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How and Why the 38th and 39th Constitutional Amendment Acts,1975 were corrected?


In 1960s and 1970s the Indira Gandhi Government made many constitutional changes. It tried to make the legislative organ of the government more stronger than judiciary.

In 1975, the then Indira Gandhi Government bring 38th Constitutional Amendment Act. The three important changes it made were - declaration of emergency by President was made Non- Judiciable, means Judiciary could not look into its rightedness. The second important change the 38th CAA made - Promulgation of ordinance was also made Non- Judiciable and the third important change made was that different proclamation of National Emergency on different grounds.

The first one was deleted by 44th constitutional amendment act 1978. On national emergency in Minerva Mill case 1980, The supreme court said that it can be checked on grounds of malafide, or based on extraneous and irrelevant fact or is absurd or perverse.

On President rule - In Bommai case 1994, The SC said it also can be challenged on grounds of malafide, extraneous, irrelevant or perverse.

The second change was also deleted by 44th CAA, 1978. In famous Cooper case 1970, the SC said the ordinance can be challenged on malafide ground. And also in D.C Wadhwa case 1987, successive repromulgation of ordinance with same text would amount to violation of constitution.( Bihar governors promulgated 256 ordinance between 1967 to 1981).

The third change was remained as it was. Mean different proclamations of National Emergency can be made on different grounds if situation required so.

Moreover, the 39th CAA of 1975 by the then same Indira Gandhi Government said that the election disputes related to the President, Vice-president, PM and Speaker were beyond Judicial scope because the verdict of Justice Jagmohan lal Sinha of Allahabad HC disqualified then- PM Indira Gandhi on charges of electoral malpractices. Indira Gandhi has won Lok sabha seat in 1971 from Rae Bareli in U.P by defeating his opponent Raj Narain. 

So, the 39th CAA  was also deleted by the 44th CAA of 1978 by the then Janta Party Government.

It was how the 44th constitution amendment act of 1978 by the then Janta Party  government corrected the mistake of 38th and 39th CAA of 1975 by the then congress government.

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