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 ĎActí)
acted as a cherry on the top.
This controversial Amendment was introduced by Shri H.R. Gokhale, the then Law Minister in Congressí 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.
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.
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
. 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.
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 Parliamentís 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
Courtís power of Judicial Review; revoked their power to determine office of
profit; curb the power to pronounce judgments complying with constitutional
The time duration of Presidentís 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
ĎFundamental Dutiesí of citizens enhancing the principle of Rights come with
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 partyís 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
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
Clauses relating to term of Lok Sabha and duration of Presidentís
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 didnít get back its
relevance as evolved in H.H. Kesavanand Bharati vs. State of Kerala
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 courtís 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 isnít the
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].
- Minerva Mills vs. Union of India; AIR 1980 SC 1789 (India
- H.H. Kesavanand Bharati vs. State of Kerala; AIR 1973 SC 1461 (India).
- 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.
- 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.
- 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.
- Good Governance India Foundation vs. Union of India; W.P. No. 5632/2007
- Indira Nehru Gandhi vs. Raj Narain; AIR 1975 SC 2299 (India).
- Swarup G., Analysis of the 42nd Amendment in the light o decisions of the
Supreme Court [online] http://docs.manupatra.in/newsline/articles/Upload/F432C15A-234E-4B92-BC0B-4F479B00598A.pdf