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Q. 2 What do you understand by fundamental rights? Discuss with respect to Indian Constitution.
Q. 3 What do you understand by freedom of speech and expression? What restrictions can be
applied on it?
Q. 4 How is the independence of the judiciary ensured? Describe the various jurisdictions of the
Supreme Court of India. Explain the writ jurisdiction of a High Court. Explain the process of
Judicial Review.
Q. 5 What is the procedure for amending the constitution? On what grounds an amendment may
be held ultra vires by the Supreme Court?
Though, it should be noted that even prof. Wheare accepts the existence of certain provisions in
the American constitution, such as dependence of Senate on States, that are contrary to federal
character. However, he says that while the principles of federalism should be rigid, the
terminology of "federal constitution" should be wide. A constitution should be called federal if it
displays federal character predominantly.
The following are the defining features of federalism.
All the above characteristics are present in the Indian Constitution. However, there are certain
provisions that affect its federal character.
It should be noted that Governor is only a ceremonial held and he works on the advice of council
of ministers. In past 50 yrs, there has been only one case (re Kerala Education Bill), where
amendments to a state law were asked by the center and that too after the opinion of the Supreme
Court. Thus, it does not tarnish the federal character and states are quite free from outside
control.
4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations :
In all the above cases, an elected state government can lose control of the state and a central rule
can be established. In the first case, it is very clear that such a provision is not only justified but
necessary to protect the existence of a state. A state cannot be left alone to defend itself from
outside aggression. In the third case also, it is justified because a financial emergency could
cause severe stress among the population, plunge the country into chaos and jeopardize the
existence of the whole country. Such provisions exist even in USA. The second provision is most
controversial. It gives the center the power to take over the control of a state. However, such an
action can be taken only upon the advice of the governor and such an advice is not beyond the
purview of the Supreme Court. In a recent case, Supreme court ruled that the imposition of
Presidential rule in the state of Bihar was unconstitutional.
Thus, it can be safely said that Indian Constitution is primarily federal in nature even though it
has unique features that enable it to assume unitary features upon the time of need.
4. Emergency Provisions
5. Single Citizenship
7. Economic Democracy
8. Other features
3. Fundamental Duties
The history of legally enforceable fundamental rights probably starts from Magna Carta, which
was a list of rights extracted from Kind John by the people of England in 1214 AD. This was
followed by the "Bill of Rights" in 1689 in which Englishmen were given certain civil and
political rights that could not be taken away. Later on the French compiled the "Declaration of
the rights of Man and of the Citizen" after the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred when the USA
incorporated certain fundamental rights in the form on "Bill of Rights" in their constitution by
the way of first 10 amendments. These rights were deemed to be beyond the vagaries of
politics. The protection by the constitution meant that these rights could not be put to vote and
were not dependent on the whims of politicians or of the majority.
After this, nearly all democracies of the world have given a constitutional sanctity to certain
inalienable rights available to their citizens.
Need for Fundamental Rights
1. Rule of Law
These rights are a protection to the citizens against the govt and are necessary for having the rule
of law and not of a a govt or a person. Since explicitly given by the constitution to the people,
these rights dare not be transgressed by the authority. The govt. is fully answerable to the courts
and is fully required to uphold these rights.
3. Quantification of Freedom
Even citizens in gulf countries or communist countries are free. Then how is our freedom
different from theirs? The list of fundamental rights is a clear measurement for how free we
really are. As an example, every Indian citizen in free to practice a religion of his choice, but
that is not so in the gulf countries. Our right to speech and expression allows us to freely criticize
the govt. but this is not so in China.
ex-post facto law : A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was committed.
double jeopardy: A person cannot be charged with the same crime if he has already been
produced before the court and a verdict has been pronounced.
Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of
Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark
case that gave wide interpretation of this right. In this case the SC held that his right is not only
about having any kind of life but a life of dignity. The freedom is not just physical but mental as
well as spiritual. This encompasses several rights such as right to travel abroad ( Satvant Singh
v Ass. Passport Office AIR 1967) and right to pollution free water and air ( Subhash Kumar
vs State of Bihar AIR 1991) . Further, Constitution Amendment Act 86, 2002 makes free and
compulsory education to children under 14 a fundamental right.
Art. 22 gives protection from illegal arrest or detention. It provides that a person must be
informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his
choice, and be produced before a magistrate within 24 hrs of detention.
Critical Analysis
Indian Constitution was written after a through analysis of existing constitution of the world. The
framers of the constitution have incorporated the good things from all the places. As such it is
more fair and consistent than religious books. It is for the foresight of the framers of the
constitution that the country is integrated and has progressed. While the framers had thought
about a lot of things, the one thing that they probably missed was the safeguards against the
degrading morality of politicians.
This right is not only about communicating your ideas to others but also about being able to
publish and propagate other people's views as well. Thus, freedom of speech and expression is
linked to the people's right to know. Freedom of speech and expression is a broad term and
encompasses several things. The following are important cases that have determined the extent
of this right from time to time.
Right to Know
Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to know news and
information about the functioning of the govt. is included in the freedom of press.
Union of India vs Association for Democratic Reforms SC AIR 2002 : SC held that people
have right to know about the candidate before voting. Thus, the law preventing the Election
Commission from asking for a candidates wealth, assets, liabilities, education and other such
information, is invalid.
LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote an article in LIC's
magazie about the problems with LIC that affected policy holders. LIC published a response to
that but did not give a chance to public a rejoinder. SC held that LIC being a State as per Art 12,
must publish his response. It also held that it does not mean every body has a right to publish in a
magazine and this right should be determined on a case by case basis.
Secretary, Ministary of I & B vs Cricket Association of Bengal SC AIR 1995 : In this historic
judgment, SC has held that one has the right to publicize his expression as well. A game of
cricket is an expression and the organizers have a right to propagate it every where in the world.
So Doordarshan must provide its uplinking facilities to CAB for transmitting the signals out of
country. Art 19 (2) does not allow restrictions on 19 (1) (a) on the grounds of creating monopoly
of the govt.
Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that commercial advertisement
is protected under freedom of speech.
Every human desires to do many things. However, in a civil society such desires must be curbed
to certain extent in respect of similar desires of other human beings. Thus, no right is an absolute
right. Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the operation of any law or
prevent the state from making any law, in so far as such law imposes reasonable restrictions on
exercise of the right conferred by the said clause in the interest of -
defamation
contempt of court
incitement of an offence.
In the original version of this article several grounds such as public order, friendly relations with
foreign states, incitement of an offences were not there. After the historic judgement in the case
of Romesh Thaper vs State of Madras SC AIR 1950, these grounds were added. In that case,
Madras Govt. prevented the entry an circulation of the new paper 'Cross Roads' published by
Romesh Thaper, in the state of Madras. It argued that the circulation of the paper affects public
safety. However, SC held that the public safety falls outside the scope of 19 (2) and thus the govt
action was invalid. This decision prompted the govt. to amend the constitution to include
additional grounds as mentioned above.
It is important to note that the current clause mentions the words "reasonable restrictions". Thus,
any law restricting the freedom of speech and expression must satisfy the grounds mentioned in
19(2) and must also satisfy the criteria of reasonableness. Reasonable restriction means
intelligent care and discussion that the restriction is not beyond what is required for public
interest. It should not be arbitrary and excessive. Further, the restriction can only be imposed by
law and not by executive or departmental decision.
1. It is the courts and not the legislature that will decide whether a law is reasonable or not.
2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is
required in public interest. The time and duration of the restriction cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its own
merits.
4. The restriction must be reasonable from substantiative as well as procedural stand point.
6. The test of reasonability must be objective in the sense that it does not matter what a
Judge or Court thinks what is reasonable but what a normal reasonable person would
think.
7. The restriction must have a relation to the object that is sought through the law and must
not be excessive.
8. It is the reasonableness of the restriction that a count has to determine and not the
reasonableness of the law itself.
The following are important cases that have attenuated the scope of this right.
CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that bundhs called by
various political parties are illegal because they prevent the citizens from exercising their right to
freedom. I
Ranjit Udeshi vs State of Mah. AIR 1965 SC : In this case, a bookseller was prohibited from
selling book containing obscene material.
Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case, SC held that obnoxious
and fraudulent advertising is not protected under freedom of speech.
Critical Analysis
Freedom of speech and expression is indeed the most important of all freedoms. However, today,
this right is being routinely suppressed under the guise of morality and decency or public order.
Even a slight criticism of a public leader or past king causes the political parties to involve in
damage of public property. Any book that talks about problems in a religion is banned in the
name of public order. It is extremely unfortunate that the executive, instead of the upholding
peoples' right to speech and expression by preventing unscrupulous element from hurting the
author, is more interested in stifling the voice by banning their works. By doing this they are not
doing their job responsibility.
To be appointed as a judge of the supreme court, a person must be a citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice.
However, this convention was broken when Justice AN Ray was appointed as the CJ by passing
3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The
govt. pleaded that the word "consult" does not mean that the president is bound by the advise. He
is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer
of a Judge from one high court to another under art 222, SC held that the President has the right
to differ from the advice provided by the consultants.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC
and High Courts are fairly free from executive control. This is an important factor that ensure the
independence of the judiciary.
The following are other provisions that work towards the same goal:
1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a
presidential order passed with a simple majority as well as by 2/3 majority of each house of the
parliament present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove
were started to Justice V Ramaswamy, but the motion was not approved because lack of
required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the
local bar association on the judge to resign. In this case, the SC held that only the Chief Justice
of the SC can be the prime mover of the action against erring judges. Thus, after this case, action
against judges was allowed only through in-house procedures of the judiciary.
2. Salary
The salary of the judges cannot be changed after the appointment for their disadvantage.
4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the
discussion about his removal.
Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must
involves a question of law or fact on which a legal right depends. Further, the suit cannot be
because of any commercial relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of
Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission
is maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover
damages under Railway Act is not maintainable. SC's original jurisdiction is not attracted for
ordinary commercial disputes.
The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that was executed before the
commencement of the constitution, and which is still in operation or provides that the
jurisdiction of SC does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to use,
distribution, or control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute is immaterial. There
may be matters which cannot be measured in money but the decision could have a far reaching
effect and such cases can be permitted to be appealed in SC.
2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for issuing
certificated under 134A. A mere question of fact is not enough but it must also involve a
substantial question of law.
Art 135 Federal Court's (the one that existed before the commencement of the constitution)
jurisdiction to be exercised by the SC.
Art 136 Special Leave to appeal by SC
Under this article, the SC is authorized to grant, on its discretion, special leave to appeal from
any judgement, decree, determination, sentence, or order, in any case or matter, passed or made
by any court or tribunal in the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against the acquittal even if
the state govt. hasn't. SC cannot refrain from doing its duty just because a private party and not
the state has appealed against the order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary power is to be used -
Since the power is exceptional is very wide, it must be used sparingly and in exceptional
circumstances. Beyond this point it is not possible to fetter the exercise of this power by any set
formula.
Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from High
Courts if it feels that these cases involves the same or similar question of law that is of general
importance.
Union of India vs SGPC 1986 - SC may transfer a case from one High Court to another under
art 136 if it feels that the case cannot be dealt with fairly in one High Court due to exceptional
circumstances.
In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is not
bound to give its opinion. If it has a good reason, it may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction
are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of
Karnataka to not follow the order of the tribunal to release water to TN, is unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to
express its opinion on whether a temple existed on the disputed location because it was
superfluous, unnecessary, and favors a particular religion.
Art 141
Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co
vs State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law
and cannot be used to perpetuate errors.
Natural Justice
Natural Justice is not exclusively the principle of administrative law. The courts are also bound
by the same principle. Every administrative action must be supported by reasons. The reasons
must be recorded to ensure that there is no arbitrariness.
Judicial Review
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the
USA. In this case, justice John Marshall held that judiciary has inherent power to review actions
by legislature even if no explicit provision is given in the constitution.
Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of
law instead of rule on men to the citizens. However, the rule of law will be rendered useless if
the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the
constitution in Art 13 has provided the judiciary with the power to review laws made by the
legislature. This is called Judicial Review.
Art 13 says:
1. All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
o (a) law includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
4. Nothing in this article shall apply to any amendment of this Constitution made under
article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in
SC by art 32 and High Court by art 226 over legislative action is a basic feature.
Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention act is
void and not the whole act.
Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post - constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for non-
citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post constitutional law
as well.
Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive right.
Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made
under legislative power and not amendments.
The procedure of amending the constitution is given in Article 368. It says that the parliament
can amend the constitution under its constituent power. A bill must be presented in either house
of the parliament and must be approved by a majority of each houses and not less than 2/3
majority of each house present and voting. After such approval the bill is presented to the
president for his assent, upon whose assent the constitution shall stand amended as per the
provisions of this article. However, if the amendment seeks to make a change in
the bill must also be ratified by not less than half of the states before it is presented to the
president for his assent.
For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the
parliament is required.
This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of
India AIR 1951. In this case, an amendment to add art 31 A and 31 B to the constitution was
challenged on the ground that they take away fundamental right of the citizens and therefore not
allowed by article 13. It was argued that "State" includes parliament and "Law" includes
Constitutional Amendments. However, SC rejected the arguments and held that power to amend
the constitution including fundamental rights is given to the parliament by art 368 and that
"Law" is art 13 refers only to ordinary law made under the legislative powers.
In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given in the
case of Shankari Prasad and held that the words "amendment of the constitution" means
amendment of all provisions of the constitution.
However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its previous
judgement and held that parliament has no power from the date of this judgement to amend part
III of the constitution so as to take away any fundamental right. It held that "amendment" is a law
as meant under art 13 and so is limited by art 13(2).
To overcome the judgement in the case of Golak Nath, the parliament added another clause in art
13by the 24th amendment in 1971 It says that this article does not apply to the amendment of the
constitution done under art 368. A similar clause was added in art 368 for clarity in the same
amendment, which says that amendment done under art 368 shall not come under the purview of
art 13.
This amendment itself was challenged in the case of Keshavanand Bharati vs State of Kerala
AIR 1973. In this case, SC reversed its judgement again and held that "Law" in art 13 only
means ordinary law made under legislative power, The 24th amendment is only clarifying that
position and so it is valid. However, it further held that "amendment" means that the original
spirit of the constitution must remain intact after the amendment. Thus, the basic structure or
features of the constitution cannot be changed. According to C J Sikri, the basic structure of the
constitution includes - Supremacy of the Judiciary, democratic republic, secularism, separation of
powers among judiciary, legislative, and the executive, and the federal character of the
constitution.
This judgement was delivered by 7:6 majority and is one of the most important judgements in the
history of independent India. The effect of this judgement can be seen in the case of Indra
Sawhney vs Union of India 1993, where SC prevented the politicians from running amok in the
matter of reservation. It this case it held that inclusion of creamy layer violates the fundamental
right of equality, which is a basic feature of the constitution and so its inclusion cannot be
permitted even by constitutional amendment.
Conclusion
During Constituent Assembly Discussions, it was noted that rigid constitutions such as that of
USA cause a lot of problems and is undesirable. Dr. Ambedkar said that flexible federation is a
distinguished feature of the constitution. In the hindsight, it can be said that the safeguards to
prevent the spirit of the constitution were not enough. Politicians have time and again shown that
they can modify it easily to serve their vote based politics.
Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the security
of India or any part of India is threatened due to outside aggression or armed rebellion, he may
make a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon the written
advise of the Union Cabinet. Such a proclamation must be placed before each house of the
parliament and must be approved by each house with in one month otherwise the proclamation
will expire.
An explanation to art 352 says that it is not necessary that external aggression or armed rebellion
has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility
of such thing happening.
In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar
to judicial review of the validity of the proclamation of emergency issued by the
president under 352(1). However, court's power is limited only to examining whether the
limitations conferred by the constitution have been observed or not. It can check if the
satisfaction of the president is valid or not. If the satisfaction is based on mala fide or
absurd or irrelevant grounds, it is no satisfaction at all.
Prior to 44th amendment, duration of emergency was two months initially and then after
approval by the houses, it would continue indefinitely until ended by another
proclamation. However after 44th amendment, the period is reduced to 1 month and then
6 months after approval.
1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to
any other part if that is also threatened.
Art 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as
deem fit by the president. Every law such made shall be laid before each house of the parliament.
Art 355 says that it is the duty of the Union to protect States against external aggression.
Art 358
While proclamation of emergency declaring that security of India or any part of the territory of
India is threatened due to war or external aggression, is in operation, the state shall not be limited
by art 19. In other words, govt may make laws that transgress upon the freedoms given under art
19 during such emergency. However, such a law will cease to have effect as soon as emergency
ends. Further, every such law or very executive action that transgresses upon freedoms granted
by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from
art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in
the courts after the end of emergency.
In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted
by 14 to 19 are not suspended during emergency but only their operation is suspended. This
means that as soon as emergency is over, rights transgressed by a law will revive and can be
enforced. In this case, a settlement that was reached before emergency between LIC and its
employees was rendered ineffective by a law during emergency. After emergency was over, SC
held that the previous settlement will revive. This is because the emergency law only suspended
the operation of the existing laws. It cannot completely wash away the liabilities that preexisted
the emergency.
Art 359
This article provides additional power to the president while proclamation of emergency is in
operation, using which the president can, by an order, declare that the right to move any court for
the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the
period the proclamation is in operation of a shorter period as mentioned in the order. Further,
every such law or every executive action recite that it is in relation to the emergency.
In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358
and 359 as shown below:
Art 83(2) While the proclamation is in operation, the president may extend the normal life of the
Lok Sabha by one year each time up to a period not exceeding beyond 6 months after
proclamation ceases to expire.
Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the
govt. of the state is cannot function according to the provisions of the constitution, he may, by
proclamation, assume to himself all or any of the functions of the govt, or all or any of the
powers vested in the governor, or anybody or any authority in the state except the legislature of
the state. The power of the legislature of the state shall be exercised by the authority of the
parliament.
Under this article, president can also make such incidental and consequential provisions which
are necessary to give effect to the objectives of the proclamation. This includes suspension of
any provision of this constitution relating to any body or authority in the state.
However, this article does not authorize the president to assume the powers vested in the High
Courts.
Art 357 provides that in the case of proclamation under art 356
parliament can confer upon the president the power of legislature of the state to make
laws or the power to delegate the power to make laws to anybody else.
the parliament or the president can confer power or impose duties on the Union or Union
officers or Union authorities.
president can authorize the expenditure from the consolidated fund of the stat pending
sanction of such expenditure by the parliament.
This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In this case,
SC held that the the decision of the president is not only dependent on the report of the governor
but also on other information. The decision is entirely political and rests with the executive. So it
is not unconstitutional per se. However, courts can validate the satisfaction of the president that it
is no mala fide.
This was challenged in the case of SR Bommai vs Union of India AIR 1994. In this case SC
held that secularism is a basic feature of the constitution and a state govt. can be dismissed on
this ground. It further observed that no party can simultaneously be a religious party as well as a
political party.
Financial Emergency
Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial
security of India or the credit of India or of any part of India is threatened, he may make a
declaration to that effect. Under such situation, the executive and legislative powers will go to
the center.
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to ensure that
it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain
changes that were done by 42nd amendment. The following are important points of this
amendments-
Emergency can be revoked by passing resolution to that effect by a simple majority of the
houses present and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression
and not upon armed rebellion. Further, every such law that transgresses art 19 must recite
that it is connected to art 358. All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III
will not include art 20 and 21.