Test : Emergency Provisions - BPSC (Bihar) MCQ

Statement 1 is correct: Slate governments are automatically dismissed on the President's Rule's application, which may not be the case in a National Emergency.

Statement 2 is incorrect: While a National Emergency does cease after a year, President's Rule has a maximum duration of three years, with the approval of Parliament every six months.

statement 3 is correct: Every resolution approving the Proclamation of National Emergency or its continuation must be passed by either House of Parliament by a Special Majority i.e. 50% of the total membership of the House, and a majority of not less than 2/3rd of the members of that House present and voting.

The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue.

Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority, that is,

1. The majority of the total membership of that house.

2. The majority of not less than two-thirds of the members of that house present and voting.

The President may revoke a proclamation of emergency at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

• The Centre becomes entitled to give executive directions to a state on 'any' matter. Thus, the state governments are brought under the centre's complete control, though they are not suspended.

• Although the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the Parliament. Thus, the normal distribution of the legislative powers between the Centre and states is suspended, though the state legislatures are not suspended. In brief, the Constitution becomes unitary rather than federal.

• Article 359 authorises the President to suspend the right to constitutional remedies to enforce Fundamental Rights during a National Emergency.

• This means that under Article 359, the Fundamental Rights are not suspended, but only their enforcement. The 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. It does not apply to all fundamental rights. So, R is wrong.

Indian Constitution has borrowed from the Weimar Constitution of Germany provisions concerning the suspension of fundamental rights during National Emergency.

• While the National emergency has no time limit, President's rule has to be revoked after a maximum of three years.

• Further, the 44th Amendment Act of 1978 introduced a new provision to put a 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:

1. A proclamation of National Emergency should be in operation in the whole of India, or the whole or any part of the state.

2. Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

The President may revoke a proclamation of President's Rule at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

Proven maladministration or even corruption cannot be a ground to impose president's rule as per the guidelines laid down by the Supreme Court in the S. R. Bommai v UOI, 1994 AIR 1918.

(i) Article 355 imposes two duties on the Centre:

(a) to protect every state against external aggression and internal disturbance; and

(b) to ensure that the government of every state is carried on following the provisions of the Constitution.

(ii) The governor of a state is appointed by the president. He holds office during the pleasure of the President. In addition to the Constitutional head of the state, the governor acts as an agent of the state's centre. He submits periodical reports to the Centre about the administrative affairs of the state.

(iii) The state election commissioner, though appointed by the state's governor, can be removed only by the President.

1. Unity and territorial integrity of India: Article 355 underscores the importance of maintaining the unity and territorial integrity of India by mandating the Union's duty to protect every State against external aggression and internal disturbance. This duty is crucial for safeguarding the integrity of the nation.

Given the context of Article 355 and its emphasis on the Union's responsibility for protecting the States, option 4, "Unity and territorial integrity of India," is the most appropriate choice.

Clause 1 of the Article 360 laying down the provisions of Financial Emergency state that the proclamation of Financial Emergency shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.

The president is empowered to reduce the salaries of all government officials, including judges of the supreme court and high courts, in cases of a financial emergency.

• The assembly is immediately dissolved, and the President takes the administrative charge of the state. A panel of advisors is appointed to advise the Governor in the discharge of his day-to-day duties.

• A law made so by the Parliament continues to be operative even after the president's rule. But, such a law can be repealed or altered or reenacted by the state legislature.

• Under Article 352, the President can declare a national emergency when India's security 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 emergency even before the actual occurrence of war or external aggression or armed rebellion if he is satisfied that there is an imminent danger.

A proclamation of national emergency may apply to the entire country or only a part of it. The 42nd Amendment Act of 1976 enabled the president to limit a National Emergency operation to a specific part of India.

• During an Emergency, the Central government becomes all-powerful, and the states go into the centre's total control. It converts the federal structure into a unitary one without a formal amendment of the Constitution.

• This kind of transformation of the political system from federal during normal times to unitary during Emergency is a unique feature of the Indian Constitution.

• Since the state governments exist even at the time of emergency, we cannot call it-single government.

• The President can proclaim a national emergency only after receiving a written recommendation from the cabinet.

• This means that the emergency can be declared only on the cabinet's concurrence and not merely on the 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 informed 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 deciding in this regard.

Approval of the Parliament is required later to decide whether to continue the emergency or not.

If the announcement of the National Emergency has been approved by both Houses of Parliament, it will continue for 6 months but it should be re-approved after every 6 months.

• Secularism is one of the 'basic features' of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356

• It can be subject to Judicial review in any condition. Further, the satisfaction of the President must be based on the relevant material.

• The president's action can be struck down by the court if it is based on irrelevant or extraneous grounds or if it was found to be mala fide or perverse.

• The burden lies on the Centre to prove that relevant material exists to justify the President's Rule's imposition.