The Emergency Provisions in the Constitution of India empower the central government to take extraordinary measures to deal with situations of national crisis or threat. These provisions are detailed in Part XVIII (Articles 352 to 360) of the Indian Constitution. There are three types of emergencies:

1. National Emergency (Article 352):
   • A national emergency can be declared if the President of India is satisfied that there exists a grave threat to the security of India, either by war, external aggression, or armed rebellion.
   • Once declared, the President can suspend the fundamental rights guaranteed by the Constitution under Article 19.
   • The Lok Sabha (House of the People) must approve the proclamation of a national emergency with a simple majority. It can be in effect for an initial period of six months and can be extended indefinitely with parliamentary approval every six months.
2. State Emergency (Article 356):
   • Also known as President’s Rule, a state emergency can be declared if the President of India is satisfied that the governance of a state cannot be carried out according to the provisions of the Constitution.
   • This can happen due to a failure of the constitutional machinery in the state, as reported by the Governor of the concerned state to the President.
   • The President can then assume direct control of the state’s administration, dismissing the state government and parliament or suspending the state legislative assembly.
   • The imposition of President’s Rule needs the approval of both houses of Parliament within a stipulated period.
3. Financial Emergency (Article 360):
   • A financial emergency can be declared if the President of India is satisfied that the financial stability or credit of India or any part thereof is threatened.
   • Once proclaimed, the President can issue directions to the states to observe certain canons of financial propriety, reduce salaries and allowances of all or any class of persons serving in connection with the affairs of the Union, including judges of the Supreme Court and the High Courts.
   • The proclamation must be approved by the Parliament within two months.

These emergency provisions grant extraordinary powers to the executive, thereby temporarily altering the federal structure of governance in India. They are meant to be used sparingly and only in cases of extreme necessity, to ensure the preservation of national security, public order, and constitutional integrity. However, they have been subject to criticism for potential misuse and erosion of civil liberties.

Amendment of constitution

The Constitution of India can be amended through a prescribed procedure outlined in Article 368. Amendments to the Constitution can be proposed by either the Parliament or through a process involving the state legislatures, depending on the nature of the amendment. Here’s an overview of the process:

1. Parliamentary Procedure:
   • Amendments that do not fall under certain specific categories (like those affecting the federal structure or powers of the President or Governors) can be initiated by either House of Parliament.
   • The amendment bill must be passed in each House by a majority of the total membership of that House and by a two-thirds majority of the members present and voting.
   • If the amendment pertains to certain specific aspects like the federal structure or powers of the President or Governors, it requires the approval of not less than half of the states.
2. State Legislature Procedure:
   • Amendments that affect the federal structure or powers of the President or Governors can be initiated only by the Parliament but must be ratified by at least half of the state legislatures.
   • After the Parliament passes the amendment bill, it is sent to the state legislatures for ratification. Each state legislature then votes on the amendment.
   • If the amendment bill is ratified by at least half of the states, it is presented to the President for assent.
3. Special Majority and Ratification:
   • Most constitutional amendments require a special majority for passage, which means a majority of the total membership of each House of Parliament and a two-thirds majority of the members present and voting.
   • Amendments affecting the federal structure or powers of the President or Governors additionally require ratification by at least half of the state legislatures.
4. Presidential Assent:
   • Once an amendment bill is passed by Parliament or Parliament and the state legislatures (depending on the nature of the amendment), it is presented to the President for assent.
   • The President can either give assent to the bill, in which case it becomes a part of the Constitution, or withhold assent, effectively vetoing the amendment.

The amendment procedure aims to ensure that the Constitution remains a flexible and evolving document while also safeguarding its basic structure and principles. However, certain fundamental aspects of the Constitution, known as its “basic structure,” cannot be amended even by the prescribed procedure. This principle was established by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala

Doctrine of Basic Structure

The Doctrine of Basic Structure is a constitutional principle established by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973). This doctrine holds that there are certain fundamental features or essential elements of the Constitution that cannot be amended by the Parliament even under the procedure prescribed in Article 368. In other words, while the Constitution of India is amendable, there are limits to the extent of those amendments, and Parliament cannot alter or destroy the basic structure of the Constitution.

The term “basic structure” was not explicitly defined in the Kesavananda Bharati case, but the Supreme Court identified some of the key features that constitute the basic structure. These include:

1. Supremacy of the Constitution: The supremacy of the Constitution over all organs of the government, including the Parliament itself.
2. Republican and Democratic form of government: India’s democratic and republican form of government, with the principle of free and fair elections.
3. Secularism: The principle of secularism, which ensures the state’s impartiality in matters of religion and equal treatment of all religions.
4. Federalism: The federal structure of the government, which divides powers between the Union and the States.
5. Separation of Powers: The separation of powers between the executive, legislature, and judiciary, with each branch exercising its own powers independently.
6. Judicial Review: The power of the judiciary to review and strike down laws inconsistent with the Constitution.
7. Rule of Law: The principle that all actions of the government must be based on law and subject to judicial review.
8. Individual Rights: The protection of fundamental rights guaranteed by the Constitution, including equality before the law, freedom of speech and expression, right to life and personal liberty, etc.

The Doctrine of Basic Structure acts as a check on the amending power of the Parliament, ensuring that it does not undermine the core principles and values enshrined in the Constitution. It empowers the judiciary to review constitutional amendments and strike down those that violate the basic structure, thereby preserving the Constitution’s integrity and ensuring the protection of fundamental rights and democratic principles.

 Contractual and Tortious Liability of State

In legal terms, the liability of the state can arise in two primary contexts: contractual liability and tortious liability.

1. Contractual Liability:
   • Contractual liability of the state refers to situations where the government, acting in its capacity as a party to a contract, is held legally accountable for breaching the terms of that contract.
   • Just like any other party to a contract, the state can enter into agreements and contracts with individuals or other entities for various purposes such as procurement of goods or services, construction projects, public-private partnerships, etc.
   • If the state fails to fulfill its obligations under a contract, it can be held liable for breach of contract. The aggrieved party may seek remedies such as damages, specific performance, or injunctions through legal action.
2. Tortious Liability:
   • Tortious liability of the state refers to situations where the government, or its officials acting in their official capacity, cause harm or injury to individuals or their property due to negligence or wrongful acts.
   • This can include scenarios such as accidents involving government-owned vehicles, injuries caused by unsafe public infrastructure, wrongful arrest or detention by law enforcement officials, etc.
   • The principles of tort law apply to actions against the state, and individuals who suffer harm or loss due to the negligence or misconduct of the state or its agents may seek compensation through legal proceedings.

It’s important to note that in many jurisdictions, including India, the liability of the state is often subject to certain limitations and immunities. For example:

• In some cases, the state may enjoy sovereign immunity, which shields it from liability for certain acts or omissions, particularly those related to governmental functions.
• Statutory limitations may restrict the circumstances under which the state can be held liable, prescribe procedural requirements for initiating legal action against the state, or impose caps on the amount of damages that can be recovered.
• Special procedures or forums may be established for adjudicating claims against the state, such as administrative tribunals or claims commissions

Right to Property and freedom of Trade & Commerce

The right to property and the freedom of trade and commerce are two distinct but related concepts within the legal framework of many jurisdictions, including India. Here’s an overview of each:

1. Right to Property:
   • Historically, the right to property was considered one of the fundamental rights guaranteed under the Constitution of India. It was originally enshrined as a fundamental right under Article 19(1)(f) of the Constitution, which guaranteed the right to acquire, hold, and dispose of property.
   • However, the right to property underwent significant changes with the enactment of the Forty-Fourth Amendment Act, 1978. This amendment removed the right to property as a fundamental right and reclassified it as a legal right under Article 300-A of the Constitution. This means that while individuals have a legal right to own property, it is no longer a fundamental right.
   • Despite this change, the right to property continues to be protected under various laws, including statutes governing land acquisition, tenancy, and inheritance. The government’s power to acquire private property is subject to certain constitutional safeguards, such as the requirement for just compensation and adherence to due process.
2. Freedom of Trade and Commerce:
   • The freedom of trade, commerce, and intercourse within the territory of India is guaranteed as a fundamental right under Article 301 of the Constitution. This provision states that “trade, commerce, and intercourse throughout the territory of India shall be free.”
   • Article 301 prohibits any laws or regulations that obstruct the free flow of trade and commerce across the country. It is aimed at promoting economic unity and integration by removing barriers to the movement of goods and services.
   • However, Article 301 is not an absolute right and is subject to certain restrictions. The Constitution allows the imposition of reasonable restrictions on the freedom of trade and commerce by the state in the interest of the general public. These restrictions are specified under Articles 302 to 305 of the Constitution and may pertain to issues such as public order, morality, health, and protection of indigenous industries.

In summary, while the right to property is no longer a fundamental right in India, individuals still have legal protections for property ownership. On the other hand, the freedom of trade and commerce is recognized as a fundamental right under the Constitution, subject to reasonable restrictions imposed by the state in the public interest.