42nd Amendment of Indian Constitution

The Indian Constitution is the cornerstone of the country’s legal and political system. It not only sets out the framework for governance but also enshrines fundamental rights and duties, outlines the structure of various institutions, and determines the division of powers between the Centre and the States. 

The 42nd Amendment stands out for its comprehensive impact on nearly every facet of the Constitution. Enacted during a time of political crisis, it sought to recalibrate the balance between the executive, legislature, and judiciary. However, its sweeping nature led to widespread debate about the limits of constitutional amendment and the sanctity of the Constitution’s basic structure.

Historical Background of 42nd Amendment of the Indian Constitution

The Political Climate of the 1970s

The period leading up to the enactment of the 42nd Amendment was marked by intense political turbulence. Following the landmark Golaknath case in 1967, tensions grew between the judiciary and the executive over the extent of Parliament’s power to amend the Constitution. 

This was compounded by political instability, including allegations of election malpractice against then Prime Minister Indira Gandhi. The subsequent Allahabad High Court judgement, which found Indira Gandhi guilty of misusing state machinery during her election campaign, created an atmosphere of uncertainty and unrest.

Declaration of Emergency

In response to growing political opposition and widespread protests, Prime Minister Indira Gandhi declared a state of emergency on 25 June 1975. The emergency provided the government with extraordinary powers, and it was during this period that a series of constitutional amendments were introduced. 

The 42nd Amendment, passed in 1976, was one such measure that sought to consolidate executive power and transform the constitutional order in a manner that many viewed as an attempt to legalise the abuses of power witnessed during the emergency.

The “Mini-Constitution”

The scale and scope of the 42nd Amendment were so extensive that it earned the sobriquet “Mini-Constitution”. It not only amended existing provisions but also introduced new articles and parts to the Constitution. 

By altering the Preamble, modifying key articles, and restructuring various aspects of governance, the amendment aimed to provide a robust legal framework to support the policies and administrative decisions of the government during the emergency. 

However, these changes also led to a significant reduction in the power of the judiciary to review parliamentary decisions, a point that has remained a contentious issue in constitutional law.

Objectives and Rationale Behind the 42nd Amendment of the Indian Constitution

Strengthening Executive Power

One of the primary objectives of the 42nd Amendment was to strengthen the executive at a time when the government felt its authority was under constant challenge. The amendment sought to:

• Curtail Judicial Oversight: By limiting the power of the courts, particularly the Supreme Court and High Courts, to review constitutional amendments and laws passed during the emergency.
• Empower Parliament: The amendment granted Parliament nearly unrestricted power to amend any part of the Constitution, thereby reducing the scope of judicial review.
• Enhance Centralisation: By shifting power from the state governments to the central government, the amendment aimed to create a more streamlined administrative structure under central control.

Reorganising the Constitutional Structure

The 42nd Amendment also aimed to reshape the constitutional framework by revisiting long-standing principles:

• Preamble Alterations: Modifying the Preamble to reflect new ideological commitments, the amendment added the words “socialist” and “secular” and changed “unity of the nation” to “unity and integrity of the nation”. This was intended to mirror the contemporary socio-political aspirations of the country.
• Directive Principles and Fundamental Rights: By granting primacy to the Directive Principles of State Policy (DPSP) over Fundamental Rights, the amendment sought to ensure that social and economic policies could be implemented more effectively, even if they impinged on certain individual rights.
• Incorporation of Fundamental Duties: Recognising that rights come with responsibilities, the amendment introduced Fundamental Duties, emphasising the citizen’s role in preserving the nation’s integrity and upholding constitutional values.

Addressing Administrative and Legal Concerns

The amendment was also a response to practical administrative needs:

• Judicial and Administrative Reorganisation: Changes in judicial powers and the creation of an All-India Judicial Service were aimed at standardising and streamlining judicial processes.
• Emergency Provisions: The amendment provided mechanisms for suspending fundamental rights during emergencies and extended the duration for which President’s rule could be imposed in a state. These measures were designed to ensure administrative continuity during times of crisis.

Key Provisions of the 42nd Amendment of the Constitution

The 42nd Amendment introduced numerous changes across different parts of the Constitution. Below, we summarise some of the most significant provisions.

Amendments to the Preamble

The Preamble of the Constitution encapsulates the ideals and aspirations of the nation. The 42nd Amendment:

• Added “Socialist” and “Secular”: Reflecting the socio-political ideology of the time, these words were incorporated to signify a commitment to social justice and religious neutrality.
• Modified National Unity Terminology: The phrase “unity of the nation” was altered to “unity and integrity of the nation”, reinforcing the notion of a cohesive national identity.

Changes to the Directive Principles of State Policy (DPSP)

The amendment brought several changes to the DPSP, which serve as guidelines for the state in policy-making:

• New Articles Introduced:
  • Article 39A: Mandates the provision of free legal aid to the poor and ensures equal justice for all.
  • Article 43A: Aims to secure workers’ participation in the management of industries.
  • Article 48A: Focuses on environmental protection and the preservation of forests and wildlife.
• Amendment to Article 39(f): This provision was revised to ensure that children receive opportunities to develop in a healthy environment with freedom and dignity, and to protect them from exploitation.

Introduction of Fundamental Duties

In a bid to instil a sense of responsibility among citizens, the amendment:

• Established Part IV-A: This part lists Fundamental Duties, outlining the moral obligations of every citizen towards the nation.
• Current Enactment: Today, the Constitution lists eleven Fundamental Duties, serving as a reminder that the exercise of rights is accompanied by civic responsibilities.

Reorganisation of the Seventh Schedule

The Seventh Schedule deals with the division of powers between the Centre and the States. The 42nd Amendment made key adjustments:

• Redistribution of Subjects: Important subjects such as Education, Forests, Protection of Wild Animals and Birds, Weights and Measures, and the Administration of Justice (except for the Supreme Court and High Courts) were moved from the State List to the Concurrent List. This move facilitated greater central oversight and uniformity in policy implementation across the country.

Changes Affecting Parliament and the Executive

The amendment introduced several reforms in parliamentary and executive functions:

• Mandate on the President: The amendment made it a statutory requirement for the President to act on the advice of the Cabinet, formalising an established convention.
• Article 257A: This article empowered the central government to deploy central forces in states to maintain law and order, thereby reinforcing central control.
• Quorum and Privileges: The quorum requirements in both Parliament and state legislatures were abolished, and Parliament was given the power to decide the rights, privileges, and immunities of its members.
• Extension of Legislative Term: The term of the Lok Sabha and state legislative assemblies was extended from five years to six years, a provision later reversed by subsequent amendments.

Emergency Provisions

The amendment sought to fortify the state’s ability to manage crises:

• Article 352 Revisited: The amendment allowed the declaration of a national emergency to apply either nationwide or in part of the country.
• Extended Duration for President’s Rule: It extended the duration for which President’s rule could be imposed in a state from six months to one year, thereby providing the central government with enhanced powers during periods of instability.

Impact on the Judiciary

One of the most contentious aspects of the 42nd Amendment was its impact on judicial review:

• Restriction on High Courts: The amendment curtailed the power of the High Courts to adjudicate on laws passed by the Union Legislature, limiting their jurisdiction primarily to state legislation.
• Bench Composition for Constitutional Review: The amendment introduced provisions that required a seven-judge bench in the Supreme Court to review the constitutionality of certain laws, with a two-thirds majority needed to invalidate any law. This was seen by many as a deliberate attempt to weaken the judiciary’s independence.

Part XIV-A: Establishment of Tribunals

Recognising the need for specialised dispute resolution mechanisms:

• Articles 323A and 323B: These articles were introduced to create tribunals for administrative and other matters. These tribunals were designed to provide quicker and more expert adjudication in specific fields, thereby easing the burden on the regular courts.

Suspension of Fundamental Rights

The amendment also provided for the suspension of certain fundamental rights during emergencies:

• Article 358: Under this provision, when an external emergency is declared, the rights enshrined in Article 19 are suspended across the country. In effect, this rendered emergency laws immune from judicial scrutiny, ensuring that the government’s actions during an emergency could not be challenged in court.
  

Judicial Challenges and the Basic Structure Doctrine

The Minerva Mills Case

One of the most critical judicial challenges to the 42nd Amendment came in the form of the Minerva Mills case (1980). In this landmark judgement:

• Striking Down Key Provisions: The Supreme Court declared Sections 4 and 55 of the amendment unconstitutional. These sections had sought to grant unfettered amending power to Parliament and to shield the amendment process from judicial review.
• Affirmation of the Basic Structure Doctrine: The judgement reaffirmed that while Parliament does have the power to amend the Constitution, it cannot alter the “basic structure” or essential features that form the foundation of the Constitution. This doctrine has since been a guiding principle in subsequent constitutional jurisprudence in India.

Implications for Constitutional Amendments

The judicial scrutiny of the 42nd Amendment had far-reaching implications:

• Limits on Parliamentary Power: The Supreme Court’s ruling in the Minerva Mills case established that even constitutional amendments are subject to judicial review if they threaten the basic structure of the Constitution.
• Balance Between Powers: The ruling reaffirmed the need for a balance between the powers of the legislature, the executive, and the judiciary, thereby safeguarding democratic principles.
  

Legislative and Political Reactions Post-Emergency

The 43rd and 44th Amendments

Following the end of the Emergency and the subsequent general elections in 1977, the newly formed Janata government embarked on a programme of constitutional restoration. To address the excesses of the 42nd Amendment:

• The 43rd Amendment (1977): This amendment sought to reverse some of the changes introduced during the Emergency, particularly those that curtailed judicial powers.
• The 44th Amendment (1978): Further refined the constitutional framework by restoring many of the pre-Emergency provisions. Notably, it curtailed the extended term of legislative assemblies and reinstated the earlier safeguards on individual rights.

Political Debates

The passage of the 42nd Amendment was accompanied by intense political debate:

• Proponents’ Arguments: Supporters argued that the amendment was necessary to provide a stable framework for governance during a period of national crisis. They claimed that the amendment was in tune with the aspirations of the people and reflected the realities of the time.
• Opponents’ Criticisms: Critics contended that the amendment was an overreach by the executive, designed to circumvent judicial oversight and concentrate power in the hands of a few. The curtailment of civil liberties and the erosion of federalism were particularly contentious issues.

Conclusion

The 42nd Amendment of the Indian Constitution stands as a testament to one of the most turbulent chapters in Indian political history. Enacted during the Emergency, it sought to bring about comprehensive changes in the constitutional framework—from altering the Preamble and redefining the role of the judiciary, to realigning the powers between the Centre and the States, and instituting Fundamental Duties. 

While some of its measures, such as those enhancing environmental protection and free legal aid, have had positive long-term effects, many of its other provisions—particularly those curtailing judicial review and centralising power—were met with widespread criticism.