CONSTITUTION OF INDIA, LAW AND

ENGINEERING
SUBJECT CODE- KNC 501

Prem Malhotra
AEC Agra
 What is Constitution?
• The constitution is the supreme law of the
land.
• All other laws have to conform to the
constitution.
• The constitution contains laws concerning the
Government and its relations with the people.

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AEC Agra
Constitution is concerned with 2 main
aspects-
• The relations between the different level of
Government.
• The relation between the Government and
the Citizens.

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AEC Agra
 Role of constitution in relationship
between the Government and its people

CONSTITUTION

GOVERNMENT THE PEOPLE

LEGISLATIVE

JUDICIARY

EXECUTIVE

Prem Malhotra
AEC Agra
Technical definition of Constitution
• A constitution is a set of fundamental principles
or established precedents according to which a
state or other organization governed.
• These rules together make up, ie. Constitute,
what the entity is.
• When these principles are written down into a
single collection or set of legal documents, those
documents may be said to comprise a written
constitution.
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AEC Agra
 Another technical definition
• The document containing laws and rules
which determine and describe
• The form of Government,
• The relationship between the citizens and the
Government is called a Constitution.

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AEC Agra
 An observation by Patrick Henry
• “The Constitution is not an instrument for the
Government to restrain the people, it is an
instrument for the people to restrain the
Government.”

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AEC Agra
 Historical Background of the Constituent
Assembly of India
• The Constituent Assembly of India was elected to
write the Constitution of India.
• An idea for a Constituent Assembly was proposed in
1934 by M. N. Roy, a pioneer of the Communist
movement in India and an advocate of radical
democracy.
• It became an official demand of the Indian National
Congress in 1935,
• C. Rajagopalachari voiced the demand for a
Constituent Assembly on 15 November 1939 based on
adult franchise, and was accepted by the British in
August 1940.

Prem Malhotra
AEC Agra
 Historical Background of the
Constituent Assembly of India
• On 8 August 1940, a statement was made by Viceroy Lord
Linlithgow about the expansion of the Governor-General's Executive
Council and the establishment of a War Advisory Council. This offer,
known as the August Offer, included giving full weight to minority opinions
and allowing Indians to draft their own constitution.
• Under the Cabinet Mission Plan of 1946, elections were held for the first
time for the Constituent Assembly. The Constitution of India was drafted
by the Constituent Assembly, and it was implemented under the Cabinet
Mission Plan on 16 May 1946.
• The members of the Constituent Assembly were elected by the provincial
assemblies by a single, transferable-vote system of proportional
representation. The total membership of the Constituent Assembly was
389 of which 292 were representatives of the states, 93 represented
the princely states and four were from the chief commissioner provinces
of Delhi, Ajmer-Merwara, Coorg and British Baluchistan.

Prem Malhotra
AEC Agra
 Historical Background of the
Constituent Assembly of India
• The elections for the 296 seats assigned to the British Indian
provinces were completed by August 1946.
• Congress won 208 seats, and the Muslim League 73. After this
election, the Muslim League refused to cooperate with the
Congress, and the political situation deteriorated.
• Hindu-Muslim riots began, and the Muslim League demanded a
separate constituent assembly for Muslims in India.
• On 3 June 1947 Lord Mountbatten, the last British Governor-
General of India, announced his intention to scrap the Cabinet
Mission Plan; this culminated in the Indian Independence Act
1947 and the separate nations of India and Pakistan.
• The Indian Independence Act was passed on 18 July 1947 and,
although it was earlier declared that India would become
independent in June 1948, this event led to independence on 15
August 1947.

Prem Malhotra
AEC Agra
 Historical Background of the
Constituent Assembly of India
• The Constituent Assembly met for the first time on 9
December 1946, reassembling on 14 August 1947 as a
sovereign body and successor to the British parliament's
authority in India. As a result of the partition, under the
Mountbatten plan, a separate Constituent Assembly of
Pakistan was established on 3 June 1947.
• The representatives of the areas incorporated into Pakistan
ceased to be members of the Constituent Assembly of
India.
• New elections were held for the West Punjab and East
Bengal (which became part of Pakistan, although East
Bengal later seceded to become Bangladesh); the
membership of the Constituent Assembly was 299 after the
reorganization, and it met on 31 December 1947.
Prem Malhotra
AEC Agra
 Historical Background of the
Constituent Assembly of India
• The constitution was drafted by 299 delegates from
different caste ,region religion ,gender etc. These
delegates sat over 114 days spread over 3 years (2
years 11 months and 17days to be precise) and
discussed what the constitution should contain and
what laws should be included.
• The Drafting Committee of the Constitution was
chaired by Dr. B.R Ambedkar.
• B. R. Ambedkar was a wise constitutional expert, he
had studied the constitutions of about 60 countries.
Ambedkar is recognised as the "Father of the
Constitution of India".

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AEC Agra
 Time Line of Formation of
"The Constitution of India”
• 6 December 1946: Formation of the Constitution Assembly. (in accordance
with French practice.)
• 9 December 1946: The first meeting was held in the constitution hall (now
the Central Hall of Parliament House). 1st person to address - J. B.
Kripalani. Temporary president Appointed - Sachchidananda
Sinha. (Demanding a separate state, the Muslim League boycotted the
meeting.)
• 11 December 1946: President Appointed - Rajendra Prasad, vice-
Chairman Harendra Coomar Mookerjee and constitutional legal adviser B.
N. Rau (initially 389 members in total, which declined to 299
after partition. out of 389 - 292 were from govt. province, 4 from chief
commissioner province and 93 from princely states)

Prem Malhotra
AEC Agra
 Time Line of Formation of
"The Constitution of India”
• 13 December 1946: An 'Objective Resolution' was presented by Jawaharlal
Nehru, laying down the underlying principles of the constitution. which later
became the Preamble of the constitution.
• 22 January 1947: Objective resolution unanimously adopted.
• 22 July 1947: National flag adopted.
• 15 August 1947: Achieved independence. India Split into Dominion of
India and Dominion of Pakistan.
• 29 August 1947: Drafting Committee appointed with Dr. B. R. Ambedkar as the
Chairman.other 6 members of committee was : K.M.Munshi, Muhammed
Saadulah, Alladi Krishnaswamy Iyer, Gopala Swami Ayyangar, N. Madhava Rao(He
replaced B.L. Mitter who resigned due to ill-health), T. T. Krishnamachari(He
replaced D.P. Khaitan who died in 1948),
• 16 July 1948: Along with Harendra Coomar Mookerjee V. T. Krishnamachari was
also elected as second vice-president of Constituent Assembly.

Prem Malhotra
AEC Agra
 Time Line of Formation of
"The Constitution of India”
• 26 November 1949: 'Constitution of India' passed and
adopted by the assembly.
• 24 January 1950: Last meeting of Constituent
Assembly. 'constitution of india' all signed and
accepted. (with 395 Articles, 8 Schedules, 22 Parts)
• 26 January 1950: 'Constitution of India' came in to
force. (It Took 2 Years, 11 Months, 18 Days - at a total
expenditure of ₹6.4 million to finish)
• Ganesh Vasudev Mavalankar was the first speaker
when meeting the assembly of Lok Sabha, after turning
republic.
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AEC Agra
 Government of India Act 1935
• The Government of Indian Act was passed by
the British parliament in 2nd August 1935 and
came into effect in 1st April 1937. It was based
on a report by a Joint Select Committee, led
by Lord Linlithgow, set up the two houses of
the British parliament.

Prem Malhotra
AEC Agra
 Government of India Act 1935
• The Act was written in a legal style, organised
around 11 'Parts' and 10 'Schedules'. Each part
was further divided into chapters.
• It is considered to be one of the longest pieces
of legislation passed by the British parliament
- parliamentary debates around the Act
involved 2000 speeches.

Prem Malhotra
AEC Agra
 key features of the Act were
• The creation of a ‘Federation of India’ that consisted of two levels: a
central executive and parliament, and below it, provinces and
princely states.
• It discarded the ‘dyarchy’ system at the provincial level and allowed
for the emergence of popularly elected provincial legislatures.
Dyarchy was introduced at the central level, key subjects like
defence and foreign affairs were under the direct control of the
Governor General.
• A federal court was established.
• The franchise was expanded to 14% of the population from 3%.
• Separate electorates were provided for Muslims, Sikhs and others,
but not to Depressed Classes.
• Governor enjoyed critical emergency powers.

Prem Malhotra
AEC Agra
 Indian Independence Act of 1947
• The 1947 Indian Independence Act (1947 c. 30 (10 & 11.
Geo. 6.)) is an Act of the Parliament of the United
Kingdom that partitioned British India into the two new
independent dominions of India and Pakistan. The Act
received the Royal Assent on 18 July 1947 and thus India
and Pakistan, comprising West (modern day Pakistan) and
East (modern day Bangladesh) regions, came into being on
15 August.
• The legislature representatives of the Indian National
Congress, the Muslim League, and the Sikh community
came to an agreement with Lord Mountbatten on what has
come to be known as the 3 June Plan or Mountbatten Plan.
This plan was the last plan for independence.

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 Indian Independence Act of 1947
TITLE
• An Act to make provision for the setting up in
India of two independent Dominions, to
substitute other provisions for certain provisions
of the Government of India Act, 1947
• Date :18th July 1947
• Catalogue number :Parliamentary Archives,
HL/PO/PU/1/1947/10&11G6c30

Prem Malhotra
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 Indian Independence Act of 1947
• The Indian Independence Act was passed in 1947.
• The act created two new independent dominions; India and Pakistan.
• Pakistan was split into Pakistan and East Pakistan which is now
Bangladesh.
• The Bengal and Punjab provinces were partitioned between the two new
countries. These dominions separated the Muslim, Hindu and Sikh
population and caused the biggest forced migration which has ever
happened that was not the result of war or famine.
• The Act repealed the use of ‘Emperor of India’ as a title for the British
Crown and ended all existing treaties with the princely states.
• Lord Mountbatten continued as Governor-General and Jawaharlal Nehru
was appointed India’s first Prime Minister, Muhammad Ali Jinnah became
Pakistan’s Governor-General and Liaquat Ali Khan its Prime Minster.
• The 15th August 1947 has since become celebrated as India’ and
Pakistan’s Independence Day. Prem Malhotra
AEC Agra
 Enforcement of the Constitution
• The Constitution of India came into force on 26
January, 1950. On that day, the Assembly ceased to
exist, transforming itself into the Provisional
Parliament of India until a new Parliament was
constituted in 1952.
• • The date of 26th January was chosen to
commemorate the historical day as on this day in 1930
that Purna Swaraj day was celebrated and the tricolour
flag of Indian independence was unfurled following the
resolution of the Lahore
Session (December 1929) of the Indian National
Congress .

Prem Malhotra
AEC Agra
 Enforcement of the Constitution
• Some provisions of the Constitution pertaining to
citizenship, elections, provisional parliament, temporary
and transitional provisions, and short title contained in
Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391,
392 and 393 came into force on November 26, 1949 itself.
• • The remaining provisions (the major part) of the
Constitution came into force on January 26, 1950. This day
is referred to in the Constitution as the ‘date of its
commencement’ and celebrated as the Republic Day.
• • With the commencement of the Constitution, the Indian
Independence Act of 1947 and the Government of India Act
of 1935, with all enactments amending or supplementing
the latter Act, were repealed. The Abolition of Privy Council
Jurisdiction Act (1949) was however continued.
Prem Malhotra
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 The Preamble of the Constitution
• The Preamble to the Constitution of India is a brief
introductory statement that sets out guidelines, which
guide the people of the nation, and to present the
principles of the Constitution, and to indicate the source
from which the document derives its authority, and
meaning.
• It reflects the hopes and aspirations of the people. The
preamble can be referred to as the preface which highlights
the entire Constitution.
• It was adopted on 26 November 1949 by the Constituent
Assembly and came into effect on 26 January 1950,
celebrated as the Republic day in India.
• Preamble was made in 1947 but adopted in 1949.

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 The Preamble of the Constitution
• The preamble is based on the objectives
of Objectives which was drafted and moved in
the Constituent Assembly by Jawaharlal
Nehru on 13 December 1946

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY
assuring the dignity of the individual and the unity and
integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of
November 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.

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Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• The preamble was amended only once on 18
December 1976, with most of the opposition
being jailed during the Emergency in India,
the Indira Gandhi government pushed through
several changes in the Forty-second
Amendment of the constitution.
• Through this amendment, the words "socialist"
and "secular" were added between the words
"Sovereign" and "democratic" and the words
"unity of the Nation" were changed to "unity and
integrity of the Nation".

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Sovereign -Sovereign means the independent authority of
a State. It means that it has the power to legislate on any
subject; and that it is not subject to the control of any other
State / external power.
• Socialist -The term socialist used here refers to democratic
socialism, i.e. achievement of socialist goals through
democratic, evolutionary and non-violent means.
• Essentially, it means that (since wealth is generated
socially) wealth should be shared equally by society
through distributive justice, not concentrated in the hands
of few, and that the government should regulate the
ownership of land and industry to reduce socio-economic
inequalities.

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Secular-Secular means that the relationship between
the government and religious groups are determined
according to constitution and law.
• There is no difference of
religion i.e. Hinduism, Buddhism, Jainism, Sikhism, Chri
stianity and Islam are equally respected and moreover,
there is no state religion. All the citizens of India are
allowed to profess, practice and propagate.
• Alexander Owics has written, "Secularism is a part of
the basic structure of the Indian Constitution and it
means equal freedom and respect for all religions."

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Democratic -The people of India elect their
governments by a system of universal adult
franchise, popularly known as "one person
one vote".
• Every citizen of India 18 years of age or older
and not otherwise debarred by law is entitled
to vote. The word democratic refers not only
to political democracy but also to social and
economic democracy.

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Republic In a republican form of government, the head of
state is elected and not a hereditary monarch.
• Thus, this word denotes a government where no one holds
public power as proprietary right.
• As opposed to a monarchy, in which the head of state is
appointed on a hereditary basis for life or at least until
abdication, a democratic republic is an entity in which the
head of state is elected, directly or indirectly, for a fixed
tenure.
• Thus, India has a President who is elected and has a fixed
term of office.There's an absence of any privileged class
and hence all public offices being opened to every citizen
without any discrimination.

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Justice Justice stands for rule of law, absence
of arbitrariness and a system of equal rights,
freedom and opportunities for all in a society.
• India seeks social, economic and
political justice to ensure equality to its
citizens.

Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Liberty The idea of Liberty refers to the freedom
on the activities of Indian nationals. This
establishes that there are no unreasonable
restrictions on Indian citizens in term of what
they think, their manner of expressions and the
way they wish to follow up their thoughts in
action.
• However, liberty does not mean freedom to do
anything, and it must be exercised within the
constitutional limits.
Prem Malhotra
AEC Agra
 The Preamble of the Constitution
• Fraternity This refers to a feeling of
brotherhood and a sense of belonging with
the country among its people. It embraces
psychological as well as territorial dimensions
of National Integration. It leaves no room for
regionalism, communalism, casteism etc.,
which hinders the unity of the State.

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 Fundamental Rights
• The Fundamental Rights are defined as the
basic human rights of all citizens. These rights,
defined in Part III of the Constitution, applied
irrespective of race, place of birth,
religion, caste, creed, or gender. They are
enforceable by the courts, subject to specific
restrictions.

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AEC Agra
 Fundamental Rights
• The Fundamental Rights, embodied in Part III of the
Constitution, guarantee civil rights to all Indians, and
prevent the State from encroaching an individual's
liberty while simultaneously placing upon it an
obligation to protect the citizens' rights from
encroachment by society.
• Seven fundamental rights were originally provided by
the Constitution – the right to equality, right to
freedom, right against exploitation, right to freedom of
religion, cultural and educational rights, right to
property and right to constitutional remedies.
However, the right to property was removed from Part
III of the Constitution by the 44th Amendment in 1978.
Prem Malhotra
AEC Agra
 Fundamental Duties

• The fundamental duties of citizens were added to the

constitution by the 42nd Amendment in 1976, upon
the recommendations of the Swaran Singh Committee
that was constituted by the government earlier that
year.
• Originally ten in number, the fundamental duties were
increased to eleven by the 86th Amendment in 2002,
which added a duty on every parent or guardian to
ensure that their child or ward was provided
opportunities for education between the ages of six
and fourteen years.

Prem Malhotra
AEC Agra
 Fundamental Duties

The fundamental duties noted in the constitution are as follows:

It shall be the duty of every citizen of India —
• To abide by the Constitution and respect its ideals and institutions,
the National Flag and the National Anthem;
• To cherish and follow the noble ideals which inspired our national
struggle for freedom;
• To uphold and protect the sovereignty, unity and integrity of India;
• To defend the country and render national service when called
upon to do so;
• To promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
regional or sectional diversities; to renounce practices derogatory
to the dignity of women;

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 Fundamental Duties

• To value and preserve the rich heritage of our composite culture;

• To protect and improve the natural environment including forests,
lakes, rivers, wildlife and to have compassion for living creatures;
• To develop the scientific temper, humanism and the spirit of inquiry
and reform;
• To safeguard public property and to abjure violence;
• To strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels
of endeavour and achievement;
• Who is a parent or guardian, to provide opportunities for education
to his child, or as the case may be, ward between the age of six to
fourteen years.

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AEC Agra
 Directive Principles of State Policy
• The Directive Principles of State Policy, embodied in Part IV of the
Constitution, are directions given to the state to guide the
establishment of an economic and social democracy, as proposed
by the Preamble.
• They set forth the humanitarian and socialist instructions that were
the aim of social revolution envisaged in India by the Constituent
Assembly.
• The state is expected to keep these principles in mind while framing
laws and policies, even though they are non-justiciable in nature.
The Directive Principles may be classified under the following
categories:
• ideals that the state ought to strive towards achieving;
• directions for the exercise of legislative and executive power;
• and rights of the citizens which the State must aim towards
securing.
Prem Malhotra
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 Parliamentary System
• Parliamentary system, democratic form of government in which
the party (or a coalition of parties) with the greatest representation
in the parliament (legislature) forms the government, its leader
becoming prime minister or chancellor.
• Executive functions are exercised by members of the parliament
appointed by the prime minister to the cabinet.
• The parties in the minority serve in opposition to the majority and
have the duty to challenge it regularly.
• Prime ministers may be removed from power whenever they lose
the confidence of a majority of the ruling party or of the
parliament.
• The parliamentary system originated in Britain and was adopted in
several of its former colonies.

Prem Malhotra
AEC Agra
 Federal System
• A federal system of government is one that
divides the powers of government between
the national (federal) government and state
and local governments.
• The Constitution of the United States
established the federal system, also known as
federalism

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 Federal System
• Federalism in India refers to relations between the
Centre and states of Union of India.
• The Constitution of India establishes structure of the
Indian government. Part XI of the Indian
constitution specifies the distribution of legislative,
administrative and executive powers between the
union government and the States of India.
• The legislative powers are categorised under a Union
List, a State List and a Concurrent List, representing,
respectively, the powers conferred upon the Union
government, those conferred upon the State
governments and powers shared among them.

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AEC Agra
 Centre State Relations
• The Constitution of India provides a dual
polity with a clear division of powers between
the Union and the States, each being supreme
within the sphere allotted to it.
• The Indian federation is not the result of an
agreement between independent units, and
the units of Indian federation cannot leave the
federation.

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 Centre State Relations
• The relations between centre and state are
divides as:
1. Legislative relations
2. Administrative relations
3. Financial relations

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 Centre State Relations
• 1. Centre State Legislative Relations
Articles 245 to 255 in Part XI of the Constitution deal
with the legislative relations between the Centre and
the State.
Extent of laws made by Parliament and by the
Legislatures of States.
• The Parliament can make laws for the whole or any
part of the territory of India. Territory of India includes
the states, UTs and any other area for the time being
included in the territory of India. Whereas, the state
legislature can make laws for whole or any part of
state.
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 Centre State Relations
• The Constitution divides legislative authority
between the Union and the States in three lists-
• the Union List, the State List and the Concurrent
List.
• The Union list consists of 99 items. The Union
Parliament has exclusive authority to frame laws
on subjects enumerated in the list. These include
foreign affairs, defence, armed forces,
communications, posts and telegraph, foreign
trade etc.
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 Centre State Relations
• The State list consists of 61 subjects on which
ordinarily the States alone can make laws.
• These include public order, police, administration
of justice, prison, local governments, agriculture
etc.
• The Concurrent list comprises of 52 items
including criminal and civil procedure, marriage
and divorce, economic and special planning trade
unions, electricity, newspapers, books, education,
population control and family planning etc
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 Centre State Relations
• 2. Centre State Administrative Relations
The administrative jurisdiction of the Union
and the State Governments extends to the
subjects in the Union list and State list
respectively.
• The Constitution thus defines the clauses that
deal with the administrative relations
between Centre and States.

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 Centre State Relations
• . Centre State Financial Relations:
Indian Constitution has made elaborate
provisions, relating to the distribution of the
taxes as well as non-tax revenues and the
power of borrowing, supplemented by
provisions for grants-in-aid by the Union to
the States.
• Article 268 to 293 deals with the provisions of
financial relations between Centre and States.

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 Amendment of the Constitutional
Powers and Procedure
• Part XX of the Constitution of India has only one
article that is Article 368 that deals with the
amendment of the Constitution.
• As per this article, Parliament may add, amend
or repeal any provision of the constitution as per
the procedure laid down for this purpose.
• However, in the Kesavanand Bharati Case 1973,
the Supreme Court has ruled that the Parliament
cannot amend those provisions which constitute
the Basic Structure of the Constitution.
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 Amendment of the Constitutional
Powers and Procedure
Procedure for Amendment
• A constitution amendment bill can be introduced in any house of
the parliament. A bill for the purpose of amendment of
constitution can NOT be introduced in any state legislature.
• The Ordinance making power of the President can NOT be used
to amend the Constitution.
• A constitution amendment bill can be introduced both as a
government bill or a private member bill. However, if it’s a Private
Member, then it has to be examined in the first instance and
recommended for introduction by the Committee on Private
Members’ Bills and Resolutions before it is included for introduction
in the List of Business.
• Prior recommendation of President is NOT needed in introducing the
constitution amendment bills.

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 Amendment of the Constitutional
Powers and Procedure
• Constitution Amendment Bills are not treated as
Money Bills or Financial Bills even if they have
some provisions related to them.
• A constitution amendment bill must pass in both
the houses separately by absolute + special
majority {absolute → more than 50% of strength;
special → 2/3 of present and voting}.
• If there is a disagreement between the two
houses on a constitution amendment bill, there is
NO provision of joint sitting to resolve the
deadlock.
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AEC Agra
 Amendment of the Constitutional
Powers and Procedure
• The bills which result in some changes in the constitution
but passed by simple majority are not deemed to be
Constitution Amendments.
• If a bill seeks to amend the federal provisions of the
Constitution, it must also be ratified by the legislatures of
half of the states by a simple majority.
• Once the bill is passed in both houses, the bill is sent to
president for approval. The 24th Amendment Act of 1971
had made it obligatory for the President to give his assent
to a constitutional Amendment Bill. Thus, for a Constitution
amendment bill, a President can neither withhold his
assent not return the bill for reconsideration.

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 Emergency Provisions
• A state of emergency in India refers to a period of governance that can be
proclaimed by the President of India during certain crisis situations. Under
the advice of the cabinet of ministers, the President can overrule many
provisions of the Constitution, which guarantees Fundamental Rights to
the citizens of India.
• The emergency provisions are contained in Part XVIII of the Constitution
of India, from Article 352 to 360. These provisions enable the Central
government to meet any abnormal situation effectively.
• The rationality behind the incorporation is to safeguard the sovereignty,
unity, integrity and security of the country, the democratic political system
and the Constitution.
• The Constitution stipulates three types of emergencies-

– National Emergency
– Constitutional Emergency
– Financial Emergency

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National emergency under Article 352

• National emergency can be declared on the basis of war, external

aggression or armed rebellion. The Constitution employs the
expression ‘proclamation of emergency’ to denote an emergency of
this type.
• Grounds of declaration:

– Under Article 352, the president can declare a national emergency

when the security of India or a part of it is threatened by war or
external aggression or armed rebellion.
– The President can declare a national emergency even before the
actual occurrence of war or armed rebellion or external aggression
– When a national emergency is declared on the grounds of ‘war’ or
‘external aggression’, it is known as ‘External Emergency’. On the
other hand, when it is declared on the grounds of ‘armed rebellion’, it
is known as ‘Internal Emergency’.

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 National emergency under Article 352

• Example:

– If India and Pakistan openly accept that they will use armed forces against
each other is simply war.
– If there is no formal declaration that there will be armed forces used against a
country is External aggression.
– And if because of these two grounds an emergency is proclaimed as
an external emergency.
Facts
• The 38th Amendment Act of 1975 made the declaration of National
Emergency immune to judicial review. But, this provision was
subsequently deleted by the 44th Amendment Act of 1978.
• In Minerva Mills case (1980), the Supreme Court held that National
Emergency can be challenged in the court on the ground of malafide or
that the declaration was based on wholly extraneous and irrelevant facts.
•

Prem Malhotra
AEC Agra
 National emergency under Article 352

Parliamentary approval and duration

The proclamation of emergency must be approved by both the houses of
parliament within one month from the date of its issue.
– However, if the proclamation of emergency is issued at a time when
the Lok Sabha has been dissolved or the dissolution takes place during
the period of one month without approving the proclamation, then
the proclamation survives until 30 days from the first sitting of Lok
Sabha after its reconstitution, provided the Rajya Sabha has in the
meantime approved it.
– If approved by both the houses, the Emergency continues for 6
months and can be extended to an indefinite period with an approval
of the Parliament for every six months.
– Every resolution approving the proclamation of emergency or its
continuance must be passed by either House of Parliament by a
special majority.
Prem Malhotra
AEC Agra
• Effects of national emergency
A proclamation of Emergency has drastic and wide-ranging effects
on the political system. These consequences can be grouped into 3
categories:

– Effects on the centre-state relations: While a proclamation of

Emergency is in force, the normal fabric of the Centre-State relations
undergoes a basic change. this can be studied under three heads:

• Executive: Centre becomes entitled to give executive directions to a state on

‘any’ matter
• Legislative: The parliament becomes empowered to make laws on any subject
mentioned in the state list, the president can issue ordinances on State
subjects also, if the parliament is not in session. The laws made on state
subjects by the parliament become inoperative six months after the
emergency has ceased to be in operation.
• Financial: the president can modify the constitutional distribution of revenues
between the centre and the states.

Prem Malhotra
AEC Agra
• Effect on the life of the Lok Sabha and State
Assembly:
While a proclamation of National Emergency is in
operation, the life of the Lok Sabha may be extended
beyond the normal term for one year at a time.
However, this extension cannot continue beyond a
period of six months after the emergency has ceased
to operate.
• Similarly, the Parliament may extend the normal tenure
of a state Legislative Assembly by one year each time
during a national emergency, subject to a maximum
period of six months after the emergency has ceased
to operate.
Prem Malhotra
AEC Agra
 National emergency under Article 352

• Effect on fundamental rights: Articles 358 and 359 describes the effect of
a National Emergency on the Fundamental Rights. These two provisions
are explained below:
Suspension of Fundamental rights under Article 19: According to Article
358, when a proclamation of National Emergency is made, the six
fundamental rights under article 19 are automatically suspended. Article
19 is automatically revived after the expiry of the emergency.

– The 44th Amendment Act laid out that Article 19 can only be suspended when
the National Emergency is laid on the grounds of war or external aggression
and not in the case of armed rebellion.
• Suspension of other Fundamental Rights: Under Article 359, the
President is authorised to suspend, by order, the right to move any court
for the enforcement of Fundamental Rights during a National Emergency.
Thus, remedial measures are suspended and not the Fundamental
Rights.

Prem Malhotra
AEC Agra
National emergency under Article 352

• The suspension of enforcement relates to only those

Fundamental Rights that are specified in the
Presidential Order.
• The suspension could be for the period during the
operation of emergency or for a shorter period.
• The Order should be laid before each House of
Parliament for approval.
• The 44 Amendment Act mandates that the President
cannot suspend the right to move the court for the
enforcement of Fundamental Rights guaranteed by
Article 20 and 21.
Prem Malhotra
AEC Agra
National emergency under Article 352

• Declarations made so far: This type of emergency has been

proclaimed three times so far- in 1962, 1971 and 1975
The first proclamation of National Emergency was issued in
October 1962 on account of Chinese aggression in the NEFA
and was in force till January 1968.
• The second proclamation of National Emergency was made
in December 1971 in the wake of the attack by Pakistan.
• Even when the emergency was in operation, the third
proclamation of National Emergency was made in June
1975. Both the second and the third proclamations were
revoked in March 1977

Prem Malhotra
AEC Agra
 President’s Rule

• Article 355 imposes a duty on the centre to

ensure that the government of every state is
carried on in accordance with the provisions of
the constitution.
• It is this duty in the performance of which the
centre takes over the government of a state
under Article 356 in case of failure of
constitutional machinery in a state.
• This is popularly known as ‘President’s Rule’.

Prem Malhotra
AEC Agra
 President’s Rule

• Grounds of imposition: the president’s ruler can be

proclaimed under Article 356 on two grounds:

– Article 356 empowers the President to issue a proclamation if

he is satisfied that a situation has arisen in which the
government of a state cannot be carried on in accordance with
the provisions of the constitution.
– Article 365 says that whenever a state fails to comply with or to
give effect to any direction from the centre, it will be lawful for
the President to hold that a situation has arisen in which the
government of the state cannot be carried on in accordance
with the provisions of the constitution.
•

Prem Malhotra
AEC Agra
 President’s Rule

Parliamentary approval and duration:

• A proclamation imposing president’s rule must be
approved by both the houses of parliament within two
months from the date of its issue.
However, if the proclamation of President’s rule is
issued at a time when the Lok Sabha has been
dissolved or the dissolution of the Lok Sabha takes
place during the period of two months without
approving the proclamation, then the proclamation
survives until 30 days from the first sitting of the Lok
Sabha after its reconstitution, provided that the Rajya
Sabha approves it in the meantime

Prem Malhotra
AEC Agra
 President’s Rule

Consequences of the President’s rule:

• The President acquires the following extraordinary
powers when the President’s rule is imposed in a state:
He can take up the functions of the state government
and powers vested in the governor or any other
executive authority in the state.
• He can declare that the powers of the state legislature
are to be exercised by the parliament.
• He can take all other necessary steps including the
suspension of the constitutional provisions relating to
any body or authority in the state.
Prem Malhotra
AEC Agra
 President’s Rule

• Scope of judicial review: The 38th Amendment

act of 1975 made the satisfaction of the
President in invoking Article 356 final and
conclusive which would not be challenged in
any court on any ground.
But, this provision was subsequently deleted
by the 44th Amendment Act of 1978 implying
that the satisfaction of the President is not
beyond judicial review.
Prem Malhotra
AEC Agra
 Financial Emergency
• Grounds of declaration: Article 360 empowers the president to
proclaim a Financial Emergency if he is satisfied that a situation has
arisen due to which the financial stability or credit of India or any
part of its territory is threatened.
• Parliamentary approval and duration: A proclamation declaring
financial emergency must be approved by both the Houses of
Parliament within two months from the date of its issue.

– However, if the proclamation of Financial Emergency is issued at a

time when the Lok Sabha has been dissolved or the dissolution of the
Lok Sabha takes place during the period of two months without
approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution,
provided the Rajya Sabha has in the meantime approved it.

• Once approved by both the houses of Parliament, the Financial

Emergency continues indefinitely till it is revoked.

Prem Malhotra
AEC Agra
 Financial Emergency
Effects of Financial Emergency
• Extension of the executive authority of the Union over
the financial matters of the States.
• Reduction of salaries and allowances of all or any class
of persons serving in the State.
• Reservation of all money bills or other financial bills for
the consideration of the President after they are
passed by the legislature of the State.
• Direction from the President for the reduction of
salaries and allowances of all or any class of persons
serving the Union; and the judges of the Supreme
Court and the High Courts.
Prem Malhotra
AEC Agra
 Criticism of the Emergency Provision

Criticism of the Emergency Provision

• Some members of the Constituent Assembly criticised the
incorporation of emergency provisions in the constitution
on the following grounds:

– The federal character of the constitution will be destroyed and

the union will become all-powerful
– The powers of the State- both the Union and the Units- will
entirely be concentrated in the hands of the union executive.
– The president will become a dictator
– The financial autonomy of the state will be nullified
– Fundamental rights will become meaningless and, as a result,
the democratic foundation of the constitution will be
destroyed.’

Prem Malhotra
AEC Agra