Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

CONSTITUTION OF INDIA EXPLAINED

The Constitution of India forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

Article 355 — Protection of States

• It shall be the duty of Union
  • to protect every State
    • against external aggression and internal disturbance
  • to ensure that govt of every State is carried on
    • in accordance with provisions of this Constitution

Article 356 — Failure of Constitutional machinery in a State

• If President is satisfied, on a report from Governor or otherwise
  • that govt of a State cannot be carried on in accordance with provisions of this Constitution
• President may by Proclamation
  • assume to himself
    • functions of State Govt
    • powers vested in Governor
    • powers vested in any authority other than State Legislature and High Court
  • declare that powers of State Legislature
    • shall be exercised by Parliament or under authority of Parliament
  • suspend any provision of this Constitution
    • relating to any authority other than High Court

Approval by Parliament

• Proclamation shall cease to operate
  • at the end of 2 months
  • unless Parliament approves it before that
• If House of People is not in existence
  • Proclamation needs to be approved
    • only by Council of States
• As and when House of People is reconstituted
  • Proclamation needs to be approved by it
    • within 30 days, for further continuance
• A Proclamation approved by Parliament
  • shall continue to operate till 6 months
    • from the date of its issue
• Subsequent approvals
  • are valid for further 6 months

Maximum Time Limit

• No Proclamation shall in any case
  • remain in force for more than 3 years

Pre-conditions for extension beyond one year

• Proclamation can extend beyond one year only if
  • Proclamation of Emergency is in force
    • in whole of India or any part of that State
    • at the time of approval by Parliament and
  • Election Commission certifies that
    • continuance of Proclamation is necessary
    • due to difficulties in holding general elections to Legislative Assembly

Explanatory Notes by DLA on Article 356:

Question:

• Whether a proclamation under article 356(1) is amenable to judicial review?

Answer:

• Validity of a Proclamation issued u/A 356(1)
  • is judicially reviewable

Extent of examination:

• whether it was issued on the basis of any material at all or
• whether the material was relevant or
• whether the Proclamation was issued in the mala fide exercise of power

Limitations on the power of review

• The court will not go into the correctness of the material or its adequacy.
• Its enquiry is limited to see whether the material was relevant to the action.
• Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken.

Burden of proof

• When
  • a prima facie case is made out in a challenge to the Proclamation
• the burden is on the Union Govt
  • to prove that relevant material did in fact exist

Reason : Sec 106 Evidence Act

• Since
  • such material would be exclusively within the knowledge of Union Govt
• burden of proving its existence
  • would be on the Union Govt
  • in view of Section 106 of Evidence Act

Effect of the bar imposed by article 74(2)

• Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given.
• The material on the basis of which advice was tendered does not become part of the advice.

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Which powers to exercise?

• When the President issues Proclamation u/A 356(1), he may exercise all or any of the powers under sub-clauses (a), (b) and (c).
• It is for him to decide which of the said powers he will exercise, and at what stage.

Limitation on these powers:

• Clause (3) of Article 356 is intended to be a check on the powers of the President under clause (1).

Effect of clause (3) as per the Constitution:

• The Proclamation can not last for more than two months unless it is approved by both Houses of Parliament.
• It would lapse at the end of two months.

Effect of clause (3) as per Supreme Court:

• It will not be permissible for the President
  • to exercise powers under sub-clauses (a), (b) and (c) of clause (1) to take irreversible actions
  • till at least both Houses of Parliament have approved the Proclamation

Effect of disapproval

• In case both Houses of Parliament disapprove or do not approve
  • the Proclamation lapses at the end of the two-month period
• In such a case:
  • Govt which was dismissed revives
  • Legislative Assembly, which may have been kept in suspended animation, gets reactivated

Effect of approval

• if the Proclamation is approved by both Houses within two months
  • the Govt (which was dismissed) does not revive on the expiry of the period of proclamation or on its revocation
  • the Legislative Assembly if dissolved after the approval, also does not revive

Question:

• Can the President dissolve the Assembly while acting u/a 356?

Answer:

• Article 174(2) empowers the Governor to dissolve the Legislative Assembly.
• So, when the President exercises Governor’s powers under subclause (a), he can dissolve the Legislative Assembly.

Supreme Court on this point:

• The President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor u/A 174(2)(b) read with Article 356(1)(a) till at least both Houses of Parliament approve of the Proclamation.
• Dissolution of the Assembly
  • prior to approval of Proclamation by Parliament under clause (3)
• will be per se invalid

Effect of invalidity

• If the Proclamation is held invalid by the Court
• then,
  • notwithstanding the fact that it is approved by both Houses of Parliament
• it will be open to the court
  • to restore the status quo ante to the issuance of the Proclamation and hence
  • to restore the Legislative Assembly and the Ministry

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