Constitutional Law of India

Q1.What is the nature of Indian Constitution? On what grounds is its spirit of federalism
challenged? Mention its important features.

Typically, democratic constitutions are classified into two categories - Unitary and Federal. In a unitary
constitution, all the powers are concentrated in a central authority. The states or the constituents of the
country are subordinate to such central authority. In a federal constitution, powers are distributed among the
center and the states. States are not subordinates of the center. According to Prof. Wheare, the constitutions
of USA, Australia, and Switzerland are prime examples of a federal constitution.
Dr. Ambedkar has categorically said in Constituent Assembly discussions that notwithstanding certain
provisions that centralize the powers, Indian Constitution is essentially federal. Prof. Wheare and some
other academicians, however, are hesitant in calling it a federal constitution and prefer to term it as "quasi-
federal" or "federal with strong centralizing tendency".

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:

1. Distribution of Powers between center and states.

2. Supremacy of the Constitution.
3. Written Constitution.
4. Rigidity of the Constitution.
5. Independent Judiciary.

All the above characteristics are present in the Indian Constitution. However, there are certain provisions
that affect its federal character.

1. Appointment of the Governor of a State

Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is to be appointed by
the President and stays only until the pleasure of the President. Further, that the Governor can send the laws
made by the state for assent from the President, who can veto the law.
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.

2. Power of the parliament to make laws on subjects in the State list.

Under art 249, center is empowered to make laws on subjects in the state list. On the face of it, it looks a
direct assault on the power of the states. However, this power is not unlimited. It is exercised only on the
matters of national importance and that too if the Rajya Sabha agrees with 2/3 majority. It should be noted
that Rajya Sabha is nothing but the representative of the states. So an approval by Rajya Sabha means that
States themselves are giving the power to the center to make law on that subject.

3. Power to form new states and to change existing boundaries

Under Art 3, center can change the boundaries of existing states and can carve out new states. This should
be seen in the perspective of the historical situation at the time of independence. At that time there were no
independent states. There were only provinces that were formed by the British based on administrative
convenience. At that time States were artificially created and a provision to alter the boundaries and to
create new states was kept so that appropriate changes could be made as per requirement. It should be noted
 that British India did not have states similar to the States in the USA.

4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations :

1. An act of foreign aggression or internal armed rebellion (Art 352)

2. Failure of constitutional machinery in a state (art 356)
3. Financial Emergency (art 360)

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.

Features of Indian Constitution

Constitution was written by a committee headed by Dr Ambedkar. Took 2 yrs, 11 mos, 18 days. Adopted on
26th Nov (celebrated as Law Day), enforced fully on 26th Jan.

1. Longest written constitution - 447 articles, 26 parts, 12 schedules. Original US constitution had 7
articles and Australia had 128.
2. Establishment of sovereign, socialist, secular, democratic, republic.
3. Parliamentary form of govt.
4. Unique blend of Federal and Unitary features
1. Independent and supreme Judiciary - Keshavand Bharati vs State of Kerala & L Chandra
Kumar vs Union of India
2. Advisory Jurisdiction of SC - Art 143 - Does not exist in US constitution.
3. Rigidity and flexibility
4. Emergency Provisions
5. Single Citizenship
6. Single Electorate / Adult Suffrage
5. Positive Secularism - St. Xavier's College vs State of Gujarat , S R Bommai vs Union of India,
Aruna Rai vs Union of India
6. Indian Socialism - Combination of Marxist and Gandhian ideology. Right to work is absent.
7. Economic Democracy
8. Other features
1. Fundamental rights - J Bhagvati in Menaka Gandhi vs Union of India
2. Directive Principles - Unnikrishnan vs State of AP - Directive Principles are as good as
fundamental rights.
3. Fundamental Duties

Q2. What do you understand by fundamental rights? Discuss with respect to Indian
Constitution.

The general concept of fundamental rights

The rights that are basic to the advancement of the human race are called Fundamental Rights. All other
rights are derived from these rights as direct implications or application of their principles. It is an accepted
belief among the philosophers that these rights are nothing but "natural human rights", which distinguish
between humans and animals and which have been so instrumental in bringing humans from the stone age to
the present age. Among all, the right to life and liberty is considered to be the most basic.

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.

2. First fruits of the freedom struggle

After living in subjugation for such a long time, people had forgotten what is meant by freedom. These
rights give people hope and belief that there is no stopping to their growth. They are free from the whims of
the rulers. In that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction
and fulfillment.

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.

Fundamental Rights in India

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the fundamental
rights available to the citizens of India. In the case of Menaka Gandhi vs Union of India AIR 1978, J.
Bhagvati has said that these rights represent the values that are cherished by the people of this country since
the vedic ages and are calculated to protect the dignity of individual and to create conditions in which every
human being is able to develop his personality to the fullest. These rights are necessary for a human being
for attaining full social, intellectual, and spiritual status.

These rights can be grouped into 6 categories -

1. Articles 14-18 Right to Equality

Art. 14 ensures that all citizens are treated equally. It enshrines the principle of "Equality before law and
Equal protection of law". However, this brings us to an important question. Should people living in unequal
circumstance be treated equally? In Indian Constitution, the answer is a resounding no. We have adopted the
mantra of "equal treatment under equal circumstances". This is reflected in Art 15, which, while prohibits
the state from discriminating between the citizens only on the grounds of Caste, Race, Religion, Sex, and
Place of Birth or all of them[ Art 15(1) ], also allows the state to make special provisions for Women and
Children [Art 15(3)] and for Backward classes [Art 15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that used to be
given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of India SC
AIR 1951 are important cases that illustrate the concept of equal protection of the laws. In these cases, the
SC of both the countries held that all persons similarly circumstanced should be treated equally. Only like
should be treated alike and thus a reasonable classification can be done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal pay for equal work) illustrate the
principle of equality.
The SC judgment in Indra Sawhney vs Union of India AIR 1993 incorporates the element of fairness in
dealing with inequalities in the society, while balancing the aspirations of the socially forward classes.

2. Artticles 19-22 Right to Freedom

A citizen of India is given freedom of Speech and Expression, freedom of Assembly, freedom of
Association, freedom of Movement, freedom of Residence, and Freedom of Profession and Occupation
through Art. 19.
Art. 20 gives protection with respect to conviction of offenses. This includes the principles of

 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.
 self incrimination: A person will not be forced to testify against himself.

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.

3. Art 23-24 Right Against Exploitation

Under Art. 23, the govt. has banned trade in human beings. This includes flesh trade and forced work or
work without pay (begar system).
Art. 24 prohibits children from being employed in factories and hazardous conditions.

4. Art 25-28 Freedom of Religion

Unlike several countries of the world, we are free to practice, profess, and propagate any religion under Art.
25. Art. 26 allows us to establish and maintain institutions for religious and charitable purposes. It also gives
the right to manage our own religious matters. Art. 27 provides tax benefits for promotion of religion and
art. 28 prohibits religious teaching in govt and govt aided schools.

5. Art 29-30 Cultural and Educational Rights

Art. 29 allows any section of citizens living anywhere in India who have a distinct language, script, or
culture, to preserve the same. Art. 30 allows minorities to establish and maintain educational institutions. To
prevent discrimination, however, art 29(2) prohibits them from discrimination in admissions only on the
grounds of religion, race, caste, language, or any of them.

6. Art 32 Right to Constitutional Remedies

Dr. Ambedkar, the chief architect of our constitution, has said that Article 32 is the soul of our constitution.
All the talk of rights is useless if there is no recourse against their transgression. Under this article, a citizen
 is free to go to the Supreme Court for violation of his rights.

Scope of Fundamental Rights

Widest Possible Interpretation
SC in A K Gopalan vs State of Madras AIR 1950 had held that the various rights given under part III talk
about different things and are not be interlinked. This view, however, has been rightly rejected by the SC in
Menaka Gandhi vs. Union of India AIR 1978 case. In this case, J Bhagvati said that the role of SC should
be to interpret these rights in the widest possible manner and it should not attenuate these rights by being
confined to their narrow definition. All these rights are not mutually exclusive and form an integrated theme
of the constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and impartial
justice. Thus, any law that takes away the life or liberty of a person, must also satisfy the test of
reasonableness under art. 14.

Natural Justice and Due Process

In Menaka Gandhi's case, SC has held that any law that takes away the life or liberty of a person under art.
21, must be just, fair, and reasonable. It must satisfy the principle of natural justice, which is a basic
component of fair procedure under Art. 21. While Art 21 does not contain the "due process" clause of the
American Constitution, the effect is the same because natural justice is a distillate of due process i.e. natural
justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus

The case of Sunil Batra vs Delhi Admin AIR 1980 has given tremendous power to the writ of Habeas
Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even prisoners are humans
and must be treated with dignity. They cannot be stripped off of their fundamental rights, thus menial or
forced work without pay, solitary confinement, degrading punishment, is not allowed. This case has also
allowed people who are not directly involved but have any kind of interest to approach the court. The
objective is to remove injustice wherever it is found in the society.

Absoluteness of Fundamental Rights

"Your freedom ends where my freedom starts" is a well known saying. The constitution gives you the right
to propagate your religion. But does that mean you should force me to hear religious activities over the
loudspeaker? The constitution gives you the freedom of speech and expression. But does that mean you can
publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand and
specifies the limits of these rights. These rights extend only until they do not affect security of the state,
public order, and social decency. The constitution allows reasonable restrictions to be placed on these rights.
SC in A K Gopalan vs State of Madras 1950 has also held that Fundamental Rights are not absolute.

Suspension of Fundamental Rights

Under art 358, freedoms given under art 19 are suspended when the president proclaims emergency. Further,
under art 359, president may suspend the right to move courts for violation of rights given in part III except
art 20 and 21.

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.

Q3. What do you understand by freedom of speech and expression? What restrictions can be
applied on it?
Freedom of speech and expression is the most basic of all freedoms granted to the citizens of India. J
Patanjali Shastri has said in the case of Romesh Thaper vs State of Madras AIR 1950 SC that freedom of
speech and that of the press lay at the foundation of a democratic society, for without free political
discussions, no public education is possible, which is so important for the proper functioning of the govt.
It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice.
One can use any communication medium of visual representation such as signs, pictures, or movies.
Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Th us, the
freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes -

 allows an individual to attain self fulfillment.

 assists in the discovery of truth.
 it strengthens the capacity of a person to make decisions.
 it facilitates a balance between stability and social change.

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.

Right to tell and propagate

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.

Restrictions on Freedom of Speech and Expression

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 -

 sovereignty and integrity of the country.

 security of the state
 friendly relations with foreign states.
 public order
 decency and morality
  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.

Test of reasonable restrictions

Spanning several cases, SC has laid down the following guidelines :

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.
5. Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable.
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.
9. Restriction may amount to prohibition.

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.
Q. 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. What is meant by
Judicial Review?

India has adopted a federal constitution with distribution of powers between center and the states. An
independent judiciary is the essence of the federal character of the constitution. It is imperative that the
judiciary be impartial and independent of the legislative and executive branches of the country to ensure the
functioning of the government in accordance with the constitution. The supreme court, being the guardian of
the constitution, ensures that the fundamental rights of the citizens are not violated. To let the judiciary
fulfill this big responsibility efficiently, the constitution has provided several measures that ensure the
independence of the judiciary. However, owing to the nature of Indian politics, there have been several
attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence. To
understand the dynamics between the govt. and the judiciary, we need to look at the provisions present in the
constitution.

Composition of the Supreme Court

Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number of
other judges has now been increased to 25.

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.

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because
it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed
by the president after consulting with the judges of the supreme court and the high courts. Further, that while
appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the
executive from having complete discretionary powers in the appointment of the judges.

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.

Judges Transfer Case 1

In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word
'consultation' as determined in the Sankalchand's case. It further held that the only ground on which the
decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing
so, it substantially reduced its own power in appointing the judges and gave control to the executive.

Judges Transfer Case 2

This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR
1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of
appointment of judges of high courts and supreme court, the CJ should have the primacy and the
appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior
most judges and the recommendation must be made only if there is a consensus among them.

Judges Transfer Case 3

A controversy arose again when the CJ recommended the names for appointment without consulting with
other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9
member bench held that an advice given by the CJ without proper consultation with other judges is not
binding on the govt.

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.

3. Jurisdiction of the courts

The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.

4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the discussion about
his removal.

5. Art 129 and 215

Power to punish for its contempt.
The SC and the High Courts have the power to punish anybody for civil and criminal contempt of itself
under art 129 and 215.

6. Art 50 Separation of judiciary from executive

Art 50 urges the state to take steps to separate the judiciary from the executive in the public service of the
state.

7. Appointment of the judges only after consultation with legal experts.

As discussed above, the executive does not have unlimited power over appointment of judges.

8. Art 124(7) Prohibition on practicing before any court

Art 124 prohibits a retired judge from appearing and pleading before any court or tribunal.

Jurisdictions of Supreme Court

Art 129 Court of Record

SC is a court of record and has all the powers including power to punish for civil or criminal contempt of
court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish
for contempt of any subordinate court in India as well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for
failing to deliver on his promise not to allow any construction in disputed area.

Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on another.
c.) two or more states.

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.

Enforcement of Fundamental Rights Art 32

SC is the guardian of the constitution. It is the supreme defender of the people's fundamental rights. This
position has been enforced by Art 32 that given any citizen to petition the SC if his fundamental rights are
violated. The SC is empowered to give directions, orders, or writs including the writs of habeas corpus,
mandamus, prohibition, and certiorari for the enforcement of the rights given in part III.
L Chandra Kumar vs Union of India AIR 1997 - Power of judicial review vested in HC by art 226 and in
SC by art 32 is a basic feature on the constitution and cannot be amended.

Art 132 Appellate Jurisdiction - Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the
country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision
of the lower courts. Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:
1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 - If there is a difference of opinion among High
Courts and if there is no direct decision by SC on that point, it is a substantial question of law that
can permit appeal in SC.

Art 133 Appellate Jurisdiction - Civil

An appeal shall lie to SC from any judgement, decree, or a final order in civil proceedings of a High Court
only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by the SC.

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.

Art 134 Appellate Jurisdiction - Criminal

An appeal shall lie to SC from any judgement, decree, or a final order in criminal proceedings of a High
Court in two ways - with or without a certificate from High Court.
1. Without Certificate
 a) If the High Court, on appeal, has reversed an order of acquittal of an accused and sentenced him to
death
b) if the High Court has withdrawn a case before itself from any subordinate court and in such a case has
convicted the accused and sentenced him to death.

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 137 Power to review its judgement.

Under exceptional circumstance, the SC may review its judgement.

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.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is
likely to arise and that the question is of such public importance that expedient opinion of the SC is required,
then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the
president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under art 131.
There is no similar provision in the American constitution. In US, the court can give ruling only on concrete
cases.

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.

Writ Jurisdiction of High Courts

The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any sphere.
Art 226 provides that notwithstanding anything in article 32 every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.
It is important to note that the power is not only to enforce fundamental rights but for any other purpose,
which makes its powers even wider than Supreme Court. Here, any other purpose means any legal right of
legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that the power of
judiciary over legislative action vested in a High Court is a basic feature of the constitution and cannot be
removed through constitutional amendment.

Locus Standi : Who can apply

In general, the person whose constitutional right or legal right has been infringed has the right to apply.
However, due to judicial activism, the "doctrine of sufficient interest" has originated. According to this, any
person who is even remotely affected can petition the High Court. It also allows public spirited persons to
file a writ petition for any person or class if that person or class is not able to do so himself due to poverty or
any other reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an unregistered trade union has right to
file a petition for redressal of a common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC held that an advocate of Cal.
High Court has sufficient interest in making a public place like a railway station a safe place and so she has
right to demand compensation for the bangladeshi woman gang raped by railway employees.

Scope of Art 226

In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226 confers wide powers to remedy
injustice where ever it is found. Art 226 says, "...or writs or the kind of...", which means that it is not limited
only the mentioned types of writs. It can issue orders orders of any kind that the situation may require. Thus,
it makes the scope of Art 226 a lot wider than art 32.

Court Martial and art 226

In a significant case (which case?), Delhi High Court held that section 18 of India Army Act is not beyond
the scope of High Court. While High Court may not interfere in the sentence awarded in a court martial,
such an order cannot be arbitrary and mala fide. Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held that court should not interfere only
on compassionate grounds. Only when there is a perverseness or gross injustice on the face of it, there can
be judicial review.

Dispute between private parties - No Jurisdiction

In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the extraordinary jurisdiction of High
Court cannot be exercised in the private party disputes relating to property rights unless there is a violation
of statutory rights by statutory authorities.

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.

Territorial extent of writ jurisdictions

Art 226 imposes two limits on HC's writ. First, it can run only in the territorial jurisdiction of the High Court
and secondly the person or authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that Madras High Court
cannot issue a writ to ECI because it is based in New Delhi and so is out of its jurisdiction. The law
commission recommended that these are serious limitations and they defeat the very purpose of this article.
So it was amended by 15th amendment in 1963. High Court can now issue a writ even to a central authority
if the cause of action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in the petition did not
disclose that a part of the cause of action arose in the jurisdiction of Calcutta and so High Court does not
have any jurisdiction to entertain the writ petition.

Discretionary Remedy - Not to be exercised if alternate remedy is available

The remedy available in 226 is a discretionary remedy and the High Court has the discretion to accept or
refuse a petition. In general, if a remedy is available elsewhere, writs under 226 are discourages. However,
this does not mean that any remedy available can be a ground for not entertaining the petition under 226.
The remedy must be effective and sufficient. In the case of Vellaswamy v IG Police, Madras 1982, SC
held that the remedy under Police Rules of TN was not sufficient and so High Court was wrong in
dismissing the petition.

Effect of Laches or delay

Remedy under 226 should be sought with in a reasonable time. However, High Court may accept a petition
is there is a reasonable cause for delay in seeking justice. Poverty has been held to be reasonable ground.

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.
3. In this article, unless the context otherwise requires,—
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;
o “laws in force” includes laws passed or made by a Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas.
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.

Q. What is the procedure for amending the constitution? On what grounds an amendment
may be held ultra vires by the Supreme Court?

A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it has been
argued that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact. As a
comparison, there have been only 27 amendments in the constitution of USA in the past 200 years. This has
been done deliberately to ensure that the constitution can be changed as per the needs of the times. However,
to prevent excessive changes on the whims of the ruling party, sufficient safeguards have been put.

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

 Articles 54, 55, 73, 162, or 241

 Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11
 any of the lists in the 7th schedule
 representation of the states in the parliament
 in this article itself

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.

Power of the parliament to amend the constitution

There has been a lot of controversy on the power of the parliament to amend the constitution. Article 13 of
the original constitution said that the state shall not make any law that takes away or abridges the rights
given to the citizens in Part III and any such law made in contravention of this article shall be deemed void
to the extent of contravention. Thus, it seemed that parliament cannot amend the constitution in a way that
takes away the fundamental rights of the citizens.

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.

Q. Explain the emergency provisions of the constitution. What do you understand by

proclamation of Emergency? Describe various types. What are the effects of emergency on
fundamental rights? What are the effects of emergency arisen out of the failure of the
constitutional machinery in a state? What changes have been made by the 44th amendment
regarding emergency provisions?

Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to
handle special situations. In emergency, the center can take full legislative and executive control of any
state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big
reason why academicians are hesitant to call Indian constitution as fully federal. Emergency can be of three
types - Due to war, external aggression or armed rebellion, failure of constitutional machinery in a state, or
financial emergency. However, technically, Proclamation of Emergency is only done upon external
aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third case it is
called "Proclamation of Financial Emergency:

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.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in art 352.
Art 353

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 358 Art 359

Fundamental rights are not suspended. Only the courts cannot
Freedoms given by art 19 are suspended.
be moved to enforce fundamental rights.
Any actions done or omitted to be done
Any action done by the legislature or executive can be
cannot be challenged even after
challenged after the suspension is over.
emergency.
Right to move courts is suspended for the period of emergency
Art 19 is suspended for the period of
or until the proclamation of the president to remove
emergency.
suspension.
Effective all over the country. May be confined to an area.

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.

Provisions in case of failure of constitutional machinery is States

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.

Important instances of invocation of Art 356

This article has been invoked over a hundred times.

1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..

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.
 2. Dissolution of 9 state assemblies in 1980 by Congress party govt.
3. Dissolution of BJP govt in MP, HP, and Raj. in 1992.

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-

 "Internal disturbance" was replaced by "armed rebellion" under art 352.

 The decision of proclamation of emergency must be communicated by the Cabinet in writing.
 Proclamation of emergency must be by the houses within one month.
 To continue emergency, it must be re approved by the houses every six month.
 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.
 Reversed back the term of Lok Sabha from 6 to 5 years.