Judicial Review of Proclamation of Emergency

Emergency judicial review refers to the power of courts to examine whether a Proclamation of Emergency under Articles 352, 356 or 360 of the Constitution was validly issued, and to strike it down if it was made in bad faith or without relevant material. This power was not always available in this form — it was removed by the 38th Amendment in 1975 and restored by the 44th Amendment in 1978, and has since been shaped further by Supreme Court rulings.

The Three Emergency Provisions

Part XVIII of the Constitution contains the emergency provisions: Article 352 (Proclamation of Emergency, commonly called a National Emergency), Article 356 (failure of constitutional machinery in a state, commonly called President's Rule), and Article 360 (Financial Emergency). Article 358 suspends the operation of Article 19 during a national emergency arising from war or external aggression, while Article 359 allows the President to suspend, by order, the right to move courts for the enforcement of Part III rights, other than Articles 20 and 21, for the duration of the Proclamation.

National Emergency: From Immunity to Judicial Review

The question of whether courts could review a national emergency proclamation has changed significantly over time. The 38th Amendment Act of 1975 made the President's satisfaction while declaring a National Emergency final, conclusive and immune from judicial review. This provision was subsequently deleted by the 44th Amendment Act of 1978, reopening the proclamation to judicial scrutiny.

The scope of this review was clarified by the Supreme Court in the Minerva Mills case (1980), which held that a proclamation of national emergency could be challenged in court on the grounds that it was issued malafide, or that it was based on wholly extraneous and irrelevant facts, or that it was absurd or perverse. This established that while courts would not second-guess the President's political judgment in ordinary circumstances, a proclamation issued without any rational basis, or for an improper purpose, could be struck down.

President's Rule and the Bommai Doctrine

The most significant expansion of emergency judicial review came in the context of Article 356. In S.R. Bommai v. Union of India (1994), the Supreme Court held that the validity of a proclamation of President's Rule is subject to judicial review, and that Article 74(2) — which bars courts from inquiring into the advice given by the Council of Ministers to the President — is not a bar to such scrutiny. The Court laid down that once a proclamation under Article 356 is challenged, the burden falls on the Union government to prove that material existed to justify the President's satisfaction that the constitutional machinery in a state had failed. At the same time, the Court clarified that it would examine only whether relevant material existed, not whether that material was factually correct or adequate — the correctness of the material itself remains outside judicial scrutiny. The Bommai case is also significant for holding that secularism forms part of the basic structure of the Constitution, a principle it applied while assessing the dismissal of certain state governments.

Financial Emergency and Judicial Review

A parallel change occurred with respect to Financial Emergency under Article 360. The 38th Amendment Act of 1975 had similarly made the President's satisfaction in declaring a Financial Emergency final and conclusive, and not questionable in any court on any ground. The 44th Amendment Act of 1978 deleted this immunity as well, meaning the President's satisfaction in declaring a Financial Emergency is no longer beyond judicial review. Financial Emergency provisions also interact with judicial independence: under Article 125(2), the salaries and allowances of Supreme Court judges, fixed by the Constitution, cannot ordinarily be varied to a judge's disadvantage during their term, but the President may override this protection under a Proclamation of Financial Emergency issued under Article 360(4)(b).

Safeguards Introduced by the 44th Amendment

Beyond restoring judicial review, the 44th Amendment Act of 1978 introduced several other safeguards around the use of emergency powers:

The 44th Amendment also required that the President must revoke a Proclamation of Emergency if the Lok Sabha passes a resolution disapproving its continuation — a safeguard that did not exist before the amendment. Revocation by the President on his or her own initiative, however, does not require prior parliamentary approval.

Constituent Assembly Perspectives

The emergency provisions were debated at length in the Constituent Assembly. Sir Alladi Krishnaswami Ayyar described them as "the very life-breath of the Constitution," while Mahabir Tyagi viewed them as a "safety-valve" that would help maintain the Constitution in times of crisis. Dr. B.R. Ambedkar, defending the provisions, nonetheless acknowledged that there was a possibility of the emergency articles being "abused or employed for political purposes" — an acknowledgment that anticipated the later controversies that led to the 38th and 44th Amendments.

UPSC Relevance

Prelims:

• The 38th Amendment (1975) barred judicial review of Emergency proclamations; the 44th Amendment (1978) restored it.
• Grounds for challenging a National Emergency proclamation laid down in the Minerva Mills case (1980): malafide, extraneous/irrelevant facts, absurdity or perversity.
• S.R. Bommai v. Union of India (1994) on judicial review of Article 356 proclamations and secularism as basic structure.

Mains:

• Trace the evolution of judicial review over Emergency proclamations from the 38th Amendment to the 44th Amendment and the Bommai judgment (GS2, polity/judiciary).
• Discuss the safeguards introduced by the 44th Amendment Act, 1978 against the misuse of emergency powers.
• Evaluate the balance the Constitution strikes between empowering the Union during emergencies and protecting fundamental rights and federalism.

FAQ

Q1. Can courts review a Proclamation of Emergency in India? Yes. After the 44th Amendment Act of 1978 removed the immunity introduced by the 38th Amendment, proclamations of National Emergency (Article 352), President's Rule (Article 356) and Financial Emergency (Article 360) are all subject to judicial review.

Q2. What did the Minerva Mills case hold about emergency judicial review? It held that a proclamation of national emergency could be challenged in court if it was issued malafide, based on wholly extraneous or irrelevant facts, or was absurd or perverse.

Q3. What did the S.R. Bommai case establish? It established that proclamations of President's Rule under Article 356 are subject to judicial review, that the Union bears the burden of proving the material justifying the President's satisfaction, and that Article 74(2) does not bar courts from examining this material. It also held secularism to be part of the basic structure.

Q4. Were Articles 20 and 21 ever suspendable during an Emergency? Before the 44th Amendment, the right to move courts for enforcement of Part III rights (other than Articles 20 and 21) could be suspended under Article 359. The 44th Amendment expressly excluded Articles 20 and 21 from any such suspension, safeguarding them even during an Emergency.

Q5. What changed for Financial Emergency after the 44th Amendment? The 38th Amendment had made the President's satisfaction in declaring a Financial Emergency final and beyond judicial question. The 44th Amendment deleted this bar, making such a declaration subject to judicial review like the other emergencies.

Quick Revision

• 38th Amendment (1975): declaration of National Emergency and Financial Emergency made immune from judicial review.
• 44th Amendment (1978): deleted this immunity, restoring judicial review over both.
• Minerva Mills (1980): National Emergency proclamation challengeable for malafide, extraneous/irrelevant facts, absurdity or perversity.
• S.R. Bommai v. Union of India (1994): President's Rule (Article 356) proclamations subject to judicial review; burden on Union to prove justifying material; Article 74(2) no bar; secularism is basic structure.
• 44th Amendment also: reduced approval period to one month, introduced special majority for approval, safeguarded Articles 20 and 21, restricted Article 19 suspension to war/external aggression emergencies, changed "internal disturbance" ground to "armed rebellion."
• Article 125(2): SC judges' salaries protected from reduction, except by Presidential order during a Financial Emergency (Article 360(4)(b)).

Sources

• Constitution of India, Articles 352, 356, 358, 359, 360 — https://legislative.gov.in
• Constitution (Thirty-eighth Amendment) Act, 1975 and Constitution (Forty-fourth Amendment) Act, 1978 — https://legislative.gov.in
• Supreme Court of India, Minerva Mills Ltd. v. Union of India, 1980
• Supreme Court of India, S.R. Bommai v. Union of India, (1994) 3 SCC 1

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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