Forty-second Amendment of the Constitution of India
   HOME

TheInfoList



OR:

The 42nd amendment, officially known as The Constitution (Forty-second amendment) Act, 1976, was enacted during the
Emergency An emergency is an urgent, unexpected, and usually dangerous situation that poses an immediate risk to health, life, property, or environment and requires immediate action. Most emergencies require urgent intervention to prevent a worsening ...
(25 June 1975 – 21 March 1977) by the
Indian National Congress The Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...
government headed by
Indira Gandhi Indira Priyadarshini Gandhi (; Given name, ''née'' Nehru; 19 November 1917 – 31 October 1984) was an Indian politician and a central figure of the Indian National Congress. She was elected as third prime minister of India in 1966 ...
. Most provisions of the amendment came into effect on 3 January 1977, others were enforced from 1 February and Section 27 came into force on 1 April 1977. The 42nd Amendment is regarded as the most controversial constitutional amendment in history. It attempted to reduce the power of the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
and High Courts to pronounce upon the constitutional validity of laws. It laid down the Fundamental Duties of Indian citizens to the nation. This amendment brought about the most widespread changes to the Constitution in its history. Owing to its size, it is nicknamed as the ''Mini-Constitution''. Many parts of the Constitution, including the
Preamble A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subj ...
and constitution amending clause itself, were changed by the 42nd Amendment, and some new articles and sections were inserted. The amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward
parliamentary sovereignty Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
. It curtailed democratic rights in the country, and gave sweeping powers to the Prime Minister's Office. The amendment gave
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
unrestrained power to amend any parts of the Constitution, without judicial review. It transferred more power from the state governments to the central government, eroding India's federal structure. The 42nd Amendment also amended Preamble and changed the description of India from "
sovereign ''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'. The roles of a sovereign vary from monarch, ruler or ...
, democratic
republic A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
" to a "sovereign,
socialist Socialism is a left-wing economic philosophy and movement encompassing a range of economic systems characterized by the dominance of social ownership of the means of production as opposed to private ownership. As a term, it describes the e ...
,
secular Secularity, also the secular or secularness (from Latin ''saeculum'', "worldly" or "of a generation"), is the state of being unrelated or neutral in regards to religion. Anything that does not have an explicit reference to religion, either negativ ...
, democratic republic", and also changed the words "unity of the nation" to "unity and integrity of the nation". The Emergency era had been widely unpopular, and the 42nd Amendment was the most controversial issue. The clampdown on civil liberties and widespread abuse of human rights by police angered the public. The
Janata Party The Janata Party ( JP, lit. ''People's Party'') was a political party that was founded as an amalgam of Indian political parties opposed to the Emergency that was imposed between 1975 and 1977 by Prime Minister Indira Gandhi of the Indian Nati ...
which had promised to "restore the Constitution to the condition it was in before the Emergency", won the 1977 general elections. The
Janata government The premiership of Morarji Desai extended from 24 March 1977 to 15 July 1979. In the 1977 Indian general election Morarji Desai led the Janata Party to victory against the Congress party. Upon taking office, Morarji Desai became the first India ...
then brought about the 43rd and 44th Amendments in 1977 and 1978 respectively, to restore the pre-1976 position to some extent. However, the Janata Party was not able to fully achieve its objectives. On 31 July 1980, in its judgement on ''
Minerva Mills v. Union of India ''Minerva Mills Ltd. and Ors. v. Union Of India and Ors.'' (case number: Writ Petition (Civil) 356 of 1977; case citation: AIR 1980 SC 1789) is a landmark decision of the Supreme Court of India that applied and evolved the basic structure doct ...
'', the Supreme Court declared two provisions of the 42nd Amendment as unconstitutional which prevent any constitutional amendment from being "called in question in any Court on any ground" and accord precedence to the Directive Principles of State Policy over the
Fundamental Rights Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
of individuals respectively.


Proposal and enactment

Then
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
Indira Gandhi set up a committee in 1976 under the Chairmanship of then
Minister of External Affairs In many countries, the Ministry of Foreign Affairs is the government department responsible for the state's diplomacy, bilateral, and multilateral relations affairs as well as for providing support for a country's citizens who are abroad. The entit ...
Swaran Singh Sardar Swaran Singh (19 August 1907 – 30 October 1994) was an Indian politician. He was India's longest-serving union cabinet minister. Early life Swaran Singh Purewal was born on 19 August 1907 in Shankar (village) in Jalandhar distric ...
"to study the question of amendment of the Constitution in the light of experience". The bill for the ''Constitution (Forty-second Amendment) Act, 1976'' was introduced in the
Lok Sabha The Lok Sabha, constitutionally the House of the People, is the lower house of India's bicameral Parliament, with the upper house being the Rajya Sabha. Members of the Lok Sabha are elected by an adult universal suffrage and a first-past ...
on 1 September 1976, as the ''Constitution (Forty-Second Amendment) Bill, 1976'' (Bill No. 91 of 1976). It was introduced by
H. R. Gokhale H. R. Gokhale (5 October 1915 – 15 February 1978) was an Indian politician who was a member of the Indian National Congress from Maharashtra and of the Lok Sabha The Lok Sabha, constitutionally the House of the People, is the lower ...
, then Minister of Law, Justice and Company Affairs. It sought to amend the Preamble and articles 31, 31C, 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 371F and the Seventh Schedule. It also sought to substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 51A, 131A, 139A, 144A, 226A, 228A and 257A in the Constitution. In a speech in the Lok Sabha on 27 October 1976, Gandhi claimed that the amendment "is responsive to the aspirations of the people, and reflects the realities of the present time and the future". The bill was debated by the Lok Sabha from 25 to 30 October and 1 and 2 November. Clauses 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 were adopted in their original form. The remaining clauses were all amended in the Lok Sabha before being passed. Clause 1 of the bill was adopted by the Lok Sabha on 1 November and amended to replace the name "Forty-fourth" with "Forty-second", and a similar amendment was made on 28 October to Clause 5 which sought to introduce a new article 31D to the Constitution. Amendments to all the other clauses were adopted on 1 November and the bill was passed by the Lok Sabha on 2 November 1976. It was then debated by the
Rajya Sabha The Rajya Sabha, constitutionally the Council of States, is the upper house of the bicameral Parliament of India. , it has a maximum membership of 245, of which 233 are elected by the legislatures of the states and union territories using si ...
on 4, 5, 8, 9, 10 and 11 November. All amendments made by the Lok Sabha were adopted by the Rajya Sabha on 10 November, and the bill was passed on 11 November 1976. The bill, after ratification by the States, received assent from then President
Fakhruddin Ali Ahmed Fakhruddin Ali Ahmed (13 May 1905 – 11 February 1977) was an Indian lawyer and politician who served as the fifth president of India from 1974 to 1977. Born in Delhi, Ahmed studied in Delhi and Cambridge and was called to the bar from the ...
on 18 December 1976, and was notified in ''
The Gazette of India ''The Gazette of India'' is a public journal and an authorised legal document of the Government of India, published weekly by the Department of Publication, Ministry of Housing and Urban Affairs. As a public journal, the ''Gazette'' prints offic ...
'' on the same date. Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54 and 58 went into effect from 1 February 1977 and Section 27 from 1 April 1977.


Ratification

The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was being ratified by more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that ratified the amendment are listed below: *
Andhra Pradesh Andhra Pradesh (, abbr. AP) is a state in the south-eastern coastal region of India. It is the seventh-largest state by area covering an area of and tenth-most populous state with 49,386,799 inhabitants. It is bordered by Telangana to the ...
*
Assam Assam (; ) is a state in northeastern India, south of the eastern Himalayas along the Brahmaputra and Barak River valleys. Assam covers an area of . The state is bordered by Bhutan and Arunachal Pradesh to the north; Nagaland and Manipur ...
*
Bihar Bihar (; ) is a state in eastern India. It is the 2nd largest state by population in 2019, 12th largest by area of , and 14th largest by GDP in 2021. Bihar borders Uttar Pradesh to its west, Nepal to the north, the northern part of West Be ...
*
Haryana Haryana (; ) is an Indian state located in the northern part of the country. It was carved out of the former state of East Punjab on 1 Nov 1966 on a linguistic basis. It is ranked 21st in terms of area, with less than 1.4% () of India's land ar ...
*
Himachal Pradesh Himachal Pradesh (; ; "Snow-laden Mountain Province") is a state in the northern part of India. Situated in the Western Himalayas, it is one of the thirteen mountain states and is characterized by an extreme landscape featuring several peaks ...
*
Karnataka Karnataka (; ISO: , , also known as Karunāḍu) is a state in the southwestern region of India. It was formed on 1 November 1956, with the passage of the States Reorganisation Act. Originally known as Mysore State , it was renamed ''Karnat ...
*
Madhya Pradesh Madhya Pradesh (, ; meaning 'central province') is a state in central India. Its capital is Bhopal, and the largest city is Indore, with Jabalpur, Ujjain, Gwalior, Sagar, and Rewa being the other major cities. Madhya Pradesh is the seco ...
*
Maharashtra Maharashtra (; , abbr. MH or Maha) is a states and union territories of India, state in the western India, western peninsular region of India occupying a substantial portion of the Deccan Plateau. Maharashtra is the List of states and union te ...
*
Manipur Manipur () ( mni, Kangleipak) is a state in Northeast India, with the city of Imphal as its capital. It is bounded by the Indian states of Nagaland to the north, Mizoram to the south and Assam to the west. It also borders two regions of Myanm ...
*
Orissa Odisha (English: , ), formerly Orissa ( the official name until 2011), is an Indian state located in Eastern India. It is the 8th largest state by area, and the 11th largest by population. The state has the third largest population of Sch ...
*
Punjab Punjab (; Punjabi: پنجاب ; ਪੰਜਾਬ ; ; also romanised as ''Panjāb'' or ''Panj-Āb'') is a geopolitical, cultural, and historical region in South Asia, specifically in the northern part of the Indian subcontinent, comprising ...
*
Rajasthan Rajasthan (; lit. 'Land of Kings') is a state in northern India. It covers or 10.4 per cent of India's total geographical area. It is the largest Indian state by area and the seventh largest by population. It is on India's northwestern si ...
*
Sikkim Sikkim (; ) is a state in Northeastern India. It borders the Tibet Autonomous Region of China in the north and northeast, Bhutan in the east, Province No. 1 of Nepal in the west and West Bengal in the south. Sikkim is also close to the Siligur ...
*
Tripura Tripura (, Bengali: ) is a state in Northeast India. The third-smallest state in the country, it covers ; and the seventh-least populous state with a population of 36.71 lakh ( 3.67 million). It is bordered by Assam and Mizoram to the east a ...
*
Uttar Pradesh Uttar Pradesh (; , 'Northern Province') is a state in northern India. With over 200 million inhabitants, it is the most populated state in India as well as the most populous country subdivision in the world. It was established in 1950 ...
*
West Bengal West Bengal (, Bengali: ''Poshchim Bongo'', , abbr. WB) is a state in the eastern portion of India. It is situated along the Bay of Bengal, along with a population of over 91 million inhabitants within an area of . West Bengal is the fourt ...
Did not ratify: *States: #
Gujarat Gujarat (, ) is a state along the western coast of India. Its coastline of about is the longest in the country, most of which lies on the Kathiawar peninsula. Gujarat is the fifth-largest Indian state by area, covering some ; and the ninth ...
# Jammu and Kashmir #
Kerala Kerala ( ; ) is a state on the Malabar Coast of India. It was formed on 1 November 1956, following the passage of the States Reorganisation Act, by combining Malayalam-speaking regions of the erstwhile regions of Cochin, Malabar, South ...
#
Tamil Nadu Tamil Nadu (; , TN) is a States and union territories of India, state in southern India. It is the List of states and union territories of India by area, tenth largest Indian state by area and the List of states and union territories of India ...
*Union Territories at that time #
Meghalaya Meghalaya (, or , meaning "abode of clouds"; from Sanskrit , "cloud" + , "abode") is a states and union territories of India, state in northeastern India. Meghalaya was formed on 21 January 1972 by carving out two districts from the state of As ...
#
Nagaland Nagaland () is a landlocked state in the northeastern region of India. It is bordered by the Indian states of Arunachal Pradesh to the north, Assam to the west, Manipur to the south and the Sagaing Region of Myanmar to the east. Its capital cit ...


Objective

The amendment removed election disputes from the purview of the courts. The amendment's opponents described it as a "convenient camouflage". Second, the amendment transferred more power from the state governments to the central government, eroding India's federal structure. The third purpose of the amendment was to give Parliament unrestrained power to amend any parts of the Constitution, without judicial review. The fourth purpose was to make any law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court. Supporters of the measure said this would "make it difficult for the court to upset parliament's policy in regard to many matters".


Constitutional changes

Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted. Some of these changes are described below. The Parliament was given unrestrained power to amend any parts of the Constitution, without judicial review. This essentially invalidated the Supreme Court's ruling in '' Kesavananda Bharati v. State of Kerala ''in 1973. The amendment to article 368, prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on the constituent power of Parliament to amend the Constitution. The 42nd Amendment also restricted the power of the courts to issue stay orders or injunctions. The 42nd Amendment revoked the courts' power to determine what constituted an
office of profit An office of profit means a position that brings to the person holding it some financial gain, or advantage, or benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc. It is a term used in ...
. A new article 228A was inserted in the Constitution which would give High Courts the authority to "determine all questions as to the constitutional validity of any State law". The amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward parliamentary sovereignty. The 43rd and 44th Amendments reversed these changes. Article 74 was amended and it was explicitly stipulated that "the President shall act in accordance with the advice of the
Council of Ministers A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or nati ...
". Governors of states were not included in this article. The interval at which a proclamation of Emergency under Article 356 required approval from Parliament was extended from six months to one year. Article 357 was amended so as to ensure that laws made for a State, while it was under Article 356 emergency, would not cease immediately after the expiry of the emergency, but would instead continue to be in effect until the law was changed by the State Legislature. Articles 358 and 359 were amended, to allow suspension of Fundamental Rights, and suspension of enforcement of any of the rights conferred by the Constitution during an Emergency. The 42nd Amendment added new Directive Principles, viz. Article 39A, Article 43A and Article 48A. The 42nd Amendment gave primacy to the Directive Principles, by stating that "no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights". The Amendment simultaneously stated that laws prohibiting "anti-national activities" or the formation of "anti-national associations" could not be invalidated because they infringed on any of the Fundamental Rights. The 43rd and 44th Amendments repealed the 42nd Amendment's provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament's power to legislate against "anti-national activities". The 42nd Amendment also added a new section to the Article on "Fundamental Duties" in the Constitution. The new section required citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." The 42nd Amendment granted power to the President, in consultation with the
Election Commission An election commission is a body charged with overseeing the implementation of electioneering process of any country. The formal names of election commissions vary from jurisdiction to jurisdiction, and may be styled an electoral commission, a c ...
, to disqualify members of State Legislatures. Prior to the Amendment, this power was power vested in the Governor of the State. Article 105 was amended so as to grant each House of Parliament, its members and committees the right to "evolve" their "powers, privileges and immunities", "from time to time". Article 194 was amended to grant the same rights as Clause 21 to State Legislatures, its members and committees. Two new clauses 4A and 26A were inserted into article 366 of the Constitution, which defined the meaning of the terms "Central Law" and "State Law" by inserting two new clauses 4A and 26A into article 366 of the Constitution. The 42nd Amendment froze any
delimitation Boundary delimitation (or simply delimitation) is the drawing of boundaries, particularly of electoral precincts, states, counties or other municipalities.
of constituencies for elections to Lok Sabha and State Legislative Assemblies until after the
2001 Census of India The 2001 Census of India was the 14th in a series of censuses held in India every decade since 1871. The population of India was counted as 1,028,737,436 consisting of 532,223,090 males and 496,514,346 females. Total population increased by 18 ...
, by amending article 170 (relating to composition of Legislative Assemblies). The total number of seats in the Lok Sabha and the Assemblies remained the same until the 91st Amendment Bill which was the 84th Amendment to the constitution, passed in 2003, extended the freeze up to 2026. The number of seats reserved for the
Scheduled Castes and Scheduled Tribes The Scheduled Castes (SCs) and Scheduled Tribes (STs) are officially designated groups of people and among the most disadvantaged socio-economic groups in India. The terms are recognized in the Constitution of India and the groups are designa ...
in the Lok Sabha and State Legislative Assemblies was also frozen. The amendment extended the term of Lok Sabha and Legislative Assemblies members from five to six years, by amending article 172 (relating to
MLAs The Max Launch Abort System (MLAS) was a proposed alternative to the Maxime Faget-invented "tractor" launch escape system (LES) that was planned for use by NASA for its Orion (spacecraft), Orion spacecraft in the event an Ares I malfunction du ...
) and Clause(2) of Article 83 (for MPs). The 44th Amendment repealed this change, shortening the term of the aforementioned assemblies back to the original 5 years. Article 312, which makes the provision for
All India Services The All India Services (AIS) comprises the Indian Administrative Service, Indian Police Service and Indian Forest Service. A unique feature of the All India Services is that the members of these services are recruited by the centre (Union gover ...
was amended to include the All-India Judicial Service.


Amendment of the Preamble

The 42nd Amendment changed the description of India from a "sovereign democratic republic" to a "sovereign, socialist secular democratic republic", and also changed the words "unity of the nation" to "unity and integrity of the nation".
B. R. Ambedkar Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956) was an Indian jurist, economist, social reformer and political leader who headed the committee drafting the Constitution of India from the Constituent Assembly debates, served ...
, the principal architect of the Constitution, was opposed to declaring India's social and economic structure in the Constitution. During the Constituent Assembly debates on framing the Constitution in 1946, K.T. Shah proposed an amendment seeking to declare India as a "Secular, Federal, Socialist nation". In his opposition to the amendment, Ambedkar stated, "My objections, stated briefly are two. In the first place the Constitution is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism where by particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the
capitalist Capitalism is an economic system based on the private ownership of the means of production and their operation for profit. Central characteristics of capitalism include capital accumulation, competitive markets, price system, priva ...
organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be opposed." Ambedkar's second objection was that the amendment was "purely superfluous" and "unnecessary", as "socialist principles are already embodied in our Constitution" through Fundamental Rights and the Directive Principles of State Policy. Referring to the Directive Principles, he asked Shah, "If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be". Shah's amendment failed to pass, and the Preamble remained unchanged until the 42nd Amendment.


Aftermath

During the Emergency, Indira Gandhi implemented a 20-point program of economic reforms that resulted in greater economic growth, aided by the absence of strikes and trade union conflicts. Encouraged by these positive signs and distorted and biased information from her party supporters, Gandhi called for elections in May 1977. However, the Emergency era had been widely unpopular. The 42nd Amendment was widely criticised, and the clampdown on
civil liberties Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
and widespread abuse of
human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
by police angered the public. In its
election manifesto A manifesto is a published declaration of the intentions, motives, or views of the issuer, be it an individual, group, political party or government. A manifesto usually accepts a previously published opinion or public consensus or promotes a ...
for the 1977 elections, the
Janata Party The Janata Party ( JP, lit. ''People's Party'') was a political party that was founded as an amalgam of Indian political parties opposed to the Emergency that was imposed between 1975 and 1977 by Prime Minister Indira Gandhi of the Indian Nati ...
promised to "restore the Constitution to the condition it was in before the Emergency and to put rigorous restrictions on the
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive dir ...
's emergency and analogous powers". The election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence. After winning the elections, the Moraji Desai government attempted to repeal the 42nd Amendment. However, Gandhi's Congress party held 163 seats in the 250 seat Rajya Sabha, and vetoed the government's repeal bill. The Janata government then brought about the 43rd and 44th Amendments in 1977 and 1978 respectively, to restore the pre-1976 position to some extent. Among other changes, the amendments revoked the 42nd Amendment's provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament's power to legislate against "antinational activities". However, the Janata Party was not able to fully achieve its objective of restoring the Constitution to the condition it was in before the Emergency.


Legal challenges of the amendment

The
constitutionality Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of sections 4 and 55 of the 42nd Amendment were challenged in ''
Minerva Mills v. Union of India ''Minerva Mills Ltd. and Ors. v. Union Of India and Ors.'' (case number: Writ Petition (Civil) 356 of 1977; case citation: AIR 1980 SC 1789) is a landmark decision of the Supreme Court of India that applied and evolved the basic structure doct ...
'', when
Charan Singh Chaudhary Charan Singh (23 December 1902 – 29 May 1987) served as the 5th Prime Minister of India between 28 July 1979 to 14 January 1980. Historians and people alike frequently refer to him as the 'champion of India's peasants.' Charan S ...
was the
caretaker Caretaker may refer to: Arts, entertainment, and media * ''The Caretaker'' (film), a 1963 adaptation of the play ''The Caretaker'' * '' The Caretakers'', a 1963 American film set in a mental hospital * Caretaker, a character in the 1974 film '' ...
Prime Minister. Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals articulated in
Part III ''Part III'' is the third studio album by American R&B group 112. It was released by Bad Boy Records on March 20, 2001 in the United States. Unlike the previous releases, the album is described as having edgier, techno-flavored jams, resulting ...
. Section 55 prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on the power of Parliament to amend the Constitution. After the
1980 Indian general election General elections were held in India on 3 and 6 January 1980 to elect the members of the 7th Lok Sabha. The Janata Party alliance came into power in the 1977 general elections amidst public anger with the Indian National Congress (INC) and the ...
, the Supreme Court declared sections 4 and 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the
basic structure doctrine The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan, and ...
of the Constitution. In the judgement on Section 4, Chief Justice
Yeshwant Vishnu Chandrachud Yeshwant Vishnu Chandrachud (12 July 1920 – 14 July 2008) was an Indian jurist who served as the 16th Chief Justice of India, serving from 22 February 1978 to the day he retired on 11 July 1985. Born in Pune in the Bombay Presidency, he was ...
wrote: On Section 4, Chandrachud wrote:
"Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one." The ruling was widely welcomed in India, and Indira Gandhi did not challenge the verdict. The Supreme Court's position on constitutional amendments laid out in its judgements in '' Golak Nath v. State of Punjab'', '' Kesavananda Bharati v. State of Kerala'' and the Minerva Mills case, is that Parliament can amend the Constitution but cannot destroy its "basic structure".
On 8 January 2008, a petition, filed by Sanjiv Agarwal of the
NGO A non-governmental organization (NGO) or non-governmental organisation (see spelling differences) is an organization that generally is formed independent from government. They are typically nonprofit entities, and many of them are active in h ...
Good Governance India Foundation, challenged the validity of Section 2 of the 42nd Amendment, which inserted the word "socialist" in the Preamble to the Constitution. In its first hearing of the case, Chief Justice
K. G. Balakrishnan Konakuppakatil Gopinathan Balakrishnan (born 12 May 1945) is an Indian judge who has been the Chairperson of the National Human Rights Commission of India. He is a former Chief Justice of India. He was the first judge from Kerala to become the C ...
, who headed the three-judge bench, observed, "Why do you take socialism in a narrow sense defined by
communists Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a so ...
? In broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn't got any definite meaning. It gets different meanings in different times." Justice Kapadia stated that no political party had, so far, challenged the amendment and everyone had subscribed to it. The court would consider it only when any political party challenged the
Election Commission An election commission is a body charged with overseeing the implementation of electioneering process of any country. The formal names of election commissions vary from jurisdiction to jurisdiction, and may be styled an electoral commission, a c ...
. The petition was withdrawn on 12 July 2010 after the Supreme Court declared the issue to be "highly academic".


Legacy

In the book ''JP Movement and the Emergency'', historian
Bipan Chandra Bipan Chandra (24 May 1928 – 30 August 2014) was an Indian historian, specialising in economic and political history of modern India. An emeritus professor of modern history at Jawaharlal Nehru University, he specialized on the Indian ind ...
wrote, "
Sanjay Gandhi Sanjay Gandhi (14 December 1946 23 June 1980) was an Indian politician and the younger son of Indira Gandhi and Feroze Gandhi. He was a member of parliament, Lok Sabha and the Nehru–Gandhi family. During his lifetime, he was widely expected ...
and his cronies like
Bansi Lal Bansi Lal Legha (26 August 1927 – 28 March 2006) was an Indian independence activist, senior Congress leader, former Chief Minister of Haryana, former Defence Minister of India, and the architect of modern Haryana. Bansi Lal was part of the ...
,
Minister of Defence A defence minister or minister of defence is a Cabinet (government), cabinet official position in charge of a ministry of defense, which regulates the armed forces in sovereign states. The role of a defence minister varies considerably from coun ...
at the time, were keen on postponing elections and prolonging the emergency by several years ... In October–November 1976, an effort was made to change the basic
civil libertarian Civil libertarianism is a strain of political thought that supports civil liberties, or which emphasizes the supremacy of individual rights and personal freedoms over and against any kind of authority (such as a state, a corporation, social no ...
structure of the Indian Constitution through the 42nd amendment to it. ... The most important changes were designed to strengthen the executive at the cost of the judiciary, and thus disturb the carefully crafted system of Constitutional checks and balance between the three organs of the government."


See also

*
List of amendments of the Constitution of India As of October 2021, there have been 105 amendments of the Constitution of India since it was first enacted in 1950. There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by ...


References


External links


Full text of the 42nd Amendment - NIC


Further reading


G. G. Mirchandani ''Subverting the Constitution'' (Abhinav Publications, 1977)Kiruṣṇā Ān̲ant, Vi ''India Since Independence: Making Sense of Indian Politics'' (Pearson Education India, 2010)
{{Indian Emergency The Emergency (India) Secularism in India 1976 in India 42 1976 in law Indira Gandhi administration Indian labour law