42nd Amendment of the Indian Constitution: Few Constitutional Amendments in India have been as significant, comprehensive and consequential as the 42nd Amendment. Passed by the Parliament in 1976 and enforced in 1977, the amendment impacted almost every aspect of political life in India. It consisted of 59 sections and attempted to amend 41 articles in the Indian constitution, the Seventh Schedule, insert 12 articles, add two parts, and substitute four articles. Due to its sheer size, the 42nd Amendment is also referred to as a Mini Constitution.
The amendment was extremely controversial when it was passed since some of its parts were deemed to be against the basic principles of Democracy. The amendment was challenged in the Supreme Court and a few parts of the amendment were declared unconstitutional by it. This article discusses in detail the background, composition and consequences of the 42nd Amendment of the Indian Constitution.
Background leading to the 42nd Amendment
Fundamental Rights vs. Directive Principles of State Policy
The background leading up to the 42nd Amendment is related to the doctrine of the Basic Structure of the Constitution. The doctrine was a novel idea expounded by the Supreme Court of India which placed certain types of limitations upon the Parliament’s power to amend the Constitution. The doctrine says that there are some basic principles, that despite not being explicitly mentioned, form the soul of the Constitution. These principles include tenets such as Parliamentary Democracy, Secularism, Federalism, Supremacy of the Constitution, Free and Fair Elections, Judicial Independence, Judicial Review, etc.
The evolution of the doctrine of the Basic Structure of the Constitution can be dated back to 1951 when the Supreme Court ruled in Shankari Prasad v. Union of India -challenging the First Amendment to the Constitution- that a Constitutional Amendment is not a law. However, things started to take a turn in the Golaknath Case (1967) when the Supreme Court, reversing its previous judgements, ruled that the Fundamental Rights are not amenable by the amending power of the Parliament and have a “transcendental” nature. This was the first time the apex court placed substantial restrictions upon the Parliament.
The apex court also restricted the power of the Parliament in RC Cooper v. Union of India (a.k.a Bank Nationalisation Case) which struck down the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 that nationalised the banks. The Government, to place supremacy of the Parliament over the Judiciary, passed the 24th Amendment to the Constitution overturning the decision of the apex court in the Golaknath Case, and the 25th Amendment to overturn the Apex Court’s decision in the Bank Nationalisation Case.
The Supreme Court also ruled in favour of the former Princes in Madharao Scindia vs Union of India, 1970 (a.k.a Privy Purse Case), granting them the yearly stipend and striking down the Presidential Order ending their privileges. The Government of India, in response, passed the 26th Amendment stripping the princes of the privileges given to them by the Constitution.
The reason why there came to be a veritable tussle between the Supreme Court and the Parliament (Union Government) was regarding the inherent tussle between the Fundamental Rights and Directive Principles of State Policy. Since the Supreme Court is the guaranteer of Fundamental Rights and not the Directive Principles of State Policy, it often sided against the Government which wanted to launch schemes to benefit the poor. This resulted in several Constitutional Amendments prioritising Directive Principles of State Policy over Fundamental Rights in some cases. The tussle was largely between Article 13 (which prohibits any law against any Fundamental Right) and Article 368 (which confers the amending power upon the Parliament).
The conflict was finally settled in Keshavanada Bharti vs. Union of India which, for the first time, laid down the doctrine of the Basic Structure. The court also ruled in favour of the Parliament when it comes to prioritising some DPSP over Fundamental Rights through constitutional amendments, but restricted it from changing the Basic Structure of the Constitution, since the power to amend the Constitution is not tantamount to the power to rewrite it.
Politics surrounding Indira Gandhi
The politics of the time had a major say in the Parliament passing the 42nd Amendment. Indira Gandhi was hitherto the most powerful Prime Minister the country had elected. However, a series of circumstances, both national and international, led to the enactment of the Emergency and thereafter the 42nd Amendment. Primary amongst them was the JP Movement which led to the collapse of the Congress government in Bihar and Gujarat. However, the movement was a result of a host of international events such as the 1973 oil crisis and the Bangladesh Liberation War which resulted in millions of refugees pouring into India.
However, the trigger of the Emergency came in 1975 when the Allahabad High Court, in its ruling in the State of Uttar Pradesh vs. Raj Narain, found Indira Gandhi guilty of electoral malpractices for using government machinery for her electoral benefit. Though the offence was relatively small, the court annulled her election and barred her from running and holding elected public office for six years. The ruling was challenged in the Supreme Court which partly stayed the Allahabad High Court’s judgement and allowed the Prime Minister to attend the sessions of the Parliament but was not allowed to vote. While the hearing of the case was underway, President Fakhruddin Ali Ahmad imposed a National Emergency, using the power conferred upon him by Article 352 of the Constitution.
The 42nd Amendment and its Features
As mentioned above, the 42nd Amendment was a comprehensive constitutional amendment and altered or changed numerous parts of the Constitution. This section discusses the changes to those parts.
The Preamble
The Keshavanada Bharti Case reversed many of the previous Supreme Court rulings, including its ruling in the Berubari Union case (1960) which had previously ruled that the Preamble was not a part of the Constitution. The Preamble was now considered a part of the Constitution and hence was amenable. This prompted the Union Government to amend it and replace the phrase “Sovereign Democratic Republic” with “Sovereign Socialist Secular Democratic Republic” and the phrase “Unity of the Nation” with “Unity and Integrity of the Nation”.
Fundamental Rights
- A major change that the 42nd Amendment made to Fundamental Rights was that it removed the Right to Property as a Fundamental Right and made it a Legal Right.
- It also made it possible for the Union Government to suspend the Fundamental Rights of all persons during a National Emergency, State Emergency (President’s Rule) and Financial Emergency.
- The 42nd Amendment also ended Judicial Review. It ended the power of questioning any constitutional amendment by the apex court in any matter, including that of Fundamental Rights.
- In addition to that, article 31D was inserted into the Constitution that barred the Supreme Court from intervening when the fundamental rights of the persons involved in “anti-national” activities. This clause was omitted by the 43rd Amendment.
Directive Principles of State Policy
The 42nd Amendment also inserted three articles that were related to the Directive Principles of State Policy and had an immense impact. They are 39A, 43A, and 48A.
- Article 39A regarding the Free legal aid and equal justice that must be provided to citizens with limited financial and social means.
- Article 43A is a DPSP which encourages the state to promote the participation of workers in the management of industries.
- Article 48A is regarding the protection of forests and wildlife in the country.
Fundamental Duties
- The 42nd Amendment inserted an entirely new part -Part IVA-, and a new article -Article 51A- in the Constitution. Borrowed from the Soviet Union, the amendment, inserted 10 duties that a citizen must obey. After the passing of the amendment, India became the only democratic country, except Japan, to add duties of a citizen to the constitution.
- The Swarn Singh Committee which recommended Fundamental Duties wanted to provide for the imposition of penalties for not complying with the duties. However, such a recommendation was rejected by the political leaders.
- The eleventh Fundamental Duty was Added through the 86th Amendment, 2002 and it is related to the Right to Education.
Term of Elected Members to Public Offices
The 42nd Amendment extended the term of the President, Member of Parliament and Member of Legislative Assembly to six years from five years. This part was omitted by the 43rd Amendment.
The Judiciary
Judicial Review, though not explicitly mentioned in the Constitution, is a part of its soul. The 42nd Amendment placed several limitations on the judicial review.
- Article 32A took away powers from the Supreme Court to question the constitutional validity of a state law.
- Supreme Court was limited to and had exclusive powers of questioning the constitutional validity of Central laws.
- The High Courts were curtailed of their power of Judicial Review.
- To declare a central or state law unconstitutional, a majority of two-thirds of the judges was to be required.
- The minimum strength of a constitutional bench was made; 7 judges were now required to decide on constitutional matters.
Federalism
One of the most affected features of the Constitution, as a result of the 42nd Amendment, is the principle of Federalism. The amendment considerably weakened federalism. However, most of such parts were later omitted by the 44th Amendment.
- The Union Government was empowered to deploy armed forces in any state of the country to deal with law and order situations.
- Enabled the Union Government to declare an Emergency in any part of the country.
- Extended the duration of the President’s Rule in any state to one year from the previous six months.
- Five subjects viz. Organization and constitution of all courts except High Courts and Supreme Court, weights and measurements, protection of wild animals, education and forests were removed from the state list and inserted into the concurrent list.
Delimitation of Constituencies
The 42nd Amendment froze the number of seats in the Lok Sabha (to 545) and the Legislative Assemblies for 25 years. It amended Article 170 for this purpose. The number of seats and the extent of constituencies were until then altered after the census which was conducted every tenth year.
The President
Apart from increasing the term length of the President, the 42nd Amendment made it compulsory for the President to give his assent to the bills passed by the Parliament.
Aftermath of the 42nd Amendment
After the Emergency finally ended, the new government passed the 43rd Amendment Act and 44th Amendment Act in 1977 and 1978 respectively to undo many provisions of the 42nd Amendment, and even other previous amendments.
- It restored the original 5-year term length of MPs and MLAs
- Removed the claused regarding the suspension of Fundamental Rights in case of “anti-national’ activities
- Provided that the Fundamental Rights in Articles 20 and 21 cannot be suspended during national emergency
- Restored the President’s discretion in giving assent to the bills
- Removed all the constraints on the courts imposed by the 42nd Amendment
