Judicial Review of Emergency Proclamations

Safeguarding Constitutionalism in Times of Crisis: A Deep Dive into India's Legal Evolution.

Explore The Journey

Introduction & Overview

The Indian Constitution provides for extraordinary powers to the Union Executive in situations of grave emergency (Part XVIII, Articles 352-360). These "Emergency Provisions" allow the Central government to assume sweeping powers, potentially affecting fundamental rights and the federal structure.

Given their severe implications, the extent to which these proclamations are subject to judicial review has been a critical aspect of India's constitutional jurisprudence. While courts initially adopted a hands-off approach based on the 'political question doctrine', a series of landmark judgments, notably Minerva Mills (1980) and S.R. Bommai (1994), progressively established and solidified the principle that emergency proclamations are indeed subject to judicial scrutiny, albeit on specific and limited grounds.

This evolution underscores the judiciary's role as the guardian of the Constitution and a check on potential executive overreach.

Constitutional Law Separation of Powers Federalism

The Journey of Judicial Oversight

The journey of judicial review over emergency proclamations reflects the inherent tension between the need for swift executive action during crises and the imperative to prevent potential misuse of power.

13.7.1: Initial Reluctance of Courts

The Political Question Doctrine: In constitutional law, this doctrine suggests that certain matters are inherently political in nature and are best left to the political branches (legislature and executive) rather than the judiciary. Courts, especially in the early post-independence era, often hesitated to delve into the subjective satisfaction of the President in declaring an emergency.

Pre-44th Amendment Era: Prior to the 44th Constitutional Amendment Act of 1978, the wording of Emergency provisions, particularly Article 352 (National Emergency) and Article 356 (President's Rule in States), conferred significant discretionary power on the President (acting on the advice of the Council of Ministers).

The 38th Constitutional Amendment Act, 1975

Explicitly made the satisfaction of the President in declaring an emergency final and conclusive, placing it beyond judicial review. This was a direct response to the concerns arising during the 1975 Emergency.

Early Cases and Stance:

Rajasthan v. Union of India (1977)
  • Context: Challenged President's Rule imposed in nine states after the 1977 Lok Sabha elections.
  • Ruling: SC showed reluctance to extensively review the President's satisfaction. Held that Court could intervene only if satisfaction was mala fide or based on wholly extraneous and irrelevant grounds.
  • Impact: Threshold for intervention remained very high, reflecting the prevailing 'political question doctrine' approach.

13.7.2: Evolution – Establishing Judicial Review

The experience of the 1975 Emergency led to a fundamental rethinking of unchecked emergency powers and resulted in significant legislative and judicial developments.

The 44th Constitutional Amendment Act, 1978

  • Article 352: Replaced "internal disturbance" with "armed rebellion"; required President to act only on written advice of Union Cabinet; removed finality clause for President's satisfaction.
  • Article 356: Implicitly paved the way for judicial scrutiny.
  • Impact: These changes opened the doors for judicial review of the 'satisfaction' of the President.

Landmark Judgments:

Minerva Mills v. Union of India (1980)
  • Context: Challenged 42nd and aspects of 44th Amendment.
  • Ruling: Affirmed judicial review as a basic feature of the Constitution. Reiterate that power of judicial review was not extinguished.
  • Impact on Art 352: Implicitly held that National Emergency proclamation could be challenged on grounds of mala fide or if based on wholly irrelevant/extraneous considerations. Upheld justiciability of President's subjective satisfaction.
S.R. Bommai v. Union of India (1994) (Watershed Judgment)
  • Context: Dealt specifically with arbitrary imposition of President's Rule (Article 356).
  • Justiciability: President's satisfaction under Art 356 is not absolute and is subject to judicial review. Court can scrutinize material.
  • Grounds for Review: Mala fide, irrelevant grounds, extraneous considerations, or no material at all.
  • Burden of Proof: Lies on the Union Government to justify proclamation.
  • Restoration: If unconstitutional, Court can restore dismissed State government and Legislative Assembly.
  • Parliamentary Approval: Dissolution of State Assembly should only occur after Parliament has approved the proclamation. Prevents irreversible damage.

Impact: Significantly curtailed arbitrary use of Article 356, strengthened federalism, and firmly established judicial review as a robust check on executive power concerning President's Rule.

Evolution Summary: Judicial Review of Emergency Proclamations

Aspect Pre-44th Amendment & Rajasthan (1977) Post-44th Amendment & Minerva Mills (1980), S.R. Bommai (1994)
Judicial Stance Reluctant to intervene; largely adhered to 'political question doctrine'. President's satisfaction was "final." Actively intervenes; firmly established justiciability.
Grounds for Review Very limited; theoretical mala fide or wholly irrelevant. High bar for intervention. Broader grounds: mala fide, irrelevant grounds, extraneous considerations, no material.
Key Legislation 38th Amendment (1975) made satisfaction final. 44th Amendment (1978) removed finality clause for Art 352, required written advice.
Impact on Art. 352 Almost immune from review. Subject to review for mala fide or extraneous reasons (Minerva Mills).
Impact on Art. 356 Highly discretionary, frequently misused (pre-1994). Heavily restricted; subject to detailed judicial review; safeguards on dissolution (Bommai).
Restoration Power Generally not exercised. Court can restore dismissed government/assembly if proclamation struck down (Bommai).

Ready Reckoner for UPSC

Prelims-ready Notes
  • Emergency Provisions: Part XVIII (Articles 352-360).
  • Art 352: National Emergency (War, External Aggression, Armed Rebellion).
    • 356: President's Rule/State Emergency (Failure of Constitutional Machinery).
  • Art 360: Financial Emergency.
  • Original Constitution & 38th Amendment (1975): President's satisfaction largely immune from judicial review.
  • 44th Constitutional Amendment Act, 1978: Replaced "internal disturbance" with "armed rebellion" (Art 352), required written advice of Union Cabinet, removed finality clause for Art 352.

Key Judgments:

  • Rajasthan v. Union of India (1977): Initial reluctance, review only for mala fide/wholly extraneous grounds.
  • Minerva Mills v. Union of India (1980): Judicial review is basic feature. Implied Art 352 justiciable on mala fide.
  • S.R. Bommai v. Union of India (1994): Landmark for Art 356. Justiciable, grounds: mala fide, irrelevant, extraneous, no material. Union Govt. bears burden. Assembly dissolution ONLY after parliamentary approval; can be revived.
  • Financial Emergency (Art 360): Never invoked. While 38th Amendment made it final, general principles of judicial review (like mala fide) would likely apply if invoked.

Impact: Post-Bommai, President's Rule imposition significantly reduced.

Mains-ready Analytical Notes

Major Debates/Discussions:

  • Political Question Doctrine vs. Constitutionalism: Shift from 'hands-off' to assertion of basic structure.
  • Centralisation vs. Federalism: Judicial review (Art 356) checks centralisation, Bommai judgment is key for federalism.
  • Balance of Power: Executive discretion, legislative oversight, judicial review.
  • Necessity vs. Misuse: History (pre-Bommai Art 356) shows misuse; judicial review aims to distinguish.

Historical/Long-term Trends, Continuity & Changes:

  • Pre-1975: Unfettered executive discretion.
  • 1975-77 Emergency: Highlighted dangers of non-justiciable powers.
  • Post-1978 (44th Amendment): Legislative changes curbed misuse, paved way for scrutiny.
  • Post-1994 (S.R. Bommai): Dramatic shift, significantly fewer Art 356 impositions, triumph of judicial review and federal principles.

Contemporary Relevance/Significance/Impact:

  • Safeguard against Abuse: Powerful deterrent against arbitrary declarations.
  • Strengthening Federalism: Bommai is bulwark protecting state autonomy.
  • Accountability of Executive: Makes executive accountable even in extraordinary circumstances.
  • Maintaining Rule of Law: Emergency powers are subject to constitutional limitations.
  • Lessons from History: Guides current governance, any future contemplation of emergency powers.

Real-world/Data-backed Recent Examples:

  • Decline in Article 356 Impositions: Drastic reduction post-Bommai (e.g., from ~90 times pre-1994 to <10/decade later).
  • Recent Challenges: Maharashtra (2019), Uttarakhand (2016), Arunachal Pradesh (2016) saw legal challenges, demonstrating Bommai's shadow.
  • No National/Financial Emergency Since 1975: Robust legal framework and judicial review contribute to caution.

Current Affairs and Recent Developments (Last 1 year):

  • No direct emergency invocations.
  • Discussions on federal relations, central powers (e.g., central agencies, Governor's role) often reference Bommai's spirit, highlighting the importance of judicial checks in maintaining India's quasi-federal structure.

UPSC Previous Year Questions

Prelims MCQs

UPSC Prelims 2014

The Parliament of India can place a particular law in the Ninth Schedule of the Constitution of India. The validity of a law placed in the Ninth Schedule cannot be examined by any court and no judgment can be made on it.

Which of the statements given above is/are correct?

  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2

Answer: (a)

Hint: This question tests the understanding of judicial review post-I.R. Coelho (2007). While Parliament can place laws in the Ninth Schedule (Statement 1 is correct), the Supreme Court in I.R. Coelho ruled that laws placed in the Ninth Schedule after April 24, 1973 (date of Kesavananda Bharati judgment) are open to judicial review if they violate the basic structure. Thus, Statement 2 is incorrect. This shows the pervasive nature of judicial review.

UPSC Prelims 2011

Which one of the following Constitutional Amendments stated that the President must give his assent to a Constitution Amendment Bill?

  1. 24th Amendment
  2. 25th Amendment
  3. 42nd Amendment
  4. 44th Amendment

Answer: (a)

Hint: The 24th Amendment (1971) was enacted to overcome the Golaknath judgment and asserted Parliament's wider amending power. It mandates presidential assent, part of the legislative push-back that eventually led to Kesavananda Bharati and the evolution of judicial review.

UPSC Prelims 2008

Which of the following is correct regarding the powers of the President of India with respect to President's Rule?

  1. The President can declare President's Rule on grounds of failure of constitutional machinery in a state.
  2. The President can declare President's Rule for a specified period and not indefinitely.
  3. The President can assume to himself all or any of the functions of the government of the state.

Select the correct answer using the code given below:

  1. 1 and 2 only
  2. 2 and 3 only
  3. 1 and 3 only
  4. 1, 2 and 3

Answer: (c)

Hint: Statement 1 and 3 are correct as per Article 356. Statement 2 is incorrect because while President's Rule has a maximum duration (usually 3 years with parliamentary approval every 6 months), it can be imposed for an unspecified period initially, and its continuance depends on parliamentary approval, not a fixed initial duration. The Bommai judgment places limits on its arbitrary use, but not on initial specified duration.

Mains Questions

UPSC Mains 2017 (GS-II)

"The concept of 'cooperative federalism' has been increasingly emphasized in recent years. Analyze the role of the judiciary in upholding this principle, with specific reference to the S.R. Bommai judgment."

Direction:

  • Introduction: Define cooperative federalism and the judiciary's role in India's federal structure.
  • Judiciary's Role: Interpreter of the Constitution, settler of inter-state disputes, guardian of states' rights.
  • S.R. Bommai Judgment's Role: Explain how Bommai significantly curtailed arbitrary use of Article 356. Discuss justiciability, grounds, and safeguards (dissolution after parliamentary approval). Argue how it strengthened federal autonomy and fostered cooperative federalism.
  • Conclusion: Judiciary acts as crucial balancer, ensuring cooperative federalism by reining in central dominance.

UPSC Mains 2016 (GS-II)

"Has the Judicial Review in India gone beyond its traditional role?" Discuss.

Direction:

  • Introduction: Define judicial review and its traditional role.
  • Arguments for "Beyond Traditional Role" (Judicial Activism/Overreach): PILs, active role in governance, Basic Structure Doctrine, striking down amendments. Specifically mention shift from reluctance to active review of emergency proclamations (Minerva Mills, Bommai) as an expansion.
  • Arguments for "Within Traditional Role" (Necessary Safeguard): Filling legislative vacuum, protecting fundamental rights, ensuring accountability, checking abuse of power (including emergency powers).
  • Conclusion: Offer a balanced view, acknowledging evolution necessary for India's challenges and importance of judicial restraint. Expansion, especially in emergency proclamations, was a response to historical misuse.

UPSC Mains 2013 (GS-II)

"The Supreme Court of India keeps a strong eye on the executive. What is the scope of judicial review in the Indian Constitution?"

Direction:

  • Introduction: Define judicial review and its significance.
  • Scope of Judicial Review: Laws (Parliament/State), Executive orders, Constitutional amendments (post-Kesavananda Bharati), Judicial review of emergency proclamations (Art 352 & 356) through Minerva Mills and S.R. Bommai. This is a crucial point for showing the "strong eye".
  • Mechanisms for 'Strong Eye': Writs, PIL, power to declare laws ultra vires.
  • Conclusion: Broad scope of judicial review, significantly strengthened by justiciability of emergency proclamations, ensures executive operates within constitutional bounds and upholds rule of law.

Trend Analysis (UPSC Questioning Style)

Prelims: Moving beyond factual recall to testing evolution, impact of amendments (44th), and significance of landmark judgments (Bommai) on federalism/judicial review. Understanding limitations and safeguards is crucial.

Mains: Highly analytical, requiring critical examination of judiciary's role. S.R. Bommai is often direct/implicit. Expect discussions on historical context, judicial intervention, long-term impact, judicial activism vs. executive accountability.

Test Your Understanding

Original MCQs for Prelims

Which of the following provisions related to Emergency powers was NOT incorporated by the 44th Constitutional Amendment Act, 1978?

  1. The ground of "internal disturbance" was replaced by "armed rebellion" for National Emergency.
  2. The President can declare a National Emergency only on the written advice of the Union Cabinet.
  3. The satisfaction of the President for declaring a Financial Emergency was made final and conclusive.
  4. A proclamation of National Emergency must be approved by both Houses of Parliament within one month.

Answer: (c)

Explanation: Options (a), (b), and (d) (approval within one month, earlier it was two months) were indeed changes made by the 44th Amendment. Option (c) is incorrect; the 38th Amendment (1975) made the President's satisfaction final for Financial Emergency, and the 44th Amendment did not specifically repeal this aspect for Art 360, though generally judicial review is now accepted for all executive actions.

With reference to the judicial review of a proclamation of President's Rule under Article 356, consider the following statements:

  1. The S.R. Bommai judgment held that the President's satisfaction is not absolute and is justiciable.
  2. If the Supreme Court strikes down a proclamation, the dissolved state legislative assembly can be revived.
  3. The burden lies on the state government to prove that the imposition of President's Rule was mala fide.

Which of the statements given above is/are correct?

  1. 1 only
  2. 1 and 2 only
  3. 2 and 3 only
  4. 1, 2 and 3

Answer: (b)

Explanation: Statement 1 is correct (Bommai judgment). Statement 2 is correct (a key safeguard established by Bommai). Statement 3 is incorrect; the burden of proof lies on the Union Government to justify the proclamation, not the state government.

Original Descriptive Questions for Mains

"The journey of judicial review of emergency proclamations in India exemplifies the judiciary's increasing assertion of its role as the ultimate guardian of the Constitution against executive overreach." Elaborate, tracing this evolution from initial reluctance to the definitive stance in S.R. Bommai. (15 marks, 250 words)

Key Points/Structure:

  • Introduction: Briefly state extraordinary nature of emergency powers & tension with constitutionalism.
  • Initial Reluctance (Pre-Bommai/Pre-44th Amendment): 'Political question doctrine', 38th Amendment (finality), Rajasthan v. Union of India (high bar for mala fide).
  • Evolution and Assertion (Post-44th Amendment): 44th Amendment (removing finality, safeguards), Minerva Mills (judicial review as basic feature, implicit justiciability of Art 352).
  • S.R. Bommai v. Union of India (watershed for Art 356): Explicit justiciability, grounds (mala fide, irrelevant, extraneous), burden of proof on Union, power to restore assembly, dissolution after parliamentary approval.
  • Conclusion: Judiciary moved from deference to active oversight, transforming use of emergency powers, strengthening checks and balances, safeguarding federalism and democracy.

"The S.R. Bommai judgment has fundamentally altered the federal dynamics in India by curtailing the arbitrary use of Article 356." Discuss the impact of this judgment on Centre-State relations and the practice of President's Rule. (10 marks, 150 words)

Key Points/Structure:

  • Introduction: Briefly mention Article 356 as potent central power & historical misuse before Bommai.
  • Bommai Judgment's Alteration of Federal Dynamics: Established justiciability, strict conditions for invocation, safeguards (dissolution after parliamentary approval, judicial power to restore).
  • Impact on Centre-State Relations and President's Rule Practice: Reduced frequency of imposition, enhanced state autonomy, strengthened federalism (promoted cooperative federalism), greater accountability of Union government.
  • Conclusion: Bommai re-calibrated power balance, ensuring Art 356 is last resort, strengthening India's federal structure.