Courts and the Constitution during the Emergency

Detail

1. The background: courts and government in conflict

• The Emergency was proclaimed under Art. 352. Art. 352 lets the President declare a national emergency when India's security is threatened by war, external aggression or (in 1975) "internal disturbance".
• During this Emergency the government used two other powers together with it:
• Art. 359: during an emergency, the President can order that people cannot go to court to enforce certain Fundamental Rights (basic rights in Part III of the Constitution that citizens can enforce in court).

• Preventive detention laws such as MISA (Maintenance of Internal Security Act, 1971). These laws allowed arrest without trial, only on the suspicion that a person might act against public order.

• Thousands of opposition leaders and workers were detained. Many went to the High Courts asking for habeas corpus. Habeas corpus is a writ, or court order, that makes the authorities bring an arrested person before the court so the court can check whether the arrest is legal.

2. ADM Jabalpur v. Shivkant Shukla (28 April 1976) — the "Habeas Corpus case"

What the High Courts did

• Several High Courts (commonly counted as nine) held that habeas corpus petitions could still be heard during the Emergency. They said a court could at least check whether a detention followed the law.
• The government appealed to the Supreme Court.

The question before the Supreme Court

• While the President's Art. 359 order (June 1975) was in force, could a detained person go to court to enforce Art. 21? Art. 21 says no person shall lose life or personal liberty except by a procedure set by law.

The bench and the verdict

Judge	View
A.N. Ray (Chief Justice)	Majority
M.H. Beg	Majority
Y.V. Chandrachud	Majority
P.N. Bhagwati	Majority
H.R. Khanna	Dissent

• The Court ruled 4-1. While the Art. 359 order stood, no one could approach a court to enforce Art. 21. A habeas corpus petition could not be heard even if the detention was illegal or mala fide (made in bad faith).
• The majority accepted the extreme position of Attorney-General Niren De. He argued that if the right could not be enforced, there would be no remedy even if a detainee were unlawfully killed.
• NCERT's view: the judgment closed the doors of the courts to citizens. It is one of the most controversial judgments in the Court's history. An NCERT cartoon comments that "even the Supreme Court gave in".

Khanna's dissent

• The right to life and personal liberty does not exist only because of the Constitution. It existed before the Constitution and is part of the rule of law (the idea that the government, too, must obey the law).
• So suspending the right to approach courts under Art. 21 could not let the State detain people without any legal authority.
• H.R. Khanna had been a Supreme Court judge since September 1971 [4]. Under the seniority convention he was next in line to be Chief Justice. In January 1977 the government superseded him (passed over a senior judge to appoint a junior one), and M.H. Beg became Chief Justice. Khanna then resigned.

How the wrong was corrected

• 44th Amendment, 1978: amended Art. 359. Now Arts. 20 and 21 can never be suspended, even during an emergency. Art. 20 protects people against retrospective criminal laws, double punishment and being forced to give evidence against themselves.
• K.S. Puttaswamy v. Union of India (2017): a nine-judge bench, ruling on the right to privacy, declared ADM Jabalpur overruled. It held that Khanna's dissent stated the correct law.

3. The election-shield amendments of 1975

Indira Gandhi's 1971 election to Lok Sabha had been set aside by the Allahabad High Court (12 June 1975). Parliament then amended the Constitution to protect her position.

38th Amendment Act, 1975

• The President's "satisfaction" in proclaiming an emergency (Art. 352) became non-justiciable, meaning courts could not examine or question it.
• The same shield covered ordinances issued by the President (Art. 123) and Governors (Art. 213). An ordinance is a temporary law made by the executive when the legislature is not in session.

39th Amendment Act, 1975 (came into force 10 August 1975)

• Art. 71 was changed. Disputes over the election of the President and Vice-President were taken out of the ordinary courts and left to a body that Parliament would set up by law.
• New Art. 329A covered the Prime Minister and the Speaker:
• their election disputes would be decided only by an authority created by Parliament, not by ordinary courts;

• Clause (4) said that existing election laws would not apply to the elections of these leaders, and it declared any pending court verdict against them void. This directly cancelled the Allahabad High Court ruling.

• NCERT loosely describes this as covering the "PM, President and Vice-President". The exact legal position is: President and Vice-President under Art. 71, and PM and Speaker under Art. 329A.

• Art. 329A was omitted by the 44th Amendment Act, 1978 (s. 36), with effect from 20 June 1979 [3].

Indira Nehru Gandhi v. Raj Narain (7 November 1975)

• A five-judge bench struck down Art. 329A(4).
• Its reason was that free and fair elections are part of the basic structure. Parliament can amend any part of the Constitution, but it cannot destroy its core features, such as democracy, free elections and judicial review. This doctrine comes from Kesavananda Bharati (1973).
• A law-maker cannot also act as judge by declaring an election valid itself. That is a court's job.
• But the Court upheld her election. It applied the election laws that Parliament had amended retrospectively (with effect from a past date) in 1974-75.
• This was the first time the basic structure doctrine was used to strike down part of a constitutional amendment.

4. The 42nd Amendment, 1976 — the "mini-Constitution"

• It was drafted on the lines of the Swaran Singh Committee (1976) report. It is called a "mini-Constitution" because it changed the Preamble, many articles and the Seventh Schedule.
• According to the petitioners in Balram Singh (2024), it was passed on 2 November 1976, after the Lok Sabha's normal term had ended on 18 March 1976 [2].

Main changes

Area	Change
Preamble	Added "socialist", "secular" and "integrity" ("unity of the nation" became "unity and integrity of the nation") [2]
Fundamental Duties	New Part IVA, Art. 51A: ten duties of citizens, such as respecting the Constitution and protecting the environment
Term of legislatures	Lok Sabha (Art. 83) and State Assemblies (Art. 172) term raised from five to six years, as a permanent change
Art. 31C	Protection extended to laws giving effect to all Directive Principles, not just Art. 39(b)-(c). Directive Principles (Part IV) are goals the State should follow in making policy; courts cannot enforce them. Laws covered by Art. 31C could not be challenged for violating Arts. 14 or 19
Art. 368(4)-(5)	(4): no constitutional amendment could be questioned in any court on any ground. (5): Parliament's amending power had no limit [5]
Art. 74(1)	The President "shall" act on the advice of the Council of Ministers. Ministerial advice became binding
Seventh Schedule	Education, forests, weights and measures, protection of wild animals and birds, and administration of justice moved from the State List to the Concurrent List (subjects on which both the Union and the states can make laws)
Tribunals	New Arts. 323A-323B: administrative and other tribunals, which are specialised bodies that decide disputes outside the regular courts

• Elections postponed: a Lok Sabha term could already be extended one year at a time during an emergency. With the new six-year term added to this, the elections due in 1976 need not have been held until 1978 (NCERT).

How these changes were undone

• 43rd Amendment, 1977: restored the powers of the Supreme Court and High Courts that the 42nd Amendment had cut.
• 44th Amendment, 1978:
• brought the five-year term back;
• replaced "internal disturbance" with "armed rebellion" in Art. 352;
• required the Cabinet's written advice before an emergency is proclaimed;
• let the President send advice back once for reconsideration (Art. 74);
• restored Art. 71 and omitted Art. 329A.

(Fuller detail is in the amendment and basic structure note.)

• Minerva Mills v. Union of India (1980):
• struck down Art. 368(4)-(5), because limited amending power and judicial review are themselves part of the basic structure;

• struck down the extension of Art. 31C to all Directive Principles, because the balance between Fundamental Rights and Directive Principles is part of the basic structure.

• Amending procedure (Art. 368), the process the 42nd Amendment tried to make unchallengeable [5]: 1. A bill to amend the Constitution is introduced in either House of Parliament. 2. Each House must pass it by a majority of its total membership and two-thirds of members present and voting. 3. If it changes federal provisions (for example, the election of the President or Art. 368 itself), it must also be ratified by at least half of the state legislatures. 4. The President gives assent.

5. Dr Balram Singh v. Union of India (25 November 2024)

• Bench: CJI Sanjiv Khanna and Sanjay Kumar, cited as 2024 INSC 893. The Court dismissed the writ petitions (filed in 2020) without even issuing notice [2].
• The challenge made three claims [2]:
• adding the words in 1976 to a Preamble adopted on 26 November 1949 was falsely retrospective;
• the Constituent Assembly had chosen not to use "secular";

• the amendment was passed by a Lok Sabha whose term had been extended during the Emergency.

• The Court's answers [2]:

• Parliament's power under Art. 368 extends to the Preamble. The date the Constitution was adopted does not limit that power.
• The Constitution is a living document.
• Secularism is already a basic feature (Kesavananda Bharati, 1973; S.R. Bommai, 1994). It means the State has no religion of its own and treats all faiths equally.
• Socialist means a welfare State and equality of opportunity. It does not tie the government to any one economic policy and does not limit private business under Art. 19(1)(g).
• A challenge brought 44 years later was questionable, because the words had won wide acceptance.

Prelims Hooks

• ADM Jabalpur (1976): 4-1 verdict, with H.R. Khanna the lone dissenter. Courts could not hear Art. 21 habeas corpus petitions while the Art. 359 order stood. Overruled in Puttaswamy (2017).
• 44th Amendment (1978): Arts. 20 and 21 cannot be suspended under Art. 359 even during an emergency.
• 38th Amendment (1975): made the President's satisfaction under Art. 352 and ordinances non-justiciable.
• 39th Amendment (1975): Art. 71 covers the President and Vice-President, and Art. 329A covers the PM and Speaker. Trap: the Speaker was covered; the Vice-President is under Art. 71, not Art. 329A.
• Indira Nehru Gandhi v. Raj Narain (1975): struck down Art. 329A(4); free and fair elections are part of the basic structure, but her election was upheld.
• 42nd Amendment (1976): added "socialist", "secular" and "integrity" (not "sovereign" or "democratic") to the Preamble, and added Art. 51A, Arts. 323A-B and Art. 368(4)-(5).
• Minerva Mills (1980): struck down Art. 368(4)-(5) and the extension of Art. 31C. Limited amending power is part of the basic structure.
• Subjects moved to the Concurrent List by the 42nd Amendment: education, forests, weights and measures, wild animals and birds, and administration of justice.
• Dr Balram Singh (2024): upheld "socialist" and "secular" in the Preamble; amending power extends to the Preamble [2].
• Art. 329A was omitted by the 44th Amendment (in force from 20 June 1979) [3].

Mains Points

• Judicial independence under pressure (GS-II): ADM Jabalpur and the supersession of Khanna (1977) show how a "committed judiciary" can fail citizens in a crisis. The later collegium system and the Court's own admission in Puttaswamy (2017) were responses. The 44th Amendment turned the lesson into a permanent rule by making Arts. 20-21 non-suspendable.
• Basic structure as a safety valve: Raj Narain (1975) and Minerva Mills (1980) show that the doctrine stopped Parliament from using a temporary majority to place itself beyond the courts' reach (Art. 329A(4), Art. 368(4)-(5)). Critics call this "judicial supremacy". Supporters say the Emergency proved why the doctrine is needed.
• Legitimacy of Emergency-era changes: many 42nd Amendment provisions were repealed, but some still stand: Fundamental Duties, Arts. 323A-B, the Concurrent List shifts, and the Preamble words (upheld in 2024). The debate is whether a change should be judged by how it was made (an extended-term Parliament during an emergency) or by what it says and whether people later accepted it, which was the reasoning in Balram Singh [2].
• Lessons for emergency powers: ADM Jabalpur shows that suspending remedies makes rights empty. Reforms supported by the Shah Commission and the 44th Amendment followed: "armed rebellion" in place of "internal disturbance", written Cabinet advice, and a non-suspendable core of rights. These are useful examples when comparing emergency powers in GS-II answers.