Thirty-eighth Amendment of the Constitution of India

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The Constitution (Thirty-eighth Amendment) Act, 1975
Emblem of India.svg
Parliament of India
An Act further to amend the Constitution of India.
Citation 38th Amendment
Territorial extent India
Enacted by Lok Sabha
Date passed 23 July 1975
Enacted by Rajya Sabha
Date passed 24 July 1975
Date assented to 1 August 1975
Date commenced 1 August 1975
Legislative history
Bill introduced in the Lok Sabha The Constitution (Thirty-ninth Amendment) Bill, 1975
Bill citation Bill No. 54 of 1975
Introduced by H.R. Gokhale
First reading 22 July 1975

The Thirty-eighth Amendment of the Constitution of India, officially known as The Constitution (Thirty-eighth Amendment) Act, 1975, made the declaration of "The Emergency" final and conclusive. In particular it codified and enlarged the State's power to remove fundamental rights from its citizens during states of emergency.[1]

Introduced on 22 July 1975, the bill received presidential assent in ten days. The Amendment barred judicial review of proclamations of emergency whether made to meet external, internal, or financial threats (Article 360 for the latter). It also barred judicial review of overlapping emergency proclamations, or ordinances promulgated by the President or by governors, and of laws enacted during emergencies that contravened Fundamental Rights.[2]

Constitutional changes[edit]

Section 2 of the 38th Amendment amended article 123 of the Constitution by inserting therein a new clause (4) which shall have retrospective effect. By insertion of this clause, the satisfaction of the President mentioned in clause (1) in relation to his power to issue Ordinances except when both the Houses of Parliament are in session, shall be final and conclusive and shall not be questioned in any Court on any ground. Section 3 amended article 213 of the Constitution by inserting therein a new clause (4) which shall have retrospective effect. By insertion of this clause, the satisfaction of the Governor mentioned in clause (1), in relation to his power to promulgate Ordinances during recess of State Legislature, shall be final and conclusive and shall not be questioned in any Court on any ground. Section 4 amended article 239B of the Constitution to add a new clause (4) which shall have retrospective effect. By insertion of this clause, the satisfaction of the Administrator mentioned in clause (1) in relation to his power to promulgate Ordinances during recess of Legislature of a Union territory, shall be final and conclusive and shall not be questioned in any Court on any ground.

Article 352 of the Constitution was amended by Section 5 which inserted therein two new clauses (4) and (5) which had retrospective effect. By virtue of clause (4), the power of the President to declare Emergency now includes the power to issue different Proclamations on different grounds, such as war or external aggression or internal disturbance, whether or not there is a Proclamation already issued under clause (1) and such Proclamation is in operation. Under clause (5), the satisfaction of the President mentioned in clause (1) and clause (3) shall be final and conclusive and shall not be questioned in any Court on any ground. Section 6 amended article 356 of the Constitution by inserting a new clause (5) which shall have retrospective effect. By this insertion, the satisfaction of the President mentioned in clause (1) as regards assumption to himself of the functions of the Government of a State if the Government in the State cannot be carried on in accordance with the provisions of the Constitution, shall be final and conclusive and shall not be questioned in any Court on any ground.

Section 7 of the Act amended article 359 of the Constitution by inserting therein a new clause (1A) which shall have retrospective effect. Clause (1A) states that while an order made by the President under clause (1) suspending enforcement of any of the rights conferred by Part III of the Constitution during emergencies, is in operation, nothing in that Part shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in Part III be competent to make or to take. It further states that any law so made shall, to the extent of incompetency, cease to have effect as soon as the Presidential order ceases to operate, except as respect things done or omitted to be done before the law so ceases to have effect. Section 8 amended with retrospective effect article 360 of the Constitution. A new clause (5) has been inserted in the article. By virtue of this clause, the satisfaction of the President mentioned in clause (1) pertaining to the declaration of Financial Emergency shall be final and conclusive and shall not be justiciable on any ground in any Court.[3]

Enactment[edit]

The Bill of The Constitution (Thirty-eighth Amendment) Act, 1975 was introduced in the Lok Sabha on 22 July 1975, as the Constitution (Thirty-ninth Amendment) Bill, 1975 (Bill No. 54 of 1975). It was introduced by H.R. Gokhale, then Minister of Law, Justice and Company Affairs. The Bill sought to amend articles 123, 213, 239B, 352, 356, 359 and 360 of the Constitution. The Bill was considered by the Lok Sabha on 23 July 1975 and passed on the same day with only a formal amendment in clause 1, changing the short title to “The Constitution (Thirty-eighth Amendment) Act, 1975”. The Bill, as passed by the Lok Sabha, was considered and passed by the Rajya Sabha on 24 July 1975. Clauses 2 to 8 of the Bill were adopted in the original form by both Houses. The Bill, after ratification by the States, received assent from then President Fakhruddin Ali Ahmed on 1 August 1975. It was notified in The Gazette of India, and also came into force on the same date.[3]

Ratification[edit]

The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was ratified by more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that ratified the amendment are listed below:[3]

References[edit]

  1. ^ Henderson, Michael (Oct 1979). "Setting India's Democratic House in Order: Constitutional Amendments" (PDF). Asian Survey, Vol.19, No.10 (University of California Press): 946–956. Retrieved 2010-09-26. 
  2. ^ Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. p. 319. ISBN 019565610-5. 
  3. ^ a b c "Constitution Amendment in India" (PDF). Lok Sabha Secretariat. pp. 148–152. Retrieved 20 May 2015.   This article incorporates text from this source, which is in the public domain.

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