Self Study Materials. Complete CURRENT AFFAIRS PART

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1 Self Study Materials Complete CURRENT AFFAIRS PART - 3 1

2 CONSTITUTIONAL BODIES ELECTION COMMISSION Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and office of Vice president of India shall be vested in the election commission. Thus, the Election Commission is an all-india body in the sense that it is common to both the Central government and the state governments. COMPOSITION Article 324 of the Constitution has made the following provisions with regard to the composition of election commission. The Election Commission shall consist of the Chief Election Commissioner and such number of other election commissioners, if any, as the president may from time to time fix. The appointment of the chief election commissioner and other election commissioners shall be made by the president. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president. In October 1993, the president appointed two more election commissioners. Since then and till today, the Election Commissioners has been functioning as a multi-member body consisting of three election commissioners. The chief election commissioner and the two other election commissioners have equal powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court. In case of difference of opinion amongst the Chief Election Commissioner and/or two other election commissioners, the matter is decided by the Commission by majority. They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. INDEPENDENCE The following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission: The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of 2

3 the Supreme Court. He can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either in the ground of proved misbehaviour or incapacity. The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner. In the Election Commission, some flaws can be noted, viz., The constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission. The Constitution has not specified the term of the members of the Election Commission. The Constitution has not debarred the retiring election commissioners from any further appointment by the government. POWERS AND FUNCTIONS Act as a court for setting disputes related to granting of recognition to political parties and allotment of election symbols to them. Advice the president whether elections can be held in a state under president s rule in order to extend the period of emergency after year. At the state level, the Election Commission is assisted by the Chief Electoral Officer who is appointed by the chief election commissioner in consultation with the state government. Below this, at the district level, the Collector acts as the district returning officer. He appoints a returning officer for every constituency in the district and presiding officer for every polling booth in the constituency. UNION PUBLIC SERVICE COMMISSION The Union Public Service Commission (UPSC) is the central recruiting agency in India. It is an independent constitutional body in the sense that it has been directly created by the Constitution. Article 315 to 323 in Part XIV of the Constitution deals with the UPSC COMPOSITION The UPPC consists of a chairman and other members appointed by the president of India. Usually, the Commission consists of nine to eleven members including the chairman. Further, no qualifications are prescribed for the Commission s membership except that onehalf of the members of the Commission should be such persons who have held office for at least ten years either under the Government of India or under the government of a state. 3

4 The chairman and members of the Commission hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. REMOVAL The President can remove the chairman or any other member of UPSC from the office under the following circumstances: If he is adjusted an insolvent. If he engages, during his term of office, in any paid employment outside the duties of his office. If he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. The president can also remove the chairman or any other member of UPSC for misbehavior. However, in this case, the president has to refer the matter to the Supreme Court for an enquiry. If the Supreme Court, after the enquiry, upholds the cause of removal and advises so, the president can remove the chairman or a member. Under the provisions of the Constitution, the advice tendered by the Supreme Court in this regard is binding on the president. INDEPENDENCE The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the UPSC: The chairman or a member of the UPSC can be removed from office by the president only in the manner and on the grounds mentioned in the Constitution. Therefore, they enjoy security of tenure. The conditions of service of the chairman or a member, though determined by the president, cannot be varied to his disadvantage after his appointment. The entire expenses including the salaries, allowances and pensions of the chairman and members of the UPSC are charged on the Consolidated Fund of India. Thus, they are not subject to vote of Parliament. The chairman of UPSC is not eligible for further employment in the Government of India or a state. A member of UPSC is eligible for appointment as the chairman of UPSC or a State Public Service Commission (SPSC), but not for any other employment in the Government of India or a state. The chairman or a member or UPSC is not eligible for reappointment to that office. 4

5 FUNCTIONS The UPSC conducts examinations for appointments to the all-india services, Central services and public services of the centrally administered territories. The jurisdiction of UPSC can be extended by an act made by the Parliament. The UPSC presents, annually, to the president a report on its performance. The president places this report before both the Houses of Parliament along with memorandum of explaining the cases where the advice of the Commission was not accepted and the reasons for such non-acceptance. All such cases of non-acceptance must be approved by the Appointments Committee of the Union cabinet. An individual ministry or department has no power to reject the advice of the UPSC. LIMITATIONS The president can exclude posts, services and matters from the purview of the UPSC. But all such regulations made by the president shall be laid before each House of Parliament for at least 14 days. The Parliament can amend or repeal them. ROLE The Constitution visualizes the UPSC to be the watch-dog of merit system in India. It is not concerned with the classification of services, pay and service conditions, cadre management, training, and so on. These matters are handled by the Department of Personnel and Training-one of the three departments of the Ministry of personnel, Public Grievances and Pensions. Therefore, UPSC is only a central recruiting agency while the Department of Personnel and Training is the central personal agency in India. The recommendations made by it are only of advisory nature and hence, not binding on the government. The only safeguard is the answerability of the government to the Parliament for departing from the recommendation of the Commission. STAFF SELECTION COMMISSION The UPSC is entrusted with the selection of candidates to higher civil services, that is, group A and group B civil posts under the Central government. The Staff Selection Commission (SSC), on the other hand, is entrusted with the selection of candidates to (a) all group B posts in the various ministries and departments of the Central government. The 5

6 SSC is a centralized agency responsible for recruiting personnel to middle and lower services of Central government. The SSC was established in 1975 by an executive resolution of Central government. STATE PUBLIC SERVICE COMMISSION Parallel to the Union Public Service Commission (UPSC) at the Centre, there is a State Public Service Commission (SPSC) in a state. COMPOSITION A state Public Service Commission consists of a chairman and other members appointed by the governor of the state. The chairman and members of the Commission hold office for a term of six years or until they attain the age of 62 years, whichever is earlier. REMOVAL Although the chairman and members of a SPSC are appointed by the governor, they can be removed only by the president (and not by the governor). The president can remove them on the same grounds and in the same manner as he can remove a chairman or a member of the UPSC. JOINT STATE PUBLIC SERVICE COMMISSION The Constitution makes a provision for the establishment of a Joint State Public Service Commission (JSPSC) for two or more states. While the UPSC and the SPSC are created directly by the Constitution, a JSPSC can be created by an act of Parliament on the request of the state legislatures concerned. Thus, a JSPSC is a statutory and not a constitutional body. The two states of Punjab and Haryana had a JSPSC for a short period, after the creation of Haryana out of Punjab in The chairman and members of a JSPSC are appointed by the President. They hold office for a term of six years or until they attain the age of 62 years, whichever is earlier. They can be suspended or removed by the president. The number of members of a JSPSC and their conditions of service are determined by the president. A JSPSC presents its annual performance report to each of the concerned state governors. Each governor places the report before the state legislature. 6

7 The Government of India Act of 1935 provided for the establishment of not only a Federal Public Service Commission but also a Provincial Public Service Commission for two or more provinces. FINANCIAL COMMISSION Article 280 of the Constitution of India provides for a Finance Commission as a quasi judicial body. COMPOSITION The Finance Commission consists of a chairman and four other members to be appointed by the President. The Constitution authorizes the Parliament to determine the qualifications of members of the commission and the manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the chairman and members of the commission. The chairman should be a person having experience in public affairs and the four other members should be selected from amongst the following: A judge of high court or one qualified to be appointed as one. A person who has specialized knowledge of finance and accounts of the government. A person who has wide experience in financial matters and in administration. A person who has special knowledge of economics. FUNCTIONS The Finance Commission is required to make recommendations to be president of India on the following matters. The distribution of the net proceeds of taxes to be shared between the Centre and the States, and the allocation between the states of the respective shares of such proceeds. The principle that should govern the grants-in-aid to the states by the Centre. The measures needed to augment the consolidated fund of a state to supplement the resources of the Panchayats and the municipalities in the state on the basis of the recommendations made by the state financial commission. The commission submits its report to the president. He lays it before both the Houses of Parliament along with an explanatory memorandum as to the action taken on its recommendations. 7

8 NATIONAL COMMISSION FOR SCS AND STS The National Commission for Scheduled castes (SCs) and scheduled tribes (STs) is a constitutional body in the sense that it is directly established by Article 338 of the constitution. The 89 th Constitutional Amendment Act of 2003 bifurcated the combined National Commission for SCs and STs into two separate bodies, namely, National commission for SCs (Article 338) and National Commission for STs (Article338-A).Both the commission has a Chair person, a Vice chair person and three other members. They are appointed by the President. REPORT OF THE COMMISSION The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The president places all such reports before the Parliament. POWERS OF THE COMMISSION The commission, while investigating any matter or inquiring into any complaint, has all the powers of a civil court.in 1996, the Supreme Court held that the powers of a civil court conferred on the commission do not include the power to issue injunctions to anyone who in its opinion seems to be acting against the interests of the SCs and STs. COMPTROLLER AND AUDITOR GENERAL OF INDIA The Constitution of India (Article 148) provides for an independent office of the Comptroller and Auditor general of India (CAG). He is the head of the Indian Audit and Accounts Department. He is the guardian of the public purse and controls at both the levels-the Centre and the state. His duty is to uphold the Constitution of India and laws of Parliament in the field of financial administration. This is the reason why Dr. B.R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India. He is one of the bulwarks of the democratic system of government in India; the others being the Supreme Court, the Election Commission and the Union Public Service Commission. APPOINTMENT AND TERM The CAG is appointed by the President of India. The CAG, before taking over his office, makes and subscribes before the president an oath or affirmation: He holds office for a period of six years or upto the age of 65 years, whichever is earlier. He can also be removed by the president on same grounds and in the same manner 8

9 as a judge of the Supreme Court. In other words, he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity. No minister can represent the CAG in Parliament and no minister can be called upon to take any responsibility for any actions done by him. DUTIES AND POWERS The duties and functions of the CAG as laid down by the Parliament and the Constitution are: He audits the accounts related to all the expenditure incurred by the Central and state governments. He audits the accounts of bodies and authorities financed from the Central or state revenues like corporations, companies and so on. SEPERATION OF ACCOUNTS FROM AUDIT The CAG was relieved of the responsibility of the compilation and maintenance of accounts of the Central government and is now concerned with their auditing only. CAG submits three audit reports to be parliament. Audit Report on appropriation accounts; Audit Report on finance accounts; and Audit Report on public undertakings The president lays three reports before both the Houses of the Parliament. After this, the Public Accounts Committee examines them and reports its finding to the Parliament. ROLE The role of CAG is to uphold the Constitution of India and the laws of Parliament in the field of financial administration. The CAG is an agent of the Parliament and conducts audit of expenditure on behalf of the Parliament. Therefore, he is responsible only to the Parliament. The Constitution of India visualizes the CAG to be Comptroller as well as Auditor General. However, in practice, the CAG is fulfilling the role of an Auditor-general only and not that of a Comptroller. In other words, the CAG has no control over the issue of money from the consolidated fund and many departments are authorized to draw money by issuing cheques without specific authority from the CAG, who is concerned only at the audit stage when the 9

10 expenditure has already taken place. In this respect, the CAG of India differs totally from the CAG of Britain who has powers of both Comptroller as well as Auditor General. In other words, in Britain, the executive can draw money from the public exchequer only with the approval of the CAG. ATTORNEY GENERAL AND SOLICITOR GENERAL OF INDIA The Constitution (Article 76) has provided for the office of the Attorney General for India. He is the highest law officer in the country. APPOINTMENT AND TERM The Attorney General (AG) is appointed by the President. He must be a person who is qualified to be appointed a judge of the Supreme Court. In other words, he must be a citizen of India and he must have been a judge of some high court for ten years or an eminent jurist, in the opinion of the president. The term of office of the AG is not fixed by the Constitution. Further, the Constitution does not contain the procedure and grounds for his removal. He holds office during the pleasure of the president. DUTIES AND FUNCTIONS As the chief law officer of the Government of India, the duties of the AG include the following: To give advice to the Government of India upon such legal matters, which are referred to him by the president. To perform such other duties of a legal character that is assigned to him by the president. The president has assigned the following duties to the AG. To appear on behalf of the Government of India in all cases in the Supreme Court in which the Government of India is concerned. To represent the Government of India in any reference made by the president to the Supreme Court under Article 143 of the Constitution. To appear in any high court in any case in which the Government of India is concerned. RIGHTS AND LIMITATIONS In the performance of his official duties, the Attorney General has the right of audience in all courts in the territory of India. Further, he has the right to speak and to take part in the proceedings of both the Houses of Parliament or their joint sitting and any 10

11 committee of the Parliament of which he may be named a member, but without a right to vote. He enjoys all the privileges and immunities that are available to a member of Parliament. Attorney general is not a full time counsel for the Government. He does not fall in the category of government servants. Further, he is not debarred from private legal practice. SOLICITOR GENERAL OF INDIA In addition to the AG, there are other law officers of the Government of India. They are the solicitor general of India and additional solicitor general of India. They assist the AG in the fulfillment of his official responsibilities. It should be noted here that only the office of the AG is created by the Constitution. In other words, Article 76 does not mention about the solicitor general and additional solicitor general. The AG is not a member of the Central cabinet. There is a separate law minister in the Central cabinet to look after legal matters at the government level. 11

12 NON-CONSTITUTIONAL BODIES PLANNING COMMISSION The Planning Commission was established in March 1950 by an executive resolution of the Government of India, under the chairmanship of K C Neogi. Thus, the Planning Commission is neither a constitutional body nor a statutory body. In India, it is the supreme organ of planning for social and economic development. COMPOSITION The following points can be noted in context of the composition of the Planning Commission: The Prime Minister of India has been the chairman of the commission. He presides over the meetings of the commission. The commission has a deputy chairman. He is the de facto executive head of the commission. He is responsible for the formulation and submission of the draft Five-Year Plan to the Central cabinet. He is appointed by the Central cabinet for a fixed tenure and enjoys the rank of a cabinet minister. Though he is not a member of cabinet, he is invited to attend all its meeting (without a right to vote). CRITICAL EVALUATION The Planning Commission was originally established as a staff agency with advisory role but in the course of time it has emerged as a powerful and directive authority. The critics have described it as a Super Cabinet, an Economic Cabinet, a Parallel Cabinet, and the Fifth Wheel of the Coach and so on. NATIONAL DEVELOPMENT COUNCIL The National Development Council (NDC) was established in August 1952 by an executive resolution of the Government of India. Like the Planning Commission, it is neither a constitutional body nor a statutory body. COMPOSITION The NDC is composed of the following members: Prime minister of India. All Union cabinet ministers. Chief Ministers of all states. Chief ministers/administrators of all union territories. 12

13 Members of the Planning Commission. The secretary of the Planning Commission acts as the secretary to the NDC. FUNCTIONS The NDC is assigned with the following functions. To prescribe guidelines for preparation of the National Plan. To consider the national Plan as prepared by the Planning Commission. The Draft Five-Year Plan prepared by the Planning Commission is first submitted to the Union cabinet. After its approval, it is placed before the NDC, for its acceptance. Then, the Plan is presented to the Parliament. With its approval, it emerges as the official Plan and published in the official gazette. The NDC is the highest body, below the Parliament, responsible for policy matters with regard to planning for social and economic development. CRITICAL EVALUTION The first and foremost function of NDC is to act as a bridge and link between the Central government, the state governments and the Planning Commission. NATIONAL HUMAN RIGHTS COMMISSION The National Human Rights Commission is a statutory body. It was established in 1993 under a legislation enacted by the Parliament, namely, the Protection of Human Rights Act, The commission is the watchdog of human rights in the country. COMPOSITION OF THE COMMISSION The commission is a multi-member body consisting of a chairman and four members. The chairman should be a retired chief justice of India. The chairman and members are appointed by the president. The chairman and members hold office for a term of five years or until they attain the age of 70 years, whichever is earlier. The president can remove the chairman or any member from the office under the following circumstances: If he is adjudged an insolvent; or If he engages, during his term of office, in any paid employment outside the duties of his office; or If he is unfit to continue in office physically or mentally. 13

14 If he is of unsound mind and stand so declared by a competent court; or If he is convicted and sentenced to imprisonment for an offence. The president can also remove the chairman or any member on the ground of proved misbehaviour or incapacity. However, in these cases, the president has to refer the matter to the Supreme Court, after the inquiry, upholds the cause of removal and advises so, then the president can remove the chairman or a member. WORKING OF THE COMMISSION The Commission is not empowered to inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. The functions of the commission are mainly recommendatory in nature. It has no power to punish the violators of human rights, nor to award any relief including monetary relief to the victim. Notably, its recommendations are not binding on the concerned government or authority. But, it should be informed about the action taken on its recommendations within one month. The commission submits its annual or special reports to the Central government and to the state government concerned. These reports are laid before the respective legislatures. CENTRAL VIGILANCE COMMISSION The Central Vigilance Commission (CVC) is the main agency for preventing corruption in the Central government. It was established in Its establishment was recommended by the Santhanam Committee on Prevention of Corruption ( ). In September 2003, the parliament enacted a law conferring statutory status on the CVC. COMPOSITION The CVC is a multi-member body consisting of a Central Vigilance Commissioner and not more than two vigilance commissioners. They are appointed by the president on the recommendation of a three-member committee consisting of the prime minister as its head, the Union minister of home affairs and the Leader of the Opposition in the Lok Sabha. They hold office for a term of four years or until they attain the age of sixty five years, whichever is earlier. After they are not eligible for further employment under the Central or a state government. The president can remove the Central Vigilance Commissioner or any vigilance commissioner from the office under the following circumstances: 14

15 If he is adjudged as an insolvent; or If he has been convicted of an offence which involves a moral turpitude; or If he engages, in any paid employment outside the duties of his office; If he is unfit to continue in office by reason of infirmity of mind or body; or If he has acquired such financial or other interest as is likely to affect his official functions. The president can also remove the Central Vigilance Commissioner or any vigilance commissioner on the ground of proved misbehaviour or incapacity. However, in these cases, the president has to refer the matter to the Supreme Court, after the inquiry, upholds the cause of removal and advises so, then the president can remove the chairman or a member. The salary, allowances and other conditions of service of the Central Vigilance Commissioner are similar to those of the Chairman of UPSC and that of the vigilance commissioner are similar to those of a member of UPSC. FUNCTIONS The functions of the CVC are: To inquire an allegation that a public servant being an employee of the Central government or its authorities,has committed an offence under the Prevention of Corruption Act, To inquire any official belonging to the, (a) Members of all-india services serving in the Union and Group A officers of the Central government; and (b) Specified level of officers of the authorities of the Central government. WORKING The CVC conducts its proceedings at its headquarters (New Delhi). It has all the powers of a civil court and its proceedings have a judicial character. The CVC, on receipt of the report of the inquiry undertaken by any agency on a reference made by it, advises the Central government or its authorities. The Central government or its authorities shall consider the advice of the CVC and takes appropriate action. However, where the Central government or any of its authorities does not agree with the advice of the CVC, it shall communicate the reasons to the CVC. The CVC has to present annually to the president a report on its performance. The president places this report before each House of Parliament. 15

16 The Central government is required to consult the CVC in making rules and regulations governing the vigilance the disciplinary matters relating to the members of central services and All-India Services. CENTRAL INFORMATION COMMISSION The Central Information Commission was established by the Central Government in It was constituted through an Official Gazette Notification under the provisions of the Right to Information Act (2005). Hence, it is not a constitutional body. The Central Information Commission is a high-powered independent body which inter alia looks into the complaints made to it and decides the appeals. COMPOSITION The Commission consists of a Chief Information Commissioner and not more than ten Information Commissioners. They are appointed by the President on the recommendation of a committee consisting of the Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. TENURE AND SERVICE CONDITIONS The Chief Information Commissioner and an Information Commissioner hold office for a term of 5 years or until they attain the age of 65 years, whichever is earlier. They are not eligible for reappointment. The President can remove the Chief Information Commissioner or any Information Commissioner or any Information Commissioner from the office (Same as in the case of NHRC & CVC). The salary, allowances and other services conditions of the Chief Information Commissioner are similar to those of the Chief Election Commissioner and that of the Information Commissioner are similar to those of an Election Commissioner. LOKPAL AND LOKAYUKTA. The Scandinavian institution of Ombudsman was created in Sweden in 1809.It is the earliest democratic institution in the world for the redressal of citizens grievances. The Ombudsman in India is called as Lokpal/Lokayukta. 16

17 LOKPAL The Administrative Reforms Commission (ARC) of India ( ) recommended the setting up of two special authorities designated as Lokpal and Lokayukta for the redressal of citizens grievances. On the pattern of the institution of Ombudsman in Scandinavian countries. The Lokpal would deal with complaints against ministers and secretaries at Central and state levels, and the lokayukta (one at the Centre and one in every state) would deal with complaints against other specified higher officials. The ARC kept the judiciary outside the purview of Lokpal and lokayukta as in New Zealand. The Lokpal would be appointed by the president after consultation with the chief justice of India, the Speaker of Lok Sabha and the Chairman of the Rajya Sabha. SALIENT FEATURES The Salient Features of the 2001 Lokpal Bill are as follows: The bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against public functionaries including the prime minister, provided the offence committed is within ten years from the day the complaint is lodged. The Lokpal shall consist of a chairperson who is or has been a chief justice or a judge of the Supreme Court and two members who are or have been the judges of the Supreme Court or the chief justice of the high court. The chairperson and members shall be appointed by the president of India on the recommendation of a committee headed by the vice-president of India and comprising the prime minister, the Lok Sabha Speaker, the home minister, the Leader of the house other than the House in which the prime minister is a member, the Leader of the Opposition on both the Lok Sabha and the Rajya Sabha. The bill provides for a fixed tenure of three years for the chairperson and the members. LOKAYUKTAS The institution of lokayukta was established first in Maharashtra in Although Orissa has passed the Act in this regard in 1970, it came into force only in The structure of the lokayukta is not same in all the states. APPOINTMENT The lokayukta and upalokayukta are appointed by the governor of the state. 17

18 EMERGENCY PROVISIONS The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively. During an Emergency, the Central government becomes all powerful and the states go into the total control of the Centre. 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. The Constitution stipules three types of emergencies: An emergency due to war, external aggression or armed rebellion(article 352). This is popularly known as National Emergency. However, the Constitution employs the expression proclamation of emergency to denote an emergency of this type. An Emergency due to the failure of the constitutional machinery in the states (Article 356). This is popularly knows as President s Rule. It is also known by two other names- State Emergency or Constitutional Emergency. However, the Constitution does not use the word emergency for this situation. Financial Emergency due to a threat to the financial stability or credit of India (Article 360). NATIONAL EMERGENCY GROUNDS OF DECLARATION Under Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. The president can also issue different proclamations on grounds of war, external aggression, armed rebellion, or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation. This provision was added by the 38 th Amendment Act of When a national emergency is declared on the ground of war or external aggression, it is known as External Emergency. On the other hand, when it is declared on the ground of armed rebellion, it is known as Internal Emergency. 18

19 A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42 nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specified part of India. Originally, the Constitution mentioned internal disturbance as the third ground for the proclamation of a National Emergency, but the expression was too vague and had a wider con-notation. Hence, the 44 th Amendment Act of 1978 substituted the words armed rebellion for internal disturbance. Thus, it is no longer possible to declare a National Emergency on the ground of internal disturbance as was done in 1975 by the Congress government headed by Indira Gandhi. The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet The 44 th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.. In 1975 the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet. The 38 th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44 th Amendment Act of Further, in the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide. PARLIAMENTARY APPROVAL AND DURATION The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue. Originally, the period allowed for approval by the Parliament was two months, but was reduced by the 44 th Amendment Act of However, if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha 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 Rajya Sabha has in the meantime approved it. If it approved by both the Houses of Parliament, the emergency continues for six months, and can be extended to an indefinite period with an approval of the Parliament for every six months. 19

20 Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. This special majority provision was introduced by the 44 th Amendment Act of REVOCATION OF PROCLAMATION A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. EFFECTS OF NATIONAL EMERGENCY A proclamation of Emergency has drastic and wide ranging effects on the Political system. (a) Executive: During a national emergency, the executive power of the Centre extends to directing any state on any matter. (b) Legislative: During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List. The laws made by Parliament on the state subjects during a National Emergency become inoperative six months after the emergency has ceased to operate. (c) Financial: While a proclamation of national emergency is in operation, the President can modify the constitutional distribution of revenues between the centre and the states. EFFECT ON THE LIFE OF THE LOK SABHA While a proclamation of National Emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term (five years) by a law of Parliament for one year at a time (for any length of time). The term of the Fifth Lok Sabha ( ) was extended two times by one year at a time. EFFECT ON THE FUNDAMENTAL RIGHTS Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights. Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). (a) Suspension of Fundamental Rights under Article 19: According to Article 358, when a proclamation of national emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required. 20

21 The 44 th Amendment Act of 1978 restricted the scope of Article 358. According to it the 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. (b) Suspension of other Fundamental Rights: Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. This means that under Article 359, the Fundamental Rights as such are not suspended, but only their enforcement. According to the 44 th Amendment Act of 1978 the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. DISTINCTION BETWEEN ARTICLES 358 AND 359 Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights. Article 358 operates only in case of External Emergency and not in the case of Internal Emergency. Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period. Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it. Article 358 suspends Article 19 completely while Article 359 does not empower the suspension of the enforcement of Articles 20 and 21. DECLARATIONS MADE SO FAR National Emergency has been proclaimed three times so far-in 1962, 1971 and

22 The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA and was in force till January Hence, a fresh proclamation was not needed at the time of war against Pakistan in The second proclamation of national emergency was made in December 1971 in the wake of attack by Pakistan. Even when this Emergency was in operation, a third proclamation of National Emergency was made in 26June Both the second and third proclamations were revoked in 21 March The first two proclamation (1962 and 1971) were made on the ground of external aggression, while the third proclamation (1975) was made on the ground of internal disturbance. The Janta Party came into power after the internal Emergency in 1975 and appointed the Shah Commission to investigate the circumstances that warranted the declaration of an Emergency in The commission did not justify the declaration of the Emergency. PRESIDENT S RULE Grounds of Imposition The Centre takes over the government of a state under Article 356 in case of failure of constitution machinery in state. This is popularly known as President s Rule. It is also known as State Emergency or Constitutional Emergency. The President Rule can be proclaimed under Article 356 on two grounds. Article 356 empowers the President to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution. Notably, the president can act either on a report of the governor of the state or otherwise too. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the Centre, it will be lawful for the president to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution. PARLIAMENTARY APPROVAL AND DURATION A proclamation imposing President s Rule must be approved by both the Houses of Parliament within two months from the date of its issue. 22

23 The President s Rule continues for six months. It can be extended for a maximum period of three years with the approval of the Parliament, every six months. Every resolution approving the proclamation of President s Rule or its Continuation can be passed by either House of Parliament only by a simple majority, beyond one year, the President s Rule can be extended by six months at a time only when the following two conditions are fulfilled. A proclamation of National Emergency should be in operation in the whole of India, or in the whole or any part of the state; and The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties. When the President s Rule is imposed in a state, the President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. A proclamation under Article 356 is popularly known as the imposition of President s Rule in a state. COMPARING NATIONAL EMERGENCY AND PRESIDENT S RULE 1. It can be proclaimed only when the security of India or a part of it is threatened by war, external aggression or armed rebellion. 2. During its operation, the state executive and legislature continue to function and exercise the powers assigned to them under the Constitution. Its effect is that the Centre gets concurrent powers of administration and legislation in the state. 1. It can be proclaimed when the government of a state cannot be carried on in accordance with the provisions of the Constitution due to reasons which may not have any connection with war, external aggression or armed rebellion. 2. During its operation, the state executive is dismissed and the state legislature is either suspended or dissolved. The president administers the state through the governor and the Parliament makes laws for the state. In brief, the executive and legislative powers of the state are assumed by the Centre. 3. Under this, the Parliament can make laws on the subjects enumerated in the State List Only by itself, that is, it cannot delegate the same to any other body or authority. 3. Under this, the Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him. So far, the practice has been for the president to make laws for the state in consultation with the members of Parliament from that state. 23

24 Such laws are known as Presidents Acts. 4. There is no maximum period prescribed for its operation. It can be continued indefinitely with the approval of Parliament for every six months. 5. Under this, the relationship of the Centre with all the states undergoes a modification. 6. Every resolution of Parliament approving its proclamation or its continuance must be passed by a special majority. 4. There is a maximum period prescribed for its operation, that is, three years. Thereafter, it must come to an end and the normal constitutional machinery must be restored in the state. 5. Under this, the relationship of only the state under emergency with the Centre undergoes a modification. 6. Every resolution of Parliament approving its proclamation or its continuance can be passed only by a simple majority. 7. It affects fundamental rights of the citizens. 7. It has no effect on Fundamental Rights of the citizens. 8. Lok Sabha can pass a resolution for its revocation 8. There is no such provision. It can be revoked by the President only on his own. For the first time, the President s Rule was imposed in Punjab in SCOPE OF JUDICIAL REVIEW In Bommai case (1994), the Supreme Court ruled that, The President proclamation imposing President s Rule is subject to judicial review. FINANCIAL EMERGENCY Grounds of Declaration Article 360 empowers the President to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened. PARLIAMENTARY APPROVAL AND DURATION A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. This implies two things: There is no maximum period prescribed for its operation; and Repeated parliamentary approval is not required for its continuation. 24

25 A resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by a simple majority. A proclamation of Financial Emergency may be revoked by the president at anytime by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. EFFECTS OF FINANCIAL EMERGENCY The consequences of the proclamation of a Financial Emergency are following: The executive authority of the Centre extends (a) to directing any state to observe such canons of financial propriety as are specified by it; and (b) to directions as the President may deem necessary and adequate for the purpose. Any such direction may include a provision requiring (a) the reduction of salaries and allowances of all or any class of persons serving in the state; and (b) the reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the state. The President may issue directions for the reduction of salaries and allowances of (a) all or any class of persons serving the Union; and (b) the judges of the Supreme Court and the high court. No Financial Emergency has been declared so far, though there was a financial crisis in CRITICISM OF THE EMERGENCY PROVISIONS T T Krishnamachari feared that by means of these provisions the President and the Executive would be exercising a form of constitutional dictatorship. H N Kunzru opined that the emergency financial provisions pose a serious threat to this financial autonomy of the states. Sir Alladi Krishnaswami Ayyar labelled them as the very life-breath of the Constitution. Mahabir Tyagi opined that they would work as a safety-valve and thereby help in the maintenance of the Constitution. 25

26 PANCHAYATI RAJ The term Panchayati Raj in India signifies the system of rural local self-government. It is entrusted with rural development. It was constitutionalised through the 73 rd Constitutional Amendment Act of EVOLUTION OF PANCHAYATI RAJ BALWANT RAI MEHTA COMMITTEE In January 1957, the Government if India appointed a committee to examine the working of the Community Development Programme (1952) and the National Extension Service (1953) and to suggest measures for their better working. The chairman of this committee was Balwant Rai G Mehta. The committee submitted its report in November 1957 and recommended the establishment of the scheme of democratic decentralization, which ultimately came to be known as Panchayati Raj. The specific recommendations made by it are: Establishment of a three-tier Panchayati Raj system-gram Panchayat at the village level, Panchayati samiti at the block level and zila parishad at the district level. The district collector should be the chairman of the zila parishad. Rajasthan was the first state to establish Panchayati Raj. The scheme was inaugurated by the prime minister on October 2, 1959, in Nagaur district, Rajasthan followed by Andhra Pradesh, which also adopted the system in Therefore, most of the states adopted the system. ASHOK MEHTA COMMITTEE In December 1977, the Janata Government appointed a committee on Panchayati Raj institutions under the chairmanship of Ashok Mehta. Its main recommendations are The three-tier system of Panchayati Raj should be replaced by the two-tier system. District should be the first point for decentralization under popular supervision below the state level. There should be an official participation of political parties at all levels of Panchayat elections. The Panchayati Raj institutions should have compulsory powers of taxation to mobilize their own financial resources. Seats for SCs and STs should be reserved on the basis of their population. 26