Indian Constitution - Semester 1 - PDF

INDIAN CONSTITUTION Semester - I Mr. Smit Vachhani Assistant Professor Darshan Institute of Management UNIT – 3 Separation of Powers and Emergency Provision Rajkot – Morbi Highway, Rajkot – 363650...

INDIAN CONSTITUTION Semester - I Mr. Smit Vachhani Assistant Professor Darshan Institute of Management UNIT – 3 Separation of Powers and Emergency Provision Rajkot – Morbi Highway, Rajkot – 363650 UNIT -3 Separation of Powers and Emergency Provisions 1  SEPARATION OF POWERS 1. Meaning of Separation of Power In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the concept of separation of powers is not adhered to strictly. However, a system of checks and balances have been put in place in such a manner that the judiciary has the power to strike down any unconstitutional laws passed by the legislature. Today, most of the constitutional systems do not have a strict separation of powers between the various organs in the classical sense because it is impractical. In the following sections, we will see the prevailing system in India, what the relationship between each organ is, and the constitutional provisions thereof.  What is the Legislature? The chief function of the legislature is to enact laws.  It is the basis for the functioning of the other two organs, the executive and the judiciary.  It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.  What is the Executive? The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.  It is the administrative head of the government.  Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.  What is the Judiciary? The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens.  The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.  It comprises of the Supreme Court, the High Courts, District and other subordinate courts.  For more on Indian Judiciary, click on the linked article. 2. What is ‘Separation of Powers’? In the strictest sense, the doctrine of separation of powers is very rigid.  Background of the concept UNIT -3 Separation of Powers and Emergency Provisions 2   This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as General Assembly, Public Officials and Judiciary.  In the Ancient Roman Republic too, a similar concept was followed.  In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws).  His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government.  The idea was developed further by John Locke.  Purpose of the Separation The purpose of separation of powers is to prevent abuse of power by a single person or a group of individuals. It will guard the society against the arbitrary, irrational and tyrannical powers of the state, safeguard freedom for all and allocate each function to the suitable organs of the state for effective discharge of their respective duties.  Meaning of Separation of Powers Separation of powers divides the mechanism of governance into three branches i.e. Legislature, Executive and the Judiciary. Although different authors give different definitions, in general, we can frame three features of this doctrine. 1. Each organ should have different persons in capacity, i.e., a person with a function in one organ should not be a part of another organ. 2. One organ should not interfere in the functioning of the other organs. 3. One organ should not exercise a function of another organ (they should stick to their mandate only). Thus, these broad spheres are determined, but in a complex country like India there often arises conflict and transgression by one branch over the other.  Significance of the doctrine Why do we need a separation of powers between the various organs of the State? Whenever there is a concentration of power in one centre/authority, there is bound to be greater chances of maladministration, corruption, nepotism and abuse of power. This principle ensures that autocracy does not creep into a democratic system. It protects citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can be summed up as follows: 1. Keeps away autocracy 2. Safeguards individual liberty UNIT -3 Separation of Powers and Emergency Provisions 3  3. Helps create an efficient administration 4. Judiciary’s independence is maintained 5. Prevents the legislature from enacting arbitrary or unconstitutional laws  Constitutional Status of Separation of Power in India The doctrine of separation of powers is a part of the basic structure of the Constitution, although not specifically mentioned. The legislature cannot pass a law violating this principle. The functions of the three organs are specifically mentioned in the Constitution. Let us take a look at some of the articles of the Constitution which suggest separation of powers. Article 50: This article puts an obligation over the State to separate the judiciary from the executive. But, since this falls under the Directive Principles of State Policy, it is not enforceable. Article 123: The President, being the executive head of the country, is empowered to exercise legislative powers (Promulgate ordinances) in certain conditions. Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do so only in case of impeachment. Article 361: The President and Governors enjoy immunity from court proceedings. There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.  The judiciary has the power of judicial review over the actions of the executive and the legislature.  The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).  It can also declare unconstitutional executive actions as void.  The legislature also reviews the functioning of the executive.  Although the judiciary is independent, the judges are appointed by the executive.  The legislature can also alter the basis of the judgment while adhering to the constitutional limitation. Checks and balances ensure that no one organ becomes all-too powerful. The Constitution guarantees that the discretionary power bestowed on any one organ is within the democratic principle. UNIT -3 Separation of Powers and Emergency Provisions 4 3. The Central Government of India The Union Government of India is the official name for the country’s government. The Central Government is another name for it. In 1950, the Indian Constitution established it. The Republic of India, which consists of 29 states and seven union territories, is governed by the Central Government. The Indian Central Government is based in New Delhi, the country’s capital. Our constitution establishes a federal framework in which the federal government and state governments operate independently. However, certain unanimous decisions are made in order to fulfil particular emergency situations or exigencies, which are regulated or directed by the Central Government for the country’s national interest.  The basic structure of central government in India According to the Constitution, India’s central government is divided into three divisions. Each department of the government has its own set of powers. Each department is given certain functions and responsibilities in order for the country to run smoothly. 1. Executive: President, Vice President, and Cabinet Ministers 2. Legislative: Parliament, Lok Sabha, and Rajya Sabha 3. Judiciary: Supreme Court of India, High Courts of India at the state level, and District Courts and Sessions Courts at the district level  Roles and responsibilities of: 1. The Executive The President, the Vice President, Cabinet Ministers, and the Independent Executive Agencies make up the executive branch of the Central Government. The President of the United States is the country’s leader. The President is in charge of carrying out the department’s duties. It is in charge of carrying out and enforcing legislation. To put it another way, the executive branch does not make or interpret laws. However, it is responsible for enforcing the laws enacted by the legislature and interpreted by the courts. Certain types of laws in the country can come from the Central Government’s executive branch. This department of government has sole authority and responsibility for the state bureaucracy’s everyday administration and operation. UNIT -3 Separation of Powers and Emergency Provisions 5 2. The Legislature The legislative branch is also known as Parliament. The Indian Parliament, which is the most important part of the legislative branch, is made up of two houses: the Lok Sabha (House of People) and the Rajya Sabha (Council of States), with the President of India at its head. This branch creates laws and policies that affect the entire country. Parliamentary supremacy, but not complete sovereignty, is enjoyed by the legislative branch. It does, however, have some influence over the executive branch. Its responsibilities are as follows:  Drafting of all principal legislation for the Central Government  Ordinances to be announced by the President  Regulations to be made by the President for Union Territories  Framing of election laws  To decide on bills to be introduced in the Parliament  Measures to be taken for states under the President’s rule and  Deals with certain matters like personal law, contracts, evidence, etc. The legislature does not have absolute power. The reason for this is that its laws are open to judicial scrutiny by the Indian judiciary or the Supreme Court. 3. The Judicial system It is the Supreme Court. The Supreme Court of India is the country’s highest judicial authority. The judiciary is responsible for upholding and propagating the country’s law and order. Its responsibilities are as follows:  It interprets the laws and carries out judicial reviews, sentences verdicts in complying with laws as per the constitution, and ensures equality of everyone in front of the law.  It also solves conflicts between the Executive and Legislature and other public related matters or conflicts.  It solves disputes between the Government of India and one or more states.  It solves disputes between two or more states. UNIT -3 Separation of Powers and Emergency Provisions 6  EMERGENCY PROVISION Introduction Indian Constitution explicitly mentions Emergency provisions under Part XVIII from Article 352 till Article 360. These provisions allow the central government to meet any unforeseen and abnormal situation effectively. When the emergency is imposed all the powers go into the hands of the Centre. It converts the federal system of the Indian polity into a unitary one. Three types of emergency have been mentioned in the Constitution of India. These are: Article 352: Emergency due to war, external aggression or armed rebellion, termed popularly as National Emergency Article 356: Emergency due to the failure of the constitutional machinery in the states. This is popularly known as President’s rule. It is also known as ‘State emergency’ and ‘Constitutional emergency’. Do remember that Constitution does not use the term ’emergency’ for this situation. Article 360: Financial Emergency due to a threat to financial stability or credit of India 1. NATIONAL EMERGENCY Article 352 of the Constitution provides for the provision of National Emergency which can be applied if any extraordinary situation arises that may threaten the security, peace, stability and governance of the country. Whenever any of the following grounds occur, an emergency can be imposed: 1. War, 2. External aggression; or 3. Internal rebellion. Article 352 provides that if the President is ‘satisfied’ on the grounds that the security of India is threatened due to outside aggression or armed rebellion, he can issue a proclamation to that effect regarding the whole of India or a part thereof. However, sub-clause (3) states that when a piece of written advice is given by the Union Cabinet then only the President can make such a proclamation. Such a proclamation must be placed before each house of the parliament and must be approved within one month of the declaration of the proclamation otherwise it will expire. Furthermore, it is not necessary that for the proclamation of National emergency, external aggression or armed UNIT -3 Separation of Powers and Emergency Provisions 7 rebellion should actually happen. Even if there is a possibility that such a situation can arise, a national emergency can be proclaimed. In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial review of determining the validity of the proclamation of emergency issued by the President under Article 352(1). The court’s powers are limited only to examining whether the limitations conferred by the Constitution have been observed or not. It can check if the satisfaction of President is on valid grounds or not. If the President is satisfied that grounds for national emergency exist but the same is based on absurd, malafide or irrelevant grounds then it won’t be considered that the President is ‘satisfied’.  Procedure for revoking emergency If the situation improves then the President can revoke the emergency through another proclamation. The 44th Amendment of the Constitution provides that a requisition for the meeting can be made by ten per cent or more members of the Lok Sabha and in that meeting; it can disapprove or revoke the emergency by a simple majority. The emergency will immediately become inoperative in such a case.  Duration of Emergency If approved by both houses of Parliament then National Emergency can continue for 6 months and it can be renewed by approval of Parliament after every 6 months. But if the dissolution of Lok Sabha takes place in that 6 months and resolution for renewal of National Emergency is under consideration then emergency exists till 30 days from the first sitting of newly elected LS provided that it is approved by Rajya Sabha. Until 44th amendment 1978, if Parliament approves proclamation of National Emergency then it remains in operation on pleasure or desire of cabinet or executive. Any of the above resolution related to proclamation or renewal of National Emergency must be passed by both houses of Parliament by a special majority (i.e. the majority of the total membership of that house or not less than 2/3rd of members present and voting). This provision is added by 44th amendment 1978 and before that such resolution can be passed by simple majority i.e. more than total members present and voting. UNIT -3 Separation of Powers and Emergency Provisions 8 2. PRESIDENTS RULE Article 356 of the Constitution of India is based on Section 93 of the Government of India Act, 1935. According to Article 356, President’s Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery. This is of two types:  If the President receives a report from the state’s Governor or otherwise is convinced or satisfied that the state’s situation is such that the state government cannot carry on the governance according to the provisions of the Constitution.  Article 365: As per this Article, President’s Rule can be imposed if any state fails to comply with all directions given by the Union on matters it is empowered to. In simple words, President’s Rule is when the state government is suspended and the central government directly administers the state through the office of the governor (centrally appointed).It is also called ‘State Emergency’ or ‘Constitutional Emergency’. 3. PRESIDENT’S RULE Parliamentary approval is necessary for the imposition of the President’s Rule on any state. The proclamation of President’s Rule should be approved in both Houses of Parliament within two months of its issue. The approval is through a simple majority. The President’s Rule is initially for a period of six months. Later, it can be extended for a period of three years with parliamentary approval, every six months. The 44th Amendment to the Constitution (1978) brought in some constraints on the imposition of the President’s Rule beyond a period of one year. It says that President’s Rule cannot be extended beyond one year unless:  There is a national emergency in India.  The Election Commission of India certifies that it is necessary to continue the President’s Rule in the state because of difficulties in conducting assembly elections to the state.  What happens after President’s Rule is imposed?  The governor carries on with the administration of the state on behalf of the President. He or she takes the help of the state’s Chief Secretary and other advisors/administrators whom he or she can appoint.  The President has the power to declare that the state legislature’s powers would be exercised by the Parliament. UNIT -3 Separation of Powers and Emergency Provisions 9   The state legislative assembly would be either suspended or dissolved by the President.  When the Parliament is not in session, the President can promulgate ordinances with respect to the state’s administration.  When is President’s Rule imposed? It has been seen that the President’s Rule has been imposed when any one of the following circumstances have occurred: 1. The state legislature is not able to elect a leader as the Chief Minister for a time prescribed by the state’s governor. 2. Breakdown of a coalition in the state government, that leads to the CM having minority support in the legislature, and the CM is unable to prove his majority within the time prescribed by the governor. 3. A no-confidence vote in the legislative assembly leading to a loss of majority. 4. Postponement of elections owing to unavoidable reasons such as a natural disaster, epidemic or war. 5. Article 365 (explained above)  Revocation of President’s Rule President’s Rule can be revoked any time after such a proclamation has been made by a subsequent proclamation by the President. A proclamation of revocation does not require approval by the Parliament. This occurs when the leader of a political party produces letters indicating majority support for him in the assembly and stakes his claim to form the state government. Part XVIII (Article 352-360) of the Constitution of Indian talks about the Emergency Provisions. In particular, Article 360 talks about the Financial Emergency. It is one of the three types of emergency provisions embedded in the Indian Constitution.  What is Article 360?  Article 360 of the Indian Constitution empowers the President to invoke financial emergency.  Grounds of declaration – If the President is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened. UNIT -3 Separation of Powers and Emergency Provisions 10   38th Amendment Act of 1975 – The satisfaction of the president in declaring a Financial Emergency is final and conclusive and not questionable in any court on any ground.  44th Amendment Act of 1978 – deleted the provision added by the 38th Amendment Act of 1975, which implies that the satisfaction of the president is not beyond judicial review (that is, it can be challenged in court).  Parliamentary Approval and Duration  A proclamation declaring financial emergency must be approved by both the Houses of Parliament (i.e., Lok Sabha and Rajya Sabha) within two months from the date of its issue.  If such proclamation is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.  After approval of both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked.  Consequences of Financial Emergency The consequences of such a declaration are as follows: 1. The Union government shall give directions to any State to observe such canons of financial propriety as may be specified in the directions. 2. The directions may include:  The President may order the States to reduce the salaries and allowances of all or any class of employees serving in connection with the state of affairs.  Money bills or other financial bills are to be reserved for the consideration of the President after they are passed by the Legislature of the State.  Also, the President can 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. UNIT -3 Separation of Powers and Emergency Provisions 11  Difference between the national Emergency and president’s rule is given below: S.N. National Emergency (352) President’s Rule (356) 1. It can be proclaimed only when the It can be proclaimed when the security of India or a part of it is government of a state cannot be carried threatened by war, external on in accordance with the provisions of aggression or armed rebellion. the Constitution due to reasons which may not have any connection with war, external aggression or armed rebellion. 2. During its operation, the state During its operation, the state executive executive and legislature continue to is dismissed and the state legislature is function and exercise the powers either suspended or dissolved. The assigned to them under president administers the state through the Constitution. Its effect is that the the governor and the Parliament makes Centre gets concurrent powers of laws for the state. In brief, the executive administration and legislation in the and legislative powers of the state are state. assumed by the Centre. 3. The Parliament can make laws on the The Parliament can delegate the power to subjects enumerated in the State List make laws for the state to the President only by itself, i.e. it can’t delegate the or to any other authority specified by same to any other body or authority. him. So far, the practice has been for the president to make laws for the state in consultation with the members of Parliament from that state. 4. There is no maximum period There is a maximum period prescribed for prescribed for its operation. It can be its operation, that is, three years. continued indefinitely with the Thereafter, it must come to an end and approval of Parliament for every six the normal constitutional machinery must months. be restored in the state. 5. Under this, the relationship of the Under this, the relationship of only the Centre with all the states undergoes state under emergency with the Centre a modification. undergoes a modification. 6. It affects fundamental rights (FR) of It has no effect on Fundamental Rights the citizens. (FR) of the citizens. 7. Every resolution of Parliament Every resolution of Parliament approving approving its proclamation or its its proclamation or its continuance can be continuance must be passed by a passed only by a simple majority. special majority. 8. Lok Sabha can pass a resolution for There is no such provision. It can be its revocation. revoked by the President only on his own discretion. UNIT -3 Separation of Powers and Emergency Provisions 12 Provision National State Emergency Financial Emergency Emergency Article 352 356 360 Who President President President Declares (Only on written recommendation of cabinet) Grounds 1. War Government of state Financial Stability or 2. External cannot be carried out in credit of India or any Aggression accordance with part is threatened provisions of 3. Armed constitution Art 365 spl Rebellion mention Approvalwithin 1 month 2 months 2 months Approval Every 6 months Every six months Once only Frequency Approval by Special majority of Simple Majority of Simple majority of both houses both houses both houses 1. President Revocation President only President only 2. Parliament – Lok Sabha by simple majority UNIT -3 Separation of Powers and Emergency Provisions 13  1. Centre can give Effect on 2 months 2 months executive Centre State directions on any relations matter. 2. Parliament becomes empowered to legislate on state subject President can issue President dismisses State Executive Authority Effect on ordinances on state Council of Ministers centre extends to Centre State subject headed by CM financial provisions like Relations President can President takes over reduction of salaries of modify functions of state state officials. constitutional government and Reservation of all distribution of transfers to governor revenues Parliament can take over powers of state legislature in case of suspension. Effect on life Lok Sabha and N/A N/A Legislative assembly of Lok Sabha term can be extended and State one year at a time Assembly UNIT -3 Separation of Powers and Emergency Provisions 14