System of Government - Indian Polity Questions and Answers

ANSWER: Only 2

Explanation:

• Pattern of government in the states is similar to that of the Centre.


• Part 6 of the Constitution, dealing with government of the states, is not applicable to Jammu and Kashmir (it has separate state constitution).


• Articles 153 to 167 in Part 6 of the Constitution deal with the State Executive.


• The state executive consists of the Governor, the Chief Minister, the Council of Ministers and the Advocate General of the state.


• The office of governor has a dual role - as an agent of the Central Government and as Chief Executive head of the state.


• However, he is a nominal executive head (titular or constitutional head).


• The 7^th Constitutional Amendment Act of 1956 facilitated the appointment of the same person as a governor for two or more states.

Appointment -


• The governor is not elected.


• He is appointed by the president by warrant under his hand and seal.


• Appointing the Governor by the President is a feature adopted from the Canadian Constitution.


• He is sort of a nominee of the Central Government.


• But, as observed by Supreme Court in 1979, the office of governor of a state is not an employment under the Central government.


• It is an independent constitutional office.


• It is not under the control of or subordinate to the Central Government.

Constituent Assembly chose for the present system of appointment of because -


• The mode of direct election can create conflicts between the Governor and the Chief Minister.


• Being only a constitutional (nominal) head, there is no point in making arrangements for his election and spending huge amount of money.


• The election of a Governor would be entirely on personal issues.


• An elected Governor would belong to a party and would not be a neutral and an impartial head.


• The election of Governor would create separatist tendencies and thus affect the political stability and unity of the country.


• Presidential nomination helps the Centre to maintain its control over the states.


• The direct election of the Governor creates a serious problem of leadership during general election in the state.


• The Chief Minister would like his nominee to contest for governorship.


• Thus, a lesser than best man of the ruling party would be elected as Governor.

Qualifications in Constitution for the appointment of a person as a governor -


• He should be a citizen of India.


• He should have completed the age of 35 years.


• In addition to this, 2 conventions have also developed.


• One is that he should bean outsider, that is, he should not belong to the state where he is appointed.


• This makes him free from the local politics.


• Second is that while appointing the Governor, the President is needed to consult the Chief Minister of the state concerned.


• This will ensure that the constitutional machinery in the state functions smoothly.

ANSWER: All of the above

Explanation:

Constitution lays down the following conditions for the Governor’s office -

(a) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule.

(b) If a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.

(c) The Governor shall not hold any other office of profit.

(d) The Governor shall be entitled without payment of rent to the use of his official residences (Raj Bhavan).

(e) He shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and emoluments, allowances and privileges as are specified in the Second Schedule.

(f) Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the states in such proportion as the President may by order determine.

(g) The emoluments and allowances of the Governor shall not be diminished during his term of office.


• The governor enjoys personal immunity from legal liability for his official acts.


• During his term of office, he is immune from any criminal proceedings, even in respect of his personal acts.


• He cannot be arrested or imprisoned.


• But civil proceedings can be initiated after giving two months’ notice, during his term of office in respect of his personal acts.


• Before entering upon his office, the Governor has to make and subscribe to an oath or affirmation.


• The oath of office to the Governor is administered by the Chief Justice of the concerned State High Court.


• In his absence, the senior-most judge of that court (who is available).


• Every person discharging the functions of the Governor also undertakes the similar oath or affirmation.

ANSWER: 1, 2 and 4

Explanation:

• Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.


• In performance of this duty, the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in state.


• This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.


• The President’s Rule can be proclaimed under Article 356 on two grounds - one mentioned in Article 356 itself and another in Article 365.


• 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 (i.e., even without the governor’s report).


• 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.


• Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.


• In performance of this duty, the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in state.


• This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.


• The President’s Rule can be proclaimed under Article 356 on two grounds - one mentioned in Article 356 itself and another in Article 365.


• 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 (i.e., even without the governor’s report).


• 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.


• However, if the proclamation of President’s Rule 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 two months 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 approves it in the meantime.


• If approved by both the Houses of Parliament, the President’s Rule continues for six months.


• The 42^nd Amendment Act of 1976 had raised the period of six months to one year.


• But, the 44^th Amendment Act of 1978 again reduced the period to six months.


• It can be extended for a maximum period of three years with the approval of the Parliament, every six months.


• However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuation of the President’s Rule, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabhahas in the meantime approved its continuance.


• 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.


• The 44^th Amendment Act of 1978 introduced a new provision to restraint 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 2 conditions are fulfilled -

a. 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

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


• A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation which doesn’t need parliamentary approval.

ANSWER: Parliament assumes the power to legislate on subject in the state list.

Explanation:

The President acquires the following powers when the President’s Rule is imposed in a state -

1. He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.

2. He can declare that the powers of the state legislature are to be exercised by the Parliament.

3. He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the 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.


• This is the reason why a proclamation under Article 356 is popularly known as the imposition of ‘President’s Rule’ in a state.


• Further, the President either suspends or dissolves the state legislative assembly.


• In case of dissolution fresh elections are held for the state assembly.


• The Parliament passes the state legislative bills and the state budget.

When the state legislature is thus suspended or dissolved -

1. The Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him in this regard.

2. The Parliament or in case of delegation, the President or any other specified authority can make laws conferring powers and imposing duties on the Centre or its officers and authorities, the President can authorize, when the Lok Sabha is not in session, expenditure from the state consolidated fund pending its sanction by the Parliament.

3. The President can promulgate, when the Parliament is not in session, ordinances for the governance of the state.


• A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule.


• This means that the period for which such a law remains in force is not co-terminus with the duration of the proclamation.


• But it can be repealed or altered or re-enacted by the state legislature.


• It should be noted here that the President cannot assume to himself the powers vested in the concerned state high court or suspend the provisions of the Constitution relating to it.


• In other words, the constitutional position, status, powers and functions of the concerned state high court remain same even during the President’s Rule.

ANSWER: 1, 3, 4

Explanation:

• While a proclamation of Emergency is in force, the normal fabric of the Centre–state relations undergoes a basic change.
• This can be studied under three sections, executive, legislative and financial.

Executive -


• During a national emergency, the executive power of the Centre extends to directing any state regarding the manner in which its executive power is to be exercised.


• In normal times, the Centre can give executive directions to a state only on certain specified matters.


• However, during a national emergency, the Centre becomes entitled to give executive directions to a state on ‘any’ matter.


• Thus, the state governments are brought under the complete control of the Centre, though they are not suspended.

Legislative -


• During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List.


• 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.


• The laws made by Parliament on the state subjects during a National Emergency become inoperative six months after the emergency has ceased to operate.


• Notably, while a proclamation of national emergency is in operation, the President can issue ordinances on the state subjects also, if the Parliament is not in session.


• Further, the Parliament can confer powers and impose duties upon the Centre or its officers and authorities in respect of matters outside the Union List, in order to carry out the laws made by it under its extended jurisdiction as a result of the proclamation of a National Emergency.


• The 42nd Amendment Act of 1976 provided that the two consequences mentioned above (executive and legislative) extends not only to a state where the Emergency is in operation but also to any other state.

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.


• This means that the president can either reduce or cancel the transfer of finances from Centre to the states.


• Such modification continues till the end of the financial year in which the Emergency ceases to operate.


• Also, every such order of the President has to be laid before both the Houses of Parliament.

ANSWER: Both 1 and 2

Explanation:

Effect on the Life of the Lok Sabha and State Assembly -


• 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).


• However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.


• For example, the term of the Fifth Lok Sabha (1971-1977) was extended two times by one year at a time.


• Similarly, the Parliament may extend the normal tenure of a state legislative assembly (five years) by one year each time (for any length of time) during a national emergency.


• This is subject to a maximum period of six months after the Emergency has ceased to operate.

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.


• Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21).


• 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.


• While a proclamation of national emergency is in operation, the state is freed from the restrictions imposed by Article 19.


• In other words, the state can make any law or can take any executive action abridging or taking away the six Fundamental Rights guaranteed by Article 19.


• Any such law or executive action cannot be challenged on the ground that they are inconsistent with the six Fundamental Rights guaranteed by Article 19.


• When the National Emergency ceases to operate,Article 19 automatically revives and comes into force.


• Any law made during Emergency, to the extent of inconsistency with Article 19, ceases to have effect.


• However, no remedy 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.

The 44^th Amendment Act of 1978 restricted the scope of Article 358 in two ways -


• Firstly, 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.


• Secondly, 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.

ANSWER: Only 1

Explanation:

• Article 359 authorizes 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.


• The said 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.


• Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country.


• It should be laid before each House of Parliament for approval.


• While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified Fundamental Rights.


• Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified Fundamental Rights.


• When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified Fundamental Rights, ceases to have effect.


• But no remedy lies for anything done during the operation of the order even after the order ceases to operate.


• This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires.

The 44^th Amendment Act of 1978 restricted the scope of Article 359 in two ways -


• Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21.


• In other words, the right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during emergency.


• Secondly, only those laws which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

ANSWER: 2, 3, 4

Explanation:

• 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.


• 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.


• 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 1975.


• 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’.


• 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 connotation.


• 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.


• This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the prime minister.


• Cabinet as per Article 352 includes the PM and council of ministers.


• 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 44^th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.


• 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 1978.


• Further, in the Minerva Mills case4, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

ANSWER: Kerala

Explanation:

• Since 1950, the President’s Rule has been imposed on more than 100 occasions, that is, on an average twice a year.


• Further, on a number of occasions, the President’s Rule has been imposed in an arbitrary manner for political or personal reasons.


• Hence, Article 356 has become one of the most controversial and most criticized provision of the Constitution.


• For the first time, the President’s Rule was imposed in Punjab in 1951.


• By now, all most all the states have been brought under the President’s Rule, once or twice or more.


• When general elections were held to the Lok Sabha in 1977 after the internal emergency, the ruling Congress Party lost and the Janta Party came to power.


• The new government headed by Morarji Desai imposed President’s Rule in nine states (where the Congress Party was in power) on the ground that the assemblies in those states no longer represented the wishes of the electorate.


• When the Congress Party returned to power in 1980, it did the same in nine states on the same ground.


• In 1992, President’s Rule was imposed in three BJP-ruled states (Madhya Pradesh, Himachal Pradesh and Rajasthan) by the Congress Party on the ground that they were not implementing sincerely the ban imposed by the Centre on religious organizations.


• In a landmark judgement in Bommai case (1994), the Supreme Court upheld the validity of this proclamation on the ground that secularism is a ‘basic feature’ of the Constitution.


• But, the court did not uphold the validity of the imposition of the President’s Rule in Nagaland in 1988, Karnataka in 1989 and Meghalaya in 1991.


• Dr B. R. Ambedkar, while replying to the critics of this provision in the Constituent Assembly, hoped that the drastic power conferred by Article 356 would remain a ‘dead-letter’ and would be used only as a measure of last resort.


• Maximum times it has been imposed in Kerala and Uttar Pradesh - 9 times.


• Recently in 2014 it was imposed in Delhi and in 2013 it was imposed in Jharkhand.


• In Punjab it has been imposed 8 times.


• Bihar and Manipur had it imposed 7 times each.


• In Delhi it was imposed only once.

ANSWER: Both 1 and 2

Explanation:
The difference is as follows -