Emergency Provisions and Amendment of the Constitution notes — Unit 5

Part XVIII of the Constitution contains Emergency provisions, allowing the federal structure to instantly convert into a unitary one to handle a crisis.

⇒1.1 Grounds for Declaration

Under Article 352, the President can declare a National Emergency if the security of India (or a part of it) is threatened by:

• 1. War
• 2. External Aggression
• 3. Armed Rebellion (Note: Originally, this word was 'Internal Disturbance'. Indira Gandhi used 'Internal Disturbance' to impose the 1975 Emergency. To prevent future abuse, the 44th Amendment replaced it with the much stricter term 'Armed Rebellion').

⇒1.2 The Cabinet Safeguard

Before the 44th Amendment, the PM could advise the President alone. Now, the President can only declare an emergency upon receiving a written recommendation from the entire Union Cabinet.

A National Emergency has a devastating impact on Fundamental Rights. Articles 358 and 359 govern this suspension.

⇒Article 358 (Automatic Suspension of Art 19)

• The moment an emergency is declared on grounds of War or External Aggression, the six freedoms under Article 19 (Speech, Assembly, etc.) are automatically suspended.
• (Crucial 44th Amendment change: Art 19 is NOT suspended if the emergency is declared on grounds of Armed Rebellion).

⇒Article 359 (Suspension of the Right to move Court)

• Article 359 does not suspend rights automatically. It authorizes the President to issue an order suspending the right to move any court for the enforcement of specific Fundamental Rights mentioned in the order.
• The Ultimate Safeguard (44th Amendment): The President CANNOT suspend the right to enforce Article 20 (Protection in conviction of offences) and Article 21 (Right to Life and Personal Liberty) under any circumstances.

⇒ADM Jabalpur v. Shivkant Shukla (1976) - 'The Habeas Corpus Case'

During the 1975 Emergency, the President suspended the right to move courts for Article 21 (Right to Life). Thousands of political opponents were illegally arrested. They filed Habeas Corpus petitions in High Courts. The Government argued that since Art 21 was suspended, the citizens literally had no right to life or liberty, and courts couldn't even ask the police why someone was arrested.

The Judgment (4:1 Majority):

• In arguably the most criticized judgment in SC history, the majority agreed with the Government. They ruled that during an emergency, a person cannot file a writ of Habeas Corpus to challenge illegal detention.
• Justice H.R. Khanna's Historic Dissent: He was the lone dissenting judge. He argued that the Right to Life predates the Constitution, and the State cannot deprive a person of life or liberty without the authority of law, emergency or no emergency. (He was superseded for the CJI post because of this dissent).

Note: The 44th Amendment explicitly overruled this judgment by making Article 21 non-suspendable.

Article 356 is the most controversial and misused provision of the Constitution. It allows the Centre to dismiss an elected State Government and impose direct rule.

⇒4.1 Grounds for Imposition

The President must be satisfied that a situation has arisen where the government of the State cannot be carried on in accordance with the provisions of the Constitution.
(This report is usually provided by the Governor).

⇒4.2 Consequences

• The President assumes all executive functions of the State.
• The State Legislative Assembly is either suspended or dissolved.
• Parliament assumes the power to make laws on the State List for that State.

For decades, the Centre used Art 356 to dismiss rival political parties in the States. In 1994, the Supreme Court finally put an end to this abuse in a 9-judge bench decision.

⇒S.R. Bommai v. Union of India (1994)

Key Rulings:

• 1. Judicial Review: The Presidential proclamation under Art 356 is NOT immune from judicial review. The court can examine if the materials leading to the 'satisfaction' were relevant or based on mala fides.
• 2. The Floor Test: The only place to test if a Chief Minister has the majority is the floor of the Legislative Assembly, not the Governor's subjective opinion.
• 3. Secularism as Basic Structure: Bommai also established that Secularism is a basic feature. State governments can be dismissed under Art 356 if they act subversively against secularism (e.g., the dismissal of BJP governments after the Babri Masjid demolition was upheld).
• 4. Restoration: If the court finds the dismissal unconstitutional, it has the power to revive the dismissed State Government and restore the dissolved Assembly.

Can Parliament rewrite the entire Constitution? Can it remove the Right to Equality? This question sparked a 25-year legal war.

⇒The Evolution of the Conflict

• 1. Shankari Prasad (1951) & Sajjan Singh (1965): The SC held that Parliament's amending power under Art 368 is absolute. It can amend ANY part of the Constitution, including Fundamental Rights.
• 2. Golaknath v. State of Punjab (1967): A massive reversal. An 11-judge bench ruled that Fundamental Rights are 'transcendental and immutable'. Parliament has NO POWER to amend or take away Fundamental Rights.
• 3. The 24th Amendment (1971): Furious at Golaknath, Indira Gandhi's government passed the 24th Amendment. It explicitly stated that Parliament can amend any provision of the Constitution, and such an amendment will not be considered a 'law' under Article 13 (so courts cannot strike it down for violating fundamental rights).

⇒Kesavananda Bharati v. State of Kerala (1973)

The largest bench in history (13 judges) sat to decide the fate of the 24th Amendment and the ultimate limit of Parliament's power. By a razor-thin majority of 7:6, they delivered the greatest judgment in Indian constitutional history.

• 1. Overruling Golaknath: The Court agreed with the Government that Parliament DOES have the power to amend Fundamental Rights. The 24th Amendment is valid.
• 2. The Catch (The Basic Structure Doctrine): However, the Court ruled that the word 'amend' means to change, not to destroy. Parliament cannot use its amending power to alter or destroy the 'Basic Structure' or essential framework of the Constitution.
• 3. Result: You can change the Constitution, but you cannot rewrite its DNA. You cannot remove democracy, secularism, judicial review, or the rule of law.

The Government was furious with the Kesavananda restriction. During the 1975 Emergency, they passed the 42nd Amendment (1976), adding Clauses (4) and (5) to Article 368. These clauses declared that there is NO LIMIT whatsoever on Parliament's amending power, and no amendment can ever be questioned in any court.

⇒Minerva Mills v. Union of India (1980)

The Supreme Court struck down Clauses (4) and (5) of Article 368, declaring them unconstitutional.

• The Court held that 'Judicial Review' and 'Limited Amending Power' are themselves part of the Basic Structure.
• A Parliament with a limited amending power cannot, by exercising that very power, enlarge it into an absolute power. (You cannot use a limited power to destroy the limits on that power).

The Final Settlement: The Basic Structure doctrine is now the absolute bedrock of Indian Constitutional Law. Parliament is supreme in law-making, but the Constitution is supreme over Parliament.

⇒Summary of Master Concepts

• National Emergency (Art 352): War, External Aggression, Armed Rebellion. Art 20 and 21 can never be suspended (44th Amendment).
• President's Rule (Art 356): Must be tested by a Floor Test, and is subject to Judicial Review (S.R. Bommai).
• Amendment Power (Art 368): Evolved through Shankari Prasad -> Golaknath (No power) -> Kesavananda Bharati (Basic Structure limit) -> Minerva Mills (Judicial review cemented).

⇒University Exam Tips for this Unit (Premium Advice)

• The 44th Amendment is Key: When writing about Emergencies, never just state the bare text. You must highlight how the 44th Amendment undid the damage of the 1975 Emergency (changing 'internal disturbance' to 'armed rebellion', requiring a written cabinet recommendation, and saving Art 20 & 21).
• The ADM Jabalpur Dissent: Mentioning Justice H.R. Khanna's dissent in the Habeas Corpus case adds massive premium value to your answer. It shows a historical understanding of fundamental rights.
• The Amendment Timeline: Do not just define the Basic Structure. A top-tier answer must narrate the story: How Parliament tried to claim absolute power (24th and 42nd Amendments), and how the Supreme Court blocked them by inventing the Basic Structure (Kesavananda) and cementing it (Minerva Mills).