Question

Consider the following statements about the amendments affecting emergency provisions.

(i) The 38th Amendment Act of 1975 made the declaration of both National Emergency and President’s Rule immune from judicial review.

(ii) The 44th Amendment Act of 1978 restored judicial review for both National Emergency and President’s Rule.

(iii) The 42nd Amendment Act of 1976 extended the duration of a National Emergency indefinitely without parliamentary approval.

• A. (i) and (ii) only
• B. (ii) and (iii) only
• C. (i) and (iii) only
• D. All of the above

Answer 1

Answer:

A. (i) and (ii) only

Emergency Provisions and Constitutional Amendments

• The Indian Constitution provides for three types of emergencies:
  • National Emergency (Article 352): Declared due to war, external aggression, or armed rebellion.
  • President's Rule (Article 356): Imposed when there is a failure of constitutional machinery in a state.
  • Financial Emergency (Article 360): Declared in situations threatening India's financial stability or credit.
• These provisions have been significantly impacted by various constitutional amendments, particularly concerning judicial review and parliamentary oversight.

The 38th Amendment Act of 1975

• Immunity from Judicial Review: This amendment, enacted during the period of National Emergency (1975-1977), stipulated that the President's satisfaction in declaring an emergency (both National Emergency under Article 352 and President's Rule under Article 356) was final and conclusive.
• It explicitly barred any court from questioning the validity of such a proclamation on any ground, effectively making emergency declarations non-justiciable.

The 42nd Amendment Act of 1976 (Mini Constitution)

• Duration of National Emergency: While often referred to as a 'Mini Constitution' due to its extensive changes, the 42nd Amendment did not extend the duration of a National Emergency indefinitely without parliamentary approval.
• It changed the period of operation of a National Emergency, once approved by Parliament, from six months to one year. However, subsequent parliamentary approval was still essential for further extensions.
• This amendment also enabled the President to proclaim a National Emergency in respect of a specific part of India.

The 44th Amendment Act of 1978

• Restoration of Judicial Review: This significant amendment, passed by the Janata Party government, aimed to reverse many of the authoritarian changes introduced by the 38th and 42nd Amendments.
• It restored the power of judicial review for the proclamation of both National Emergency (Article 352) and President's Rule (Article 356).
• This meant that the President's satisfaction in declaring an emergency could once again be challenged and scrutinized by the courts.
• Key Changes to National Emergency (Article 352):
  • The ground for National Emergency was changed from "internal disturbance" to "armed rebellion" to prevent its misuse.
  • It mandated that the President could proclaim a National Emergency only upon the written recommendation of the Union Cabinet.
  • It reverted the parliamentary approval period for the continuation of an emergency proclamation from one year back to six months.
• The S.R. Bommai vs. Union of India (1994) case further solidified judicial review over President's Rule, establishing strict guidelines for its imposition.

Important Points for Competitive Exams

• The 38th Amendment (1975) made emergency declarations non-justiciable (beyond judicial review).
• The 44th Amendment (1978) reversed this, making them justiciable and restoring judicial review, a crucial democratic safeguard.
• The 42nd Amendment (1976) extended the parliamentary approval period for National Emergency from six months to one year, but still required parliamentary approval. This was later reverted to six months by the 44th Amendment.
• The term "armed rebellion" replaced "internal disturbance" as a ground for National Emergency through the 44th Amendment.
• The 44th Amendment also introduced the requirement of a written recommendation from the Union Cabinet for National Emergency.