42nd Amendment Act, 1976

42nd Amendment Act was enacted by the Indian National Congress headed by Indira Gandhi then. Because of the oodles of amendments this act bought in the Constitution of India, it is also known as the ‘Mini Constitution’. The infamous emergency in India was in effect from 25 June 1975 until its withdrawal on 21 March 1977. The President of India then, Fakhruddin Ali Ahmed, upon advice by Prime Minister Indira Gandhi, declared a state of emergency under Article 352 of the Indian Constitution, effectively bestowing on her the power to rule by decree, suspending elections and civil liberties. In 1976 most of the opposition leaders like L.K Advani and Atal Bihari Vajpayee were in jail, and madam Indira Gandhi bought this 42nd Amendment of the Constitution when there was no opposition. In this article, we will try to understand important amendments that were brought in the Constitution Act, 1976.

On June 12, 1975, a judgment was passed by the Allahabad high court in the case of Indira Gandhi vs. Raj Narain in this case Indira Gandhi was accused of committing electoral misconduct in the 1971 general elections. This was the landmark case that created history and led to the imposition of Emergency in India from 1975 to 1977. Justice Sinha passed the order that Madam Indira Gandhi is found guilty and hence disqualified as a member of parliament. After this order, many protests and public movements started arising. Under this pressure madam, Indira Gandhi took the decision of launching an Internal Emergency under article 352 of the Indian Constitution. On the night of June 25, 1975, India goes into its first-ever internal emergency. Article 352 provides three grounds to launch the emergency war, external aggression, and internal disturbance, Indira Gandhi used the internal disturbance to launch the emergency. The 21-month emergency is considered the darkest hour of India’s democracy. A very controversial act was passed in 1971 named M.I.S.A (THE MAINTENANCE OF INTERNAL SECURITY ACT) this act suspended the article 20 and 21 of the Indian Constitution, these acts talk about protection from arbitrary convection and right of life and personal liberty respectively. This act also curtailed press freedom, the article 19(1)(a) gives us implied freedom to express our views, opinions, and beliefs by writing, words, printing, painting, etc. now at this when there was no opposition, there was no freedom of the press the government brought the 42nd Amendment Act, 1976 which changed the destiny of the Indian Constitution.

Our constitution is considered remarkable and incomparable for its content and spirit. The Indian Constitution decides the rule of the land and is taken as the supreme law of the land. So far, there are 104 amendments have been made in the Indian Constitution since its inception in 1950. But the 42nd amendment is considered one of the most controversial acts in the history of amendments to the Indian Constitution. This amendment was so vast in nature and character that it is the longest amendment act of the constitution. The 42nd 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. This amendment attempted to alter the basic structure of the Constitution. The major purposes of the amendments were –

  • To preclude the law of courts entirely from the election disputes,

  • ‘To trim' the judiciary, so as to ‘make it difficult for the court to upset parliament's policy in regard to many matters’;

  • To intensify the central government in comparison to the state governments and its Compatibility to rule the country as a unitary, hence to eliminate federal system;

  • To give maximum protection from judicial challenge to the social revolutionary legislation decisions.

The preamble is the reflection of the constitution and for the first time and the only time the Preamble was amended. The three new words ‘Socialist’, ‘Secular’ and ‘Integrity’ were added in the Preamble of the constitution, this changed the characterization of India to "sovereign, socialist secular democratic republic" from "sovereign democratic republic and he words ‘unity of the nation' was changed to ‘unity and integrity of the nation'. The founding fathers avoided to add the words “secular” and “socialist” because they wanted the world to know the unique definitions of these words. For world secular means separation of religion and state, but for we have the definition of secularism stated in the preamble as “liberty of belief faith and worship”. They also declared India as a socialist Country but they did not define the “Socialist”. Many intellectuals criticized this move because the preamble is the last thing that was added in the constitution and it was the reflection of the constitution, they said that you can change or amend the vision but not the reflection of the constitution.

The scope of article 31(c) was increased in this amendment, this article was added in the constitution by madam Indira Gandhi in the 25th Amendment Act, 1971. This article talks about DPSP (Directive Principals of State Policy). In the 25th amendment this article said that if the state makes any law with relation to articles 39(b) and 39(c) of the constitution then even if it is dominating part 3, it will not be declared null and void. In the amendment, it was added that if the state makes any law with relation to any DPSP present in part 4 which violates any article of part 3 then it will not be declared null and void. Part 3 fundamental rights always dominate Part 4 DPSPs as they are guaranteed and justifiable. In the Champakam Dorairajan case 1951 the supreme court said that if there will be any dispute between parts 3 and 4, part 3 will always dominate part 4. In the 25th amendment this article said that if the state makes any law with relation to articles 39(b) and 39(c) of the constitution then even if it is dominating part 3, it will not be declared as null and void.

The word “anti-national” was brought in article 31(d) and this article said if the state makes any law or act dealing with anti-national and even if that act would be violating the fundamental rights then also it cannot be declared null and void. The definition of anti-national which the state gave was anybody who says anything against the current government would be considered anti-national.

Article 39(a) in the amendment gave free legal aid to the citizens of India. Article 39(f) dealt primarily with the health of children; it was saying that children should be given an opportunity to live their lives as children in dignity.

Before 42nd amendment the article 352 said that if the president is satisfied that there is a grave threat to the security and safety of India, then on the grounds of war, external aggression, and internal dispute then he can invoke emergency under article 352 on the advice of the cabinet ministers. Now here we can see that the emergency is invoked on all of India or each and every part of India, the 42nd amendment amended this article that is not necessary to impose an emergency on all of India, even a part of India shall be enough. Now here we can see that there are some words which can be misused, for example ‘internal dispute’ now what is an internal dispute? At the time when the emergency was imposed, the protestors were protesting against the corruption done by the government now this can be interpreted in two ways, either they were protesting against the corrupt part of the government or the whole government. Madam Indira Gandhi used this protesting as an internal dispute and declared an emergency. Law has to be written comprehensible and clear, law cannot be arbitrary and ambiguous.

Article 131-A was added which talks about judicial review, as we know a judicial review is a review of government decisions done by the Supreme Court of India. A court with authority for judicial review may invalidate laws acts and governmental actions that violate the Basic features of the Constitution. Now, this article said that the supreme court can only review the central or union laws and high courts can only review state laws. Indian judicial system is known as an Independent, integrated, and unbiased judicial system. Now, this article could have crumbled the pyramid of our judicial system. Article 144-A and 228-A of the constitution which talked about the supreme court and high court respectively, said that if the court wants to do a judicial review then it has to be a 7 Judges Bench. The size of the bench and who will sit on the bench and all those decisions were left to the discretion and the only final authority of the Chief Justice of India, this was the wisdom of the founding fathers, but the amendment changed it. These articles were affecting the Independence of the Judiciary and these articles were also affecting the doctrine of supersession of powers.

The amendment also froze the delimitation process, Delimitation literally means the act or process of fixing limits or boundaries of territorial constituencies in a country or a province having a legislative body. We know that every 10 years a census is done and according to the result of that census we redistribute or fix our constituencies according to the newly collected data. The goal of this process is to divide all the constituencies. Now in this amendment, the process of delimitation was frozen to the year 2000.

This amendment is known as the ‘Mini Constitution’ as it amended the preamble, rewrite 40 articles, and added 14 new articles. Many people criticized this amendment by saying this was Indira’s Constitution. On 23rd March 1977, the emergency was removed and general elections took place and by an electoral process for the first time a non-congress prime-minister Mr. Morarji Desai. Desai’s government bought two constitutional amendments the 43rd and 44th. These were brought to dissolve all the unnecessary articles and were supposed to be the remedy to the problems or arbitrary use in the 42nd Amendments act, 1976. This amendment is not unconstitutional but it’s still a very arbitrary misuse of the power of parliament. With the changing world, amendments are important but they should favor the nation, not the government, they should more citizen-centric not government-centric.

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