What is the 42nd Amendment all about?

The Constitution (Forty-second Amendment) Bill, 1976 was introduced in the Lok Sabha by H. R. Gokhale who was the Minister of Law, Justice and Company Affairs. This amendment bill was one of the most controversial Bill in the Indian history. It came to be known as the ‘Mini Constitution’ due to the fact that there where many changes made in the constitution after this amendment act was passed. It was enacted in the times of emergency1 which was proclaimed by the then Prime Minster of India Indira Gandhi. For a better understanding of this amendment, we must first make ourselves clear with what is amendment and what are the methods for making the same.

Amendment is the alteration, modification or repelling the old texts, manuscripts etc. due to change in time or situations, such amendments when made in Constitutional laws are known as the constitutional amendments. The part XX, Article 368 of the constitution of India lays down the procedures for amending its’ Articles and schedules. There are two procedures that can be followed for making amendments in the Indian Constitution.

  1. The first kind of amendment are the ones that can be done by a simple majority, there are a number of provisions in the constitution that requires only a simple majority of the houses of Parliament. These provisions involve the formations of a new state or alteration of the already existing ones, usage of official languages, elections to parliament, citizenships, administration of Scheduled tribes and Scheduled areas as well the tribal areas.
  2. Under clause (2) of Article 368, the procedure of amendment using special majority is dealt with. The articles which do not require ratification of states can be amended by passing the bill with a special majority. These include the directive principles and also the fundamental rights.

The 42nd Constitutional amendment bill quested to bring changes in about 40 articles, namely Article 31, 31C, 39, 55, 74, 77, 81-83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 194, 208, 217, 225-228, 311, 312, 330, 352, 353, 356-359, 366, 368 and 371F along with some changes in the preamble and seventh schedule. It proposed an introduction of 14 new articles (Article 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A, 257A and Parts 4A companied with 14A)2

Political scenario in the year 1976

            The Indian National Congress formed the government in 1971, Indira Gandhi was elected as the Prime Minister after securing 352 seats out of the 518 seats. Raj Narain who was her opposition accused the former of violating the election code in Representation of the People Act, 1951 and appealed for nullifying the elections. There were a number of amendments done in the emergency period.

The national emergency was imposed in India on 25th of June, 1975. The central government argued that it was the need of the hour as there was a price hike in the price of consumer goods due to the ongoing conflicts between India and Pakistan as well as the oil crisis in the recent years, but it was also the time when Indira Gandhi was found guilty of election malpractices by the Allahabad High Court in the case of Indira Gandhi v. Raj Narain (1975)3 the decision caused an uproar in the entire nation. Around the time at midnight when emergency was declared by the President, Fakhruddin Ali Ahmed, the connection of various media houses was cut down and many opposition ministers were sent to prison. This led to lesser opposition in the parliament and at such times the bill for making the 42nd Amendment was introduced. The emergency itself was not following the exact procedures of the constitution and the bill for the amendment also included changes to be made regarding the same. Raj Narain argued that many of the parliament members were in detention and therefore could not vote for passing or withdrawal of the bill.

Changes made in the 42nd Constitutional Amendment Act, 1976

As mentioned by H. R. Gokhale the bill that was introduced had many objectives some of them include the need for the constitution to grow. Due to obsolescence and changing situations it becomes a need for the amendments to be made. There was also a need to achieve some socio-economic revolutions that would lead to a better employment opportunity, eradication of poverty and illiteracy. The changes made in the amendment act were:

  • The first and foremost was the amendment that was to be done in the preamble. It stated that the words “SOVEREIGN DEMOCRATIC REPUBLIC” should be substituted with “SOVEREIGN SOCAILIST SECULAR DEMOCRATIC REPUBLILC” and the “unity of the nation” should be replaced with “unity and integrity of the nation.”
  • The sub-heading “saving of certain laws” was inserted in article 31. The saving of laws means a clause in a statute that exempts a part of the contract from non-operation if the rest of it is invalidated.
  • The words, brackets, letters and figures in articles 31C “the principles specified in clause (b) or clause (c) of article 39” were substituted with “all or any of the principles laid down in part IV.”
  • A new article 31D was also included in the constitution, this article was placed before the sub-heading “Right to constitutional remedies” after the article 31C. This dealt with saving of laws with respect to the anti-national activities. It also stated that the state legislatures could not make any laws with respect to the matters referred to in the clause (1) of the article. According to the amendment act an anti-national activity in relation to an individual or association means any action taken which intends or claims to support the cession of a part of Indian territory or secession of the same, inciting any other individual or association to bring about any such cession or secession. It also involves the disclaims, questions, threats to the sovereignty and integrity of the nation.
  • Article 32A stated that the constitutional validity of state laws should not be considered as in proceedings under article 32 unless the validity of a law made by the centre is also issued in the proceedings.
  • Article 39 clause (f) was substituted, it mentioned that the children should be given the opportunity and conditions of freedom which would lead to a life free from any kind of exploitation or moral and material abandonment. A new article 39A was also inserted which dealt with “equal justice and free legal aid.” It was upon the state to promote justice and equal opportunity to its individuals. The people who are not able to get justice due to lack of finances, should be provided with the schemes to ensure opportunities for securing justice.
  • Article 43A “Participation of workers in management of industries” was also a new article which was taken up in the 42nd amendment.
  • An article for improvement and protection of the environment and also for safeguarding the forests was included after article 48 and was known as Article 48A
  • One of the most significant changes or addition done to the constitution was of inserting the Part IVA, article 51A to it. The article dealing with the fundamental rights as a citizen of India was given light in this amendment act. It deals with the duties like respecting the national flag, anthem cherishing the noble ideas, upholding the sovereignty and integrity of the nation etc. These are some of the duties that is implied for every citizen of this nation.
  • Article 55 contained the reference to figures of census in the 1971 till a new census in 2000 takes place. Another change made was in the article 74, clause 1 of the article was substituted dealing with the requirement of a council of ministers with the prime minister as its’ head to aid and advise the president. Article 77 stated that no court shall be required to make rules made under clause (3) of the same article for convenience of a government business.
  • In article 81 clause (3) a proviso was added, and in article 82 too, a proviso was included. The proviso was that the president may specify the date for readjustments, and until then elections for the house may be held on the basis of the constituencies. In clause (1) of the next article five years was substituted with six years. And clause (2) contained that the amendment done in the 1st clause should also be applied to the house of the people.
  • In article 100 clauses (3) and (4) were omitted. Article 102 had a substitution of clause (1) sub-clause (a), stating that if he holds any office of profit under the government of India or any state, he can be disqualified.
  • Article 103 was substituted with a new one, it dealt with the decisions of the questions on disqualification. A substitution of clause (3) of article 105, with respect to the powers, privileges and immunities of the houses of parliament along with the members of the same.
  • The words “(including the quorum to constitute a meeting of the house)” were included after the words “its procedure” in the article 118 clause (3).
  • The exclusive jurisdiction with regards to the constitutional validity of central laws was exclusively provided to the Supreme court. It also stated that wherever the High court was satisfied that the case is relating to the constitutional validity of a law shall refer the same to the Supreme court. it also contained a clause that if the Attorney-general makes an application to the Supreme court regarding the above-mentioned topic then the latter might require the High court to refer the questions to it for its’ decision.
  • Article 139A that was inserted in the constitution after this amendment was regarding the transfer of cases made by the Attorney-general. If the Supreme court is satisfied that the case, involving a common question of law is pending before it or any other High court, then it may itself dispose of all the cases.
  • A new article 144A was also included dealing with the special provisions to dispose of the questions relating to the constitutional validity of laws. The minimum number of judges that would sit for such a case was fixed at seven and if not less than two-third of the sitting judges consider it to be invalid, then it will not be declared as invalid.
  • An amendment was made in article 145, a sub-clause (cc) was added in clause (1) dealing with the rules for proceedings in the court under article 131A and article 139A. In clause (2) the words “provisions of clause (3)” were replaced by “provisions of article 144A and of clause (3)” and clause (3) the words ‘the minimum number” were substituted with “subject to the provisions of article 144A, the minimum number”.
  • The old article 150 was substituted by a new one stating that the accounts of the Union and states shall be kept in a form as the president on consultation of the Comptroller and Auditor-general of India shall prescribe. In article 166 a new clause (3) was added stating that no court shall be entitled to make rules for convenience of business transactions of the government of states.
  • In article 170 an explanation and two provisos were substituted, in Article 172 (1) the words “five years” were substituted with “six years” applying to all the legislative assembly existing at that point of time. The clauses (3) and (4) of article 189 were omitted.
  • The sub-clause (a) of clause (1) of article 191 was substituted with the words if ‘he’ holds any office of profit under the government of India or government of any state then the parliament can disqualify such holder. The next article 192 was substituted with a new one. It dealt with the decisions of questions on the disqualification of members with respect to the amendment made in article 191 (1). Article 194 had a significant number of changes, with clause (3) substituted. It dealt with the powers and privileges of the house of legislature of a state along with the members of the committees of a legislative house.
  • In article 208 (1) after the words “its procedure”, “(including the quorum to constitute a meeting of the house)” along with the brackets were inserted. Further in article 217 (2) sub-clause (a) the word “or” was inserted at the end. And a sub-clause (c) was added with an explanation. The proviso contained in the article 225 of the constitution was omitted after this amendment.
  • An important article 226 dealing with the writs issuing power of the High courts was substituted with a new one. It provided power to the High Courts to issue writs within its’ jurisdiction. These writs could include any of Habeas corpus, prohibition, quo warranto or certiorari. It could be issued for the enforcement of any rights with regards to Part III or for the redressal of substantial injuries with regards to contraventions of constitutional provisions. This part of the amendment contained a detailed procedure and requirements for the writ issuing power of the High courts.
  • Every High court shall have superintendence over all appellate courts, also the High court would not question any judgement of the inferior courts if there is no appeal or review request for the same. This amendment to the article 227 was also made.
  • Article 228 had a substitution of words “it shall withdraw the case and may…” with the new words “it shall withdraw the case and, subject to the provisions of article 131A may…”. A new article 228A was also added which was regarding the special provisions of article 131A. The minimum number of judges for a case related to constitutional validity of a state law was determined to be five.
  • Article 257A was also inserted in the Indian constitution. It contained the legislature for the assistance of deployment of armed forces to the states to control grave situations.
  • In article 311(2) sub-clause (a) the old words “and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry” was omitted. In sub-clause (b) the words “provided that this clause shall not apply…” were substituted.
  • In the very next article 312 clause (1) sub-clause (a) the word “Part XI” was replaced with Chapter VI of Part VI or Part XI” and after the words “all-India services”, “(including an all-India judicial service)” was added.
  • Part XIVA was added to the constitution of India, which dealt with Tribunals. Article 323A stated administrative tribunals, the parliament may adjudicate tribunals for disputes and complaints with respect to recruitment and conditions of working for the people appointed for the public services. This article further gave a detailed understanding for the setting up, working and functions of such tribunals. It also stated in a sub-clause that these tribunals can repeal or amend the orders of the President under clause (3) of article 371D. Article 323B included the working of tribunals for other matters.
  • In article 330 an explanation of population was added at the end, and in article 352 after the words “make a declaration to that effect” a few more words were added. In clause (2) sub-clause (b) “on varied” was added after “revoked” and another sub-clause (c) was inserted.
  • To article 353 a proviso was added containing that in case of proclamation of emergency in any Indian territory the executive powers of the union to give directions, also the power to make laws shall be extended to the states other than the state under emergency. The article 356 substituted the words from “six months” to “one year”. In article 357 the old clause (2) was substituted with a new one concerning with the laws made by the parliament or the President at the time of emergency after the proclamation has ceased to operate.
  • A proviso for taking an executive action for a territory under emergency was added in the article 358 of the Constitution. In article 359, following (1A) and (2) clauses provisos were inserted.
  • After the clause (4) of article 366 another clause (4A) was added which explained “central law” and after clause (26) a new clause (26A) was inserted, and this described the “state laws” along with related matters. For the article 368 after clause (3) new clause (4) was inserted, it said that no amendments of the constitution would be questionable in any court on any ground. The last article that was amended was article 371F, in the clause (3) the words “five years” were substituted with “four years”.
  • Another amendment was the changes made in the seventh schedule of the Indian constitution. In List I, that is the union list after the second entry 2A was inserted which stated the deployment of armed forces to aid civil power and privileges. In List II that is the State list the words “the use of naval, military or air forces or any other armed forces of the union” were substituted by “the use of naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof”, there were changes in entry 2 and 3 whereas the entries 11, 19, 20 and 29 were omitted. In the List III, concurrent list 11A, 17A,20A and 33A entry was inserted.

These were the changes that were made in the 42nd Constitutional amendment, but not all amendments led to any betterment of the nation. Further the conditions changed and up to this date many amendments have been made that changed the articles and Parts that were added or altered in this act. Many consider this as an unfair amendment as many of the opposition members were imprisoned and therefore, they did not consider it to be an amendment that should have taken place at such a time.

Cases related to the 42nd Amendment Act.

The ‘fundamental rights case’ judgement led to a conflict between the central government and the judiciary of the country. Keshvananda Bharti v. State of Kerala, (1973)4 the Supreme court held that there are some basic structures in the framework of the Indian Constitution that cannot be amended by the parliament. The Chief Justice stated that Article 368 dealing with the amendment of the constitution should be additions or changes of provisions to carry out the basic objectives of the constitution, these should remain within the broad scope of the preamble. The changes should be such as to not destroy the foundation of the Indian Constitution.

This case over-ruled the Golaknath case5, the Supreme court overruled its decision in Shankari Prasad and Sajjan Singh cases6 and held that the Parliament does not have any authority to amend the Part III of the constitution. It cannot abridge or omit any fundamental rights therefore such amendments cannot be passed. More-over in Indira Gandhi v. Raj Narain case7 the court held that the constitutional amendments to regulate Indira Gandhi’s election was struck down taking into account the basic structure of the constitution involving democracy and equality.

In Minerva Mills v. Union of India8 the court held that “Clause 5 of article 368 transgresses the limitation on the amending power of the Parliament and is therefore unconstitutional.”

These cases restricted the ultimate powers given to the Parliament and Courts, so that the basic rights and democracy of the nation is not hampered.

Conclusion

            There were a lot of amendments that were passed with the 42nd constitution amendment bill, but some of them were only for justifying the decisions of the central government at the times of emergency. The very fact that there was a little opposition due to the reasons already discussed if not all, some of the changes made were not completely constitutional. But we cannot rule out the silvers from this amendment, the inclusion of directive principles, fundamental duties were definitely for the betterment of the nation. And up to this date when we have seen more than a hundred amendments in the Indian constitution, we can always have the chance to look up and rectify the wrongs. Some if the changes made during the 42nd amendment have been again amended in the later years as the situation demands whereas the fundamental duties, directive principles and many other things remain unchanged.

            One thing that is to be sure is that this 42nd Constitutional Amendment Act will always remain one of the most controversial and debatable topics in the Indian modern history. The amendment which came to be known as the mini constitution which consisted of more than 60 changes, changed the political scenario, powers and privileges as well as the functioning of the central government of India.


Author: Annu Kumari from LPU, Punjab.


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