Question

Which of the following statements are correct about the judicial review of emergency provisions?

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

(ii) The 44th Amendment Act of 1978 restored judicial review of National Emergency proclamations.

(iii) The Supreme Court in the Minerva Mills case (1980) held that a National Emergency proclamation cannot be challenged on any grounds.

• A. (i) and (ii) only
• B. (ii) and (iii) only
• C. (i) and (iii) only
• D. All are correct

Answer 1

Answer:

A. (i) and (ii) 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. In the context of emergency provisions, its role has evolved significantly.
• The Constitution of India outlines three types of emergencies: National Emergency (Article 352), President's Rule (Article 356), and Financial Emergency (Article 360).

The 38th Amendment Act, 1975

• The 38th Amendment Act of 1975, enacted during the National Emergency (1975-1977) proclaimed by Indira Gandhi's government, made the declaration of a National Emergency immune from judicial review.
• It explicitly stated that the President's satisfaction in proclaiming an emergency was final and conclusive and could not be challenged in any court on any ground. This move significantly curtailed the powers of the judiciary.

The 44th Amendment Act, 1978

• The 44th Amendment Act of 1978 was a landmark constitutional amendment passed by the Janata Party government, which came to power after the Emergency. Its primary aim was to undo many of the changes made by the 38th and 42nd Amendments that were seen as undermining democratic principles.
• This amendment restored the judicial review of the proclamation of a National Emergency. It specifically deleted the provision added by the 38th Amendment, thereby making the President's satisfaction justiciable.
• It also introduced the requirement of 'armed rebellion' instead of 'internal disturbance' for proclaiming a National Emergency and mandated written advice from the Union Cabinet.

Minerva Mills Case, 1980

• The Supreme Court in the landmark Minerva Mills case (1980) reinforced the principle of judicial review concerning emergency provisions.
• The court held that the proclamation of a National Emergency can indeed be challenged in a court of law on the grounds of mala fide (bad faith), irrationality, or being based on extraneous or irrelevant grounds.
• This ruling directly contradicts statement (iii), which claimed the proclamation cannot be challenged on any grounds. The Minerva Mills case affirmed the judiciary's power to scrutinize such executive actions, thereby upholding the basic structure of the Constitution.

Key Takeaways for Competitive Exams

• The 38th Amendment (1975) *removed* judicial review.
• The 44th Amendment (1978) *restored* judicial review.
• The Minerva Mills Case (1980) *affirmed* that emergency proclamations are subject to judicial review on grounds of mala fide.
• Another crucial case, the S.R. Bommai case (1994), extended the scope of judicial review to the President's Rule (Article 356), holding that the proclamation of President's Rule is subject to judicial review and the satisfaction of the President must be based on relevant material.