38th Constitutional Amendment Act 1975

Polity & Governance glossary

Also called: 38th Constitutional Amendment Act · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 9 "Constitution as a Living Document"

Meaning

The 38th Constitutional Amendment Act, 1975 was passed during the Emergency. It made some decisions non-justiciable, which means courts could not examine or question them. It covered the President's satisfaction when proclaiming an emergency or issuing an ordinance, and the Governor's satisfaction when issuing an ordinance. An ordinance is a temporary law made by the executive while the legislature is not in session. The amendment removed a court check on emergency power at the moment that power was being used most.

Example

After the Emergency was declared in June 1975, the 38th Amendment meant that no court could ask whether the President had real grounds for the proclamation. The 44th Amendment (1978) later took these bars away and restored judicial review.

Don't confuse with

  • 39th Constitutional Amendment Act, 1975: this one shielded the election of the Prime Minister and the Speaker from the courts (Art. 329A). It did not deal with emergencies or ordinances.

Related concepts

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