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26th December 2020 – Editorials/Opinions Analyses

Content

  1. Limits of sovereignty
  2. Article 356 and an activist judiciary

Editorial: Limits of sovereignty

Context:

  • The tariff-free trade accord in goods that the U.K. and the EU signed on Thursday, days before the post-Brexit transition expires, should mitigate somewhat the consequences of Britain’s narrow decision, in 2016, to leave one of the largest trading blocs.

Relevance:

  • GS Paper 2: Effect of Policies & Politics of Developed and Developing countries on India (India’s interests, diaspora)

Mains Questions:

  1. Britain averted a ‘no deal’ Brexit, which would have been catastrophic for all. In this context discuss the Brexit and how it will impact upon India’s relationship with European Countries. 15 Marks

Dimensions of the Article:

  • What is Brexit?
  • Impact of Brexit on European Union
  • Impact of Brexit on World Economy
  • Impact on India
  • Challenges related to Brexit
  • Way Forward

What is Brexit?

It is an abbreviation for the term “British exit”, similar to “Grexit” that was used for many years to refer to the possibility of Greece leaving the Eurozone. Brexit refers to the possibility of Britain withdrawing from the European Union (EU). The country will hold a referendum on its EU membership on June 23.

Impact of Brexit on European Union:

  • Further Disintegration: The Brexit vote may strengthen anti-immigration parties throughout Europe they could force an anti-EU vote in their countries.
  • Eurozone: There is a risk that the euro may depreciate. In the longer run, however, the eurozone would have more power to drive economic and financial policy in the EU.
  • Protectionism: Without the UK, the EU budget would have to do without the UK’s annual contribution which could lead to more fiscal protectionism.
  • Security issues: Brexit would reduce the EU’s ability to tackle cross-border organised crime and transnational terrorism, unless new coordination and cooperation mechanisms can be established with the UK.
  • EU’s Reputation: Brexit would seriously threaten the EU’s global standing and soft power status and its ability to play a greater role in contemporary world order.

Impact of Brexit on World Economy:

  • Uncertainty: Its global implications are harder to predict and may differ for different regions. It could also lead to a setback for free trade and globalisation.
  • Flight to safety: Investors may start selling riskier assets such as stocks and seeking safety in government bonds.

Impact on India:

  • Free Trade Agreement (FTA): India may start talks on free trade deals with Britain, EU after Brexit.
    • EU and India have been negotiating a FTA since 2007. Despite growing trade between the EU and India, talks stalled in 2013, only resuming in 2018.
    • Potential sectors to benefit from an FTA between the UK and Indian include textile, machinery, engineering goods, information technology and banking.
  • Demand for Indian Labour: India’s high proportion of skilled working-age population and high growth rate will be of particular interest for the UK.
  • Service sector: India which is laying greater emphasis on innovation and high-end works could emerge as a major source of high-tech exports for the UK.
  • Easy market access: India is the major Foreign Direct Investment (FDI) source for the UK because many Indian firms have used it as a gateway to Europe.
    • With the UK moving out of EU, it might offer more incentives such as tax breaks, easy regulations and opening up markets to Indian firms to keep them attracted.
    • Cheaper imports: The UK’s currency is expected to remain weaker, so it would be less expensive for Indian firms to import from their subsidiaries in the UK.

Challenges:

  • Political Risk: It can cause regional uncertainty and the changing dynamics can potentially reverberate to reach Asia and thus India.
  • Impact of Global growth on Indian economy: India cannot be isolated from the impact from global and regional subdued growth. Any global slowdown brought forth by Brexit could adversely affect India’s growth in exports and manufacturing sector.
  • Dual Negotiation: India’s FTA negotiation with EU, which saw an impasse on the issue of bilateral investments, might now need a renegotiation of FTA with the union. Additionally, a separate trade agreement with the UK might also need to be worked on.
  • Currency weakness and unhedged exposure: While The Indian Rupee is primarily anchored to the Dollar, the currency is not completely devoid of volatility, necessitating RBI’s intervention when applicable.

Way forward

  • India should fast track its negotiations on FTA with both EU and UK.
  • India should look towards other countries for better access to EU market such as Germany, France, and Italy etc. • Indian policy toward the region should be shaped keeping in mind the new De hyphenated dynamics of the region.

Editorial: Article 356 and an activist judiciary

Context:

  • The A.P. High Court’s recent order is worrisome — it opens up the possibility of judicial use or misuse of the Article.

Relevance:

  • GS Paper 2: Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure; Comparison of Indian constitutional scheme with other countries’

Mains Questions:

  1. Under what circumstances can the  President Rule be proclaimed by the President of India? What consequences follow when such a declaration remains in force? 15 Marks
  2. Judicial activism may be good as a rare exception but an activist judiciary is neither good for the country nor for the judiciary itself as it would encourage the government to appoint committed judges. 15 Marks
  3. The historic judgment by the nine-judge Bench in SR Bommai vs Union of India in March 1994 laid down the supremacy of the floor test in determining the support enjoyed by the party in power. 15 Marks

Dimensions of the Article:

  • What is the President Rule?
  • How is President’s rule imposed in a state?
  • Effects of President Rule
  • Supreme Court Guidelines: S R Bommai vs Union of India Case (1994)
  • Way Forward

What is the President Rule?

President’s Rule refers to the suspension of a state government and the imposition of direct rule of the Centre. The central government takes direct control of the state in question and the Governor becomes its constitutional head. The Vidhana Sabha is either dissolved or prorogued. Such a situation forces the Election Commission to conduct a re-election within six months.

How is President’s rule imposed in a state?

Article 356 of the Constitution of India gives the President of India the power to impose this rule on a state on the advice of the Union Council of Ministers. There are some conditions that the President has to consider before imposing the rule:

  • If the President is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
  • The state government is unable to elect a leader as chief minister within a time prescribed by the Governor of that state.
  • There’s a breakdown of a coalition leading to the chief minister having a minority support in the House, and the CM fails to prove majority in the given period of time.
  • Loss of majority in the Assembly due to a vote of no-confidence in the House.
  • Elections postponed on account of situations like natural disasters, war or epidemic.

Effects of President Rule

  • Executive – The President may by proclamation of President Rule assume to himself all or any of functions of govt of state and all or any of powers vested in Governor or anybody or authority in the state other than legislature of state and of High Court. The President dismisses the Council of Ministers headed by CM and run state administration with help of Governor or advisors as he thinks fit.
  • Legislative – On imposition of President Rule, President either suspend or dissolves the legislature of state and declare that the powers of legislature of state shall be vested with Parliament. The following powers are exercised by Parliament or President while President Rule is in action:-
    • The Parliament can confer on President the powers of legislature of state to make laws and authorizes the President to delegate such conferred powers to any other authority with subject to such conditions as he may think fit.
    • The Parliament, or President or other authority in whom such power to make laws is vested, can make laws conferring powers and imposing duties upon the Union or officers and authorities thereof.
    • The President is authorized to give nod to pending sanction of expenditure from Consolidated Fund of State by Parliament when Lok Sabha is not in session.
    • The President can promulgate the Ordinances in relation to administration of State when the Parliament is not in session.
    • Any law made by Parliament or President or any other authority shall continue in force after President Rule has ceased to operate until repealed or amended by Legislature of state or any competent authority as case may be.

Supreme Court Guidelines: S R Bommai vs Union of India Case (1994)

The following principles are set up by Supreme Court for use of Article 356:-

  • The Proclamation of President Rule is subject to judicial review (as provided by 44th Amend 1978)  on grounds of mala fide intention;
  • The Proclamation shall be based on relevant material and centre has to justify the imposition of President rule;
  • The court has power to revive dissolved or suspended state govt if proclamation of President rule founds unconstitutional and invalid;
  • The state assembly can’t be dissolved before approval of Parliament for imposition of President Rule and President can only suspend the assembly;
  • The grounds of serious allegations of corruption  against ministry of state and financial instability are not enough for imposition of President Rule;
  • The state govt shall be given enough opportunities to correct itself in cases where directives are issued;
  • Secularism is the basic feature of our constitution and any measure or action is taken by state govt for security of this feature can’t led to use of Article 356;
  • The power under Article 356 can’t be used to sort out intra party problems of ruling party;
  • If ministry of state resigns or dismissed or loses majority then governor can’t advise President to impose President Rule until enough measures are taken by governor for formation an alternative govt;
  • The SC held that power under Article 356 is an exceptional power and to be used only in case of exigencies.

Recommendations of different committee on President Rule:

A. Sarkaria Commission: The Commission noted that this Article has been misused in 90% of the cases for political purposes. So it recommends that:

  • The President’s Proclamation should include the ‘reasons’ as to why the State cannot be run as per the normal provisions of the Constitution.
  • As far as possible, the Centre should issue a warning to the State government before resorting to the use of Art. 356.
  • It should not be used to serve political purposes.
  • Art. 356 should be amended so that the President be empowered to dissolve the State Legislature only after approval by the Parliament.

Way Forward:

Today, when many constitutional experts are of the view that the judiciary is increasingly becoming more executive-minded than the executive itself, the observations of the Andhra Pradesh High Court are a worrisome sign. Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.

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