38th Constitutional Amendment Act, Articles, Changes, Significance

The 38th Amendment to the Constitution of India was enacted in 1975 during a politically sensitive period when emergency powers were being widely discussed. This amendment significantly expanded the authority of the executive during emergency situations and restricted the ability of courts to review certain constitutional actions. It mainly focused on making the satisfaction of the President, Governors, and Union Territory administrators final in specific constitutional matters, particularly regarding ordinances and emergency proclamations.

38th Constitutional Amendment Act

The Constitution (Thirty eighth Amendment) Act, 1975 was passed by the Lok Sabha on 23 July 1975 and by the Rajya Sabha on 24 July 1975. The bill was introduced on 22 July 1975 as Bill No. 54 of 1975. The amendment received Presidential assent on 1 August 1975 and came into force the same day. Its main purpose was to make the declaration of emergencies and the promulgation of ordinances non-justiciable, meaning courts could not question the satisfaction of the executive authorities involved in these constitutional decisions.

Changes Under 38th Constitutional Amendment Act

The Thirty eighth Amendment introduced important article wise changes that strengthened executive powers and limited judicial review in matters related to ordinances, emergency proclamations, and suspension of fundamental rights.

• Amendment to Article 123: A new clause (4) was inserted stating that the satisfaction of the President while promulgating an ordinance under Article 123 would be final and conclusive. Courts were barred from questioning the validity of such satisfaction on any legal ground.
• Amendment to Article 213: Clause (4) was added to Article 213 declaring that the Governor’s satisfaction in issuing ordinances for a state legislature would be final. This provision ensured that courts could not examine the Governor’s judgment behind promulgating an ordinance.
• Amendment to Article 239B: The amendment inserted clause (4) in Article 239B concerning Union Territories. It made the satisfaction of the Administrator while promulgating ordinances final and non-justiciable, thereby preventing courts from reviewing such executive decisions.
• Amendment to Article 352: Two new clauses, (4) and (5), were inserted. Clause (4) allowed the President to issue multiple proclamations of national emergency simultaneously on different grounds such as war, external aggression, internal disturbance, or imminent threats.
• Further Change in Article 352: Clause (5) made the satisfaction of the President in declaring or continuing a national emergency final and beyond judicial review. It also removed the jurisdiction of the Supreme Court and other courts to question the validity of emergency proclamations.
• Amendment to Article 356: Clause (5) was inserted stating that the President’s satisfaction in imposing President’s Rule in a state under Article 356 could not be challenged in any court. This strengthened the executive authority in dealing with constitutional breakdown in states.
• Amendment to Article 359: Clause (1A) was inserted allowing the State to make laws or take executive action even if such actions restricted certain Fundamental Rights during the operation of an order suspending those rights.
• Effect of Laws under Article 359: The amendment clarified that laws made during suspension of Fundamental Rights would remain valid for actions taken during that period. However, once the suspension order ended, such laws would cease to operate beyond their permitted scope.
• Amendment to Article 360: Clause (5) was added to Article 360 regarding Financial Emergency. It declared that the President’s satisfaction in declaring financial emergency would be final and could not be challenged before the Supreme Court or any other court.

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38th Constitutional Amendment Act Significance

• Restriction on Judicial Review: The amendment collectively ensured that courts could not question emergency proclamations, ordinances, or related executive actions. This effectively expanded executive discretion and limited constitutional challenges during emergency situations.
• Expansion of Executive Powers: By making the satisfaction of constitutional authorities final, the amendment increased the power of the executive branch. Decisions related to emergencies and ordinances were protected from legal scrutiny by the judiciary.
• Emergency Governance Framework: The amendment also formally allowed simultaneous emergency proclamations based on different threats. This created a constitutional framework where the central authority could respond separately to multiple national security concerns.
• Impact on Fundamental Rights: Through changes to Article 359, the amendment indirectly allowed wider executive action during emergencies. The State could temporarily act beyond restrictions imposed by certain Fundamental Rights when an order suspending them was in force.
• Ratification by State Legislatures: The amendment was ratified by more than half of the state legislatures as required for constitutional changes. States such as Andhra Pradesh, Bihar, Karnataka, Maharashtra, Punjab, Rajasthan, Uttar Pradesh, and West Bengal supported it.
• States that did not Ratify: Some states including Gujarat, Tamil Nadu, Nagaland, Manipur, and Jammu and Kashmir did not ratify the amendment. Despite this, the required majority of states approved the constitutional change.
• Legislative Purpose of the Amendment: The principal objective of the 38th Amendment was to ensure that executive decisions related to emergencies and ordinances could operate without judicial interference, thereby strengthening governmental authority during national crises.