LUXMIKANT POLITY CRUX NOTES-CHAPTER-16

During an Emergency →The Central government becomes all powerful and Covert Federal into unitary system.

3 Types –

1.       Art. 352 (National Emer)

2.       Art 360 (Financial Emer)

3.       Art 356 (State Emer/President’s Rule)

·         War, External aggression or armed rebellion

·         Can declare fore if it satisfied that there eminent danger

·         38^th CA, 1975 – he can issue proclamation on ground of war, external aggression, armed rebellion.

·         It can be for whole India (42^nd CAA)

·         Internal disturbance 44^th CA,1978 →Armed rebellion

·         Written form by cabinet →President can Proclaim

·         38^th 1975→ Proclamation by 44^th CA→ Judicial Review

·         Exempted from the judicial review

·         Minerva Mills Case →can be challenged on ground of malafide

Case-1 → Proclamation of emergency →before 1 month→ Lok Sabha (L.S.) dissolve without passing Meanwhile RS passes→ dissolve Emergency and after 30 day of 1^st sitting of Lok Sabha

Case-2→ If approved by both houses→6 month →extended for indefinite time, with the approval of Parl. after every 6 month.

Originally, it was operate as long as cabinet desires after proclamation approval by parl.

Case-3→ If L.S dissolve during the period of 6 month without approving for further continuance of Emergency →Proclamation service 30 days from first sitting of L.S. Meanwhile RS approved.

Resolution of proclamation must be passed by spl. majority i.e. 2/3 [P+V] + 50% of the total member.

44^th CAA, Earlier →simple majority.

·         Action be struck down of it was based on ground of Malafide.

·         Secularism as the basic structure.

·         356 should not be political instrument, should be used occasionally.

a.       President cannot suspend of right to move the court for enforcement of fundamental rights guaranteed by Article21 – Article 20, Article 21 remain enforceable during emergency

b.       The first six fundamental rights under Article 19 – suspended only when national emergency is declared on the ground of war or external aggression – not on the ground of armed rebellion

In case of failure, Art 356 (const, machinery impose Pres. Rules)

Parl. Approval→

·         With 2 month from Parl. & if L.S. dissolve without approving, last for 30 days after the 1^st meeting Rajya Sabha (R.S) → meantime RS approved.

·         Once approved max – 6 months, with repeated approval max 3years is dissolution. {simple majority}

·         President can be revoked at any time

·         Proclamation does not require Parl. approval

When state Legis. is suspended or dissolved→

a.       Parl. →law – state list

b.       Allow expenditure from S.C.F.I when L.S. is not in session.

c.        Ordinance by President when Parl. is not is session.

·         He can declare the powers of the state legislature to be exercised by Parliament.

·         He can take all necessary steps including suspension of constitutional provisions – related to anybody or authority in the state

·         The law made by the President during such time does not repeal after the upliftment of the President’s rule

·         This law can again be passed by the state legislative assembly once formed

·         The power of the High Court of the concerned state does not vest in the president during such an emergency

·         Recently imposed in Maharashtra post the 2019 Legislative AssemblyElections

·         As it cannot be questioned in court but by 44^th CA →satisfaction of President is not beyond Judicial Review

·         Has not been imposed in India till today

·         If L.S dissolve without approval within 2 month→ Continue till 30 days of L.S take place→ meanwhile RS approval

·         Once approved by both house of Parl.→

Ø  No max. Period for it operation

Ø  Repeated Parl. approval is not required

·         Simple Majority

·         Revoked by President

·         Reduction of salary (↓) →any person serving in state.

·         Reservation of all financial bill & money bill for President.

·         Judge of SC salaries & allowance of all person(↓)

·         L.S can pass a resolution for its revocation.

·         There is no such provision. It can be revoked by the President only on his own.