Question

Write short note on article 352,356 and 370 and judicial review

Answer 1

National Emergency (Article 352):

• If the president of the state is not satisfied with a grave emergency exists whereby the security of India or any part is threatened whether by war or external aggression or an armed rebellion, then he may proclaim a state of national emergency for the whole of India or a part of India.

• Such a proclamation of emergency may be revoked by the president subsequently.

• The proclamation of emergency made under article 352 may be subjected to the judicial review and its constitutionally can be questioned in a court of law on the grounds of malafide.

• The proclamation made must be approved by both the houses of parliament within one month after the proclamation.

• The effect of the proclamation of emergency is the emergence of the full-fledged Unitary Government.

State Emergency (Article 356):

Article 356 provides that if the President, on receipt of a report from the Government of a state or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on by the provisions of the Constitution, the President may issue a proclamation.

• By that proclamation, the president may assume to himself all or any of the powers vested in the Governor and may declare that the powers of the legislature of the State shall be exercisable by the Parliament.

• The proclamation issued under Article 356 must be laid before each House of the Parliament. If the proclamation is not approved by both Houses, it will expire in two months.

• The Proclamation is so approved by Parliament (by simple majority) shall be in operation for six months. However, it may be revoked in between or extended further by the Parliament.

Article 370

 Article 370, enacted in 1954, lays down that except for matters related to defence, foreign affairs, communications and issues specified in the Instrument of Accession of Jammu and Kashmir, parliament needs the state government's ratification for all other laws.It gives them special rights and privileges regarding employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides.Article 370 provides temporary, transitional and special provisions to the state Jammu & Kashmir. Important features/provisions are: Article 238 could/shall not be applied to J&K, which dealt with Part B (princely) states.

Judicial review

Judicial review is the power of Supreme Court and High Court to declare a law as unconstitutional and void if it is inconsistent with one or more provisions of the constitution to the extent of such inconsistency. Under this it can examine legislature enactments and their constitutionality. It can examine the validity of any order of the executive or any law of the legislature.  It is the Supreme Court to declare what the provisions of the Constitution mean.

The Supreme Court has power to review any judgment or order made by it earlier. The power of judicial review is more implicit and traceable to Article 82, 226 and also under Article 13.

1. Based on Three Principles:

i. Concept of Limited Government.

ii. It maintains harmony with different provisions i.e. if two interpretations of law is possible, one leading to validation of Constitutional provision would prevail.

iii. Ordinarily, the Court shall not interfere with and pronounce the validity of a law until it comes into effect.

2. Objectives:

i. Maintain Supremacy of Constitution.

ii. Maintain balance between various organs.

iii. Maintain division of power, essential for federation.

3. Public Interest Litigation:

PIL is one of the most potent weapons. The Judiciary, in India has acquired in recent times to enforce legal obligations of executive and legislature.

Its objective is Public good, group interest and not individual interest for which FR is provided. It emanates from the power of judicial review.

The Supreme Court through its various decisions has evolved rules governing Public Interest Litigation.

4. Originated in Australia:

A PIL can be filed up by publicity spirited individual or organisation not directly interested in the case. It is the privilege of the court to entertain or not the application for PIL

i. Has democratized the judiciary.

ii. Supreme Court has vastly expanded the scope of FR by liberally interpreting Art 32, 226.

5. Lok Adalats:

i. First held in 1985.

ii. Given statutory status under Legal Service Authorities Act 1987.

iii. Aims at providing speedy and economical service to poor.

iv. Eliminate delay and speed up clearance of pending cases.

v. Organised by state or district bodies.

vi. Case goes to LA if two parties make joint application.

vii. Given powers of Civil Court.