Emergency Provisions in the Indian

Constitution
Types of Emergencies in Indian Constitution
The Indian Constitution envisages three types of emergencies:

• Threat to the security of India: Arising from war, external aggression, or armed rebellion.

• Breakdown of constitutional machinery in a State: Situations where the normal

functioning of a State government becomes impossible.

• Financial emergency: Situations threatening the nancial stability or creditworthiness of

India or any part thereof.

These provisions empower the central government to take extraordinary measures to maintain the
unity, integrity, and stability of the nation, but they also include safeguards to prevent misuse and
protect democratic and federal principles.

Proclamation of Emergency under Article 352

Article 352 allows the President to declare a national emergency if satis ed that the security of
India or any part thereof is threatened by:

• War

• External aggression

• Armed rebellion

Safeguards include:

• Cabinet approval: The decision must be communicated in writing by the Union Cabinet to
the President, ensuring collective decision-making.

• Parliamentary rati cation: The proclamation must be laid before both Houses of
Parliament within a speci ed period and requires approval by a special majority to continue
beyond one month.

• Limited scope: The proclamation can be restricted to a part of India, not necessarily the
entire country.

• Change in terminology: The 44th Amendment replaced the vague term “internal
disturbance” with “armed rebellion” to restrict the scope of emergencies based on internal
disturbances.

The President’s satisfaction in declaring an emergency under Article 352 is initially considered a
political, non-justiciable issue, but subsequent amendments and judicial rulings have clari ed and
limited this discretion.
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Justiciability of President's Satisfaction under Article 352
Initially, the courts held that the President’s satisfaction was a political matter beyond judicial
review, especially after the 38th Amendment declared it nal and conclusive. However, the 44th
Amendment repealed this clause, restoring the court’s power to review whether:

• The satisfaction was based on relevant and suf cient material.

• The declaration was mala de or exercised in bad faith.

• The grounds were irrelevant or extraneous.

In landmark judgments like Minerva Mills and Bommai v. India, the Supreme Court emphasized
that the satisfaction must be genuine and based on relevant facts, and that mala de or arbitrary
exercise of power can be challenged in courts. Judicial review is thus limited but not entirely barred,
especially concerning mala de acts or absence of relevant grounds.

Consequences of Proclamation of Emergency under Article

352
When an emergency is proclaimed:

• Legislative powers: Parliament can legislate on State subjects (List II), overriding the
normal distribution of powers, and laws enacted during the emergency remain in force for
six months after the emergency ends unless explicitly repealed.

• Fundamental Rights: Certain rights, especially those under Articles 20 and 21, cannot be
suspended, but others may be restricted.

• Executive control: The President can direct the State government and even assume control
over State administration.

• Financial powers: Parliament can make laws even in the State list (List II), and the Centre
can direct the States on nancial matters, including taxation and revenue distribution.

• Extension of legislatures: The term of legislatures can be extended up to six months at a

time, but not beyond a maximum of six months after the emergency ends.

• Suspension of normal federal relations: The emergency temporarily alters the federal
scheme, centralizing authority and possibly overriding State legislatures.

These measures are designed to restore order and security but are subject to constitutional
safeguards and parliamentary oversight.

Centre's Duty to Protect States under Article 355

Article 355 imposes a duty on the Centre to:

• Protect every State against external aggression.

• Prevent internal disturbances.

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 • Ensure that each State’s government functions according to the Constitution.

The Centre can:

• Deploy armed forces to maintain order.

• Intervene directly if a State fails to protect its citizens or if its government is unable to
function properly.

• Act without a request from the State if the situation warrants urgent intervention, especially
in cases of external aggression or grave internal disturbances.

Comparison with foreign constitutions:

• In the U.S. and Australia, intervention requires a request from the State.

• Indian law permits proactive intervention, re ecting the broader scope of Article 355.

The Rajasthan v. Union of India case clari ed that illegal migration or external threats can justify
Centre intervention, and the obligation to protect States is a constitutional duty, not optional.

Failure of Constitutional Machinery in a State - Article 356

Article 356 empowers the President to assume control of a State if satis ed that:

• The State government cannot be carried on according to the Constitution.

• The State’s constitutional machinery has failed.

Procedure:

• The Governor reports to the President, or the President acts on other information.

• The proclamation must be laid before Parliament.

• It is valid initially for two months but can be extended in six-month increments, up to a
maximum of three years.

Dissolution and administration:

• The State Legislature may be dissolved or kept in suspension.

• Parliament can legislate for the State and delegate powers to the President.

• The State is administered by the Governor, acting on the President’s behalf, with the Council
of Ministers responsible to Parliament.

Conditions for invocation include:

• No stable government or majority support.

• Serious law and order breakdown.

• Subversion of democratic norms or secularism.

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 • Corruption or maladministration.

Judicial review:

• Historically considered non-justiciable, but Bommai v. India established that proclamations

under Article 356 are subject to judicial review on grounds such as mala de exercise,
irrelevant grounds, or absence of material.

Legislation and Administration under Article 356

Following invocation:

• Parliament can pass laws for the State, including in the Union List.

• Laws enacted during the emergency remain valid for six months after its end unless
repealed.

• The President can assume legislative powers, and the State’s administration is carried out by
the Governor under the President’s authority.

• The State’s legislative assembly may be dissolved or suspended; elections are postponed or
held later, but the process must adhere to constitutional safeguards.

Important safeguards:

• The proclamation must be approved by Parliament within two months.

• The duration of President’s Rule is initially six months, extendable by six months at a time,
but not beyond three years unless speci c conditions are met.

• The oor test is a constitutional requirement to verify majority support before or after the
proclamation, ensuring the government’s legitimacy.

Distinction between Articles 352 and 356

• Article 352 pertains to national emergencies affecting the entire country or a part of it,
triggered by external threats or rebellion.

• Article 356 deals with failure of constitutional machinery in a speci c State, leading to
President’s Rule.

While both involve central intervention, their scope, grounds, and procedures differ markedly, with
Article 356 being more targeted at internal State issues.

Justiciability of Proclamation under Article 356

Initially, courts held that proclamations under Article 356 were not subject to judicial review,
considering them political acts. The 38th Amendment declared that the President’s satisfaction was
nal and conclusive, immune from court scrutiny.

However, Bommai v. India (1994) marked a turning point:

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 • The Supreme Court ruled that proclamations are reviewable to ensure they are based on
relevant material, not mala de, or extraneous grounds.

• The Court emphasized parliamentary approval, oor tests, and exploration of

alternatives before dismissing a government.

• The Court can declare a proclamation invalid if it is based on irrelevant or mala de

grounds, thus safeguarding federalism and democratic norms.

This landmark judgment established that judicial review is essential to prevent misuse and to
uphold constitutional values.

Key Supreme Court Decisions on Article 356

• Rajasthan v. Union of India (1977): Declared that the Union cannot dismiss a State
government solely based on political considerations.

• S.R. Bommai v. India (1994): Af rmed that proclamations under Article 356 are
judiciable, require objective material, and must satisfy constitutional and democratic
principles.

• Mere loss of majority support on the oor of the House is insuf cient; material
indicating breakdown is necessary.

• Floor test: Courts have emphasized that the support of the majority must be tested on the
oor of the House to prevent arbitrary dismissals.

These rulings reinforce federalism, democratic accountability, and judicial oversight.

Judicial Guidelines after Bommai

Post-Bommai, the Court laid down strict guidelines:

• Objective material: The basis for the proclamation must be relevant and not extraneous.

• Exploration of alternatives: The Governor must explore the possibility of forming an

alternative government.

• Floor test: The government’s majority support should be tested on the oor of the House.

• Limited scope of review: Courts can examine whether material exists and whether it is
relevant, but cannot substitute their judgment for the executive’s or Parliament’s.

• Prevention of misuse: Proclamations based on mala de grounds or irrelevant

considerations can be invalidated.

These principles aim to curb political misuse and strengthen constitutional safeguards.

Financial Emergency under Article 360

Article 360 empowers the President to declare a nancial emergency if:
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 • The nancial stability or credit of India or any part thereof is threatened.

Scope and powers:

• The Centre can give directions to States regarding nancial management.

• It can direct reduction of salaries, allowances, or expenditure.

• The President can reserve nancial bills for the approval of the Parliament.

• The Centre can legislate on matters in the State List during the emergency.

Procedure:

• The proclamation must be laid before both Houses of Parliament.

• It remains in force for two months unless approved.

• It can be revoked or varied by subsequent proclamations.

Safeguards:

• The 44th Amendment removed the nal and conclusive clause, making the satisfaction
reviewable.

• No speci c safeguard against misuse exists, but political and judicial oversight serve as
checks.

This comprehensive overview underscores that emergency provisions in the Indian Constitution
are powerful toolsmeant to safeguard the nation’s integrity but are carefully balanced with
safeguards to prevent abuse and protect democratic principles. Judicial review, parliamentary
oversight, and constitutional safeguards collectively ensure that these extraordinary powers are
exercised responsibly and within constitutional limits.
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 Comprehensive Guide to Trade, Commerce,
and Intercourse in India
Trade, Commerce and Intercourse within India
Articles 301-305 of the Indian Constitution establish the fundamental principles governing the
freedom of trade, commerce, and intercourse across both inter-State and intra-State boundaries. The
primary aim is to promote economic unity and prevent regional barriers that could hinder the free
ow of goods, services, and persons within the country. These provisions recognize that a uni ed
internal market is essential for national progress, economic ef ciency, and social integration.

Comparative Constitutional Provisions

India’s approach to the freedom of trade and commerce draws inspiration from international
models:

• Australian Section 92: Guarantees absolute freedom of movement of trade, commerce, and
intercourse among States. It is interpreted broadly but has been subject to judicial limitations
to prevent absolute restrictions.

• U.S. Commerce Clause: Grants Congress the power to regulate commerce among States,
emphasizing uniformity and restricting State protectionism. Judicial interpretation restricts
State interference where uniformity is necessary for national economic well-being.

Differences in India:

• The Indian Constitution explicitly includes both inter-State and intra-State trade under
Article 301, making its scope broader.

• It provides exceptions and mechanisms (Articles 302-305) to balance national economic

unity with regional autonomy.

• Unlike Australia’s absolute guarantee, Indian provisions recognize reasonable restrictions

and regulatory measures.

Content of Article 301 - Free Trade throughout India

Article 301 declares: “Trade, commerce and intercourse throughout the territory of India shall
be free.” The word ‘free’ signi es freedom from restrictions that directly and immediately
impede the movement of goods, persons, or services.

Key points:

• It aims to ensure unhampered movement of goods and persons.

• ‘Trade and commerce’ include activities related to buying, selling, and exchange,
emphasizing movement as the core element.
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 • ‘Intercourse’ encompasses communication, transportation, and other interactions
facilitating trade.

• ‘Throughout India’ covers both inter-State and intra-State trade, ensuring national
economic integration.

Judicial interpretation:

• Restrictions that indirectly or inconsequentially affect trade are not considered violations.

• Taxes or regulations that facilitate trade (e.g., infrastructure charges) are permissible.

Regulatory and Compensatory Taxation

Regulatory taxes are levies imposed for public facilities like roads, bridges, or waterways, which
facilitate trade rather than restrict it. For example:

• Motor vehicle taxes for road maintenance are valid, provided they are proportionate and
linked to the use of facilities.

• Compensatory taxes are contributions reimbursing the cost of infrastructure used by

traders (e.g., tolls, road taxes). These are not considered restrictions if they facilitate trade
and serve public interest.

Judicial stance:

• Such taxes are valid exceptions to Article 301.

• They must be reasonably linked to the facilities or services provided.

• Excessive or disproportionate taxes may be challenged as unreasonable.

Exceptions to Freedom of Trade and Commerce

Articles 302 to 305 carve out exceptions where restrictions are permissible in the public interest:

• Article 302: Grants Parliament authority to impose restrictions necessary for public
interest on inter-State and intra-State trade and commerce. The restrictions must be
reasonable and not arbitrary.

• Article 303(1): Prohibits States from giving preferences or discriminating between States
by virtue of any entryrelated to trade and commerce.

• Article 303(2): Allows preferential treatment or discrimination if necessary to address

scarcity or emergency situations, subject to Parliament’s declaration and
reasonableness.

• Article 304: Provides special powers to States to regulate or restrict trade with prior
Presidential approval, subject to conditions:

◦ 304(a): Equal treatment of imported goods and locally produced goods.

◦ 304(b): Reasonable restrictions in public interest with Presidential sanction.

In essence:

• Restrictions are permitted if they are regulatory, reasonable, non-discriminatory, and in

public interest.

• Discrimination or hostile barriers are prohibited unless justi ed.

State Taxation under Article 304

Article 304(a):

• Permits States to levy taxes on goods imported from other States only if similar taxes are
imposed on local goods.

• The goal is to prevent discrimination and scal barriers.

• Example: A State cannot impose higher sales tax on imported goods than on locally
manufactured goods.

Article 304(b):

• Allows States to impose restrictions after prior Presidential approval.

• Restrictions must be reasonable and public interest-driven.

• Example: Banning or regulating certain goods or activities for health, safety, or order.

Judicial approach:

• Taxes or restrictions that directly and immediately impede movement are invalid.

• Indirect or remote restrictions are generally permissible.

• Discrimination without justi cation is unconstitutional.

Relationship between Articles 19(1)(g) and 301

• Article 19(1)(g) protects an individual’s right to practice any profession or carry on any
trade or business.

• Article 301 ensures free movement of goods, persons, and services at a broader level.

• Trade at rest (business activities not involving movement) is protected under 19(1)(g).

• Trade in motion (movement of goods) is protected under Article 301.

• Restrictions affecting individual rights can be challenged under Article 19(1)(g), while
restrictions on movement or trade itself are challenged under Article 301.

• Both articles complement each other, covering different aspects of trade and commerce.

Regulatory Measures Not Violating Article 301

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 • Laws regulating traf c, hours of operation, licensing, or public safety are not considered
restrictions under Article 301.

• Examples include traf c regulations, licensing laws, and public health measures.

• They facilitate trade and maintain order.

• The courts distinguish between regulatory measures (permissible) and restrictive

measures (prohibited).

Saving of Existing and Nationalization Laws

Article 305:

• Protects laws enacted before the Constitution came into force, existing laws, and state
monopolies.

• State monopolies in trade or business are protected, including nationalization laws.

• Protection extends to laws carrying out public interest activities without infringing
Articles 301-303.

• Monopolies must be lawful and not created by executive orders alone.

Authority under Article 307 to Manage Trade and Commerce

Article 307:

• Empowers Parliament to appoint authorities (e.g., Inter-State Commerce Commission)

to develop, coordinate, and regulate trade, intercourse, and transport.

• Such authorities assist in resolving disputes and issuing permits.

• No such body has been established yet, but existing mechanisms like the Inter-State
Transport Commissionunder the Motor Vehicles Act perform similar functions.

• The purpose is to ensure smooth and coordinated inter-State trade and transport.

In conclusion, the constitutional framework for trade, commerce, and intercourse in India strives to
balance economic unity with regional autonomy through a layered system of rights, restrictions,
and safeguards. The judicial interpretation continually re nes the scope of these provisions,
ensuring they serve the public interest while respecting federal principles.# Comprehensive Guide
to Trade, Commerce, and Intercourse in India
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 Comprehensive Guide to the Amendment of
the Indian Constitution
Informal Methods of Constitutional Adaptation
The Indian Constitution, like many modern constitutions, recognizes that times change and the
needs of society evolve. To adapt to these changes without altering the constitutional text itself, the
Constitution employs informal methods such as judicial interpretation and conventions and
constitutional usages. These methods allow the constitution to remain relevant and responsive to
contemporary issues while preserving its original framework.

Judicial Interpretation as Constitutional Evolution

Judicial interpretation is a key informal method through which the Constitution adapts over time.
Courts, especially the Supreme Court of India, interpret the constitutional provisions in light of new
societal realities, technological advancements, and shifting values. This process involves gradually
rede ning the meaning and scope of constitutional words and phrases without formal amendments.
For example, in the United States, the Supreme Court has historically expanded the understanding
of fundamental rights, such as free speech, to meet the demands of a changing society, thus ensuring
the Constitution remains a living document.

In India, judicial interpretation has played a signi cant role, especially after the landmark
Kesavananda Bharati case (1973), where the Court emphasized that while the Constitution can be
amended, certain basic features cannot be destroyed through interpretation alone. Courts have also
reinterpreted provisions related to fundamental rights, the scope of judicial review, and the powers
of various organs of the state to align with new constitutional ideals.

Conventions and Constitutional Usages

Conventions are unwritten, non-legal but generally accepted practices that in uence the operation
of constitutional provisions. They evolve over time and help ll gaps where the written law is silent
or ambiguous. For instance, in parliamentary democracies like India, conventions such as the Prime
Minister's role in forming the Cabinet or the Governor’s discretionary powers are followed even
though not explicitly codi ed.

In systems like Britain, conventions have historically been crucial in transforming the monarchy
into a constitutional monarchy and developing democratic norms. In India, many conventions have
been incorporated into the constitutional framework, such as the collective responsibility of
ministers to the Lok Sabha, the appointment of the Prime Minister, and the functioning of the
Council of Ministers.

Conventions can modify constitutional operation in several ways:

• Nullifying a constitutional provision in practice without formal change (e.g., the Crown's
veto power in Britain is now a dormant convention).

• Transferring powers from one authority to another (e.g., the effective exercise of royal
prerogatives by the Prime Minister).
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 • Supplementing constitutional provisions to make them more effective (e.g., the role of the
Planning Commission and the National Development Council in India).

While conventions are not enforceable by courts, their observance is vital for the functioning of a
constitutional democracy. Courts have, at times, recognized conventions as part of constitutional
law, blurring the line between legal and non-legal rules.

Formal Methods of Constitutional Amendment

Formal methods involve explicit procedures prescribed in the Constitution for making
amendments. These procedures are designed to ensure deliberate and considered changes,
especially to fundamental or entrenched provisions. The process varies across countries and can be
classi ed broadly into exible and rigid systems.

• Flexible constitutions, like the UK, can be amended by ordinary legislation, making the
process relatively simple.

• Rigid constitutions, like the US or India, require special procedures involving higher
majorities, rati cation by states, or both, to prevent hasty changes.

In India, the formal amendment process is primarily governed by Article 368, which provides for:

• Amendments requiring a special majority in Parliament.

• Certain entrenched provisions that additionally require rati cation by at least half of the
state legislatures.

• A three-tier classi cation:

1. Amendments by simple majority (less signi cant provisions).

2. Amendments by a special majority (more signi cant provisions).

3. Entrenched provisions requiring both a special majority and state rati cation.

This process ensures that fundamental principles are protected from arbitrary changes and that
amendments re ect broad consensus.

Categories of Constitutional Amendments in India

India’s constitutional amendments are categorized based on their signi cance and the degree of
dif culty in their enactment:

1. Amendments by Simple Legislation: Certain Articles of the Constitution are of a tentative

or less signi cant nature and can be amended by ordinary legislative process. Examples
include amendments related to citizenship or the reorganization of states under Art. 2 and 3.

2. Amendments Requiring a Special Majority (Art. 368): Most amendments, especially

those affecting the structure of the government or fundamental rights, require a special
majority—a majority of at least two-thirds of the members present and voting in both
Houses of Parliament.
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 3. Entrenched Provisions (Art. 368): Certain provisions, such as the federal structure,
independence of judiciary, and the basic features, require both a special majority and
rati cation by at least half of the state legislatures. These are considered entrenched
because they are fundamental to the identity of the Constitution.

Amendability and Judicial Interpretation of Article 368

While Article 368 empowers Parliament to amend the Constitution, the Supreme Court has clari ed
that this power is not unlimited. Judicial interpretations, especially post-Kesavananda Bharati
(1973), have established that amendments cannot destroy or alter the basic or fundamental
features of the Constitution.

The Court has held that:

• The power of amendment is subject to the doctrine of basic structure.

• Certain features like democracy, secularism, federalism, judicial review, and

independence of judiciary are inviolable.

• The amendment process must not damage these basic features; otherwise, it would be
ultra vires and void.

Key Supreme Court Cases on Amendability

Several landmark cases have shaped the doctrine of constitutional amendability:

Shankari Prasad v. Union of India (1951)

• Held that the fundamental rights could be amended under Art. 368.

• Interpreted Art. 13 narrowly, excluding amendments from its scope.

Sajjan Singh v. Rajasthan (1965)

• Con rmed that the amending power includes the power to abridge or take away
fundamental rights, provided the procedure is followed.

Golak Nath v. State of Punjab (1967)

• Overruled previous judgments, declaring that fundamental rights are not amendable
through Art. 368.

• Emphasized the transcendental nature of fundamental rights and introduced the basic
structure doctrine.

Kesavananda Bharati v. State of Kerala (1973)

• Reaf rmed that Parliament's amending power is limited by the basic structure of the
Constitution.
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 • Identi ed fundamental features like democracy, secularism, federalism, judicial review
as non-amendable.

Indira Nehru Gandhi v. Raj Narain (1975)

• Applied the basic structure doctrine to strike down amendments that attempted to limit
judicial review or alter electoral laws.

Minerva Mills Ltd. v. Union of India (1980)

• Reiterated that Parliament cannot destroy the basic structure through amendments,
reaf rming the judicial safeguard.

Doctrine of Basic Structure of the Constitution

The basic structure doctrine is the cornerstone of constitutional amendment jurisprudence in
India. It asserts that:

• Certain core features of the Constitution are inviolable.

• Amendments that damage or destroy these features are unconstitutional.

• The list of basic features is not exhaustive but includes:

◦ Sovereignty of the Constitution

◦ Democratic and republican form of government

◦ Secularism

◦ Federal character

◦ Separation of powers

◦ Judicial review

◦ Rule of law

◦ Independence of judiciary

◦ Unity and integrity of the nation

This doctrine balances the need for constitutional stability with the exibility required for social
change, preventing transient majorities from undermining fundamental constitutional principles.

Impact of the Forty-second Amendment and Judicial

Response
The Forty-second Amendment (1976) attempted to:

• Curtail judicial review by inserting clauses that exempted certain amendments from
judicial scrutiny.
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 • Expand Parliament’s amending power to include destroying the basic structure.

In Minerva Mills (1980), the Supreme Court struck down these provisions as unconstitutional,
reaf rming that:

• The basic structure cannot be damaged or destroyed.

• The amendment power is subject to limitations.

This case reaf rmed the Court’s role as the guardian of the Constitution’s core values.

Role of Judicial Review as a Basic Feature

Judicial review is an indispensable feature of the Indian Constitution. It ensures:

• Protection of Fundamental Rights.

• Maintenance of constitutional supremacy.

• Check on arbitrary legislative or executive action.

The Supreme Court has explicitly recognized judicial review as part of the basic structure, and any
constitutional amendment attempting to exclude or weaken this power is unconstitutional.

Application of the Rule of Severability to Constitutional

Amendments
The rule of severability allows courts to uphold parts of an amendment if the invalid portion can
be separated without affecting the entire amendment’s validity.

For example:

• In Kihoto Hollohan (1992), the Supreme Court struck down certain clauses of the Anti-
defection law that violated the basic structure but upheld the rest, applying the
severability doctrine.

This ensures that valid parts of amendments remain effective even if some provisions are declared
unconstitutional.

Non-Obstante Clauses and Their Limitations

Non-obstante clauses (e.g., “Notwithstanding anything in this Constitution…”) are used to
override other provisions temporarily or in speci c contexts. However, the Supreme Court has
clari ed that:

• Such clauses cannot override the basic features of the Constitution.

• Fundamental principles like judicial review, secularism, democracy remain protected

despite these clauses.
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 For instance, in R.C. Poudyal v. Union of India (1993), the Court held that non-obstante clauses
do not nullify the limitations on the amending power imposed by the basic structure doctrine.

Conclusion
The amendment of the Indian Constitution is a deliberate and complex process designed to
balance exibility and stability. The judicial evolution from Golak Nath to Kesavananda
Bharati and subsequent cases has established that:

• The power to amend is not absolute.

• Certain core features—the basic structure—are protected from destruction.

• Judicial review remains a fundamental safeguard ensuring the integrity of the

Constitution.

This dynamic framework ensures that the Constitution can adapt to societal needs while
preserving its fundamental values, maintaining a delicate balance between change and continuity
in India’s constitutional democracy.# Comprehensive Guide to the Amendment of the Indian
Constitution
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