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Indira's Constitution and the 42nd Amendment

Amendment, a provision that allows the lawmakers to make changes in the Constitution as per the changing conditions of the society, was adopted from South Africa and was inserted in Part XX of the Indian Constitution (Article 368). The Emergency period of 1975-77 was widely unpopular and the 42nd Constitutional Amendment Act, 1976 (hereinafter, referred to as Act) acted as a cherry on the top.

This controversial Amendment was introduced by Shri H.R. Gokhale, the then Law Minister in Congress regime and under the leadership of Mrs. Indira Gandhi. It came when most of the opposition leaders like J.P. Narayan, Atal Bihari Vajpayee, Lal Krishna Advani, etc. were behind the bars and the press was censored under the draconian rules of Emergency.

The Act brought about many changes in the Constitution with main aim to strip the powers of Supreme Court and sweep them to the Parliament i.e, the Prime Minister, forging itself as the Sovereign. It had 59 clauses, and since, these clauses sought to amend almost whole of the Constitution, it is also known as the Mini Constitution. The Constitution that was carefully crafted by our forefathers had been tweaked by a single Amendment, with the intention of solely benefitting a single pillar of democracy.

The Last Effort At Parliamentary Supremacy

The 42nd Constitutional Amendment brought many changes including changes in Preamble, the amending clause and other parts of Constitution as well. It gave discretionary powers to the State and curtailed individual rights like never before. There was transfer of power from State Government to Central, attacking the federal structure of India and leading to centralization of powers.

The characterization of India was changed from Sovereign; Democratic; Republic to Sovereign; Socialist; Secular; Democratic; Republic. Apart from this, the words, Unity of the nation was replaced with Unity and Integrity of Nation. The original Constitution makers deliberately chose to keep these concepts out of the Preamble because laying down the policy of State and organization of society should depend upon the needs of people as per time and circumstances; otherwise, it was destroying the idea of democracy itself.

The Amendment aimed at virtually remolding the original Constitution through sweeping changes, substantive and symbolic such as:
Under Article 31-C, the amendment enabled protection of any laws passed in pursuance of Directive Principles under Part IV of the Constitution as immune from judicial scrutiny and inability of Courts to declare them unconstitutional on ground of violating Fundamental Rights. Apart from this, three new DPSPs were added i.e., Article 39A, 43A & 48A.

Fundamental Rights cannot be cited to escape Parliament's power to make laws dealing with anti-national activities.

President was bound to take advice of Cabinet, making sure that Parliamentary form of Government is followed.

Courts were ripped off from profuse amount of powers such as curtailment of High Court's power of Judicial Review; revoked their power to determine office of profit; curb the power to pronounce judgments complying with constitutional validity, etc.

The time duration of President's Rule in a State during applicability of Article 356 was extended from 6 months to 1 year. Also, the laws made whilst State Emergency would prevail until expressly changed by State Legislature.

The term of Lok Sabha and State Legislative Assemblies was raised from 5 years to 6. Also, the seats in Lok Sabha and State Legislative Assemblies were frozen till 2001, as per the census of 1971.

During Emergency under Article 358 & 359, Fundamental Rights and other Constitutional Rights were to remain suspended, including the Golden Triangle i.e, Article 14, 19 & 21, and the right to seek remedy through Courts.

Education, Forests, Weights & Measures, Protection of Wild Animals and Birds, Administration of Justice were transferred from State List to Concurrent List under VII Schedule.

Insertion of Part IVA into the Constitution, which highlighted the Fundamental Duties of citizens enhancing the principle of Rights come with Duties.

Deprived citizens of direct access to Supreme Court.

The Act was a convenient camouflage for Mrs. Gandhi to move the political system towards Parliamentary Sovereignty. The basic structure of the Constitution was lost and all its essential features were distorted.

Aftermath Of 42nd Amendment

Every wrongful action comes with consequences, and the fate of Congress is a perfect example of it. The Amendment lead to clampdown of civil liberties that angered the public; leading to end of control by Indira Gandhi in the 1977 General Elections and victory of Morarji Desai from Janata Party who won the elections on party's promise to restore the Constitution to its pre-1976 position. The elections immediate to the 42nd Amendment were a big shock to everyone and for the first time in Indian history, a non-congress government was installed.

The Janata Party under the leadership of Morarji Desai tried to reform the Constitution as damaged by the 42nd Amendment, by bringing 43rd and 44th Amendment Act of 1977 and 1978 respectively. The 43rd Amendment restored the power of Judicial Review as vested in Supreme Court and High Courts.

Whereas, the 44th Amendment Act nullified the clause of total suspension of Fundamental Rights during National Emergency and provided that Article 20 and 21 cannot be taken away. Also, the imposition of National Emergency could be done only on written recommendation of the Cabinet. It also provided that Article 19 can be suspended only when Emergency is due to war or external aggression. The ground of Internal Disturbance under Article 359 was swapped with Armed Rebellion.

Clauses relating to term of Lok Sabha and duration of President's rule were restored to its pre-1976 position. Article 19(1)(f) and 31 i.e., Right to Property were deleted and was further, made a legal right under Article 300-A. The 44th Amendment redefined the governance of India; made sure that essential features of Constitution are given utmost importance and such blatant abuse of power is never exercised again.

Supreme Court: The Guardian Of Last Resort

Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. When the Janata party failed in achieving all of its objectives as the Congress vetoed the repeal Bill in Rajya Sabha holding 163 of 250 seats, the Supreme Court acted as the guardian of last resort.

The Court in a thumping verdict of Minerva Mills vs. Union of India [i] came as a savior at a time when the country was still dealing with the shackles of the Emergency period and the Judiciary was in its darkest hour. It was marked as the beginning of the era of Judicial Supremacy as the Parliament was always keen in shifting the scales in its favor.

After the coming into force of the 44th Amendment Act, there was still the need to redo the rigors of Emergency-era Amendment as the Basic Structure still didn't get back its relevance as evolved in H.H. Kesavanand Bharati vs. State of Kerala[ii]. The encumbrances of challenge before the Apex Court were Section 4[iii] & 55[iv] of the Amendment Act, 1976. The mill, a textile company was nationalized under a statute placed in the IX Schedule[v] by the Parliament and therefore was not amenable to Judicial Review.

The Parliament tried to corrode the basic structure doctrine by pouring the venomous acid of 42nd Amendment. The 5 judge Bench by a 4:1 majority upheld the contentions of Petitioners and held, Section 4 & 55 of the Act as ultravires the Constitution. The Apex Court struck down the amendments to Article 368 and 31-C, holding that judicial review and a limited amending power were basic features of the Constitution, which, according to the judgment in Kesavananda Bharati, could not be altered, destroyed or nullified. The court's logic was simple:
if a donee was vested with limited power, it could not be permitted to exercise that very power and convert it into an unlimited one.

The implications of 42nd Amendment can be seen even today as the political parties are now bound by the Amendment to socialist ideologies despite pursuing contrary objectives[vi]. The reasoning behind the Amendment as given by the Congress Government was that:
it is responsive to the aspirations of people and reflects the realities of present time and the future. However, this isn't the reality.

The provision for amendment was included to strengthen the Constitution from time to time but for the first time, it was used for personal gains by Mrs. Gandhi. The change of events can be seen after the verdict in the case of Indira Nehru Gandhi vs. Raj Narain[vii] was passed and it was marked as the beginning of era of Parliamentary Supremacy.

Any who, Judiciary under the Minerva Mills judgment proved through its emancipatory force to be committed towards the goal of strengthening the foundational core of the Constitution i.e, the basic structure. While taking a firm stance in reviewing the Amendment and striking against the parts of it that were considered irresponsible, the Court exhibited exceptional dispatch of its powers by engaging in judicial law-making [viii].

  1. Minerva Mills vs. Union of India; AIR 1980 SC 1789 (India
  2. H.H. Kesavanand Bharati vs. State of Kerala; AIR 1973 SC 1461 (India).
  3. Section 4 of the Act amended Article 31-C of the Constitution shielding DPSPs from being called in question of ground of violating Fundamental Rights.
  4. Section 55 of the Act provided unbridled power to the Parliament to amend any part of the Constitution and prevented such amendments from being called in question in the Courts on any ground.
  5. The IX Schedule was created under Article 31B; brought by 1st Amendment Act, 1951 and statutes brought under IX Schedule were saved from being challenged on account of being inconsistent with Fundamental Rights.
  6. Good Governance India Foundation vs. Union of India; W.P. No. 5632/2007 (India).
  7. Indira Nehru Gandhi vs. Raj Narain; AIR 1975 SC 2299 (India).
  8. Swarup G., Analysis of the 42nd Amendment in the light o decisions of the Supreme Court [online]

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