BPSE - 212

4th Part 

Judicial Review

Powers of the President - The executive powers of the Union are vested in the President. Article 53 vests all executive powers in him and empowers him to exercise these powers directly by himself or through officers subordinate to him. Article 75 requires the Prime Minister to communicate to the President all decisions of the Union Council of Ministers. Article 77 holds that all executive powers of the Union government shall be exercised in the name of the President. The President has both administrative and military powers. The President has the power of appointment and removal of high dignitaries of the State. The President appoints the Prime Minister and, on the latter’s advice, the council of ministers, the

Attorney-General, the justices of the Supreme Court and High Courts, members of special commissions (such as the Union Public Service Commission and the Election Commission); and the governors of states. The choice of the Prime Minister is not a

discretionary prerogative of the President but is usually dictated by the party commanding a majority following in the Lok Sabha.

               The President of India is also the Commander-in-Chief of the Defence Forces. He appoints the Chiefs of the Army, the Navy, and the Air Force. He has the power to declare war and conclude peace. But all these powers have to be exercised by him subject to the ratification of the Parliament. As pointed out, he exercises he

exercises all the executive powers only with the aid and advice of the Council of Ministers headed by the Prime Ministers.

              Even though the President is not a member of either house of Parliament, Article 79 states that the President is an integral part of the Union Parliament. The President has the power to summon both the houses of Parliament, nominate twelve members to the Rajya Sabha, has the right to address either house or their joint

session at any time and the power to dissolve the Lok Sabha. All money bills to be introduced in the Parliament have to obtain the recommendation of the President. Such a prior recommendation is also necessary for introducing bills regarding the formation of new states, alteration of areas, boundaries, names of the existing states,

etc. Finally, when any bill is passed by the Parliament, it can become an Act only when it has the assent of the President. The President can withhold or return a non-money bill for the reconsideration of the Parliament. However, if the same is passed by both the houses with or without modifications and returned to the President, the latter is bound to give his assent.

             When the Parliament is not in session, the President can promulgate ordinances in public interest. These ordinances have the same force and effect as the laws passed by the Parliament. However, they have to be placed before the Parliament within a

period of six weeks from the day of the reassembling of Parliament. Without the Parliament’s approval, the ordinance will become invalid. Article 254 empowers the President to remove inconsistencies between laws passed by the Parliament and State Legislatures and the subjects included in the Concurrent List.                        Another legislative function President having a bearing on states is that the Governor of a state can reserve certain bills passed by the state Legislatures for the consideration of the President.

The judicial powers of the President of India include the appointment of the justices of the Supreme Court and High Courts, and the power to grant pardon, reprieve, suspension, remission or commutation of punishment or sentence of the court. These powers of granting pardon are given to the President for removing the extreme rigidity in the criminal laws and for protecting the persons on humanitarian considerations. The President also has the right to seek the advice of the Supreme Court on some important constitutional, legal and diplomatic matters. In 1977, the President sought the advice of the Supreme Court for creating Special Courts to try the emergency excesses.

Q. What are the emergency powers of President.

A.  Emergency Provisions are enshrined in Part XVIII of the Constitution under Articles 352 to 360. With the intention of safeguarding sovereignty, independence, and integrity of the Union of India, the constitution bestows the President of India with emergency powers. The President is empowered to declare three types of emergencies, namely,

a) national emergency arising out of the war, external aggression or armed rebellion,

b) emergency arising due to the break down of the constitutional machinery in the States and

c) financial emergency.

National Emergency - The President can make a proclamation of national emergency at any time if he is satisfied that the security of Indian any part of the country is threatened by war, external aggression or armed rebellion. This proclamation must be submitted to the Parliament for its consideration and approval. It must be accepted within one month by both the houses of Parliament by two-third of the members present and voting. If the Parliament fails to approve the proclamation bill, it ceases to operate. If approved, it can continue for a period of six months. However, it can continue for any length of time if the President approves the proclamation for every six months. The Parliament, however, has the power to revoke the emergency at any time by a resolution proposed by at least one-tenth of the total members of

the Lok Sabha and accepted by a simple majority of the members present and voting.

National emergency under Article 352 was proclaimed for the first time in the wake of the war with China on October 26,1962. It continued up to January 10, 1968. Another proclamation of emergency took place on December 3, 1971, in the wake of the India-Pakistan war. The second proclamation was made in 1971 during the Bangladesh war. On 26th June 1975, for the third time, the President proclaimed, on the advice of the Prime Minister, an emergency in the name of grave danger to internal security.

Declaration of Constitutional Emergency (President’s Rule) -

The most contentious and abused emergency provision is Article    356. If the President receives a report from the Governor of a State citing break down of law and order machinery stating that the constitutional machinery has broken down or that the administration of the State can no longer be carried out in accordance with the provisions laid down in the Constitution of India, an emergency can be declared in that State. The President may do so even if he is otherwise satisfied with a constitutional breakdown in a state. The provision allows dismissing the State

government and bringing it under President's Rule or Central Rule. Under such a condition, the Governor of the State assumes all the responsibility. The Governor functions and carries out the administration in the State, on behalf of the President, i.e. the Centre, with the aid of his advisors appointed by the President who is recommended by the Union Council of Ministers. The proclamation of this type of emergency popularly called as President Rule can remain in force for a period of six months. By the 44th Amendment, the Parliament can extend the duration of the state emergency for a period of six months at one instance. The total period of state emergency cannot go beyond three years. 

            There were several instances when Article 356 was imposed in various States. The first instance of dismissing a State govt by invoking Article 356 even while it continued to enjoy the confidence of the State Legislature occurred in 1959, in Kerala, when the Communist government of the day was dismissed. Other instances include the dismissal of State governments en masse twice, in 1977 after the Janata Party swept the general elections and subsequently in 1979 when the Congress Party returned to power. Other contentious occasions on which invoking the provision resorted are in 1984 in Andhra Pradesh and later in Karnataka when the SR Bommai government was dismissed, and the court later subsequently held that the decision was incorrect.

Financial Emergency -

A financial emergency can be declared under Article 360 in conditions in which the financial stability or credit of the country or any part of the country is threatened. However, as provided for in the Forty-Fourth Constitutional Amendment Act of 1979, such a proclamation needs to be approved by both the Lok Sabha and the Rajya Sabha within two months from the date of its proclamation. In case if the Lok Sabha is at that time dissolved, within 30 days from the date it (the new house) is reconstituted it should be approved. On its face value, one can say that the President enjoys formidable powers. In reality, however, he can exercise his powers only on the aid and advice of the Council of Ministers, headed by the Prime Minister. In this respect, the Presidents position is more like that of the British Monarch rather than that of the President of the United States of America. While the President of India may be the head of the state, the head of the government is the Prime Minister.

Q. Define Collective Responsibility.

A. The Council of Ministers functions on the principle of collective responsibility. Under this principle, all ministers are equally responsible for each and every act of government. That is, under collective leadership, each minister accepts and agrees to share responsibility for all decisions of the cabinet. Doubts and disagreements are confined to the privacy of the cabinet room. Once a decision has been taken, it has to be loyally supported and considered as the decisions of the whole government. If any member of the Council of Ministers is unable to support government policy in the Parliament or in the country at large, then that member is morally bound to resign from the Council of Ministers.

               Even if the Council of Ministers is formed as a result of a coalition of various political parties, a minimum common programme becomes essential for maintaining the solidarity of the ministry. The various political parties forming the coalition govt have to stand behind that programme. Unless they do so the Cabinet cannot survive. Unity within Council of Ministers is not only essential for its very survival but is also necessary for its efficiency and efficacy, on the basis of which alone can it continue to enjoy the confidence of the people. Minister of State Mohan

Dharia was dismissed from the Council of Ministers in 1975 because of public dissent from the government policy on how to handle the people’s movement launched by Jayaprakash Narayan. Open bickering between members of the Janata government

on matters of public policy was the prelude to the collapse of the government in 1979.

Q. Parliamentary system contains structural factors which contribute to Prime Minister's power and influence. Identify these factors. Also elaborate PM powers.

A.       In a parliamentary system, the Prime Minister is the head of the Council of Ministers, leader of the majority party in the Lower House and head of the government. The Prime Minister’s prerogative of constituting, reconstituting and reshuffling the ministry as well as chairing the meetings bestows the office of PM with considerable influence over the members of Parliament. It must, however, be noted that the Prime Minister’s freedom to select his colleagues is subjected to his/her own position within the party. The Prime Minister also derives power and influence from the fact that he/she is the leader of the majority party and sometimes even the leader of the parliamentary wing of the party. 

                 As a leader of the Lok Sabha, the Prime Minister has enormous control over parliamentary activities. The Prime Minister advises the President on summoning and prorogation of the sessions of Parliament. The Speaker consults the Prime Minister in finalising the agenda of the Lok Sabha. With the Council of Ministers sponsoring the majority of the bills presented to the Parliament and with the Prime Ministers deciding on the strategies for presenting the bills before the Parliament, the Prime Minster’s influence over the legislature gets reinforced. Moreover, the

Prime Minister enjoys enormous legislative power in the form of recommending Ordinances to the President for promulgation when the Parliament is not in session.

              But the most important power of the Prime Minister with regard to Parliament is to recommend dissolution of Lok Sabha. The President has to accept the advice of the Prime Minister who is backed by the majority of the Lok Sabha. This is the power by

which the Prime Minister controls even the opposition. As the head of the government, the Prime Minister enjoys the power of

patronage. All the major appointments of the Central government are made by the Prime Minister in the name of the President, which includes justices and judges of the Supreme Court and High Court, the Attorney-General, the Chiefs of the army, navy and air force, Governors, ambassadors and High Commissioners, the Chief and

members of the Election Commission, etc. 

          Further, the Prime Minister’s control over the administration, including the intelligence agencies and other administrative wings of the government enhances his/her influence over other members of parliament and administration.

(PIL) Judicial Review - Public interest litigation means litigation for the protection of the public interest. It is the litigation which is introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. The Supreme Court of India stated that any ‘public-spirited’ individual or organization could move the court even by writing a letter. In 1986 when the then chief justice P.N. Bhagwati introduced public interest litigation (PIL) to the Indian judicial system. In 1988, the Supreme Court delineated the matters to be entertained as PIL. The categories are the matter concerning bonded labour, neglected children, the petition from prisoners, petition against police, petition against atrocities on women, children, Scheduled

Castes and Scheduled Tribes, environmental matters, adulteration of drugs and foods, maintenance of heritage and culture and other such matters of public interest. PIL is considered as one of the major democratic rights of the people of India and granted not by the Parliament but by the judiciary.

Judicial Reforms - The most fierce criticism that the judiciary in India faces large number of pending cases and the delay in the dispensation of justice. In the early 1990s, there were more than two crore cases pending in different courts around the country. Reasons for the piling of a large number of cases can be attributed to structural and procedural flaws in the judiciary. The exploitation of loopholes available in judicial process enables the dishonest to abuse the judicial system. This leads to the piling up of cases as well as delay in the dispensation of justice.

             Another weakness of the judicial system is cumbersome procedures and expensive cost of justice. In this regard, the Tenth Law Commission had invited suggestions for judicial reforms. One suggestion was to reduce the workload of the Supreme Court of India which accepts nearly one lakh cases every year. To reduce

the load of the Supreme Court, suggestions was to establish a Constitutional Court to deal exclusively with constitutional matters and another was to establish Zonal Courts of Appeal in the country. Systematic running of the courts and more use of technology are some other suggestions for judicial reforms. Suggestions for judicial reforms have been proposed to help achieve economic, political and social justice.