Question

Consider the following statements about the judicial review of emergency provisions.

1. The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from judicial review.

2. The Minerva Mills case (1980) held that a National Emergency proclamation can be challenged on grounds of malafide or irrelevance.

3. The satisfaction of the President in imposing President’s Rule under Article 356 is beyond judicial review after the 44th Amendment Act of 1978.

Which of the statements given above is/are correct?

• A. 1 and 2 only
• B. 1 and 3 only
• C. 2 and 3 only
• D. All of the above

Answer 1

Answer:

A. 1 and 2 only

Judicial Review of Emergency Provisions in India

• The concept of Judicial Review allows the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive orders. This power is a fundamental aspect of the basic structure of the Indian Constitution, as affirmed in the Kesavananda Bharati case (1973).

• During a state of National Emergency (Article 352), the fundamental rights of citizens can be suspended, and the federal structure can become unitary, making judicial oversight crucial.

The 38th Constitutional Amendment Act, 1975

• The 38th Amendment Act of 1975 was enacted during the National Emergency (1975-1977).

• It sought to make the declaration of a National Emergency (Article 352) immune from judicial review.

• Specifically, it inserted a new clause (5) into Article 352, which stated that the President's satisfaction for declaring an emergency was 'final and conclusive and shall not be questioned in any court on any ground.' This meant that the courts could not inquire into the reasons or grounds for the emergency proclamation.

• This amendment also extended the same immunity from judicial review to the President's satisfaction for imposing President's Rule (Article 356) and Financial Emergency (Article 360).

The 44th Constitutional Amendment Act, 1978

• The 44th Amendment Act of 1978 was enacted by the Janata Party government after the Emergency to undo many of the changes made by the 38th and 42nd Amendments.

• It repealed Clause (5) of Article 352, thereby restoring the power of judicial review over the proclamation of a National Emergency.

• Similarly, it also repealed the provisions introduced by the 38th Amendment that barred judicial review for President's Rule (Article 356) and Financial Emergency (Article 360).

Landmark Judgments on Judicial Review of Emergency

Minerva Mills Case (1980):

• The Supreme Court in the landmark Minerva Mills v. Union of India (1980) case unequivocally held that a proclamation of National Emergency (Article 352) can be challenged in a court of law.

• The grounds for challenge include mala fide (bad faith), extraneous considerations, or if the decision was based on irrelevant or non-existent facts.

• This judgment reinforced the principle of judicial review as a 'basic feature' of the Constitution and further solidified the restoration of judicial oversight on emergency powers.

S.R. Bommai v. Union of India (1994):

• Regarding President's Rule (Article 356), the Supreme Court's verdict in the S.R. Bommai v. Union of India (1994) case is highly significant.

• The court explicitly held that the President's power under Article 356 is not absolute and is subject to judicial review.

• It laid down strict guidelines for the imposition of President's Rule, stating that the material on which the President forms satisfaction must be relevant and demonstrable.

• The court can examine the validity of the proclamation on grounds of mala fide, extraneous considerations, or if the action is arbitrary and irrational, ensuring that the federal structure is protected.