Constitution Part 2 | Prashanth Sequeira

EMERGENCY (Articles 352 to 360)

Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to 360. There are
three types of Emergencies mentioned in the Constitution. The power of imposing all three types of
Emergencies is vested upon the President of India. The concept of Emergency was borrowed from the
Weimar Constitution of Germany. The three types are as follows –
I. Article 352 – National Emergency
II. Article 356 – President’s Rule
III. Article 360 – Financial Emergency

National emergency -
A. Grounds for emergency – Art 352 (1)
B. Procedure of the Proclamation of national emergency – Art 352(3) & 352(4)
1. Proclamation by the president
2. Approval of the houses
C. Duration of National emergency – Art 352(5)
D. Revocation of National emergency – Art 352 (7) & Art 352 (8)
1. Revocation by President
2. Revocation by Loka Sabha
3. Revocation by Notice
E. Territorial extent of National emergency
F. Effects of National emergency
a. Effects on federal system or centre and state relationship- Art 353
b. Effects on fundamental rights of citizens – art 358 & 359
G. Landmark judgements on National emergency
1. Makhan Singh v state of Punjab
2. ADM Jabalpur v S Shukla 1976
3. Minerva Mills Ltd v Union of India
H. Amendments regarding National emergency
38th , 42nd and 44th amendments

National emergency
Article 352 deals with “Proclamation of Emergency” or “ National Emergency”. The President of India has
the power to declare an Emergency in India or any part of India by making a Proclamation.

A. Grounds for emergency

a. War: when both countries formally announce the use of armed forces and that they are in the war.
b. External Aggression: there is no formal announcement of any country of the use of armed forces.
When there is unannounced external aggression or the use of armed forces.
c. Armed Rebellion: The word “Armed Rebellion” was substituted for “Internal Disturbance” by the
Forty-fourth Constitution Amendment Act, 1978.
 Constitution Part 2 | Prashanth Sequeira

B. Procedure of the Proclamation

1. Proclamation of the President
• Clause 1 states that National Emergency may be imposed by the President if he is satisfied that
there exists a grave situation due to which there is a threat to the security of India or any part of
the territory because of War, External Aggression armed Rebellion
• The explanation of Clause 1 states that an Emergency may be proclaimed by the President even
when there is no actual occurrence of war, external aggression, and armed rebellion. In this case,
the President must be satisfied that there is an imminent danger.
• Clause 3 states that the President of India may declare an Emergency when Council of Minister
headed by the Prime Minister communicate to him in writing.

2. Approval by the Parliament

• Clause 4 states that Proclamation of emergency must be approved by resolution of both houses
of Parliament within one month. It shall cease to exist after a month if it has not been passed
by both the Houses of Parliament. (prior to the 44th amendment two months).
• A resolution approving the Proclamation must be passed by special majority that is by a majority
of the2/3rd total members of each House. (Prior to the 44th amendment by simple majority)
• But if the Loka Sabha has been dissolved during the period of one month, without approving the
Proclamation then the proclamation should be approved by the Rajya Sabha with a special
majority only then the emergency will continue to operate.
• However, once the Lok Sabha sits after its reconstitution it shall cease to operate if it has not
been approved by the Lok Sabha with a special majority within 30 days.

C. Duration of emergency
• Clause 5 states after the approval by both the houses emergency will have continue up to six months
and ceases to operate automatically on expiry of six months. But it can be continued beyond six
months only on an approval of both House of Parliament.
• If approved by both the houses, the Emergency continues for 6 months and can be extended to an
indefinite period with an approval of the Parliament for every six months.
• Every resolution approving the proclamation of emergency or its continuance must be passed by
either House of Parliament by a special majority

D. Revocation of proclamation
It can be revoked in three ways
1. Revoked by the President: A proclamation of Emergency may be revoked by the President at any
time by a subsequent proclamation. Such proclamation does not require parliamentary approval.
2. Revoked by the Lok Sabha: The emergency may be revoked if the Lok Sabha passes a resolution by
a simple majority disapproving its continuation.
3. Revoked by a notice: Notice signed by not less than 1/10th of the total number of member of the
Lok Sabha have given their intention to move a resolution for disapproving the continuance of a
Proclamation of Emergency
➢ to the speaker if the house is in session
➢ to the President if the house is not in session
then a special sitting of the Lok Sabha shall be held within 14 days from the date of the notice
received
 Constitution Part 2 | Prashanth Sequeira

E. Territorial extent of Proclamation

Article 352 enables the President to make a proclamation of emergency either in respect of whole of India
or part of India. These words were added in 42nd amendment. So President can confine the emergency to
any part of the territory of India.

F. Effects of Proclamation of Emergency

The effects can be divided to two parts
c. Effects on federal system or centre and state relationship
d. Effects on fundamental rights of citizens

Effects on federal system or centre and state relationship

1. Extension of the centre’s executive power
The executive power of the union is extended and it can give directions to any state on how executive
power of the state is to be exercised. In normal conditions the executive authority of the Union
doesn’t give any direction to any state on the state matters.

2. Extension of Parliament’s legislative power

Union Parliament is empowered to make laws with respect to any matter in the state list. The law-
making power of state is not suspended during the emergency. The state can make law but it is
subject to the overriding power of the Parliament.
When Parliament is not session President may promulgate ordinances also in respect of matters
included in the state list. Normally the power of the President to promulgate ordinances is limited
to the matters of union list and concurrent list.

3. Extension of Centre’s financial power.

Central is empowered to alter distribution of revenue between the union and state
The executive can modify the constitutional distribution of revenues between the centre and the
states

4. Extension of the life of Lok Sabha

During the emergency the President may extend the normal life of Lok Sabha by a year each time.
Normally the life period of the Lok Sabha is for five years but during emergency it can be extended.

Suspension of fundamental rights

1. Suspension of article 19
• Article 358 states, when a proclamation of National Emergency is made, the six fundamental rights
under article 19 are automatically suspended.
• So, during the time of emergency any laws made or any executive action taken by the executive
cannot be challenged in the court, on the ground that they are inconsistent with the rights
guaranteed by article 19
• Article 19 is automatically revived after the expiry of the emergency. So the laws that are made
during emergency ceases to exist to the extent of their inconsistency.
• But no action can be taken for anything done during the emergency even after the emergency is
over. But executive action must have the authority of law and action may be taken in pursuance of
lawful authority.
 Constitution Part 2 | Prashanth Sequeira

Bennett Coleman & Co v UOI 1972

It was observed that proclamation of emergency would not authorize the taking of detrimental
executive action affecting art 19 without the legislative authority.

• After the 44 Amendment Act Article 19 can only be suspended when the National Emergency is laid
on the grounds of war or external aggression and not in the case of armed rebellion.

2. Suspension of other Fundamental Rights:

• Other fundamental rights are not suspended automatically but they are suspended only after the
order of the President.
• Under Article 359, that during emergency the President may by order declare that the right to move
any court for the enforcement of fundamental right as may be mentioned in the order except article
20 and 21.
• And all proceedings pending in any court for the enforcement of fundamental rights shall remain
suspended for the period during the Proclamation is in force. An order suspending the enforcement
of fundamental rights may extend to the whole or any part of the territory India.
• Any executive action causing violation of suspended right must have its basis in law.
• Thus, remedial measures are suspended and not the Fundamental Rights. The suspension of
enforcement relates to only those Fundamental Rights that are specified in the Presidential Order.
The suspension could be for the full period of the operation of emergency or for a shorter period.
• The Presidential Order should be laid before each House of Parliament for approval.

Example for the Presidential order: In September 1962 China attacked India. On 26th October 1962
the president of India issued a Proclamation of Emergency . declaring that a grave emergency exist
whereby the security of India is threatened by external aggression.
On 3rd November 1962 the President issued an order under art 359 of the constitution
“In exercise of the powers conferred by clause 1 of Article 359 of the constitution, the president
hereby declares that the right of any person to move any constitution shall remain suspended for
the period during the which the emergency issued under article 352(1) on 26th October 1962 was in
force….”

Landmark judgements

Makan Singh v state of Punjab

Facts: a person was detained
Issue: can a writ of habeas corpus be entrained during the period of emergency
Judgement: Held that writ of habeas corpus can be entrained during the period of emergency. A person
who is detained has the right to move the courts for his release. So, the citizen would not be deprived of his
right to move the appropriate court for a writ of habeas corpus.
 Constitution Part 2 | Prashanth Sequeira

ADM Jabalpur v S Shukla 1976

Facts: The respondents were detained. They filed application in different high courts for the issue of habeas
corpus. High court had held that it has power to examine the order of detention was in accordance with the
law or order was malafide. States appealed to the supreme court.
Issue: can a writ of habeas corpus be entrained during the period of emergency
Judgement: Supreme court held that no person has any locus standi to move any writ petition under art
226 before any court. It overruled high court decision stating that writ of habeas corpus or any other writ
cannot be entertained by the courts during the period of Emergency.
However this is overruled by the 44th amendment where article 20 and 21 cannot be suspended in any
situation.

Minerva Mills Ltd. v. Union of India (1980)

Facts: The case challenged the validity of the 38th and 42nd Amendment, which restricted judicial review.
Contentions: The petitioners argued that the amendment violated the basic structure of the Constitution.
Judgement: The Supreme Court struck down 38th and parts of the 42nd Amendment stated that judicial
review is an essential feature of the Constitution.

All these cases have played a crucial role in shaping the legal framework and understanding of national
emergencies and fundamental rights in India.

Amendments on National Emergency

38th amendment
Before 38th amendment there was a provision for judicial review of the reason of the proclamation of the
emergency. But in 38th amendment added clause 5 to the 352 which stated that the reason of the President
for which the proclamation of emergency is final and conclusive so it cannot be questioned in any court. So
it is beyond the purview of the judicial review.
But this amendment was abrogated in the 44th amendment and in the case of Minerva mills.
Presently the reason for which the emergency is proclaimed comes under the judicial review.

39th amendment
This amendment added Clause (4) of Article 392-A brought amendments in settling the election disputes.
It provided that the election of president, vice president, prime minister and speaker cannot be questioned
in the court. These disputes do not come under the purview of judiciary review.

42nd amendment
It brought many amendments and changes. It happened during the time of emergency when many leaders
of the opposition were in jail. This amendment is called as mini constitution because of the vast number of
amendments.
• It reduced the power of the judiciary: it stated that constitutional amendments brought by the
Parliament cannot be questioned in the courts. There is no judicial review of Constitutional
amendments.
• It reduced the power of State: Five subjects from state list were moved to concurrent list. It transferred
five subjects: education, forests, weights and measures, protection of wild animals and birds,
administration of justice. It allowed the centre to deploy central forces in state to deal with the
conflicting situations of law and order -art 257 A
• Attack on Fundamental rights: it added prohibition of anti-national activity. It gave a wide definition for
anti-national activities. It also provided that any laws are made to control and prohibit the anti-national
activities cannot be questioned.
 Constitution Part 2 | Prashanth Sequeira

44th amendment
• The term internal disturbance was removed was replaced armed rebellion.
• After the Proclamation, emergency could remain in force for two months even if it was not approved
by the Parliament but this 44th amendment reduced the period to one month
• Resolution of Proclamation of emergency was approved in the Parliament with a simple majority. It
was amended to special majority.
• Once it has been approved it could continue to operate indefinitely that is as long the Executive
wanted it to continue but this was amended that once it has been approved it remains in operation
for six months. And for further continuance it has to be approved by Parliament every six months
with a special majority
• Article 19 can only be suspended when the National Emergency is laid on the grounds of war or
external aggression and not in the case of armed rebellion.
• During the emergency article 20 and 21 cannot be suspended. And writ of habeas corpus can be
instituted.
• Abrogated the 38th amendment and the reason of proclamation of emergency could be questioned
in the court. Judicial review applies to the reason of proclamation of emergency.

Before 44th after 44th

1. emergency could remain in force for two months two months have been reduced to one month for the
even if it was not approved by the Parliament approval of the Parliament.

2. Once it has been approved it can continue to Once it is been approved by the Parliament for the
operate indefinitely that is as long the Executive period of six months. But it can be revoked even with
wanted it to continue this six months period.
For further continuance it has been approved by the
Parliament

3. It needed only simple majority It has passed by special majority.

4. Judicial review doesn’t apply to the reason of Judicial review applies to the reason of proclamation of
proclamation of emergency. emergency.

5. Article 19 can only be suspended when the Article 19 cannot be suspended if the national
National Emergency is laid on all the three emergency is in the case of armed rebellion.
grounds.

6. During the emergency article 20 and 21 can be During the emergency article 20 and 21 cannot be
suspended. And writ of habeas corpus cannot be suspended. And writ of habeas corpus can be
instituted. instituted.

National emergency in India

1. The first proclamation of National Emergency was issued in October 1962 on account of Chinese
aggression in the NEFA and was in force till January 1968.
2. The second proclamation of National Emergency was made in December 1971 in the wake of the
attack by Pakistan.
3. Even when the emergency was in operation, the third proclamation of National Emergency was
made in June 1975. Both the second and the third proclamations were revoked in March 1977
 Constitution Part 2 | Prashanth Sequeira

State emergency or failure of constitutional machinery in the state

State emergency –
A. Obligation of the Centre towards the state – Art 355
B. Grounds for State emergency – Art 356
C. Procedure of the Proclamation of State emergency – Art 356(3)
1. Proclamation by the president
2. Approval of the houses
D. Duration of State emergency – Art 352(4)
E. Effects of State emergency
1. State legislature is dissolved - Art 356(1)
2. State executive is suspended
F. Amendments regarding State emergency
G. Landmark judgements on State emergency
1. Rao Birinder Singh v UOI 1968
2. SR Bomai v UOI 1990
3. Sunderla Patwa v UOI 1993
4. SR Bomai v UOI 1994
5. Rameshwar Prasad v UOI 2006

Background for proclamation of the state emergency

Obligation of the centre towards the state
Art 355 imposes two obligations on the central government
1. The duty to protect states form internal disturbances and external aggression. Such provision is
also found in America and Australia. But in America and Australia the centre acts only when the
request is made by the States. But this precondition is not there in art 355. The centre can thus
interfere even without the state’s request.
2. The duty to see that government of every state is carried on in accordance with the provisions
of the constitution. The constitution of USA and Australia contain such provision. It is the duty in
performance of which the centre takes over the government of state under art 356 in case of
failure of constitutional machinery in the state.

Grounds for state emergency

1. With the report of the governor: when Governor gives a report to the report that the state is not
governing according to the provisions of the constitution and there is failure constitutional machinery
in the state.
2. Without the report of the governor: President can act even without the report of the Governor,
President by himself feels that state is not governing according to the provisions of the state. Example:
in 1977 and 1980 after Lok Sabha election in nine states imposed president’s rule without the report of
the governor.
3. Under the 365 when state fails to follow the directions given the centre as dealt in art 256 and 257
 Constitution Part 2 | Prashanth Sequeira

Procedure of the proclamation of state emergency

1. Proclamation of state emergency by the President
President proclaims state emergency when he is satisfied that state government cannot be carried on
in accordance with the provisions of the constitution because of the report of the governor or without
the report of the Governor.

2. Approval by both the houses of Parliament

• Article 356(3) states- A proclamation issued by the President should be approved by both the houses
of Parliament within the period of two months. Otherwise, it will cease to exist after two months.
• But if the Loka Sabha is dissolved during the period of two months, without approving the
Proclamation then the proclamation should be approved by the Rajya Sabha only then the emergency
will continue to operate.
• However, once the Lok Sabha sits after its reconstitution it shall cease to operate if it has not been
approved by the Lok Sabha with a simple majority within 30 days.

Duration of the proclamation

• If the proclamation approved by the Parliament it shall have an effect up to six months and ceases
to operate automatically on expiry of six months. It can be continued beyond six month only on an
approval resolution of both House of Parliament with simple majority.

• After one year to continue state emergency two conditions are necessary
1. There should be national emergency at that time
2. Election commission should certify it is impossible to hold election in the state so it is
necessary for state emergency to continue.
• But no state emergency shall remain in force for more than three years. After the expiry of the three
years neither the Parliament nor President shall have power to continue a Proclamation and the
constitutional machinery must be restored to the state.

Effects of state emergency– art 357

1.State legislature is dissolved
When the proclamation of emergency is proclaimed, the powers of the state legislature are to be exercised
by Parliament or Parliament can confer on the President the power to make laws for the states. Parliament
may also authorize the President to delegate such powers to any other authority as specified by himself in
art 357(1)a

2. State executive is suspended

State executive is suspended and President may rule by himself or union government perform the executive
functions of the state.

Amendments regarding state emergency in 44th amendment

This amendment has restricted its scope.
• The 42nd amendment increased to one year after the approval by both the house of Parliament.
However 42nd amendment reduced it to six months. So a proclamation of emergency will continue for
six months from the date of issue. For further continuation it has to be approved again by the both
houses of Parliament each time.
 Constitution Part 2 | Prashanth Sequeira

• Added clause (5) to article 356 which states two conditions should be fulfilled to continue state
emergency more than one year.
a. A proclamation of national emergency is in operation at the time of the passing such resolution
b. The election commission certifies that it is impossible to hold election so it is necessary to continue
the state emergency.
Prior to this amendment there was no such condition and the government could extend the period
up to the maximum of three years without sufficient cause.

Landmark cases regarding state emergency

Rao Birinder Singh v UOI 1968

Facts: Because of the large number of defections, no party was able to form the government so the
Governor wrote a report to the President and President imposed state emergency in the state. The former
chief minister filed a petition to quash the proclamation
Issue: Does the high court have jurisdiction to entertain the issue of state emergency
Judgement: High court held that high court does not have jurisdiction
a. Since President issues the proclamation of state emergency, the President doesn’t come under the
jurisdiction of the High court.
b. Since the approval of the proclamation is vested in Parliament. Parliament does not come under the
jurisdiction of the High court.

SR Bommai v UOI 1990

Facts: Because of the split in the ruling party and defection there was a failure of forming the government
Issue: Does the court have jurisdiction to question the proclamation of the state emergency
Judgement: High Court held that proclamation is justiciable and the courts has jurisdiction to look into the
reason disclosed for issuing the proclamation to find out whether the reasons were wholly legal and
bonfide.

Sunderlal Patwa v UOI 1993

Facts : state emergency was imposed in three states Madya Pradesh, Rajastha and Himachal Pradesh
because of communal violence after the demolition of Babri Masjid
Judgement: MP High Court invalidated the proclamation of state emergency. It held that President’s
satisfaction based on report of Governor which mentioned some incidents of riots and killing in the
aftermath of the demolition Babri masjid. These incidents didn’t find adequate reason to justify internal
disturbance to proclaim. It held internal disturbance should be to such an extent that it is impossible for the
government to carry on in accordance with the constitution.

SR Bommai v UOI 1994

Constitution bench
Facts: State emergency was imposed in many states ; in Nagaland 1988, in Karnataka 1989, Meghalaya 1991,
and in 1992 in three states MP, HP and Rajasthan.
Judgement: SC stayed the order of MP high court.
It held that imposition of President’s rule in MP, HP and Rajasthan was constitutional.
But held that imposition of President’s rule in Karnataka, Nagaland and Meghalaya was unconstitutional
therefore liable to struck down.
This judgement restricted the power of centre in proclamation of state emergency
 Constitution Part 2 | Prashanth Sequeira

• It held that president’s power to impose president’s rule is subject to judicial review. If the dismissal
is found illegal then court can revive the dissolved state assembly.

• It held that governor cannot dissolve the state legislature. President can only dissolve the state
assembly after the approval of proclamation by both house houses of Parliament and not before.
Until such approval is given the President can only suspend the legislative assembly.

• Article 74(2) bars an enquiry into the question whether any or what advice was given by the council
of ministers to the President but this court held that it doesn’t bar the court to call upon which the
President and question the reason of the proclamation of the state emergency.

Rameshwar Prasad v UOI 2006

Facts: March 7 2005 President’s rule was imposed in the state of Bihar on the ground that no party had the
required majority.
Judgment: SC held President’s rule dissolving state assembly was unconstitutional. The court held the
governor misled the centre in recommending the dissolution of the state assembly and the union council
of ministers should have verified before accepting the report of the Governor. Art 356 cannot be justified
on mere personal opinion of the Governor. The council of ministers should verify the facts stated in the
report.
 Constitution Part 2 | Prashanth Sequeira

FINANCIAL EMERGENCY
Financial emergency
1. Grounds for declaration
2. Procedure of the proclamation of financial emergency
3. Duration of financial emergency
4. Effects of financial emergency

Grounds of declaration:
Financial instability or threat to the financial stability: Article 360 empowers the President to proclaim a
Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit
of India or any part of its territory is threatened.

Procedure of the proclamation of financial emergency

1. Proclamation of state emergency by the President
President proclaims financial emergency when he is satisfied that a situation has arisen due to which
the financial stability or credit of India or any part of its territory is threatened.

2. Approval by both the houses of Parliament

• Article 360(2) proclamation issued should be approved by both the houses of Parliament within the
period of two months within one month with a simple majority. It will cease to exist if it is not
approved by two months.
• But if the Loka Sabha is dissolved during the period of two months, without approving the
Proclamation then the proclamation should be approved by the Rajya Sabha only then the emergency
will continue to operate.
• However, once the Lok Sabha sits once it is reconstituted it has to approve it with a simple majority
within 30 days.

Duration of financial emergency:

Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is
revoked.

Effects of Financial Emergency

1. Reduction of State Autonomy: During a financial emergency, the central government controls financial
matters of state, reducing states' autonomy in financial decisions. State legislature can pass all the
money bills or other financial bills only after the consideration of the President.
2. Salaries and Allowances: Salaries and allowances of government employees, including those at the
state level and in the judiciary, can be reduced by the direction of the President.
3. Budgetary Control: States are required to seek approval for state budgets and state expenses.

Conclusion
As of now, a financial emergency has never been declared in India. While this provision has not been
invoked, its presence acts as a safeguard to maintain financial discipline and stability in extreme situations.
A financial emergency is a constitutional mechanism designed to protect the financial stability of India.
 Constitution Part 2 | Prashanth Sequeira

The amendment of the constitution article 368

AMENDMENT -368
1. Constitution is a living document
2. Constitution is both rigid and flexible in nature
3. Types of amendments
4. Shankari Prasad v Union of India 1951
5. Sajan Singh V Rajasthan 1965
6. Golaknath v Punjab 1967
7. Constitution 24th amendment act 1971
8. Keshwananda Bharati v state of Kerala 1973
9. Basic structure theory
a. Indira Nehru Gandhi v Raj Narain 1975
b. Minerva Mills Ltd v UOI
10. Contents of basic structure
➢ M Nagaraj v UOI
11. Ninth Schedule
a. Waman Rao v. Union of India (1981)
b. IR Coelho v Tamil Nadu

The need for amendment

• The provision for amendment of the constitution is made with a view to overcome the difficulties which
may encounter in future in the working of the constitution.
• It is impossible to foresee everything that would have happen in the future so if no provision is made
for the amendment of the constitution, then the people would have recourse to extra constitutional
method like revolution to change the constitution.

Constitution is a living document

• Indian constitution is not dead or static document. As the Indian constitution keeps responding to the
new circumstances and situations from time to time. The constitution continues to be effective as it can
respond to changing situations.
• It is growing and allows the evolution. Constitution accepts the necessity of modifications according to
changing needs of the society.
• Framers also thought to have a constitution which would grow with a growing nation, adapt itself to
the changing need and circumstances of a growing people

Constitution is both rigid and flexible in nature

• Indian constitution strikes a balance between the rigidity and flexibility. Some of the features can be
amended by ordinary procedure. Some of the amendments are made by special majority or special
majority with ratification by the states.
• But the framers were also aware that if the constitution is very flexible then ruling party can misuse it.
So they were anxious to avoid flexibility of the extreme type. So, they adopted middle path. It is neither
too rigid to admit necessary amendments nor flexible for undesirable changes.
 Constitution Part 2 | Prashanth Sequeira

There are three types of amendments

1. Amendment by simple majority:
Articles that can be amended by Parliament with simple majority.
Simple majority refers to a majority of more than 50% of the members present and voting in the
House. For example, in the Lok Sabha, out of the total strength of 543, suppose 43 were absent and
100 abstained from voting. This means, only 400 members were present and voting. In this case, the
simple majority needed is 201 (50% + 1). Ordinary bills require only a simple majority.

2. Amendment by special majority

It refers to a majority of 2/3rd members present and voting supported by over 50% of the total
strength of the House. For example, in the Lok Sabha, out of the total strength of 543, suppose 43
were absent and 200 abstained from voting. This means, only 300 members were present and
voting. In this case, the simple majority needed is 200 (2/3).

3. By special majority and ratification by states

Here in addition to the special majority it has to be ratified by not less ½ of the state legislatures.
The states are given important voice in the amendment of these matters.
a. Election of the president article 54 and 55
b. Extent of the executive powers of the union and states – article 73, 162, 241,279A
c. Articles dealing with judiciary, supreme court , high court and union territories- art 124 to 147,
214 to 231, 241
d. Distribution of legislative powers between the centre and the state article 245- 255
e. Good and service tax council – article 279A
f. Any of the list of VII schedule
g. Representation of the states in Parliament IVth Schedule
h. Article 368 itself

The basic structure or framework of the constitution.

Parliament draws its power to legislate from the constitution so the question was raised can the Parliament
amend the provisions of the constitution. We will discuss the power of Parliament to amend the constitution
through various cases

Shankari Prasad v Union of India 1951

SC held that Parliament has power to amend the constitution including the fundamental rights.

Sajan Singh V Rajasthan 1965

SC held Parliament has the power to amend all the provisions of the constitution. The framers have made
it clear by granting a provision for it in the constitution itself in article 368.

Golaknath v Punjab 1967

SC overruled the above two judgements and held that Parliament has no power to amend or abridge the
fundamental rights.

Constitution 24th amendment act 1971

 Constitution Part 2 | Prashanth Sequeira

• In order to remove the difficulties created by the decision of Supreme Court in Golaknath case,
Parliament enacted the constitution 24th amendment act. This Act gave power to Parliament to amend
all the provisions of the constitution.
• This amendment inserted new clause to article 13 (4) which provides that “nothing in this article shall
apply to any amendment of this constitution under article 368.” It means judicial review doesn’t apply
to amendments of constitution
• It substituted a new heading to article 368
Old heading was -procedure for amendment of the constitution
New heading is- power of parliament to amend the constitution and procedure therefor..

Keshwananda Bharati v state of Kerala 1973

Question raised – to what extent of the amending power conferred by article 368 of the constitution.
Contention of union: the amending power was unlimited and any change could be effected.
Petitioner: contended that the amending power was wide but not unlimited
Special bench of 13 judges held that
• It overruled the Golak Nath’s case which denied Parliament the power to amend fundamental rights of
citizens. It held that even before the 24th amendment art 368 contained the power as well as procedure
of amendment. But article 368 is subject to certain implied and inherent limitations and parliament
cannot change the basic structure of the constitution.
• It held that parliament has wide powers of amending and it extends to all the articles but the amending
power is not unlimited and power to amend doesn’t include the power to destroy or abrogate the
constitution.
• Parliament cannot enlarge it own power so as to abrogate the limitation which were imposed on it
• Parliament is created under the constitution so it cannot empower itself to destroy the basic features
of the constitution
• Parliament cannot empower itself to destroy the basic human rights and fundamental freedoms which
were reserved by the people for themselves when they gave themselves to the constitution.

Thus, Court held that under art 368 Parliament is not empowered to amend the basic structure or
framework of the constitution.

Indira Nehru Gandhi v Raj Narain 1975

Facts: After the Allahabad High Court declared Indira Gandhi’s election void on grounds of corrupt practices.
Indira Gandhi made an appeal against the decision. The Supreme Court was on vacation at that time so she
was granted a conditional stay. Thereafter, emergency was declared due to internal disturbance.
In the meantime, Indira Gandhi passed the 39th constitutional amendment, which introduced Article 392A
to the Constitution of India. Article 392A(4) stated that the election of the Prime Minister and the Speaker
cannot be questioned in any court of law, it can only be challenged before a committee formed by the
Parliament itself. Thus, barring the Supreme Court from deciding Indira Gandhi’s case. Therefore, the
constitutional validity of the 39th amendment was challenged.
Issue: constitutionality of the 39th amendment
Judgement: The Hon’ble Supreme Court applied the basic structure doctrine and held that Clause (4) of
Article 392-A needed to be struck down on the ground that it hampers the standards of free and fair
elections which is the basic feature of the Constitution.
It also held that judicial review is also a basic feature of the constitution. Parliament cannot destroy the
basic feature of the constitution. So, the exclusion of judicial review in election dispute damaged the basic
structure of the constitution.
 Constitution Part 2 | Prashanth Sequeira

Minerva Mills Ltd v UOI

Applying the basic structure doctrine SC held that constitution had conferred a limited amending power on
Parliament. And Parliament cannot enlarge that power into an absolute power. Limited amending power is
one of the basic feature of our constitution and therefore limitation cannot be destroyed.

Contents of basic structure

With all the cases the existence of the doctrine of basic structure in our constitution is no more a matter of
dispute. The only dispute remains about its contents.
Some of the contents have settled and some are in the process of settling down.
Some of the contents that are settled
1. Judicial review and independence of judiciary
2. Democracy
3. Free and fair election based on adult franchise
4. Secularism
5. Rule of law etc.

General test to decide if an amendment is against the basic feature of the constitution
M Nagaraj v UOI
Court formulated a general test to decide if an amendment is against the basic feature of the constitution.
It called it as twin tests.
Twin test has two parts
• Width test: It is used to examine the extent or scope of the amendment and whether it alters or
destroys the basic structure of the Constitution. Whether the extent of the amendment is so wide
that it affects the essence or core principles of the Constitution's basic structure.
• Test of identity: It examines whether the identity or essence of the Constitution's basic structure is
preserved after the amendment. Determining if the amendment preserves these core features
without altering their identity.

The Ninth Schedule

➢ After the commencement of the constitution though Parliament had power to make laws but many of
them were struck down by the judiciary because they were against the fundamental rights of the
citizen.
➢ In the case of Shankari Prasad v union of India(1951), though it held that Parliament has power to
amend all the provisions of the constitution but it also ruled that laws enacted by the Parliament could
be challenged if they violated the fundamental rights guaranteed by the Constitution. This created
difficulties to Parliament in making any progress since many laws were struck down since they violated
fundamental rights in some way.
➢ So, the Ninth Schedule was added to the constitution in 1951 through First Amendment Act. The Ninth
Schedule of the Indian Constitution contains a list of central and state laws which cannot be challenged
in courts. The laws included in the Ninth Schedule are immune to being challenged in the court on the
grounds of inconsistency with the fundamental rights guaranteed by the Constitution of India
➢ The Ninth Schedule was brought by adding new Article 31B, which along with Article 31A enacted with
the aim of protecting laws related to agrarian reform and to abolish the Zamindari System.
 Constitution Part 2 | Prashanth Sequeira

➢ In Constitution (First Amendment) Act, 1951, 13 laws were added to the 9th schedule through the first
Amendment in 1951.
➢ Thus, the Ninth Schedule is a special provision in the Constitution of India that allows the legislature
to exempt certain laws from judicial review through a constitutional amendment. Parliament misused
ninth schedule to escape from judicial review. Over the years many laws have been added to the 9 th
schedule and at present there are more than 200 laws.

But in Keshavananda Bharati it was made clear that even the laws that are added in the ninth schedule
come under judicial review if they go against the basic feature of the constitution

Waman Rao v. Union of India (1981)

In this significant decision, the Supreme Court ruled that any amendments or laws added after 24th April
1973 (after Keshavanana Bharathi v state of Kerala judgement) in Ninth Schedule can be challenged on the
grounds of constitutionality.

I R Coelho v. State of Tamil Nadu (2007):

The court ruled that any law enacted in Ninth Schedule after 24th April 1973 must be examined under
Articles 14, 19, and 21. Furthermore, it stated that any act that is not in line with the basic structure of the
constitution can be challenged and subjected to judicial review.