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42nd Constitutional Amendment: A Draconion Act of Parliament

Written by: Prateek Deol 3rd Year Student of Gujarat National Law University
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"Government and Judges might come and go but democracy; the basic features of the constitution should remain eternal". - Justice Y.V Chandrachud

The above statement of the Hon’ble judge appears to be an irony in 42nd Constitutional Amendment in India of democratic mysteries under the rule of the said sovereign; The Parliament. It is ultra Vires of Parliament to make laws seeking any amendment of the constitution which would infringe, restrict or diminish rights of individuals.[1] The constitution was to be amended to strengthen the strands of the seamless web but stretched nearly to the breaking point. The Constitution (Forty Second Amendment) Act 1976 "is responsive to the aspirations of the people, and reflects the realities of the present time and the future"[2] Democracy had been abolished indefinitely, possibly forever. Above all, the importance of fundamental rights was greatly devalued.

Thus, the whole complexion of the constitution was sought to be changed so as to reduce the element of constitutionalism therein.[3] 42nd Constitutional Amendment was enacted due to the recommendations of Swaran Singh Committee [4] It was in fact appointed “to study the question of amendment of the Constitution in the light of "experience".

amendment had four major purposes:

i. Exclude the courts entirely from election disputes;
ii. To strengthen the central government vis-à-vis the state governments and its Compatibility to rule the country as a unitary, not a federal, system;
iii. To give maximum protection from judicial challenge to social revolutionary legislation;
iv. ‘To trim’ the judiciary, so as to ‘make it difficult for the court to upset parliament’s policy in regard to many matters’.[5]

It said that amendments could not be questioned ‘in any court on any ground’; and there shall be no limitation on Parliament’s power to amend the Constitution ‘by way of addition, variation or repeal’. Constitutional Amendment is the most controversial and debatable piece of constitutional amendment ever undertaken in India since 1950.[6] The amendment was so extensive in nature and character that it may be Constitutional Amendment the longest amendment act of the constitution or even ‘mini constitution’.[7] This amendment amended the Preamble to the Constitution, 40 Articles and the Seventh Schedule, and added 14 new Articles and two new parts to the Constitution.

42nd Constitutional Amendment made two changes in the Preamble:

Firstly, it changed the characterization of India to “sovereign, socialist secular democratic republic” from “sovereign democratic republic.”[8] An eminent authority on Constitution H.M Seervai has severely criticized the above resolutions these words are ambiguous and should not have been inserted in the Preamble without a reason.[9]

Secondly, the words ‘unity of the nation’ was changed to ‘unity and integrity of the nation’. 42nd Constitutional Amendment froze the readjustment in constituencies for election to Lok Sabha, and State Legislative Assemblies, after every census held after an interval of ten years at the point of 1971 census till the holding of the first census after the year 2000.[10] The fixation of the number of seats for the Schedule Constitutional Amendments and the Schedule tribes in Lok Sabha and State Legislative Assemblies was also frozen.[11] The quorum in a House of Parliament or a State Legislature was left to be fixed by the rules of each house.[12] It extended the term of Lok Sabha and State Legislative Assemblies from five to six years. A person holding an ‘office of profit’ is disqualified from the membership of parliament or a State Legislature and have courts power to declare what was an office of profit was ceased. Similarly, disqualification Constitutional Amendment of the members of the State Legislature was to be decided by the President in consultation with the Election Commission as in Constitutional Amendments of Parliament, till then the power vested in the Governor.[13]

42nd Constitutional Amendment amended Art. 74 and explicitly laid that the President shall act in accordance with the advice of the Council of Ministers. But no such provision was made by 42nd constitutional amendment as regards the State Governors. Thus the Governor has certain discretionary functions to discharge in respect of which he is not bound by ministerial advice.

Art.352 was amended to authorize the President to vary proclamation of emergency but earlier he could not. For this some necessary changes were made in Article 353, 358 and 359.

Earlier the proclamation of emergency under Art.356 needed parliamentary approval to operate at the end of every six years but now this period was extended to one year. Amendment of Article 357 ensured that laws made for a State when it was under Art.356 emergency was not to come to an end automatically Constitutional Amendment after the expiry of the emergency but would continue in operation until the State Legislature made changes.

42nd Constitutional Amendment added few more Directive Principles, viz Art.39A, Art.43A, Art. 48A.

Art. 31C was amended to give primacy to all Directive Principles over the Fundamental Rights irrespective of their being inconsistent with any of the rights conferred by Article 14, 19 or 31.[14]

[1] Constituent Assembly Debates, Volume IX, p-1644-6
[2] Speech in the Lok Sabha, 27 October 1976, Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols.141-2. See also Speech reprinted under the title ‘Parliament Has Unfettered Right’ in Indira Gandhi, Selected Speeches and Writings, vol.3, pp.283-91
[3] Jain M.P “Indian Constitutional Law"
[4] Tampering done to introduce twenty "seven new items ‘not warranted’ by the Swaran Singh Committee under the influence of AICC. Gupta in Parliamentary Debates, Rajya Sabha, vol.98, no.5, col.47, 9November 1976; See also Kogekar, S.V. ‘Constitution Amendment Bill’, Economic and Political Constitutional Amendment Weekly, Vol.11, no. 42, 16 October 1976.
[5] Austin Granville ‘Working A Democratic Constitution-The Indian Experience’, p.371
[6] Act received the assent of the President on December 18, 1976. Some of the provisions of Constitutional Amendment were made operative on January 3, 1977, while others were enforced from February 1, 1977.
[7] Saharay, H.K ‘The Constitution of India; An Analytical Constitutional Amendment Approach’, p.1075
[8] D.S Nakara v. Union of India AIR 1983 SC 130; Excel Wear v. Union of India AIR 1979 SC 25
[9] Seervai, H.M., Constitutional, Law of India (Vol.1,3rd Edition) pp.138-39.
[10] Article 55 amended accordingly.
[11] For Articles 330, 332, 334
[12] Articles 100, 189 amended accordingly.
[13] Article 192 amended accordingly.
[14] Supra note 12

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