Monday, 24 January 2022

42 AMENDMENT OF CONSTITUTION OF INDIA BY TEJESHWAR PANDEY

 42 amendment of the constitution of India



India has the longest constitution in the world with 395 articles at the time of enactment and 448 articles currently in force. The Constitution of India begins with a preamble which was added at a later stage and states the basic principles, and ideals of the and also state its objectives. The constitution has been amended 104 times which highlights its flexibility, unlike the British or American constitution. Hence, the Indian constitution today has gone substantive changes.

The 42nd amendment of the Indian constitution, popularly known as the Mini constitution was enacted in 1976, by Indira Gandhi who then headed the ruling party of the Indian National Congress and since then has been referred several times as the most important yet most controversial amendment of the Indian Constitution.


Background

March 19, 1975, is a day marked in the history of this country, it was the first time that a Prime Minister had to appear before the court during his/her tenure. Outside the Allahabad high court were about a million people agitating against the government. 

All this was an aftermath of Indira Gandhi’s convenient victory in 1971 elections against Raj Narain, who after his defeat petitioned against the Prime Minister for election fraud and the use of state machinery in her election campaign. These allegations were brought in the Allahabad High Court, and Mrs Indira Gandhi was compelled to appear in court, it was the first time a Prime Minister of India had to do so. The case lasted for four years and finally in 1975 Justice Jagmohanlal Sinha gave the judgement finding Indira Gandhi guilty of exploiting police and government officers during her party's election campaign. Her election was deemed null and void, and she was barred from running for office for the next six years.

Later, as the case was being heard by the Supreme Court, the political opposition began anti-government demonstrations. Mr Jaya Prakash Narayan, also known as JP, staged a big rally in the capital city, calling on Mrs Indira Gandhi to resign as Prime Minister.

It was June 25th, 1975 known as the black day of Indian Democracy, when the government declared a state of emergency across the country, citing "internal disturbance" as the reason. And henceforth, started crushing the heart and soul of this republic by mode of constitutional amendments, the constitution was amended 5 times during the 21-month emergency, amending a total of 49 articles, adding 14 new articles, and amending 2 schedules, among which 3 articles and schedule 9 were amended twice.


Mini Constitution

The 42nd Amendment was a major amendment that affected numerous parts of the constitution therefore it was termed the mini-constitution. The amendment amended the preamble of the constitution, added 13 new articles, amended 40 existing articles and also amended the seventh schedule. The act was responsible for several acts which attempted to shift the power in favour of the executive from the judiciary. Following are a few of the important changes introduced by the 42nd amendment.

1. The amendment inserted the terms ‘socialist’, ‘secular’ and ‘integrity’ to the preamble.

2. Five subjects (Education, Forests, weights and measures, Protection of wild animals and birds, administration of justice) were transferred from state list to concurrent list

3. Article 51-A was added which prescribed 10 fundamental duties for citizens.

4. Allowed centre to deploy central forces in states.

5. Fundamental Rights were given primacy over Directive Principles. 

6. Any statute passed by Parliament to this effect was not subject to judicial scrutiny by the Court.

7. Judicial powers of high courts were curtailed

8. President was authorised to declare an emergency not only throughout the country but also at any part.

9. The tenure of the president was extended to 6 years.


The legislature of that time changed the constitution to such an extent that people started calling the ‘Constitution of India’ as ‘Constitution of Indira’. 


Amendments During Emergency

Thirty-Eighth Amendment Act, 1975

38th amendment came out as the first blow to Indian citizens warning them of what's coming ahead, this was the first time an amendment was made during the emergency, and with this amendment, the very spirit of the judiciary was started to be slaughtered. This amendment made the declaration of emergency by the President non-justiciable thereby stripping the judiciary from the authority to make a judicial review on the emergency, the president was also given the authority to declare different proclamations of national emergency on different grounds simultaneously. 


Thirty-Ninth Amendment Act, 1975

The 39th amendment stripped the high courts of the authority to investigate the election of a person to prime minister’s post. According to the amendment, Disputes relating to the president, vice president, prime minister, and speaker, are beyond the jurisdiction of the courts. They will be decided by whichever authority the Parliament deems appropriate.


Fortieth Amendment Act, 1976 & Forty-First Amendment Act, 1976

The 40th and 41st amendment act continued to crush the soul of Indian Democracy, articles 297, 316 and schedule 9 of the Indian constitution were amended via these 2 amendments thereby enabling parliament to make special laws in relation to EEZ (exclusive economic zones), increasing the retirement age of Chairmen and Members of Joint and State Public Service Commissions also Land reform and other acts, as well as amendments to these acts, were listed in Schedule 9 of the constitution.


Critical Analysis

The most controversial Indian amendment was undertaken in accordance with the recommendations made by Mrs Indira Gandhi's Swaran Singh Committee, which was formed for the same objective.

The Constitutional Amendment Act, 1976 which is the 42nd Constitutional amendment in India is well known for its controversial changes and inclusions. The changes were undertaken in consonance with the suggestions made by the Swaran Singh Committee constituted for the same purpose by Mrs Indira Gandhi. The magnitude of this amendment was so high that it is unfeasible to explain all the minor changes, therefore the following are some of the most significant changes made via the 42nd amendment.


Preamble

A preamble is a statement at the beginning of a document that defines the text's philosophy and goals. Jawaharlal Nehru's Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947, formed the foundation for the Preamble to India's Constitution. Although not enforceable in court, the Preamble outlines the Constitution's objectives and provides guidance for interpreting Articles where the language is ambiguous.

The 42nd amendment introduced 2 changes to the preamble.

1. The expression ‘Sovereign Democratic Republic’ was replaced by ‘Sovereign Socialist Secular Democratic Republic’

2. The expression ‘unity and integrity of nation’ replaced the former prior ‘unity of the nation’

This change caused a great backlash across the country, one of the arguments submitted by the opposers was that Dr B.R. Ambedkar who was the principal architect of the constitution had opposed the addition of these 2 teams during the preparation of the constitution as well. He was opposed to the idea of the declaration of India’s social or economic structure in the constitution. The other argument submitted by the opposers was that the amendment to the preamble was a direct violation of principles laid down in Kesavananda Bharati v. State of Kerala, which held the preamble to be a part of the basic structure of the Indian constitution thereby outside the power of the legislature to amend.


Judiciary

Prior to the 42nd amendment, the acts passed by the union government could have been challenged in high courts of the states, but this amendment restricted the power of high courts to only adjudicate on acts passed by state legislation and thereby granting the supreme court exclusive jurisdiction to decide upon a matter concerning the validity of central law. Similarly, Article 131A was adopted to allow the Supreme Court to only review the constitutionality of central legislation. But for the apex court to decide upon the validity of central legislation, it was mandatory to constitute a seven-judge bench and Only a two-thirds majority of judges can rule that a law is unconstitutional.

These changes were seen as an attack on the power of the judiciary and an attempt to erase the doctrine of separation of power. Evidently, the changes were highly condemned and considered to be a walk towards an authoritative regime.


Fundamental Rights & Duties

Fundamental rights are the basic rights conferred to the people of India by the constitution since it came into force. Until the 42nd amendment, the fundamental rights were exercised by the people uninterruptedly, but the amendment added provisions to the Indian constitution which were relevant for the suspension of fundamental rights during emergencies. When an external emergency is declared, Article 358 has the effect of suspending rights granted under Article 19 of the Constitution without any special notification. According to this article, Article 19 is suspended throughout the country for the duration of the emergency, and 'emergency laws' are given legal immunity.

Furthermore, Article 359 of the Indian Constitution was altered to allow the President to suspend the right to remedy for anyone who may be harmed by "emergency laws" that are inconsistent with any designated fundamental rights, with the exception of Articles 20 and 21. According to this article, a Presidential order can be issued during an internal or foreign emergency for a specific period of time or for the duration of the emergency. It's important to note that fundamental rights aren't automatically suspended; rather, their "enforceability" in court is suspended under Article 359 of the Constitution.

Even though the constitution, since its inception, carried certain fundamental rights and directive principles of state policy, the government believed that the citizens must also have certain fundamental duties. This belief gave birth to 10 fundamental duties in the form of Part IVA of the constitution. However, because enforcing duties on citizens would contradict the democratic country's entire framework, these were given a non-judicial and unenforceable impact.


Directive Principles of State Policy

The amendment attempted to give "directive principles of state policy" precedence over fundamental rights. Despite the fact that no direct amendments to articles relating to fundamental rights were made, other changes were made to diminish their effect. Article 31-D was established to allow Parliament to enact legislation to prevent and prohibit anti-national activities. Furthermore, laws enacted under Article 31-D could not be declared unlawful because they violated Articles 14, 19, or 31.

Further, the amendment also added a few new directive principles. Prioritising state policy director principles over fundamental rights was one of the most contentious aspects of the amendment. But unlike other alterations, this also had some positive aspects.

The introduction of Article 39-A and amendment to Article 39(f) of the Constitution were two amendments in the Directive principles of state policy that were applauded by the community. According to Article 39-A, free legal aid must be provided to the impoverished and weaker sections of society in order to avoid injustice based only on economic or social disadvantage. Article 39(f) of the Constitution was changed to provide protection against exploitation and moral and material abandonment of children and youth. Apart from these revisions, several inductions were made in Part IV of the Constitution, such as Article 43A and Article 48F, which deal with workers' rights and environmental protection, respectively.


Parliamentary Seats

Any change in parliamentary constituency’s boundaries was blocked by the 42nd amendment until 2001(first census after 2000), i.e 26 years after the amendment was passed. It further imposed a halt on the reallocation of seats to SCs, Sts and women for the same time period. Prior to the amendment, Article 82 provided for the reorganisation of constituencies for parliament and state legislatures after every census, i.e. every 10 years, based on the data acquired.


Aftermath

Indira Gandhi faced a terrible defeat in the elections after the emergency, and for the first time under the leadership of Morarji Desai, a non-Congress led government was formed in the country. The major challenge before this newly elected government was to bring the constitution back to the form as it was before the emergency. The government was not in favour of undoing all the amendments made by their predecessor therefore they introduced the 43rd and 44th Amendments.

43rd amendment gave High Courts and the Supreme Court their power back, while some of the notable changes via the 44th amendment were the substitution of expression “Internal Unrest” with “Armed Rebellion” to proclaim an emergency, making the right to property a legal right instead of a fundamental right, the procedure for changes in basic structure was prescribed, etc.

Further, the judgement of Minerva Mills v. Union of India is responsible for undoing certain unconstitutional amendments made by the 42nd amendment. The Supreme Court found sections 4 and 55 of the 42nd Amendment illegal after the general election in India in 1980. It also endorsed and established the Constitution's basic structure doctrine.


Conclusion

Regardless of the objectives stated at the time of amendments, the sole objective of the constitutional amendments during emergency were to take the power out of the judiciary and hand it over to the executive, if the amendments were not have been reversed, India today might have appeared in a similar state as Germany under Adolf Hitler.

Even though the amendments stated above were among the most controversial of all time, several provisions have remained in effect for years and are still regarded useful. For example, free legal aid, child and environmental protection, fundamental duties, and other policies are thought to be beneficial to individuals and communities alike. However, due to its impact and a variety of other factors, this amendment has a negative reputation.


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