Power and Functions of the President

The Constitution says that the “executive power of the Union shall be vested in the President” [Art. 53]. The President of India shall thus be the head of the ‘executive power1 of the Union. Before we take up an analysis of the different powers of the Indian President, we should note the constitutional Limitations under which he is to exercise his executive powers. After 44th Amendment, except in certain marginal cases referred to by the Supreme Court the President shall have no power to act in his discretion any case. He must act according to the advice given to him by the Council of Ministers, headed by the Prime Ministers, so that refusal to act according to such advice will render him liable to impeachment for violation of the Constitution. This is subject to the President’s new power to send the advance received from the Council of Ministers, in a particular case, back to them for their reconsiderations; and if the Council of Ministers adhere to their previous advice, The President shall have no option but to act in accordance with such advice. The power to return for reconsideration can be exercised only once, on the same matter. It may be said, accordingly, that the powers of the President will be the powers of his Ministers, in the same manner as the prerogatives of the English Crown have become the ‘privileges of the people’ (Dicey)11 An inquiry into the powers of the Union Government, therefore, presupposes an inquiry into the provision of the Constitution which vest powers and functions in the President. The various powers that are included within the comprehensive expression ‘executive power’ in a modern State have been classified by political scientists under the following heads : (a) Administrative power, i.e., the execution of the laws and the administration of the departments of government.

  • Military power, i.e. the command of the armed forces and the conduct of war.
  • Legislative power, i.e. the summoning, prorogation, etc. of the Legislature, initiation of and assent to legislation
  • Judicial power, i.e., granting of pardons, reprieves, etc. to persons convicted of crime.

The Indian Constitution, by its various provisions, vests power in the hands of the President under each of these heads, subject to the limitations just mentioned.

EXECUTIVE POWERS OF PRESIDENT OF INDIA

The executive power of the Union is vested in the President. The executive power does not only mean the execution of laws passed by the legislative but also the powers to carry on the business of the Government, However, it is evident that President is not free to use his powers, rather he acts (binding) on the advises of the Council of Ministers. In this regard the 42nd Amendment is a mile-stone. The 44th Amendment, however, did loosen the grip to some extent as it gave the President of India the right to return a bill for reconsideration of the Cabinet and is bound to give his consent when returned. In broad perspective, one can say that administrative powers of the President include

administrative powers and military powers. Administratively, the President may not discharge any function as there are ministries responsible for such an act. This way President becomes a formal head and action is taken in his name. In the matter of administration, not being a real head of the Executive like the American President, the Indian President shall not have any administrative function to discharge nor shall he have that power of control and supervision over the Departments of the Government as the American President possesses. But though the various departments of Government of the Union will be carried on under the control and responsibility of the respective Ministers in charge, the President will remain the formal head of administration, and as such, all executive action of the Union must be expressed to be taken in the name of the President. The only mode of ascertaining whether an order or instrument is made by the Government of India will be to see whether it is expressed in the name of the President and authenticated in such manner as may be prescribed by rules to be made by the President [Art. 77]
The administrative power of President also includes the power to appoint and remove the high dignitaries of the State. Under our Constitution, the President shall have the power to appoint – (i) The Prime Minister of India, (ii) Other Ministers of the Union, (iii) The Attorney – General for India, (iv) The Comptroller and Auditor General of India, (v) The judges of the Supreme Court, (vi) The judges of the High Courts of the States, (vii) The Governor of a State (viii) A commission to investigate interference with water-supplies . (ix) The Finance Commission, (x) The Union Public Service Commission and joint Commissions for a group of States, (xi) the Chief Election Commissioner and other members of the Election Commission (xii) A Special Officer for the Schedule Castes and Tribes, (xiii) A Commission to report on the administration of Scheduled Areas, (xiv) A Commission to investigate into the condition of backward classes (xv) A Commission on Official Language (xvi) Special Officer for linguistic minorities.

For the same reason, all contacts and assurance of proper made on behalf of the Government of India must be expressed to be made by the President and executed in such manner as the President may direct or authorise [Art. 299]. Again, though he may not be the ‘real’ head of the administration, all officers of the Union shall be his ‘subordinate’ [Art. 53(1)] and he shall have a right to be informed of the affairs of the Union. [Art. 78(b)]. In making some of the appointments, the President is required by the Constitution to consult persons other than his ministers as well. Thus, in appointing the Judges of the Supreme Court the president shall consult the Chief Justice as he may deem necessary [Art. 124(2)]. These conditions will be referred to in the proper places, in connection with the different offices. The President shall also have the power to remove (i) his Ministers, individually; (ii) the Attorney-General for India; (iii) the Governor of a State; (iv) the Chairman or a member of the Public Service Commission of the Union or of a State, on the report of the Supreme Court; (v) a judge of the Supreme Court or of a High Court or the Election Commissioner, on an address of Parliament.

LEGISLATIVE POWERS OF PRESIDENT OF INDIA

With regard to the legislative powers of the President, the Constitution of India is largely different from the American Constitution. The separating line of executive and legislation is not as strong as in case of the U.S.A. In India, President is both Executive Head and also the part of legislature. The President has power to summon and prorogue Parliament. He can also dissolve the Lok Sabha (refer 1991) before the expiry of five year term. The President also enjoys the power to summon a joint sitting of both House of Parliament in case of difference between the two. The President also addresses the opening session of a newly elected Parliament. He can also address it jointly in between. The President also enjoys the power to nominate certain member of the Parliament. In Rajya Sabha 12 members are nominated arid 2 members from Anglo-Indian communities are nominated to the Lok Sabha if the community has not been adequately represented in his opinion in the House. Certain Bills do require a previous sanction of the President like money bill, the bill involving expenditure from C.F.I., bill for the formation of a new state, bill relating to language, and the bill affecting the taxation of state. The bill passed by the parliament cannot become an Act before it has president’s assent. He can, after his comments, return the bill limited in case of money bill. Thus we may summarise it as follows:

(a) Summoning, Prorogation, Dissolution

Like the English Crown our President shall have the power to summon or prorogue the Houses of Parliament and to dissolve the lower House.12 He shall also have the power to summon a joint sitting of both Houses of Parliament in case of a deadlock between them. [Arts. 85, 108].

(b) The Opening Address

The President shall address both Houses of Parliament assembled together, at the first session after each general election to the House of the People and at the commencement of the first session of each year, and “inform Parliament of the causes of its summons” [Art. 87]. The practice during the last four decades shows that the President’s Opening Address is being used for purposes similar to those for which the ‘Speech from the Throne’ is used in England viz. To announce the programme of the Cabinet for the session and to raise debate as to the political outlook and matters of general policy or administration. Each House is empowered by the Constitution to make rules for allotting time “for discussion of the matters referred to in such address and for the precedence of such discussion over other business of the House.”

(c) The Right to Address and to send Messages

Besides the right to address a joint sitting of both Houses at the commencement of the first session, the President shall also have the right to address either House or their joint sitting, at any time, and to require the attendance of members for this purpose [Art. 86(1)] This right is no doubt borrowed from the English Constitution, but there it is not exercised by the Crown except on ceremonial occasions. Apart from the right to address, the Indian President shall have the right to send messages to either House of Parliament either in regard to any pending Bill or to any other matter, and the House must then consider the message “with all convenient despatch” [Art. 86(2)]. Since the time of George III, the English Crown has ceased to take any part in legislation or to influence it and messages are now sent only on formal matters. The American President, on the other hand, possesses the right to recommend legislative measures to Congress by messages thought Congress is not bound to accept them. The Indian President shall have the power to send messages not only on legislative matters but also ‘otherwise’. Since the head of the Indian Executive is represented in Parliament by his Ministers, the power given to the President to send message regarding legislation may appear to be superfluous, unless the President has the freedom to send message differing from the Ministerial policy, in which case again it will open a door for friction between the President and the Cabinet. It is to be noted that during the first forty-six years of the working of our Constitution, the President has not sent any message to Parliament nor addressed it on any occasion other than after each general election and at the opening of the first session each year.

(d) Nominating Members to the Houses

Though the main composition of the two Houses of Parliament is elective, either direct or indirect, the President has been given the power to nominate certain members to both the Houses upon the supposition that adequate representation of certain interests will not be possible through the competitive system of election. Thus, (i) In the Council of States, 12 members are to be nominated by the President from persons having special knowledge or practical experience of literature, science, art and social service [Art. 80(1)]. (ii) The President is also empowered to nominate not more than two members to the House of the People from the Anglo-Indian community, if he is of opinion that the Anglo-Indian community is not adequately represented in that House [Art. 331].

(e) Laying Reports, etc., before Parliament
The President is brought into contact with Parliament also through his power and study to cause certain reports and statements to be laid before Parliament, so that Parliament may have the opportunity of taking action upon them. Thus, it is the duty of the President to cause to be laid before Parliament – (a) the Annual Financial Statement (Budget) and the Supplementary Statement, if any, (b) the report of the Auditor-General relating to the accounts of the Government of India; (c) the recommendations made by the Finance Commission, together with an explanatory memorandum of the action taken thereon; (d) the report of the Union Public Service Commission, explaining the reasons where any advice of the Commission has not been accepted; (e) the report of the Special Officer for Scheduled Castes and Tribes; (f) the report of the Commission on backward classes; (g) the report of the Special Officer for linguistic minorities.
(f) Previous sanction to legislation
The Constitution requires the previous sanction or recommendation of the President for introducing legislation on some matters, though, of course, the Courts are debarred from invalidating any legislation on the ground that the previous sanction was not obtained, where the President has eventually assented to the legislation [Art. 255]. These matters are: (i) A Bill for the formation of new States or the alteration of boundaries etc., of existing States [Art.3]. The exclusive power of recommending such legislation is given to the President in order to enable him to obtain the views of the affected States before initiating such legislation.
(g) Assent to legislation and Veto
A Bill will not be an Act of the Indian Parliament unless and until it receives the assent of the President. When a Bill is presented to the President, after its passage in both Houses of Parliament, the President shall be entitled to take any of the following three steps.

  • He may declare his assent to the Bill; or
  • He may declare that he withholds his assent to the Bill; or
  • He may, in the case of Bills other than Money Bills, return the Bill for reconsideration of the Houses, with or without a message suggesting amendments. A Money Bill cannot be returned for reconsideration

. In case of (iii), if the Bill is passed again by both Houses of Parliament with or without amendment and again presented to the President, it would be obligatory upon him to declare his assent to it [Art. 111]

 

NATURE OF THE VETO POWER

Generally speaking, the object of arming the Executive with this power is to prevent hasty and ill-considered action by the Legislature. But the necessity for such power is removed or at least lessened when the Executive itself initiates and conducts legislation or is responsible for legislation, as under the Parliamentary or Cabinet system of Government. As a matter of fact, though a theoretical power of veto is possessed by the Crown in England, it has never been used since the time of Queen Anne. Where, however, the Executive and the Legislature are separate and independent from each other, the Executive, not being itself responsible for the legislation, should properly have some control to prevent undesirable legislation. Thus, in the United States, the President’s power of veto has been supported on various grounds, such as (a) to enable the President to protect his own office from aggressive legislation; (b) to prevent a particular legislation from being placed on the statue book which the President considers to be unconstitutional (for thought the Supreme Court possesses the power to nullify a statue on the ground of unconstitutionally, it can exercise that power only in the case of clear violation of the Constitution, regardless of any question of policy, and only if a proper proceeding is brought before it after the statue comes into effect); (c) to check legislation which he deems to be practically inexpedient or, which he thinks does not represent the will of the American people. From the standpoint of effect on the legislation, executive vetos have been classified as absolute, qualified, suspensive and pocket vetos.

  • Absolute Veto. The English Crown possesses the prerogative of absolute veto, and if it refuses assent to any bill, it cannot become law, notwithstanding any vote of Parliament. But this veto power of the Crown has become obsolete since 1700, owing to the development of the Cabinet system, under which all public legislation is initiated and conducted in the legislature by the Cabinet, Judged by practice and usage, thus, there is at present no executive power of veto in England.
  • Qualified Veto. A veto is ‘qualified1 when it can be overridden by an extraordinary majority of the Legislature and the Bill can be enacted as law with such majority vote, overriding the executive veto. The veto of the American President is of this class. When a Bill is presented to the President, he may, if he does not assent to it, return the Bill within 10 days with a statement o of this objection, to that branch of Congress in which it originated. Each House of Congress then reconsiders the Bill and if it is adopted again in each House, by a two-thirds vote of the members present, – the Bill becomes a law, notwithstanding the absence of the President’s signature. The qualified veto is then overridden. But if it fails to obtain that two-thirds majority, the veto stands and the Bill fails to become law. In the result, the qualified veto serves as a means to the Executive to point out the defects of the legislation and to obtain a reconsideration by the Legislation but ultimately the extraordinary majority of the Legislature prevails. The qualified veto is thus a useful device in the United States where the Executive has no power of control over the Legislature, by prorogation, dissolution or otherwise.
  • Suspensive Veto. A veto is suspensive when the executive veto can be overridden by the Legislature by an ordinary majority. To this type belongs the veto power of the French President. If, upon a reconsideration, Parliament passes the Bill again by a simple majority, the President has no option but to promulgate it.
  • Pocket Veto. There is a fourth type of veto called the ‘pocket veto’ which is possessed by the American President. When a Bill is presented to him. He may neither sign the Bill nor return the Bill for reconsideration within 10 days. He may simply let the Bill lie on his desk until the ten-day limit has expired. But, if in the meantime, Congress has adjourned (i.e., before expiry of the period of ten days from presentation of the Bill to the President), the Bill fails to become a law. This method is known as the ‘pocket veto’, for, by simply withholding a Bill presented to the President during the last few days of the session of Congress the President can prevent the Bill to become law.
Disallowance of State legislation.

Besides the power to veto Union Legislation, the President of India shall also have the power of disallowance or return for reconsideration of a Bill of the State Legislature, which may have been reserved for his consideration by the Governor of the State [Art. 201]. Reservation of a State Bill for the assent of the President is a discretionary power15 of the Governor of a State. In the case of any Bill presented to the Governor for his assent after it has been

passed by both Houses of the Legislature of the State, the Governor may, instead of giving his assent or withholding his assent, reserve the Bill for the Consideration of the President.
JUDICIAL POWERS
The President enjoys judicial powers as well. He has the power to grant pardons, reprieves, suspension, remission or condonation of a punishment or sentence by court martial. The power of pardon of the President pertains to such offences that relate to violation of acts under the Union list. The President’s pardon could be sought for any death sentence.
POWER OF ISSUING ORDINANCE (ART -123)

The President has a very strong position in the sense that he has the power of issuing ordinance. In case there is a matter of urgency and a law is needed for a particular situation, the President can issue ordinance. The 38th Amendment in this regard is a mile stone in the sense that his assent is important. The 38th Amendment passed in July 1975 put beyond judicial scrutiny the “satisfaction” of the President in declaring emergency. The ordinance can be promulgated by the President when the House of Parliament are not in session. The ordinance will have the same effect of the law of the land.

 
EMERGENCY POWERS

The President also enjoy emergency power. This is important because in a federal structure the grip of the Union on the State is not so tight and hence the Constitution framers did provide for the exigencies which may require a tight grip of the Union on the State. Emergency can be declared due to external aggression or armed rebellion or internal disturbance. President of India enjoys nominal power as he basically acts on the advices of the Council of Minister. The extraordinary powers of the President are of three kinds : (a) Firstly, the President is given the power to make a “Proclamation of Emergency” on the ground of threat to the security of India or any part thereof, by war, external aggression or armed rebellion.23 The Object of this Proclamation is to maintain the security of India and its effect is, inter alia, assumption of wider control by the Union over the affairs of the States or any of them as may be affected by armed rebellion or external aggression. (b) Secondly, the President is empowered to make a Proclamation that the Government of a Sate cannot be carried on in accordance with the provisions of the Constitution. The break-down of the constitutional machinery may take place either as a result of a political deadlock or the failure by a State to carry out the directions of the Union [Arts. 356, 365]. By means of a Proclamation of this kind, the president may assume to himself any of the governmental powers of the State and to Parliament the powers of the Legislature of the State. (c) Thirdly, the president is empowered to declare that a situation has arisen whereby “the financial stability or credit of India or of any part thereof is threatened” [Art. 360]. The object of such Proclamation is to maintain the financial stability of India by controlling the expenditure of the States and by reducing the salaries of the public servants, and by giving directions to the States to observe canons of financial propriety, as may be necessary.

National Emergency (Article 352) Grounds of Declaration

Under Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. It may be noted that the president can declare a national emer¬gency even before the actual occurrence of war or external aggression or armed rebellion, if he is

satisfied that there is an imminent danger. The President can also issue different proc¬lamations on grounds of war, external aggres¬sion, armed rebellion, or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation. This provision was added by the 38th Amendment Act of 1975. When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’. The President, however, can proclaim a na¬tional emergency only after receiving a written recommendation from the cabinet. This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the
A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42nd Amendment Act of 1976 enabled the president to limit the opera¬tion of a National Emergency to a specified part of India. Originally, the Constitution mentioned ‘in¬ternal disturbance’ as the third ground for the proclamation of a National Emergency, but the expression was too vague and had a wider con¬notation. Hence, the 44th Amendment Act of 1978 substituted the word ‘armed rebellion’ for ‘internal disturbance’. Thus, it is no longer possible to declare a National Emergency on the ground of ‘internal disturbance’ as was done in 1975 by the Congress government headed by Indira Gandhi.

advice of the prime minister. In 1975, the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet. The cabinet was in¬formed of the proclamation after it was made, as a fait accompli. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone tak¬ing a decision in this regard. The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44th Amend¬ment Act of 1978. Further, in the Minerva Mills case4, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

Parliamentary Approval and Duration

The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue. Originally, the period allowed for approval by the Parliament was two months, but was reduced by the 44th Amendment Act of 1978. How¬ever, if the proclamation of emergency is is¬sued at a time when the Lok Sabha has dissolved or the dissolution of the Lok Sabha takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconsti¬tution, provided the Rajya Sabha has in the meantime approved it. If approved by both the Houses of Parlia¬ment, the emergency continues for six months. and can be extended to an indefinite period with an approval of the Parliament for every six months. This provision for periodical par¬liamentary approval was also added by the 44th Amendment Act of 1978. Before that, the emer¬gency, once approved by the Parliament, could remain in operation as long as the Executive (cabinet) desired. However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance of Emergency, then the proclama¬tion survives until 30 days from the first sit¬ting of the Lok Sabha after its reconstitution. provided the Rajya Sabha has in the mean¬time approved its continuation. Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special ma¬jority, that is, (a) a majority of the total mem¬bership of that house, and (b) a majority of not less than two-thirds of the members of that house present and voting. This special major¬ity provision was introduced by the 44th Amendment Act of 1978. Previously, such resolution could be passed by a simple majority of the Parliament.

Revocation of Proclamation

A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. Further, the President must revoke a procla¬mation if the Lok Sabha passes a resolution

disapproving its continuation. Again, this safe¬guard was introduced by the 44th Amendment Act of 1978. Before the amendment, a procla¬mation could be revoked by the president on his own and the Lok Sabha had no control in this regard. The 44th Amendment Act of 1978 also pro¬vided that, where one-tenth of the total num¬ber of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session), a special sitting of the House should be held within 14 days for the purpose of considering a resolution disap¬proving the continuation of the proclamation.
Effect on the Centre-state Relations
A resolution of disapproval is different from a resolution approving the continuation of a proclamation in the following two respects:

  • The first one is required to be passed by the Lok Sabha only, while the second one needs to be passed by the both Houses of Parliament.
  • The first one is to be adopted by a simple majority only, while the second one needs to be adopted by a special majority.

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

(a) Executive During a national emer¬gency, the executive power of the Centre ex¬tends to directing any state regarding the manner in which its executive power is to be exercised. In normal times, the Centre can give executive directions to a state only on certain specified matters. However, during a national emergency, the Centre becomes entitled to give executive directions to a state on ‘any’ matter. Thus, the state governments are brought under the complete control of the Centre, though they are not suspended.

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

(C) Financial- While a proclamation of national emergency is in operation, the President can modify the constitutional distribution of revenues between the centre and the states. This means that the president can either reduce or cancel the transfer of finances from Centre to the states. Such modification continues till the end of the financial year in which the Emer¬gency ceases to operate. Also, every such or¬der of the President has to be laid before both the Houses of Parliament.

Effect of the life of Lok Sabha and State Assembly

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

Effect on the Fundamental Rights

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

Suspension of Fundamental Rights under Article 19

According to Article 358, when a proclamation of national emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required. While a proclamation of national emergency is in operation, the state is freed from the re¬strictions imposed by Article 19. In other words, the state can make any law or can take any executive action abridging or taking away the six Fundamental Rights guaranteed by Ar¬ticle 19. Any such law or executive action can¬not be challenged on the ground that they are inconsistent with the six Fundamental Rights guaranteed by Article 19. When the National Emergency ceases to operate, Article 19 auto¬matically revives and comes into force. Any law made during Emergency, to the extent of inconsistency with Article 19, ceases to have effect. However, no remedy lies for anything done during the Emergency even after the Emergency expires. This means that the legis¬lative and executive actions taken during the emergency cannot be challenged even after the Emergency ceases to operate. The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six Fundamental Rights under Article 19 can be suspended only when the National Emer¬gency is declared on the ground of war or ex¬ternal aggression and not on the ground of armed rebellion. Secondly, only those laws which are related with the Emergency are pro¬tected from being challenged and not other laws. Also, the executive action taken only un¬der such a law is protected.

Suspension of other Fundamen¬tal Rights: Article 359 authorizes the presi¬dent to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. This means that under Article 359, the Fundamental Rights as such are not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended. The suspension of enforcement relates to only those fundamental rights that are specified in the Presidential Order. Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may ex¬1end to the whole or any part of the country. It should be laid before each House of Parlia¬ment for approval. While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the speci¬fied Fundamental Rights. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the speci¬fied Fundamental Rights. When the Order ceases to operate, any law so made, to the ex¬tent of inconsistency with the specified Funda¬mental Rights, ceases to have effect. But no remedy lies for anything done during the op¬eration of the order even after the order ceases to operate. This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires. The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection in respect of con¬viction for offences (Article 20) and the right to life and persona11iberty (Article 21) remain enforceable even during emergency. Secondly, only those laws which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

Distinction between Articles 358 and 359

The differences between Articles 358 and 359 can be summarised as follows: Article 358 is confined to Fundamental Rights under Article 19 only whereas Ar¬ticle 359 extends to all those Fundamental Rights whose enforcement is sus¬pended by the Presidential Order. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not au¬tomatically suspend any any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.

Article 358 operates only in case of Ex¬ternal Emergency (that is, when the emer¬gency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period. Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it. Article 358 suspends Article 19 com¬pletely while Article 359 does not em¬power the suspension of the enforcement of Articles 20 and 21. Article 358 enables the State to make any law or take any executive action incon¬sistent with Fundamental Rights under Ar¬ticle 19 while Article 359 enables the State to make any law or take any execu¬tive action inconsistent with those Fun¬damental Rights whose enforcement is suspended by the Presidential Order. There is also a similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. Also, the executive action taken only under such a law is protected by both.
President’s Rule : Grounds of Imposition
Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. It is this duty in the per¬formance of which the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in state. This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Con¬stitutional Emergency’.
Declarations Made So Far

This type of Emergency has been proclaimed three times so far-in 1962, 1971 and 1975. The first proclamation of National Emer¬gency was issued in October 1962 on account of Chinese aggression in the NEF A (North¬East Frontier Agency-now Arunachal Pradesh), and was in force till January 1968. Hence, a fresh proclamation was not needed at the time of war against Pakistan in 1965. The second proclamation of national emer¬gency was made in December 1971 in the wake of attack by Pakistan. Even when this Emer¬gency was in operation, a third proclamation of National Emergency was made in June 1975. Both the second and third proclamations were revoked in March 1977. The first two proclamations (1962 and 1971) were made on the ground of ‘external aggres¬sion’, while the third proclamation (1975) was made on the ground of ‘internal disturbance’, that is, certain persons have been inciting the police and the armed forces against the dis¬charge of their duties and their normal functioning. The Emergency declared in 1975 (internal emergency) proved to be the most controver¬sial. There was widespread criticism of the mis¬use of Emergency powers. In the elections held to the Lok Sabha in 1977 after the Emergency, the Congress Party led by Indira Gandhi lost and the Janta Party came to power. This gov¬ernment appointed the Shah Commission to investigate the circumstances that warranted the declaration of an Emergency in 1975. The com-mission did not justify the declaration of the Emergency. Hence, the 44th Amendment Act was enacted in 1978 to introduce a number of safeguards against the misuse of Emergency provisions.

The President’s Rule can be proclaimed under Article 356 on two grounds-one men¬tioned in Article 356 itself and another in Article 365: Article 356 empowers the President to issue a proclamation, if he is satisfied that a situation has arisen in which the gov¬ernment of a state cannot be carried• on in accordance with the provisions of the Constitution. Notably, the president can act either on a report of the governor of the state or otherwise too (ie, even with¬out the governor’s report). Article 365 says that whenever a state fails to comply with or to give effect to any direction from the Centre, it will be lawful for the president to hold that a situation has arisen in which the govern¬ment of the state cannot be carried on accordance with the provisions of the Constitution.

Parliamentary Approval and Duration

A proclamation imposing President’s Rule must be approved by both the Houses of Parliament. within two months from the date of its issue. However, if the proclamation of Presidents Rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the mean time. If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum -‘ period of three years with the approval of the Parliament, every six months. However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuation of the President’s Rule, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved its continuance. Every resolution approving the proclamation of President’s Rule or its continuation can be passed by either House of Parliament only by a simple majority, that is, a majority of the 8lembers of that House present and voting. The 44th Amendment Act of 1978 intro¬duced a new provision to put restraint on the power of Parliament to extend a proclamation of President’s Rule beyond one year. Thus, it provided that, beyond one year, the President’s Rule can be extended by six months at a time only when the following two conditions are fulfilled: a proclamation of National Emergency should be in operation in the whole of India, or in the whole or any part of the state; and the Election Commission must certify that the general elections to the legislative as-sembly of the concerned state cannot be held on account of difficulties. A proclamation of President’s Rule may be revoked by the President at any time by a sub¬sequent proclamation. Such a proclamation does not require the parliamentary approval.

Consequences of President’s Rule

  • The President acquires the following extraordinary powers when the President’s Rule is imposed in a state:
  • He can take up the functions of the. state government and powers vested in the governor or any other executive authority in the state.
  • He can declare that the powers of the state legislature are to be exercised by the Parliament.

He can take all other necessary steps in¬cluding the suspension of the constitu¬tional provisions relating to any body or authority in the state. Therefore, when the President’s Rule is im¬posed in a state, the President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. This is the reason why a proclamation under Article 356 is popularly known as the imposition of ‘President’s Rule’ in a state. Further, the Presi¬dent either suspends or dissolves the state leg¬islative assembly8. The Parliament passes the state legislative bills and the state budget. When the state legislature is thus suspended or dissolved:

  • the Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him in this regard,
  • the Parliament or in case of delegation, the President or any other specified au¬thority can make laws conferring powers and imposing duties on the Centre or its officers and authorities,
  • the President can authorise, when the Lok Sabha is not in session, expenditure from the state consolidated fund pending its sanction by the Parliament, and
  • the President can promulgate, when the Parliament is not in session, ordinances for the governance of the state.

A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule. This means that the period for which such a law remains in force is not co-terminous with the duration of the proclamation. But it can be repealed or altered or re-enacted by the state legislature. It should be noted here that the President cannot assume to himself the powers vested in the concerned state high court or suspend the provisions of the Constitution relating to it. In other words, the constitutional position, status, powers and functions of the concerned state high court remain same even during the President’s Rule.

COMPARING NATIONAL EMERGENCY AND PRESIDENT’S RULE

National Emergency (Article 352)President’s Rule (Article 356)

It can be proclaimed only when the security of India or a part of it is threatened by war, external aggression or armed rebellion. It can be proclaimed when the government of a state cannot be carried on in accordance with the provisions of the Constitution due to reasons which may not have any connection with war, external aggression or armed rebellion.
During its operation, the state executive and legislature continue to function and exercise the powers assigned to them under the Con¬stitution. Its effect is that the Centre gets con¬current powers of administration and legislation in the state During its operation, the state executive is dismissed and the state legislature is either suspended or dissolved. The president admin¬isters the state through the governor and the Parliament makes laws for the state. In brief: the executive and legislative powers of the state are assumed by the Centre.
Under this, the Parliament can make laws on the subjects enumerated in the State List only by itself, that is, it cannot delegate the same to any other body or authority. Under this, the Parliament can delegate the power to make laws for the state to the Presi¬dent or to any other authority specified by him. So far, the practice has been for the president to make laws for the state in con¬sultation with the members of Parliament of that state. Such laws are known as President’s’ Acts.
There is no maximum period prescribed for its operation. It can be continued indefinitely with the approval of Parliament for every six months There is a maximum period prescribed for its operation, that is, three years. Thereafter, it must come to an end and the normal constitutional machinery must be restored in state.
Under this, the relationship of the Centre with all the states undergoes a modification. Under this, the relationship of only the under emergency with the Centre under a modification.
Every resolution of Parliament approving its proclamation or its continuance must be passed by a special majority Every resolution of Parliament approving proclamation or its continuance can be only by a simple majority.
Lok Sabha can pass a resolution for its revo¬cation. It has no effect on Fundamental Rights of citizens. There is no such provision. It can be rev by the President only on his own.

Scope of Judicial Review The 38th Amendment Act of 1975 made the satisfaction of the President in invoking Ar¬ticle 356 final and conclusive which could not be challenged in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review. In Bommai case (1994), the following propo¬sitions have been laid down by the Supreme Court on imposition of President’s Rule in a state under Article 356:

  • The presidential proclamation imposing President’s Rule is subject to judicial re¬view.
  • The satisfaction of the President must be based on relevant material. The action of the president can be struck down by the court if it is based on irrelevant or extra¬neous grounds or if it was found to be malafide or perverse.
  • Burden lies on the Centre to prove that relevant material exist to justify the im¬position of the President’s Rule.
  • The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
  • If the court holds the presidential procla¬mation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legisla¬tive assembly if it was suspended or dis¬solved.
  • The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation. Until such approval is given, the presi¬dent can only suspend the assembly. In case the Parliament fails to approve the proclamation, the assembly would get re¬activated

.

  • Secularism is one of the ‘basic features’ of the Constitution. Hence, a state gov¬ernment pursuing anti-secular politics is liable to action under Article 356.
  • The question ofthe state government los¬ing the confidence of the legislative as¬sembly should be decided on the floor of the House and until that is done the min¬istry should not be unseated.
  • Where a new political party assumes power at the Centre, it will not have the authority to dismiss ministries formed by other parties in the states.
  • The power under Article 356 is an ex¬ceptional power and should be used only occasionally to meet the requirements of special situations.

Financial Emergency (Art. 360) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India of any part of it is threatened, he may declare a Financial Emergency under Art. 360 of the Constitution. Such a proclamation may be revolved by a subsequent proclamation. The proclamation has to be laid before each house of Parliament. It ceases to operate at the expiration of two months unless it is approved earlier by a resolution of both Houses of Parliament. The proclamation in this case also should be approved by Parliament as in the other two cases of emergency also continues for an indefinite period. Fortunately, this kinds of emergency has not been declared so far.

Effects of this proclamation (1) During the Financial Emergency, ‘the executive authority of the union shall extend to the giving of directions to any state to observe such canons of financial propriety as may be specified in the direction’ or any other directions which the President may deem necessary for the purpose. (2) The President can ask a State to reduce salaries and allowness of all or any class of public servants connected with the affairs of a state. (3) The President can give direction to a state to reserve all Money Bills for the consideration of the President after they have been passed by the State legislature. (4) The President shall be competent to issue directions for the reduction of salaries and allowances of all or any class or persons serving in connections with the affairs of the Union including the judges of the Supreme Court and the High Courts.

OTHER POWERS The President also enjoys the power of appointment and removal of high dignitaries of the State including Prime Minister. The President is the Commander -in-chief of Armed Forces and appoints Service Chiefs of Army, Navy and Air force. The exercise of his military powers, however, is regulated by laws made by Parliament. The President also has diplomatic powers as he appoints and receives ambassadors. The treaties with other countries are also signed in his name. 1. The President has the constitutional authority to make rules and regulations relating to various matters, such as, how his orders and instruments shall be authenticated; the paying into custody of and withdrawal of money from, the public accounts of India; the number of members of the Union Public Service Commission, their tenure and conditions of service; recruitment and conditions of service of persona serving the Union and the secretarial staff of Parliament; the prohibition of simultaneous membership of Parliament and of the Legislature of a State; the procedure relating to the joint sittings of the Houses of Parliament in consultation with the Chariman and the Speaker of the two Houses; the manner of enforcing the orders of the Supreme Court; the allocation among States of emoluments payable to a Governor appointed for two or more States; the discharge of the functions of a Governor in any contingency not provided for in the Constitution; specifying Scheduled Castes and Tribes; specifying matters on which it shall not be necessary for the Government of India to consult the Union Public Service Commission. 2. He has the power to give instructions to a Governor to promulgate an Ordinance if a Bill containing the same provisions requires the previous sanction of the President under the Constitution [Art. 213(1), Proviso]. 3. He has the power to refer any question of public important for the opinion of the Supreme Court and already eight such references have been made since 1950 [Art. 143]. 4. He has the power to appoint certain commission for the purpose of reporting on specific matters, such as, Commissions to report on the administration of Scheduled Areas and welfare of Scheduled Tribes and backward classes; the Finance Commission; Commission on Official Language; an Inter-State Council. 5. He has some special powers relating to ‘Union Territories’, or territories which are directly administered by the Union. Not only is the administration of such Territories to be carried on by the President through an Administrator, responsible to the President alone, but the President has the final legislative power (to make regulations) relating to the Andaman and Nicobar Islands; the Lakshadweep; Dadra and Nagar Haveli;22 and may even repeal or amend any law made by Parliament as may be applicable to such Territories [Art, 240]. 6. The President shall have certain special powers in respect of the administration of Scheduled Area and Tribes, and Tribal Area in Assam: (i) Subject to amendment by Parliament, the President shall have the power, by order, to declare an area, to be a Scheduled Area or declare that an area shall cease to be a Scheduled Area, alter the boundaries of Scheduled Areas, and the like [Fifth Sch., Para. 6]. . (ii) A Tribes Council may be established by the direction of the President in any State having Scheduled Areas and also in States having Scheduled Tribes therein but no Scheduled Areas [Fifth Sch., Para.4] (iii) All regulations made by the Governor of a State for the peace and good government of the Scheduled Areas of the State must be submitted forthwith to the President and until assented to by him, such regulations shall have no effect [Fifth Sch., Para. 5(4)]. (iv) The President may, at any time, require the Governor of a State to make a report regarding the administration of the Scheduled Areas in that State and give directions as to the administration of such Areas [Sch. V, Para. 3] (g) The President has certain special powers and responsibilities as regards Scheduled Castes and Tribes: (i) Subject to modification by Parliament, the President has the power to draw up and notify the lists of Scheduled Castes and Tribes in each State and Union Territory. Consolation with the Governor is required in the case of the list relating to a State. [Arts. 341-342]. (i) The President shall appoint a Special Officer to investigate and report on the working of the safeguards provided in the. Constitution for the Scheduled Castes and Tribes. [Art. 338]. (ii) The President may at any time and shall at the expiration of ten years from the commencement of the Constitution, appoint a Commission for the welfare of the Scheduled Tribes in the States [Art. 339].

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