42nd Amendment Act, 1976 :  A controversy

THIS ARTICLE WAS WRITTEN BY NAYAN JAIN A STUDENT OF HNLU.

The 42nd amendment is of lawful significance as well as is the composition to the changing times of the Indian vote based system. The 42nd Constitutional Amendment Act (1976) brought various changes in the Constitution. The Act inter alia offered dominance to the Directive Principles of State Policy over the Fundamental Rights. Built up the matchless quality of Parliament and reduced the forces of Judiciary. The Act was first of its kind. It was the most extensive Act and touched all the touchy regions of the Constitution. The Amendment was intended to improve colossally the quality of the Government.

Indira Gandhi was a fierce woman, she was strong willed and intense (she directed an enormous political clout) however it was in State of Uttar Pradesh v. Raj Narain[1]that Indira Gandhi got the primary test to her power; the High Court of Judicature at Allahabad refuted her decision.

What we saw next was flighty – Indira Gandhi forced crisis in the nation and common freedoms .Amid the crisis came a standout amongst the most deplorable judgments this nation ever observed Additional District Magistrate, versus S. S. Shukla Etc.[2]The judgment maintained the free powers of the official amid crisis. The judgment fuelled political inner selves and cleared path for the 42nd change. A correction that was going extraordinarily changes the course of history for this nation. The Emergency time had been broadly disliked, and the 42nd Amendment was the most disputable issue.

It has confronted a great deal of reactions. The revision conveyed a portion of the significant changes to the constitution. It said that revisions couldn’t be addressed ‘in any court on any ground’; and there should be no restriction on Parliament’s energy to alter the Constitution ‘by method for expansion, variety or cancelation’. Sacred Amendment is the most disputable and begging to be proven wrong bit of established revision ever attempted in India since 1950.

The correction was so broad in nature and character that it might be Constitutional Amendment the longest change demonstration of the constitution or even ‘mini constitution’.

Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of then Minister of External Affairs Swaran Singh “to study the question of amendment of the Constitution in the light of experience”.[3]

The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok Sabha on 1 September 1976, as the Constitution (Forty-fourth Amendment) Bill, 1976 (Bill No. 91 of 1976). It was introduced by H.R. Gokhale, then Minister of Law, Justice and Company Affairs.[4] 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 I  VA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 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”.[5]

The bill was debated by the Lok Sabha from 25 to 30 October and November 1 and 2. Clauses 2 to 14, 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 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 on 18 December 1976, and was notified in The Gazette of India 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.[6]

The main objectives of this amendment were-

• The amendment removed election disputes from the purview of the courts. The amendment’s opponents described it as a “convenient camouflage”.[7]
• 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. [8]
• The fourth purpose was to make any law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court.[9]Supporters of the measure said this would “make it difficult for the court to upset parliament’s policy in regard to many matters”.

In the book  JP Movement and the Emergency, historian Bipan Chandra wrote, “Sanjay Gandhi and his cronies like Bansi Lal, Minister of Defence 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 structure of the Indian Constitution thorough 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.”

The forty second amendment is enormously associated with its intensity of length. It was not a basic alteration of maybe a couple articles or a couple words here and there. It was a total demonstration in itself. A “smaller than expected constitution” as it is called. It corrected 57 articles which incorporates including a couple of new ones. All through this venture every one of the inquiries raised were replied. The venture firstly clarifies the verifiable foundation of the demonstration and how Indira Gandhi assumed a noteworthy part in brings this scaled down constitution into picture. This demonstration has been tested both naturally and legitimately as it changed a portion of the real Articles of the constitution.

The Constitution (Forty Second Amendment) Act 1976 “is receptive to the yearnings of the general population, and mirrors the substances of the present time and what’s to come”. Majority rule government had been nullified inconclusively, potentially for eternity. Most importantly, the significance of major rights was enormously cheapened.

The prevailing push of the Amendment was to decrease the part of courts, especially, that of the High Courts. It likewise tried to fortify Parliament in different courses which as a result, added to the force of the Central Government it drew tremendous feedback especially for it was pushed through amid Emergency.

[1] AIR 1975 SC 86

[2] AIR 1976

[3]  “The bill finally cometh”.  The Sunday Indian.  August 21, 2011.

[4] R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern Book Centre. pp. 76–84;190–196.

[5] Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols.141-2

[6] The Constitution (Amendment) Acts”. Constitution.org.

[7] When in doubt, amend”. Indian Express. 2009-08-21.

[8] Granville, Austin. Working A Democratic Constitution – The Indian Experience. p. 371.

[9] “‘Issue too academic’, so PIL on socialism in statute withdrawn”. The Indian Express. 2010-07-13. Retrieved 2013-11-23.