Indian Polity & Constitution Quiz: Amendment of Constitution, Basic Structure of the Constitution, Emergency Provisions | 9th Jan, 2021

The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament, that is, a majority (that is, more than 50 per cent) of the total membership of each House and a majority of two-thirds of the members of each House present and voting. The expression ‘total membership’ means the total number of members comprising the House irrespective of fact whether there are vacancies or absentees.
‘Strictly speaking, the special majority is required only for voting at the third reading stage of the bill but by way of abundant caution the requirement for special majority has been provided for in the rules of the Houses in respect of all the effective stages of the bill’.
The provisions which can be amended by this way includes:
(i)Fundamental Rights;
(ii)Directive Principles of State Policy; and
(iii)All other provisions which are not covered by the first and third categories.
Source: Indian Polity by Laxmikanth

Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
1.An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
2.The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
3.The bill must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
4.Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
5.If the 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, that is, a majority of the members of the House present and voting.
6.After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
7.The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
8.After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.
Source: Indian Polity by Laxmikanth

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 state. This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.
The President’s Rule can be proclaimed under Article 356 on two grounds —one mentioned in Article 356 itself and another in Article 365.
The 38th Amendment Act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which could 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.
In Bommai case (1994), the Supreme Court said that imposition of President’s Rule in a state under Article 356 is subject to judicial review.
Source: Indian Polity by Laxmikanth

Article 368 provides for two types of amendments, that is, by a special majority of Parliament and also through the ratification of half of the states by a simple majority. But, some other articles provide for the amendment of certain provisions of the Constitution by a simple majority of Parliament, that is, a majority of the members of each House present and voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to be amendments of the Constitution for the purposes of Article 368.
Source: Indian Polity by Laxmikanth

The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on. In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.
Source: Indian Polity by Laxmikanth

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution. From the various judgments, the following have emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:
1.Supremacy of the Constitution
2.Sovereign, democratic and republican nature of the Indian polity
3.Secular character of the Constitution
4.Separation of powers between the legislature, the executive and the judiciary
5.Federal character of the Constitution
6.Unity and integrity of the nation
7.Welfare state (socio-economic justice)
8.Judicial review
9.Freedom and dignity of the individual
Source: Indian Polity by Laxmikanth

While the proclamation of financial emergency (under Article 360) is in operation, the Centre can give directions to the states:
(i)to observe the specified canons of financial propriety;
(ii)to reduce the salaries and allowances of all class of persons serving in the state (including the high court judges); and
(iii)to reserve all money bills and other financial bills for the consideration of the President.
Source: Indian Polity by Laxmikanth

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. It may be noted that the president can declare a national emergency even before the actual occurrence of war or external aggression or armed rebellion, if he is satisfied that there is an imminent danger.
The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet. This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the prime minister.
In 1975, the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet. The cabinet was informed of the proclamation after it was made, as a fait accompli. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.
Source: Indian Polity by Laxmikanth

Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority that is, (a) a majority of the total membership of that house, and (b) a majority of not less than two-thirds of the members of that house present and voting.
This special majority provision was introduced by the 44th Amendment Act of 1978. Previously, such resolution could be passed by a simple majority of the Parliament.
Source: Indian Polity by Laxmikanth

Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency.
Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period.
Source: Indian Polity by Laxmikanth