Forty-second Amendment of the Constitution of India

Forty-second Amendment of the Constitution of India

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The Forty-second Amendment of the
Constitution of India, officially known as The Constitution Act, 1976, was
enacted during the Emergency by the Indian National Congress government
headed by Indira Gandhi. Most provisions of the amendment came into effect on 3
January 1977, others were enforced from 1 February and Section 27 came into
force on 1 April 1977. The 42nd Amendment is regarded as the most
controversial constitutional amendment in Indian history. It attempted to
reduce the power of the Supreme Court and High Courts to pronounce upon the
constitutional validity of laws. It laid down the Fundamental Duties of Indian
citizens to the nation. This amendment brought about the most widespread
changes to the Constitution in its history, and is sometimes called a
“mini-Constitution” or the “Constitution of Indira”.
Almost all parts of the Constitution, including the Preamble and amending
clause, were changed by the 42nd Amendment, and some new articles and
sections were inserted. The amendment’s fifty-nine clauses stripped the Supreme
Court of many of its powers and moved the political system toward
parliamentary sovereignty. It curtailed democratic rights in the country, and
gave sweeping powers to the Prime Minister’s Office. The amendment gave
Parliament unrestrained power to amend any parts of the Constitution, without
judicial review. It transferred more power from the state governments to the
central government, eroding India’s federal structure. The 42nd Amendment
also amended the Preamble and changed the description of India from “sovereign
democratic republic” to a “sovereign, socialist secular democratic republic”,
and also changed the words “unity of the nation” to “unity and integrity of the
nation”. The Emergency era had been widely
unpopular, and the 42nd Amendment was the most controversial issue. The
clampdown on civil liberties and widespread abuse of human rights by
police angered the public. The Janata Party which had promised to “restore the
Constitution to the condition it was in before the Emergency”, won the 1977
general elections. The Janata government then brought about the 43rd and 44th
Amendments in 1977 and 1978 respectively, to restore the pre-1976
position to some extent. However, the Janata Party was not able to fully
achieve its objectives. On 31 July 1980, in its judgement on
Minerva Mills v. Union of India, the Supreme Court declared unconstitutional
two provisions of the 42nd Amendment which prevent any constitutional
amendment from being “called in question in any Court on any ground” and accord
precedence to the Directive Principles of State Policy over the Fundamental
Rights of individuals respectively. Proposal and enactment
Then Prime Minister Indira Gandhi set up a committee in 1976 under the
Chairmanship of then Minister of External Affairs Swaran Singh “to study
the question of amendment of the Constitution in the light of
experience”. The bill for the Constitution Act, 1976
was introduced in the Lok Sabha on 1 September 1976, as the Constitution
Bill, 1976. It was introduced by H.R. Gokhale, then Minister of Law, Justice
and Company Affairs. It sought to amend the Preamble and articles 31, 31C, 39,
55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189,
191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357,
358, 359, 366, 368 and 371F and the Seventh Schedule. It also sought to
substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA
and new articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A and
257A in the Constitution. In a speech in the Lok Sabha on 27 October 1976, Gandhi
claimed that the amendment “is responsive to the aspirations of the
people, and reflects the realities of the present time and the future”.
The bill was debated by the Lok Sabha from 25 to 30 October and November 1 and
2. Clauses 2 to 14, 6 to 16, 18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50
and 56 to 59 were adopted in their original form. The remaining clauses
were all amended in the Lok Sabha before being passed. Clause 1 of the bill was
adopted by the Lok Sabha on 1 November and amended to replace the name
“Forty-fourth” with “Forty-second”, and a similar amendment was made on 28
October to Clause 5 which sought to introduce a new article 31D to the
Constitution. Amendments to all the other clauses were adopted on 1 November
and the bill was passed by the Lok Sabha on 2 November 1976. It was then debated
by the Rajya Sabha on 4, 5, 8, 9, 10 and 11 November. All amendments made by the
Lok Sabha were adopted by the Rajya Sabha on 10 November, and the bill was
passed on 11 November 1976. The bill, after ratification by the States,
received assent from then President Fakhruddin Ali Ahmed on 18 December
1976, and was notified in The Gazette of India on the same date. Sections 2 to 5,
7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd
amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54
and 58 went into effect from 1 February 1977 and Section 27 from 1 April 1977.
=Ratification=The Act was passed in accordance with
the provisions of Article 368 of the Constitution, and was ratified by more
than half of the State Legislatures, as required under Clause of the said
article. State Legislatures that ratified the amendment are listed below:
Objective The amendment removed election disputes
from the purview of the courts. The amendment’s opponents described it as a
“convenient camouflage”. Second, the amendment transferred more
power from the state governments to the central government, eroding India’s
federal structure. The third purpose of the amendment was to give Parliament
unrestrained power to amend any parts of the Constitution, without judicial
review. The fourth purpose was to make any law passed in pursuance of a
Directive Principle immune from scrutiny by the Supreme Court. Supporters of the
measure said this would “make it difficult for the court to upset
parliament’s policy in regard to many matters”.
Constitutional changes Almost all parts of the Constitution,
including the Preamble and amending clause, were changed by the 42nd
Amendment, and some new articles and sections were inserted. Some of these
changes are described below. The Parliament was given unrestrained
power to amend any parts of the Constitution, without judicial review.
This essentially invalidated the Supreme Court’s ruling in Kesavananda Bharati v.
State of Kerala in 1973. The amendment to article 368, prevented any
constitutional amendment from being “called in question in any Court on any
ground”. It also declared that there would be no limitation whatever on the
constituent power of Parliament to amend the Constitution. The 42nd Amendment
also restricted the power of the courts to issue stay orders or injunctions. The
42nd Amendment revoked the courts’ power to determine what constituted an office
of profit. A new article 228A was inserted in the Constitution which would
give High Courts the authority to “determine all questions as to the
constitutional validity of any State law”. The amendment’s fifty-nine clauses
stripped the Supreme Court of many of its powers and moved the political
system toward parliamentary sovereignty. The 43rd and 44th Amendments reversed
these changes. Article 74 was amended and it was
explicitly stipulated that “the President shall act in accordance with
the advice of the Council of Ministers”. Governors of states were not included in
this article. The interval at which a proclamation of Emergency under Article
356 required approval from Parliament was extended from six months to one
year. Article 357 was amended so as to ensure that laws made for a State, while
it was under Article 356 emergency, would not cease immediately after the
expiry of the emergency, but would instead continue to be in effect until
the law was changed by the State Legislature. Articles 358 and 359 were
amended, to allow suspension of Fundamental Rights, and suspension of
enforcement of any of the rights conferred by the Constitution during an
Emergency. The 42nd Amendment added new Directive
Principles, viz Article 39A, Article 43A and Article 48A. The 42nd Amendment gave
primacy to the Directive Principles, by stating that “no law implementing any of
the Directive Principles could be declared unconstitutional on the grounds
that it violated any of the Fundamental Rights”. The Amendment simultaneously
stated that laws prohibiting “antinational activities” or the
formation of “antinational associations” could not be invalidated because they
infringed on any of the Fundamental Rights. The 43rd and 44th Amendments
repealed the 42nd Amendment’s provision that Directive Principles take
precedence over Fundamental Rights, and also curbed Parliament’s power to
legislate against “antinational activities”. The 42nd Amendment also
added a new section to the Article on “Fundamental Duties” in the
Constitution. The new section required citizens “to promote harmony and the
spirit of common brotherhood among all the people of India, transcending
religious, linguistic and regional or sectional diversities.”
The 42nd Amendment granted power to the President, in consultation with the
Election Commission, to disqualify members of State Legislatures. Prior to
the Amendment, this power was power vested in the Governor of the State.
Article 105 was amended so as to grant each House of Parliament, its members
and committees the right to “evolve” their “powers, privileges and
immunities”, “from time to time”. Article 194 was amended to grant the
same rights as Clause 21 to State Legislatures, its members and
committees. Two new clauses 4A and 26A were inserted into article 366 of the
Constitution, which defined the meaning of the terms “Central Law” and “State
Law” by inserting two new clauses 4A and 26A into article 366 of the
Constitution. The 42nd Amendment froze any
delimitation of constituencies for elections to Lok Sabha and State
Legislative Assemblies until after the 2001 Census of India, by amending
article 170. The total number of seats in the Lok Sabha and the Assemblies
remained the same until the 91st Amendment, passed in 2003, extended the
freeze up to 2026. The number of seats reserved for the Scheduled Castes and
Scheduled Tribes in the Lok Sabha and State Legislative Assemblies was also
frozen. The amendment extended the term of Lok Sabha and Legislative Assemblies
members from five to six years, by amending article 172 and Clause(2) of
Article 83. Amendment of the Preamble
The 42nd Amendment changed the description of India from a “sovereign
democratic republic” to a “sovereign, socialist secular democratic republic”,
and also changed the words “unity of the nation” to “unity and integrity of the
nation”. The jurist and constitutional expert Hormasji Maneckji Seervai
severely criticized this amendment stating that the newly inserted words
are “ambiguous” and “should not have been inserted in the Preamble without a
reason”. B. R. Ambedkar, the principal architect
of the Constitution, was opposed to declaring India’s social and economic
structure in the Constitution. During the Constituent Assembly debates on
framing the Constitution in 1946, K.T. Shah proposed an amendment seeking to
declare India as a “Secular, Federal, Socialist” nation. In his opposition to
the amendment, Ambedkar stated, “My objections, stated briefly are two. In
the first place the Constitution, … , is merely a mechanism for the purpose of
regulating the work of the various organs of the State. It is not a
mechanism where by particular members or particular parties are installed in
office. What should be the policy of the State, how the Society should be
organised in its social and economic side are matters which must be decided
by the people themselves according to time and circumstances. It cannot be
laid down in the Constitution itself, because that is destroying democracy
altogether. If you state in the Constitution that the social
organisation of the State shall take a particular form, you are, in my
judgment, taking away the liberty of the people to decide what should be the
social organisation in which they wish to live. It is perfectly possible today,
for the majority people to hold that the socialist organisation of society is
better than the capitalist organisation of society. But it would be perfectly
possible for thinking people to devise some other form of social organisation
which might be better than the socialist organisation of today or of tomorrow. I
do not see therefore why the Constitution should tie down the people
to live in a particular form and not leave it to the people themselves to
decide it for themselves. This is one reason why the amendment should be
opposed. His second objection was that the amendment was “purely superfluous”
and “unnecessary”, as “socialist principles are already embodied in our
Constitution” through Fundamental Rights and the Directive Principles of State
Policy. Referring to the Directive Principles, he asked Shah, “If these
directive principles to which I have drawn attention are not socialistic in
their direction and in their content, I fail to understand what more socialism
can be”. Shah’s amendment failed to pass, and the Preamble remained
unchanged until the 42nd Amendment. Aftermath
During the Emergency, Indira Gandhi implemented a 20-point program of
economic reforms that resulted in greater economic growth, aided by the
absence of strikes and trade union conflicts. Encouraged by these positive
signs and distorted and biased information from her party supporters,
Gandhi called for elections in May 1977. However, the Emergency era had been
widely unpopular. The 42nd Amendment was widely criticised, and the clampdown on
civil liberties and widespread abuse of human rights by police angered the
public. In its election manifesto for the 1977
elections, the Janata Party promised to “restore the Constitution to the
condition it was in before the Emergency and to put rigorous restrictions on the
executive’s emergency and analogous powers”. The election ended the control
of the Congress from 1969) over the executive and legislature for the first
time since independence. After winning the elections, the Moraji Desai
government attempted to repeal the 42nd Amendment. However, Gandhi’s Congress
party held 163 seats in the 250 seat Rajya Sabha, and vetoed the government’s
repeal bill. The Janata government then brought about
the 43rd and 44th Amendments in 1977 and 1978 respectively, to restore the
pre-1976 position to some extent. Among other changes, the amendments revoked
the 42nd Amendment’s provision that Directive Principles take precedence
over Fundamental Rights, and also curbed Parliament’s power to legislate against
“antinational activities”. However, the Janata Party was not able to fully
achieve its objective of restoring the Constitution to the condition it was in
before the Emergency. Legal challenges of the amendment
The constitutionality of sections 4 and 55 of the 42nd Amendment were challenged
in Minerva Mills v. Union of India, when Charan Singh was caretaker Prime
Minister. Section 4 of the 42nd Amendment, had amended Article 31C of
the Constitution to accord precedence to the Directive Principles of State Policy
articulated in Part IV of the Constitution over the Fundamental Rights
of individuals articulated in Part III. Section 55 prevented any constitutional
amendment from being “called in question in any Court on any ground”. It also
declared that there would be no limitation whatever on the power of
Parliament to amend the Constitution. After the Indian general election, 1980,
the Supreme Court declared sections 4 and 55 of the 42nd amendment as
unconstitutional. It further endorsed and evolved the basic structure doctrine
of the Constitution. In the judgement on Section 4, Chief Justice Yeshwant Vishnu
Chandrachud wrote: On Section 4, Chandrachud wrote, “Since
the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very
power into an absolute power. Indeed, a limited amending power is one of the
basic features of our Constitution and therefore, the limitations on that power
can not be destroyed. In other words, Parliament can not, under Article 368,
expand its amending power so as to acquire for itself the right to repeal
or abrogate the Constitution or to destroy its basic and essential
features. The donee of a limited power cannot be the exercise of that power
convert the limited power into an unlimited one.” The ruling was widely
welcomed in India, and Gandhi did not challenge the verdict. The Supreme
Court’s position on constitutional amendments laid out in its judgements in
Golak Nath v. State of Punjab, Kesavananda Bharati v. State of Kerala
and the Minvera Mills case, is that Parliament can amend the Constitution
but cannot destroy its “basic structure”.
On 8 January 2008, a petition, filed by Sanjiv Agarwal of the NGO Good
Governance India Foundation, challenged the validity of Section 2 of the 42nd
Amendment, which inserted the word “socialist” in the Preamble to the
Constitution. In its first hearing of the case, Chief Justice K. G.
Balakrishnan, who headed the three-judge bench, observed, “Why do you take
socialism in a narrow sense defined by communists? In broader sense, it means
welfare measures for the citizens. It is a facet of democracy. It hasn’t got any
definite meaning. It gets different meanings in different times.” Justice
Kapadia stated that no political party had, so far, challenged the amendment
and everyone had subscribed to it. The court would consider it only when any
political party challenged the EC. The petition was withdrawn on 12 July 2010
after the Supreme Court declared the issue to be “highly academic”.
Legacy In the book JP Movement and the
Emergency, historian Bipan Chandra wrote, “Sanjay Gandhi and his cronies
like Bansi Lal, Minister of Defence at the time, were keen on postponing
elections and prolonging the emergency by several years … In October–November
1976, an effort was made to change the basic civil libertarian structure of the
Indian Constitution thorough the 42nd amendment to it. … The most important
changes were designed to strengthen the executive at the cost of the judiciary,
and thus disturb the carefully crafted system of Constitutional checks and
balance between the three organs of the government.”
See also List of amendments of the Constitution
of India References
External links Full text of the 42nd Amendment – NIC
Full text of the 42nd Amendment – india.gov.in
Further reading G. G. Mirchandani Subverting the
Constitution Kiruṣṇā Ān̲ant, Vi India Since
Independence: Making Sense of Indian Politics

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