The 39th Constitutional Amendment

Introduction:

Constitution can be understood as a document which lay down the rules of governance and controls the polity and organization that is engaged in governance.[1] The constitution can be written in form of a single comprehensive document or be uncodified and taken from legislative actions of parliament, court’s precedents or treaties.[2] The document lays down the Code to delimit and controls the structural framework, procedural framework, capacity, and responsibility of government institutions and sets out rights of fundamental nature, directive principles, and the duties of citizens. The principles of smooth working of state and authorities as to legislative powers with qualification and disqualifications are set forth.

The ideas to keep state under check and watchdog citizens’ right are also one of the contents of the constitution.[3] Being the world’s longest constitution with around one lac forty- five thousand and three hundred eighty-five words in its English translation [4], it is formulated under the chairmanship and chief architecture of Dr Bhim Rao Ambedkar.[5] The Constitution of India saw the daylight on 26th January 1950[6]. To make the constitution timeless and be dynamic in order to be comfortable with changing time, the provision of Amendment was inserted. The procedure to amend the Constitution of India is detailed in Article 368 under Part XX of the Constitution[7]. As of January 2020, there have been 104[8] amendments of the Constitution of India since it was first enacted in 1950.[9] 10 August 2020, marks the 45th anniversary of the Constitution (Thirty-Ninth Amendment) Act, 1975. There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368.

• The first type of amendments includes that can be passed by “simple majority” in each house of the Parliament of India.
• The second type of amendments includes that can be affected by the parliament by a prescribed “special majority” in each house; and
• The third type of amendments includes those that require, in addition to such “special majority” in each house of the parliament, ratification by at least one-half of the State Legislatures.

The special majority kind of amendments that are made to the constitution are amendments No. 3, 6, 7, 8, 13, 14, 15, 16, 22, 23, 24, 25, 28, 30, 31, 32, 35, 36, 38, 39, 42, 43, 44, 45, 46, 51, 54, 61, 62, 70, 73, 74, 75, 79, 84, 88, 95, 99, 101, 102, 103 and 104.¹⁰

Background

The background of the 39th Constitutional Amendment can be traced along with the victory of Indira Gandhi for her second term in 1971. The fifth Lok Sabha election was won by Mrs Gandhi with a huge margin. Out of 518 seats, 352 seats were in favour of Congress. The counterpart of Indira from Rae Bareilly, Raj Narain who headed Ram Manohar Lohia’s Samyukta Socialist Party was disappointed with this brutal defeat.

Dishearten with the defeat by that large margin, Nairain knocked the doors of Allahabad High Court. He requested the Court to see in the elections. He emphasized that unfair and corrupt practices are being relied upon. The case was filed under code regulating the conduct of candidates during elections and under Representation of the People Act, 1951. The involvement of government officials and even armed forces along with police in Mrs Gandhi’s election campaign made the election unworthy. The challenges were placed on 24th April 1971.

The use of government vehicles to distribute liquor and blankets in order to influence voters along with excessive expenditure over election campaigning was too put in the light before the court.

Justice Jagmohan Lal Sinha in his speaking order considered Mrs Gandhi liable for use of governmental machinery for her campaign. The said actions are prohibited under Section 123(7) Of Representative Of People’s Act, 1951. Therefore the Allahabad High Court considered Mrs Gandhi’s election void due to reliance on corrupt practices. The order dated twelfth June 1975 banned her to contest election for an additional six years. Mrs Gandhi thought to advance the Apex Court against this oppressive decision but the Hon’ble Supreme Court was on vacation so there was an executional stay allowed.

The sources of Mrs Gandhi at the Supreme Court suggested that the highest Judiciary might not favour the lifting of the ban and may confirm the High Court’s decision. Although the Supreme Court later favoured Mrs Gandhi and the elections were considered valid along with some executive interference in the Apex Court. But Mrs Gandhi wanted to safeguard herself so she passed the 39th Constitutional Amendment which inserted Article 329A. The Article 329A prohibits Court of Law to have jurisdiction over the elections of President, Prime Minister, Vice-President and the Speaker of Lok Sabha Additionally there was a nationwide emergency declared so the government stay status quo. Then-President Fakhrudeen Ali Ahmad proclaimed an emergency stating reasons of internal disturbance but it was unmistakably obvious that the genuine reason was a prompt crisis created over Mrs Gandhi’s Office by Allahabad High Court’s decision.[11]

During this time, Indira Gandhi pushed for the 39th Amendment act to secure her position and prevent her removal from Indian politics. The 39th Amendment also extended immunity to a number of statutes from judicial purview on the ground of infringement of Fundamental Rights by including them in the Ninth Schedule.[12]

The Constitutionality of the 39th Constitutional (Amendment) Act, 1975 was challenged in the Supreme Court in Indira Gandhi vs Raj Narain.[13] 

She also went ahead bringing about The 42nd Amendment Act that included clause four and five of article 368, removing all restriction regarding the amendment power of the parliament and providing that amendments were not contestable in any court of law in India.[14]

Provisions

The Amendment passed on 10th August 1975, was a makeshift arrangement made by Mrs Gandhi to nullify the Allahabad High Court’s attempt to invalidate the V Lok Sabha elections. The idea was to take away the Court’s power to delimit or control the election-related matters.

The amendment was passed promptly on 7^th August 1975 passed by Lok Sabha and the following day Rajya Sabha too approved the same. As many as seventeen State assemblies were summoned to concur with the Parliamentary resolution and President  Ali Ahmad gave his assent subsequently. This quickness for passing the Amendment was to infructuate the appeal before the Highest Court of Law in India as listed on 11^th August 1975.

• Amend articles 71

The article 71(2) provides for parliament by law to establish a body or authority for deciding such disputes, and its decision will not be challenged in any Court.

• Amend 329

The election of Prime Minister and Speaker of Parliament were also taken out of election dispute settling mechanism under Art 329. This resulted in no Court can hear the disputes out of the election of abovementioned.

• Insert article 329A
  • The provision dealing with the election to either house of parliament of a person who held the office of Prime Minister at the time of the elections or was appointed as Prime Minister after such elections, and to House of People of a person who held the office of Speaker at time of such election or was chosen as Speaker after such elections.
  • The abovementioned provision insertion made certain changes so now the Parliamentary Law would now not be controlled by disqualifications under Article 102(1)(e). The article 102(1)(e) disqualifies a person holding the office of profit to fight for elections for membership of Houses of Parliament, which after this amendment will be inapplicable.
  • Additionally, any dispute mentioned in the abovesaid matter can not be taken to any Court of law.
  • The amendment thus makes the election of Prime Minister and Speaker of Lok Sabha along with their election in a special category while the other members’ house and their election-related law remain unchanged.
  • The decision of The Allahabad High Court was nullified and Mrs Gandhi’s election was declared valid.

• Amend schedule 9

The above-mentioned changes were put in IX Schedule as to put it away from the scrutiny of the watchdog of Citizen’s right.

Conclusion

• The misuse of power to amend the constitution could not be imagined before the 39th Amendment was just to validate a single election the basic ideals of the constitution were twisted for own political agendas. The history will always remember that just to keep herself in power, Iron lady Mrs Indira Gandhi, amended the whole Constitution.
• The Supreme Court rendered a yeoman service to the Constitution by vetoing such a distorted law.
• The instance provides for sterling testimony to the worth of the doctrine that the fundamental features of the Constitution should not be amended. There always lukes the danger of ruling party with help of majority in both the Houses of Parliament.
• Though the Supreme Court heard the appeal in the matter of Mrs Gandhi’s election but considered her election as valid.

The Supreme Court later in various cases laws restored the constitutional spirit. The danger of Parliament by its special majority or otherwise amend the constitution in order to fulfil own selfish motives to stay in power prevails but the Keshvanand Bharti judgement16 demarcated the areas where amendment in the constitution is allowed. The parliament, in other words, was not allowed to tamper with Basic Structure and Ideas of the drafters of this Sacred Law. Further in Minerva Mills case[17], the Hon’ble Supreme Court struck down the 39th Constitutional Amendment and ratified the eclipse over the spirit of Democracy.

It is a historical lesson when the hunger of power made the provisions related to Crisis be used casually for egocentric purpose. These provisions need to be used with care and caution and any negligence can result in such blunders.

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References

1. The New Oxford American Dictionary, Second Edn., Erin McKean(editor), 2051 pp., 2005, Oxford University Press, ISBN 0-19-517077-6.
2. R (HS2 Action Alliance Ltd) v Secretary of State for Transport[2014] UKSC 3, [207]
3. Pylee, M.V. (1997). India’s Constitution. S. Chand & Co. p. 3. 
4. “Constitution Rankings”. Comparative Constitutions Project. Retrieved 22 October 2020.
5. Constitution of India”. Ministry of Law and Justice of India. July 2008. Archived from the original on February 23, 2015. Retrieved 22 October 2020.
6. Limbach, Jutta (January 2001). “Constitutional Supremacy vs Parliamentary Supremacy”. The Modern Law Review. Blackwell Publishing. 64 (1): 1–10. doi:10.1111/1468-2230.00306. Retrieved 22 October 2020.
7. DelhiDecember 10, Press Trust of India New; December 10, 2019UPDATED:; Ist, 2019 23:28. “Lok Sabha passes bill to extend SC-ST quota in legislatures”. India Today. Retrieved 22 October 2020.
8. “Amendments | National Portal of India”. www.india.gov.in. Archived from the original on 22 November 2018. Retrieved 22 October 2020.
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10. “Constitution Amendment: Nature and Scope of the Amending Process, (page 10)” (PDF). Lok Sabha Secretariat. Archived from the original (PDF) on 3 December 2013. Retrieved 22 October 2020.
11. Raj Narain v. Uttar Pradesh 1975 A.I.R. 1975
12. “THE CONSTITUTION (THIRTY-NINTH AMENDMENT) ACT, 1975”. india.gov.in. Retrieved 22 October 2020.
13.  6 constitutional amendments the SC part-struck-down (but NJAC was the first ever wholesale quash) by By SCOI Report. https://www.legallyindia.com/supreme-court/6-constitutional-amendments-the-sc-part-struck-down-but-njac-was-the-first-ever-wholesale-quash-20151103-6831 Archived from the original on 03 November 2015 Retrieved 22 October 2020.
14. Indira Gandhi vs. Raj Narain AIR 1975 SC 2299
15. The Case that Shook India- The verdict that led to emergency by Prashant Bhushan
16. Minerva Mills Ltd. & Ors vs Union Of India & Ors on 1980 AIR 1789, 1981 SCR (1) 206
17. Kesavananda Bharati  vs State Of Kerala And Anr WP (civil)  135 of 1970

18.Jain, M.P. (2019). Constitutional Law. Gaziabad: Lexis Nexis.

19.Basu, D. (2019). Constitutional Law. Allahabad: Lexis Nexis.