Critical Analysis of the 42nd Amendment Act

Introduction:

Officially the 42^nd amendment act is known as The Constitution (Forty-Second Amendment) Act, 1976. During the emergency, that is, from June 25, 1975 – March 29, 1977, the Indian National Congress Government which was headed by Mrs Indira Gandhi enacted the Constitution 42nd amendment act. Initially, this amendment was an ordinance and Mrs Indira Gandhi imposed it in a dictatorship manner. Most of the provision of the amendment came into effect on January 3, 1977. The other provisions were enforced from February 1, 1977 and on April 1977, section 22 came into force. In history, this amendment is the most controversial amendment which attempted to reduce the powers of the Supreme Court and High Court to pronounce the Constitutional Validity of laws. It also laid the Fundamental Duties of the Citizens of India to the Nation. The amendment laid down the Fundament Duties to the Nation by Indian Citizens. A lot of changes in the Constitution of India were made and it is also called ‘Mini-Constitution’ or ‘Constitution of Indira’.

59 clause of amendment stripped many powers of the Supreme Court and it moved the political system of India towards Parliamentary Sovereignty. It completely washed away Federal System of India. The description of India was changed from “Sovereign Democratic Republic” to “Sovereign, Socialist, Secular Democratic Republic” and also the words “Unity of the Nation” was changed to “Unity and Integrity of the Nation”.

Objective

The main objective was :

• From the preview of the courts, the amendment removed the election disputes. The opponents of the amendment said that it was very convenient Camouflage

• India’s federal structure was removed and the amendment transferred more powers from state governments to the central government.

• Purpose of the amendment was to amend any parts of the Constitution without any judicial review to give unrestrained power to the Parliament.

• To make any law passed in pursuance of Directive Principle immune from scrutiny by the Supreme Court.

Changes Brought in Constitution by 42nd Amendment

• The 42nd amendment not only brought changes in almost all parts of the Constitution including the preamble and amending clause but also inserted some sections and some new articles. many of the powers of the Supreme Court were stripped of amendments 49 clauses. It moved the political system of India towards parliamentary sovereignty. The Prime Minister’s office was given a lot of powers by reducing the democratic rights in the country. This amendment gave unrestrained power to the parliament to amend Constitutions any parts without the review of judicial. After this courts were unable to check the constitutional validity passed by the parliament. This decision showed the intent and arbitrariness of the government. For this 31 D was added to restrain the power of the Supreme Court and reduce its jurisdiction regarding checking the Constitutional Validity.

• It approved Supreme Court of India to transfer cases from one High Court to another and also redefined the High Courts Write Jurisdiction.

• It imposed fundamental duties to citizens of India. if they are getting rights from the Constitution then they must perform their fundamental duties towards the nation. The intension of this is to deal with anti-social activities caring out in the Country.

• It allowed the President of India to Proclaim Emergency at any part of the country that is it indirectly allowed the government to do so.

• The amendment allowed the union government to deploy armed forces in the state to handle the situation of law and order.

• India’s Federal system was completely washed away and more powers were transferred from state government to the general government. The Preamble was amended by 42^nd amendment and it changed the description of India from ‘Sovereign Democratic Republic’ to ‘Sovereign, Socialist, Secular Democratic Republic’. It also changed ‘unity of nation’ to unity and integrity of the nation’.

• In Part IV new Directive Principle was added “Directive Principle Of State Policy” in articles 39 A, 43 A and 48 A.

• This amendment transferred subjects such as education, forest, population control, protection of wild animals and birds, etc. from the State list to Concurrent List.

42^nd amendment act was a controversial issue during the emergency period. The public was very angry from the police due to the wide spread abuse of human rights by police and also suppressing civil liberties. After winning 1977 general elections, the Janta Party promised to restore the constitution to the condition it was before the emergency. The Janta Government brought 43rd amendment in 1977 and 44th amendment in 1978 for restoring the pre-1976 position to some extent but the Janta Party could not fully achieve the objectives it has aimed for. In the judgment on Minerva Mills V. Union of India on July 31, 1980, the Supreme Court declared unconstitutional 2 provisions of 42^nd amendment which were preventing any Constitutional amendment form being ‘called in question in Court or any other ground’ and accorded precedence to the Directive Principles of State Policy over Fundamental Rights of individuals.

Enactment

Under the Chairmanship of the Minister of External Affairs (1976) Swaran Singh, the Prime Minister, Indira Gandhi set up a committee in 1976. This committee was set to study the question of the amendment of the Constitution.

On September 1, 1976, the bill for the  Constitution (42^nd Amendment) act 1976 was introduced in Lok Sabha, as Constitution (42^nd Amendment) Bill, 1976 (Bill Number 91 of 1976). This was introduced by the then Minister of Law, Justice and Companies Affairs, H R Gokhla. It soughed to amend the Preamble Articles : 31, 31 C, 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 371 F and the 7th schedule. It also substituted articles 103, 150, 192 and 226 and also inserted new parts IVA and XIVA and new articles inserted in the Constitution are 31 D, 32 A, 39 A, 43 A, 48 A, 131 A, 139 A, 144 A, 226 A, 228 A and 257 A. On October 27, 1976, in a speech in Lok Sabha, Indira Gandhi claimed that the amendment was responsive to the aspirations of the people and it was reflecting the realities of the present time and future.

From October 25, 1976 to October 30, 1976 and November 1, 1976 to November 2, 1976, the bill was debated by the Lok Sabha. Clauses which were adopted in their original form were 2 to 4, 6 to 16, 18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50 and 56 to 59. Before being passed the remaining clauses were amended in Lok Sabha. On November 1, 1976, clause 1 of the bill was adopted by Lok Sabha and amended to replace 44th with 47th. October 28, 1976, clause 5 soughed to introduce new article 31 D to the Constitution. November 1, 1976 amendments to all other clauses were adopted and on November 2, 1976 bill was passed by the Lok Sabha. On November 4, 5, 8, 9, 10 and 11it was debated by the Rajya Sabha. On November 10, 1976, the Rajya Sabha adopted all the amendments which were made by Lok Sabha and on November 11, 1976, the bill was passed. The bill after ratification by the states, received assent from President, Fakhruddin Ali Ahmed (1976) on December 18, 1976, and on the same day it was notified in the Gazette of India from January 3, 1977 section 2 to 5, 7 to 17, 20, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of 42^nd amendment came into force. From February 1, 1977 section 6, 23 to 26, 27 to 42, 54 and 58 were into effect and from April 1, 1977 section 27 was in effect.

Ratification

In accordance with the provisions of article 368 of the constitution, the 42^nd amendment act was passed. More than half of the state legislatures as required under article 368 (2) to ratified it. The State Legislatures that ratified the amendment were: Andhra Pradesh, Assam, Bihar, Haryana, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Manipur, Orisa, Punjab, Rajasthan, Sikkim, Tripura, Uttar Pradesh and West Bengal. The state which did not ratify were Gujrat, Jammu and Kashmir, Kerala, Meghalaya, Nagaland, Tamil Nadu.

After Effects

Indira Gandhi implemented 20- point program of economic reforms during the emergency which resulted in great economic growth and it was aided by the absence of strikes and conflicts between the trade union. In the manifesto of 1977 election, the Janta Party promised to the people to restore the constitution to the conditions in which it was before the emergency and to put regress restrictions on analogous powers and executive’s emergency. The control of Congress over the executive and the legislature ended in this election. The Moraji Desai Government tried to repeal the 42nd amendment. The Janta Government brought 43rd and 44th amendments in 1977 and 1978 respectively in an attempt to restore to some extent pre- 1976 position. The amendments revoked 42nd Amendments provision that Directive Principles take Precedence over Fundamental Rights and cubed Parliament’s power to legislate against anti-national activities.

Legal Challenges Faced

In Minerva Mills V. Union Of India, the constitutionality of sections 4 and 55 of 42^nd amendment was challenged. 42^nd Amendment amended article 31 C (4) of the Constitution to accord precedence to Directive Principles of State Policy articulated in Part IV of the Constitution over fundamental rights of individuals articulated in Part III. The constitutional amendment was prevented by section 55 from being called in question in any court on any ground. It declared that there will be no limitation whatever on the power of Parliament to amend the constitution. After Indian General Election 1980, the Supreme Court declared 4 and 55 of the 42^nd Amendment unconstitutional. It also endorsed and evolved the basic structure doctrine of the Constitution.

On judgment of section 4, Chief Justice Yeshwant Vishnu Chandrachud :

“Only three articles of our Constitution stand between the heaven of freedom into which Rabindranath Tagore wanted his country to awake and the abyss of restrained power. The three articles are article 14, 19 and 21.  The article  31 C efforts the people of India and assurance that the promise held by forth by Preamble will be formed by Ushering and Egalitarian era though the discipline of fundamental rights,  that is without emasculation of the rights to liberty and equality which alone can preserve the dignity of the individual.”

On section 4  the Constitution has best stored limited amending power on the Parliament and so the limited power cannot be enlarged into absolute power. So the limiting amending power is the basic feature of our Constitution yet the limitations on the power cannot be destroyed. This means that Parliament cannot expand its amending power under article 368 so as to get the right to repeal the constitution to destroy the basic and essential features. The ruling was happily welcomed in India and the verdict was not challenged by Indira Gandhi.

Conclusion

The most controversial  Constitutional amendment in history is the 42^nd amendment. This act is also called as The Constitution (Forty-Second Amendment) Act, 1976 as it amended and introduced various provisions like :

• To reduce the  power of Supreme Court and High Courts were attempted.

• Preamble terms – Socialist, secular  and integrity were added.

• Fundamental Duties  of citizen were laid down for Indian Citizens.

The Constitution  (Forty-Second Amendment) Act, 1976 is also called  ‘Mini-Constitution’ or ‘Constitution of  Indira’.

The Indian Constitution Act, 1976  was criticized by the opponent s of the Indira Gandhi. The opponents of Indira Gandhi felt that large changes in Constitution are an attack on the Federal structure of India as there is a provision in the act to transfer major power from State Government to Central Government. This led to the centralization of power and is against the federal structure of the nation. Without worrying about the judicial review, the amendments give boundless power to the Indian Parliament to amend any part of the  Constitution. This has reduced the power of judicial review of the Supreme Court. The Supreme Court was again empowered with the power of Judicial review when Moraji Desai became the Prime  Minister.