CONSTITUTION MODULE 1

1. SEPRATION OF POWERS:

Introduction:

The separation of powers is imitable for the administration of federative and democratic states.
Under this rule the state is divided into three different branches- legislative, executive and judiciary
each having different independent power and responsibility on them so that one branch may not
interfere with the working of the other two branches. Basically, it is the rule which every state
government should follow in order to enact, implement the law, apply to specific case
appropriately. If this principle is not followed then there will be more chances of misuse of power
and corruption. If this doctrine is followed then there will be less chance of enacting a tyrannical
law as they will know that it will be checked by another branch. It aims at the strict demarcation of
power and tries to bring the exclusiveness in the functioning of each organ.

What is the origin and evolution of the doctrine of separation of powers?

 The first modern formulation of the doctrine of separation of power was given by the French
political philosopher Montesquieu in The Spirit of Laws,1748 . Inspired by the English
constitution, Montesquieu argued that liberty is most effectively safeguarded by the separation of
powers.

 Later, The United States Constitution gave the doctrine of separation of powers in substance for
the very first time where its provisions

o Article I granted powers to the legislature.

o Article II gave executive power to the President.

o Article III created an independent judiciary.

 In this spirit, the Constituent Assembly, while drafting the Indian Constitution, debated on
inserting the provision ‘There shall be complete separation of powers as between the principal
organs of the State-the Legislative, the Executive, and the Judiciary’ as one of the Directive
Principles of the State Policies.

 Finally, Article 50 was inserted, which gave for the State to take steps to separate the Judiciary
from the Executive in the public services of the State.

In India, functions are separated from powers rather than the other way around. The idea of the
separation of powers is not properly followed in India, unlike in the US. The court has the authority
to overturn any unlawful legislation that the legislature passes thanks to a system of checks and
balances that has been put in place.

Because it is unworkable, the majority of constitutional systems today do not have a tight division
of powers among the several organs in the traditional sense. Although the theory of separation of
powers is not expressly recognised in the Constitution in its absolute form, the Constitution does
provide provisions for a fair division of duties and authority among the three branches of
government.

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions systematically and appropriately.
So, for the proper functioning of the powers, the powers are distributed among the legislature,
executive and judiciary. Now let’s go into the further details of the functioning of each organ.

Legislative

The main function of the legislature is to enact a law. Enacting a law expresses the will of the State
and it also acts as the wain to the autonomy of the State. It is the basis for the functioning of
executive and judiciary. It is spotted as the first place among the three organs because until and
unless the law is framed the functioning of implementing and applying the law can be exercised.
The judiciary act as the advisory body which means that it can give the suggestions to the
legislature about the framing of new laws and amendment of certain legislation but cannot
function it.

Executive

It is the organs which are responsible for implementing, carrying out or enforcing the will of the
state as explicit by the constituent assembly and the legislature. The executive is the administrative
head of the government. It is called as the mainspring of the government because if the executive
crack-up, the government exhaust as it gets imbalanced. In the limited sense, executive includes
head of the minister, advisors, departmental head and his ministers.

Judiciary

It refers to those public officers whose responsibility is to apply the law framed by the legislature
to individual cases by taking into consideration the principle of natural justice, fairness.
What are the provisions pertaining to the separation of powers between the three organs of
state in India?
The Constitution of India has various implicit provisions for the separation of powers among the
legislature, the executive, and the judiciary. However, in most cases, the separation is not water-
tight, and there are instances of overlap in functions to ensure checks and balances.

Legislature and Executive

Separation of powers Functional overlap

Constitution has separate provisions for

 Article 75: India has a Parliamentary form of

establishing: government, and every Minister should be a

 Article 79: The Parliament as the legislative member of the Parliament.

body.  Article 53 and Article 79:The President is

 Article 74: Article The council of vested with the executive power of the union,
ministers with the Prime Minister as head of and also, he/she is an integral part of
the Real Executive. Parliament.

Also, there are distinct provisions for their  Article 123: The President may
functioning: promulgate ordinances when the Parliament

 Parliament (Article 107-117) is not in session. Thus, even the executive can

 Council of Ministers (Article 74 read with legislate in the form of an ordinance in India.

Article 53)  In India, delegated legislation is allowed,

where the Parliament can delegate its
legislative powers to the Central or the State
Governments for the purpose of making
rules.

Judiciary and Executive

Separation of powers Functional overlap

Article 50: State shall take steps to separate the Article 72: In India, the President's clemency
judiciary from the executive in the public services powers overlap with the judicial functions.
of the state. Article 323a and Article
Accordingly, the Parliament enacted the Criminal 323b: Tribunals established dispense justice in
Procedure Code 1973, which separated the India. Tribunals consist of both judicial as well as
judiciary and the executive. executive members.
Article 361: The President and The District Magistrate, while acting as
the Governor enjoy immunity from court a Returning officer, acts in a quasi-judicial
proceedings. capacity where he/she must scrutinize the
nomination papers and then decide whether the
candidate is fit to contest.

Judiciary and Legislature

Separation of powers Functional overlap

Article 121: No discussions shall take place in Article 61: The parliament has quasi-judicial
Parliament with respect to the conduct of any powers during the Presidential Impeachment
Judge of the Supreme Court or of a High Court in process.
the discharge of his/her duties. The judiciary may take legislative functions under
Article 122: Courts not to inquire into certain circumstances, which are dubbed
proceedings of the Parliament. as Judicial activism or Judicial overreach.

Example: The Vishaka Guidelines on sexual

harassment in the workplace.

People’s Union for Democratic Rights v. Union

of India (1982) case, which gave for Public
Interest Litigation( PIL).

Impact of the doctrine of separation of powers on democracy

The doctrine of separation of powers seeks to protect the centralization of power in one hand; as
history has repeatedly demonstrated, centralisation of power in one or a few hands can lead to
disastrous outcomes. The application of this principle makes the government liable, accountable,
and answerable to its citizens for its actions, thereby aiding in the promotion and protection of
human rights. This eliminates one of the most serious weaknesses of other forms of administration,
such as monarchy or dictatorship, in which the king is not accountable to his people. When
applied, the principle creates a balance of powers inside the government, in which each of the
government’s bodies’ functions are kept in check by the others while remaining independent of
one another. This assures that the laws are just, fair, and adhere to the natural justice ideal.
 Furthermore, because it is independent of the other departments, the court can administer
equitable justice. Democracy is flawed without Separation of Power.

What are the various judicial pronouncements on the doctrine of separation of powers in India?

 Ram Jawaya Kapoor vs State of Punjab (1955): It was held that the Indian Constitution has not
indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions
of the different parts or branches of the government have been sufficiently differentiated.

 Golak Nath vs State of Punjab (1967): In this case, the judges observed that the three organs of
the government are expected to exercise their functions within their limits and keeping in mind
certain encroachments assigned by the Constitution.

 Indira Gandhi vs Raj Narain (1975): The Supreme court invalidated a clause of Article 329A
inserted to immunize the election dispute to the Office of the Prime Minister from any kind of
judicial review. In this case, It is held that the separation of powers is a part of the Basic
structure.

 Kartar Singh vs State of Punjab (1994): It was stated that the function of the legislature is to
make the law, the executive is to implement the law, and the judiciary to interpret the law within
limits set down by the Constitution.

Significance

As it is a very well-known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and misuse of
power. This doctrine helps prevent the abuse of power. This doctrine protects the individual from
the arbitrary rule. The government is the violator and also protects individual liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains the efficiency of the
administration.

 Focus on the requirement of independence of the judiciary

 Prevent the legislature from enacting an arbitrary rule.

Merits of separation of power

The theory of separation of powers in its strictest form is considered undesirable and unworkable.
As a result, it is not entirely acknowledged in any nation on earth. However, its importance resides
in emphasising the checks and balances that are required to avoid abuse of the vast executive
powers.

 Creating a system of checks and balances

One aspect of the theory of separation of powers is checks and balances. According to this
characteristic, each organ has certain checking abilities over the other two organs in addition to its
own power. The inter-organ relationships are governed by a system of checks and balances during
the process.

The separation of powers thesis was good in principle. When it was attempted to be utilised in
actual life circumstances, however, various flaws became apparent in practice.

 Protection of liberty and rights

According to the doctrine of the separation of powers, an individual’s freedoms and rights are
protected, and they are shielded from various types of dictatorship and oppression.

 Improvement in government efficiency

As authority is divided across government agencies, these agencies learn in-depth information
about the issues they are responsible for and improve their effectiveness. The tasks required in
governance are sometimes too many for one branch of the government to handle. Therefore, the
division of powers aids in lightening the strain on each individual branch of government.

 Encourages order in governance

Each of the three branches of the government is given a certain set of responsibilities. Each person
would have to do their part solely if the concept were to be strictly followed. This guarantees that
the state is run in an orderly manner.

 Prevents abuse of authority

The separation of powers is an excellent safeguard against the abuse and haughtiness of power.
Because various departments are given varying degrees of authority, the emergence of a
dictatorship is prevented. The idea is sound in that it can restrain tyranny on the part of those in
authority. The idea makes sure that too much authority is not centralised in one branch of the
government. By doing this, the desire to misuse authority is avoided.

 Achieves judicial independence

The idea of judicial independence holds that the judiciary ought to be separate from the other
arms of the government. In practically every constitution, the judiciary is granted the authority to
decide all constitutional problems and the authority to deem the actions of the other branches of
government null and invalid. The idea of the separation of powers contributes to bolstering the
judiciary’s independence in carrying out its duties.

Demerits of separation of power

Although most nations have adopted this approach, it has not been without criticism. It has been
decried as undesirable in addition to being impossible. “Montes was guilty of oversimplification. He
united his theory to a hasty and superficial analysis of the constitutional principles of liberty.” Sabine
said. According to Finer, it is useless to rigorously apply the doctrine of the division of powers to
contemporary circumstances. The following arguments have been used to refute the separation of
powers doctrine.

 Misreading of the British system

The Cabinet system of government existed at the time Montesquieu formed his thesis on the
division of powers. At the time, Britain lacked a clear division of authorities. Instead, there was a
focus on who was responsible for what. Montesquieu incorrectly assumed that there was a division
of powers in Britain after seeing the British people enjoy their freedom. He had the politics of
Britain wrong.

 Unhistorical

The British Constitution during the first half of the eighteenth century, as he understood it, served
as inspiration for Montesquieu. In actuality, the English Constitution did not have a division of
powers. This theory was never included in the British Constitution.

The idea is predicated on the false premise that the three branches of government—legislative,
judicial, and executive—are distinct from one another. In the current welfare state model, these
three roles overlap. The government could become more effective as a result of this division.

 Not in favour of the welfare state idea

The welfare state of today must address several intricate sociopolitical economic issues facing a
nation. It is impossible to follow this concept in the current situation.

 Unrealistic in and of itself

It hasn’t been discovered that concentrating one sort of power in one organ alone is conceivable
in practice. In addition to being a body that makes laws, the legislature also has oversight
responsibilities for the executive, which is an administrative entity. The judiciary has some rule-
making authority in addition to performing judicial duties.

Deadlocks and inefficiencies can result from the separation of powers:

The division of powers might result in impasses and ineffective government operations. It could
lead to circumstances where each organ engages in combat and becomes stuck with the other two
organs.

 Not completely achievable

This notion is not entirely achievable. The legislature also has some judicial duties, while the
executive plays a little part in rulemaking. The legislature, for instance, carries out judicial actions
like impeachment.

Separation of powers causes administrative challenges, which is number three. Making the
government’s organs cooperate, coordinate, and live in harmony becomes challenging. Modern
governments must “coordinate” their powers rather than strictly separate them in order to function
effectively.

 Could cause confusion and deadlock

The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the several
branches of government. It might cripple the government while causing discord and uncertainty.
As a result, even in times of emergency, the government frequently makes poor judgments. The
principle of the separation of powers, in Finer’s words, “throws governments into alternate phases
of coma and convulsion.” According to a different academic, “division of powers equals confusion
of powers.”

 Power inequality

Although this theory is founded on the equality of powers assumption, this premise has flaws.
While the administration is most powerful under a presidential system, the legislature, which
represents the people, is most powerful in a parliamentary one.

Separation of powers is one of the factors that contribute to liberty, but it is not the only one.
Liberty also heavily depends on people’s minds, perspectives, political awareness, customs and
traditions, basic rights, the rule of law, the independence of the judiciary, economic equality, and
other factors.

 Could upset the balance of power

As it carries out several crucial tasks, the government has become stronger. It is necessary to offer
welfare to the people in addition to solving problems and managing crises. All of this has
increased the executive’s authority and thrown off the balance between the three branches of
government. Not so much the “division” of authorities as their “fusion” is necessary for planning,
security, and welfare.
 As a result, the theory of separation of powers in its strictest definition is seen undesirable and
unworkable. As a result, it is not entirely acknowledged in any nation on earth. However, its
importance resides in emphasising the checks and balances that are required to avoid abuse of the
vast executive powers.

What are the issues associated with judicial legislation in India?

The term "judicial legislation" refers to the law pronounced, proclaimed, and declared by the
judiciary, specifically the Supreme Court. This type of law is sometimes called "judicial law" or
"Judge-made law."

 The Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) stated, “The
legislature often fails to keep pace with the changing needs and values nor is it realistic to expect
that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary
but obligatory on the courts to step in to fill the lacuna”.

 Some of the instances of judicial legislation include-

o The collegium system out of The Second Judges case (1993) and the Third Judges case (1998).

o Legalizing passive euthanasia in Aruna Shanbaug v. Union of India, (2011).

o ‘None Of The Above’ (NOTA) in elections as a Right in People’s Union for Civil Liberties (PUCL) case
2013.

 The Indian Constitution does not strictly follow the doctrine of separation of powers, but the
functions of different parts of the government have been differentiated.

 The judiciary is not supposed to indulge in lawmaking, but there are instances where judicial
legislation is justified.

 Judicial creativity can be justified in certain situations, such as when there is a peculiar issue at
hand or when laws enacted need to fulfill the needs of the people.

 Judges make the law when there is a legal vacuum or no express principles of law. The impact of
judge-made law can create credibility and reliability, but it can also create a sense of uncertainty
and unwanted strife between the organs of the State.

2. parliamentary v presidential system

Difference between Parliamentary and Presidential Form of Government: The governance

systems of parliamentary and presidential forms differ fundamentally in their distribution of power.
While a parliamentary government intertwines the executive and legislative branches, a
presidential system maintains a clear separation, impacting decision-making and accountability
processes.

Difference between Parliamentary and Presidential Form of Government

Parliamentary Form of Government Presidential Form of Government

Executive power is vested in the elected Executive power is vested in a separate elected
parliament or legislature president

The head of government is usually the prime The head of government is the president
minister

The prime minister is accountable to the The president is not directly accountable to the
parliament legislature

The government can be dissolved by a vote of The president's term is fixed and not subject to a
no confidence vote of no confidence

The government is formed by the majority party The president forms the government and
or coalition appoints cabinet ministers

The prime minister can be removed by a vote of The president cannot be removed by a vote of
no confidence no confidence

The government is responsible for both Separation of powers between the executive and
legislative and executive functions legislative branches

The parliament has significant control over The president has a considerable role in policy-
legislation and policy-making making and legislation

The prime minister can dissolve the parliament The president cannot dissolve the legislature or
and call for new elections call for elections

The parliament can dismiss the government The president cannot be dismissed by the
through a vote of no confidence legislature

Key Differences between Parliamentary and Presidential Form of Government

1. In a parliamentary system, executive power is vested in the elected parliament or legislature,

while in a presidential system, it is vested in a separate elected president.
 2. The head of government in a parliamentary system is usually the prime minister, whereas in
a presidential system, it is the president.
3. The prime minister in a parliamentary system is accountable to the parliament, whereas the
president in a presidential system is not directly accountable to the legislature.
4. The government in a parliamentary system can be dissolved by a vote of no confidence, but
the president's term in a presidential system is fixed and not subject to a vote of no
confidence.
5. The government in a parliamentary system is formed by the majority party or coalition,
whereas the president in a presidential system forms the government and appoints cabinet
ministers.
6. The prime minister in a parliamentary system can be removed by a vote of no confidence,
whereas the president in a presidential system cannot be removed by a vote of no
confidence.
7. In a parliamentary system, the government is responsible for both legislative and executive
functions, while a presidential system follows the separation of powers between the
executive and legislative branches.
8. The parliament in a parliamentary system has significant control over legislation and policy-
making, while the president in a presidential system has a considerable role in policy-
making and legislation.
9. The prime minister in a parliamentary system can dissolve the parliament and call for new
elections, whereas the president in a presidential system cannot dissolve the legislature or
call for elections.
10. The parliament in a parliamentary system can dismiss the government through a vote of no
confidence, whereas the president in a presidential system cannot be dismissed by the
legislature.

What is Parliamentary?

A parliamentary form of government is a system where the executive power is vested in the
elected parliament or legislature. The head of government, typically the prime minister, is
accountable to the parliament and holds significant power in the decision-making process. The
government is formed by the majority party or a coalition of parties, and the prime minister is
responsible for appointing cabinet ministers. The parliament plays a crucial role in enacting
legislation, scrutinizing the government's actions, and can dismiss the government through a vote
of no confidence.

Advantages of Parliamentary Form of Government

1. Parliamentary systems promote collective decision-making and consensus-building among

elected representatives.
2. The parliament provides a platform for diverse voices and encourages representation from
multiple political parties.
3. The prime minister and cabinet members are accountable to the parliament, ensuring
transparency and oversight.
4. It allows for a relatively quick response to changing circumstances, as the government can
be dissolved or reshuffled promptly.
5. Parliamentary systems facilitate smoother transitions of power, especially during leadership
changes or crises.
6. The parliament has significant control over legislation, enabling efficient lawmaking and
policy implementation.
7. It encourages cooperation between the executive and legislative branches, fostering a sense
of shared responsibility.
8. Parliamentary systems often promote stability through the formation of coalitions,
preventing extreme shifts in policy.
9. The parliament serves as a check on executive power, ensuring that decisions are subject to
scrutiny and debate.
10. The government can be easily held accountable through motions of no confidence,
providing a mechanism for removal if necessary.

Disadvantages of Parliamentary Form of Government

1. Parliamentary systems can sometimes result in political instability, especially if the majority
party or coalition is fragile.
 2. The frequent dissolution of the parliament and calling for new elections can be disruptive
and costly.
3. Coalition governments may face challenges in maintaining unity and implementing policies
due to varying party interests.
4. The concentration of power in the hands of the prime minister and cabinet members may
limit the influence of individual legislators.
5. Opposition parties may face difficulty in challenging the government's decisions effectively.
6. Parliamentary systems may result in excessive partisanship and political gridlock, especially
when the ruling party has a narrow majority.
7. It can be challenging to achieve long-term policy continuity and carry out comprehensive
reforms.
8. The appointment of cabinet members from the parliament may limit the pool of talent
available for key positions.
9. The frequent debates and discussions in the parliament may lead to delays in decision-
making and policy implementation.
10. Parliamentary systems may face difficulties in dealing with strong opposition or dissenting
voices, potentially leading to polarization and conflicts.

What is Presidential Form of Government?

A presidential form of government is a system where executive power is vested in a separate

elected president, who serves as the head of state and head of government. The president is not
directly accountable to the legislature and has a fixed term of office. The president is responsible
for forming the government and appointing cabinet members. In a presidential system, there is a
separation of powers between the executive and legislative branches, with each branch having
distinct responsibilities and authorities.

Advantages of Presidential Form of Government

1. Presidential systems provide strong and stable executive leadership through the elected
president.
2. The separation of powers ensures checks and balances, preventing any one branch from
dominating the others.
 3. The president, as the head of state, represents the nation's unity and acts as a symbol of
national identity.
4. The president can make swift and decisive decisions without being hindered by legislative
debates and deliberations.
5. Presidential systems often foster political accountability, as the president is directly
answerable to the electorate.
6. It allows for a clear line of succession and continuity of leadership, even during times of
political transitions.
7. The president can bring together experts and professionals from various fields to form the
cabinet.
8. Presidential systems provide stability and predictability in governance, as the president's
term is fixed and known in advance.
9. The president has significant authority in shaping policy and legislative agendas, leading to
more focused and coherent governance.
10. Presidential systems often allow for a greater degree of individual freedom and protection
of civil liberties.

Disadvantages of Presidential Form of Government

1. Presidential systems may be susceptible to authoritarian tendencies if checks and balances

are weakened.
2. The separation of powers can lead to conflicts and gridlock between the executive and
legislative branches.
3. Lack of direct accountability to the legislature may make the president less responsive to
legislative concerns.
4. Presidential systems may have longer and more rigid leadership terms, limiting the flexibility
to address changing circumstances.
5. The winner-takes-all nature of presidential elections can result in deep divisions and
polarization within society.
6. Presidential systems may face challenges in achieving consensus and compromise,
especially when there is divided government.
7. The lack of mechanisms for the removal of the president, except through impeachment, can
create difficulties in dealing with ineffective or corrupt leaders.
 8. The concentration of power in the hands of the president may lead to a less diverse range
of voices and perspectives in decision-making.
9. Presidential systems can be expensive to maintain, as the executive branch and presidential
elections require significant resources.
10. Presidential systems may experience difficulties in adapting to rapidly changing political and
social dynamics, as decision-making processes can be slower compared to parliamentary
systems.

Similarities between Parliamentary and Presidential Form of Government

1. Both systems involve the exercise of executive power in the governance of a country.
2. They require a set of rules and institutions to facilitate decision-making and policy
implementation.
3. Both systems have a head of government who holds significant authority and is responsible
for leading the country.
4. Both systems have a legislative body that plays a role in enacting laws and overseeing the
government's actions.
5. The government in both systems is accountable in some form, either to the legislature or
directly to the electorate.
6. They provide mechanisms for the appointment of cabinet members and the formation of
the government.
7. Both systems can have multiple political parties and coalition governments.
8. The head of government in both systems is involved in policy-making and shaping the
legislative agenda.
9. Both systems require a degree of stability and continuity in governance for effective
functioning.
10. They provide platforms for political debate, discussion, and representation of citizens'
interests.

Conclusion

Difference between Parliamentary and Presidential Form of Government: In conclusion,

parliamentary and presidential forms of government differ significantly in terms of the distribution
of power, accountability mechanisms, decision-making processes, and the role of the executive
and legislative branches. While parliamentary systems emphasize collective decision-making and
accountability to the legislature, presidential systems emphasize strong executive leadership and
separation of powers. Each system has its advantages and disadvantages, and the choice between
them depends on a country's historical, cultural, and political context. Understanding these
differences is crucial for evaluating the functioning and implications of different forms of
government.

3. FEDERAL SYSTEM DISTRIBUTION OF POWERS:

a. CENTRE - STATE RELATIONS

Centre state relations

All legislative, executive and financial powers are divided between the centre and the states
according to the Indian constitution in the context of Centre-State Relations.

There are three types of relationships involved in the centre -states relations:

 Legislative Relations
 Administrative Relations
 Financial Relations

Legislative Relations

Article 245 to 255 of the constitution deals with the legislative relation between the centre and
states. Indian constitution also divides the legislative power between the centre and states with
respect to both territories and the subjects of legislation.

There are four aspects of the legislative relationships between the union and the states:

 Territorial extent of central and state legislation

 Distribution of legislative subjects
 Parliamentary legislation in the state field
 Centre’s control over state legislation
Territorial Extent of Central and State Legislation

The ability to pass legislation that covers all or a portion of India’s territory belongs
to Parliament (territory includes union, state, UT)

Laws can be passed by the state legislature that is applicable to the entire state or only a portion
of it. Unless there is a sufficient connection between the state and the object, state laws are not
applicable outside of the state.

The only body with the power to pass “extraterritorial” legislation is Parliament.

Situations where parliamentary laws aren’t applicable in the following areas:

 The President has the authority to enact rules that have the same force and effect as
laws passed by parliament for the Andaman and Nicobar Islands, Daman and Diu,
Dadra and Nagar Haveli, Ladakh and Lakshadweep.
 Governor is empowered to direct that an act of Parliament does not apply to
scheduled areas in the state or apply with specified modifications and exceptions.

Distribution of Legislative Subjects

The Union List, State List, and Concurrent List are the three divisions established by the
constitution.

Parliament is the exclusive authority when it comes to the Union list.

In most cases, the state legislature alone has the power to pass legislation pertaining to the things
on the state list.

The state and federal governments can both pass laws on the subjects mentioned in the
concurrent list.

The ability to pass laws with a recurring theme rest with Parliament.
The concurrent list is given precedence over the state list, and the union list is given precedence
over the state list.

The power to make laws with respect to residuary subjects is vested in the Parliament.

Parliamentary Legislation in the State Field

The Constitution permits Parliament to enact laws on any topic included in the state list under
the following five exceptional circumstances :

 When Rajya Sabha approves a resolution with the support of two-thirds of the
members present and voting, it will provide parliament with the authority to enact
legislation on a state list issue that is best for the nation. Such a resolution lasts for a
full year. A resolution like this can be renewed a number of times, but not for more
than a year at a time. The laws passed in accordance with the resolution cease to be in
force six months after it was adopted. In the event of a disagreement between state
and union legislation, the latter prevails. A state may, however, pass legislation on the
same issue.
 When a declaration of a National emergency is in force the Parliament may pass
laws on any matter covered by the state list. The legislation passed under this are only
valid for six months before they expire. State law may also enact legislation on the
matter, but in the event of a conflict, union law will take precedence.
 When a state makes a request to Parliament to act on a list of issues by passing a
resolution to that effect, Parliament is given the power to do so. The state forfeits all
rights there once this resolution is approved.
 To implement International Agreements, the parliament can make laws on any
matter in the state list for implementing International Treaties, agreements and
conventions.
 When President’s Rule is imposed in a state, the parliament becomes empowered to
make laws with respect to any matter in the State List.
Centre’s Control Over State Legislation

According to the Constitution, the federal government is authorised to exercise the following
influence over state legislative affairs:

 Specific laws established by the state legislature may be set aside by the governor for
presidential consideration. They are entirely under the president’s power.
 Bills on specified subjects listed in the state list can only be filed in the state legislature
with the President’s prior consent. For instance, interstate trade and commerce.
 The President may ask a state to lay aside money bills and other financial bills for his
consideration in the case of a financial emergency.

Administrative Relations

The distribution of legislative authority has resulted in a shared executive branch between the
federal government and the states.

Article 256 to 263 of the constitution deals with the administrative relation between the Centre
and States.

Distribution of Executive Powers

The centre’s power encompasses the entire nation when it comes to matters over which it has
exclusive jurisdiction (union list), as well as when it exercises any rights, jurisdiction, or authority
granted to it by a treaty or agreement.

The subjects listed in the state list fall under the state’s purview.

The states have the executive authority in matters involving the concurrent list.

The state’s executive branch must act in a way that ensures the laws established by Parliament are
upheld.

A state’s executive power may not be interfered with or affected in any way.
The Obligation of States and the Centre

The constitution has placed two restrictions on the executive power of the states in order to give
ample scope to the centre for exercising its executive power in an unrestricted manner.

 The state’s executive branch must act in a way that ensures the laws established by
Parliament are upheld.
 As not to prejudice the executive power of the centre in the state.

In both cases, the executive power of the Centre extends to giving such directions to the state as
are necessary for the purpose.

The sanction behind these directions of the Centre is coercive in nature.

Thus, Article 365 says that where any state has failed to comply with any directions given by the
Centre, it will 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 the
Constitution. It means that, in such a situation, the President’s rule can be imposed in the state
under Article 356.

Centre’s Direction to the States

In Centre-State Relations, the following circumstances are where the Centre may provide advice to
states:

Construction and maintenance of communication systems deemed to be of national or military

importance by the government.

Actions to be taken to guarantee the state’s railways are safe.

Provision of enough resources for students from linguistic minority groups to receive elementary
school instruction in their home tongue.

The creation and execution of specific initiatives for the ST’s welfare in the various states.
Mutual Delegation of Functions

To decrease rigidity and prevent a deadlock, the constitution permits intergovernmental

delegation of executive authorities.

With the state government’s approval, the president may delegate the union’s executive functions
to it.

The governor may delegate the executive responsibilities of the state to the union with the
approval of the federal government.

This agreement to share authority may be either conditional or unconditional.

The constitution also permits the state to provide the union executive authority without the state’s
consent.

But such delegations are made by Parliament, not by the President. The executive authority of a
state, however, cannot be transferred in the same manner.

Cooperation Between Centre and States

The following provisions have been included to ensure cooperation and coordination between the
centre and the states.

Parliament has the authority to rule on any dispute or grievance involving the use, distribution, and
management of any interstate river’s and river valleys’ water resources.

The President has the power to convene an inter-state council to examine and deliberate on
subjects of common interest between the centre and the states.

All of India is required to provide full faith and credit to the public actions, records, and judicial
proceedings of the federal government and each state.

In order to carry out the constitutional requirements relating to interstate trade, commerce, and
intercourse, Parliament has the authority to designate the proper authorities.
All India Services

In 1947, the colonial Indian Civil Service (ICS) and Indian Police (IP) were replaced by the Indian
Administrative Service (IAS) and Indian Police Service (IPS).

As the third all-India service in the nation, the Indian Forest Service (IFS) was founded in 1966.

The members of All India Services occupy the top positions under both the Centre and States. But
they are recruited and trained by the centre.

The ultimate control lies with the central government while immediate control vests with the state
governments.

Article 312 of the Indian constitution gives Parliament the authority to create an all-India service
provided the Rajya Sabha passes a resolution to that effect.

With the combination of these three services, a single service is created with uniform pay
schedules, rights, and status.

All India Services is required for:

 Assist in maintaining the federal government and the states’ administrative standards
high.
 Aid in ensuring that the administrative framework is consistent throughout the nation.
 They enhance communication, collaboration, coordination, and cooperative action
between the federal government and the states on issues of shared concern.

Public Service Commission

The centre-state relationships in this area are as follows:

 The state public service commission’s chairman and members are chosen by the
governor, but only the president has the authority to remove them.
  The President appoints the chairman and members of the state public service
commission in cases when two or more states request that Parliament establish a
combined public service commission.
 The President’s approval is required for UPSC to help the state public service
commission at the governor’s request.
 In order to create and implement joint recruiting plans for any services that require
candidates with certain qualifications, the UPSC works with the states.

Integrated Judicial System

Despite its dual polity, India has built an integrated judicial system.

This unified judicial system is in charge of enforcing both federal and state laws.

The judges of a high court are appointed by the President of India, in consultation with the Chief
Justice of India and the governor of the state.

The President has the power to transfer or remove them.

Parliament has approved the creation of joint high courts for two or more states.

Relation During Emergency

During a national emergency, The centre has the authority to provide directives to the state on any
matter.

The State governments are brought under the complete control of the centre, though, they are not
suspended.

When President Rule is imposed in a state, the president may exercise the duties and authority
vested in him and powers vested in the governor or any other administrative authority in the state.
During a Financial Emergency, The President may also give other crucial orders, such as lowering
the salaries of high court judges and state personnel. The centre may require states to abide by
financial propriety canons.

Financial Relations

Article 268 to 293 of the constitution deals with Centre-State Financial Relations.

Allocation of Taxing Power

 Taxation of the subjects on the Union list is the sole responsibility of Parliament.
 Taxation on the things included in the state list may only be done by the state
legislature.
 The items on the concurrent list are subject to taxation by both the state and the
union.
 The residuary power to tax belongs to the Parliament.

The Constitutional Restriction on The State’s Taxation Power

The power to tax occupations, trades, callings, and professions belongs to the state legislature.
However, no one should receive more than Rs 2500 in total compensation each year.

Taxes on the sale or purchase of products can be imposed by a state (other than a newspaper).
However, The following factors restrict the state’s capacity to impose a sales tax:

 Sales and purchases made outside of the states are exempt from taxation
 Sales or purchases done during the import or export process are exempt from
taxation.
 No tax may be levied on a transaction or purchase made during interstate trade or
commerce.
 A tax imposed on goods sold or bought that the Parliament has determined are of
particular importance to interstate trade and commerce is subject to the limitations
and specifications set forth by the Parliament.
Electricity used by or sold to the centre, as well as electricity used in the building, upkeep, or
operation of any railway by or sold to the railway company for the same purpose, are exempt from
state taxes.

A state may charge a price for the water or electricity it sells to an interstate river authority that
Parliament established to manage and develop the river. On the other hand, a law that receives the
approval of the President may enact such an imposition.

Distribution of Tax Revenues

Taxes are levied by the centre, but they are collected and used by the state ( Article 268). The
state’s consolidated fund receives the proceeds from this and holds them there. For instance,
excise tax and stamp duty.

Article 269). One illustration would be taxes imposed on goods purchased or sold in interstate
commerce.

The state’s consolidated fund receives the proceeds from this and holds them there.

Although the federal government imposes and collects taxes, they are divided between the federal
government and the states (Article 270). This category includes all taxes, with the exception of the
ones mentioned above, surcharges, and cess. Based on the Finance Commission’s
recommendations, the President determines how these taxes are divided.

The tax and levies surcharges mentioned in Articles 269 and 270 may be enacted at any time by
Parliament. Proceeds from the surcharge are only used for the centre.

State-imposed gathered, and held-back taxes consist of:

 These are the taxes that fall under the purview of the states only.
 They are listed on the state list.
 Agriculture income taxes, Alcohol excise taxes, Profession-specific taxes, Ceilings, etc.
Distribution of Non-Tax Revenues

The centre’s primary non-tax revenue sources are as follows:

 Postal and telegraph services

 Railroads
 Banking
 Broadcasting
 Coinage and currency
 Central public sector enterprise
 Escheat and lapse.

The main sources of non-tax revenue for states are as follows:

 Irrigation
 Forests
 Fisheries
 State public sector enterprise
 Escheat and lapse.

Grants-in-Aid to the states

State grants-in-aid are permitted by the Constitution to come from the federal government. The
two types of grants-in-aid are statutory grants and discretionary grants.

STATUTORY GRANTS:

The parliament is empowered by Article 275 of the Constitution to provide grants to states that
specifically require them rather than to all states.

These amounts may vary for various states. These funds are levied annually to the Consolidated
Fund of India.

Depending on the Finance Commission’s recommendations, these are given to the states.
DISCRETIONARY GRANTS:

Article 282 gives both the federal government and the states the authority to provide grants for
any public purpose, even if it is not within their purview.

The choice is entirely up to the centre, which is under no obligation to offer these subsidies.

Other grants:

A one-time donation for a particular cause was permitted by the Constitution. For the states of
Assam, Bihar, Odisha, and West Bengal, grants on jute and jute products could be used in place of
export taxes.

These funds were to be given out for ten years starting at the time the constitution was adopted,
per the recommendation of the Finance Commission.

Goods and Services Tax Council

The smooth and efficient administration of the goods and services tax ( GST ) requires cooperation
and coordination between the Centre and the States.

In order to facilitate this consultation process, the 101st Amendment Act of 2016 provided for the
establishment of a Goods and Services Tax Council or the GST Council.

Article 279 – A empowered the President to constitute a GST Council.

The Council is a joint forum of the Centre and the States. It is required to make recommendations
to the Centre and the States on the following matters :

 The taxes, cesses and surcharges levied by the Centre, the States and the local bodies
would get merged into GST.
 The goods and services that may be subjected to GST or exempted from GST.
  Model GST Laws, principles of levy, apportionment of GST levied on supplies in the
course of inter-state trade or commerce and the principles that govern the place of
supply.
 The threshold limit of turnover below which goods and services may be exempted
from GST.
 The rates include floor rates with bands of GST.
 Any special rate or rates for a specified period to raise additional resources during any
natural calamity or disaster.

Important Recommendations on Centre-State Relations

Administrative Reforms Commission

 The creation of an interstate council under Article 263 of the constitution

 Appointment of governors with substantial expertise in public service and impartial
viewpoints
 The most power has been granted to states.
 In order to reduce the state’s reliance on the federal government, more financial
resources ought to be distributed to them.
 Federal armed troops are stationed in states at their request or on their own initiative.

Sarkaria Commission Recommendations

 Setting up a permanent inter-State Council under Article 263

 Article 356 should only be utilized when necessary.
 The all-India service institution needs to be strengthened.
 The residuary power of taxation should belong to the parliament.
 >The states should be informed of the President’s grounds for his or her vetoes of
state legislation.
 Without the consent of the states, the Center ought to be able to use its military
forces. However, it would be ideal if the states were consulted.
 The centre should consult the states before making law on the subject of concurrent
list.
  Governors should be allowed to complete their five-year terms.
 The position of Linguistic Minority Commissioner should be filled.

Punchhi Commission Recommendations

 The impeachment process is used to remove governors after a five-year tenure.

 The Union should exercise extreme prudence when asserting Parliamentary
precedence in matters given to the states.
 It specified the number of criteria to be taken into account when choosing governors:

He ought to be well-known in some industries.

He should not be a state resident.

He ought to be a neutral figure who stays out of regional politics.

He shouldn’t have recently become involved in politics.

 The term limit for the government should be set at five years.
 Governors could be subject to the same impeachment process as the president.

Conclusion

The interactions between the Center and the States are the primary characteristics of Indian
federalism. To safeguard Indian residents’ safety and well-being, the Central Government and State
Governments must collaborate with each other. They work together to prevent terrorism, manage
families, protect the environment, and prepare for the socioeconomic future. The evolution of the
nation has been greatly influenced by these exchanges between the centre and the states. The
better Centre-State relations contributed to the improved national government, an improved
administrative system, and the integration of disparate communities into society at large.

b. INTER - STATE RELATIONS:

DD BASU
4. EMERGENCY PROVISIONS

The emergency provision in the Constitution

India i.e. Bharat is an “own kind” federal republic. During an emergency, it possesses unitary
functionality. That’s why Dr. B. R Ambedkar declared the Indian Federal structure special because
throughout an emergency it becomes fully unitary. In an emergency, the mechanism becomes a
unitary trait as the constitutional apparatus fails. Part XVIII of the Constitution, Article
352 to 360 includes the emergency provisions.

The word emergency can be described as an unexpectedly occurring situation that causes public
authorities to act instantly within their particular powers. The emergency is a disturbance from
which a human’s civil rights, except perhaps in Articles 20 and 21, are removed. An emergency is
due to the breakdown of the administrative machinery that triggers or allows the government to
urgently respond.

“Emergency, according to the Black Law Dictionary, demands urgent intervention and imminent
warning because such a circumstance poses a danger to people and liberty within the region. The
socioeconomic structure struggles to achieve fair working standards. The definition of emergency
has become a political phenomenon. The key idea of creating clear legislative arrangements for
crises was to safeguard against the accidental advent of autocracy in conjunction with domestic
chaos, foreign assault, or war.

There is indeed a different aspect for all the emergency clauses contained in the Constitution Of
India. Consequently, Part XVIII is an aspect of our Constitutional creativity. Often a country is
surpassed by incidents and powers that place its stability and the wellbeing of its people critically
at risk. It is unpredictable. Such conditions could entail the temporary suspension of the individual
freedoms of people to resolve the threats facing the world.

Democratic regimes are brought in emergency situations into a real problem by having a clash
among their primary duty to protect the dignity of the government and their similarly significant
responsibility to defend the human interests of their people and those beyond their competence.
The State is obligated to choose between opposing sacrifices. This is the reason for emergency
provisions that are set down for the revocation of protected constitutional rights in certain national
constitutions.

Emergency steps are a peculiar aspect of the Indian Constitution, which enables the Centre to
assume expansive powers to deal with particular situations. Any state can be completely managed
by the Centre in an emergency. It also permits the Centre to suspend citizens’ rights through the
emergency clause. There are significant reasons why scholars refuse to name the Constitution Of
India completely democratic. The constitution contains emergence clauses.

Introduction

The way natural Federalism will respond to an emergency situation is a noteworthy aspect of the
Constitution Of India. Consequently, declaring an emergency is a very critical topic that has a
negative impact on people’s freedom. It must however only be released under extraordinary
conditions. A President can proclaim an emergency in compliance with Article 352(1), if he is
comfortable that there is a security concern to or part of India. The problem under consideration
will be whether the President’s happiness is justifiable or not.

“In a variety of occasions, the courts have discussed the effect of the declaration of an emergency
on compulsory incarceration, the effect of the revocation of Article 19 of the Emergency
Proclamation and on the effect, according to Article 359, of the President’s order. These decisions
are debated as and where necessary.” Dr. B.R. Ambedkar advocated the idea of India as a federal
republic, stating that even though citizens are split into separate nations, they are representatives
of India, which really is a federation of the countries.

The concession of emergency powers was debated but Dr. Ambedkar said those papers would
never work and remained dead letters. However, it was seen that Article 356 is furthermore
violated, abused but scarcely used.

Origin and historical context

In order to implement emergency clauses, the situation at the time of the constitution was
relevant. After a lot of events after and even before the pre-independence period, the Constitution
framers had to worry about those arrangements.
Cacophony was generated by destructive powers of casteism, regionalism, communitarianism, and
languish and peace and country unity became broken. There were religious disturbances involving
Muslims and Hindus which disintegrated dangers to democratic foundation and preservation in
India. In the course of creating our Constitution, Kashmir’s dilemma emerged with the Monarch’s
defeat. Pakistan’s threat had come up.

Few indigenous States (Junagarh and Hyderabad) were reluctant regarding membership of the
Union Of India. The Government of India was then faced with a greater challenge because the
government could not accept such separatist action as was demanded by geographic necessity in
Junagarh and Hyderabad. All this is why article 352 was needed.

In the post-independence period, communist activity among Telangana’s workers and farmers
started to spread. The socialist regime was a possible threat to the country’s peace and civil order.
This led to the adoption of the Constitution of extreme emergency clauses. Provincial
administration. Thus, the framers of the constitution remained concerned that State and local
governments would be working consistently and effectively. So, Art. 356 was added to ensure the
collapse of a state without legislative processes.

Owing to the conditions that contributed to a decline in foreign currency reserves and branches,
the country’s financial position was also drastically declining. Dr. Ambedkar decided to prevent any
legal complications and Art. 360 of the Constitution was thus introduced.

Types of emergencies in the Indian Constitution

The State may override the different individual freedoms in the presidential state of emergency
and enforce those federal standards in Section XVIII of the Constitution.

Article 352 to Article 360 of the Indian Constitution allows for emergency arrangements.

 National emergency (Article 352)

 State emergency (Article 356)

 Financial emergency (Article 360)

National emergency

Article 352 of the Constitution stipulates national emergency. National emergency. The national
emergency coincides with statutory requirements to be enforced when an unusual situation affects
or threatens part of the nation’s harmony, defence, prosperity, and administration.

In compliance with Article 352 of the Constitution, emergency implementation when conditions
preceding were also present-

(i) Attack,

(ii) External intrusion or

iii) Internal rebellion.

Article 352 states that if, because of outside aggression or armed revolt, the President is
‘comfortable’ that a dangerous situation occurs which endangers the protection of India or indeed
any portion of it, he will make a declaration in that respect with or for almost all of India. Such a
declaration, though, may only be made through authorized advice of the cabinet of the Nation in
clause 3. Such a declaration must be put before the legislative house and accepted from each
chamber, or it will lapse after a month from the declaration.

It must be remembered that it has been accounted for in the clarification of Article 352 that neither
the foreign invasion nor violent revolution has really taken place in the event of an emergency
declaration. It may be declared even though foreign violence or military revolt is likely.

National emergencies in India

During the War with China, the first emergency was proclaimed and lasted for six years between
October 1962 and January 1968. The battle against China concluded on 21 October 1962, but
another war against Pakistan only began after the emergency. In the end, the Tashkent deal was
reached after international pressure and in January the then government dropped the emergency.
The second emergency declaration was due to the war between India and Pakistan. Three acts
were performed during that time. Maintenance of SA, Coffee POS Act, and In order to avoid arrest
it was decided to retain the Govt Protection of the Rule. However, these three actions were
extensively grossly overused, and numerous convictions, jail shootings, and gatherings were
observed this time. The war with Pakistan came to an end, but the emergency persisted, and
before the second emergency was revoked 3rd emergency was declared.

The third emergency has been proclaimed due to internal unrest and this is India’s most
contentious emergency. The polls at which the court considered Smt. Indira Gandhi was barred
from public service for six years to be engaged in unethical practices it was held in the Allahabad
High Court.

She had brought the judgment to the Supreme court, but the court had been on holiday at that
moment. On 25 June 1975, the Historical day, Smt. Indira Gandhi wrote to then-Honourable
President Fakhruddin Ali Ahmed a message to declare an emergency, despite the approval of the
members of the cabinet. The much more stringent and compressed emergency was this
emergency. On 23 March 1977, it was withdrawn.

In the case of Minerva Mills vs the Indian Union, the legitimacy of the president’s motivation and
determination through Article 351 is not impeded by judicial review. However, the jurisdiction of
the Court is confined to investigating is not whether the restrictions of the Constitution were met.
It will decide whether or not the President’s happiness is true. It is not at all happiness, where
fulfilment is founded on mistrust, irony, or irrelevance.

The procedure of proclaiming emergency

The President of the country can make a statement, but there is just something that is already
provided for. Only if the Cabinet requests in writing that the President order quite an emergency.
The Houses of Parliament must, by an overwhelming vote, approve quite an emergency
declaration, and perhaps even the 2/3rd majority of the members present and voting inside one
month, or the declaration shall stop functioning.
“If Lok Sabha is abolished or would not be at an Emergency management meeting, it shall be
accepted in the month and subsequently in the month after the beginning of this next meeting by
Rajya Sabha. The emergency continues to exist six years after the date of declaration until
ratification by Parliament.” Which ought to be continued after six months, the Legislature must
enact another provisional decision. This proved to be an emergency forever.

The procedure of revoking emergency

The President of India may revoke the emergency by another declaration if the condition improves.
The 44th constitutional amendment requires ten percent or more Lok Sabha leaders to share an
application for and in the meeting of the Lok Sabha; they may disagree with the emergency, or
cancel it by a mere majority. In such an incident, it is unserviceable automatically.

State emergency

The Union Government’s responsibility is to ensure that perhaps the administration of a State
takes action in accordance with the Constitution’s requirements. Article 356 states that, whether,
on the reception of a briefing from the Governor of the State, and otherwise, the President is
pleased that a state government is unable to carry on in a smooth manner, a state emergency
declaration may be issued by that Leader.

In this case, the President’s declaration of emergency is labelled ‘announcement because of the
breakdown (or collapse) of legislative mechanisms.’

An emergency of this kind may have the following effects:

1. the President, with the exception of the High Court, may assume all or any of the
responsibilities of state governments;

2. announce that state legislative powers should be exercised by, or under, Parliament’s
responsibility;

3. make the declaration subject matter necessary or suitable for its execution.
Nevertheless, the President is not allowed to presume or terminate any statutory obligation
relating to the High Court. The President of India has instituted a 126-fold rule in India until 2018.
The presidential rule has been used for a record of 35 occasions under Indira Gandhi’s rule.

The procedure of proclaiming state emergency

Such an announcement, like the National Emergency, should have been sent for ratification before
all the Houses of Parliament. Permission must be issued in this situation within two months;
therefore the declaration shall cease operating. If the Lok Sabha is disbanded after some of these
two months and has been authorized by the Rajya Sabha then the resolution shall cease to
function on the 30th day after its restoration on the date of the first session of the Lok Sabha
because if the Lok Sabha has been approved well before expiry.

An announcement so authorized immediately stops to act at the end of a six-month cycle

following the date of the announcement, until withdrawn. Without revocation, its life can be
prolonged by six months, most times but not after three years. Afterward, the Reign of the
President has to be finished and the State has to restore regular legislative machinery.

A new clause was added in the 44th Amendment, which restricted Parliament’s jurisdiction to the
degree of an announcement made after 1 year under Article 356.

The procedure of revoking state emergency

Any such declaration can by a subsequent proclamation be repealed or varied. In each of the
following forms, a proclamation made in compliance with Article 356(1) expires:

1. Unless accepted before both Houses of Parliament within two months of its creation
[Article 356(3)].

2. In case of failure to gain the consent of either House within two months after sending
the declaration to the Houses of Parliament [Article 356(3)].

3. If no other proposal is adopted by the House of Parliament, following the adoption of a

first proposal [Article 356(4)], following six months from the date of the declaration.
Subject to the overall maximum limit of three years from the date of the declaration following six
months from the date of the passing of the last resolutions authorizing the Chamber of Parliament.
The following conditions contained in article 356(5) must be fulfilled to extend the proclamation
after one year:

 Global Disaster in place already; or whether

 The Electoral Commission classifies that it cannot hold elections to the Legislative
Council.

 The date on which the proclamation of revocation is issued by the President [Article
356(2)].

Emergency provisions: effects and impact

Dicey says federalism is weak as it requires power-sharing between the centre. This is a
dysfunctional democratic government. Even so, all existing federations managed to escape this
deficiency by ensuring the federal government assumes extraordinary leverage where there is a
need, because of emerging new internal or external conditions, for concerted intervention. [The
Constitution Of India] gives exceptional powers to the union for specific forms of emergency. The
constitutional main sources of energy authorize the federal government, as necessary, to achieve
the power of a unitary structure.

The Indian Constitution provides for three distinct types of irregular conditions that require that
the constitution created a divergence from the usual legislative machinery:

1. A war-related emergency, an outside invasion or armed revolt [Article 352]. It is also

recognized as a national pressing matter.

2. Failure of states with legislative machinery [Article 356]. Established as the Presidential
Guideline, too.

3. Financial Emergency [Article 360].

Perspective Of judicial review

In accordance with Article 356, a declaration is subject to a past competition on the basis that
power is a power that is oppressive in accordance with Article 356(1). The Judiciary is eligible for
examination in the operation of judicial review strength if the criteria are met. But the argument
really centres around court’s degree and depth.”

“From the judgments on account of State of Rajasthan v. Association of India and the Bommai
case, unmistakably there can’t be a uniform principle relevant to all cases, it will undoubtedly
change contingent on the topic, nature of the right, and different components. Nonetheless, where
it is conceivable the presence of fulfillment can generally be tested on the ground that it is mala
fides or dependent on entirely unessential and immaterial grounds.”

“The pertinence of judicial review in issues including Article 356 is additionally underscored in the
Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme Court
held that it was not blocked from striking down a law passed preceding a Proclamation of
Emergency, as ultra vires to the Constitution, in light of the fact that the Proclamation was in
power around then.”

“Judicial review of the Proclamation under Article 356(1) was first tried in State of Rajasthan v.
Association of India, in which a bench of seven judges of the Supreme Court by a consistent
judgment dismissed the applicant request and maintained the centre’s decision of dissolving three
assemblies under Article 356 as intrinsically legitimate.”

“The Supreme Court, on account of Minerva Mills and Others v. Association of India and Others,
harped broadly on its capacity to analyse the legitimacy of a Proclamation of Emergency given by
the President.” In dealing with this matter, the Judicial Branch should not neglect, among other
things, that it should fulfill its existing obligation because it requires reflecting on political matters.

At the same time, it should restrict itself to reviewing whether the preconditions set out in Article
352 were found in the declaration of the Proclamation, and not whether the existing situations and
requirements of statutory enforcement in the case of an emergency were sufficient. It must also be
assumed that the Presidential Declaration, while limited, is subject to judicial review pursuant to
Article 356.

“The latest case which chose the degree of judicial review of the Proclamation by the President
forcing President’s Rule in the states and united the lawful situation on the abstract fulfillment of
the President is S.R. Bommai v Union of India was a landmark throughout the entire existence of
the Indian Constitution. It was for this situation that the Supreme Court intensely set apart the
worldview and constraints inside which Article 356 was to work. In the expressions of Soli Sorabjee,
prominent legal jurist and former Solicitor-General of India, After the Supreme Court’s judgment in
the S. R. Bommai case, it is all around settled that Article 356 is an outrageous force and is to be
utilized if all else fails in situations where it is shown that there is a stalemate and the sacred
hardware in a State has imploded.”

Difference between Article 352 and 356

S.N. National Emergency (352) President’s Rule (356)

It may be argued if, because of causes that could

Only if the stability of India or a part
have no relation with any war, an external attack,
of it is threatened with invasion,
1. or armed insurrection, the government of a State
foreign interference or military
cannot be carried out in compliance with the
revolt may it be declared.
conditions of the Constitution.

The State Governor would then be removed and

The State Executive and the
the State assembly dissolved or disbanded during
Legislature continue acting and
its service. It is ruled by the president and the
exercise their legislative functions.
2. parliament creates regulations for the
The Centre has concomitant
administration. In short, the Center assumes the
regulatory and legislative powers in
administrative and legislative functions of the
the province.
Administration.

Parliament may only legislate on its
own, i.e. not assign the same with
3. any other agency or jurisdiction, on
the matters mentioned in the State
List.
The Parliament may assign to the President and
any other jurisdiction defined by it the power to
legislate for the Government. To date, the
President’s procedure has already been in
collaboration with parliamentarians from that state
and make legislation for the state.
There is a cumulative duration of three years for its
service. It must then be done

For its service, no limit duration is For its service, a period of 3 years is recommended.
recommended. The House will It must be done after that and the usual
4.
continue for every six months constitutional mechanism of the State must be
continually with its acceptance. reinstated.

This makes a transition to the

This will change only the interaction of the
5. arrangement between the Core and
emergency state with both the Centre.
all the Nations.

It affects people’s fundamental This has no influence on peoples’ constitutional

6.
human rights (FR). rights.

A special majority should be

Each Parliament resolution that accepts or
adopted with any proposal accepted
7. preserves the proclamation cannot be accepted by
by Parliament to proclaim or
a single majority.
continue the declaration.

A proposal may be passed by Lok Such a clause is not in effect. It is only at its own
8.
Sabha to cancel it. choice that the President will relocate it.

Financial emergency

The financial emergency provided for in Article 360, is the third kind of emergency. It stipulates
that even if the President is convinced that India or any of its economic stability or credibility is at
risk, he may declare a financial emergency. The executive and legislative competencies would take
center stage in such a circumstance. It must also be accepted by Parliament, as some of the other 2
emergencies. Both Members of Parliament must approve it within two months. As long as the
process requires, the financial catastrophe can exist and might even be lifted with a corresponding
declaration.

This Article has Never been used.

A declaration is given pursuant to Art. 360—

 a corresponding proclamation may be withheld or varied

 every House of Parliament shall be placed before it

 ceases to exist at the completion of two months, except as authorized in resolutions of

the two Houses of Parliament even before the expiration of that time.

Effect of the proclamation of emergency

Effects of national emergency

The establishment of national emergencies has an effect both on people’s interests and on the
sovereignty of states:

1. The key consequence is that the constitution’s style of federalism becomes unitary. The
Centre’s powers are increasing and the Parliament assumes authority, except in the fields
alluded to in the State List, to make legislation for the whole country or part thereof.

2. The Government of India is willing to provide orders to the countries about how to
exercise their executive authority.

3. The Lok Sabha will prolong the tenure by one year at a time during an emergency era.
But the same could be expanded beyond 6 months after the expiration of the
proclamation. It is possible to prolong the term of state legislatures in the same way.

4. The President is allowed during an emergency to change the laws on the allocation
between the Union and the States of wealth.
 5. Under Article 19, human rights shall immediately be revoked and this restriction shall
extend until the conclusion of the emergency.
But according to the 44th amendment only in case of a declaration on the grounds of war or
external invasion, liberties specified under Article 19 can be restricted. Everything becomes clear
from the debate above that emergencies not only suspend the sovereignty of the States but also
make the federal system of India unitary. It remains important because of its comprehensive
powers to deal with these irregular circumstances for the Union Government.

Effect of state emergency

The emergency declaration triggered by the dissolution of a state’s legislative machinery has the
beneficial specifications:

1. The President may take over all or any of the positions of the State Government or can
appoint the Governor or any other administrative authority for all or any of these roles.

2. The President is allowed to dissolve or terminate the State Legislative Assembly. On

behalf of the Government Legislature, he will authorize Parliament to enact laws.

3. To give effect to the intent of the declaration, the President may make any more adverse
or subsequent clause appropriate.

Effects of financial emergency

A financial emergency declaration could have the following implications:

1. The government of the Union may provide guidance in economic affairs to all the other
States.

2. The President can recommend that the States minimize the wages and benefits of any or
all levels of the government officials.

3. After the State Legislature has approved them, the President can order States to allocate
all the money bills for Parliamentarians attention.

4. The President may provide instruction to the national government personnel, including
supreme court judges and the high courts, to reduce their pay and compensation.
Effects of the proclamation of emergency on the fundamental rights

 State laws will be overridden by federal law and the Union is allowed to control the areas
(such as policing) that are usually transferred to States.

 The Union is therefore authorized to take over or even directly manage the mechanisms
of fiscal and fiscal revenue. The Union is entitled to make definitive decisions in the
enactment by the State legislature of financial actions in the case of financial crises.

 Any or more basic rights enshrined in Section III (articles 12 to 35) of the Constitutional
may be suspended by the Union – that may contain:

 freedom to practice any profession, occupation, trade, or business;

 freedom to assemble peacefully;

 freedom of equality before the law;

 freedom for movement across Indian territory;

 freedom to practice or propagate religion;

 freedom of speech and expression.

 Furthermore, it might be possible to revoke the ability to appeal the infringement of the
privileges alluded to above (the right to constitutional remedies). However, the
infringement of Articles 20 and 21 governing individual liberty, the right to secrecy,
protection from dual-threat, and protection from illegitimate prosecution and detention
will not be included under those provisions. Any person who believes that his/her rights
under those same categories are unfairly suspended may appeal a court of law
revocation.

 The Union can intend to revoke the constitutional role of a state parliamentary assembly
for a duration of six months and enforce federal legislation. This suspension status can
be extended at the end of this term (indefinitely several times) under parliamentary
elections until the Indian Electoral Commission certifies that free and equal elections in
the state are feasible to reinstate parliamentary elections.
  The House of Parliament can, however, enact every order for the above-mentioned
consequences as quickly as possible after the order is made.

Judicial Interpretation Of Validity Of Suspension Of FR

 Suspension of article 19- Makhan Singh Vs. State of Punjab

“Article 358 makes it clear that things done or omitted to be done during an emergency could not
be challenged even after the emergency was over. In other words, the suspension of art.19 was
complete during the period in question, and legislative and executive action which contravened
art.19 could not be questioned even after the emergency was over.”

Suspension of Article.20,21 A.D.M. Jabalpur Vs. shivkant shukla

“The President issued orders under the Constitution of India, art. 359(1) suspending the right of
any person to move any court for enforcement of fundamental rights under arts. 14, 21 and 22,
and 19 for the duration of the emergency. Following this declaration, hundreds of persons were
arrested and detained all over the country under the swoop of the Maintenance of Internal
Security Act, 1971 Various persons detained under Maintenance of Internal Security Act, 1971, s.
3(1) filed petitions in different high courts for the issue of the writ of habeas corpus.”

“The high courts broadly took the view that the detention may be challenged on the grounds of
ultra vires, rejecting the preliminary objection of the government. Aggrieved by this the
government filed appeals, some under certificates granted by high courts and some under special
leave granted by the Supreme Court. Despite every high court ruling in favour of the detenus. The
Supreme Court ruled in favour of the government. What the court except for Khanna, J. failed to
realise is that the right to personal life and liberty are human rights and is not a gift of the
Constitution.” Article 4 recognizes the right to life and personal freedom as an ineffable right in
emergency situations, even in the Universal Declaration on Civilian and Democratic Life.

 Suspension of art.14 and 16 Arjun Singh vs. State of Rajasthan

While it was not described in order that art 16 should also be stopped, the Rajasthan high court
held that Article 16 was still operational even though article 14 had been terminated. The court
stressed that only those fundamental rights had been terminated in accordance with Article 359 as
specifically and explicitly specified in the presidential order.

 Judgment and condition of art.356 S.R. Bommai Vs Union of India

“The landmark case of S. R. Bommai v. Union of India, in the history of the Indian Constitution has
great implications in Center-State relations. It is in this case that the Supreme Court boldly marked
out the limitations within which Article 356 has to function. The Supreme Court of India in its
judgment in the case said that it is well settled that Article 356 is an extreme power and is to be
used as the last method in cases where it is manifest that the constitutional machinery in a State
has collapsed. The views expressed by the bench in the case are similar to the concern shown by
the Sarkaria Commission.”

What are the observations of judges on Article 356 of the Constitution of India In this case, the
bench noted that the authority bestowed on the President by Article 356 is a conditional force. It’s
not a complete force. The requirement that materials are present, including or including the
Governor’s paper, is a prerequisite. The enjoyment of related materials must be defined and
reasonable.

Similarly, the President has the authority to be exerted in Article 356 of the Constitution only if the
President is convinced that a condition exists in which a State’s administration cannot be operated
in compliance with Constitutional requirements. According to our Constitution, the Council of
Ministers of the Union with the Prime Minister to his head is essentially the control.” The happiness
envisaged in the essay is intangible. The subjective pleasure can therefore be challenged at the
court of law whether it is founded on intent.

The Governor may only proclaim an emergency if the two Houses of Parliament have authorized it
according to paragraph 3 of Article 356 not just before. The President may only suspend the
Legislative Assembly until such consent by withdrawing the constitutional provisions pertaining to
the Legislative Assembly in compliance with subsection (c) of clause (1). However, only as required
for accomplishing the organizational aim of the Declaration the termination of the National
Assembly can be enforced.
In Article 35, Clause (3) lapses at the close of the two-month period and, in that case, the rejected
government revives in the event of a rejection or disapproval from both Houses of the Parliament
of the declaration. The Legislative Assembly also reactivates whatever could have been
discontinued. Likewise, the actions, orders, and regulations adopted during the two-month span
do not, in the same manner, become unconstitutional or invalid as the declaration falls.

In the case of the ratification of the Proclamation by both Houses in two months, the terminated
Government will eventually not restore the declaration or removal until the expiration of the
commencement era. The Legislative Assembly shall not, likewise, resume after the expiration of the
time of declaration or its revocation, until the Legislative assembly was dissolved after ratification
under clause (3).

The court’s most significant argument in the case is that Article 74(2) merely forbids an inquiry
about whether or not the negotiators give the Chairman their guidance. It does not preclude the
Tribunal from asking the Council of Ministers of the Union (Union of India) to reveal the
information around which the President had satisfied himself.

The information on which advice is offered is not included in the advice. Even if the content is
discussed by the President despite showing to him, it does not share the recommendation
personality. “The Proof Act’s articles 74(2) and 123 protect numerous areas. The Minister or official
involved can demand right pursuant to Article 123 during the protection of the declaration. In
compliance with the rules of Section 123, where such right is asserted it will be determined on
one’s own criteria.”

Fundamental rights vs. emergency

 War emergency

When the President is convinced that a real emergency occurs whereby war, external invasion, or
armoured insurrection threatens India’s or indeed any part of its territories, he may declare a state
of exception within Article 352.
  Constitutional emergency in the states

If the President is pleased by the receiving of a letter from the Gouverneur and that therefore the
Government of a State is not permitted to show an emergency in compliance with
the constitutional provisions.

 Suspension of fundamental rights

“During the period of emergency, as declared under either of the two categories discussed above,
the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the
Constitution. The term ‘State’ is used here in the same sense in which it has been used in the
Chapter on Fundamental Rights. It means that the power to suspend the operation of these
Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in
subordinate authority. Further, the Constitution empowers the President to suspend the right to
move any court of law for the enforcement of any of the Fundamental Rights. It means that
virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the
emergency.”

Such a directive must, nevertheless, be sent to Parliament for its acceptance as quickly as possible.
The restriction of human rights in the case of an emergency can indeed be prohibited in any
situation, though, in the event of Articles 20 and 21. It would have been an error to handle human
rights as if a balance had to be established regarding human rights and other protection and
sustainability priorities.

According to Kofi Anna human rights initiatives, both for our spiritual status and for the realistic
use of our action – moral rights, which are made legitimate by the Constitution, are basic rights.
These basic human protections are rights in the best way. Their civil and constitutional privileges
are different since they cannot be constrained by common usefulness.

The basic nature of these privileges is that they’ve been promised to protect the integrity of a
person even though the majority is doing worse. Invasion of these rights means that a man is not
regarded as a man. This is an incredibly serious issue. This is a serious inequality and the increased
government reform expense or the effectiveness required to avoid it is worth the money.
Changes Made By 44th Amendment

Origin and background

“An emergency proclamation seems to be a very serious issue since it infuriates the normal
structure of the Constitution and negatively impacts individual freedom. Consequently, such a
declaration should only be issued in exceptional conditions and not simply to keep an
unsympathetic governing party from its office. In June 1975, an emergency in connection with
internal disturbance was proclaimed without sufficient justification.” This was done by the
Commission. The 1975 declaration was based on internal disturbances, which were the most
problematic because there was a widespread violation of basic rights for the people.

Many people are placed without justification in pre-trial detention. The 44th amending act on the
emergency constitutional provisions, therefore, made it even more difficult, if not extremely
difficult, to re-examine the circumstance 1975 in light of those amendments.

The forty-fourth amendment

The 44th amendment considerably changed the Constitution’s emergency provisions so that the
executive did not harm it as Mrs. Indira Gandhi did in 1975. It also re-established some changes
made by the 42nd amendment. In this amendment, there are key elements:

 The “armed rebellion” as defined in Art 352, replaced the internal disturbance.

 The Cabinet shall inform the Cabinet in written work of the decision to declare an
emergency.

 Houses shall be issued an emergency declaration within such a month.

 The residences should be re-approved every six months to proceed with the urgent
situation.

 The urgency can be annulled by a simple majority of the houses present and voting in
this regard by adopting settlement. Such a resolution may be moved by one-10 house
members.
  Article 358 provides that only war and external violence and not armed insurrection shall
be put in abeyance by Article 19. In addition, any statute that contradicts Article 19
needs to repeat the relation with Article 358. If they break Article 19, some other laws
can also be questioned.

 Article 359, stipulates that the freedom to transfer courts shall not be revoked unless
they have violated Section III, but Articles 20 and 21 will not be included.

 Brought back from 6 to 5 years the term Lok Sabha.

Proclamation under Article 352

Article 352(1) stipulates that if a President is pleased with danger to the protection of Srilanka or
any part respectively, he or she will perform an emergency decree. Here, however, it has
sometimes been asked whether another President’s happiness is fair or not.

In this respect, the Supreme Court has held that it was a political issue and not a legal concern in
the case of Bhut Nather v. State of West Bengal. The 38th amendment to the Constitution attached
to Article 352, in order to make the position more clear, to Article 352, clause 5, which states that
the President’s ‘fulfillment’’ as alluded to in Article 352(1) and (3) means ‘final and definitive’ and
that “no court of law can question.” However, the 44th amendment to Article 352(5), later added
by the 38th constitutional amendment, repealed the misuse of those competencies during the
1975 emergency later after Democratic governance.

It is then the Supreme Court that needs to determine, as a final, non-justiciable, or for such
purposes as a matter of judicial review, whether to treat the President’s ‘fulfillment’ by issuing or
amending an immediate declaration.

It should also be pointed out here that throughout the case of Minerva Mills, Judge Bhagwati
claimed that it can not be ruled out in the scope of judicial review if his precedence proclamation
an emergency in compliance with Article 352 extended his judgment or behaving outside his
jurisdiction or acting arbitrarily in declaring an emergency.
Proclamation under Article 356

The susceptibility to judicial scrutiny of the declaration in compliance with Article 356 is beyond
doubt because powers are conditional upon Article 356(1). The Person is empowered to
investigate whether the provision has been met in its exercise of the right of judicial review. In fact,
the debate is over the nature and degree of judicial review.

It is evident from the choices made in the case of Rajasthan state v. Union of India and the case of
Bommai that a uniform law cannot apply in all the cases and is bound to differ based on the issue,
the essence of the right as well as other variables.

However, the nature of pleasure will still be doubted if it is conceivable on the premises that it is
‘mala fides’ or found on the completely alien and meaningless ground. “In the Supreme Court
decision in the State of Madhya Pradesh v. Bharat Singh, the importance of judicial review in the
matter protected by Article 356 is also stressed because, at this time, only the declaration was in
effect, it was not prohibited from enacting a law that had been enacted before an Emergency
Proclamation, as extremely contrary to the constitution.”

A judgment of seven judges of the Constitutional Bench of the Supreme Court dismissed the
petition by a majority verdict and stated that the center’s move to settle the three sittings under
Article 356 was constitutionally legitimate, according to Article 356(1) first tackled in Rajasthan
state v. Union of India. The Supreme Court rejected this petition by a unanimous decision.

The High Tribunal dwells thoroughly on its authority to recognize the legitimacy of the President’s
Emergency Declaration in the Minerva Mills and other cases c. Union of India and others. In this
case, the Court noted among others that, only because it deals with political questions, it really
does not fail to exercise its constitutional obligation. At the very same level, it should limit itself to
investigating the details and conditions of presidential satisfactory involvement in the case of an
emergency or whether the legislative provisions of Article 352 were respected in a decree
declaration.

Thereby we can infer confidently that the Presidential Proclamation is subject to judicial review,
albeit limited, in compliance with Article 356. A key feature of the background of the Indian
Constitution was perhaps the most recent case which determined the degree to which the
President placed the ‘Presidential law’ on the Declaration and strengthened the legal situation
surrounding the President’s subjective satisfaction.

The Supreme Court here boldly defined the framework and limits in which Article 356 was to
operate. It is very evident, following the verdict in the SR-Bommai case of the Supreme Court, that
Article 356 has an absurdity in control, and should be enforced as the final solution when it is
obvious that a state’s unsolvable problem and democratic structure has failed” said Soli Sorabjee,
eminent jurist and former Attorney General of India.

Conclusion

It is clear to see, after grappling with all procedural requirements, what the objective was to create
those stipulations usable first and foremost in the Constitution. However, although we did our
analysis for the same reason, we did note that even though the laws on national security and
citizen’s welfare are accounted for in these regions, the regulations alone give the Executive a lot
of dramatic latitudes.

It primarily impacts the nation’s territorial system and makes it majoritarian, thus seeking to defend
the needs of the community and the individual. While recognizing the need for it, we agree that a
check-and-balance mechanism can also be placed in place such that, unlike the 1975 emergency,
the governing party and the executive cannot abuse authority.

While the revocation of human rights has repeatedly been justified, we agree that they are
fundamental to people’s very lives in a democracy. We have found in our analysis since the 44th
Amendment to the Constitution provides that there are always ways to unjustly breach
fundamental rights in emergencies notwithstanding the protective provisions that were added
during this analysis.

As some other federal constitutions, such as Canada and Australia, provide for the courts to decide
on the degree to which the center can extend its authority, so it will serve as the consolidated
framework for confirming the unconstitutional use of discretionary powers accessible to the
executive and legislative branches in compliance with emergency provisions.