Salient Features of 38th Constitutional Amendment

Article 368 of the Indian constitution provides procedure to parliament to amend the Indian constitution. Indian constitution is largest, longest and quasi federal constitution. Our constitution is both rigid and flexible in nature which means if parliament thinks that any provision or part or article is outdated or violating human rights. In past there have many amendments. Till now India has witness 105 constitutional amendments.

Amending the Indian constitution means making changes or deleting certain provisions or article. But the parliament has limited power to amend the constitution which means they cannot amend the basic structure of Indian constitution( it was directed in the landmark case Kesavananda Bharati case).

In this blog we are going to study about salient features of 38th constitutional Amendment.

The 38th constitutional amendment happened in the year 1975 when national emergency was announced. On June 25-26, 1975, at midnight, the President of India signed a proclamation to “declare that a severe emergency exists in which the security of India is threatened by internal disturbances,” on the suggestion of Indira Gandhi and without the agreement of her Cabinet.

The 38th CA seeks to amend the following articles of Indian constitution:

Article 123: it empowers the president to promulgate ordinance when both the houses of parliament are not in session if he is satisfied that circumstance exist rendering it necessary to take immediate action.

Article 213: it empowers the Governance to promulgate ordinance when both the houses of parliament are not in session if he is satisfied that circumstance exist rendering it necessary  to take immediate action.

Article 352: it empowers the president to declare emergency if he is satisfied that the security of India or any part of it is threatened by war, external aggression or internal disturbance.

Article 356: it empowers the president to assume to himself the functions of the government of a state if the constitutional machinery in any state fails and the government in the state cannot be carried on. The governor of the respective state sends a report to the president that there is constitutional breakdown in the state. The president once satisfied with the report announces state emergency in that particular state.

Article 360 : it empowers the president to declare financial emergency if he is satisfied that the financial stability of India is threatened.

Again, the problem of satisfaction appears to be unjustifiable on the face of the articles. However, as the validity of the proclamation issued under article 352 has been challenging in several proceedings and as litigation of this nature involves waste of public time and money, it is proposed to amend these three articles so as to make the satisfaction of the president final and conclusive and not justiciable on any ground.

In addition to article 352, certain writ petitions have argued that while the original proclamation of emergency is in effect, no subsequent proclamation of emergency can be issued.

When the proclamation of emergency is in operation the president is empowered under article 359 of the constitution to make an order suspending the right to move any court for the enforcement of such of the rights conferred by part III as may be mentioned in that order.

It was contended that the powers conferred by this article should be exercised during an emergency according to needs of the situation.

On the other hand, article 368 renders the provisions of article 19 automatically inoperative while the proclamation of emergency is in operation and the power to make any law or the execution of such of the rights provided by Part III as may be indicated in that order; and the authority to take any executive action not limited by the provisions of that article.

Conclusion:

The 38th- 42nd Constitutional amendments were passed during the Emergency which led to a tussle between the executive and the judiciary that would have a lasting impact on the Parliament’s power to amend the Constitution. Many of these amendments were either invalidated by courts or reversed in the 44th Constitutional Amendment, passed in 1978 after the Janata administration was elected. Through the 38th Constitutional Amendment, Mrs Gandhi sought to expand the power of the President and barred judicial review of the proclamation of Emergency by the President or any ordinance issued by the President even if it infringed upon the fundamental rights guaranteed under the Constitution.

Reference:

  1. https://indianexpress.com/article/explained/explained-plea-in-supreme-court-against-emergency-and-why-is-the-petitioner-seeking-relief-now-7108883/
  2. https://indianexpress.com/article/opinion/columns/indira-gandhi-emergency-indian-constitution-7376157/

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