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The Forty-second Amendment of the Constitution of
India, ocially known as The Constitution (Fortysecond amendment) Act, 1976, was enacted during the
Emergency (25 June 1975 21 March 1977) by the
Indian National Congress government headed by Indira
Gandhi.[1] Most provisions of the amendment came into
eect 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 Indian history. It attempted to reduce the power of the Supreme Court 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, and is sometimes called a mini-Constitution or the
Constitution of Indira.[2]
tional two provisions of the 42nd Amendment 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 of individuals respectively.
Then Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of then Minister
of External Aairs Swaran Singh to study the question of amendment of the Constitution in the light of
experience.[4]
On 31 July 1980, in its judgement on Minerva Mills v. The bill for the Constitution (Forty-second Amendment)
Union of India, the Supreme Court declared unconstitu- Act, 1976 was introduced in the Lok Sabha on 1 Septem1
3 CONSTITUTIONAL CHANGES
1.1
Ratication
Objective
the state governments to the central government, eroding Indias federal structure. The third purpose of the
amendment was to give Parliament unrestrained power
to amend any parts of the Constitution, without judicial review.[4][11] The fourth purpose was to make any
law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court.[12] Supporters of the measure said this would make it dicult for
the court to upset parliaments policy in regard to many
matters.[4][11]
3 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.[13][14] Some of these changes are described below.
The Parliament was given unrestrained power to amend
any parts of the Constitution,[13] without judicial
review.[15] This essentially invalidated the Supreme
Courts ruling in Kesavananda Bharati v. State of Kerala in 1973.[14] The amendment to article 368,[5] 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.[5]
The 42nd Amendment also restricted the power of the
courts to issue stay orders or injunctions.[13][14] The 42nd
Amendment revoked the courts power to determine what
constituted an oce of prot.[16] 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.[5] The amendments fty-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.[17]
Article 74 was amended and it was explicitly stipulated
that the President shall act in accordance with the advice
of the Council of Ministers".[1][16][17] 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.[16]
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.[5]
3
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 antinational activities or the formation of antinational associations could not be invalidated because they infringed on any of the Fundamental Rights. The 43rd and 44th Amendments repealed
the 42nd Amendments provision that Directive Principles take precedence over Fundamental Rights, and also
curbed Parliaments power to legislate against antinational 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.[17]
The 42nd Amendment granted power to the President, in
consultation with the Election Commission, to disqualify members of State Legislatures. Prior to the Amendment, this power was power vested in the Governor of the
State.[16] 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 dened the meaning of the terms Central Law
and State Law by inserting two new clauses 4A and 26A
into article 366 of the Constitution.[5]
The 42nd Amendment froze any delimitation of constituencies for elections to Lok Sabha and State Legislative Assemblies until after the 2001 Census of India,[16] by amending article 170 (relating to composition of Legislative Assemblies).[5] The total number of
seats in the Lok Sabha and the Assemblies remained the
same until the 91st Amendment, passed in 2003, extended the freeze up to 2026.[18] The number of seats
reserved for the Scheduled Castes and Scheduled Tribes
in the Lok Sabha and State Legislative Assemblies was
also frozen.[16] The amendment extended the term of Lok
Sabha and Legislative Assemblies members from ve to
six years,[16] by amending article 172 (relating to MLAs)
and Clause(2) of Article 83 (for MPs).[5]
Aftermath
dition it was in before the Emergency and to put rigorous restrictions on the executive's emergency and analogous powers.[12] The election ended the control of the
Congress (Congress (R) from 1969) over the executive
and legislature for the rst time since independence.[17]
After winning the elections, the Moraji Desai government attempted to repeal the 42nd Amendment. However, Gandhis Congress party held 163 seats in the 250
seat Rajya Sabha, and vetoed the governments repeal
bill.[3]
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.[4]
Among other changes, the amendments revoked the
42nd Amendments provision that Directive Principles
take precedence over Fundamental Rights, and also
curbed Parliaments power to legislate against antinational activities.[17] 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.
5
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 be the exercise of that power convert the
limited power into an unlimited one.[22] The ruling was
widely welcomed in India, and Gandhi did not challenge
the verdict.[10] The Supreme Courts position on constitutional amendments laid out in its judgements in Golak
Nath v. State of Punjab, Kesavananda Bharati v. State
of Kerala and the Minvera Mills case, is that Parliament
can amend the Constitution but cannot destroy its basic
structure.[15][17]
8 See also
List of amendments of the Constitution of India
9 References
[1] Hart, Henry C. (April 1980). The Indian Constitution:
Political Development and Decay. Asia Survey, Vol. 20,
No. 4, Apr., 1980. University of California Press. Retrieved 12 April 2012.
[2] Dev, Nitish. Constitutional Amendments of India. PublishYourArticles.org. Retrieved 12 April 2012.
[3] John R. Walker (June 21, 1977). Janatas aws shown by
wins in northern India. The Calgary Herald. Southam
News Services. Retrieved 21 November 2013.
[4] The bill nally cometh. The Sunday Indian. August 21,
2011. Retrieved 2013-11-23.
[5] R.C. Bhardwaj, ed.
(1 January 1995).
Constitution
Legacy
[12] "'Issue too academic', so PIL on socialism in statute withdrawn. The Indian Express. 2010-07-13. Retrieved
2013-11-23.
[13] The Rise of Indira Gandhi. Library of Congress Country Studies. Retrieved 2009-06-27.
[14] A living legend. The Indian Express. 24 January 1998.
Archived from the original on 3 December 2013. Retrieved
2014-11-21.
[15] Indian Constitution: Sixty years of our faith. The Indian
Express. 2010-02-02. Retrieved 2013-11-23.
[16] Prateek Deol. 42nd Constitutional Amendment: A Draconion Act Of Parliament - Gujarat National Law University. Legalserviceindia.com. Retrieved 2013-11-23.
[17] India - The Constitution. Countrystudies.us. Retrieved
2013-11-23. This article incorporates text from this source,
which is in the public domain.
11 FURTHER READING
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External links
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Text
12.2
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