whereby the federal laws are enforced by the federal judiciary and the state laws by the state judiciary.

    All-India Services
    In US, the Federal government and the state governments have their separate public services. In India also, the Centre and the states have their separate public services But, in addition, there are all India services (IAS, IPS, and IFS) which are common to both the Centre and the states. The members of these services are recruited and trained by the Centre which also possess ultimate control over them. Thus, these services violate the principle of federalism under the Constitution.

    Integrated Audit Machinery
    The Comptroller and Auditor-General of India audits the accounts of not only the Central government but also those of the states. But, his appointment and removal is done by the president without consulting the states. Hence, this office restricts the financial autonomy of the states. The American Comptroller-General, on the contrary, has no role with respect to the accounts of the states.

    Parliament’s Authority Over State List
    Even in the limited sphere of authority allotted to them, the states do not have exclusive control. The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect in the national interest. This means that the legislative competence of the Parliament can be extended without amending the Constitution. Notably, this can be done when there is no emergency of any kind.

    Appointment of Governor
    The governor, who is the head of the state, is appointed by the President. He holds office during the pleasure of the President. He also acts as an agent of the Centre. Through him, the Centre exercises control over the states. The American Constitution, on the contrary, provided for an elected head in the states. In this respect, India adopted the Canadian system.

    Integrated Election Machinery
    The Election Commission conducts elections not only to the Central legislature but also to the state legislatures. But, this body is constituted by the President and the states have no say in this matter. The position is same with regard to the removal of its members as well. On the other hand, US has separate machineries for the conduct of elections at the federal and state levels.

    Veto Over State Bills
    The governor is empowered to reserve certain types of bills passed by the state legislature for the consideration of the President. The President can withhold his assent to such bills not only in the first instance but also in the second instance. Thus, the President enjoys absolute veto (and not suspensive veto) over state bills. But in US and Australia, the states are autonomous within their fields and there is no provision for any such reservation.

  • National Emergency (Part-5)

    In this article, we will discuss National Emergency (Part-5). So, let’s get started.

    Distinction Between Articles 358 and 359

    The differences between Articles 358 and 359 can be summarised as follows:

    Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.

    Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.

    Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article
    359, on the other hand, operates in case of both External Emergency as well as Internal Emergency.

    Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period.

    Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it.

    Article 358 suspends Article 19 completely while Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.

    Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19 while Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.

    There is also a similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. Also, the executive action taken only under such a law is protected by both.

    Declarations Made So Far

    This type of Emergency has been proclaimed three times so far-in 1962, 1971 and 1975.
    The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA (North-East Frontier Agency-now Arunachal Pradesh), and was in force till January 1968. Hence, a fresh proclamation was not needed at the time of war against Pakistan in 1965.

    The second proclamation of national emergency was made in December 1971 in the wake of attack by Pakistan. Even when this Emergency was in operation, a third proclamation of National Emergency was made in June 1975. Both the second and third proclamations were revoked in March 1977.

    The first two proclamations (1962 and 1971) were made on the ground of ‘external aggression’, while the third proclamation (1975) was made on the ground of ‘internal disturbance’, that is, certain persons have been inciting the police and the armed forces against the discharge of their duties and their normal functioning.

    The Emergency declared in 1975 (internal emergency) proved to be the most controversial. There was widespread criticism of the misuse of Emergency powers. In the elections held to the Lok Sabha in 1977 after the Emergency, the Congress Party led by Indira Gandhi lost and the Janta Party came to power. This government appointed the Shah Commission to investigate the circumstances that warranted the declaration of an  Emergency in 1975. The commission did not justify the declaration of the Emergency. Hence, the 44th Amendment Act was enacted in 1978 to introduce a number of safeguards against the misuse of Emergency provisions.

  • National Emergency (Part-4)

    In this article, we will discuss National Emergency (Part-4). So, let’s get started.

    Effects of National Emergency


    A proclamation of Emergency has drastic and wide ranging effects on the political system. These consequences can be grouped into three categories:

    • Effect on the Centre-state relations,
    • Effect on the life of the Lok Sabha and State assembly, and State assembly, and
    • Effect on the Fundamental Rights.

    Effect on the Centre-State Relations

    While a proclamation of Emergency is in force, the normal fabric of the Centre-state relations
    undergoes a basic change. This can be studied under three heads, namely, executive, legislative and financial.

    Executive: During a national emergency, the executive power of the Centre extends to
    directing any state regarding the manner in which its executive power is to be exercised. In
    normal times, the Centre can give cxecutive directions to a state only on certain specitied
    matters. However, during a national emergenCy, the Centre becomes entitled to give cxecu-
    tive directions to a state on ‘any’ matter. Thus, the state governments are brought under the
    complete control of the Centre, though they are not suspended.

    Legislative: During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List. Although the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the Parliament. Thus, the normal distribution of the legislative powers between the Centre and states is suspended, though the state Legislatures are not suspended. In brief, the Constitution becomes unitary rather than federal.
    The laws made by Parliament on the state subjects during a National Emergency become
    inoperative six months after the emergency has ceased to operate.
    Notably, while a proclamation of national emergency is in operation, the President can issue ordinances on the state subjects also, if the Parliament is not in session. Further, the Parliament can confer powers and impose duties upon the Centre or its officers and authorities in respect of matters outside the Union List, in order to carry out the laws made by it under its extended jurisdiction as a result of the proclamation of a National Emergency.
    The 42nd Amendment Act of 1976 provided that the two consequences mentioned above
    (executive and legislative) extends not only to a state where the Emergency is in operation
    but also to any other state.

    Financial: While a proclamation of national emergency 1s in operation, the president can modify the constitutional distribution of revenues between the centre and the states. This means that the president Can either reduce or cancel the transfer of finances from Centre to the states. such modification continues till the end of the financial year in which the Emergency Ceases to operate. Also, every such order of the President has to be laid before both the Houses of Parliament.

    Effect on the Life of the Lok Sabha and State Assembly

    While a proclamation ot National Emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term(five years) by a law of Parliament for one year at a time (for any length of time). However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. For example, the term of the Fifth Lok Sabha (1971-1977) was extended two times by one year at a time.
    Similarly, the Parliament may extend the normal tenure of a state legislative assembly (five years) by onc year each time (for any length of time) during a national emergency, subject to a maximum period of six months after the Emergency has ceased to operate.

    Effect on the Fundamental Rights

    Articles 358 and 359 describe the eflect of a National Emergency on the Fundamental Rights.
    Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). These two provisions are explained below:

    (a) Suspension of Fundamental Rights under Article 10 According to Article 358, when a
    proclamation of national emergency is made, the six Fundamental Rights under Article 19
    are automatically suspended. No separate order for their suspension is required.
    While a proclamation ot national emergency is in operation, the state is freed from the restrictions imposed by Article 19. In other words, the state can make any law or can take any executive action abridging or taking away the six Fundamental Rights guaranteed by Article  19. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the six Fundamental Rights guaranteed by  Article 19. When the National Emergency ceases to operate, Article 19 automatically revives and comes into force. Any law made during Emergency, to the extent of inconsistency with Article 19, ceases to have effect. However, no remedy lies for anything done during the Emergency even after the Emergency expires. This means that the legislative and executive actions taken during the emergency cannot be challenged even after the Emergency ceases to operate.

    The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six Fundamental Rights under Article 19 can be suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion. Secondly, only those laws which are related with the Emergency are protected from being challenged and not other laws. Also, the executive action taken only under such a law is protected.

    (b) Suspension of other Fundamental Rights
    Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. This means that under Article 359, the Fundamental Rights as such as not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended. The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval.

    While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified Fundamental Rights. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified Fundamental Rights. When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified Fundamental Rights, ceases to have effect. But no remedy lies for anything done during the operation of the order even after the order ceases to operate. This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires.
    The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during emergency. Secondly, only those laws which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

  • National Emergency (Part-3)

    In this article, we will discuss National Emergency (Part-3). So, let’s get started.

    Revocation of Proclamation

    A proclamation of emergency may be revoked by the President at any time by a subsequent
    proclamation such a proclamation does not require the parliamentary approval. Farther the President must revoke a proclamation if the Lok bha passes a resolution disapproving its continuation Again, this safeguard was introduced by the 44th Amendment Act of 1978 Before the amendment, a proclamation could be revoked by the president on his own and the Lok Sabha had no control in this regard.
    The 44th Amendment Act of 1978 also provided that where one-tenth of the total number of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session, a special sitting of the House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation.
    A resolution of disapproval is different from a resolution approving the continuation of a proclamation in the following two respects:

    The first one is required to be passed by the Lok Sabha only while the second one needs to be passed by the both Houses of Parliament.

    The first one is to be adopted by a simple majority only, while the second one needs to be adopted by a special majority