Thirty-eighth Amendment of the Constitution of India

The Thirty-eighth Amendment of the Constitution of India (1975) was enacted during the period of national emergency proclaimed under Article 352 in June 1975. The amendment sought to insulate executive decisions taken during emergencies from judicial scrutiny, effectively rendering the President’s and Governors’ satisfaction in issuing emergency proclamations, ordinances, and certain other executive acts final and conclusive. It represented a critical moment in India’s constitutional evolution, marking a phase of enhanced executive dominance and curtailed judicial oversight during one of the most controversial periods in the nation’s political history.

Background and Context

On 25 June 1975, then Prime Minister Indira Gandhi advised President Fakhruddin Ali Ahmed to declare a state of internal emergency under Article 352, citing threats to internal security and the stability of the government. This followed a series of political challenges, including the Allahabad High Court judgment invalidating Gandhi’s 1971 election, nationwide protests led by opposition parties and students, and a perceived breakdown of law and order.
The emergency proclamation vested extraordinary powers in the executive, allowing it to suspend fundamental freedoms and to rule by decree. Within this context, the Thirty-eighth Amendment Bill was introduced in July 1975 by H. R. Gokhale, Minister of Law, Justice, and Company Affairs, to fortify the government’s emergency powers against judicial interference and ensure the legality of executive actions taken under such conditions.
The amendment came amid broader constitutional changes and legal measures consolidating executive authority—such as the Thirty-ninth (1975) and Forty-second (1976) Amendments—reflecting an assertive attempt to neutralise judicial review and centralise power.

Objectives and Scope of the Amendment

The stated purpose of the amendment was to remove judicial ambiguity regarding the scope of presidential satisfaction in emergency matters and to confirm that certain proclamations and ordinances were matters of executive discretion beyond judicial inquiry. Specifically, the amendment aimed to:

• Make presidential satisfaction final and non-justiciable in relation to:
  • Proclamations of emergency under Article 352 (war, external aggression, or internal disturbance);
  • Failure-of-constitutional machinery proclamations under Article 356 (President’s Rule);
  • Financial emergency under Article 360.
• Exclude judicial review of:
  • Any overlapping or subsequent proclamations of emergency;
  • Ordinances promulgated by the President under Article 123 or by a Governor under Article 213;
  • Laws enacted by Parliament or State Legislatures during the operation of emergencies that might infringe Fundamental Rights.

These measures collectively reinforced executive supremacy by placing broad categories of emergency-related decisions beyond the courts’ purview.

Key Constitutional Changes Introduced

The Constitution (Thirty-eighth Amendment) Act, 1975 modified and clarified several constitutional provisions concerning emergency powers and ordinances. Its salient features included:

1. Amendment to Article 352 – Explicitly declared that the President’s satisfaction in issuing an emergency proclamation, and in continuing or revoking it, would be final and conclusive, not subject to judicial review on any ground.
2. Amendment to Article 356 – Similarly, the President’s satisfaction regarding the failure of constitutional machinery in a State, leading to imposition of President’s Rule, was declared final and non-justiciable.
3. Amendment to Article 360 – Extended the same principle to financial emergencies, insulating presidential proclamations from judicial examination.
4. Insertion of non-obstante clauses – The amendment inserted phrases such as “shall not be called in question in any court on any ground” to make the executive satisfaction legally absolute.
5. Extension to Ordinance-making powers – The amendment also insulated Ordinances promulgated under Articles 123 and 213, and laws enacted during an emergency, from challenge in courts on the ground of mala fide exercise or procedural impropriety.

By these changes, the amendment placed the decision to impose or continue an emergency beyond judicial scrutiny, effectively excluding the judiciary from reviewing the constitutional validity of such proclamations.

Legislative Process and Enactment

The Constitution (Thirty-eighth Amendment) Bill, 1975 (Bill No. 54 of 1975) was introduced in the Lok Sabha on 22 July 1975 by H. R. Gokhale. The Bill was debated and swiftly passed by the Lok Sabha on 23 July 1975, and by the Rajya Sabha on 24 July 1975, reflecting the overwhelming parliamentary control exercised by the ruling Congress Party during the Emergency.
It received Presidential assent on 1 August 1975 and came into effect on the same day, marking one of the fastest legislative enactments in Indian constitutional history. Ratification by more than half of the State Legislatures followed soon after, as required under Article 368(2), because the amendment altered federal provisions concerning the powers of the President and the States.

Ratification by States

The amendment was ratified by a majority of the States, including:
Andhra Pradesh, Assam, Bihar, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Meghalaya, Orissa, Punjab, Rajasthan, Sikkim, Tripura, Uttar Pradesh, and West Bengal.
The States that did not ratify the amendment were Jammu and Kashmir, Gujarat, Manipur, Nagaland, and Tamil Nadu.
This wide ratification reflected both the political dominance of the Congress Party and the atmosphere of limited dissent during the Emergency.

Implications for Fundamental Rights and Judicial Review

The Thirty-eighth Amendment had far-reaching implications for constitutional checks and balances, especially concerning judicial review—a cornerstone of Indian constitutionalism. Its effects included:

• Suspension of judicial oversight over executive decisions related to emergencies, ordinances, and proclamations, effectively curtailing the power of courts to examine the constitutional propriety of such acts.
• Elevation of executive discretion to near-absolute status in critical matters of national security, internal order, and financial stability.
• Weakening of Fundamental Rights enforcement, since laws enacted under emergency powers could not be challenged even if they infringed Articles 14 (equality), 19 (freedoms), or 21 (personal liberty).

The amendment thus represented a decisive departure from the separation of powers and the principle of limited government, which had previously characterised the Indian constitutional framework.

Critical Reception and Constitutional Significance

Scholars, jurists, and political commentators widely viewed the Thirty-eighth Amendment as one of the most authoritarian constitutional changes enacted during the Emergency. It formalised what was, in effect, an executive monopoly on defining the existence and continuation of emergencies, undermining both parliamentary accountability and judicial supervision.
Contemporaneous critics argued that by declaring executive satisfaction final, the amendment subverted Article 32, the “heart and soul” of the Constitution, and eroded the judiciary’s role as the guardian of fundamental rights. Legal analysts described it as an attempt to “legalise autocracy under constitutional cover,” enabling indefinite extensions of emergency powers without institutional review.
However, the Government defended the measure as necessary for administrative efficiency and national security, contending that judicial second-guessing of executive decisions during crises could paralyse governance.

Relationship with Subsequent Amendments and Judicial Developments

The Thirty-eighth Amendment paved the way for the more sweeping Forty-second Amendment (1976), which further entrenched executive authority and curtailed judicial power. Both were products of the Emergency-era constitutional programme that sought to redefine the balance among the branches of government.
After the end of the Emergency in 1977, the Forty-fourth Amendment (1978) reversed much of the Thirty-eighth Amendment’s effect by restoring judicial review over presidential satisfaction in emergency proclamations. The Forty-fourth Amendment made such satisfaction subject to parliamentary approval and judicial scrutiny, reasserting constitutional accountability and reinstating the supremacy of the rule of law.

Legacy and Evaluation

The Thirty-eighth Amendment stands as a stark reminder of the fragility of constitutional freedoms under concentrated executive power. While legally valid at its enactment, its political context and consequences revealed the dangers of unchecked emergency powers. It transformed the constitutional emergency framework—originally intended as an exceptional safeguard—into a potential instrument of political consolidation.
Its repeal and modification after 1977 symbolised the resilience of Indian democracy and the restoration of constitutional balance. The amendment remains a key episode in the historical discourse on the limits of executive power, the scope of judicial review, and the enduring tension between security and liberty within India’s constitutional order.