Amendment to the Constitution, Basic Structure, Emergency

Amendment to the Constitution

Article 368 in the Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.

Procedure

• Can be initiated only by the Parliament, either by a minister or by a private member and does not require prior permission of the president.
• The bill must be passed in each House separately by a special majority and if the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of at least half of the states by a simple majority.
• The president must give his assent to the bill (cannot withhold or return for reconsideration).

Types of amendments

The Constitution can be amended in three ways:

Amendment by simple majority of the Parliament

• A number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament outside the scope of Article 368.
• These provisions include: Admission or establishment of new states, Formation of new states and alteration of areas, boundaries or names of existing states, Abolition or creation of legislative councils in states, Second Schedule–emoluments, allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.

Amendment by special majority of the Parliament

• The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament
• The provisions which can be amended by this way include: (i) Fundamental Rights; (ii) Directive Principles of State Policy; and (iii) All other provisions which are not covered by the first and third categories.

Amendment by special majority of the Parliament and the ratification of half of the state legislatures

The following provisions can be amended in this way:

• Election of the President and its manner
• Extent of the executive power of the Union and the states
• Supreme Court and high courts
• Distribution of legislative powers between the Union and the states
• Goods and Services Tax Council
• Any of the lists in the Seventh Schedule
• Representation of states in Parliament
• Power of Parliament to amend the Constitution and its procedure (Article 368 itself)

Basic Structure

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 (KesavanadaBharati Case) that the concept surfaced in the text of the apex court's verdict.

Emergence

According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws.

Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence.

Pre-Kesavanada position

• In the Shankari Prasad case (1951) the Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13
• In the GolakNath case (1967),the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged. The eleven-judge bench of Supreme Court reversed its earlier stand.The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.
• The Parliament reacted to the Supreme Court’s judgement in the GolakNath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368 declaring that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.

KesavanandaBharati case (1973) and after

• Inevitably, the constitutional validity of the amendments (24^thand 25^th) was challenged before a full bench of the Supreme Court (thirteen judges).
• All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the power to amend any or all provisions of the Constitution. All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution.
• Seven of the thirteen judges in the KesavanandaBharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament's constituent powerwas subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.
• Thus, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution.
• The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975). In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of LokSabha outside the jurisdiction of all courts.
• Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
• But, the Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.Through this case, Supreme Court clarified that the doctrine of the ‘basic structure’ will apply to Constitutional Amendments enacted after April 24, 1973.
• Again in the WamanRao case (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973.

Elements of the Basic Structure

There are no fixed elements as such under the Basic Structure of the Constitution. But according to the various cases of Supreme Court, following list has been prepared under the Basic Structure:

• Supremacy of the Constitution
• Sovereign, democratic and republican nature of the Indian polity
• Secular character of the Constitution
• Separation of powers between the legislature, the executive and the judiciary
• Federal character of the Constitution
• Unity and integrity of the nation
• Welfare state (socio-economic justice)
• Judicial review
• Freedom and dignity of the individual
• Parliamentary system
• Rule of law
• Harmony and balance between Fundamental Rights and Directive Principles
• Principle of equality
• Free and fair elections
• Independence of Judiciary
• Limited power of Parliament to amend the Constitution
• Effective access to justice
• Principles (or essence) underlying Fundamental Rights.
• Powers of the Supreme Court under Articles 32, 136, 141 and 142.
• Powers of the High Courts under Articles 226 and 227.

Emergency Provisions

Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360. The rationality behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution. During an Emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution.

Dr. B.R. Ambedkar observed in the Constituent Assembly that: ‘All federal systems including American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape. It can never be unitary. On the other hand, the Constitution of India can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of Emergency, it is so designed as to make it work as though it was a unitary system.’

The Constitution provides three types of emergencies:

• National Emergency (Article 352)
• State Emergency/President’s Rule (Article 356)
• Financial Emergency (Article 360)

National Emergency

Grounds of Proclamation

• If the security of India or a part of it is threatened by war or external aggression (External Emergency), or armed rebellion (Internal Emergency), even before the actual occurrence of these events or in continuation of already proclaimed.
• By President, only on the written recommendation from the cabinet (44^th Amendment Act).
• Applicable to the entire country (originally) or only a part of it (by 42^nd Amendment Act).
• 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’.

Parliamentary Approval

• Must be approved by both the Houses of Parliament within one month (originally 2 months, reduced by the 44th Amendment Act) by a special majority (again, added by the 44th Amendment Act as earlier only a simple majority was required).
• If the Lok Sabha has been dissolved or the dissolution takes place without approving the proclamation, then the new Lok Sabha must approves the proclamation survives within 30 days from the first, provided the Rajya Sabha has in the meantime approved it.

Duration

• Continues for six months and can be extended to an indefinite period with an approval of the Parliament for every six months.
• This periodical approval was added by the 44^th Amendment Act as earlier, once approved, it could remain in operation as long as the cabinet desired.
• If the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime reapproved its continuation.

Revocation

• By President, without requiring parliamentary approval (original Constitution).
• President must revoke the proclamation if the Lok Sabha passes a resolution (by a simple majority) disapproving its continuation (by the 44th Amendment Act). Upper House has no role in it.
• When one-tenth of the total number of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session), a special sitting of the House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation. It was also added by the 44th Amendment Act.

Effects

On Centre-State Relations

• Normally only on a certain specified matters, but, during a national emergency, the Centre can give executive directions to any state on ‘any’ matter. Thus, the state governments are brought under the complete control of the Centre, though they are not suspended.
• Parliament becomes empowered to make laws on any subject mentioned in the State List (or ordinances by the President) however, operative until six months after the emergency has ceased to operate.
• Although the legislative power of a state legislature is not suspended, the Parliament can make laws on any subject mentioned in the State List. That is, the Constitution becomes unitary rather than quasi-federal.
• The laws made by Parliament on the state subjects become inoperative six months after the emergency has ceased to operate. The law can extend not only to a state where the Emergency is in operation but also to any other state (by 42nd Amendment Act of 1976).
• President can either reduce or cancel the transfer of finances from Centre to the states. Such modification continues till the end of the financial year in which the Emergency ceases to operate.

Effect on the Life of the Lok Sabha and State Assembly

• Life of Lok Sabha (and legislative assembly, by Parliament)may be extended forany length of time (one year at a time).
• This extension cannot continue beyond six months after the emergency has ceased to operate.

Effect on the Fundamental rights

• Article 358 (for freedom of Speech) and Article 359 (for other FRs except as guaranteed by Art.20 and 21) describe the effect of a National Emergency on the Fundamental Rights.

Article 358:

• When a proclamation of national emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required.
• The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six Fundamental Rights under Article 19 can be suspended only when the External Emergency is declared. Secondly, only those laws which are related with the Emergency are protected from being challenged and no other laws.

Article 359

• Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. That is, the FRs are not suspended, but only their enforcement. The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order.
• Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval.
• While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified Fundamental Rights.
• Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified Fundamental Rights.
• When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified Fundamental Rights, ceases to have effect. But no remedy lies for anything done during the operation of the order even after the order ceases to operate.
• This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires.
• The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. Secondly, only those laws which are related with the emergency are protected from being challenged and no other laws and the executive action taken only under such a law, is protected.

Declarations Made So Far

• In 1962 and 1971 for ‘external aggression’ and in 1975 for ‘internal disturbance’.

Judicial review

• The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review which was subsequently deleted by the 44th Amendment Act of 1978.
• Further, in the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

President’s Rule

Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.

It is this duty in the performance of which the Centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in state.

Grounds of Proclamation

• Article 356 states that if the President is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution (the president can act either on a report of the governor of the state or otherwise)
• When a state fails to comply with or to give effect to any direction from the Centre (Article 365), the President can proclaim in this case too.

Parliamentary Approval

• Must be approved by both the Houses of Parliament within 2 months by a simple majority.
• If the Lok Sabha has been dissolved or the dissolution takes place without approving the proclamation, then the new Lok Sabha must approves the proclamation survives within 30 days from the first, provided the Rajya Sabha has in the meantime approved it.

Duration

• Continues for six monthsand can be extended to 3 years with an approval of the Parliament for every six months.
• If the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime reapproved its continuation.
• As per the 44th Amendment Act of 1978, for beyond one year continuation, it can be extended by six months at a time only when the following two conditions are fulfilled:
• The proclamation of National Emergency should be in operation in the whole of India, or in the whole or any part of the state; and
• The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

Revocation

• By President, without requiring parliamentary approval.

Effects

• President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President.
• President either suspends or dissolves the state legislative assembly. The Parliament passes the state legislative bills and the state budget.
• A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule until repealed or altered or re-enacted by the state legislature.

Declarations Made So Far

• For the first time, the President’s Rule was imposed in Punjab in 1951. By now, all most all the states have been brought under the President’s Rule, once or twice or more.

Judicial review

• The 38th Amendment Act of 1975 made the declaration of a President’s Rule immune from the judicial review which was subsequently deleted by the 44th Amendment Act of 1978.
• In Bommai case (1994), the following propositions have been laid down by the Supreme Court on imposition of President’s Rule in a state under Article 356:
• The presidential proclamation imposing President’s Rule is subject to judicial review.
• The satisfaction of the President must be based on relevant material. The action of the president can be struck down by the court if it is based on irrelevant or extraneous grounds or if it was found to be malafide or perverse.
• Burden lies on the Centre to prove that relevant material exist to justify the imposition of the President’s Rule.
• The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
• If the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.
• The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation. Until such approval is given, the president can only suspend the assembly. In case the Parliament fails to approve the proclamation, the assembly would get reactivated.
• Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356.
• The question of the state government losing the confidence of the legislative assembly should be decided on the floor of the House and until that is done the ministry should not be unseated.
• Where a new political party assumes power at the Centre, it will not have the authority to dismiss ministries formed by other parties in the states.
• The power under Article 356 is an exceptional power and should be used only occasionally to meet the requirements of special situations.

Financial Emergency

• Article 360 empowers the president to proclaim a Financial Emergency, when the financial stability or credit of India or any part of its territory is threatened.
• The proclamation must be approved by both the Houses of Parliament by a simple majority within two months from the date of its issue.
• Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked.
• Itcan be revoked by the president at any time by a subsequent proclamation without requiring the parliamentary approval.

Effects

The executive authority of the Centre extends to directions as the President may deem necessary and adequate for the purpose.

It may include a provision requiring the reduction of salaries and allowances of all or any class of persons serving in the state; the judges of the Supreme Court and the high court; and the reservation of all money bills or other financial bills for the consideration of the President.

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