The Emergency amendments and the restoration

Detail

Background: why these amendments matter

• Emergency (1975–77): an internal emergency under Art. 352 was in force from June 1975 to March 1977. During it, Parliament passed a series of amendments that made the government stronger and the courts weaker.
• Basic structure: Parliament can amend any part of the Constitution under Art. 368, but it cannot destroy its core features, such as democracy, the rule of law or judicial review. This limit came from Kesavananda Bharati (1973).
• The Emergency amendments tested this limit. The Janata government's amendments after 1977 then restored the balance.

The 38th Constitutional Amendment Act, 1975

• Main change: non-justiciability. Non-justiciable means courts cannot examine or question a decision.
• The President's satisfaction in proclaiming an emergency was made non-justiciable.
• The President's satisfaction in issuing ordinances (Art. 123) was made non-justiciable. An ordinance is a temporary law made by the executive when Parliament is not in session.

• The Governor's satisfaction in issuing ordinances (Art. 213) was made non-justiciable.

• Effect: courts could not ask whether an emergency or an ordinance was really needed.

• Later reversal: the 44th Amendment (1978) removed these non-justiciability clauses.

The 39th Constitutional Amendment Act, 1975

• Trigger: the Allahabad High Court verdict of 12 June 1975.
• Justice Jagmohanlal Sinha heard Raj Narain's election petition.

• He set aside Indira Gandhi's 1971 election to the Lok Sabha from Rae Bareli because of corrupt electoral practices.

• Art. 329A inserted:

• Disputes over the election of the Prime Minister and the Speaker were taken away from the ordinary courts. They were to be decided by an authority set up by a law of Parliament.

• Disputes over the election of the President and Vice-President were given similar treatment under Art. 71.

• Art. 329A(4) declared Indira Gandhi's election valid, even though the High Court had ruled against it. It also cancelled that verdict.

• Ninth Schedule: the 39th Amendment also put election laws into the Ninth Schedule, a list of laws protected from challenge on the ground that they violate Fundamental Rights.
• Legal reasoning: clause (4) did the work of a court. It decided a particular election dispute through a constitutional amendment, so it broke the separation of powers between legislature and judiciary [3].

Indira Gandhi v. Raj Narain (7 November 1975)

• What the Supreme Court did:
• It struck down Art. 329A(4) because it violated the basic structure [3].

• It upheld Indira Gandhi's election anyway. It applied the election law that Parliament had amended with retrospective effect, meaning the changes applied to past events.

• Features named as basic structure:

• free and fair elections and democracy;
• the rule of law (government must act under law, not by personal will);

• judicial review (the power of courts to strike down laws and actions that break the Constitution).

• Separation of powers: the Court repeated the point made in Kesavananda Bharati that the division of power between legislature, executive and judiciary is part of the basic structure [3].

• Significance: this was the first time the basic structure doctrine was used to strike down a constitutional amendment.

The 42nd Constitutional Amendment Act, 1976 ("mini-Constitution")

• Why it is called the "mini-Constitution": it made so many changes that it almost rewrote the Constitution. It was based on the work of the Swaran Singh Committee.
• NCERT (keps209): it changed the Preamble, the Seventh Schedule and 53 articles. It was passed while many opposition MPs were in jail.

Changes to the Preamble and values

• It added "socialist", "secular" and "integrity" to the Preamble. The phrase became "unity and integrity of the Nation". This is the only time the Preamble has been amended [4].
• It added the Fundamental Duties in Part IVA (Art. 51A). There were ten duties in 1976. They are moral duties of citizens and cannot be enforced in court [4].

Directive Principles

• Directive Principles of State Policy (DPSP) are goals the state should follow when it makes laws. Courts cannot enforce them.
• New directives were added:
• Art. 39(f): healthy development of children;
• Art. 39A: equal justice and free legal aid;
• Art. 43A: workers' participation in the management of industries;

• Art. 48A: protection of the environment, forests and wildlife.

• Art. 31C was extended to all directives. Art. 31C protects laws that carry out directives from challenge under Arts. 14 and 19. Before 1976 it covered only Art. 39(b)–(c).

Amending power

• Art. 368(4): no amendment could be "called in question in any court".
• Art. 368(5): there would be no limit on Parliament's constituent power, meaning its power to amend the Constitution.
• Effect: both clauses tried to cancel the basic structure doctrine.

Executive and legislature

• The terms of the Lok Sabha and the state assemblies were extended from five to six years.
• Art. 74(1) was changed so that the President must act on the advice of the Council of Ministers.

Tribunals and federal changes

• Arts. 323A–323B allowed tribunals for service matters and other subjects. A tribunal is a body like a special court for a particular kind of case.
• Five subjects were moved from the State List to the Concurrent List, so both the Union and the states can make laws on them:
• education;
• forests;
• protection of wild animals and birds;
• weights and measures;
• administration of justice.

Curbs on the courts

• Art. 32A: the Supreme Court could not consider the validity of state laws in Art. 32 cases.
• Art. 131A: only the Supreme Court could decide the validity of central laws.
• Art. 226A: High Courts could not decide the validity of central laws.
• Art. 31D: gave special powers to make laws against "anti-national activities".

Why it was controversial (NCERT Exercise 4)

• The 42nd Amendment did pass with the required special majority, and the states ratified it.
• The controversy lay in two things:
• its context: it was passed during the Emergency while opposition MPs were in jail;
• its content: it attacked judicial review and changed the balance of the Constitution.

What happened to it later

• Minerva Mills v. Union of India (1980) struck down Art. 368(4) and (5) because they violated the basic structure [5].
• The same case struck down Section 4 of the 42nd Amendment, which had extended Art. 31C to all directives [5].
• In Dr Balram Singh v. Union of India (25 November 2024), the Supreme Court upheld the words "socialist" and "secular" in the Preamble [6]:
• It said "socialism" here means economic and social upliftment. It does not stop private business, which is protected by Art. 19(1)(g).
• It found no good reason to challenge the amendment nearly 44 years after it was made.

The 43rd Constitutional Amendment Act, 1977 (Janata government)

• It restored the powers of the Supreme Court and the High Courts.
• It omitted Arts. 32A, 131A and 226A, along with related provisions.
• It repealed Art. 31D, the power to make laws on "anti-national activities".

The 44th Constitutional Amendment Act, 1978 (Janata government)

NCERT (keps209): "the constitutional balance was restored." The amendment added safeguards for civil liberties after the 1975–77 Emergency [7].

Emergency safeguards (Art. 352)

• "Armed rebellion" replaced "internal disturbance" as a ground for a national emergency. The present grounds are war, external aggression or armed rebellion [2].
• The President can proclaim an emergency only after the Union Cabinet's decision is communicated in writing. The Cabinet here means the PM and the Cabinet-rank ministers [2].

Step (Art. 352, after 1978)	Requirement
1. Cabinet decision	Sent to the President in writing [2]
2. Proclamation	By the President, on the grounds of war, external aggression or armed rebellion [2]
3. Parliamentary approval	Both Houses must approve it within one month [2]
4. Majority needed	Special majority: a majority of the total membership of the House and two-thirds of those present and voting [2]
5. Duration	Six months at a time; it continues only if Parliament approves again [2]
6. Revocation	The President must revoke it if the Lok Sabha passes a resolution disapproving it [2]
7. Special sitting	If one-tenth of Lok Sabha members give notice, a sitting must be held within 14 days [2]

Rights and institutions

• Arts. 20–21 cannot be suspended even during an emergency:
• Art. 20 protects against punishment under laws made after the act was done;

• Art. 21 protects life and personal liberty.

• The five-year terms of the Lok Sabha and state assemblies were restored.

• Property became a legal right instead of a Fundamental Right:
• Arts. 19(1)(f) and 31 were omitted;

• Art. 300A was added.

• Art. 74(1) proviso: the President can send the ministers' advice back for reconsideration once. The President must accept the advice given after that.

• Art. 329A was omitted. Election disputes involving the PM and the Speaker went back to the normal courts.
• The 38th Amendment's non-justiciability clauses were removed.
• Art. 361A was added. It protects newspapers and media that publish true reports of the proceedings of Parliament and state legislatures.

Comparison: Emergency-era amendments and the 1977–78 restoration

Issue	38th/39th/42nd (1975–76)	43rd/44th (1977–78)
Ground for emergency	"Internal disturbance"	"Armed rebellion" [2]
Court review of emergency and ordinances	Non-justiciable (38th)	Non-justiciability removed (44th)
PM and Speaker election disputes	Taken away from courts (Art. 329A)	Art. 329A omitted
Term of the Lok Sabha and assemblies	6 years	5 years
Art. 74(1)	Advice binding	Binding, but can be returned once
Arts. 32A, 131A, 226A, 31D	Inserted	Omitted or repealed (43rd)
Property	Fundamental Right	Legal right (Art. 300A)

Prelims Hooks

• Art. 329A was inserted by the 39th Amendment (1975) and omitted by the 44th (1978). Clause (4) was struck down in Indira Gandhi v. Raj Narain (7 November 1975).
• Indira Gandhi v. Raj Narain was the first case in which a constitutional amendment was struck down under the basic structure doctrine. Kesavananda (1973) created the doctrine but upheld the 24th Amendment.
• The Allahabad High Court verdict of 12 June 1975 was given by Justice Jagmohanlal Sinha on Raj Narain's petition.
• "Socialist", "secular" and "integrity" were added by the 42nd Amendment (1976), the only Preamble amendment. They were upheld in Dr Balram Singh v. UoI (2024) [4][6].
• Trap: "armed rebellion" came in with the 44th Amendment, not the 42nd. The 42nd made emergency advice binding (Art. 74(1)) but left "internal disturbance" in place.
• Art. 368(4)–(5) were added by the 42nd Amendment and struck down in Minerva Mills (1980) [5].
• Art. 300A (property as a legal right) and Art. 361A (protected reporting of Parliament) were both added by the 44th Amendment (1978).
• Arts. 32A, 131A, 226A and 31D were inserted by the 42nd and removed by the 43rd (1977), not the 44th.
• Arts. 39A, 43A and 48A were added by the 42nd Amendment. Education and forests moved to the Concurrent List under the same Act.
• After 1978, an emergency needs the Cabinet's written decision, approval within one month by special majority, and renewal every six months [2].

Mains Points

• Legal but not legitimate: the 42nd Amendment met every formal rule of Art. 368 (special majority and state ratification). Its legitimacy was weak because it was passed with the opposition in jail and it attacked judicial review. This shows that following the procedure alone does not protect a constitution. The basic structure doctrine (Raj Narain 1975, Minerva Mills 1980) acts as a check on what amendments can contain.
• Courts and politics both did the work: the courts struck down Art. 329A(4) and Art. 368(4)–(5). But most of the restoration came from the people's vote in 1977 and the 43rd and 44th Amendments. Use this as an example of judicial and political checks working together.
• The 44th Amendment as a lesson built into the Constitution:
• written Cabinet advice;
• approval by special majority within one month;
• six-monthly renewal;
• Lok Sabha power to revoke the emergency;
• Arts. 20–21 cannot be suspended.

These rules turned the experience of 1975–77 into permanent safeguards against misuse of emergency powers [2][7]. They are relevant to GS-II answers on emergency provisions and civil liberties.

• Mixed legacy of the 42nd Amendment: parts of it survive and are widely accepted: the Fundamental Duties, Arts. 39A and 48A, tribunals, and "socialist/secular", which the Supreme Court upheld in 2024 [6]. A balanced answer should separate the provisions that tried to centralise power from those that were reforms.