Unit 4 – Amendment and Emergency Provisions under the

Constitution

4.1 Methods of constitutional amendment

4.2 Limitations upon constituent power

4.3 Development of the basic Structure

4.4 Emergency: Meaning, scope and types

4.5 Effect of Proclamation of Emergency

4.6. Emergency and Suspension of Fundamental

Rights

Unit 4: Amendment and Emergency Provisions

4.1. Methods of Constitutional Amendment

Introduction & Definition

A Constitution must be a “living document”—rigid enough to prevent arbitrary changes but flexible enough to adapt to changing times. Article 368 grants Parliament the power to amend the Constitution and lays down the procedure. This is a “Constituent Power,” distinct from ordinary legislative power.

Statutory Provisions

• Article 368: Power of Parliament to amend the Constitution and procedure therefor.

Essential Ingredients (The 3 Methods)

Although Article 368 technically specifies only two methods, constitutional scholars classify amendments into three categories based on difficulty:

1. Simple Majority: (Outside Art 368) Passed by >50% of members present and voting. Used for flexible matters like:
   • Admission of new states (Art 2, 3).
   • Salaries of MPs.
   • Abolition of Legislative Councils.
2. Special Majority: (Under Art 368) Requires:
   • 50% of the total membership of the House AND
   • 2/3rds of members present and voting.
   • Used for Fundamental Rights (Part III) and DPSP (Part IV).
3. Special Majority + Ratification by States: (Under Art 368)
   • Requires Special Majority (as above) PLUS ratification by at least 50% of State Legislatures.
   • Used for federal features (e.g., Election of President, Supreme Court/High Court powers, Lists in 7th Schedule).

Exam-Style Conclusion

The Indian Constitution is a unique blend of rigidity and flexibility. While ordinary provisions can be changed easily, federal features require a broad consensus involving the States, ensuring that the ‘federal balance’ is not disturbed unilaterally by the Center.

4.2 Limitations & 4.3 Development of Basic Structure

Introduction & Definition

“Can Parliament amend any part of the Constitution, including Fundamental Rights?” This question led to a 25-year conflict between the Judiciary and Parliament, resulting in the Basic Structure Doctrine. This doctrine holds that while Parliament has the power to amend, it cannot alter the core identity or basic features of the Constitution.

Statutory Provisions

• Article 13(2): State cannot make laws that take away Fundamental Rights.
• Article 368: Amendment Power.

Timeline of Development (The “tug-of-war”)

Phase	Case Law	Court’s Stance
Phase 1 (1951)	Shankari Prasad v. UOI	Parliament is Supreme. “Law” in Art 13 does not include Amendments. Parliament can amend FRs.
Phase 2 (1967)	Golaknath v. State of Punjab	FRs are Supreme. Amendments are “Law” under Art 13. Parliament cannot touch Fundamental Rights.
Phase 3 (1973)	Kesavananda Bharati v. State of Kerala	Basic Structure Born. Parliament can amend anything (even FRs), BUT cannot damage the “Basic Structure.”
Phase 4 (1980)	Minerva Mills v. UOI	Consolidated. Judicial Review and Harmony between FR & DPSP are Basic Structures.

Landmark Case Laws

1. Kesavananda Bharati v. State of Kerala (1973)

• Facts: The validity of the 24th, 25th, and 29th Amendments was challenged.
• Issue: Does Parliament have unlimited power to amend the Constitution?
• Judgment (7:6 Majority): The SC overruled Golaknath. It held that Parliament’s power to amend is wide but not absolute. It implies a power to “amend” (improve/change), not “destroy.”
• Outcome: The Basic Structure Doctrine was established. Features like Supremacy of Constitution, Republican form of govt, Secularism, and Separation of Powers cannot be amended.

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

• Facts: Parliament passed the 42nd Amendment, adding a clause to Art 368 stating there is “no limitation” on amendment power and barring judicial review.
• Issue: Can Parliament grant itself unlimited power?
• Judgment: The SC struck down these clauses. It held that “Judicial Review” is part of the Basic Structure. Parliament cannot use its limited amending power to grant itself unlimited power.

Exam-Style Conclusion

The Basic Structure Doctrine acts as a safety valve against authoritarianism. It ensures that while the Constitution evolves, its soul—Secularism, Federalism, and Rule of Law—remains intact.

4.4 Emergency: Meaning, Scope, and Types

Introduction & Definition

Emergency provisions (Part XVIII) allow the Federal structure to convert into a Unitary one without a formal amendment. This is a unique feature of the Indian Constitution designed to protect the sovereignty, unity, and integrity of the nation during abnormal situations.

Statutory Provisions

• Article 352: National Emergency (War, External Aggression, Armed Rebellion).
• Article 356: State Emergency / President’s Rule (Failure of Constitutional Machinery in States).
• Article 360: Financial Emergency (Threat to financial stability).

Essential Ingredients (Types of Emergency)

1. National Emergency (Art 352)

• Grounds: War, External Aggression, or Armed Rebellion (substituted for “Internal Disturbance” by 44th Amd).
• Approval: Must be approved by Parliament within 1 month by Special Majority.
• Duration: 6 months at a time, indefinite extension possible.

2. State Emergency / President’s Rule (Art 356)

• Grounds: Governor’s report or otherwise that State Govt cannot function per Constitution.
• Approval: Parliament within 2 months (Simple Majority).
• Duration: Max 3 years.

3. Financial Emergency (Art 360)

• Grounds: Threat to financial stability or credit of India.
• Note: Never declared in India so far.

Landmark Case Laws

1. S.R. Bommai v. Union of India (1994)

• Facts: President’s Rule was imposed in several states on political grounds.
• Judgment: The SC laid down strict guidelines for Art 356.
  • The “floor test” (Assembly) is the only place to test majority.
  • Presidential Proclamation is subject to Judicial Review.
  • Secularism is a basic feature; misuse of Art 356 is unconstitutional.

Exam-Style Conclusion

Emergency provisions are a necessary evil. While they provide the Centre with immense power to handle crises, checks like Judicial Review (S.R. Bommai) and Parliamentary approval ensure they are not used to subvert democracy.

4.5 Effect of Proclamation & 4.6 Suspension of Fundamental Rights

Introduction & Definition

When a National Emergency is proclaimed, the federal distribution of power is suspended. The Centre becomes all-powerful. The most drastic effect, however, is on the Fundamental Rights of citizens.

Statutory Provisions

• Article 353: Extension of Executive power of Union to give directions to States.
• Article 354: Modification of distribution of revenues.
• Article 358: Automatic suspension of Article 19.
• Article 359: Suspension of the enforcement of other Fundamental Rights (except 20 & 21).

Comparison: Article 358 vs. Article 359

Feature	Article 358	Article 359
Rights Affected	Suspends Article 19 only (Freedoms).	Suspends enforcement of all FRs (except 20 & 21).
Method	Automatic: Happens instantly when Emergency is declared.	By Order: President must issue a specific order.
Grounds	Applicable only in War or External Aggression (not Armed Rebellion).	Applicable in War, External Aggression, and Armed Rebellion.
Scope	Extends to the entire country.	Can be restricted to a specific area.
Effect	Laws made during this time cannot be challenged even after Emergency ends.	Same protection, but only for the duration mentioned in the Order.

Legal Exceptions/Provisos (The 44th Amendment Shield)

• Articles 20 & 21 are Sacrosanct: The 44th Amendment (1978) ensured that Article 20 (Protection in conviction) and Article 21 (Right to Life) can never be suspended, not even during a National Emergency.
• Armed Rebellion: Art 19 is not suspended if the emergency is declared solely on the ground of “Armed Rebellion.”

Landmark Case Laws

1. ADM Jabalpur v. Shivkant Shukla (1976) – The Habeas Corpus Case

• Facts: During the 1975 Emergency, people were detained without trial. They moved courts for Writ of Habeas Corpus.
• Issue: Can a person move the court for liberty (Art 21) during Emergency?
• Judgment (Majority): A dark day for the judiciary. The SC held that during Emergency, citizens have no right to move court for life/liberty.
• Current Status: Overruled. The 44th Amendment and Justice Puttaswamy (Privacy) case have explicitly buried this judgment.

Exam-Style Conclusion

The proclamation of Emergency transforms the federal structure into a unitary one. However, the post-1978 legal position (44th Amendment) ensures that the ‘Right to Life and Personal Liberty’ (Art 21) remains untouchable, preventing the recurrence of the excesses seen during the 1975 Emergency.