To understand why the 38th Amendment was brought in, it is important to look at the political situation of India in the early 1970s. India was going t

38th Amendment of the Indian Constitution

The Constitution of India has gone through many changes since it came into force on 26 January 1950. These changes are known as Constitutional Amendments. They help the government update the Constitution according to the needs and challenges of different time periods. 

One such amendment that created a strong impact—especially in terms of how power was exercised by the government during emergencies—is the 38th Constitutional Amendment Act, 1975.

The 38th Amendment is often discussed in connection with the period of the Emergency (1975–1977), which is one of the most critical and controversial phases in Indian political history. This amendment expanded the power of the central government, especially the Prime Minister, by giving wide immunity to actions taken during an emergency. 

It also limited the ability of courts to review certain decisions made by the executive. Today, this amendment is studied not only as a legal development but also as a historical event that reminds us of the balance of power between the government and the people.

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Historical Background Before the 38th Amendment

To understand why the 38th Amendment was brought in, it is important to look at the political situation of India in the early 1970s. India was going through many challenges—economic slowdown, inflation, unemployment, public dissatisfaction, and political instability. Opposition parties were becoming stronger and protests were becoming more frequent.

The turning point came in 1971, when Indira Gandhi won the general election with a huge majority after the slogan “Garibi Hatao”. Although her government was strong, the economic situation was not stable.

Things escalated when Raj Narain, a socialist leader, filed a case against Indira Gandhi accusing her of election malpractice. In June 1975, the Allahabad High Court declared her election invalid and barred her from holding office for six years. This shook the political environment of the country.

Indira Gandhi appealed to the Supreme Court, which granted a temporary stay, but the crisis continued. She believed that the growing protests and opposition movements were a threat to national stability. On the night of 25th June 1975, she advised President Fakhruddin Ali Ahmed to declare a National Emergency under Article 352 of the Constitution, citing “internal disturbance” as the reason.

This was the beginning of one of the most controversial periods in Indian history. After the declaration of Emergency, several actions were taken—censorship of newspapers, arrest of opposition leaders, control of public movement, and strong restrictions on civil liberties.

In order to further strengthen the powers of the government and reduce the role of courts, a series of amendments were introduced. Among these, the 38th Amendment Act of 1975 was the first major constitutional change after the Emergency was declared.

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What is the 38th Amendment of the Indian Constitution?

The 38th Constitutional Amendment Act, 1975 made several important changes, especially to the emergency-related provisions of the Constitution. This amendment mainly dealt with Articles 123, 213, 239A, 352, 356, and 359.

Its overall aim was to increase the powers of the Executive (the central government) and limit the powers of the judiciary. It gave immunity to the decisions of the President and Governors made during emergencies. Courts were not allowed to question these decisions.

The basic idea behind the amendment was to ensure that actions taken during emergencies were unquestionable and could not be challenged through judicial review. This was a major shift in the Indian constitutional framework because judicial review is one of the most important features of democracy. By restricting judicial review, the amendment gave more unchecked power to the government.

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Political Climate During the Amendment

The amendment was passed during the Emergency, a time when normal democratic processes were weakened. Opposition parties had been silenced, public criticism was suppressed, and the media faced strict censorship.

Parliament functioned, but there was little opposition because most major opposition leaders were in jail. This created an environment where amendments could be passed quickly, without much debate or questioning.

The ruling party enjoyed total control over political institutions. As a result, the 38th Amendment was passed swiftly, with very little resistance. It came into force on 1st August 1975.

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Changes Introduced Under the 38th Amendment

The amendment made changes to several constitutional provisions. Below is a detailed explanation of each change in simple words.

Changes to Article 352: Proclamation of Emergency

Article 352 talks about the National Emergency declared on grounds of war, external aggression, or internal disturbance. The 38th Amendment made the following major changes:

1. **The President’s decision to declare an emergency became final and could not be challenged in any court.

2. The satisfaction of the President was declared “not justiciable”, meaning courts could not question it.

3. Any decision to continue the emergency could not be questioned.**

These changes essentially made the declaration of Emergency a matter of pure executive power, without any judicial oversight. This was a significant change because earlier, a citizen could approach courts if they felt the emergency was misused.

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Changes to Article 356: President’s Rule in States

Article 356 deals with imposing President’s Rule in states if the state government cannot function properly.

The 38th Amendment made the President’s “satisfaction” in declaring President’s Rule beyond judicial review.

This meant that if the central government wanted to dismiss a state government, courts could not question the decision. This greatly increased central power over the states.

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Changes to Article 359: Suspension of Fundamental Rights

Article 359 allows the President to suspend the right to move courts for enforcement of Fundamental Rights during an emergency.

The 38th Amendment gave the President special power to suspend the right to enforce Fundamental Rights even more broadly.

This meant that citizens had almost no constitutional protection during an emergency.

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Changes to Articles 123 and 213: Ordinance-Making Powers

Articles 123 and 213 allow the President and Governors to make ordinances when Parliament or State Legislatures are not in session.

The 38th Amendment made the satisfaction of the President or Governor in issuing ordinances final, meaning courts could not review whether the ordinance was justified.

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Why Was Judicial Review Restricted?

Judicial review is the power of courts to examine whether actions of the government are constitutional or not.

But the 38th Amendment declared that certain actions of the Executive — especially emergency declarations, ordinances, and President’s Rule — cannot be reviewed by courts.

The main reasons behind this were:

1. To prevent courts from interfering with the Emergency declared in 1975.

2. To centralize power in the hands of the Prime Minister and government.

3. To ensure quick and unquestioned actions during the Emergency.

4. To avoid legal challenges that could weaken the authority of the central government.

However, this change went against the basic principle of democracy — the separation of powers between the executive, legislative, and judicial branches.

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Impact of the 38th Amendment

The 38th Amendment had a deep impact on the constitutional and democratic structure of India. Here are some major effects explained in simple paragraphs.

1. Increased Executive Power

The amendment gave the government almost complete immunity during emergency situations. Executive decisions became absolute and could not be questioned by courts. This concentrated power in the hands of the ruling party.

2. Weakened Judiciary

By preventing courts from reviewing emergency decisions, the amendment reduced the authority of the judiciary. This was a serious blow to the balance of power between the branches of government.

3. Reduced Federalism

By making President’s Rule beyond judicial review, the amendment weakened the autonomy of states. The central government gained more control over state governments.

4. Loss of Civil Liberties

During the Emergency, citizens already faced restrictions. The amendment further removed any legal safeguards that could protect them.

5. Democratic Backsliding

Many political analysts consider the 38th Amendment as a step toward authoritarianism. It allowed the government to act without checks and balances, which is against democratic values.

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Criticism of the 38th Amendment

The amendment was widely criticized, both during and after the Emergency. The main criticisms were:

1. It gave unlimited power to the Executive — making the government unchallengeable.

2. It violated the Basic Structure Doctrine, which protects judicial review.

3. It weakened Fundamental Rights, which are essential for democracy.

4. It encouraged misuse of power, such as arbitrary arrests and suppression of dissent.

5. It undermined the federal structure by making President’s Rule unquestionable.

6. It was passed without healthy debate, because opposition leaders were jailed.

Many legal experts called it one of the most undemocratic amendments in Indian constitutional history.

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Relation with the Emergency (1975–1977)

The 38th Amendment cannot be separated from the Emergency period. The amendment was a tool to strengthen the government's grip during the Emergency.

During the Emergency:

● Newspapers were censored
● Opposition leaders were jailed
● Public protests were banned
● Elections were postponed
● Fundamental Rights were restricted

The amendment ensured that no citizen or court could question these actions. It legalized the central government's complete control over democracy.

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39th and 42nd Amendments – The Follow-Up

The 38th Amendment was only the beginning. Soon after it, the government passed the:

● 39th Amendment (1975)
● 42nd Amendment (1976)

These amendments further expanded government authority and restricted judicial powers. Together, these amendments formed a set of laws that transformed the Constitution during the Emergency into a more authoritarian structure.

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Repeal and Correction After the Emergency

After the Emergency ended in 1977, a new government led by the Janata Party came to power. One of its first goals was to restore democracy and reduce the centralization of power.

The new government passed the 44th Constitutional Amendment Act, 1978. It reversed many changes made during the Emergency, especially those related to Articles 352, 356, and 359.

The 44th Amendment restored judicial review and strengthened democratic safeguards.

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Why Is the 38th Amendment Important Today?

Even though some parts of the amendment were modified later, it remains an important historical lesson. It teaches us the following:

1. Democracy can be weakened if power becomes centralized.

2. Judicial review is essential to protect citizens’ rights.

3. Checks and balances prevent misuse of authority.

4. Emergency powers should not be misused for political reasons.

5. Constitutional amendments must be made carefully and thoughtfully.

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Contemporary Relevance

In today’s political environment, where debates on centralization of power, federalism, and civil liberties continue, the 38th Amendment serves as a reminder of what can happen when constitutional safeguards are removed.

Even though we may not be living in an emergency today, discussions about the limits of executive power are still very relevant.

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Conclusion

The 38th Amendment of the Indian Constitution is one of the most significant amendments because it reflects a period when India’s democracy faced its biggest challenge. Passed during the Emergency, the amendment gave unchecked power to the central government, removed judicial review, and restricted the rights of citizens. Although many of its provisions were later reversed, the amendment remains a powerful historical lesson.

It shows how fragile democracy can be when one branch of the government becomes too powerful. It also highlights the importance of maintaining a strong judiciary, protecting fundamental rights, and ensuring that the Constitution is never used to suppress the will of the people.

Understanding the 38th Amendment is not just about studying constitutional law — it’s about understanding India’s journey as a democracy and the importance of safeguarding freedom.