Written Assignment On

CONSTITUTIONAL LAW-I

Submitted By:

Basant Kumar

LLB. (Hons.),Sem.-I (2016-2019)

Class Roll No. : 132

University Roll No. :..

Law College Dhanbad

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Table of Contents Page No.

1. Analyze the characteristics of the Indian constitution.................................... 2, 3 ,4

2. States the Power and position of the President of India 5 to 8

3. Explain emergency provisions under Indian constitution. 9 to 13

4. Bibliography 14

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1. Analyze the characteristics of the Indian constitution.

The Constitution of India is the supreme law of India. It is a living document, an instrument
which makes the government system work. It lays down the framework defining fundamental
political principles, establishes the structure, procedures, powers and duties of government
institutions and sets out fundamental rights, directive principles and the duties of citizens. It is
the longest written constitution of any sovereign country in the world,

Containing 449 articles in 25 parts, 12 schedules, 5 appendices and 101 Amendments.

Salient characteristics of the Indian Constitution

1. The lengthiest Constitution in the world

The Indian Constitution is the lengthiest and the most detailed of all the written Constitutions of
the world containing 449 articles in 25 parts, 12 schedules, 5 appendices and 101 Amendments.

2. Parliamentary form of Government

The constitution of India establishes a parliamentary form of a government both at the Centre
and the State. The essence of the parliamentary government is its responsibility to the
Legislature. The president

is the constitutional head of the State but the real executive power is vested in the council of
ministers whose head is the Prime Minister.

3. Unique blend of rigidity and flexibility

It has been the nature of the amending process itself in federations which had led political
scientists to classify federal Constitution as rigid.

4. Fundamental Rights

The incorporation of a formal declaration of Fundamental Rights in part III of the Constitution is
deemed to be a distinguishing feature of a democratic

State. These rights are prohibitions against the State. The State cannot make a law which takes
away or abridges any of the rights of the citizens guaranteed in part III of Constitution.

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5. Directive Principles of State policy (DPSP)

The Directive Principles of State Policy contained in Part IV of the Constitution, it set out the
aims and objectives to be taken up by the States in the governance of the country.

6. A federation with strong centralizing tendency

The most remarkable feature of the Indian Constitution is that being a federal Constitution it
acquires a unitary character during the time of emergency. During the proclamation of
emergency the normal distribution of powers between Centre and State undergoes a vital change.
The union parliament is empower to legislate on any subject mentioned in the state list. The
financial arrangements between the Centre and State can also be

altered by the Union Government.

7. Adult Suffrage

The old system of communal electorates has been abolished and the uniform adult suffrage
system has been adopted. Under the Indian Constitution every man and women above 18 years
of age has been given the right to elect representatives for the legislature.

8. An Independent Judiciary

An independent and impartial judiciary with power of judicial review has been established under
the Constitution of India. It is a custodian right of citizens. Besides, in a federal Constitution it
plays another significant role of determining the limits of power of the Centre and States.

9. A Secular State

A Secular State has no religion of its own as recognized religion of State. It treats all religions
equally. Articles 25 to 28 of the Indian Constitution give concrete shape to this concept of
secularism. It guarantees to every person the freedom of conscience and the right to profess,
practice and propagate religion. In a Secular state, the state only regulates the relationship
between man and man.

10. Single Citizenship

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The American constitution provides for dual citizenship, i.e., the citizen of America and a state
citizenship. But in India there is only one citizenship, i.e., Citizen of India. No state citizenship
like citizen of Assam, Citizen of Delhi. Every Indian is Citizen of India and enjoy the same
rights of

Citizenship no matter in what state he resides.

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2. States the Power and position of the President of India.

In Indian Parliamentary practice, the President is the nominal executive or a Constitutional ruler.
He is the head of the nation, but does not govern the nation. Our Union Council of Ministers
headed by the Prime Minister is the real executive. And the President rules the country on the
advice of the Prime Minister and his colleagues.

Powers: We shall now discuss in details, the powers and functions of the President of India in the
light of the above discussion. The powers and the functions of the President of India may be
classified under five heads, viz., and executive, legislative, financial, judicial and emergency.

1. Executive Power: The President of India is the head of the executive of the Union
Government. Therefore, all executive powers are vested in the hands of the President. He can
exercise these powers either directly or through the subordinate officers.

According to the Constitution of India, all executive action is also taken in his name. The
President appoints the Governors of the States, the Judges of the Supreme Court and High Courts
of the States. The Prime Minister of India is appointed by the President. The President also
appoints other Ministers in consultation with the Prime Minister.

The Constitution of India empowers the President to appoint the important officers of the Union
Government including the Attorney-General for India, the Comptroller and Auditor-General of
India, the Chairman of the Finance Commission, the Election Commissioners etc.

The President is responsible for the administration of the Union Territories. For this reason, he
appoints Chief Commissioners and Lieutenant Governors of the centrally administered areas.

The President has been empowered to set up a Commission for the settlement of disputes relating
to the supply of water between two or more States.

Moreover, the Constitution has authorized the President to establish an Inter-State Council to
enquire into disputes that may arise between, the States as well as to discuss the matters of the
common interests between the Union and the States.

The President alone can remove the Council of Ministers, the Governors of States and the
Attorney-General for India.

The President of India is Supreme Commander-in-Chief of the Army, Navy and the Air Force of
the Union. He has the power to declare war.

The President also enjoys the diplomatic power. He appoints the diplomatic representatives of
India to the foreign States. He also receives the credential letters of the diplomatic
representatives of other States.

The President represents India in international affairs. He has the power to conclude treaties with
foreign States.

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2. Legislative Powers: The President of India also enjoys legislative powers. He is an integral
part of Indian Parliament. Parliament consists of the President and two Housesthe House of
the people (Lok Sabha) and the Council of States (Rajya Sabha).

The President has the power of to summon and prorogue both the House of Parliament. He can
also dissolve the House of the People before the expiry of its term.

The Constitution of India empowers the President to deliver an address to the Parliament at the
commencement of the first session every year. He may also send messages to Parliament.

The President nominates two members to the Lok Sabha from the Anglo-Indian Community and
twelve members to the Rajya Sabha from among the persons who have acquired special
knowledge in art, science, literature and social service.

In India, a public bill cannot become an act without the assent of the President. A bill passed by
the Union Parliament is sent to the President for his assent. The President may give his assent to
the bill or may withhold his assent from the bill or he may return the bill to Parliament for its
reconsideration. If the bill is again passed by both Houses of Parliament, the President shall have
to give his assent.

When the Parliament is not in session, the President may issue an ordinance. It has the same
force as the law or Parliament. But it must be placed before the Parliament when it again
assembles. If it is then approved by both the Houses of Parliament, it will cease to operate after
six weeks of the date of meeting of Parliament. And the President can call a joint session of both
Houses of Parliament to resolve a constitutional deadlock over a public bill.

3. Financial Powers: The President of India also exercises financial powers. No money bill can
be introduced in Parliament without the recommendations of the President.

According to the Constitution of India, the Annual Financial Statement is placed by the President
before both the Houses of Parliament. This statement shows the estimates of revenue and
expenditure of the central Government for the next year.

It may be pointed out that the proposal for taxation and expenditure cannot be made without the
approval of the President.

4. Judicial Powers: The President of India grants, pardons, reprieves or remissions of punishment
to any person who has been convicted by a Court of Law.

5. Emergency Powers: The President of India exercises extra-ordinary powers in times of

emergency. The three kind of Emergency situations are:

1. Emergency due to armed rebellion or external aggression;

2. Emergency arising from the breakdown of constitutional machinery in a State;
3. Financial Emergency.

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Proclamation of National Emergency by the President of India: The President of India may issue
a Proclamation of National Emergency when the security of India or any part thereof is
threatened by war, armed rebellion or external aggression. Such a Proclamation of Emergency
may remain in force for an indefinite period. During a Proclamation of National Emergency, the
executive power of the States is to be exercised in accordance with the directions given by the
Central Government. Parliament has the power to make laws on the subjects enumerated in the
State List. The right to freedom of speech and expression, freedom to form association, freedom
to practice and profession, etc., embodied in Article 19 shall remain suspended.

Failure of State Constitutional Machinery: In Case of failure of Constitutional machinery in a

State, the President of India is authorized to make a Proclamation to that effect. The maximum
duration of this type of emergency is three (3) years. During such an emergency, the President
may assume to himself the executive powers of the State. The powers of the legislatures of the
State are to be exercised by the Union Parliament.

Proclamation of Financial Emergency by the President: The President may also issue a
Proclamation of Financial Emergency if he is satisfied that the financial stability of India is
threatened. This type of emergency may continue to remain in force for an indefinite period. The
Central Government may give directions to the States for canons of financial propriety. All
money-bills passed by the State Legislatures are to be reserved for the consideration of the
President.

Position:

Thus the President of India has been given wide and far-reaching powers which he enjoys both
during normal and emergency times. But after the passing of the Constitution Forty-Second
(1976) and Forty-Fourth (1978) Amendment Acts, the President of our Republic has become a
Constitutional figurehead and nothing beyond that.

Today, Presidents position is one of great authority and dignity, but at the same time strictly
constitutional. Thus the President is bound in every case to act on the advice of his Prime
Minister and other Ministers who are responsible to the Lok Sabha and responsive to the public
opinion.

In short, the powers really reside in the Ministry and the Parliament and not in the President as
such. He has no discretion in our Parliamentary system of government.

The Supreme Court through various decisions has upheld the position that the President is a
constitutional head and as such he is as much bound by the advice of his Ministers during
emergency as during normal times.

For example, the President can declare a proclamation of the National Emergency (Article 352)
only after receiving a written communication of the decision of the Union Cabinet. If the
President abuses his powers, he can be removed from office by a process of impeachment.

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It does not, however, mean that the President of India is a magnificent cipher or a mere rubber
stamp. Unlike the British Monarchy which is hereditary, the President of our Republic is an
elected Head of the State. In our coalition politics, there are some grey areas where the President
may still have to use his own judgment and wisdom. These are:

Appointment of the Prime Minister,

Dismissal of the Union Ministry,
Dissolution of the Lok Sabha, and,
Seeking information on all matters of administration and legislation from the Prime
Minister etc.

In some such situations, the role of our President may become most crucial and decisive.
However, the President has to be free from all political affiliations. He is expected to act with
complete constitutional rectitude and impartiality. The nation is expected to be benefitted by his
wise leadership and constructive role.

In short, the President of India is the symbol of national unity, magnet of loyalty and apparatus
of ceremony

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3. Explain emergency provisions under Indian constitution.

The Indian system of government is of quasi-judicial nature where resembling a federal

government, powers are distributed between the centre and the state and similar to unitary form
because of retention of powers to the Union during emergency. Here the state government
relinquishes their rights to the central government to retain security and pursuit of public welfare.
It was at the time when neighbouring country, China attacked the northern borders posing a
threat to the security of India, when for the first time the Union assumed powers to handle such a
situation. Since then the President was assigned with extraordinary powers to act in situations of
Emergency.

Part XVIII of the Constitution has made provision for three kinds of emergencies:

National Emergency

Emergency due to failure of constitutional machinery in states

Financial Emergencies

THESE ARE EXPLAINED BELOW:

ARTICLE 352: The maker of the constitution of India have equipped the Union under Article
352 with absolute control during time of emergency to preserve the integrity, security and
stability of the country. Proclamation of Emergency under this Article excludes the other two
kinds of Emergencies. President can impose National Emergency if he is satisfied that a grave
situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier it
was internal disturbance). However his powers are subject to the recommendation of the Cabinet.
The proclamation must also be laid before the House of Parliament which may approve it by
passing a resolution, take no action or disapprove it within one month. Such a proclamation is
notified by publication in official gazette but this is not obligatory. So far National Emergency
has been declared three times in the country, first being in 1962-1968 when China attacked
Indian borders, second in 1971-1977 during Second World War and the third was imposed in
1975 on grounds of internal disturbances.

ARITCLE 356: Under this article the President is vested with wide discretionary powers when
he is satisfied that the government of the state cannot be carried on in accordance with the
provision of the Constitution of India. Imposition of Emergency during failure of constitutional
machinery in state is called Presidents Rule and non-compliance by any state with direction of
Union given in the exercise of its executive power is an express ground to impose such a rule.
Such a proclamation to be operative must be placed before the House of Parliament and with its
approval it is valid for six months. In S.R. Bommai v. Union Of India, a full bench of the
Karnataka high court produced different opinion about the imposition of the Presidents Rule in
Karnataka, while in other states the court held that it was in violation of the constitution and
would have restored the original position.

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ARTICLE 360: This article explains Financial Emergency imposed by the President in a
situation of financial crises where the credit of India, or any part is threatened or in danger. The
purpose of this article is to alter the governmental machinery at the backdrop of the financial
stability of the country. Unless approved by the House of Parliament this proclamation shall
cease to operate in two months. In so far, this proclamation is not imposed in India.

Changes made by 44th Amendment

44th amendment substantially altered the emergency provisions of the constitution to ensure that
it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain
changes that were done by 42nd amendment. The following are important points of this
amendments-

"Internal disturbance" was replaced by "armed rebellion" under art 352.

The decision of proclamation of emergency must be communicated by the Cabinet in
writing.
Proclamation of emergency must be by the houses within one month.
To continue emergency, it must be re approved by the houses every six month.
Emergency can be revoked by passing resolution to that effect by a simple majority of the
houses present and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression
and not upon armed rebellion. Further, every such law that transgresses art 19 must recite
that it is connected to art 358. All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III
will not include art 20 and 21.
Reversed back the term of Lok Sabha from 6 to 5 years.

EFFECTS OF PROCLAMATION OF EMERGENCIES:

The effects of Proclamation of Emergency are given under Article 353 of the Constitution. The
power under this is provisional and cannot be used without reasonable care. The most important
effect is that during the operation of a proclamation the federal nature of the government
becomes unitary and the union has power to give directions to the state in reference to the
executive power to be exercised by them. In this way the legislative power of the union
parliament is enlarged up to the extent that it can make laws for the state and also modify
provisions regarding revenue matters. Where the fundamental rights are concerned, during
emergency arising out of war or external aggression Article 19 is suspended. During the
continuance of proclamation, power is vested in the President to suspend the right of individual
to move to the courts in case of infringement of their fundamental rights except those under
Article 20 and Article 21 under the Constitution of India.

In Bennett Coleman & co. v. Union of India, the supreme court held that the Newsprint Policy of
1972-73 in continuation of the old policy made before the Proclamation of Emergency was not
protected during the operation of the proclamation from attack under Article 19.

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Under the Presidents Rule the President is empowered with powers to suspend or dissolve the
State legislative Assembly. The provisions made by the president in view of the Rule are
incidental or consequential and must be necessary to give effect to objects of the proclamation.
Article 357 provides the manner in which the legislative powers are exercised under the
proclamation issued under Article 356.

In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the
provisions of clause (2) of Article 357, shall continue to remain in force in spite of the revocation
of the Proclamation unless the Act is repealed or re-enacted with or without modifications by an
Act of appropriate legislature.

While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding financial
matters, to reduce salaries and allowance of government servants and also reserve all money
bills. The salaries of the higher official including judges of the Supreme Court can also be altered
to make the country financially stable at times of crisis.

ABUSE OF POWER:

It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the President to
be used in extraordinary circumstances is widely used for political benefits of individuals rather
than public interest. This abuse of power can easily lead to sedition of the Indian democracy. In a
number of cases the power was distorted with political considerations, sometimes there is also
self interest of the individual that lie behind the decisions taken during manoeuvre of
Emergency. The 44th amendment ensured that internal disturbance would no longer be ground
for Proclamation of Emergency, where it lead to the worst abuse of Emergency power at
National level in 1975 and continued till 1977.

The power under Article 356 has been used frequently in India since 1950, especially in states
like Uttar Pradesh, Kerela and Punjab. At one instance this Presidents Rule was imposed purely
on political grounds to overthrow the ministry formed by a different party. By the 42nd
amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution.
Therefore there is demand for either deletion or making provisions to restrict misuse of these
provisions.

DETERRENCE OF ABUSE OF POWER:

It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and
relevant safeguards must be followed to deter the same. The constitution of India guarantees to
the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions.
It must be kept in mind that the human rights must be not violated during the proclamation, if so,
done with justifiable cause in favour of individual interest. Also the social, cultural, political, and
civil rights of people must be safeguarded.

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The Provisions must not be such as to disregard the principle of legality. Due procedure of law
or procedure established by law as mentioned in Maneka Gandhi v. Union of India, must be
followed to prevent corruption and misuse of power. It is a conditional power and must be used
as a last resort with due care. The Sarkaria Commission sharing a similar view believes that this
extraordinary power given by the constitution must be used as a constitutional weapon to deal
with extreme situation and not used frequently as is being done in India.

First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle 356
can be subject to judicial review. The judges have the power to examine the validity of grounds
on which the Proclamation of Emergency is based. The power of judicial review was first
experienced in State of Rajasthan v. Union of India, held that there cannot be any uniform rule of
law for Proclamation of Emergency, it varies in different circumstances.

Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of India
Rules was held to be illegal because the actual order of detention in the case was not in terms of
the rules. Proclamation of Emergency provisions are legitimate action but must be applied only
when the situation demands. It should be used cautiously to avoid interruption in the
constitutional mechanism. Therefore, limitations should be placed to bring the actions under
constitutional limit. Government is responsible for all the acts and thus scrutiny of the basis of
rules is a necessity to deter abuse of power for political or other purpose other than social
welfare. Where state government fails to follow the directions of the central government,
proclamation of Emergency cannot be imposed.

Emergency intervention in the country must be for short term and it should deal with Emergency
situations only. The decision making power must not be vested in few hands, this may lead to
biased ground of imposing Proclamation. Expertise from different areas of work must be
involved in decision making process. Thus it is crystal clear that to prevent abuse of power
during Proclamation of Emergency three things should be kept in mind i.e functioning
democracy, protection of human rights and Rule of Law.

A RELATIVE STUDY:

The Indian Constitution equips the central government with powers to function while operation
of Proclamation of Emergency whether National Emergency, Emergency due to failure of
constitutional machinery in states or Financial Emergency. The President is vested with wide
discretionary powers, subject to constitutional validity of the same. Similarly in the European
countries the Emergency measures must not exceed that what the situation demands and they
cannot be inconsistent with the states other obligations as per under the International law.

One of the duties while exercising the power under Article 352 is the protection of human rights.
However Article 19 is suspended during operation of the proclamation but as soon as the
Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is
recommended that there should be immediate restoration of fundamental and democratic rights
of people after the Emergency ceases to operate.

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As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must be
reasonable and are subject to judicial review, the ancient Romans placed automatic limit of six
months on Emergency dictatorship. According to them existence of reasonable cause is must and
the same should be proved and justified.

The President can declare an Emergency mentioned in Article 352 of the Constitution of India
only on written advice of the Union Cabinet, with further approval of the House of Parliament
within one month in case of National Emergency and within two months in case of the other two
types of Emergencies, from the date of its imposition. Also, in Germany, the President can
declare Emergency on request of the Chancellor with approval of Federal Council.

CONCLUSION:

Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of
India, there must also be effective control mechanism to ensure limitation of this power within
the ambit of the Constitution. The validity of actions must be reviewed to deter political gains
and give way to public interest. Despite the abuse of power the Emergency provisions still have a
role to play under conditions prevailing in India, though it still remains a controversial issue in
the country.

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Bibliography

www.lawteachers.net

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