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EMERGENCY PROVISIONS (Article 352, 356 & 360)

1. National Emergency (Article 352): This emergency can be declared by the President
when the security of India or any part of it is threatened by war or external aggression or
armed rebellion. The President can make such proclamation only on the written advice of the
Union Cabinet and not otherwise. For this proclamation actual happening of external
aggression or armed rebellion is not necessary and this can be imposed even if there is a
possibility of such happening.
Once the proclamation is issued by the President, it must be placed before each house
of the Parliament and approved within one month. The approval must be with absolute
majority of the total membership of the house as well as by 2/3rd majority of the members
present and voting, else the proclamation will expire.
If the Lok Sabha was dissolved or not in session at the time of proclamation of
emergency, then it must be approved by the Rajya Sabha within a month and later on by Lok
Sabha within one month of start of its next session. The emergency once declared and
approved by the Parliament, continues for 6 months and can be extended to an indefinite
period with parliamentary approval every six months. It can be revoked by the President at
any time if the situation improves. Alternatively, the Lok Sabha by simple majority can also
pass a resolution for its dis-continuance and the emergency must be revoked immediately.
With the proclamation of National Emergency, the Centre becomes all powerful and
can give executive directions to states on any matter, can make law or brings ordinances on
state subjects also and can modify the revenue sharing arrangement between centre and the
states. The life of Lok Sabha and the State assemblies may be extended beyond their normal
terms for one year at a time, but this extension cannot continue beyond six months after
revocation of emergency. Fundamental rights under Article 19 are automatically suspended
during the emergency and are revived automatically after its revocation. For other
fundamental rights (Except Fundamental Rights under article 20 & 21), the right to move
any court for their enforcement is suspended, for a period as mentioned in the proclamation.
2. Constitutional Emergency or President’s Rule (Article 356): The President can
issue a proclamation of imposing emergency in that state under Article 356 of the
constitution, when (1) state legislature is unable to elect its leader as CM; (2) Breakdown of
coalition and CM is in no position to prove majority; (3) no confidence motion is passed in
the assembly; (4) election is not conducted after completion of the term of the legislative
assembly; and (5) Governor sends a specific report to the President that constitutional
machinery has failed.
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Once the proclamation is issued by the President, it must be approved by both the
houses of the Parliament within two months of its declaration or else it ceases to operate. If
the Lok Sabha has been dissolved at the time of proclamation of emergency (or dissolved
within 2 months without approving it), then it must be approved by the Rajya Sabha within
two months and later on by Lok Sabha within one month of start of its first sitting after
reconstitution. This emergency once declared and approved by the Parliament, continues for
6 months and can be extended by six months at a time, but in no case beyond one year (Three
years in case of National emergency is already in force or Election Commission certifies that
elections cannot be conducted in the state concerned).
With the proclamation of President’s Rule, the President assumes all the powers and
functions of the state government (except that of the High Court) and can administer the state
through the Governor. He can declare that all the powers of the state legislature are to be
exercised by or under the authority of the Parliament. He can make necessary provisions for
giving effect to the objects of the proclamation. However, the satisfaction of the President in
invoking Article 356 is not beyond judicial review.
The President’s Rule can be revoked (1) if the proclamation is not presented to
Parliament within 2 months for approval; (2) if not approved by the Parliament within 2
months; (3) If not renewed after the expiry of 6 months from the date of initial proclamation;
(4) After expiry of over-all limit of 3 years (or 1 year) as the case may be; and (5) once the
President issues a proclamation of its revocation.
3. Financial Emergency (Article 360): The President can proclaim a Financial
Emergency if he is satisfied that a situation has emerged in which the financial stability or
credit of India or any of its part is in danger.
Once the proclamation is issued by the President, the provisions for its approval by
the parliament are exactly the same as in case of President’s Rule. This emergency once
declared and approved by the Parliament, continues unless it is revoked by the President.
The centre can give direction to any state on money matters to observe financial
propriety in view of stringent financial position of the nation. The President may ask central
and the state governments to reduce salary and allowances of all or any class of their
employees including Supreme Court and High Court Judges. He may direct the state
governments to reserve all money bills of the state, once passed by the state legislature, for
consideration by the President.
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MONEY BILL AND ORDINARY BILL

There are various types of Bills that are introduced in either houses of the Parliament
for discharge of the legislative functions of the Parliament. There are four types of bills
introduced for different purposes. They are-
(1) Ordinary Bill (Article 107 & 108) for any matter other than financial matters.
(2) Money Bill (Article 109 & 110) for financial matters like taxation, public expenditure
and audit etc.
(3) Financial Bill (Article 117 [1] and 117[3]) for financial matters other than covered under
Money Bill.
(4) Constitutional Amendment Bill. (Article 368) for constitutional amendments.

ORDINARY BILL: Article 107 and 108 of the Constitution deal with Ordinary Bill, which
is concerned with any matter other than financial subjects. This bill can be introduced both in
Lok Sabha as well as Rajya Sabha by a minister or a private member. The Ordinary bill can
be said to be passed only when it is passed by both the houses of the Parliament. If such bill
was introduced in Lok Sabha and was pending there or after its approval in Lok Sabha, it was
sent to Rajya Sabha and was pending there, it will lapse in case the Lok Sabha is dissolved
during such pendency. Similarly, an ordinary bill originated and approved in Rajya Sabha,
sent to Lok Sabha for approval and pending there will also lapse upon dissolution of Lok
Sabha.

MONEY BILL: Articles 109 and 110 of the Constitution deal with Money Bill, which is
concerned with financial matters like taxation (imposition/ abolition/ remission/ alteration/
regulation), public expenditure, borrowing of money by the Union Government, payment of
money into or withdrawal of money from Consolidated or Contingency Fund of India and
custody of these funds, appropriation of money out of Consolidated Fund of India,
declaration of any expenditure as expenditure chargeable to the Consolidated fund of India or
increasing the amount of any such expenditure, receipt of money on account of the
Consolidated fund of India or public account of India, audit of the accounts of the Union or
State and all matters incidental to these activities. This can only be introduced in the Lok
Sabha by a minister.

A tabular representation of differences between these two types of Bill is as below:

Sl. Ordinary Bill Money Bill
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No.
1 This can be introduced in any house of This can only be introduced in Lok Sabha
the Parliament, i.e. Lok Sabha or Rajya or Lower House of the Parliament.
Sabha.
2 A Minister or a Private member, both Only a Minister can introduce such bill.
can introduce such bills.
3 Ordinary bill can be introduced without Introduction of the Money Bill requires
the recommendation of the President. the recommendation of the President.
4 If this bill is originated in Lok Sabha, Money Bill can be send to Rajya Sabha
approval of the Speaker is not required only after the certification of Lok Sabha
for transmitting it to the Rajya Sabha. Speaker.
5 It can be amended or rejected by the Rajya Sabha cannot amend or reject a
Rajya Sabha. Money Bill. It can only return the Money
Bill to Lok Sabha with or without
recommendations, which may be accepted
or rejected by the Lok Sabha.
6 Rajya Sabha can detain these bills for a Rajya Sabha can detain these bills for a
maximum period of 6 months. maximum period of 14 Days.
7 It is sent to the President for his assent It is sent to the President for his assent
only when it is passed by both the only after approval from Lok Sabha.
houses of the Parliament.
8 In case of deadlock due to disagreement There is no chance of any disagreement
between the two houses, President can between the two houses, hence there is no
summon a Joint Sitting of both the provision of any Joint Sitting of both the
houses. houses.
9 It can be rejected, accepted or returned It can be rejected or approved, but cannot
for reconsideration by the President. be returned for reconsideration by the
President.
10 If it is introduced by a Minister, its If it is defeated in Lok Sabha, the entire
defeat in Lok Sabha may lead to council of ministers has to resign.
resignation of the Government.
11 It is covered under Article 107 and 108 It is covered under Article 109 and 110 of
of the Constitution. the Constitution.
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WHAT DO YOU UNDERSTAND BY JUDICIAL REVIEW? EFFECT OF ARTICLE

13 ON PRE AND POST CONSTITUTIONAL LAWS:
Judicial Review can be termed as a form of court proceeding where the lawfulness of
a decision or action taken by a public body is reviewed by the judge. He examines that
whether the law has been correctly applied with and if right procedures have been followed.
It may be understood as the powers exercised by the courts to examine the actions of the
legislature, executive and administrative wings of the government and to ensure that such
actions are in conformity with the provisions of the constitution. It is the interpretational and
observer role of the Indian judiciary. This is to ensure that the laws passed by the legislature
are in compliance with the provisions of the constitution. It also enforces constitutional
discipline over administrative actions and thus helps in maintaining the supremacy of the
constitution, protecting the rights of the people and prevents tyranny of executives. In other
words, it can be defined as ‘A courts authority to examine an executive or legislative act and
to invalidate that act if it is contrary to constitutional principles’.
In Indian Constitution, the power and responsibility of judicial review is entrusted
with the High Courts and the Supreme Court of India. Guarding the rights of public and
implementing the fundamental rights are the main objective of judicial review. If the
provisions of any law enacted are in conflict with the provisions of the constitution, using the
process of judicial review the Supreme Court and the High Courts are empowered to struck
down such provisions of the statute. In case of S.P. Sampath Kumar v. UOI (1987 SCR (3)
233), the court observed that judicial review was a basic and essential feature of the
Constitution. If the power of judicial review was taken away, the Constitution would cease to
be what it was.
Broadly speaking, judicial review in India comprises of three aspects as stated above;
judicial review of legislative action, judicial review of judicial decisions and judicial review
of administrative action. This power is important to ensure that the balance of power
envisaged by the Constitution is maintained and that the legislature and the executive do not
transgress the constitutional limitations in the discharge of their functions. In S. R. Bommai v.
UOI, the Supreme Court observed that in judicial review, a court is not concerned with the
merits of the decision under review, but with the manner in which the decision has been taken
or the order made.
Article 13 (1) of the constitution states that all laws in force in the territory of India
immediately before the commencement of this constitution, in so far as they are inconsistent
with the provisions of this part, shall, to the extent of such inconsistency, be void.
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Further Article 13(2) says that the state shall not make any law which takes away or
abridges the rights conferred by this part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
The effect of Article 13 on Pre-Constitutional laws is that if any part or provision of
any such pre-existing law is in conflict with part III of the Indian Constitution, that part/
provision will become void with immediate effect (from the date of commencement of the
constitution) to the extent of the conflict with constitution. Important thing to note here is that
this will not be retrospective but prospective. Therefore, the inconsistency /conflict as above
will not affect the transactions that had taken place before the commencement of the
constitution. (Lachmandas v. State of Bombay, A.I.R. 1952 S.C. 235)
The effect of Article 13 on Post- Constitutional Laws is that if any part of the law
so made contravenes any of the fundamental rights, the same shall be void from the date of
enactment of that law. The invalidity will not be from the date of commencement of the
constitution, because although the fundamental rights were there from the date of
commencement of the constitution, but the law in question was enacted at a later date. Here
it is important to note that if a law is unconstitutional for violation of fundamental rights, it
will remain unenforceable and not become void ab initio like a law declared unconstitutional
for lack of legislative power. It is merely eclipsed by the fundamental rights and therefore
remains in moribund condition or in hibernation in the shadow of the fundamental rights.
When the shadow is removed, the law will be operative from the date of its removal. ( Bhikaji
v, State of Madhya Pradesh A.I.R. 1955 S.C. 781) Thus the “Doctrine of Eclipse” says that
the law is only eclipsed by the shadow of unconstitutionality and as and when this shadow is
removed, the eclipse ceases and the law once again will become valid and operative.
Therefore, it can be concluded that in case of pre constitutional laws, if they are in
violation of Article 13, they will be void from the date of commencement of the constitution.
In case of post constitution laws, although courts have no power to stop the state from
enacting statutes that are in conflict with Article 13, but they can strike down the offending
provisions or the whole act, when it is brought before them under judicial scrutiny and such
decision will be effective from the date of the decision. In this regard Justice Krishna Iyer has
observed that “is plastic surgery permissible or demolition of the section inevitable?”
meaning thereby that when the unconstitutional provision is severable from the rest, only the
void part, and not the whole provision, should be struck down. (State of Kerala v. T. M. Peter
& Ors. (1980) 3 S.C.C. 554)
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GOLAKNATH CASE:
Case Name: I. C. Golaknath and Ors v. State of Punjab
Citation: (1967 AIR 1643)
Petitioner: I.C. Golaknath & ors
Respondent: State of Punjab
Date of Judgement: 27/02/1967
This case is one of the landmark judgments in the history of the Constitution of India.
In that case the most important issue deliberated and decided by a 11 Judge bench was
whether the Parliament of India has the power to make an amendment to the fundamental
rights guaranteed under Part III of the Indian Constitution or not. The Petitioners contended
that Parliament has no such power, but the respondents contended that the Constitution of
India is not a rigid constitution but a flexible one and that it can be amended by the
Parliament. The Supreme Court, with a 6:5 majority held that Parliament cannot amend the
fundamental rights guaranteed under Part III of the Constitution, reversing its earlier decision
in Shankari Prasad case of 1951, which said that the Parliament has all the powers to do so.

Brief background / introduction of the issue:

Immediately after the Constitution of India was inaugurated in 1950, a need was felt
to introduce agrarian land reforms throughout the country in order to achieve fair and
equitable distribution of agricultural land amongst the citizens. In pre-independence era, the
land holdings were concentrated in the hands of big landlords/ Zamindars etc. To recover the
surplus land from them, many state governments enacted Land Reforms Act and started
recovering surplus land (land holdings beyond the ceiling prescribed by these Acts) for
distribution to landless population. This action was challenged by the Landlords in Courts on
the ground that the action is in violation of their Fundamental Rights to acquire and hold
property and practice any profession as mentioned under Article 19 (f) and (g) of the
Constitution. To overcome these litigations, 1st amendment act to the Constitution was passed
by the Parliament in 1951 and Articles 31A and 31B along with Schedule 9 were inserted to
the Constitution. It provided that once any state act on land reform is placed in 9 th schedule, it
cannot be challenged in any court on the ground of violation of fundamental rights pertaining
to property, freedom of speech and equality before law. The said 1st amendment act was
upheld by the Supreme Court in Shankari Prasad v. UOI & State of Bihar case in 1951 by a 5
Judge Constitutional bench. By the 17th Amendment Act of 1964 more land acquisition laws
were placed in 9th schedule.
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Factual Background of the Golaknath Case:

Two brothers Henry and William Golaknath (the Petitioners) were owners of over 500
acres of farmland in Jalandhar, Punjab. After independence of India, the state government of
Punjab passed a Land Reform Act known as the “Punjab Security and Land Tenures Act,
1953” according to which it was provided that the Golaknath brothers can keep only 30-acres
of land each, and from the surplus holding beyond these 60 acres, a few acres would go to the
tenants, and the rest to be declared surplus to be taken over by the state government. The said
state act was also entered in the 9th Schedule of the Constitution and therefore any violation
of fundamental rights was not challengeable in Courts. However, the Petitioners challenged
this Act of 1953 of the state government before the courts and finally the matter was referred
to the Supreme Court of India in 1965 by way of a writ petition filed by them under article 32
of the Constitution, challenging the Punjab state act of 1953 on the grounds that the act is
violative of their Fundamental rights to acquire and hold property and practice any profession
as mentioned under Article 19 (f) and (g) of the Constitution. Also, the act is denying them
the right to equality before the protection of the law as mentioned under Article 14 of the
Constitution. They also requested the court to declare the 17th amendment (which had placed
the Punjab Act, 1953 in the 9th schedule of the Constitution) as ultra vires (beyond the
powers) to curtail the fundamental rights of citizens guaranteed under the Constitution.

Issue Involved:
The main issue involved in the case which came for pronouncement before the court
was that, “whether the parliament has the absolute power and the power to amend the
fundamental rights enshrined under the constitution or not”?

Arguments on behalf of the Petitioner:

That the Indian Constitution was given a permanent character by the constituent
assembly and no one is vested with that absolute power to amend or try to make amendments
in the Constitution.

It was argued before the court that the term ‘amendment’ in question only implies a
change in accordance with the basic structure of the Indian Constitution but not inserting
altogether a new idea.

Further, it was contended that the fundamental rights guaranteed under part III are
soul of the constitution and they cannot be taken away by the parliament. Fundamental rights
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are the most essential and integral part of the Indian Constitution, which if taken or abridged,
will leave our constitution like a body without a soul.

It was also argued by the petitioner that the amendment provision mentioned in
Article 368 of our constitution only defines the procedure for amending the constitution and it
does not grant Parliament power to make an amendment to the Constitution itself.

It was further argued before the court that Article 13(3) (a) in its definition of ‘law’
covers all types of law i.e. statutory and constitutional etc. Also, by virtue of Article 13(2)
provisions, the state can’t make any law that takes away the rights mentioned under Part III
and therefore, any constitutional amendment which takes away the Fundamental rights should
be held unconstitutional and void by the court.

Arguments on behalf of the Respondents:

The respondent contended before the Apex court that a constitutional amendment is a
result of the exercise of its sovereign power. This exercise of sovereign power is different
from the legislative power which parliament exercises to pass any ordinance or make law.

They argued that the object of bringing an amendment to the Constitution is to change
the laws of the country as it deems fit for society. They argued that if there won’t be any
provision for amendment then, it would make the constitution a rigid and non-flexible one,
which was never the intention of the constituent assembly.

The Respondent also argued that there is no such concept of the basic structure or
non-basic structure in the provisions of the Indian Constitution.

They further contended that all the constitutional provisions are equal and are of equal
importance.

Decision of the Court:

In this case, at that time in 1967, the Supreme Court had the largest constitutional
bench ever of 11 Judges. The ratio of the judgment given was in 6:5 where the majority of the
bench was in favour of the arguments of the petitioners. The majority opinion of Judges in
this case shows scepticism in the minds of judges about the then course of administration of
the Indian parliament. Since 1950 the parliament has used Article 368 of the Constitution
numerous times and has passed a number of legislations that had in one or another way
violated the fundamental rights of the citizens, as guaranteed under part III of the
constitution. The majority of the bench in this case was of the view that if the present position
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(status prior to this case) remained the law of the land, there is every possibility that the
fundamental rights adopted by our constituent assembly will be changed through a series of
amendments in near future.

Keeping in view of this problem of such a casual amendment to Part III and fearing
that if this continues to persist, this may result in a change of status of Democratic India into
totalitarian India, the majority of Judges in this case overruled the earlier decision of Supreme
Court given in the Shankari Prasad and Sajjan Singh cases, where it was held that the
Parliament was vested with the innumerous power to bring an amendment to even Part III of
the Indian Constitution.

It was finally held in the case that the parliament has no right to amend the
fundamental rights. The fundamental rights being the most essential right of citizens are to be
kept beyond the reach of parliamentary legislation. Therefore, to save the democracy of the
country from autocratic actions of the parliament, the court held that parliament can’t amend
the fundamental rights enshrined under Part III of the Constitution of India. It was observed
that fundamental rights are the same as natural rights and are of significant importance for the
growth and development of a human being.

Conclusion
The Golaknath case is of prime importance in preserving the significance of the
Fundamental rights safeguarded by the constitutional provisions, wherein the Apex Court
held that Parliament cannot amend the fundamental rights However, this judgment is not free
from flaw, and one of the biggest criticisms of the case revolves around the fact that the
majority bench granted rigidity to the Indian Constitution. To nullify the effect of this
landmark judgment, the central government brought 24th amendment to the Constitution in
1971 empowering parliament to amend any part of the constitution including Part III on
fundamental rights.

Later in 1973 a 13 Judge Constitutional Bench of the Supreme Court in case of

Kesavananda Bharti V. State of Kerala in 1973 to some extend modified this Golaknath
judgement and observed that the parliament can modify even the Fundamental Rights, but
without disturbing the Basic Structure of the constitution. It was also observed that the
Article 368 of the Constitution provides both the procedure of amendment as well as the
constitutional power to amend the Constitution to the Parliament.

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