Question

Consider the following statements regarding Judicial Review during Emergency:

1. The 38th Amendment barred judicial review of proclamation of Emergency or President’s Rule.

2. The 44th Amendment restored the power of judicial review on Emergency proclamations.

3. Supreme Court’s Minerva Mills case upheld that National Emergency proclamation is immune from judicial scrutiny.

Which are correct?

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

Answer 1

Answer:

A. 1 and 2 only

Judicial Review during Emergency in India

• The concept of Judicial Review is a crucial principle embedded in the Indian Constitution, allowing the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive actions.
• However, the extent of judicial review, particularly concerning the proclamation of an Emergency, has been a subject of significant constitutional debate and amendments.

The 38th Constitutional Amendment Act, 1975

• The 38th Amendment Act was enacted in 1975 during the period of National Emergency.
• This amendment explicitly declared that the President's satisfaction regarding the declaration of a National Emergency (under Article 352) or the imposition of President's Rule in a state (under Article 356) was final and conclusive.
• It barred any court from inquiring into the validity of such a proclamation on any ground, thereby effectively removing the proclamation of Emergency from judicial review.

The 44th Constitutional Amendment Act, 1978

• The 44th Amendment Act was passed in 1978 by the Janata Government, primarily to undo some of the controversial changes made during the Emergency period by the 38th and 42nd Amendments.
• A significant provision of this amendment was the restoration of the power of judicial review over Emergency proclamations.
• It achieved this by deleting Clause (5) of Article 352, which had been inserted by the 38th Amendment. This made the President's satisfaction regarding the declaration of an Emergency subject to judicial scrutiny once again.
• The 44th Amendment also replaced the term "internal disturbance" with "armed rebellion" as a ground for National Emergency, making it harder to misuse the emergency provisions.

Supreme Court's Stance on Judicial Scrutiny of Emergency Proclamations

• The Minerva Mills case (1980) is a landmark judgment of the Supreme Court of India.
• While it primarily dealt with the validity of the 42nd Amendment and reinforced the Basic Structure Doctrine, it profoundly impacted the understanding of judicial review.
• The Supreme Court held that judicial review is a basic feature of the Constitution and cannot be taken away, even by a constitutional amendment.
• Therefore, the Minerva Mills case did not uphold that National Emergency proclamation is immune from judicial scrutiny. Instead, it strengthened the general principle of judicial review, implying that even emergency proclamations are subject to constitutional oversight.
• The power of judicial review over President's Rule (Article 356) was emphatically established in the S.R. Bommai case (1994), where the Supreme Court ruled that the President's power under Article 356 is not absolute and can be challenged in court on grounds of mala fide intention or extraneous considerations.