WHEN THE LAW-AND-ORDER SITUATION IS SCRAMBLED CAN ASSEMBLY BE DISSOLVED? CAN THE PRESIDENT ORDER FOR A FRESH ELECTION? LANDMARK CASES
Part XVIII of the constitution deals with such a situation that arises in the state of India. Let’s first read those provisions: Duration of State Legislatures.—(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the Assembly: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. (2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. Article 174(2) (2) The Governor may from time to time (a) Prorogue the House or either House; (b) dissolve the Legislative Assembly Article 355: Duty of the Union to protect States against external aggression and internal disturbance.—It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. Dictum: Naga Peoples Movement vs Union of India Reference in this context may be made to Article 355 of the Constitution whereunder a duty has been imposed on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. In view of the said provision, the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. There can be a situation arising out of internal disturbance which may justify the issuance of a proclamation under Article 356 of the Constitution enabling the President to assume to himself all or any of the functions of the Government of the State. That would depend on the gravity of the situation arising on account of such internal disturbance and on the President being satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with provisions of the Constitution. Provisions in case of failure of constitutional machinery in State: (1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that […]Read more
What will be fate of West Bengal Chief Minister after Six months? Can a candidate who has lost election be a Chief Minister after period of six months? What does constitution provide?
In normal circumstances we have seen Manmohan Singh did not contest a single general election, but he was appointed as Prime Minister and he was elected in Upper House of Parliament within six months to continue in office. Similarly in Maharashtra Uddhav Thackeray Chief Minister Maharashtra did not contest election but was nominated in Upper House of Assembly. These are cases where candidate had not contested election. But in case of West Bengal Mamata Banerjee who recently took Oath as Chief Minister, contested election and lost it. This makes case peculiar. Now for that we need to know the provisions of the Indian Constitution. Article 164 in The Constitution of India 1949 Other provisions as to Ministers (1) The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State (3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule The Advocate General for the State Article 173 in The Constitution of India 1949 Qualification for membership of the State Legislature A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament Article 191 in The Constitution of India 1949 Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First […]Read more
Let us see various provisions of the Indian Constitution. Article 352 in The Constitution of India Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof Note: This power was exercised in the year 1977 Article 355 casts duty on the state to provide safety and security. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. 44th Amendment: The Forty-fourth Constitutional Amendment substituted “armed rebellion” for “internal disturbance” in Article 352. “Internal disturbance” is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President’s rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution. What is Internal Disorder: ( Source Sarkaria Commission Report) 6.3.04 It is difficult to define precisely the concept of ‘internal disturbance’. Similar provisions, however, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression “internal disorder”. The Constitutions of the United States of America and Australia use the expression ‘domestic violence’. The framers of the Indian Constitution have, in place of this term, used the expression ‘internal disturbance’. Obviously, they have done so as they intended to cover not only domestic violence, but something more. The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy. Instances: Gujarat.—(9-2-1974) The anti-price-rise agitation in Gujarat turned into a mass movement with demands for removal of the Ministry and dissolution of the Assembly. Army had to be called in at some places to deal with violence. […]Read more