It is a basic question and the main focus is to check the Fundamentals.
You
have to correctly attempt these sorts of questions.
Which of the following is/are the exclusive power(s) of Lok Sabha ?
1.
To ratify the declaration of Emergency
2. To
pass a motion of no-confidence against the
Council of Ministers
3.
To impeach the President of India
Select
the correct answer using the code given below :
(a) 1 and 2
(b) 2 only
(c) 1 and 3
(d) 3 only
Solution
- B
Analysis of each statement
1.
To ratify the declaration of Emergency
Basics Facts About Emergency you
need to know
|
Emergency provisions |
Part
XVIII from Articles 352 to 360 |
Why We need Emergency provision?
So,
the Central government can meet any abnormal situation effectively.
They
help to safeguard the
sovereignty,
unity,
integrity
and security of the country,
democratic
political system, and the Constitution.
What is the main thing that happen due to emergency?
It
converts the federal structure into a unitary[i.e state under complete control
of centre government] .
|
Article |
Types |
Condition / Grounds of Declaration |
|
352 |
Proclamation of emergency [popularly National Emergency] 3 times - 1962[till 1968], [1971, 1975[both
till 1977] |
due to war, external aggression or armed rebellion [44th CAA , 1978 Replaced internal disturbance with Armed rebellion] |
|
356 |
Provisions in case of failure of constitutional
machinery in States. [100+ times imposed] [Popularly - President
rule / State emergency / constitutional emergency] |
due to the failure of the constitutional machinery in the states |
|
360 |
Financial Emergency [Never imposed] |
threat to the financial stability or credit of India |
Note
- Trick for Emergency provision articles
352
-trick 3-5=-2 ---- National emergency
is negative and 2 reason for it
External
Emergency -due to war, external
aggression
Internal
Emergency - Armed rebellion
Then
use +4 ka rule
Article 352 or NATIONAL EMERGENCY
Grounds of Declaration
Can president declare emergency without actual war or external
aggression?
Yes
, He can declare a national emergency even before
the
actual occurrence of war or external aggression or armed
rebellion,
if he is satisfied that there is an imminent danger [about to happen].
Is National Emergency always for
whole country?
No
, It can be a part of country.
Can President proclaim a national emergency whenever he wants to?
No
, only after receiving a written recommendation from the cabinet.
44th
Amendment Act of 1978 introduced this safeguard to eliminate any possibility of
the prime minister alone taking a decision in this regard.
Is National Emergency immune to Judicial review?
No
44th
CAA, 1978 removed its immunity and
|
Minerva Mills case,1980 |
SC held that the proclamation of a national
emergency can be challenged in a court on the ground of Malafide[बुरे इरादे से, carried out in bad faith or
with intent to deceive.] or that the declaration was based on wholly
extraneous [immaterial] and irrelevant facts or is absurd or
perverse[illogical]. |
Parliamentary
Approval
1 month Rule
The
proclamation of Emergency must be approved by both the
Houses
of Parliament within one month [44th CAA, 1978]
from the date of its issue.
What if LS dissolved or
dissolution 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 reconstitution, provided the RS
approved it.
Duration
6
Month rule + Indefinite time +
periodical parliamentary [special
majority] [44th CAA, 1978]
What is a special majority?
(a)
a majority of the total membership of that
house, and
(b)
a majority of not less than two-thirds of the
members of that
house
present and voting.
Revocation of Proclamation
LOGIC
- Revocation easy
1.Any
time when president want
does
not require the parliamentary approval.
2.if Lok Sabha
passes a resolution disapproving its continuation.
[44th
CAA, 1978 ]
Can their be a special sitting for disapproving the continuation of
the proclamation?
Yes
, 44th CAA , 1978 provided that,
1.one-tenth of the total number of members of the Lok Sabha
give
a written notice to the Speaker
(or president if LS is not in session),
a special sitting of the House should be held
within 14 days
for the purpose
of
considering a resolution
|
Proclamation approving the
continuation |
Vs |
Resolution of disapproval |
|
Passed by BOTH |
|
LS only |
|
Special Majority |
|
Simple majority |
Safeguard against National
emergency added by 44th CAA, 1978?
1.Special Majority
2.Within 1 month Approval
3.Armed Rebellion
4.Written recommendation
of cabinet
5. Six Month Rule
6.Revocation by parliament is allowed
Note
|
Shah Commission |
to
investigate the circumstances that warranted the declaration of an Emergency
in 1975. The commission 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 |
Effects of National Emergency
1. Centre-state relations,
2. life of the LS and State assembly, and
3.
Fundamental Rights.
Effect on the Centre-State Relations
|
Executive |
Legislative |
Financial |
|
state governments are brought under complete control of the Centre, though they are not
suspended. |
Constitution becomes unitary rather than federal. normal distribution of the legislative powers between Centre and states is suspended, Though state Legislatures are not
suspended. |
President can modify the constitutional
distribution of revenues between the centre and the states. [मै
पैसा नहीं देंगा] |
Can Parliament make laws on state
subject and are they valid even after Emergency is over?
Yes
, but they become inoperative six months after the
emergency
has ceased to operate.
Note
- President can issue ordinances on the
state
subjects
also, if the Parliament is not in session.
Effect on the Life of the Lok Sabha and State Assembly
Extend
by 1 year each time [by Law of parliament].
Parliament
can extend the life of state legislature by 1year each time.
However, both these extension cannot continue beyond a
period
of six months after the emergency has ceased to operate.
For
example for 5th LS [1971-77]--- Extended twice.
|
1975 National Emergency |
Start -
25/6/1975 |
End -21/3/1977 |
Effect on the Fundamental Rights
|
Article |
Effect |
|
358 |
Suspension of the Fundamental Rights guaranteed
by Article 19 {automatically happen when national
emergency promuglated- No separate order} |
|
359 |
suspension of other Fundamental Rights (except those
guaranteed by Articles 20 and 21) FR not
suspended[i.e Theoretically alive but], but
their enforcement suspended. [i.e right to move any court for the
enforcement] Details about this mentioned in order |
What happen to a law made during
violating Article 19?
It ceases to have effect.
However,
no remedy[legal हानिपूर्ति] lies for anything done during
the Emergency
even
after the Emergency expires.
This
means that the legislative and executive actions taken during the emergency
cannot be challenged even after the Emergency ceases to operate.
What are the impacts of 44CAA, 1978 on A.358?
1.
Six Fundamental Rights under Article 19 can be suspended only when the National
Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion.
2.only
those laws which are related with the Emergency are protected from being
challenged
and not other laws.
Also,
the executive action taken only under such a law is protected.
[कुछ à¤ी करके नहीं बच
जाओगे]
Comparison Between Articles 358 and 359
Similarity
Both
provide immunity from challenge to only those laws
which
are
related with the Emergency and not other laws.
Also,
executive action taken only under such a
law
is protected by both.
|
Basis |
A.358 |
A.359 |
|
FR |
A.19[Automatically] |
Decided by presidential order |
|
Emergency type |
External
only [i.e not in armed rebellion] |
Both |
|
Duration of suspension |
Entire |
Specified by President |
|
Extend to |
Entire country |
Specified by President |
|
Law and Executive Action |
Against A.19 |
Specified by President |
With
this we have finished National Emergency now you can study the
A.356
and A.360.
I
will make a separate video for them.
2.To pass a motion
of no-confidence against the Council of Ministers
Article 75: The Council of Ministers shall be collectively responsible to the Lok Sabha.
So
no-confidence motion requires approval of Lok Sabha only.
The
motion needs the support of 50 members to be
admitted.
What
is motion?
Motion
is a device of parlaimentary proceedings.
without
which no discussion on a matter of general public importance can happen.
3. To impeach the President of
India
Article 61
when a President is to be impeached for violation of the Constitution, the
charge shall be preferred by either House of Parliament.
Either
Lok Sabha or Rajya Sabha can initiate the process for the removal of the
President
of India.
Impeachment US vs Indian
President---- Syllabus -comparision of Indian constituional scheme with other
countries
|
Basis |
India |
USA |
|
Ground |
Violation of Constitution [Not
defined] U/A 61 |
Treason , Bribery or any other higher crime |
|
Who can Initiate |
Either house of Parliament |
Only house of Representative |
|
Process |
Stage 1 - charges should be signed by one-fourth
members 14 Day notice Impeachment resolution should
be passed by majority
of two-thirds of the total membership of that House.[it
is not special majority] |
Passed with simple majority to start trial |
|
|
Stage 2 Second house act as investigating
house Passed with same majority. [president has the right to appear
and represented] |
Senate [upper house acts like a court] Passed with two-third of senate votes |
Things
to remember
1.Impeachment
is a quasi-judicial procedure in the Parliament.
2.Nominated
member can participate [but in election only elected member].
3.
Legislative assemblies member do no participate ,
Expected question
Special
Power of RS
|
A.249 |
Power of Parliament to legislate with respect
to a matter in the State List in the national
interest |
|
A.312 |
Authorize
parliament For creation of All India servise |
|
A.67 |
Removal of VP |
|
A.352,356, 360 |
if LS Dissolved or dissolution of the Lok Sabha
takes place within the period then proclamation effective even if Approved by RS. |
Let's
revise the concept using question….
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