Sunday, 23 January 2022

PROCLAMATION OF EMERGENCY by Bishrant Khatiwada

 THE UTTRAKHAND PROCLAMATION OF EMERGENCY IN 2015

The Indian Constitution is a document that establishes a federal government in the nation and assigns certain tasks to the central and state governments. Schedule 7 of the Constitution plainly states that the federal and state governments have power over the legislative process. There are, however, several occasions in which the federal government can enter state jurisdiction, one of which being a Presidential proclamation of emergency.

In the event of a "failure of Constitutional machinery," the President of India can usurp the state's legislative and executive powers by declaring a state of emergency. "If the President is satisfied, on receipt of a report from the Governor of the State or otherwise, that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may declare an emergency in a state," according to Article 356. 

Article 356 has been a source of dispute and discussion since its establishment since the President's authority has the potential to jeopardise the nation's federal framework. The origins of Article 356 may be traced back to Section 93 of the Government of India Act, which permitted for the governor to declare an emergency if the province could not be managed in line with the act's requirements. By replacing the word "governor" with "President," this clause was adopted into the Indian Constitution.

  1. In the light of above mentioned circumstances where the Hc has called for no confidence motion and revoked the proclamation of use of Article 356 for No confidence motion. In a number of cases, the issue of judicial review under Article 356 has come up for examination by the courts. The first such case was K.K. Aboo v. Union of India, which was heard in the Kerala High Court. In that instance, the Court declined to consider the proclamation's validity under Article 356. Later, in Rao Birender Singh v. State of Haryana, it was held that the President, when exercising power under Article 356, was acting in a constitutional capacity rather than on behalf of the Union's executive, and thus the exercise of power by the President was not subject to the Court's jurisdiction.

In Hanumantha Rao v. State of Andhra Pradesh and Bijayananda Patnaik v. President of India, the Andhra Pradesh High Court and the Orissa High Court both took the same position. As a result, the courts backed the central government's actions. Surprisingly, none of them were brought to the Supreme Court for consideration. In State of Rajasthan v. Union of India, the Supreme Court addressed the issue for the first time.

In A crucial and leading case of S.R. Bommai V. Union of India which has been crucial in determining the scope of article 356. This case examines the legal method and searches the whole domain of constitutional imperative on central-state relations, as well as the role of state governors in asking for president control. The reality that, under our constitution's framework, immense power is debated in the centre vis-à-vis The state does not imply that states are merely extensions to the central government. The powers that be cannot be tamed by the centre. The decision is regarded as significant because it has put and into the arbitrary explain its position of state government under article 356 has to function the judgement because the president's power is not absolute but customary, and the presidential proclamation is not immune from judicial scrutiny. We all know that president is the head of the government and powers have been entrusted as to separation of power making judiciary independent. 

Article 356 (1)(a) delegated powers and duties to both the government and governors, whereas paragraphs 174 (2)(b) permitted the government to the legislative assembly, and the president under article 356 (1)(a) delegated powers and duties to both the government and governors. 

According to the court that coordinated the power to dissolve the legislature, article 356 (3) requires the proclamation to be laid before both houses of parliament, and the president has the power to refute the legislature under article 356(1)(c) prior to the parliament's consent to the announcement.

  1. Article 356 of Indian constitution has laid down provisions in case of failure of constitutional machinery in the state under following circumstances:

  1. If the President is convinced, whether on the basis of a report from the Governor of the State or otherwise, that a situation has developed in which the State's governance cannot be carried out in conformity with the provisions of this Constitution, the President may issue a proclamation.

  1. declare that the powers of the State Legislature shall be exercisable by or under the authority of Parliament;

  2. assume all or any of the functions of the State Government and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the State Legislature;

  3. adopt such incidental and consequential provisions as the president deems necessary or desirable for carrying out the Proclamation's objectives, including provisions suspending the operation of any sections of this constitution pertaining to any entity or authority in the State in whole or in part. Provided, however, that nothing in this article authorises the President to assume any of the functions conferred in or exercisable by a High Court, or to suspend the execution of any provision of this Constitution pertaining to High Courts in whole or in part.

  1. Presidents can be invoked if:

  1. There is an external aggression or war which is known as external emergency

  2. On the grounds of armed rebellion which is known as internal emergency

  3. During time of financial emergency if the president is satisfied and believes that a situation has arisen due to which financial stability cannot be maintained. 

  1. The President may declare an emergency in a state if he or she is satisfied, based on the Governor's report or other sources, which the state's government cannot be carried out in accordance with the Constitution's requirements. A declaration of emergency must be approved by Parliament within two months.

  2. Situation when a president rule can be imposed: The President's Rule has been seen to be enforced when any of the following events have occurred:

  • For a period of time set by the state's governor, the state legislature is unable to elect a leader to serve as Chief Minister.

  • Breakdown of a state government coalition, resulting in the CM having minority support in the legislature and being unable to prove his majority within the governor's deadline.

  • A vote of no confidence in the legislative assembly resulted in the loss of the majority.

  • Elections are postponed due to unforeseen circumstances such as natural disasters, epidemics, or war.

  1. Situation after the President rule is imposed under article:

  • On behalf of the President, the governor oversees the state's government. He or she enlists the assistance of the state's Chief Secretary as well as other experts and administrators whom he or she might choose.

  • The President has the authority to announce that the functions of the state legislature would be exercised by Parliament.

  • The President would either suspend or dissolve the state legislative assembly. When Parliament is not in session, the President has the authority to issue ordinances governing the state's administration.


In conclusion, a national emergency transforms the federal system of government into a unitary one by empowering Parliament to pass legislation on the 66 areas listed on the State List (which contains subjects on which the state governments can make laws). In addition, all state money bills must be approved by Parliament. During an emergency, the Lok Sabha's term can be prolonged up to one year at a time, but not more than six months after the state of emergency has been lifted. The High court in the current circumstances can revoke the application of 356 in the given case at hand as it lies under its jurisdiction on judiciary has been vested with the power of interpretation of law and can do so in any case as it fits right as it is an independent body. The High court can do so as the national emergency will put limits of people’s fundamental rights which has been provided by the constitution. The president, based on the reports submitted by the governor can issue president’s rule under article 356 but such rule is subject to judicial review, If the said matter is of national emergence them Supreme court has power for the review and if the said matter is of date emergency, then the state High court and Supreme court has jurisdiction over such matter for review and interpretation of law.



No comments:

Post a Comment

Inflation

  The first of these and the oldest is the view that the level of prices is determined by the quantity of money. The ratio of the stock of m...