Unit 5: Question 1

What is the state emergency? Explain weather the power

to impose state emergency in India as been misused.
A state of emergency is a declaration made by the government to address a situation that threatens the
country and requires extraordinary measures. In India, a state of emergency is also known as a President's
Rule or Constitutional Emergency. It's declared under Article 356 of the Constitution, which gives the
President the power to rule a state directly by suspending its government

It is also called ‘State Emergency’ or ‘Constitutional Emergency’.

1. The first instance was between 26 October 1962 to 21 November 1962 during the India-China war,
when "the security of India" was declared as being "threatened by external aggression".[1] [2]

2. The second instance was between 3 and 17 December 1971, which was originally proclaimed
during the Indo-Pakistan war.

3. The third proclamation between 25 June 1975 to January 1977 was under controversial
circumstances of political instability under Indira Gandhi's premiership, when emergency was declared on
the basis of "internal disturbances". The proclamation immediately followed a ruling in the Allahabad High
Court, that voided the Prime Minister's election from Rae Bareli in the 1971 Indian general election. She
was also prohibited from contesting election for next 6 years, challenging her legitimacy to continue in her
post. Indira Gandhi, instead recommended to the then president Fakhruddin Ali Ahmed to proclaim a state
of emergency to strengthen her hand.

It is imposed for an initial period of six months and can last for a maximum period of three years with
repeated parliamentary approval every six months. The 42nd amendment act of 1976 extended the initial
time duration of President Rule from 6 months to 1 year. Subsequently, 44th CAA 1978 restored the 1-year
period back to 6 months

Originally, the maximum period of operation of President Rule was 3 years. This 3-year period was divided
into 1 year of ordinary period and 2 years of extra ordinary period for which certain conditions were to be
fulfilled. However, now unless revoked, its life can be extended by six months each time, but in no case
beyond three years. If the emergency has to be extended for more than three years, it can only be done by
a Constitution of India constitutional amendment, as has happened in Punjab and Jammu and Kashmir.

During such emergency, the President can take over the entire work of the executive, and the Governor
administers the state in the name of the President. The Legislative Assembly can be dissolved or may
remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list. All money
bills have to be referred to the Parliament for approval. In this occasion ministers of state legislature do not
perform actions in state.

Grounds of Declaration of National Emergency

The President can declare a National Emergency in India under Article 352 when the security of India or a
part of it is threatened by:

 war,
 external aggression, or
 armed rebellion.

Originally, the Constitution mentioned ‘Internal Disturbance‘ as the third ground for the proclamation of a
National Emergency.
However, because of the vagueness and ambiguity of the phrase ‘Internal Disturbance’, it was replaced by
the phrase ‘Armed Rebellion’ by the 44th Constitutional Amendment Act of 1978.

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 to the country.

The President can also issue different proclamations, whether or not there is a proclamation already issued
by him and such proclamation is in operation.

This provision was added by the 38th Constitutional Amendment Act of 1975.

Based on the grounds of the declaration, the National Emergency is called by any one of the following 2
names:

External Emergency – It refers to a National Emergency that is declared on the grounds of War or External
Aggression.

Internal Emergency – It refers to a National Emergency that is declared on the grounds of Armed
Rebellion.

The 44th Constitutional Amendment Act of 1978 mandated that the President can proclaim a National
Emergency only after receiving a written recommendation from the Cabinet i.e. only on the concurrence of
the Cabinet and not merely on the advice of the Prime Minister.

Effects of National Emergency

The consequences and effects of a National Emergency can be seen under the following three heads:

 Effects of National Emergency on Centre-State Relations

 Effect of National Emergency on the Life of Lok Sabha and State Assembly

 Effect of National Emergency on Fundamental Rights

Misuse of Article 356

Article 356 gave the Central government wide powers to stamp its authority on the state governments.
Although it was meant only as a means to preserve the integrity and unity of the country, it had been used
blatantly to oust state governments who were ruled by political opponents of the centre.

Article 356 And Its Misuse

 Even though B.R. Ambedkar had assured that it would remain a dead letter, Article 356 has been
used/misused more than 125 times.

 In almost all cases it was used for political considerations rather than any genuine breakdown of
constitutional machinery in the States.

 Former Prime Minister Indira Gandhi used Article 356 as many as 27 times, and in most cases to
remove majority governments on the ground of political stability, absence of clear mandate or
withdrawal of support, etc.
  In retaliation, the Janata government removed nine state Congress governments, when for the first
time they formed the government in 1977.

 Indira Gandhi on her return to power in 1980, removed nine Opposition majority governments at
one go.

 Subsequent governments too acted in a similar fashion.

Article 356 And Safeguards

 The 1994 Supreme Court (S.R. Bommai case) majority decision, in essence, overturned a long
tradition that the use of Article 356 was not really subject to review by courts, a doctrine articulated
in a landmark 1977 case, State of Rajasthan vs Union of India.

o The Bommai case verdict laid down the conditions under which State governments may be
dismissed, and mechanisms for that process.

 In the S.R. Bommai case, a nine-member bench of the Supreme Court construed the scope of
Article 356, which also allows the imposition of President’s Rule in the States, with stringent
conditions.

o These included ascertaining whether objective conditions exist which render it impossible
to carry out governance in the State where the proclamation has been made and the
process has to be approved by both Houses of Parliament before consideration for judicial
review.

Way Forward

 Judiciary Restraining Itself: Judiciary should realise that Judicial activism may be good as a rare
exception but an activist judiciary is neither good for the country nor for the judiciary itself.

 Fine-tuning Role of Governor: In order for the smooth functioning of democratic government and
strengthening the spirit of federalism, it is important that the governor must act judiciously,
impartially and efficiently while exercising his discretion and personal judgment.

o In this context, the recommendations of the Sarkaria Commission and Punchhi

Commission should be followed in true spirit.

o For example, the 'procedure for appointment of governors should be clearly laid down' and
conditions of appointment must also be laid down and must assure a fixed tenure for the
governor.

 Need for President’s Activism: President under the Indian constitution is bound by the aid and
advice of the Indian Constitution. However, the President can use its suspensive veto in case of
malicious application of Article 356.

o For example, former president K.R. Narayanan twice returned the cabinet’s
recommendation on October 22, 1997, in respect of the Kalyan Singh government in Uttar
Pradesh which had just won the controversial confidence vote and stating that imposition
of President’s Rule would be constitutional impropriety.
Unit 5: Question 2[ Similar to Question 4 & 7 below]
Basic structure theory?

Unit 5: Question 3
Impact of National Emergency with special reference to fundamental rights.
The impact of a national emergency on fundamental rights in India is as follows:

Suspension of fundamental rights

During a national emergency, the state can suspend the six fundamental rights guaranteed by Article 19 of
the Constitution. This includes the right to freedom of speech and expression, the right to assemble, and
the right to move freely.

 No judicial review

Any law or executive action taken during a national emergency that abridges the six fundamental rights
cannot be challenged in court.

 Exceptions

The right to life and liberty under Article 21 cannot be suspended during an emergency.

 President's role

The President can issue a separate order to suspend the enforcement of other fundamental rights, in
addition to the six rights automatically suspended under Article 19.
  Emergency duration

The Lok Sabha can extend its term by one year at a time during an emergency. The term of state
legislatures can also be extended in the same manner.

 Emergency declaration

The President must act on the written recommendation of the cabinet before declaring a national
emergency

 Effects of National Emergency on Fundamental Rights

During a National Emergency in India, some of the Fundamental Rights get suspended. There are two
constitutional provisions (Article 358 and Article 359) regarding the same.

Both these provisions are discussed in detail in the following sections.

Article 358 – Suspension of Fundamental Rights under Article 19

 As per Article 358, when a proclamation of National Emergency is made, the six Fundamental
Rights under Article 19 (Right to Freedom) are automatically suspended.

o No separate order for their suspension is required.

 Thus, during operation of a National Emergency, the state is freed from the restrictions imposed by
Article 19.

o The State can make any law or can take any executive action abridging or taking away the
six Fundamental Rights guaranteed by Article 19.

o Any such law or executive action cannot be challenged on the ground that they are
inconsistent with the six Fundamental Rights guaranteed by Article 19.

 When the National Emergency ceases to operate, Article 19 automatically revives and comes into
force.

 Any law made during an Emergency, to the extent of inconsistency with Article 19, ceases to have
an effect.

o However, no remedy lies for anything done during an Emergency even after the
Emergency expires.

o In other words, the legislative and executive actions taken during the Emergency can not
be challenged even after the Emergency ceases to operate.

 The 44th Constitutional Amendment Act of 1978 made two changes with respect to this provision:

o Firstly, the six Fundamental Rights under Article 19 (Right to Freedom) can be
suspended only when a National Emergency is declared on the grounds of war or external
aggression and not on armed rebellion.

o Secondly, only those laws that are related to the Emergency are protected from being
challenged, and not other laws.

 Also, only those executive actions, which are taken under such laws, are protected
from being challenges, and not other executive actions.

Article 359 – Suspension of Other Fundamental Rights

  As per Article 359, the President can suspend the right to move any court for enforcement of
Fundamental Rights during a National Emergency.

o In this case, Fundamental Rights themselves are not suspended, but only their
enforcement is suspended.

 The following points are to be noted w.r.t. this provision:

o Such an order of the President should be laid before both Houses of Parliament for their
approval.

o The suspension of enforcement relates to only those Fundamental Rights that are
specified in the Presidential Order.

o The suspension could be for the period of emergency or for a shorter period as mentioned
in the order.

o The suspension order may extend to the whole or any part of the country.

 While a Presidential Order is in force, the State can make any law or can take any executive action
abridging or taking away the specified Fundamental Rights.

o Any such law or executive action cannot be challenged on the ground that they are
inconsistent with the specified Fundamental Rights

o When the order ceases to operate, any law so made, to the extent of inconsistency with
the specified Fundamental Rights, ceases to have an effect. However, no remedy lies for
anything done during the operation of the order even after the order ceases to operate.

 The 44th Constitutional Amendment Act of 1978 made two changes with respect to this provision:

o The President cannot suspend the right to move the court for enforcement of Fundamental
Rights under Article 20 (the right to protection in respect of conviction for offences) and
Article 21 (the right to life and personal liberty).

o Only those laws and that are related to Emergency and executive actions taken under
such laws are protected from being challenged, and not other laws.

Similarities between Article 358 and Article 359

 Both Article 358 and Article 359 provide immunity to only those laws from being challenged in the
Court which are related to the Emergency and not other laws.

 Both Article 358 and Article 359 provide protection to only those executive actions which are taken
under such laws.

Differences between Article 358 and Article 359

The differences between the provisions under Article 358 and Article 359 can be seen as follows:

Article 358 Article 359

This provision is confined to Fundamental Rights This provision extends to all those Fundamental Rights
under Article 19 only. whose enforcement is suspended by Presidential Order.

This provision automatically comes into force as This provision does not come into force automatically. A
soon as the Emergency is declared. Presidential Order has to be issued for this.
 Article 358 Article 359

This provision is applicable only in case of External This provision is applicable in both External Emergency
Emergency, and not in case of Internal Emergency. and Internal Emergency.

This article remains in force for the entire duration This article remains in force for the period specified in
of the Emergency. the Presidential Order.

It extends to the entire country. It extends to the area specified in the Presidential Order.

Unit 5: Question 4
Explain the Amendment of Indian constitution and the basic structure
theory [Article 368] OR Explain the Basic Structure Doctrine of the
constitution. OR Power of “judicial Review” OR Rule of law OR Can
amendment be challenged? Sujatha 187 page.
The Federal Constitutions such as U.S.A., Canada and Switzerland are very rigid. It is very difficult to
amend the provisions of the Constitution. Besides the passing of a Bill in the Parliament, the referendum
shall be made among the people of the country. In some of the countries, the constitution is very much
flexible, and can be amended very easily. The framers of the Indian Constitution adopted a middle course.
Therefore, our Constitution is not too rigid and also not too flexible. Article 368 empowers the Parliament to
amend the Constitution, by way of three kinds of subject to certain restrictions

he phrases “Basic Features”, “Basic Structure” “Essential Elements” are not defined in the Constitution.
These are the resultant by the judicial interpretation. We can say them as “Judicial Legislation”. The
Supreme Court held that the word “amendment” used in Article 368 itself gives the meaning that the
original Constitution must survive without loss of identity and it must be retained its originality even after
amended. The power given in Article 368 should not destroy or abrogate the originality or basic structure or
framework of the Constitution. Therefore the amendments to the Constitution may be made so that the
original idea, original shape, the basic features and basic structure does not affect. The amendments may
be made affecting the “Non-Basic Features”.

WHAT ARE THE BASiC STRUCTURES/FEATURES OF THE CONSTITUTION?

The Constitution did not mention Basic Structures and Non-Basic Structures or Basic Features and Non-
Basic Features. It is the Supreme Court to interpret the provisions of the Constitution from time to time
keeping in view of the Constitution and welfare of the People of India.

B. Sikri, Chief Justice of the Supreme Court, held the following are the Basic Features of the constitution in
Minerva Mills case:— (i) Supremacy of the Constitution;

(ii) Secular character of the Constitution;

(iii) Federal Character of the Constitution;

(iv) Republican and Democratic Forms of the Government; and

(v) Separation of Powers from Judiciary, Executive and Legislature.

C. Shelat and Grover JJ held the following are Basic Features of the Constitution:—

(i) Supremacy of the Constitution;

(ii) Secular character of the Constitution;

(iii) Federal Character of the Constitution;

(iv) Separation of powers from Judiciary, Executive and Legislature;

(v) Fundamental Rights guaranteed in Part-Ill;

(vi) Unity and integrity of the Nation.

D. According to Heqde and Mukheriea JJ. the following are the Basic Features of the Constitution:— (i)
Fundamental rights guaranteed in Part-lii;

(ii) Mandatory provisions of the Constitution to build a Welfare State;

(iii) Sovereignty of india;

(iv) Democracy of the country;

(v) Unity and integrity of the Nation; (vi) Preamble of the Constitution.

PROBLEM:

By means of an amendment to the Constitution, the Election disputes of the Prime Minister and Speaker
were kept beyond the scope of the Courts and judicial scrutiny. Examine the validity of such Amendment.
(Jan., 2008, N.U.) SOLUTION: The facts of the given Problem are identical with the following leading and
sensational case:—

* Indira Gandhi vs. Raj Naraian (AIR 1976 SC 2299) (Election Case)

This case is the best example for the “Basic Structure Theory”. The Supreme Court applied this theory in
this case. Smt. Indira Gandhi and Raj Narain were the candidates for the General Elections to the
Parliament. Indira Gandhi, being the sitting Prime Minister, misused her powers and got elected as the
Member of Parliament from Uttar Pradesh. Raj Narain filed Election Petition before the High Court which
gave the judgment in favour of Raj Narain considering that Indira Gandhi misappropriated her power during
the election. As a result of it, Indira Gandhi should resign to the Prime-Ministership. To save from this
hurdle, the Congress-I Government amended Article 329 and also inserted a new Article 329-A by the
Constitution 39“’ Amendment Act, 1975. Article 329-A gave the protection to the Prime Minister and
Speaker once elected, and they could not be questioned by any Court of law including the Supreme Court
with retrospective effect. This caused a jolt in the country. Raj Narain approached the Supreme Court
contending that Article 329-A destructed the “Basic Feature” of the Constitution. The Supreme Court held
that the Parliament has authority to amend the Constitution. It held that Indira Gandhi did not misuse her
powers in election, and reversed the Allahabad High Court’s decision. However their Lordships struck
down clause (4) of Article 329-A. (The Janata Party repealed entire Art 329-A by the 44*'' Amendment Act,
1978.

* Minerva Mills Ltd. vs Union of India and other (AIR 1980 SC 1789) (Amending Power of the
Parliament Case)

' Brief Facts:

This is also another best example of the “Basic Structure Theory”. The Supreme Court applied this theory
in this case also. The Central Government passed an Act “The Sick Textile Undertakings (Nationalisation)
Act 1974”. Under that Act, the Central Government nationalised Minerva Mills Ltd. The share-holders and
the creditors of that company challenged the Nationalisation Act on the grounds of spirit of Articles 14, 19
(1)(f) & (g) and 31(2). The First Respondent was the Union Government, and the Second Respondent was
the National Textile Corporation Ltd. The petitioners challenged the constitutional validity of certain
provisions of the Act of 1974, and also of the Constitution (39“* Amendment) Act, and Sections 4 & 55 of
the Constitution (42"“ Amendment) Act, 1976. The petitioners contended that the amendment made by
Secs. 4 and 55 would destroy the very purpose and identity of Articles 14 and 19. The contention of the
Central Government was that it was authorised to do so by the 42"“ Amendment Act, 1976. JUDGMENT:
The Supreme Court held that amendment made by Section 4 of the 42"“ Amendment Act, 1976 was
unconstitutional and void, and it virtually teared away the heart of basic fundamental freedoms. Articles 14
and 19 confer the most elementary freedoms without which a free democracy is impossible and which
must therefore be preserved at all costs. Article 31-C as amended is a character of class legislation.

PRINCIPLES: (i) The Supreme Court observed: “Sec. 4 of the Constitution 42'“ Amendment Act is beyond
the amending power of the Parliament and is void since it damages the Basic or Essential Features of the
constitution and destroys its Basic Structure by a total exclusion of challenge to any law on the ground that
it is inconsistent with, or takes away or abridges any of the rights conferred by Art. 14 or Art. 19 of the
Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the
principles laid down in Part-IV of the Constitution. ”

(ii) Their Lordships further observed: “Sec. 55 of the Constitution 42"“ Amendment Act is beyond the
amending power of the Parliament and is void since it removes all limitations on the power of the
Parliament to amend the Constitution and confers power upon it to amend the Constitution so as to
damage or destroy its Basic or Essentiai Features or its Basic Structure.”

(iii) Their Lordships further held: “The validity of Clauses (2) to (6) of Art: 19 will be gravely imperilled
because those clauses will also then be liable to be struck down e.s abrogating the rights conferred by Art.
19(1) which are an essential feature of the Constitution. The Court is unable to accept this contention.
Under clauses (2) and (6) of Art. 19, restrictions can be imposed only if they are reasonable and then
again, they can be impa-ed in the interest of a stated class of subjects only. It is for the Courts to decide
whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from
other basic dissimilanties. Art. 31-C takes away the power of judicial review to an extent which destroys
even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Art. 19.
Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the
People can be protected except though the intervention of courts of law....” G. 190 The Constitution of India
- II

(iv) Three Articles of our Constitution, and only three, stand between the heaven of freedom into which
Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21.
Article 31-C has removed two sides of that golden triangle which affords to the people of this country an
assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era
through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and
equality which alone can help preserve the dignity of the Individual.” (v) In addition to the basic features
enunciated by different Justices in different cases, their Lordships considered the following three are aiso
the Basic Features of the Constitution, (a) Ruie of Law; (b) Judiciai Review; and (c) Democracy, which
impiies free and fair eiection.

Unit 5: Question 5
Explain the state emergency and justification for imposing same analyzing impact
of the judgement in S.R Bommai VS Union of India on the same.

Sujatha : 180 page

Article 365 of the Indian Constitution states that if a state fails to comply with directions given
by the Union government, the President can declare that the state's government is not in
accordance with the Constitution. This means that the President can impose President's Rule
if a state fails to follow the Union's directives.

Unit 5: Question 6
Scope of the Doctrine of Basic Structure formulated by the supreme court of the
Indian in Kesavanda Bharati case.

Basic Structure Doctrine

According to the Indian Constitution, the Parliament and the State Legislatures can make laws
within their jurisdictions. The power to amend the Constitution is only with the Parliament and
not the state legislative assemblies. However, this power of the Parliament is not absolute.
The Supreme Court has the power to declare any law that it finds unconstitutional void. As
per the Basic Structure Doctrine of the Indian Constitution, any amendment that tries to
change the basic structure of the constitution is invalid

The basic structure doctrine states that the Parliament has limitless power to amend the
Constitution subject to the condition that such amendments should not change the
Constitution’s basic structure. The bench did not mention the basic structure of the
Constitution and it was left to the court’s interpretation. This was subsequently laid down in
several other judgements by the SC.

The court contended that the term ‘amend’ mentioned in Article 368 doesn’t imply
amendments that can alter the Constitution’s basic structure. If the Parliament intends to
amend with respect to a constitutional provision, such an amendment would necessarily have
to undergo the ‘basic structure’ test.

It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that
the “basic structure of the Indian Constitution could not be abrogated even by a
constitutional amendment”. The judgement listed some basic structures of the
constitution as:

1. Supremacy of the Constitution

2. Unity and sovereignty of India

3. Democratic and republican form of government

4. Federal character of the Constitution

5. Secular character of the Constitution

6. Separation of power

7. Individual freedom

Important pointers –

1. He challenged the Kerala land reforms legislation in 1970, which imposed restrictions
on the management of religious property.

2. The case was challenged under Article 26, concerning the right to manage religiously
owned property without government interference.
 3. A 13-judge Bench was set up by the Supreme Court, the biggest so far, to hear the
case.

Kesavananda Bharati was the chief pontiff of the Edneer Mutt, a monastic religious institution
located in Kasaragod district, Kerala. Bharati had some land in the Mutt which he owned. The
Kerala state government passed the Land Reforms Amendment Act in 1969. As per this Act,
the government could acquire some of the lands that belonged to the Mutt. In March 1970,
Bharati moved the Supreme Court (under Section 32 of the Constitution) to enforce the rights
that were guaranteed to him under:

1. Article 25: Right to practice & propagate religion

2. Article 26: Right to manage religious affairs

3. Article 14: Right to equality

4. Article 19(1)(f): Freedom to acquire property

5. Article 31: Compulsory acquisition of property

6. Right to Freedom of Religion (Articles 25 – 28)

The Kerala state government enacted another law, the Kerala Land Reforms (Amendment)
Act, 1971 even as the petition was under the court’s consideration.

The contentions made by the petitioners brought to the fore the validity of various
amendments that the Parliament brought in to nullify the effects of Golaknath v State of
Punjab. The petitioners challenged, in particular, three constitutional amendments –
24th Amendment, 25th Amendment and 29th Amendment and their validity.

Issues before the Court

1. Whether the following is constitutionally valid?

 24th Constitutional (Amendment) Act, 1971

 25th Constitutional (Amendment) Act, 1972

2. The extent to which the Parliament can exercise its power to amend the Constitution.

3. The question underlying the case also included: Was the power of Parliament to
amend the Constitution unlimited? In other words, could Parliament alter, amend, or
abrogate any part of the Constitution even to the extent of taking away all
fundamental rights?

Contentions of the Petitioners

1. Petitioners contended that the Parliament can’t amend the Constitution in a manner
they want as their power to do this is limited. The Parliament cannot amend the
Constitution to change its basic structure as was set forth by Justice Mudholkar in the
Sajjan Singh v State of Rajasthan case.

2. They argued that the 24th & 25th Constitutional Amendments were violative of
the Fundamental Rights provided in Article 19(1)(f).

Contentions of the Respondents

 1. The State said that the Parliament’s supremacy is the Indian legal system’s basic
structure and hence, it has boundless power to amend the Constitution. The
respondents stressed that in order to fulfil its socio-economic obligations the unlimited
power of the Parliament to amend the Constitution must be upheld.

Kesavananda Bharati Case – Judgement

1. The landmark judgement was delivered on 24th April 1973 by a razor-thin majority
of 7:6 wherein the majority held that any provision of the Indian Constitution can be
amended by the Parliament to fulfil its socio-economic obligations that were
guaranteed to the citizens as given in the Preamble, provided that such amendment
did not change the Constitution’s basic structure. The minority, however, in their
dissenting opinion, were wary of giving the Parliament unlimited amending power.

2. The court held that the 24th Constitutional Amendment was entirely valid. But it found
the first part of the 25th Constitutional Amendment to be intra vires and the second
part of the same ultra vires.

Unit 5: Question 7
Power of the Parliament under Article 368 to Amend the Constitution in the Indian
constitution with special reference to the doctrine of Basic Structure.

Introduction

The Constitution Of India declares India into a ‘Sovereign, Socialist, Secular, Democratic,
Republic’ country. The Constitution of India was passed by the constituent assembly on 26
November 1949. The Constitution of India is considered as the longest written Constitution
has 395 Articles and 12 Schedules. A Constitution should be dynamic in nature and should
able to adapt itself to the changing needs of society. As due to the sudden change in the
society, the Constitution and the pattern of government will require a major change. Article
368 of the Indian Constitution provides the procedure of Amendment. Indian Constitution is
neither rigid nor flexible because, under Article 368, the Constitution can be amended by a
simple majority or by the special majority and by the majority of not less than 2/3 members
of each house.

There are two types of Amendment procedures

Rigid

Under this procedure, it is difficult to amend the Constitution. This procedure is used by the
U.S., Australia, Canada, and Switzerland.

Flexible

Under this procedure, it is easy to amend the Constitution. The Amendment can be done by
passing normal legislation.

Indian Constitution is both rigid as well as flexible i.e. it is difficult to amend but practically
flexible. As per Article 368 of the Indian Constitution, an Amendment can be introduced in
either of the houses, later it can be passed by a special majority or by a simple majority. Later
if the bill is passed by the majority it will be sent to the president for his assent.
In 69 years of the Constitution, 103 Amendments are already done. The 42nd Amendment is
considered as the terms socialist, secular, integrity was inserted through it. The First
Amendment was done in the year 1950, itself.

Necessity of Amendment

The time is not static, it goes on changing. It is necessary to make changes in the
Constitution. The social, economic, political condition of the people goes on changing. If the
changes were not done in the Constitution we would be unable to encounter the future
difficulties and it will become a hurdle in the path of development.

Procedure For Amendment

1. A bill for the Amendment can be introduced in any house of the Parliament.

2. That bill can be introduced as a Government Bill or a Private Member Bill.

3. Prior recommendation of the President not needed.

4. Bill must be passed from both the houses by Absolute + Special majority i.e. more
than 50% or 2/3 Special majority.

5. And some time required the majority from the state legislature also like in case of
G.S.T.

Restriction on Parliament’s Amendment powers and Judicial Review

The framers of the Constitution were so intellect that they know that if they choose flexible
Amendment procedure, the ruling party can use that procedure as their weapons so they
adopted a middle course. They made the procedure neither too rigid nor too flexible. if the
parliament wants to make any changes or amend the Constitution they have to propose the
bill in the parliament and after the voting if the bill gets the majority, the bill will be sent to
the president for his consent after the consent of the president the bill got passed and the
Amendment completes, but this powers are not absolute. It is clear that the majority will be of
the ruling party and somewhere the ruling party have the dominance over the president, the
framers gave some powers to the judiciary as well. If the Amendment was passed by the
parliament and if the judiciary feels to review it, the judiciary has the power and if the
judiciary thinks that Amendment is unlawful or against any provision or against public
morality, they have the power to disqualify that Amendment.

The Supreme Court and The Amendment Power

In Shankari Prasad v. Union of India

In this case, for the very first time question was raised on the Amendment of fundamental
rights i.e. whether the FR can be amended under Article 368 or not. In this case the validity of
the First Amendment through which Article 31A and 31B were added in the Constitution. The
five judges bench stated that Article 368 provides general and strict power to the parliament
to amend the Constitution by following proper procedure.

In Sajjan Singh v. the State of Rajasthan

In this case, the validity of the Seventeenth Amendment was challenged. The question raised
was that the seventeenth Amendment puts a limit on the jurisdiction of the High Court and
therefore rectified. However, the court disposed of the contention. But choose to deal with the
2nd contention i.e. the reconsideration of Shankari Prasad case, the court stated that, even if
the Article 368 does not expressly declares the power of parliament regarding Amendment of
FR, the parliament could by a suitable Amendment assume those powers.

In Golaknath v. the State of Punjab

In this case, the validity of first, Seventeenth, and fourth Amendment were challenged. This
time from the eleven judges bench, the majority of six judges decided that the parliament has
no power to amend part 3 of the Constitution. On the other hand, the court considered that
the parliament has a duty to correct the errors in the law, therefore adopted the doctrine of
prospective overruling through which the 3 Amendments discussed were continued to be
valid but in future, the parliament has no power to amend the part III of the Constitution.

After the judgment of Supreme Court in Golaknath case the 24th Amendment was passed in
1971, and made a change in Article 13 and 368:

A new clause added in Article 13 which says; nothing in this Article apply to Amendment in
the Constitution under Article 368.

New clauses were added in Article 368:

1. A new heading was introduced as; Parliament’s power to amend the

Constitution.

2. Parliament may change, add, repeal any provision of this Constitution in accordance
with the procedure provided.

Amendment of Basic Structure

In Kesavananda Bharati v. State of Kerala

This case was considered as the historical landmark case, where for the first-time Supreme
Court recognized the basic structure concept. In this case, the validity of the
25th Amendment was challenged with the 24th and 29th Amendment was also questioned.
The court by majority overruled the judgement of Golaknath case. It was held that even
before the 24th Amendment the parliament has the limited power to amend the Constitution
by following the proper procedure. The Supreme Court also declared that Article 368 of the
Constitution does not allow the parliament to change, damage the basic structure of the
Constitution. This landmark judgement changes the history of the Constitution.

In Indira Nehru Gandhi v. Raj Narayan

Under this case, once again the basic structure concept was reaffirmed. The Supreme Court
applied the same theory and struck down the 4th clause of Article 329 A on the ground that
the Amendment is beyond the power of the parliament and it destroyed the basic structure of
the Constitution. The Amendment was made regarding the jurisdiction of all courts including
the Supreme Court, regarding the dispute of an election of the Prime Minister of India.

Views of Various other Judges

Sikri C.J.

According to him the parliament has the power to amend under Article 368 but has limited
power. The parliament cannot change or caused damage to the basic structure as well as the
fundamental right of the people. According to him the change in the fundamental right will
affect the public interest. Thus there is an implied limitation on the Amendment power of the
parliament.

Justice Hegde and Mukherjee

According to them, the Constitution is a social document and not a political document. The
Constitution has two parts basic and circumstantial. Article 368 gives the power to the
parliament to amend the circumstantial part as per the circumstances but parliament has no
power to amend the basic part of the Constitution. The ultimate goal of basic structure is to
create a welfare state and if that part will be amended that results in ultimate destruction.

Justice Jaganmohan Reddy

According to him, the word Amendment does not give the power to the parliament regarding
Amendment in part III or basic structure. If the parliament made any change in the basic
structure that will result in damage to the identity of the Constitution.

Justice Khanna

According to him the basic structure of Constitution must survive without loss of its identity
and should be provided to the people in its original form.

42nd Amendment

Immediately after the decision of the Supreme court in Kesavanada Bharti and Indira Gandhi
case, the parliament introduced the 42nd Amendment and added the word secular and
socialist in the preamble and add clause 4 and 5 to the Article 368 of the Constitution. It
indirectly declares that there is no limitation on the power of the parliament regarding the
Amendment. Even after the judgement of the supreme court, the parliament has the
unrestricted power to change or repeal any part of the Constitution. Thus this Amendment
creates a question regarding the supremacy i.e. who is supreme Parliament or Supreme
Court? Through this Amendment, the parliament declared the concept of basic structure
invented by the supreme court is vague and unlawful.declares

In Minerva Mills v. Union of India

In this case, the validity of the 42nd Amendment was challenged, as it destroyed the basic
structure of the Constitution and regarding clause 4 and 5 of Article 368. The Supreme Court
by majority struck down the Clauses added by the 42nd Amendment and stated that the
limited power of the parliament is in the basic structure itself.

In L. Chandra Kumar v. Union of India

Under this case, the validity of the Article 323A and 323B was challenged, both deals with the
exclusion of the High Court under Article 226 and 227 and the Supreme Court under Article
32 was inserted by the 42nd Amendment. The SC, in this case, declared both the provisions
unconstitutional and held that the power of judicial review under Article 226, 227, and 32
were given by the basic structure and the parliament has no power to amend that.

Evaluation of the various Judgements of Supreme Court

The Supreme Court through Golaknath, Kesavanada Bharti, Indira Gandhi and various other
cases tried to put an implied limitation on the amending powers of the parliament, if we
summarize the judgements of all the cases discussed in this Article, the court always tries to
pressurise on few things that are:

1. Parliament has limited power to amend the Constitution.

 2. The parliament cannot damage the basic structure of the Constitution

3. Article 368 does not provide the power to the parliament regarding the Amendment in
Part III of the Constitution.

4. The Parliament by amending Article 368 cannot increase its Amendment powers.

Conclusion

Article 368 of the Indian Constitution provides the procedure of Amendment. Indian
Constitution is neither rigid nor flexible because under Article 368 the Constitution can be
amended by a simple majority or by the special majority and by the majority of not less than
2/3 members of each house. Indian Constitution is both rigid as well as flexible i.e. it is
difficult to amend but practically flexible. As per Article 368 of Indian Constitution, an
Amendment can be introduced in either of the houses, later it can be passed by a special
majority or by a simple majority. Later if the bill is passed by the majority it will be sent to the
President for his assent.

In 69 years of the Constitution, 103 Amendments are already done. The 42nd Amendment is
considered as the mini-Constitution, the terms socialist, secular, integrity was inserted
through it. The First Amendment was done in the year 1950, itself.

However, in my views, the court by giving the judgements tries to increase their powers and
put express limitations on the parliament. The Article 368 is silent on the matter whether the
parliament has the power to amend the basic structure or not, but that also does not mean
that the Article 368 put the limitation regarding the Amendment of basic structure as well as
Part III of the Constitution.

Immediately after the decision of the Supreme court in Kesavanada Bharti and Indira Gandhi
case, the parliament introduced the 42nd Amendment and added the word secular and
socialist in the preamble and added clause 4 and 5 to the Article 368 of the Constitution. It
indirectly declares that there is no limitation in the power of the parliament regarding the
Amendment. Even after the judgement of the Supreme Court, the parliament has the
unrestricted power to change or repeal any part of the Constitution. Thus this Amendment
creates a question regarding the supremacy i.e. who is supreme Parliament or Supreme
Court? Through this Amendment, the parliament declared the concept of basic structure
invented by the Supreme Court is vague and unlawful

Landmark Cases on Judicial Activism in India

Introduction

The early cases of judicial activism in India are significant milestones in the country’s legal
landscape. These cases reflect the judiciary’s proactive role in interpreting and safeguarding
constitutional principles. Here is an overview of some of these critical cases:

Short Question:

 Anti- Defection Law ( Ready JB)

 Pardoning power of the president for All ( Ready JB)
 Doctrine of Repugnance
  Doctrine of pleasure
 Doctrine of colourable legislation
 All india services ( Ready JB)
 Promissory estopple ( Ready JB)
 Doctrine of pith and substance
 National Emergency
 Judicial Accountability
 Financial emergency
 Public service commission
 writ of certiorari
 Resolution of Inter-state water disputes.

Question : Difference between Ordinary Bill & Money Bill

Ordinary Bill Money Bill

Ordinary Bills can be introduced in either Money Bills can be introduced only in Lok Sabha.
Lok Sabha or Rajya Sabha.

Ordinary Bill can be introduced without Money Bills can be introduced only on the recommendation of the President
the recommendation of the President

Either a Minister or private member can Only a Minister is allowed to introduce Money Bill in the Parliament
introduce the ordinary bill

If the Ordinary Bill originated in the Lok Money Bill requires the certification of the Lok Sabha Speaker when
Sabha, then it does not require the transmitted to Rajya Sabha.
approval of the speaker when transmitted
to Rajya Sabha.

Rajya Sabha has the power to reject or Rajya Sabha cannot amend or reject the Money Bill. The Money Bill has to
amend the Ordinary Bill be returned to the Lok Sabha with or without the recommendations of the
Rajya Sabha. Lok Sabha has the power to reject or accept the
recommendations of Rajya Sabha regarding the Money Bill.

The Rajya Sabha has the power to detain The Money Bill can be detained for a maximum period of 14 days only by
the Ordinary Bill for a period of 6 months. the Rajya Sabha

Ordinary Bill is sent for the assent of the The Money Bill is sent for the President’s assent only after approval from
President only after being approved by the Lok Sabha. Money Bill does not require the approval of the Rajya Sabha
both the houses, i.e. Lok Sabha and Rajya before it is sent to the President for his assent.
Sabha
 Ordinary Bills can be returned for Money Bills cannot be returned for reconsideration by the President. The
reconsideration, accepted or rejected by President can only accept or reject it.
the President.

In case of deadlock on Ordinary Bill, there In the case of Money Bill, if there is a deadlock, there is no provision of a
is a provision for a joint sitting joint sitting

After learning about the Ordinary Bill and Money Bill differences, it is better to know the
details of Money Bill thoroughly. On top of it, to further strengthen your knowledge and
preparation on the Indian Polity syllabus, learn about the Differences between Money Bill and
Finance Bill, how a bill is passed in India, the different types of bills and the corresponding
different stages involved while passing those different types of bills, the Presidential Assent to
the Bills and information on Lapsing of Bills.

Visit the below-given links to learn about the Money Bill, Presidential Assent to the Bill,
Difference between Money Bill and Finance Bill, how a bill is passed in India and Lapsing of
Bills; in detail, along with other information. These are the main differences between an
Ordinary Bill and Money Bill. The differences given in the above table can help the UPSC Civil
Service Exam aspirants to answer any related questions easily in the exams.

Question : Prospective overruling

The doctrine of prospective overruling is a judicial principle that limits the application of a new rule to
future situations, instead of applying it retroactively. The doctrine's purpose is to avoid injustice and
hardships that might result from sudden legal changes.

The doctrine of Prospective Overruling originated in the American Judicial System. It dictates that a
decision made in a particular case would have operation only in the future and will not carry any
retrospective effect on any past decisions. This doctrine was first invoked in India in the case of Golak
Nath v. the State of Punjab by Chief justice Kokka Subba Rao.

Waman Rao v. Union of India (1981)

Brief facts

In this case, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 imposed certain ceilings
on agricultural holdings of the people in the state of Maharashtra. The Act was placed in the IX
Schedule of the Constitution. Over 2000 petitions were filed challenging the validity of the Act in the
Bombay High Court. The High Court held that the provisions of the Act cannot be challenged on the
ground that the Act was included in the IX Schedule of the Constitution. Thus, an appeal was preferred
to the Supreme Court.

Held

1. The inclusion of an Act in the IX schedule does not bar the Court from applying the doctrine of
prospective overruling.

2. Although the Act is being declared unconstitutional, the transactions under the Act would
remain valid due to the application of the doctrine of prospective overruling.

Orissa Cement Limited v. State of Orissa (1991)

Brief facts
In this case, the Applicant-Assessee has challenged before the Supreme Court the constitutional validity
of the levy of a ‘cess’, based on the royalty derived from mining lands, by the States of Bihar, Orissa &
Madhya Pradesh, being beyond the legislative competence of the State legislatures. Further, a claim for
a refund of the cess/royalties that was collected was made. The laws in question were the Orissa Cess
Act 1962 and the Rules thereunder, the Bengal Cess Act 1880, the Madhya Pradesh Upkar Adhiniyam
1981, Madhya Pradesh Karadhan Adhiniyam 1982, and the Madhya Pradesh Mineral Areas Development
Cess Rules, 1982.

Held

1. In India Cement Ltd. vs. The State of Tamil Nadu (1989), the Supreme Court had held that if an
Act is declared to be unconstitutional and certain amounts were collected under the provisions
of the said Act prior to it being declared unconstitutional, the State is not liable to refund the
same.

2. The doctrine of prospective overruling expressly indicates that the ruling of the court should be
given a prospective effect and not a retrospective effect.

3. Since the enactment has been declared unconstitutional, only the cess/royalties that would be
levied from the date of this order is subject to refund. The cess/royalties levied by the State
prior to the Act being declared unconstitutional is not subject to refund.

Union of India v. Mohammad Ramzan Khan (1990)

Brief facts

In this case, Article 311 of the Constitution was amended by the 42nd Constitutional Amendment Act.
Under this new amendment, a delinquent had lost his right to obtain a copy of the enquiry report of his
disciplinary proceedings, i.e., now, a delinquent could be dismissed without showing any cause for
dismissal. The amendment was challenged on the grounds of violation of Article 14 and the violations of
principles of natural justice.

Held

1. Every person has the right to know the reason for which the person has been suspended/fired
from an assigned post. Passing an order without reason is a violation of the principles of natural
justice.

2. Therefore, the amendment is unconstitutional and the orders that were issued under this
amendment would be deemed void and fresh proceedings will have to be initiated in a proper
manner.

3. The Court while applying the doctrine of prospective overruling held that from the date of this
judgement, no order can be issued by any body without providing reasons for the punishment
that has been provided under the order.

Managing Director, ECIL, Hyderabad v. Karunakar (1993)

Brief facts

In this case, Article 311 of the Constitution was amended by the 42nd Constitutional Amendment Act.
Under this new amendment, a delinquent had lost his right to obtain a copy of the enquiry report of his
disciplinary proceedings, i.e., now, a delinquent could be dismissed without showing any cause for
dismissal. A Government employee was dismissed from his service without giving appropriate reasons
for such dismissal and the enquiry report was not provided to him either. This dismissal was challenged
on the grounds of violation of Article 14 and the violations of principles of natural justice.

Held

1. When the doctrine of prospective overruling is applied in a case, the most important factor to be
considered is that there should be no injury/disparity caused to the previous transactions that
occurred under the old regime.
 2. The doctrine of prospective overruling clearly means that the decision of the court will only have
a prospective operation.

3. Since the government employee in the present case was dismissed before the ruling of the
Court in the case of Union of India vs. Mohammad Ramzan Khan, the dismissal is not affected by
the ruling of that case due to its prospective operation.

4. However, the employee can challenge the order on the grounds of violation of principles of
natural justice and demand fresh proceedings in the matter.

Co-operative federalistin 20.

stale legislative council 311

Executive power 324

Original jurisdiction of the supreme court

Impeachment of supreme court justice

President's Rule state

curative petitioned

kinds of Amendments

44th Amendment 1978

impeachment of the president of india

Question : Ordinance
Ordinances are like a law but not enacted by the Parliament but rather promulgated by President of
India when Lok Sabha and Rajya Sabha or either of those is not in session. Union Cabinet’s
recommendation is a must for an ordinance to be promulgated. Using ordinances, immediate legislative
actions can be taken.

Note: For an ordinance to exist, it should be approved by the Parliament within six weeks of it being
introduced. Parliament is required to sit within 6 weeks from when Ordinance was introduced.

There are the following limitations:

1. President can promulgate an ordinance only when both the houses are not in session or only
one house is in session.

2. For an ordinance to be promulgated, such circumstances should be there which deem it

necessary for President to legislate through the ordinance

Note: In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the
constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought
to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be
challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been
passed primarily to by-pass debate and discussion in the legislature.

38th Amendment Act inserted a new clause (4) in Article 123 stating that the President’s satisfaction
while promulgating an Ordinance was final and could not be questioned in any court on any ground.
however, the 44th Amendment to Indian Constitution reversed it and made the President’s satisfaction
to bring ordinance justiciable.
 1. Ordinances can be introduced only on those subjects on which the Indian Parliament can make
laws.

2. Ordinances can not take away any rights of citizens that are guaranteed by the Fundamental
Rights of the Indian Constitution.

3. Ordinance ceases to exist if parliament takes no action within six weeks from its reassembly

4. Ordinance also stands void if both the houses pass a resolution disapproving the ordinance

Note: The maximum life of an ordinance can be six months and six weeks.

Cases on Judicial Activism in India

1. Privy Purse Case (Madhav Rao Jivaji Rao Scindia v. Union of India, 1970)

The case revolved around the president’s authority to de-recognize princes and abolish their petty
purses. The Court ruled that executive power, as per Article 53 of the Constitution, must be exercised
“in accordance with the law”. It could not be used to destroy the Constitution. The act of “de-
recognizing” rulers without providing for the continuation of their rule was declared illegal.

2. R C. Cooper v. Union of India (1970)

This case questioned the legislative competence of Parliament to enact the Banking Companies
(Acquisition and Transfer of Undertakings) Act, known as the Bank Nationalization Act. The court struck
down the Act due to its unreasonableness, as it effectively made it impossible for the banks to carry on
any business.

3. Golaknath v. State of Punjab (1971)

The case dealt with the constitutional validity of the 17th Amendment to the Constitution and
introduced the concept of “prospective overruling.” The court held that Parliament could not amend Part
III of the Constitution or abridge fundamental rights.

4. Keshavananda Bharti v. State of Kerala (1973)

The case focused on the extent of the amending power under Article 368 of the Constitution. The court
introduced the theory of the “basic structure,” asserting that Parliament could amend the Constitution
but not abrogate its basic structure.

5. VC Shukla v. Delhi Admin. (1980)

This case examined the legislative competence of the state to establish special courts for high public
office offences. The court upheld the validity of such courts and clarified that the “basic structure”
theory applied only to constitutional amendments, not ordinary laws.

6. Bhagalpur Blinding Case (Khatri (II) v. State of Bihar, 1980)

The court ruled that Article 21 included the right to free legal aid for people experiencing poverty and
the right to legal representation. It emphasized the need to produce arrested individuals before a
magistrate within 24 hours.

7. Fertilizer Corporation v. Kamgar Union v. Union of India (1981)

The court held that the sale of a public enterprise’s plant and machinery, resulting in retrenchment, did
not violate Article 19(1)(g) rights. It clarified the jurisdiction of the Supreme Court under Article 32.

8. V. Vaitheeswaran v. State of TN (1981)

These cases addressed the delay in executing the death sentence. While the former allowed
commutation after a two-year delay, the latter overruled this view, considering the convict’s conduct.

9. Judges Transfer Case (S. P. Gupta v. Union of India, 1983)

The court clarified the meaning of “consultation” in Article 124(2) and asserted executive supremacy in
judicial appointments. This view was later overruled in S.C. Advocates-on-Record Association v. Union of
India (1993) to ensure judicial supremacy in such appointments.

10. R. Antulay v. R. S Nayak (1984)

In a case involving prior sanction for prosecuting a public servant, the court clarified that an MLA was
not considered a ‘public servant’ under the relevant clauses due to the source of remuneration. These
cases laid the foundation for judicial activism in India, highlighting the judiciary’s vital role in
interpreting and upholding constitutional principles and rights.

The PIL Era: A Peak in Judicial Activism in India

In the era of public interest litigation (PIL), several judges, such as V. R. Krishna Iyer, P. N. Bhagwati,
Chinnappa Reddy, and D. A. Desai, played pivotal roles in shaping judicial activism in India. During this
period, we witnessed a shift in the locus standi rule, expanding access to justice. Initially conceived to
empower the disadvantaged, PIL aimed to relax the stringent requirements of locus standi.

Hussainara Khatoon v. State of Bihar (1979): A Turning Point

The Supreme Court’s first PIL action addressed the plight of prisoners awaiting trial who had languished
in jails for extended periods.

The court issued directives to relieve these prisoners, marking the beginning of PIL’s prominence.

Sunil Batra v. Delhi Admin. (1980)

The Supreme Court delivered a historic judgment in the case of Sunil Batra vs. Delhi Administration in
1978. The judgment expanded the scope of prisoners’ rights and laid down guidelines to prevent
custodial torture and protect the dignity of prisoners. The court recognized that prisoners, despite their
conviction, retained fundamental rights and should be treated humanely.
The case had a significant impact on prison reforms and the treatment of prisoners in India. It led to the
formulation of guidelines and directives to safeguard the rights of prisoners, ensuring their protection
from inhumane treatment and torture.

Sheela Barse v. Union of India (1983)

Sheela Barse’s PIL addressed the deplorable conditions faced by women prisoners, particularly those
who were pregnant or had young children living with them in jails. Her petition highlighted the lack of
basic amenities, inadequate healthcare, and the absence of facilities for children in prisons. She sought
the court’s intervention to improve the living conditions for incarcerated women and their children.

The Supreme Court, in response to Barse’s PIL, issued several directives and guidelines to ensure the
protection of the rights of women prisoners and their children. The court emphasized the need for better
healthcare, nutrition, education, and other essential facilities for both mothers and their children living
in jails.

Judicial Activism and Environmental Jurisprudence

The growth of environmental jurisprudence in India owes much to PIL cases and the judiciary’s activist
approach. Fundamental principles and doctrines emerged in this context, focusing on sustainable
development and the polluter-pays principle.

The Oleum Gas Leak Case

The Supreme Court expanded its authority under Article 32 and established the doctrine of absolute
liability for damages brought about by hazardous industries. The court incorporated principles from
international agreements like the Stockholm Declaration, the Rio Declaration, and the Kyoto Protocol.
Additionally, Fundamental principles such as “sustainable development” took root in Indian
environmental jurisprudence.

Narmada Bachao Andolan

The court ensured that dam construction did not harm displaced people’s employment, shelter, or
homes. State governments were directed to provide rehabilitation before proceeding with development
projects.

The Importance of Judicial Restraint

In maintaining the delicate balance of power in a democracy, the judiciary has highlighted the need for
judicial restraint. Justice Markandey Katju’s perspective underscores the importance of maintaining a
separation of powers.

As per the judge, the judiciary, legislature, and executive each have distinct spheres of operation under
the Constitution. Judicial restraint is crucial to preventing encroachment upon the domain of other
branches and fostering equality among them. He further opines that judicial restraint safeguards the
independence of the judiciary, preventing it from becoming embroiled in political and administrative
processes.
The distinction between judicial activism and judicial overreach is vital for the effective functioning of a
constitutional democracy. Recognizing and maintaining this boundary ensures the separation of powers
and the supremacy of the Constitution.

Conclusion

In conclusion, judicial activism is a double-edged sword. When wielded with wisdom and prudence, it
can be a force for positive change, upholding the values of justice, liberty, and equality. However, it
must always be tempered with restraint, guided by a deep sense of responsibility, and mindful of the
Constitution’s spirit. Only through this careful balance can judicial activism genuinely serve the cause of
justice and contribute to the flourishing of democratic societies.