Indian Polity 247

Union Territories
Notes
Art. 239 Administration of Union territories.
Art. 239A Creation of local Legislatures or Council of Ministers or
both for certain Union territories.
Art. 239A Special provisions with respect to Delhi.
Art. 239AA Provision in case of failure of constitutional machinery.
Art. 239AB Power of administrator to promulgate Ordinances during
recess of Legislature.
Art. 240 Power of President to make regulations for certain Union
territories.
Art. 241 High Courts for Union territories.

Need for UTs ?

• UTs are directly under Centre. States enjoy autonomy and are
indirectly under Centre.
Art 239. Administration of Union territories
1. Save as otherwise provided by Parliament by law, every Union
Territory shall be administered by the President acting, to such an
extent as he thinks fit, through an administrator to be appointed by
him with such designation as he may specify.
• 239A. Creation of local Legislatures or Council of Ministers or
both for certain Union territories.— (1) Parliament may by law
create 4[for the Union territory of 5[Puducherry—]]
(a) a body, whether elected or partly nominated and partly elected,
to function as a Legislature for the Union territory, or
(b) a Council of Ministers,
or both with such constitution, powers and functions, in each
case, as may be specified in the law.

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Special provisions with respect to Delhi
• 239AA. Special provisions with respect to Delhi.— (1) As
from the date of commencement of the Constitution (Sixty-ninth
Amendment) Act, 1991, the Union territory of Delhi shall be called the
National Capital Territory of Delhi (hereafter in this Part referred to as
the National Capital Territory) and the administrator thereof appointed
under article 239 shall be designated as the Lieutenant Governor.
• (2) (a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled by
members chosen by direct election from territorial constituencies
in the National Capital Territory.
• (b) The total number of seats in the Legislative Assembly, and all
other matters relating to the functioning of the Legislative Assembly
shall be regulated by law made by Parliament
• (4) There shall be a Council of Ministers consisting of not more
than ten per cent. of the total number of members in the Legislative
Assembly, with the Chief Minister at the head to aid and advise
the Lieutenant Governor in the exercise of his functions in relation
to matters with respect to which the Legislative Assembly has

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 248 Indian Polity

power to make laws, except in so far as he is, by or under any law,

required to act in his discretion:
• Provided that in the case of difference of opinion between
Notes the Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision and
act according to the decision given thereon by the President.
• (5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the advice
of the Chief Minister and the Ministers shall hold office during the
pleasure of the President.
• (6) The Council of Ministers shall be collectively responsible to the
Legislative Assembly.
• 239AB. Provision in case of failure of constitutional
machinery.—If the President, on receipt of a report from the
Lieutenant Governor or otherwise, is satisfied—
• (a)that a situation has arisen in which the administration of the
National Capital Territory cannot be carried on in accordance with
the provisions of article 239AA or of any law made in pursuance
of that article; or
• (b)that for the proper administration of the National Capital Territory
it is necessary or expedient so to do,
• the President may by order suspend the operation of any provision
of article 239AA
• 2[239B. Power of administrator to promulgate Ordinances
during recess of Legislature.—(1) If at any time, except when
the Legislature of 3[the Union territory of 4[Puducherry]] is in
session, the administrator thereof 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:
• Provided that no such Ordinance shall be promulgated by the
administrator except after obtaining instructions from the President
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in that behalf:
• Provided further that whenever the said Legislature is dissolved, or
its functioning remains suspended on account of any action taken
under any such law as is referred to in clause (1) of article 239A,
the administrator shall not promulgate any Ordinance during the
period of such dissolution or suspension.
• Art. 240. Power of President to make regulations for certain
Union territories.—(1) The President may make regulations for
the peace, progress and good government of the Union territory
of—
(a) the Andaman and Nicobar Islands;
1[(b) Lakshadweep;]
2[(c) Dadra and Nagar Haveli;]
3[(d) Daman and Diu;]
4[(e) 5[Puducherry];]
6(f) ***
7(g) ***
Art. 241. High Courts for Union territories.–(1) Parliament may by law
constitute a High Court for a Union territory or declare any court in any
such territory to be a High Court for all or any of the purposes of the

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 Indian Polity 249

Constitution.
DADRA AND NAGAR HAVELI AND DAMAN AND DIU
MERGER BILL, 2019
The Union Territories (UTs) of Dadra and Nagar Haveli and Daman Notes
and Diu were merged into one UT by the Dadra and Nagar Haveli and
Daman and Diu Merger Bill, 2019. 
The area of Dadra & Nagar Haveli spread over 491.00 sq.kms.It's
a landlocked Union Territory between north Maharashtra and south
Gujarat. It got freedom from Portuguese Rulers on 2nd August 1954. 
Initially, the Administration of Dadra & Nagar Haveli was free from
Indian influence but later on, this Union Territory was merged into the
Union of India in the year 1961.
History of the Daman and Diu;
Daman and Diu was under the control of Portuguese Rulers for
more than four centuries. It got liberated from Portuguese control on
19th December 1961. Initially, it was part of the U.T. of Goa but when
the Goa attained statehood, the Union Territory of Daman and Diu
came into existence on 30th May 1987.
But now the Union Territory of Daman and Diu has been merged
with the Union Territory, Dadra and Nagar Haveli and the new UT will
be called Dadra and Nagar Haveli and Daman and Diu with effect from
26 January 2020.
So now onwards the UTs of Dadra and Nagar Haveli and Daman
and Diu are just single UT.
The merger of these two UTs takes place by the Dadra and Nagar
Haveli and Daman and Diu (Merger of Union Territories) Bill, 2019.

Amendment of the Constitution

The First Schedule of the Indian Constitution specifies the territories
that come under various states and UTs.  
The merger Bill, 2019 amends the First Schedule of the Constitution
to merge the two territories: (1) Daman and Diu (2) Dadra and Nagar

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Haveli. So now the single UT would be called the UT of Dadra and
Nagar Haveli and Daman and Diu.  
The Dadra and Nagar Haveli and Daman and Diu (Merger of Union
Territories) Bill, 2019 amended Article 240(1) of the Constitution to
merge these two UTs into one.

Representation of new UT in Lok Sabha: 

The Representation of the People Act, 1950 provides one Lok Sabha
seat in each UTs but after the merger, the merged UT will have 2 Lok
Sabha seats.
Jurisdiction of High Court: There is no change in this regard and
the jurisdiction of the Bombay High Court will continue to extend to the

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merged UT. 

Services Under the Constitution

Notes

Art. 308 Interpretation.

Art. 309 Recruitment and conditions of service of persons serving
the Union or a State.
Art. 311 Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State.
Art. 312 All India services
Art. 312A Power of Parliament to vary or revoke conditions of
services of officers of certain services.
Art. 315 Public Service Commissions for the Union and for the
States
Art. 316 Appointment and term of office of members.
Art. 317 Removal and suspension of a member of a Public Service
Commission
Art. 318 Power to make regulations as to conditions of service of
members and staff of the Commission.
Art. 319 Prohibition as to the holding of offices by members of
Commission on ceasing to be such members.
Art. 320 Functions of Public Service Commission.
Art. 321 Power to extend functions of Public Service Commissions
Art. 322 Expenses of Public Service Commissions
Art. 323 Reports of Public Service Commissions

• Ministers – Political Executive

• Civil Servants–Permanent Executives and back bone of entire
administration. They implement the policies of ministers.
• Civil servants also influence the formulation of policies. They can
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guide the ministers.

• Three types of services
 All India Services
 Central Services
 State Services
• Art. 310.Tenure of office of persons serving the Union or a State
• Except as expressly provided by the Constitution, every person
who is a member of a defence service or of a civil service of the
Union or of an all-India service or holds any post connected with
defence or any civil post under the Union, holds office during the
pleasure of the President, and every person who is a member of a
civil service of a State or holds any civil post under a State holds
office during the pleasure of the Governor of the State.
• But this pleasure tenure is different from that of the pleasure tenure
enjoyed by Governor, Attorney General etc.
• Art. 311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State.– No person
who is a member of a civil service of the Union or an all-India
service or a civil service of a State or holds a civil post under that
Union or a State shall be dismissed or removed by an authority

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 Indian Polity 251

subordinate to that by which he was appointed.

• No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable Notes
opportunity of being heard in respect of those charges.

Before 42nd Amendment Act:

• Right to be heard at two stages.
• Before the enquiry committee an opportunity should be given
• Another opportunity should be given, just before the disciplinary
action is taken.
• But now the second Right to be heard has taken away.

Exceptions Provided further that this clause shall not apply—]

• where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge; or
• where the authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably practicable
to hold such inquiry; or
• where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
expedient to hold such inquiry.

312. All-India services.

(1) Notwithstanding anything in 7[Chapter VI of Part VI or Part XI], if
the Council of States has declared by resolution supported by not less
than two-thirds of the members present and voting that it is necessary
or expedient in the national interest so to do, Parliament may by law
provide for the creation of one or more all India services 1[(including
an all-India judicial service)] common to the Union and the States,

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and, subject to the other provisions of this Chapter, regulate the
recruitment, and the conditions of service of persons appointed, to
any such service.
(2) The services known at the commencement of this Constitution as
the Indian Administrative Service and the Indian Police Service shall
be deemed to be services created by Parliament under this article.
2[(3) The all-India judicial service referred to in clause (1) shall not
include any post inferior to that of a district judge as defined in article
236.

PUBLIC SERVICE COMMISSION (Art-315)

• The constitution provides for the establishment of Public Service
Commission for the Union and for each state.
• Two or more states may agree to have common Public Service
Commission.
• The Union Public Service Commission, if requested by the
Government of state, may with the approval of President, agree
to act for the state.
Members of UPSC

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 252 Indian Polity

• Appointed by President
• One half of members must have served Government/Held offices
for at least 10 years.
Notes • 6 years or 65 years of age which ever is earlier.
• Should not hold any other office of profit.
• Salaries, allowances from charged expenditure
• A member of a Public Service Commission shall hold office for a
term of six years from the date on which he enters upon his office
or until he attains, in the case of the Union Commission, the age of
sixty-five years, and in the case of a State Commission or a Joint
Commission, the age of 2[sixty-two years], whichever is earlier:
• (a) a member of a Public Service Commission may, by writing
under his hand addressed, in the case of the Union Commission
or a Joint Commission, to the President, and in the case of a State
Commission, to the Governor 1*** of the State, resign his office;
• A person who holds office as a member of a Public Service
Commission shall, on the expiration of his term of office, be
ineligible for re-appointment to that office.

Removal of Members
• Can be removed on the grounds of misbehaviour.
• Can be removed by President, after an enquiry conducted by
Supreme Court.
• 317. Removal and suspension of a member of a Public Service
Commission
• President can remove without any reference to the Supreme
Court, if any such person.
a) is adjudged an insolvent
b) accepts any other paid employment during the term of office
c) is in the opinion of the President unfit to continue in office by
reason of infirmity of mind or body
319. Prohibition as to the holding of offices by members of
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Commission on ceasing to be such members.— On ceasing to

hold office—
(a) the Chairman of the Union Public Service Commission shall be
ineligible for further employment either under the Government of
India or under the Government of a State;
(b) the Chairman of a State Public Service Commission shall be
eligible for appointment as the Chairman or any other member of
the Union Public Service Commission or as the Chairman of any
other State Public Service Commission
(c) a member other than the Chairman of the Union Public Service
Commission shall be eligible for appointment as the Chairman
of the Union Public Service Commission or as the Chairman of a
State Public Service Commission,
(d) a member other than the Chairman of a State Public Service
Commission shall be eligible for appointment as the Chairman or
any other member of the Union Public Service Commission or as
the Chairman of that or any other State Public Service Commission
• but not for any other employment either under the Government of
India or under the Government of a State.

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Function of Public Service Commission

• It is the duty of Service Commission to conduct examinations for
appointments. Notes
• The Service Commission must be consulted:
a) on all matters relating to methods of recruitment to civil services
and for civil posts;
b) on the principles to be followed in making appointments to civil
services and posts and in making promotions and transfers from
one service to another and on the suitability of candidates for such
appointments, promotions or transfers;
c) on all disciplinary matters affecting a person serving under the
Government of India or the Government of a State in a civil capacity,
including memorials or petitions relating to such matters;
d) on any claim by or in respect of a person who is serving or has
served under the Government of India or the Government of a
State or under the Crown in India or under the Government of an
Indian State, in a civil capacity, that any costs incurred by him in
defending legal proceedings instituted against him in respect of
acts done or purporting to be done in the execution of his duty
should be paid out of the Consolidated Fund of India, or, as the
case may be, out of the Consolidated Fund of the State;
e) on any claim for the award of a pension in respect of injuries
sustained by a person while serving under the Government of India
or the Government of a State or under the Crown in India or under
the Government of an Indian State, in a civil capacity, and any
question as to the amount of any such award,

322. Expenses of Public Service Commissions.—The expenses of

the Union or a State Public Service Commission, including any salaries,
allowances and pensions payable to or in respect of the members or
staff of the Commission, shall be charged on the Consolidated Fund

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of India or, as the case may be, the Consolidated Fund of the State.
Exceptions
• The functions of Public Service Commission are only advisory.
The Constitution has no provision to make it obligatory upon the
Government to act upon the advice of the Commission in any case.
• Also, Commission need not be consulted as regards the
reservation of posts for Backward Classes, Scheduled Castes
and Scheduled Tribes.
Additional Functions
• Government, by an act, may assign additional functions on Service
Commissions.
• The Commission shall submit an annual report on the work done
by them to the President or Governor, as the case may be.
• The reports are to be laid before the Parliament/State legislature,
together with a memorandum, why recommendations of
Commission were not accepted, if at all.

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Emergency Provisions
Notes

Art. 352 Proclamation of Emergency.

Art. 353 Effect of proclamation of Emergency.
Art. 355 Duty of the Union to protect States against external
aggression and internal disturbance.
Art. 356 Provisions in case of failure of constitutional machinery in
States.
Art. 357 Exercise of legislative powers under Proclamation issued
under article 356.
Art. 358 Suspension of provisions of article 19 during emergencies.
Art. 359 Suspension of the enforcement of the rights conferred by
Part III during emergencies.
Art. 360 Provisions as to financial emergency.

NATIONAL EMERGENCY
Art 352
• When country is threatened by war, external aggression or internal
armed rebellion or a likelihood of it. For the whole of the country or
a part of it.
• National Emergency can be imposed by President on advice by
Council of Ministers cabinet in writing.
• Both the Houses should approve within 1 month
• National Emergency will be in force for 6 months from the day
Parliament approves.
• If Lok Sabha is dissolved, Rajya Sabha should approve.
• It should be approved by Lok Sabha within 30 days of first sitting.
• Should be approved by a majority as under Art 368
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• Parliament can extend for any number of times but each time for 6
months.
Consequences of National Emergency
1. Nation looses its federal character.
• President can direct state governments on all subjects.
• State Executive still functions but under the guidance of Centre.
2. Effects on Legislature
• Life of Lok Sabha can be extended not more than One year at
a time during National Emergency
• State List behaves like Concurrent List.
3. Effects on Financial Relations
• President can modify distribution of finance subject to the
approval of Parliament
• modification should not exceed the end of financial years, in
which National Emergency ended.
4. Effects on Fundamental Rights
• Art 358- Along with National Emergency declaration, Art 19
automatically suspended.
• Art 359- Though separate proclamation, President can suspend
rest of Fundamental Rights except Art 20 and 21.

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• Art 32- Partially suspended.

TERMINATION OF EMERGENCY
A Proclamation of Emergency may terminate in three ways:
i) Such a proclamation shall cease to operate at the expiration of 30 Notes
days after the proclamation is made unless a resolution approving
such a proclamation is passed by each House of Parliament in the
meantime.
ii) Further, such a proclamation shall cease to operate at the end
of six months from the date on which it was approved by the
Parliament, unless another resolution approving such proclamation
is again passed by each House in a similar manner before the last
proclamation expires.
iii) However, a Proclamation of Emergency can be terminated even
earlier if the President issues a proclamation of revocation any time
that the House of the People passes a resolution disapproving of
the issue or continuance of the proclamation, in simple majority.
Rajya Sabha have no role in disapproving national emergency.
For the purpose of convening a special sitting of the House of
the People for passing such a resolution of disapproval it has been
provided that not less than 1/10th of the members of the Lok Sabha
give a notice in writing to the Speaker or to the President (when the
House is not in session) to convene a special sitting of the House for
this purpose, within 14 days from the date of service of such notice.
The provisions of Article 352 were made more stringent by the
Constitution (44th Amendment) Act, 1978 which came into effect
from 20th June, 1979. This was prompted by the sad experience of
the Emergency declared on 25th June, 1975 on grounds of ‘internal
disturbance’.
During this period Congress Party led by late Indira Gandhi was in
power. Emergency on grounds of ‘internal disturbance’ was proclaimed
even as the earlier Proclamation of Emergency on grounds of war with
Pakistan in December 1971 was in operation. The proclamation of

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December 1971 was in operation even much after the war was over.
• Dissatisfaction was growing among the opposition parties who
were demanding the revocation of the Proclamation of Emergency
made in 1971 and had given a call to launch a movement with a
view to compelling the Prime Minister to resign from her post as
her election to the Lok Sabha was declared void by the Allahabad
High Court.
• The opposition parties led by Jay Prakash Narayan, Ram Manohar
Lohia and others had put up a siege around Mrs. Gandhi’s
residence.
• Disturbed by all this Mrs. Gandhi advised the President to proclaim
Emergency without consulting her cabinet colleagues. Her
Cabinet colleagues were found dumb-struck when they listened
her speech proclaiming a fresh Emergency on grounds of internal
disturbance on All India Radio.
• The cabinet was simply ‘informed’ about the Proclamation of
Emergency which was a fait accompli.
Proclamation of National Emergency till date
• There have been three proclamations of National Emergency in

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India – in October 1962 at the time of the Chinese aggression, in

December 1971 in the wake of the war with Pakistan and in June
1975 on grounds of internal disturbance.
Notes I. (October 26, 1962 – January 10, 1968): During the time of the
first Proclamation of Emergency under Article 352 proclaimed on
October 26, 1962, it was provided by a Presidential order, issued
under Article 359; that a person arrested or imprisoned under the
Defence of India Act would not be entitled to move any Court for
the enforcement of his Fundamental Rights under Article 14, 19 or
21. This proclamation was revoked on January 10, 1968.
II. (December 3, 1971 – March 1977): On the eve of Pakistan’s
undeclared war against India this Emergency was proclaimed.
Although there was a ceasefire soon followed by the Shimla
Agreement between India and Pakistan, the proclamation of 1971
was continued, owing to the persistence of hostile attitude of
Pakistan. It was thus in operation when the third proclamation of
June 25, 1975 was made.
III. (June 25, 1975 to March 1977): While the two preceding
proclamations under Article 352 were made on the ground of
“external aggression”, the third Proclamation of Emergency was
made on the ground of “internal disturbances”. Both the second
and third proclamations were revoked in March, 1977.
Emergency provisions vest tremendous power in the Executive.
In the Constituent Assembly certain members had expressed the
view that this power might be misused by the Executive. And, this is
what happened in 1975 when Emergency provisions were used to
perpetuate the rule of one party which was in power. The administration
had no respect for individual liberty. Lakhs of people were put behind
bars without making specific charges against them. The democratic
process had virtually come to a standstill. It led to massive unrest
in the society. Therefore, as promised to the electorate, the Janata
Government enacted the 44th Amendment and incorporated certain
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safeguards in the Constitution with a view to checking the abuse of

Emergency powers of Government in future.
Following are the safeguards incorporated in Article 352 by the
Constitution (44th Amendment) Act, 1978 which came into effect from
20th June 1979:
1. The expression “internal disturbances” being a vague one was
substituted by a concrete expression – “armed rebellion”.
2. Now the Proclamation of Emergency by the President can be
made only when the decision of the cabinet is communicated to
him in writing. Oral advice tendered by the Prime Minister will not
be sufficient for the issuance of such proclamation as happened
earlier.
3. Prior to the 44th Amendment a Proclamation of Emergency
could remain in force in the first instance for “two” months. But
once approved by Parliament Emergency could remain in force
indefinitely, i.e. as long as the Executive wanted it to continue.
After the 44th Amendment, a Proclamation of Emergency may
remain in force in the first instance for “one” month. Such a proclamation
if approved by Parliament, shall remain in force for the period of “six
months” at a time unless revoked earlier. However, it may continue

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 Indian Polity 257

indefinitely if such resolutions are passed every six months.

4. Earlier approval of such proclamation by Parliament was to be on
the basis of a simple majority, but at present it needs a special
majority. Notes
5. There was no Parliamentary control once a Proclamation of
Emergency was approved by it. But now a special sitting of the Lok
Sabha can be held for the purpose of considering its disapproval.
6. Earlier, under Article 358 the Fundamental Rights enumerated in
Article 19 were automatically suspended whether the Proclamation
of Emergency was based on the basis of war, external aggression
or internal disturbances. But now, after 44th Amendment Act Article
19 is automatically suspended only when an Emergency is declared
on the basis of war or external aggression and not on the basis
of armed rebellion, i.e. Article 19 cannot be suspended during an
Emergency if it is proclaimed on the basis of armed rebellion.
7. After the 44th Amendment Act, during an Emergency, Article 20
and 21 cannot be suspended. Prior to the Act, any or all of the
Fundamental Rights could be suspended when an Emergency was
in force.

EFFECTS OF PROCLAMATION OF EMERGENCY

During an Emergency the federal government acquires the character
of a unitary system. The Executive and the Legislature of the Union
shall have extraordinary powers during an Emergency.
The effects of a Proclamation of Emergency may be discussed
under four heads:
i) Executive; ii) Legislative; iii) Financial; and iv) with regard to the
status of Fundamental Rights.
1. Executive: During the operation of an Emergency the President
is empowered to issue directions to the States as to the manner in
which their executive power is to be exercised. Unlike in normal
times when the President has the power (under Article 256–257) to

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give directions to States only on certain matters, during Emergency
he can issue directions to States on all matters. The administration
of the country, therefore, will function as under a unitary system
with local subdivisions.
2. Legislative: With the Proclamation of Emergency, the legislative
power of the Union Parliament automatically widens and it can
enact laws even on subjects enumerated in State List. During
Emergency although legislatures of the States are not suspended,
the distribution of legislative powers between the two sets of
government is suspended.
During the operation of Emergency the Parliament may, by law,
extend the normal life of the house of the people for a period not
exceeding one year at a time, but in any case not exceeding six
months after the Proclamation of Emergency has ceased to be in
operation. The life of the State Legislative Assemblies can also be
extended, by law, by the Parliament in a like manner.
3. Financial: During the operation of a National Emergency the
President shall have the Constitutional power to modify the
provisions of the Constitution relating to the allocation of financial

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 258 Indian Polity

relations between the Union and States, by his own order. However,
no such order shall have effect beyond the financial year in which
the proclamation on Emergency ceases to be operative.
Notes Such order of the President is subject to the approval of the
Parliament.
4. On Fundamental Rights: Articles 358 – 359 lay down the effects
of a Proclamation of Emergency upon Fundamental Rights. Article
358 frees the State from the limitations imposed by Article 19
during the Proclamation of Emergency operative on grounds of war
or external aggression (but not armed rebellion). It is to say that the
rights conferred by Article 19 automatically gets suspended when
the Emergency is proclaimed on such grounds.
Further, Article 359 empowers the President to suspend, by an
order, all or any of the Fundamental Rights enumerated in Part III
of the Constitution except Article 20 and 21.

PROCLAMATION OF PRESIDENT’S RULE IN A STATE

Art 356
• If President feels that a state government cannot function in
accordance to the provisions of the Constitution
• Both the Houses of Parliament should approve within two months
with simple majority.
• Approval for not more than 6 months from the date of proclamation.
• Again for another 6 months, Art 356 can be extended.
• Beyond 1 year on two counts
1. If National Emergency is in force.
2. If Chief Election Commissioner declares that elections cannot
be held in prevailing circumstances. Another 2 years, Art 356
can be extended like this, but 6 months at a time.
• Beyond 3 years, Constitution amendment is required
42nd AA:Art 356 can be imposed for 1 year at a time after Parliament’s
approval
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44th AA: Restored to 6 months.

This new 1+ 2 year system introduced
Effects
• Administrative–President takes over. Council of Ministers
dismissed.
• Legislative: Assembly dissolved or kept in suspended animation.
• Parliament assumes exclusive legislative jurisdiction.

ARTICLE 352 VS ARTICLE 356

1. Distribution of Power between Centre and States–Fundamental
changes in Art 352 but in Art 356, only the state in which Art 356 is
imposed.
2. Art 352- State Legislature continues, Art 356-Legislative Assembly
suspended/dissolved
3. Art 352- Financial distribution modified Art 356 no modification
4. Art 352- Fundamental Rights are suspended. Art 356 no such
change.
5. Art 352- President and Council of Ministers stay, Art 356 Council of
Ministers are dismissed and Governor continues to stay and rule.

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 Indian Polity 259

ARTICLE 356
The Constitution of India provides for carrying on the administration
of a State by the Union Government in case of a failure of the Notes
constitutional machinery of the State. The administration of the State in
such situations can be taken over by the Centre through a Presidential
proclamation made under Article 356. The Constitution empowers the
President to make a proclamation under Article 356 on two grounds:
a) Article 355 States – “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 of
in accordance with the provisions of the Constitution”. So the
President is empowered to make a proclamation under 356, when
he is satisfied that the Government of a State cannot be carried
on in accordance with the provisions of the Constitution, either
on the report of the Governor of the State or otherwise. Here the
expression “otherwise” means that the President can act even on
the basis of press-reports or information obtained from any reliable
source.
b) In pursuance of its duty (as Stated in Article 355) to ensure that
the government of every state is carried on in accordance with
the provisions of the Constitution the centre can, time to time,
issue “directions” under Article 256 to States. Then, Article 365
empowers the President to make a proclamation under Article 356
(President Rule) where any State has failed to comply with, or to
give effect to, any directions given by the Union, in the exercise of
its executive power to the State.
The duration of such proclamation shall ordinarily be for two
months. If, however, such proclamation is laid down before each
House of the Parliament and is approved by the Parliament it will
be in operation for six months from the date of the issue of the
proclamation. It can be approved by the Parliament for a further

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period of six months.
If, however, the proclamation was issued at a time when the
Lok Sabha was dissolved or dissolution took place before it was
approved by the Parliament, the proclamation would cease to
operate on the expiry of 30 days from the date on which the Lok
Sabha first met after its reconstitution, unless the proclamation is
approved by the Parliament.
Further, such a proclamation may remain in force for a maximum
period of three years if the proclamation is regularly approved
by the Parliament every six months. However, if the duration is
sought to be extended beyond one year, two other conditions, as
inserted by the 44th Amendment Act, 1978 have to be
i) Such proclamation can be extended beyond a period of one
year if a Proclamation of Emergency is in operation, in the whole
of India or as the case may be in the whole or any part of the
State in which President Rule is sought to be imposed.
ii) If the Election Commission certifies that the continuance of the
proclamation is necessary on account of difficulties in holding
general elections to the Legislative Assembly of the State

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concerned.
Another noteworthy point is that by the 42nd Amendment, 1976,
the President’s satisfaction for the making of a proclamation under
Notes Article 356 had been made immune from judicial review; but the 44th
Amendment, 1978 has removed that constraint, so that the Courts may
now interfere if the proclamation is mala fide or the reasons disclosed
for making such proclamation are not bona fide.
So far Article 356 has been used recklessly by the Government
of the day at the Centre. Many a time it has been used to punish
the State government in case the government of the day in the State
belongs to a different political party or a coalition of parties from that
of the Centre. This has been a tremendous cause of conflict in the
Centre-State relations. Therefore Sarkaria Commission, constituted
in 1983 to give Report on strengthening the Centre-State relations,
recommended that the provision of Article 356 should be used ‘as a
last resort’ and, therefore, should be ‘sparingly used’ – when all other
alternatives have been exhausted by the Centre.
IN A LANDMARK JUDGMENT, IN MARCH 1994, DEALING
WITH ARTICLE 356 THE SUPREME COURT LAID DOWN THE
FOLLOWING PROPOSITIONS:
• Presidential proclamation dissolving a State Legislative Assembly
is subject to judicial review. It is of the view that the power of
dissolving a Legislative Assembly can be exercised by the President
only after the proclamation is approved by the Parliament. Till the
time the proclamation is approved by the Parliament the Legislative
Assembly should be kept in suspended animation.
• Burden lies on the Union Government to prove that relevant
and substantial material existed (to justify the issue of such
proclamation).
• Court would not go into the correctness of the material.
• If the Court strikes down the proclamation saying that it was a
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mala fide act it has the power to restore the dismissed State
Government to office.
• A State Government pursuing anti-secular policies is liable to
action under Article 356.

EFFECTS OF A PROCLAMATION UNDER

ARTICLE 356
By issuing a proclamation, the President may:
• Assume to himself all or any of the Executive functions of the State
or of any other authority except powers vested in a High Court.
• Declare that the Legislative powers of the State shall be exercisable
by or under the authority of Parliament. In a nutshell, by such
proclamation, the Union would assume control over all functions in
the State administration except judicial.
When the State legislature is thus suspended or dissolved as a result
of the proclamation the Constitution empowers:
• the Parliament to delegate the legislative power of the State to the
President or any other authority specified by him;
• the President to authorise, when the Lok Sabha is not in session,
expenditure from the Consolidated Fund of the State pending the

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sanction of such expenditure from Parliament.

• the President to promulgate ordinances for the State administration
when Parliament is not in session.
• Practically it is the Governor of the concerned State who exercises, Notes
on behalf of the President, all the executive powers of the State
taken over by the President on account of a Proclamation made
under Article 356. Governor, therefore, acts as the agent of the
Centre. Therefore, administration during such proclamation is
better known as President’s Rule.

RELATION BETWEEN ART. 355, 356 AND ART. 365

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.
(1) 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—
a) assume to himself all or any of the functions of the Government of
the State and all or any of the powers vested in or exercisable by the
Governor.

Article 365
Effect of failure to comply with, or to give effect to, directions given
by the Union. Where any State has failed to comply with, or to give

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effect to, any directions given in the exercise of the executive power
of the Union under any of the provisions of this Constitution, it shall be
lawful for the President to hold that a situation has arisen in which the
government of the State cannot be carried on in accordance with the
provisions of this Constitution.

FINANCIAL EMERGENCY UNDER ART. 360

• Art. 360 states that if the President is satisfied that a situation
has arisen whereby the financial stability or credit of India or of
any part thereof is threatened, he may declare a state of financial
emergency.
(3) During the period any such Proclamation 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.
(a) 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

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 262 Indian Polity

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
Notes of the President after they are passed by the Legislature of the
State;
(b) 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.
• A proclamation issued under Art. 360 will remain in force for two
months, unless before the expiry of the period it is approved by
both the Houses of the 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
• Once approved it remains in force till revoked by the President.
• No emergency under Art. 360 has been issued so far.
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Amendment of Indian Constitution

Notes

Meaning of Amendment:
• According to the Oxford Advanced Learner’s Dictionary amendment
means minor alteration or addition to a document etc. It means,
therefore, that amendment does not entail substantial changes in
the existing provisions.
• But, amendment as mentioned in Article 368 of the Indian
Constitution does involve substantial changes, though not
transformation of the existing structure.
• As per this Article amendment involves ‘addition, variation or
repeal’ of any provision of the Constitution.
• The Parliament, by 42nd Constitution (Amendment) Act, has
amended the provisions of the Constitution to such an extent that
it has now come to be known as a ‘mini Constitution’.
• Procedures for Amendment: Constitution of India vests
constituent power upon the ordinary legislature of the Union,
i.e. Parliament, and there is no separate body for amending the
Constitution, as exists in some other Constitutions of the world.
• Certain provisions of the Constitution can be altered by the Union
Parliament in the ordinary process of Legislation, i.e. by a simple
majority. Those provisions are as follows:
• Admission or creation of new States and alteration of areas,
boundaries, or names of existing ones (Article 2,3 and 4),
• Creation or abolition of Legislative Councils in a State (Article 169),
• Administration and control of Scheduled areas and Scheduled
Tribes (para 7 of the 5th Schedule), and
• Administration of tribal areas in the States of Assam, Meghalaya
and Mizoram (para 21 of the 6th Schedule).

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• However, alteration of these provisions of the Constitution does
not deem to be ‘amendment of the Constitution’.
• Other provisions of the Constitution can be changed only by the
process of ‘amendment’ which is prescribed in Article 368 of the
Constitution.
• But again, a differentiation has been made in the procedure for
amendment, according to the nature of provisions sought to be
amended:
• while in all cases of amendment a Bill has to be passed by both
Houses of the Parliament by a ‘special majority’, in the case of certain
provisions which affect the federal structure of the political system a
further step is required, i.e. a ratification by the Legislature of at least
half of the States, before the Bill is sent for President’s assent.
• Thus there are two ways by which amendment can be effected in
the Constitution. Those are as follows:
o A Constitution (Amendment) Bill can be introduced by a
minister or private member in either House of the Parliament.
After it is passed in each House by a ‘special majority’, it is
presented to the President for his assent. Upon such assent
being given to the Bill, the Constitution shall stand amended

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in accordance with the terms of the Bill.

• A special majority means a majority not less than 2/3rd of the
members present and voting and it should not be less than the
Notes absolute majority of the House, i.e. not less than 50% of the total
membership of the House.
o A Constitution (Amendment) Bill seeking change in the
provisions which affect the federal structure requires, apart
from being passed in each House separately by a special
majority, a ratification by the legislatures of at least half of the
States, before the Bill is presented to the President for his
assent. Such provisions relating to the federal structure are
as follows:
• The manner of election of the President;
• Extent of the executive power of the Union and the States;
• The Supreme Court and the High Courts;
• Distribution of the Legislative power between the Union and
the States;
• Any of the lists in the 7th Schedule;
• Representation of the States in Parliament [Article 80 – 81,
4th Schedule];
• Provisions of Article 368 itself.

Distinctive Features of the Amending Procedure

• Following are the distinctive features of the amending procedure
as prescribed in Article 368 of the Indian Constitution:
• In India there is no separate body for amending the Constitution.
The Constitution of India vests the constituent power upon the
ordinary legislature of the Union, i.e. the Union Parliament.
• The State Legislature cannot initiate any proposal for amendment
of the Constitution.
• An amendment Bill or proposal can originate only in either House
of the Union Parliament.
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• Provision for Joint Session of the two Houses is not available in

the case of Constitution (Amendment) Bills. Such Bills have to be
passed separately in each House of the Parliament.
• The prior recommendation of the President is not required for
introducing in Parliament any Constitution (Amendment) Bill.
• After the Constitution (24th Amendment) Act, 1971, it has been
made obligatory for the President to give his assent to a Bill for
amendment of the Constitution, when it is presented to him after
its passage through the legislature.

IMPORTANT AMENDMENTS
• The first Constitutional Amendment was carried out in 1951 to
overcome difficulties created by Supreme Court due to its decisions
regarding fundamental rights, specially the right to equality before
law, right to freedom of speech and right to private property. It also
added a new Schedule to the Constitution (the IX Schedule) and
included certain Acts in the list, which could not be challenged by
the courts, i.e. IX Schedule is beyond judicial review.
• The Seventh Amendment was carried out in 1956 to implement
the States Reorganisation Plan. It abolished the existing

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classification of states into three categories –Part A, Part B and

Part C. It redesignated the Part C states as Union Territories and
made special provision for Andhra, Punjab, and Bombay state, etc.
It also reallocated seats in the Rajya Sabha and in the Union and Notes
State legislatures. The other changes effected by this amendment
related to appointment of additional and acting judges, High Court
and their jurisdiction, etc.
• The Fourteenth Amendment was carried out in 1962 and
incorporated the territory of Pondicherry in First Schedule as a
union territory. It also provided for the creation of legislatures and
Councils of Ministers in some of the union territories.
• The Twenty-fourth Amendment was carried out in 1971 to
overcome the restrictions imposed by the Supreme Court on
Parliament regarding amendment of Fundamental Rights (as a
result of Golak Natha case). It authorised Parliament to amend
by way of addition, variation or appeal, any provision of the
Constitution notwithstanding anything in the Constitution.
• The Twenty-fifth Amendment was carried out in 1972. It further
restricted the right to private property and provided that a law
passed by the state to give effect to Directive Principles, under
Article 39 (b) or (c) could not be declared void on the ground that
it was inconsistent with rights conferred by Articles 14, 19 and 31.
• The Thirty-fifth Amendment (1975) accorded status of associated
state to Sikkim and ended its status of a protectorate kingdom.
• The Thirty-sixth Amendment carried out in 1975 integrated
Sikkim with India and it became a full-fledged state.
• The Forty-second Amendment was carried out in 1976. It was
the most comprehensive amendment carried out so far and made
fundamental changes in the constitutional structure. It incorporated
the words ‘Socialist’, ‘Secular’ and ‘integrity’ in the Preamble;
asserted the primacy of Directive Principles over Fundamental
Rights; incorporated fundamental duties of the citizens in

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the Constitution; asserted Parliament’s supremacy regarding
amendment of the Constitution; it authorised the Supreme Court to
transfer certain cases from one High Court to another High Court
and redefined the writ-jurisdiction of the High Court; it provided
administrative tribunals for speedy justice, empowered the central
government to send armed or police force to the states to deal with
grave law and order situations; authorised the President to made
proclamation of emergency either in respect of any part of the
country or to the whole of India; made it obligatory for the President
to act on the advice of the Council of Ministers.
• The Forty-fourth Amendment (1978) sought to remove some
of the irritants of the 42nd Amendment. It made changes in the
emergency provisions to ensure that these powers were not
misused by the executive in future. It restored to the courts the
power to decide whether an office was an ‘office of profit’ or not
(a power of which they were deprived by the 42nd Amendment); it
provided constitutional protection to publication of proceedings of
parliament and state legislatures; authorised the President to refer
back a matter to the Council of ministers for reconsideration, but
made it binding on him to act on the advice tendered after such

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 266 Indian Polity

reconsideration; it removed the right to property from the list of

fundamental rights and made it an ordinary right; it restored to the
courts the power to decide disputes regarding election of Prime
Notes Minister and speaker, etc.
• The Fifty-second Amendment was carried out in 1985 to curb
political defections. It specified the disqualifications in the Tenth
Schedule which could lead to loss of membership by members of
Parliament or state legislature.
• The Sixty-first Amendment, carried out in 1989, reduced the
voting age from 21 years to 18 years for the Lok Sabha as well as
for Assembly elections.
• The Sixty-fifth Amendment (1990) accorded statutory status
to the Commission for Scheduled Castes and Scheduled Tribes
and designated it as the National Commission for the Scheduled
Castes and Scheduled Tribes.
• The Sixty-ninth Amendment(1991) inserted in the Constitution
Articles 239-AA and 239-AB comprising special provisions with
respect to Delhi, to be called National Capital Territory of Delhi,
providing for a Legislative Assembly and Council of Ministers.
• The Seventy-third Amendment Act (1992), which got Presidential
assent on April 25, 1993 after ratification of the required number
of states, provided constitutional guarantee for formation of
Panchayats, inserted Part IX and the Eleventh Schedule in the
Constitution.
• Seventy-fourth Amendment Act (1992) which got the President’s
assent of June 6, 1993 after ratification of the required number of
states inserts Part IX A containing Articles 243P to 243ZG, and the
Twelth Schedule. It provided for three types of Municipalities with
devolution of powers and responsibilities by the state legislatures
regarding levy of taxes and duties to be performed by them.
• Seventy-fifth (1994) Art 323: Provisions for the establishment
of special Administrative Tribunals for the speedy disposal of
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disputes between House holders and tenants.

• Seventy-sixth (1994) Schedule IX: The laws relating in reservation
enacted by Tamil Nadu Assembly included in the Ninth schedule.
• Seventy-seventh (1995) Art 16(4A): Provisions made for the
reservation of SC/ST in the promotions in public services.
• Seventy-eighth (1995) Schedule IX: Some land reform acts of
different State included in the Ninth Schedule.
• Seventy-ninth (1999) Article 334: The reservation of seats for
the Scheduled Castes and the Scheduled Tribes as well as for the
Anglo Indians in the House of the People and in the Legislature
Assemblies of the State extended for another ten years.
• Eightieth (2000) Article 268, 269, 270, 272: Based on the
recommendations of the Tenth Finance Commission, alternative
scheme for sharing taxes between the Union and the States.
• Eighty-first (2000) Article 16:The Unfilled vacancies of a year
which are reserved for the Scheduled Castes and the Scheduled
Tribes for being filled up in that year in accordance with any
provision for reservation made under Article 16 of the constitution
shall be considered a special class of vacancies to be filled up in
any succeeding year or years.

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• Eighty-second (2000) Article 335: The amendment provides

that nothing in Article 335 shall prevent the State from making
any provision in favour of the members of the Scheduled Castes
and Scheduled Tribes for relaxation in qualifying marks in any Notes
examination or lowering the standard of evaluation for reservation
in matters of promotion to any class or classes of services or posts
in connection with affairs of the Union or of a State.
• Eighty-third (2000) Article 243M: It provides that no reservation
in Panchayats need be made in favour of the Scheduled Castes in
Arunachal Pradesh wholly inhabited by tribal population.
• Eighty-fourth (2000) Article 1, 2 and First and Fourth Schedule:
Creation of the new States of Chhatishgarh, Uttaranchal and
Jharkhand.
• Eighty-fifth (2002) Article 16(4A):Restoration of reservation in
promotions in services to the members of the Scheduled Castes
and Scheduled Tribes.
• Eighty-sixth (2002) Article 21(A), 45 & 51A: Right to Education
has been made the fundamental right and a fundamental duty has
been fixed to the parent and guardian to province opportunities for
education to his child on ward between the age of 6 and 14.
• Eighty-seventh (2003) Article 81, 82, 170, 332:Provisions were
made so that each state shall be divided into territorial Constitutions
in such a manner that the ratio between the population as per
2001 Census, of each constitutions and number of seats allotted
to it is, so far as practiciable, the same throughout the state.
• Eighty-eighth (2003) Article 268A, 270, Seventh Schedule:
Taxes on services was encluded in the Union List.
• Eighty-ninth (2003) Article 338: Provisions for creation
foseperate commission for Schedule castes.
• Ninty (2003) Article 332: Provisions under which the Scheduled
Tribes and non-Scheduled Tribes in the Bodoland Territorial
Areas District, so notified, and existing prior to the Constitution of

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the Bodoland Territorial Areas District shall be maintained.
• Ninty-first (2003) Article 75, 164, 361B, Tenth Schedule:
Provisions were made regarding the strength of Council of
Ministers in Union as well state to 15% of the total member of Lok
Sabha or concerned Vidhan Sabha respectively.
• Ninty-second (2003) Eighth Schedule: Bodo, Dogri, Maithili
and Santhali were added in the Eigth Schedule of Constitution.
• Ninty-third (2005): The Private Professional Educational
Institutions (Regulation of Admission and Fixation of Fee) Act.

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Anti-Defection Law
Notes

Art. 102 Disqualification s for membership

Art. 192 Decision on questions as to disqualifications of members
Tenth Schedule- Provisions as to disqualification on ground of defection

The politics of defection has been one of the conspicuous features of

Indian politics since 1967 (4th General Elections). The Parliament in
1985, by the 52nd Constitutional Amendment, sought to check this
tendency. The Act is negatively worded and provides for disqualification
of a legislator. According to the Act, following are the grounds for the
disqualification of a legislator:
 If a legislator voluntarily resigns from the political party on whose

ticket he/she was elected.

 If a legislator votes against the whip issued by the political party

to which he/she belongs, or abstains from voting contrary to any

direction issued by his/her parent party, without obtaining prior
permission of the political party, and if such voting or abstention is
not condoned by the party within 15 days of the occurrence of the
voting. The Supreme Court in a judgement in 1992 restricted the
scope of whip only in the cases of Confidence and No-Confidence
Motions, Money Bills and Vote of Thanks to the President’s Address.
This means that a legislator has the right to vote against the whip in
other cases because according to the Supreme Court, a Legislator
has a right to political dissent.
 If an independent member joins any political party.

 If a nominated member of the legislature joins a political party after

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6 months of his nomination. This means, if he/she does the same

before this specified period, he shall not be disqualified.
 If, in case of a split in the party, the splinter group has members less

than one-third of that of the parent party.

 If, in case of merger, the same is not endorsed by two-third members

of the party, which wants to merge itself.

However, the officers of the Union and State Legislatures—Speaker or
Deputy Speaker of the Lok Sabha, Deputy Chairman of the Rajya Sabha,
Speaker and Deputy Speaker of the Vidhan Sabha and Chairman of the
Vidhan Parishad—shall not be disqualified under the Act, if they rejoin
their political party (parties) after they cease to hold such offices.
Also according to the Act, any decision regarding the defection
issue shall be made by the Chairman or the Speaker as the case may
be, and such decision shall be final. The court shall have no right to
inquiry into this. However, the Supreme Court in a decision by the
Constitutional Bench in November, 1991, upheld that such a clause
takes away its exclusive right of ‘judicial review’ which is a ‘basic
structure’ of the Constitution. Thus, the decision of the Chairman or
Speaker as the case may be, is final, subject to judicial review of the

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court.
Causes of failure
 The law does not clearly say in what manner the principle of 1/3rd

for split or of 2/3rd in case of merger shall operate. The loops and Notes
holes remain in the Act and hence what cannot be done by a large
group can be done after the split.
 The law does not define whether the defection is a one time affair

or a continuous one.
The law does not cover an event when a political party deliberately
dismisses some of its members of the Legislature to deny them the
split of political party under this Act. The Speaker has the sole right to
decide on this and hence political colouring of the issue is possible.

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