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397 lines
21 KiB
Plaintext
PART XVIII
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EMERGENCY PROVISIONS
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352. Proclamation of Emergency.—(1) If the President is satisfied that
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a grave emergency exists whereby the security of India or of any part of the
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territory thereof is threatened, whether by war or external aggression or armed
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rebellion, he may, by Proclamation, make a declaration to that effect in respect
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of the whole of India or of such part of the territory thereof as may be specifi
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ed
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in the Proclamation.
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Explanation.—A Proclamation of Emergency declaring that the security
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of India or any part of the territory thereof is threatened by war or by externa
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l
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aggression or by armed rebellion may be made before the actual occurrence of
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war or of any such aggression or rebellion, if the President is satisfied that t
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here
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is imminent danger thereof.
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(2) A Proclamation issued under clause (1) may be varied or revoked by
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a subsequent Proclamation.
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(3) The President shall not issue a Proclamation under clause (1) or a
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Proclamation varying such Proclamation unless the decision of the Union
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Cabinet (that is to say, the Council consisting of the Prime Minister and other
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Ministers of Cabinet rank appointed under article 75) that such a Proclamation
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may be issued has been communicated to him in writing.
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(4) Every Proclamation issued under this article shall be laid before each
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House of Parliament and shall, except where it is a Proclamation revoking a
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previous Proclamation, cease to operate at the expiration of one month unless
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before the expiration of that period it has been approved by resolutions of both
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Houses of Parliament:
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Provided that if any such Proclamation (not being a Proclamation
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revoking a previous Proclamation) is issued at a time when the House of the
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People has been dissolved, or the dissolution of the House of the People takes
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place during the period of one month referred to in this clause, and if a
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resolution approving the Proclamation has been passed by the Council of
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States, but no resolution with respect to such Proclamation has been passed by
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the House of the People before the expiration of that period, the Proclamation
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shall cease to operate at the expiration of thirty days from the date on which t
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he
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House of the People first sits after its reconstitution, unless before the
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expiration of the said period of thirty days a resolution approving the
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Proclamation has been also passed by the House of the People.
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179
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180
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THE CONSTITUTION OF INDIA
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(5) A Proclamation so approved shall, unless revoked, cease to operate
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on the expiration of a period of six months from the date of the passing of the
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second of the resolutions approving the Proclamation under clause (4):
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Provided that if and so often as a resolution approving the continuance in
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force of such a Proclamation is passed by both Houses of Parliament the
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Proclamation shall, unless revoked, continue in force for a further period of si
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x
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months from the date on which it would otherwise have ceased to operate under
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this clause:
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Provided further that if the dissolution of the House of the People takes
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place during any such period of six months and a resolution approving the
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continuance in force of such Proclamation has been passed by the Council of
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States but no resolution with respect to the continuance in force of such
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Proclamation has been passed by the House of the People during the said
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period, the Proclamation shall cease to operate at the expiration of thirty days
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from the date on which the House of the People first sits after its reconstituti
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on
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unless before the expiration of the said period of thirty days, a resolution
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approving the continuance in force of the Proclamation has been also passed
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by the House of the People.
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(6) For the purposes of clauses (4) and (5), a resolution may be passed
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by either House of Parliament only by a majority of the total membership of
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that House and by a majority of not less than two-thirds of the Members of that
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House present and voting.
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(7) Notwithstanding anything contained in the foregoing clauses, the
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President shall revoke a Proclamation issued under clause (1) or a Proclamation
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varying such Proclamation if the House of the People passes a resolution
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disapproving, or, as the case may be, disapproving the continuance in force of,
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such Proclamation.
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(8) Where a notice in writing signed by not less than one-tenth of the
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total number of members of the House of the People has been given, of their
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intention to move a resolution for disapproving, or, as the case may be, for
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disapproving the continuance in force of, a Proclamation issued under clause
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(1) or a Proclamation varying such Proclamation,—
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(a) to the Speaker, if the House is in session; or
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(b) to the President, if the House is not in session,
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a special sitting of the House shall be held within fourteen days from the date
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on which
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such notice is received by the Speaker, or, as the case may be, by the President
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, for the
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purpose of considering such resolution.
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181
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THE CONSTITUTION OF INDIA
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(9) The power conferred on the President by this article shall include the
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power to issue different Proclamations on different grounds, being war or
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external aggression or armed rebellion or imminent danger of war or external
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aggression or armed rebellion, whether or not there is a Proclamation already
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issued by the President under clause (1) and such Proclamation is in operation.
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353. Effect of Proclamation of Emergency.—While a Proclamation
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of Emergency is in operation, then—
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(a) notwithstanding anything in this Constitution, the executive
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power of the Union shall extend to the giving of directions to any State
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as to the manner in which the executive power thereof is to be
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exercised;
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(b) the power of Parliament to make laws with respect to any
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matter shall include power to make laws conferring powers and
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imposing duties, or authorising the conferring of powers and the
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imposition of duties, upon the Union or officers and authorities of the
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Union as respects that matter, notwithstanding that it is one which is not
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enumerated in the Union List:
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Provided that where a Proclamation of Emergency is in operation only
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in any part of the territory of India,—
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(i) the executive power of the Union to give directions under
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clause (a), and
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(ii) the power of Parliament to make laws under clause (b),
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shall also extend to any State other than a State in which or in any part of
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which the Proclamation of Emergency is in operation if and in so far as the
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security of India or any part of the territory thereof is threatened by activiti
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es in
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or in relation to the part of the territory of India in which the Proclamation o
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f
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Emergency is in operation.
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354. Application of provisions relating to distribution of revenues
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while a Proclamation of Emergency is in operation.—(1) The President
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may, while a Proclamation of Emergency is in operation, by order direct that
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all or any of the provisions of articles 268 to 279 shall for such period, not
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extending in any case beyond the expiration of the financial year in which such
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Proclamation ceases to operate, as may be specified in the order, have effect
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subject to such exceptions or modifications as he thinks fit.
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182
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THE CONSTITUTION OF INDIA
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(2) Every order made under clause (1) shall, as soon as may be after it is
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made, be laid before each House of Parliament.
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355. Duty of the Union to protect States against external aggression
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and internal disturbance.—It shall be the duty of the Union to protect every
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State against external aggression and internal disturbance and to ensure that th
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e
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Government of every State is carried on in accordance with the provisions of
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this Constitution.
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356. Provisions in case of failure of constitutional machinery in
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States.—(1) If the President, on receipt of a report from the Governor of a St
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ate
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or otherwise, is satisfied that a situation has arisen in which the Government o
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f
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the State cannot be carried on in accordance with the provisions of this
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Constitution, the President may by Proclamation—
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(a) assume to himself all or any of the functions of the
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Government of the State and all or any of the powers vested in or
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exercisable by the Governor or any body or authority in the State other
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than the Legislature of the State;
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(b) declare that the powers of the Legislature of the State shall be
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exercisable by or under the authority of Parliament;
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(c) make such incidental and consequential provisions as appear
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to the President to be necessary or desirable for giving effect to the
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objects of the Proclamation, including provisions for suspending in
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whole or in part the operation of any provisions of this Constitution
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relating to any body or authority in the State:
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Provided that nothing in this clause shall authorise the President to
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assume to himself any of the powers vested in or exercisable by a High Court,
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or to suspend in whole or in part the operation of any provision of this
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Constitution relating to High Courts.
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(2) Any such Proclamation may be revoked or varied by a subsequent
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Proclamation.
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(3) Every Proclamation under this article shall be laid before each House
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of Parliament and shall, except where it is a Proclamation revoking a previous
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Proclamation, cease to operate at the expiration of two months unless before
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the expiration of that period it has been approved by resolutions of both Houses
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of Parliament:
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183
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THE CONSTITUTION OF INDIA
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Provided that if any such Proclamation (not being a Proclamation
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revoking a previous Proclamation) is issued at a time when the House of the
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People is dissolved or the dissolution of the House of the People takes place
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during the period of two months referred to in this clause, and if a resolution
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approving the Proclamation has been passed by the Council of States, but no
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resolution with respect to such Proclamation has been passed by the House of
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the People before the expiration of that period, the Proclamation shall cease to
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operate at the expiration of thirty days from the date on which the House of the
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People first sits after its reconstitution unless before the expiration of the s
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aid
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period of thirty days a resolution approving the Proclamation has been also
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passed by the House of the People.
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(4) A Proclamation so approved shall, unless revoked, cease to operate
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on the expiration of a period of six months from the date of issue of the
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Proclamation:
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Provided that if and so often as a resolution approving the continuance in
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force of such a Proclamation is passed by both Houses of Parliament, the
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Proclamation shall, unless revoked, continue in force for a further period of
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six months from the date on which under this clause it would otherwise have
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ceased to operate, but no such Proclamation shall in any case remain in force
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for more than three years:
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Provided further that if the dissolution of the House of the People takes
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place during any such period of six months and a resolution approving the
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continuance in force of such Proclamation has been passed by the Council of
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States, but no resolution with respect to the continuance in force of such
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Proclamation has been passed by the House of the People during the said
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period, the Proclamation shall cease to operate at the expiration of thirty days
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from the date on which the House of the People first sits after its reconstituti
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on
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unless before the expiration of the said period of thirty days a resolution
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approving the continuance in force of the Proclamation has been also passed
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by the House of the People:
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Provided also that in the case of the Proclamation issued under clause (1)
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on the 11th day of May, 1987 with respect to the State of Punjab, the reference
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in the first proviso to this clause to “three years” shall be construed as a
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reference to five years.
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(5) Notwithstanding anything contained in clause (4), a resolution with
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respect to the continuance in force of a Proclamation approved under clause (3)
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for any period beyond the expiration of one year from the date of issue of such
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Proclamation shall not be passed by either House of Parliament unless—
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(a) a Proclamation of Emergency is in operation, in the whole of
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India or, as the case may be, in the whole or any part of the State, at the
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time of the passing of such resolution, and
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184
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THE CONSTITUTION OF INDIA
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(b) the Election Commission certifies that the continuance in force
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of the Proclamation approved under clause (3) during the period
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specified in such resolution is necessary on account of difficulties in
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holding general elections to the Legislative Assembly of the State
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concerned:
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Provided that nothing in this clause shall apply to the Proclamation
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issued under clause (1) on the 11th day of May, 1987 with respect to the State
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of Punjab.
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357. Exercise of legislative powers under Proclamation issued under
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article 356.— (1) Where by a Proclamation issued under clause (1) of article
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356, it has been declared that the powers of the Legislature of the State shall
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be
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exercisable by or under the authority of Parliament, it shall be competent—
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(a) for Parliament to confer on the President the power of the
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Legislature of the State to make laws, and to authorise the President to
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delegate, subject to such conditions as he may think fit to impose, the
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power so conferred to any other authority to be specified by him in that
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behalf;
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(b) for Parliament, or for the President or other authority in whom
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such power to make laws is vested under sub-clause (a), to make laws
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conferring powers and imposing duties, or authorising the conferring of
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powers and the imposition of duties, upon the Union or officers and
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authorities thereof;
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(c) for the President to authorise when the House of the People is
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not in session expenditure from the Consolidated Fund of the State
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pending the sanction of such expenditure by Parliament.
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(2) Any law made in exercise of the power of the Legislature of the State
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by Parliament or the President or other authority referred to in sub-clause (a)
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of
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clause (1) which Parliament or the President or such other authority would not,
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but for the issue of a Proclamation under article 356, have been competent to
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make shall, after the Proclamation has ceased to operate, continue in force unti
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l
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altered or repealed or amended by a competent Legislature or other authority.
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185
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THE CONSTITUTION OF INDIA
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358. Suspension of provisions of article 19 during emergencies.— (1)
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While a Proclamation of Emergency declaring that the security of India or any
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part of the territory thereof is threatened by war or by external aggression is
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in
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operation, nothing in article 19 shall restrict the power of the State as define
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d in
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Part III to make any law or to take any executive action which the State would
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but for the provisions contained in that Part be competent to make or to take,
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but any law so made shall, to the extent of the incompetency, cease to have
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effect as soon as the Proclamation ceases to operate, except as respects things
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done or omitted to be done before the law so ceases to have effect:
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Provided that where such Proclamation of Emergency is in operation
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only in any part of the territory of India, any such law may be made, or any
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such executive action may be taken, under this article in relation to or in any
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State or Union territory in which or in any part of which the Proclamation of
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Emergency is not in operation, if and in so far as the security of India or any
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part of the territory thereof is threatened by activities in or in relation to t
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he part
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of the territory of India in which the Proclamation of Emergency is in
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operation.
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(2) Nothing in clause (1) shall apply—
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(a) to any law which does not contain a recital to the effect that
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such law is in relation to the Proclamation of Emergency in operation
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when it is made; or
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(b) to any executive action taken otherwise than under a law
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containing such a recital.
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359. Suspension of the enforcement of the rights conferred by Part
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III during emergencies.—(1) Where a Proclamation of Emergency is in
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operation, the President may by order declare that the right to move any court
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for the enforcement of such of the rights conferred by Part III (except articles
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20 and 21) as may be mentioned in the order and all proceedings pending in
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any court for the enforcement of the rights so mentioned shall remain
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suspended for the period during which the Proclamation is in force or for such
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shorter period as may be specified in the order.
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186
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THE CONSTITUTION OF INDIA
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(1A) While an order made under clause (1) mentioning any of the rights
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conferred by Part III (except articles 20 and 21) is in operation, nothing in th
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at
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Part conferring those rights shall restrict the power of the State as defined in
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the
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said Part to make any law or to take any executive action which the State would
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but for the provisions contained in that Part be competent to make or to take,
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but any law so made shall, to the extent of the incompetency, cease to have
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effect as soon as the order aforesaid ceases to operate, except as respects thin
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gs
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done or omitted to be done before the law so ceases to have effect:
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Provided that where a Proclamation of Emergency is in operation only in
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any part of the territory of India, any such law may be made, or any such
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executive action may be taken, under this article in relation to or in any State
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or
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Union territory in which or in any part of which the Proclamation of
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Emergency is not in operation, if and in so far as the security of India or any
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part of the territory thereof is threatened by activities in or in relation to t
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he part
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of the territory of India in which the Proclamation of Emergency is in
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operation.
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(1B) Nothing in clause (1A) shall apply—
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(a) to any law which does not contain a recital to the effect that
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such law is in relation to the Proclamation of Emergency in operation
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when it is made; or
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(b) to any executive action taken otherwise than under a law
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containing such a recital.
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(2) An order made as aforesaid may extend to the whole or any part of
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the territory of India:
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Provided that where a Proclamation of Emergency is in operation only in
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a part of the territory of India, any such order shall not extend to any other p
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art
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of the territory of India unless the President, being satisfied that the securit
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y of
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India or any part of the territory thereof is threatened by activities in or in
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relation to the part of the territory of India in which the Proclamation of
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Emergency is in operation, considers such extension to be necessary.
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(3) Every order made under clause (1) shall, as soon as may be after it is
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made, be laid before each House of Parliament.
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187
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THE CONSTITUTION OF INDIA
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359A. [Application of this Part to the State of Punjab.] Rep. by the
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Constitution (Sixty-third Amendment) Act, 1989, s. 3 (w.e.f. 6-1-1990).
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360. Provisions as to financial emergency.—(1) If the President is
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satisfied that a situation has arisen whereby the financial stability or credit
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of
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India or of any part of the territory thereof is threatened, he may by a
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Proclamation make a declaration to that effect.
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(2) A Proclamation issued under clause (1)—
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(a) may be revoked or varied by a subsequent Proclamation;
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(b) shall be laid before each House of Parliament;
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(c) shall cease to operate at the expiration of two months, unless
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before the expiration of that period it has been approved by resolutions
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of both Houses of Parliament:
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Provided that if any such Proclamation is issued at a time when the
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House of the People has been dissolved or the dissolution of the House of the
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People takes place during the period of two months referred to in sub-clause
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(c), and if a resolution approving the Proclamation has been passed by the
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Council of States, but no resolution with respect to such Proclamation has been
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passed by the House of the People before the expiration of that period, the
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Proclamation shall cease to operate at the expiration of thirty days from the
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date on which the House of the People first sits after its reconstitution unless
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before the expiration of the said period of thirty days a resolution approving t
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he
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Proclamation has been also passed by the House of the People.
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(3) During the period any such Proclamation as is mentioned in clause
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(1) is in operation, the executive authority of the Union shall extend to the
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giving of directions to any State to observe such canons of financial propriety
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as may be specified in the directions, and to the giving of such other direction
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s
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as the President may deem necessary and adequate for the purpose.
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(4) Notwithstanding anything in this Constitution—
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(a) any such direction may include—
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(i) a provision requiring the reduction of salaries and allowances
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of all or any class of persons serving in connection with the affairs of
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a State;
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|
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188
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THE CONSTITUTION OF INDIA
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(ii) a provision requiring all Money Bills or other Bills to which
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the provisions of article 207 apply to be reserved for the
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consideration of the President after they are passed by the Legislature
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of the State;
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(b) it shall be competent for the President during the period any
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Proclamation issued under this article is in operation to issue directions
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for the reduction of salaries and allowances of all or any class of persons
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serving in connection with the affairs of the Union including the Judges
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of the Supreme Court and the High Courts.
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