CONSTITUTIONAL LAW-II Unit- V 

Paper III:

CONSTITUTIONAL LAW-II

Unit-V 

1. Explain the need for Emergency provisions under the Indian Constitution. How do these provisions ensure national security and integrity in extraordinary situations?

The framers of the Indian Constitution realized that a country as vast and diverse as India, with multiple languages, religions, and socio-economic disparities, could potentially face situations of extreme crisis. Such situations—whether due to war, internal disturbances, or financial instability—require swift and concentrated action to preserve the sovereignty, unity, and functioning of the nation. Thus, Emergency provisions were incorporated into the Constitution to empower the Union government to take extraordinary measures during such times.

Need for Emergency Provisions

  1. Safeguarding National Security and Sovereignty
    Emergencies like war or external aggression can endanger the territorial integrity and sovereignty of the country. In such situations, the central government needs enhanced powers to coordinate national defense and security effectively.
  2. Maintaining Constitutional Machinery in States
    Sometimes, the government of a state may become incapable of functioning according to constitutional provisions. In such a case, President’s Rule under Article 356 ensures that governance continues in accordance with the Constitution.
  3. Tackling Financial Instability
    In cases where India’s financial stability is threatened, the Constitution provides for a Financial Emergency under Article 360, allowing the Centre to take control of financial resources to ensure economic discipline and prevent collapse.
  4. Unity and Integrity in Crisis Situations
    During times of internal rebellion, communal riots, insurgency, or other large-scale disturbances, it becomes essential to centralize power to restore order. The emergency powers enable the central government to step in and act decisively.
  5. Flexibility within a Federal Structure
    Though India follows a federal structure, the emergency provisions give it a unitary character during crises, which is essential for coordinated and effective governance. This flexibility is crucial for a country of India’s size and complexity.

Constitutional Basis of Emergency Powers

The Emergency provisions are provided in Part XVIII (Articles 352 to 360) of the Indian Constitution. They empower the President of India to declare three types of emergencies:

  1. National Emergency (Article 352) – Proclaimed due to war, external aggression, or armed rebellion.
  2. State Emergency or President’s Rule (Article 356) – When the constitutional machinery fails in a state.
  3. Financial Emergency (Article 360) – When the financial stability or credit of India or any part thereof is threatened.

These provisions allow the Centre to assume greater control over governance, finances, law and order, and even fundamental rights, with the objective of preserving national unity and constitutional order.

Ensuring Security and Integrity

Emergency provisions ensure national security and integrity in the following ways:

  • Concentration of Authority: Allows the Union to legislate on matters from the State List, issue executive directions, and override state autonomy for effective governance.
  • Suspension of Fundamental Rights (with safeguards): In extreme conditions, certain rights under Article 19 can be suspended, and Article 359 allows suspension of the right to move courts for enforcement of rights during emergencies.
  • Extended Tenure of Lok Sabha and State Assemblies: Ensures continuity of government and prevents the disruption of democratic processes during crises.
  • Enhanced Legislative Power: The Parliament becomes competent to make laws on any subject, including those in the State List, ensuring coordinated national policy.

Lessons from History: The 1975 Emergency

The proclamation of Emergency in 1975 due to “internal disturbance” highlighted both the utility and the dangers of emergency powers. While it was justified by the government on the grounds of national stability, it led to gross misuse of power, suspension of civil liberties, censorship, and weakening of democratic institutions. This experience led to constitutional safeguards being introduced by the 44th Amendment Act, 1978, which:

  • Restricted the grounds of National Emergency to “armed rebellion” instead of vague “internal disturbance.”
  • Made President’s proclamation subject to judicial review and parliamentary approval.
  • Protected Articles 20 and 21 from suspension even during emergencies.

Conclusion

Emergency provisions form an essential part of the Indian Constitution, reflecting its pragmatic flexibility. They equip the central government to act decisively during extraordinary situations while maintaining constitutional order. However, the experience of misuse has also shown the importance of checks, balances, and judicial oversight to prevent authoritarianism. Thus, while Emergency powers are necessary for national security and integrity, they must be exercised with caution, accountability, and respect for democracy and human rights.

2. Discuss in detail the different kinds of emergencies provided under the Indian Constitution. How are they declared and what are their respective effects?

The Indian Constitution contains elaborate provisions to deal with extraordinary situations through the declaration of emergencies. These situations may threaten the sovereignty, unity, constitutional governance, or financial stability of the nation. The Constitution, therefore, empowers the President of India to declare three types of emergencies to safeguard the country and its democratic framework.

These emergencies are:

  1. National Emergency (Article 352)
  2. State Emergency / President’s Rule (Article 356)
  3. Financial Emergency (Article 360)

1. National Emergency (Article 352)

Grounds for Declaration:

  • War
  • External Aggression
  • Armed Rebellion
    (Earlier it included “internal disturbance”, but this was replaced by “armed rebellion” through the 44th Amendment Act, 1978.)

Procedure for Proclamation:

  • The President can declare a National Emergency on written advice of the Cabinet.
  • The proclamation must be approved by both Houses of Parliament within one month.
  • Once approved, it continues for 6 months and can be extended indefinitely with parliamentary approval every 6 months.

Effects of National Emergency:

  • Federal Structure Becomes Unitary:
    • Centre can legislate on State List subjects.
    • Executive power of states is under the control of the Centre.
  • Effect on Fundamental Rights:
    • Rights under Article 19 are automatically suspended during emergency caused by war or external aggression.
    • Under Article 359, the President can suspend the right to move any court for enforcement of other fundamental rights (except Articles 20 and 21 after the 44th Amendment).
  • Effect on Governance:
    • Parliament’s tenure may be extended beyond five years.
    • President can modify the manner in which laws are implemented.

2. State Emergency / President’s Rule (Article 356)

Grounds for Declaration:

  • Failure of constitutional machinery in a state.
  • If the President is satisfied, based on the Governor’s report or otherwise, that the government of a state cannot be carried on in accordance with the Constitution.

Procedure for Proclamation:

  • The proclamation must be approved by both Houses of Parliament within 2 months.
  • Once approved, it remains in force for 6 months at a time and can be extended up to a maximum of 3 years, with special conditions after 1 year (as per the 44th Amendment).

Effects of President’s Rule:

  • State Legislative Assembly may be dissolved or kept in suspended animation.
  • Executive powers of the state are exercised by the President through the Governor.
  • Parliament makes laws for the state during the period.
  • No impact on fundamental rights, but democratic processes in the state are suspended.

Judicial Safeguards:

  • The use of Article 356 is subject to judicial review, as held in the landmark case of S.R. Bommai v. Union of India (1994).
  • Arbitrary use of President’s Rule can be challenged in courts.

3. Financial Emergency (Article 360)

Grounds for Declaration:

  • If the financial stability or credit of India or any part thereof is threatened.

Procedure for Proclamation:

  • Declared by the President.
  • Must be approved by both Houses of Parliament within 2 months.
  • Once approved, it continues indefinitely until revoked.

Effects of Financial Emergency:

  • Salaries and allowances of government officials, including judges, can be reduced.
  • President can issue directions to states regarding financial matters.
  • Money bills and financial policies of states may be subjected to Centre’s control.
  • Parliament can approve expenditure even for state governments.

Notably, no Financial Emergency has ever been proclaimed in India so far.

Comparative Summary of Emergencies

Type of Emergency Article Trigger Who Proclaims Duration & Extension Effect on Rights/Federalism
National Emergency 352 War, External Aggression, Armed Rebellion President 6 months, can be extended indefinitely Article 19 suspended, Centre dominates States
State Emergency 356 Constitutional failure in a State President 6 months, max 3 years (with conditions) President governs State via Governor
Financial Emergency 360 Threat to financial stability President Indefinite after Parliament approval Centre controls state finances

Conclusion

Emergency provisions in the Indian Constitution are a reflection of its flexible yet robust federal structure. While these powers equip the government to face extraordinary challenges, they also carry the risk of misuse. Historical experiences, particularly the 1975 Emergency, demonstrated the potential for abuse. As a response, constitutional safeguards like judicial review, limited suspension of rights, and time-bound parliamentary approval have been added to prevent authoritarian excesses.
Thus, emergencies are powerful tools, but must be used with constitutional caution, transparency, and democratic accountability.

3. Critically examine the provisions of National Emergency under Article 352. What are the conditions for its proclamation, and how does it affect the functioning of the Union and State Governments?

The National Emergency, also known as Article 352 Emergency, is the most comprehensive and impactful form of emergency provided in the Indian Constitution. It enables the Union Government to assume wide-ranging powers, thereby altering the federal character of the Constitution temporarily to a unitary one. While the provision is meant to protect the sovereignty and integrity of the nation, it has also been a source of concern due to the potential for misuse.

Constitutional Provision: Article 352

Under Article 352 of the Indian Constitution, the President of India may declare a National Emergency when the security of India or any part thereof is threatened by:

  1. War
  2. External Aggression
  3. Armed Rebellion

(The term “armed rebellion” replaced “internal disturbance” by the 44th Constitutional Amendment Act, 1978, to avoid misuse.)

Conditions and Procedure for Proclamation

  1. Initiation by the Executive:
    • The Emergency is proclaimed by the President on the written advice of the Union Cabinet (not merely the Prime Minister).
    • This safeguard was added by the 44th Amendment to prevent unilateral decision-making.
  2. Parliamentary Approval:
    • The proclamation must be approved by both Houses of Parliament within 1 month.
    • If approved, the Emergency continues for 6 months and can be extended indefinitely with further approval every six months.
  3. Revocation:
    • The Emergency can be revoked at any time by the President.
    • It must also be revoked if the Lok Sabha passes a resolution disapproving its continuation (introduced by the 44th Amendment).

Historical Use of Article 352

  • First National Emergency (1962–1968): Declared due to Chinese aggression.
  • Second National Emergency (1971): Declared during the India-Pakistan war.
  • Third National Emergency (1975–1977): Declared on the ground of “internal disturbance” — the most controversial, as it led to massive curtailment of civil liberties, media censorship, and suppression of political dissent.

Effects on Union and State Governments

A. On the Union Government

  1. Expansion of Legislative Powers:
    • Parliament becomes empowered to legislate on subjects in the State List (Article 353).
    • Laws made under this authority remain valid even after the Emergency ends.
  2. Centralization of Executive Power:
    • The executive power of the Union extends to directing any state on any matter (even those in the State List).
  3. Extension of Lok Sabha Tenure:
    • The life of the Lok Sabha can be extended by one year at a time, during the period of Emergency (Article 83).

B. On the State Governments

  1. Diminution of State Autonomy:
    • Although state governments are not suspended, their functioning comes under greater control of the Union.
  2. State Legislatures’ Power Overridden:
    • Parliament can override state laws and take over areas of governance normally reserved for the states.
  3. Loss of Federal Balance:
    • India temporarily takes a unitary character, violating the federal principles of the Constitution.

C. Effect on Fundamental Rights

  1. Suspension of Rights under Article 19:
    • Automatically suspended during an emergency caused by war or external aggression (not in the case of armed rebellion).
  2. Suspension of Right to Constitutional Remedies:
    • Under Article 359, the President may suspend the right to move the courts for enforcement of specified Fundamental Rights.
    • However, the 44th Amendment ensures that Articles 20 and 21 (Protection in respect of conviction and life & liberty) cannot be suspended.

Judicial Review and Safeguards

  • The proclamation of Emergency is subject to judicial review, as held in Minerva Mills v. Union of India (1980).
  • In A.D.M. Jabalpur v. Shivkant Shukla (1976), the Supreme Court upheld suspension of habeas corpus during the Emergency, but this was heavily criticized and later overruled in Puttaswamy (2017) as a violation of fundamental rights.

Criticism and Abuse

  • The 1975 Emergency showed how vaguely worded provisions (“internal disturbance”) could be exploited for political purposes.
  • There were mass arrests, media censorship, and curtailment of democratic institutions.
  • As a corrective measure, the 44th Constitutional Amendment Act, 1978 was passed, which:
    • Substituted “internal disturbance” with “armed rebellion”.
    • Required Cabinet approval in writing.
    • Made Articles 20 and 21 non-suspendable.
    • Empowered Lok Sabha to disapprove an Emergency.

Conclusion

Article 352 is a vital constitutional tool to protect the security, unity, and sovereignty of India during national crises. However, it must be applied with great caution and constitutional responsibility. The historical misuse during the 1975 Emergency serves as a powerful reminder of how unchecked emergency powers can undermine democracy. The 44th Amendment has added necessary checks and balances, but continued vigilance by Parliament, judiciary, media, and civil society is essential to preserve India’s constitutional values even in times of crisis.

4. Discuss the concept of President’s Rule under Article 356. What are the constitutional safeguards against its misuse? Cite important Supreme Court decisions.

Article 356 of the Indian Constitution provides for the imposition of President’s Rule in a state in case of the failure of constitutional machinery. It is also referred to as State Emergency or Constitutional Emergency. While intended to uphold constitutional governance, Article 356 has been controversially and frequently misused for political purposes. Therefore, judicial interpretation and constitutional amendments have tried to put safeguards in place to prevent such misuse.

Concept and Grounds for Imposition of President’s Rule (Article 356)

According to Article 356(1):
If the President, on receipt of a report from the Governor of the state or otherwise, is satisfied that the governance of a state cannot be carried on in accordance with the provisions of the Constitution, he may declare President’s Rule in that state.

Such proclamation may be made when:

  • There is a breakdown of constitutional machinery in the state.
  • The government has lost majority and is unable to prove it.
  • The government has acted against constitutional provisions or failed to maintain law and order.
  • Elections have not resulted in a clear majority, leading to a hung assembly.

Procedure for Imposition and Duration

  1. The President issues a proclamation, taking over executive and legislative functions of the state.
  2. The proclamation must be approved by both Houses of Parliament within 2 months.
  3. Once approved, President’s Rule continues for 6 months and can be extended every 6 months, up to a maximum of 3 years under the following conditions:
    • A national emergency is in operation.
    • Election Commission certifies that elections cannot be held.

Effects of President’s Rule

  • Executive powers of the state are exercised by the President through the Governor.
  • State Legislative Assembly may be dissolved or kept in suspended animation.
  • Parliament assumes legislative powers of the state and may delegate them to the President.
  • No effect on Fundamental Rights, but democratic processes in the state are suspended.

Misuse of Article 356: Historical Instances

  • First use: Punjab in 1951.
  • Frequent misuse in post-independence era, especially between 1967–1990, often to dismiss state governments of opposition parties.
  • Notable cases:
    • Kerala (1959): Dismissal of the first communist government.
    • Andhra Pradesh (1973), Tamil Nadu (1976), Karnataka (1989): Politically motivated dismissals.

Constitutional Safeguards Against Misuse

🛡️ 1. Judicial Review

  • Proclamation under Article 356 is subject to judicial review. Courts can examine whether constitutional provisions were followed.

🛡️ 2. Time Limit

  • Emergency must be approved within 2 months by both Houses of Parliament.
  • Maximum period: 3 years (with conditions) under 44th Constitutional Amendment Act (1978).

🛡️ 3. Floor Test Mandate

  • Loss of majority must be tested on the floor of the Assembly, not decided by the Governor alone.

🛡️ 4. Reports from the Governor

  • While Governor’s report is a basis, the President must form objective satisfaction and cannot act arbitrarily.

🛡️ 5. Role of Election Commission

  • EC’s opinion is mandatory for extension of President’s Rule beyond 1 year.

Landmark Supreme Court Decisions

✅ 1. S.R. Bommai v. Union of India (1994)

This is the most significant judgment on the use and misuse of Article 356.
Key rulings:

  • The President’s satisfaction is not absolute; it is justiciable in court.
  • Judicial review is permissible to prevent mala fide and arbitrary use.
  • Floor test is the only proper method to test majority in the Assembly.
  • State autonomy is a part of the basic structure of the Constitution.
  • If proclamation is invalid, the dismissed government must be reinstated.

✅ 2. Rameshwar Prasad v. Union of India (2006)

  • Dissolution of the Bihar Assembly in 2005 before the floor test was declared unconstitutional.
  • President’s action was struck down as mala fide and undemocratic.

✅ 3. Union of India v. Harish Chandra Singh Rawat (2016)

  • In the Uttarakhand crisis, the Supreme Court restored the dismissed Chief Minister after a floor test in the Assembly.

Critical Analysis

  • Merits: Article 356 is essential for maintaining constitutional governance when state institutions fail or collapse.
  • Demerits: Its broad language and discretionary nature make it vulnerable to political misuse.
  • Federalism vs. Centralization: The provision weakens federal structure by allowing the Union to override elected state governments.

Recommendations and Reforms

  • Implementation of Sarkaria Commission (1988) and Punchhi Commission (2010) recommendations:
    • President’s Rule as last resort.
    • Clear guidelines on what constitutes “failure of constitutional machinery”.
    • Judicial safeguards and parliamentary oversight.

Conclusion

Article 356 was introduced to maintain constitutional stability in the states, but it has often been used as a political weapon to destabilize elected governments. The Supreme Court’s intervention, particularly in the S.R. Bommai case, has restored federal balance and constitutional accountability. Moving forward, India must ensure that President’s Rule is a tool of constitutional necessity, not political convenience, to uphold the spirit of democracy and federalism.

5. What is Financial Emergency under Article 360? Has it ever been proclaimed in India? Analyze its significance and implications on the economy and federal structure.

The Indian Constitution provides for three types of emergencies to deal with extraordinary situations — National Emergency (Article 352), State Emergency (Article 356), and Financial Emergency (Article 360). While the first two have been invoked multiple times, Financial Emergency under Article 360 has never been proclaimed in India since independence. However, its presence in the Constitution reflects the framers’ foresight in preparing the country to respond effectively to a financial crisis that may threaten the economic stability of the nation.

Constitutional Provision: Article 360

According to Article 360(1) of the Constitution:

“If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its territory is threatened, he may by a Proclamation make a declaration to that effect.”

Procedure for Proclamation

  1. Initiation:
    • The proclamation of Financial Emergency is issued by the President of India, based on his subjective satisfaction that the financial stability or credit of the country is under threat.
  2. Parliamentary Approval:
    • The proclamation must be laid before both Houses of Parliament and must be approved within two months by a simple majority.
  3. Duration:
    • Once approved, the Financial Emergency remains in force until revoked by the President.
    • Unlike National and State Emergencies, there is no time limit or periodic review required for continuation.

Has It Ever Been Proclaimed in India?

  • No, Financial Emergency has never been declared in India till date.
  • However, India has experienced severe economic crises such as:
    • 1991 Balance of Payments crisis (near depletion of foreign exchange reserves),
    • 2020 COVID-19 economic slowdown,
    • Yet in none of these cases was Article 360 invoked.
  • Instead, the government managed the crisis through economic reforms, IMF support, and fiscal policy changes without resorting to constitutional emergency powers.

Significance of Financial Emergency

Financial Emergency is a powerful tool designed to preserve economic stability and discipline, especially when traditional fiscal measures fail. Its significance lies in:

  1. Constitutional Mechanism to Handle Economic Crisis:
    • Provides a legal framework for centralized financial control to address grave economic threats.
  2. Prevention of Economic Collapse:
    • Enables the central government to impose corrective measures to protect national credit and economic functioning.
  3. Ensures Administrative Continuity:
    • Even during severe financial strain, governance and essential services can be sustained with central oversight.

Implications on the Economy

  1. Reduction of Government Expenditure:
    • Salaries and allowances of government servants, including judges of the Supreme Court and High Courts, can be reduced (Article 360(4)(a)).
  2. Control Over Financial Decisions:
    • The President can issue directions to states to observe financial propriety, reduce non-essential expenditure, or alter taxation policies.
  3. Centralization of Economic Planning:
    • May restrict the autonomy of both the Centre and States in implementing their own fiscal agendas.
    • Can lead to austerity measures, possibly affecting welfare schemes, development programs, and public sector spending.

Implications on Federal Structure

Financial Emergency significantly impacts India’s federal balance by:

  1. Curtailing State Autonomy:
    • The Centre can direct states on how to utilize financial resources.
    • States must comply with Union-issued economic directives, weakening fiscal federalism.
  2. Weakening the Role of State Legislatures:
    • The President may reserve all Money Bills or other financial proposals of states for consideration by Parliament (Article 360(4)(b)).
  3. Unitary Tilt of Indian Federalism:
    • As with other types of emergencies, Article 360 gives a unitary character to the otherwise federal Constitution, concentrating power at the Centre.

Criticism and Concerns

  • Over-concentration of Power:
    The sweeping powers under Article 360 can potentially be misused to suppress dissenting state governments or enforce politically motivated economic agendas.
  • Lack of Judicial Safeguards:
    The subjective satisfaction of the President is not explicitly subject to judicial review, although basic structure doctrine may impose implicit limits.
  • Impact on Civil Services and Judiciary:
    The reduction in salaries and benefits could demoralize government functionaries and impact administrative efficiency.
  • Uncertainty in Financial Markets:
    Even the declaration of a Financial Emergency could shake investor confidence and cause market instability, affecting the economy adversely.

Conclusion

While Article 360 has never been invoked, it remains a critical constitutional safeguard to preserve India’s economic stability in extraordinary financial crises. Its mere presence acts as a deterrent against reckless financial mismanagement, ensuring fiscal discipline by both Union and State governments. However, the provision must be used with extreme caution, only in exceptional circumstances, and with parliamentary and judicial oversight, to prevent undermining the federal spirit of the Constitution and protect democratic governance.

6. Analyze the impact of Emergency provisions on the federal structure of India. Does Emergency create a unitary bias in the Constitution? Justify with examples.

The Constitution of India establishes a federal system with a strong unitary bias, meaning that although powers and responsibilities are divided between the Union and the States, the Centre is significantly more powerful. This becomes especially apparent during a constitutional emergency, when the balance of power shifts heavily in favour of the Union. The Emergency provisions—under Articles 352, 356, and 360—are examples of this shift, and their implementation has had serious implications for India’s federal structure.

✅ Federal Structure of India: A Brief Overview

India follows a quasi-federal structure, where:

  • There is a division of powers between the Centre and States (Seventh Schedule).
  • Both levels of government are constitutionally independent in their respective spheres.
  • However, during emergencies, this equilibrium is tilted sharply in favour of the Centre.

✅ Emergency Provisions and Their Impact on Federalism

The three types of emergencies under the Constitution are:

  1. National Emergency (Article 352)
  2. State Emergency / President’s Rule (Article 356)
  3. Financial Emergency (Article 360)

Let us analyze how each affects the federal structure:

1. National Emergency (Article 352)

🔶 Effects on Federalism:

  • Centre gains power to legislate on State List subjects (Article 353(b)).
  • Executive power of the Union extends to directing any State.
  • Distribution of financial resources can be altered by the Centre.
  • The Tenure of State Assemblies and Lok Sabha can be extended beyond 5 years.

🔶 Example:

  • During the 1975–77 Emergency, governance became highly centralized, and state autonomy was virtually suspended.
  • Civil liberties were curtailed, and the federal character was heavily diluted.

2. President’s Rule (Article 356)

🔶 Effects on Federalism:

  • The state legislature is dissolved or suspended.
  • The President (Centre) assumes control over the state’s executive and legislative functions.
  • Parliament can legislate on all state matters.

🔶 Example:

  • Between 1966 and 1990, President’s Rule was frequently misused to dismiss state governments led by opposition parties.
  • The S.R. Bommai case (1994) was a turning point, where the Supreme Court limited arbitrary use of Article 356 and upheld the importance of federalism.

3. Financial Emergency (Article 360)

🔶 Effects on Federalism:

  • The Centre can direct States on matters of financial policy.
  • The salaries of State officials, including High Court judges, may be reduced.
  • State budgets and financial decisions may be subject to central supervision.

🔶 Observation:

  • Though never declared, this provision demonstrates the Constitution’s readiness to sacrifice financial autonomy of states in favour of centralized control.

✅ Does Emergency Create a Unitary Bias?

Yes. The emergency provisions introduce a strong unitary bias in India’s otherwise federal Constitution. During emergencies:

  • The autonomy of the states is drastically reduced.
  • The distribution of legislative, executive, and financial powers shifts almost entirely to the Centre.
  • The Constitution itself, through Articles 250 and 353, permits the Centre to override normal federal arrangements.

🔷 Constitutional Support:

  • Article 250: Parliament may legislate on State List subjects during a national emergency.
  • Article 353: Centre assumes extensive powers, turning the system virtually unitary.

✅ Justification for Unitary Tilt during Emergency

The rationale behind such provisions lies in the need for unified national response during crises such as war, rebellion, or financial collapse. A divided or fragmented response by individual states could jeopardize the nation’s stability.

As Dr. B.R. Ambedkar stated:
“It is sometimes claimed that the Indian Constitution is federal. But the fact is that it is both unitary as well as federal according to the requirements of time and circumstances.”

✅ Safeguards and Judicial Review

To protect against misuse and maintain the federal balance, certain safeguards have been established:

  • 44th Amendment Act (1978): Added checks on the declaration of national emergency.
  • Judicial Review: In cases like S.R. Bommai v. Union of India, the Supreme Court upheld federalism as part of the basic structure and ruled that emergency powers are not beyond judicial scrutiny.
  • Requirement of Parliamentary Approval: All emergency proclamations must be ratified by both Houses of Parliament.

✅ Conclusion

The Emergency provisions in the Indian Constitution, though necessary for safeguarding national security and constitutional governance, do result in a unitary bias by concentrating all major powers in the hands of the Union government. While this shift is intentional and justifiable in extraordinary circumstances, it must be carefully monitored to avoid the erosion of democratic federalism. Judicial pronouncements and constitutional amendments have introduced vital checks and balances, but the real guarantee lies in the political culture, public vigilance, and judicial independence to uphold India’s cooperative federalism even during times of crisis.

7. Evaluate the effect of Emergency on Fundamental Rights in India. How were rights like Article 19 and 21 affected during the 1975–77 Emergency?

The Fundamental Rights enshrined in Part III of the Indian Constitution are the cornerstone of Indian democracy, ensuring protection of individual liberty and dignity. However, during an Emergency under Article 352, the enjoyment and enforcement of these rights can be curtailed or suspended. The most extreme example of this was during the National Emergency of 1975–1977, which had a profound impact on civil liberties, particularly Articles 19 and 21.

✅ Constitutional Framework Governing Fundamental Rights During Emergency

Under the Emergency provisions:

  1. Article 358 (Before 44th Amendment):
    • When a National Emergency is declared on grounds of war or external aggression, Article 19 (freedom of speech, assembly, movement, etc.) is automatically suspended.
    • This suspension lasts for the duration of the Emergency and cannot be challenged in any court.
  2. Article 359:
    • The President may declare by order that the right to move any court for enforcement of Fundamental Rights (except Articles 20 and 21 after 44th Amendment) shall remain suspended for the duration of Emergency.
    • This does not suspend the rights themselves, but rather the remedy to enforce them in courts.

✅ Effect on Article 19 during 1975–77 Emergency

  • The 1975 Emergency was declared on the ground of “internal disturbance” (a vague term that was later replaced by “armed rebellion” by the 44th Amendment).
  • As a result, Article 19 was suspended through Article 358.
  • Citizens lost the right to:
    • Freedom of speech and expression
    • Right to assemble peacefully
    • Right to move freely
    • Right to reside and settle in any part of India
    • Right to practice any profession
  • The government imposed press censorship, banned protests, and arrested political opponents without accountability.

✅ Effect on Article 21 during 1975–77 Emergency

Article 21 guarantees the Right to Life and Personal Liberty, stating:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

However, under Article 359, the President suspended the right to move courts for enforcement of Article 21.

🔴 A.D.M. Jabalpur v. Shivkant Shukla (1976) – “The Habeas Corpus Case”

  • The Supreme Court ruled that even the right to life and liberty under Article 21 stood suspended during Emergency.
  • It held that no person had the locus standi to approach courts for unlawful detention during Emergency.
  • This judgment effectively allowed detention without trial and legalised state authoritarianism.

Criticism:

  • The judgment was heavily criticized as a betrayal of constitutional values and judicial independence.
  • Even Justice H.R. Khanna, in his lone dissent, held that the right to life is inherent and cannot be suspended by any authority. His dissent is now celebrated as a heroic defense of liberty.

✅ Impact of 44th Constitutional Amendment Act (1978)

In response to the misuse of Emergency powers and suspension of rights, the 44th Amendment introduced significant reforms:

  1. Article 19 Suspension Limited:
    • Article 358 now applies only in case of Emergency due to war or external aggression, not “armed rebellion”.
  2. Protection of Articles 20 and 21:
    • Article 359 was amended to clarify that Articles 20 (protection in respect of conviction for offences) and 21 cannot be suspended, even during an Emergency.
  3. Restoration of Judicial Review:
    • Courts retained the power to review Presidential proclamations and prevent arbitrariness.

✅ Broader Impact on Fundamental Rights

  • Mass arrests of political leaders (under Maintenance of Internal Security Act – MISA).
  • Censorship of the press and restrictions on media.
  • Violation of personal liberties, including custodial torture and forced sterilization campaigns.
  • Judiciary showed executive deference rather than acting as the guardian of rights.

✅ Post-Emergency Reforms and Judicial Response

  • In later judgments, like Maneka Gandhi v. Union of India (1978), the Supreme Court expanded the scope of Article 21, stating that “procedure established by law” must be just, fair, and reasonable.
  • In Justice K.S. Puttaswamy v. Union of India (2017), the Court acknowledged the error in the A.D.M. Jabalpur case, calling it a black mark on Indian constitutional history.

✅ Conclusion

The Emergency of 1975–77 exposed the fragility of Fundamental Rights in the face of authoritarian governance. Articles 19 and 21, which are crucial to a democratic society, were suppressed during this period, leading to a constitutional crisis and public outrage. The judiciary’s initial failure to uphold individual liberties was later rectified through landmark amendments and progressive interpretations. Today, the constitutional framework—fortified by the 44th Amendment and judicial activism—provides stronger safeguards against such violations, ensuring that Fundamental Rights remain inviolable, even in times of national crisis.

8. Discuss the power and procedure of Constitutional Amendment under Article 368. What is the difference between the constituent and legislative power of Parliament?

The Indian Constitution is neither too rigid nor too flexible—it strikes a balance by allowing amendments while protecting its basic framework. Article 368 of the Constitution lays down the procedure and power of Parliament to amend the Constitution. This power is distinct from the normal legislative powers of Parliament and is referred to as constituent power.

✅ Constitutional Amendment under Article 368

🔷 Types of Amendments (as per Article 368 and Practice)

The Constitution of India provides for three types of amendments:

  1. By a Simple Majority of Parliament (Outside Article 368):
    • Amendments that are treated as ordinary legislation.
    • E.g., Formation of new states (Art. 3), creation of Legislative Councils (Art. 169).
  2. By Special Majority of Parliament (Article 368(2)):
    • Requires two-thirds of members present and voting, and majority (50%+) of total membership of each House.
    • E.g., Amendment of Fundamental Rights, Directive Principles.
  3. By Special Majority + Ratification by Half of the States (Article 368(2)):
    • In addition to special majority in Parliament, the amendment must be ratified by at least half of the state legislatures.
    • E.g., Amendments affecting federal features like:
      • Election of President
      • Distribution of powers between Centre and States
      • Judiciary
      • Representation of States in Parliament

🔷 Procedure for Amendment (Article 368(2))

  1. Initiation:
    • An amendment bill can be introduced in either House of Parliament.
    • No prior permission of the President is required.
  2. Passage in Parliament:
    • Must be passed in each House separately by:
      • A majority of total membership, and
      • A 2/3rd majority of members present and voting.
  3. Ratification by States (if required):
    • Sent to state legislatures, and must be approved by at least half of the total states (not UTs).
    • No time limit for states to ratify.
  4. Assent of the President:
    • After approval by Parliament (and states if needed), the bill is presented to the President.
    • The President must give assent—no discretionary power.
  5. Amendment becomes part of the Constitution.

✅ Constituent Power vs. Legislative Power

Aspect Constituent Power Legislative Power
Nature Power to amend the Constitution Power to make ordinary laws
Source Article 368 Articles 245–248
Procedure Requires special majority, sometimes ratification Passed by simple majority in both Houses
Scope Can alter constitutional provisions, but not the Basic Structure Cannot alter constitutional provisions
Judicial Review Subject to Basic Structure Doctrine Subject to judicial review under Fundamental Rights
President’s Role Must give assent (no discretion) Can return a bill once for reconsideration

🔹 Key Point:

Constituent power is superior to legislative power. However, even constituent power is not absolute—it is limited by the Basic Structure Doctrine (as evolved by the Supreme Court).

✅ Significant Case Laws

🔹 1. Shankari Prasad v. Union of India (1951)

  • Held that Parliament can amend Fundamental Rights under Article 368.

🔹 2. Golaknath v. State of Punjab (1967)

  • Held that Parliament cannot amend Fundamental Rights as it was only exercising legislative power.

🔹 3. Kesavananda Bharati v. State of Kerala (1973)

  • Landmark judgment.
  • Parliament has wide power to amend, including Fundamental Rights.
  • But it cannot alter the “Basic Structure” of the Constitution.

🔹 4. Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980)

  • Reaffirmed that constituent power is not unlimited.
  • Basic Structure includes judicial review, rule of law, federalism, secularism, etc.

✅ Basic Structure Doctrine: A Limit on Constituent Power

According to Kesavananda Bharati (1973), Parliament can amend any part of the Constitution but not the basic structure. This doctrine is not defined in the Constitution, but the courts have laid down components such as:

  • Supremacy of the Constitution
  • Sovereign, democratic, and secular character of the state
  • Federalism
  • Separation of powers
  • Judicial review
  • Rule of law
  • Independence of judiciary
  • Free and fair elections

✅ Conclusion

The power of constitutional amendment under Article 368 is a vital aspect of the Indian constitutional framework, enabling the Constitution to adapt to changing needs while maintaining its core values. This power is constituent in nature, not ordinary legislative power, and is bound by procedural and substantive limits, particularly the Basic Structure Doctrine. The distinction between constituent and legislative powers ensures that while Parliament can respond to social and political changes, it cannot override the foundational principles of the Constitution.

9. What is the ‘Basic Structure Doctrine’? How has the judiciary used this doctrine to limit the amending power of the Parliament? Discuss with landmark judgments.

The Basic Structure Doctrine is one of the most important constitutional principles evolved by the Indian judiciary. It acts as a check on the amending power of Parliament, ensuring that while the Constitution can be amended to meet changing needs, its essential features remain inviolable. This doctrine protects the core values of the Constitution such as democracy, federalism, rule of law, secularism, and judicial independence.

✅ Meaning and Origin of the Basic Structure Doctrine

The Basic Structure Doctrine implies that there are certain fundamental features of the Constitution which cannot be altered or destroyed, even by a constitutional amendment under Article 368.

➤ It was not originally mentioned in the Constitution but was evolved by the judiciary through interpretation.

✅ Evolution of the Doctrine: Landmark Judgments

🔹 1. Shankari Prasad v. Union of India (1951)

  • The Supreme Court held that Parliament’s power to amend the Constitution under Article 368 includes the power to amend Fundamental Rights.
  • No distinction was made between legislative and constituent powers.

🔹 2. Golaknath v. State of Punjab (1967)

  • The Court overruled Shankari Prasad.
  • It held that Parliament could not amend Fundamental Rights, as it was exercising legislative power, and laws violating Fundamental Rights are void under Article 13.
  • Created a paralysis in constitutional amendment power.

🔹 3. Kesavananda Bharati v. State of Kerala (1973) 🔥 (The Turning Point)

  • This 13-judge bench decision was the largest constitutional bench in Indian history.
  • The Supreme Court overruled Golaknath but laid down a new doctrine:

“Parliament can amend any part of the Constitution, including Fundamental Rights, but it cannot alter or destroy the basic structure of the Constitution.”

✅ Key Elements of Basic Structure (as identified in this case):

  • Supremacy of the Constitution
  • Republican and democratic form of government
  • Secular character of the Constitution
  • Separation of powers
  • Federalism
  • Judicial review
  • Rule of law
  • Freedom and dignity of the individual

🔹 4. Indira Nehru Gandhi v. Raj Narain (1975)

  • The Supreme Court struck down Clause (4) of Article 329A, inserted by the 39th Amendment, which sought to make the Prime Minister’s election non-justiciable.
  • Held that free and fair elections and judicial review are part of the basic structure.

🔹 5. Minerva Mills v. Union of India (1980)

  • Struck down Clauses (4) and (5) of Article 368 (inserted by the 42nd Amendment), which attempted to give unlimited amending power to Parliament.
  • Reaffirmed that limited amending power itself is part of the basic structure.
  • Also held that a balance between Fundamental Rights and Directive Principles is essential.

🔹 6. Waman Rao v. Union of India (1981)

  • Held that all amendments made before Kesavananda Bharati (i.e., before April 24, 1973) are valid, and amendments after that are subject to the basic structure test.

🔹 7. S.R. Bommai v. Union of India (1994)

  • Declared secularism as an essential part of the basic structure.
  • Strengthened the federal character by limiting the misuse of Article 356 (President’s Rule).

🔹 8. I.R. Coelho v. State of Tamil Nadu (2007)

  • Held that even laws placed in the Ninth Schedule (which are otherwise immune from judicial review) after April 24, 1973, are subject to the basic structure test.
  • Reiterated that Parliament cannot violate core constitutional values through backdoor mechanisms.

🔹 9. Kesavananda Bharati Reaffirmed in Later Cases

  • The doctrine has been reaffirmed in recent landmark cases like:
    • Justice K.S. Puttaswamy v. Union of India (2017) – upheld privacy as a fundamental right and reaffirmed basic structure.
    • Supreme Court Advocates-on-Record Association v. Union of India (2016) – struck down the NJAC Act for violating judicial independence, a part of basic structure.

✅ How Judiciary Uses the Doctrine to Limit Parliament’s Amending Power

The Basic Structure Doctrine serves as a judicial tool to strike down any constitutional amendment that:

  1. Alters the identity of the Constitution;
  2. Violates fundamental features like democracy, secularism, federalism, and judicial review;
  3. Transfers sovereign power to an external authority;
  4. Destroys the balance between the three organs of government.

By using this doctrine, the Supreme Court ensures constitutional supremacy over parliamentary supremacy.

✅ Importance and Impact of the Doctrine

  • Protects the Constitution from authoritarian amendments.
  • Balances flexibility with stability — allowing necessary changes without disturbing core principles.
  • Strengthens judicial independence and the rule of law.
  • Ensures permanency of constitutional ideals such as liberty, equality, and justice.

✅ Criticism of the Doctrine

  • Not explicitly mentioned in the Constitution — considered a judicial innovation.
  • Critics argue that it limits parliamentary sovereignty.
  • The doctrine is open-ended — the judiciary decides what constitutes the “basic structure”, leading to subjective interpretations.

✅ Conclusion

The Basic Structure Doctrine is a constitutional safeguard created by the judiciary to preserve the soul of the Indian Constitution. It limits the otherwise vast amending power of Parliament under Article 368, ensuring that democracy, rule of law, and other core values are not eroded in the name of reform. Through historic judgments like Kesavananda Bharati, Minerva Mills, and I.R. Coelho, the Supreme Court has upheld this doctrine as a guardian of constitutional morality and continuity, making it a bedrock of Indian constitutional jurisprudence.