One of the most significant amendments to the Indian Constitution is the 42nd Amendment Act of 1976 enacted by the Indian National Congress, led by Indira Gandhi. This Act is also known as the “Mini Constitution” because of the large number of revisions it made to the Constitution of India. The 42nd Amendment Act introduced many significant changes in the Indian Constitution. the 42nd amendment act 1976 challenged the pre-existing principal model of the Constitution, changing the definition of India, which was given in the Amendment of the Indian Constitution. Description of India changed from a “sovereign democratic republic” to a “sovereign, socialist, secular democratic republic.”
The “unity of the nation” was transformed into “unity and integrity of the nation.”.The 42nd Amendment is often recognised as the most debatable amendment in Indian history. It tried to limit the ability of the Supreme Court and High Court to rule on the constitutionality of laws. It also presented the fundamental responsibilities of Indian citizens to the country. This amendment resulted in the Constitution’s most significant modifications in its history.
BACKGROUND OF THE 42ND AMENDMENT
The Indira Gandhi government imposed the national emergency during the period of 1975 to 1977. During that period, most of the political opponents of Indira Gandhi were imprisoned, and the press media was censored. The popular leaders who were sent to jail are Jai Prakash Narayan, Atal Bihari Vajpayee, Lal Krishna Advani, and many others.
It is important to note here that the 42nd amendment 1976 is done during the 19 month emergency period when the government was facing criticism from everywhere. The emergency imposed by Indira Gandhi was widely unpopular. Also, the 42nd amendment done in the Indian constitution is criticized from all the way around. This lead to her biggest defeat in the general election of 1978 when the Janata Dal formed the government and Morarji Desai became the Prime minister.
When the Janata Dal government came into power, they brought the 43rd and the 44th amendment to fix the constitution as it was before the 42nd amendment.
CHANGES BROUGHT BY THE 42ND AMENDMENT OF THE INDIAN CONSTITUTION
The 42nd amendment of the Indian constitution changed the constitution drastically and regarded as the most controversial changes in history. The list of changes made is as follows.
· CHANGES MADE IN THE PREAMBLE.
This was the first time ever that the changes in the preamble are made through the amendment. During the case of Kesavanand Bharati 1968, the supreme court has said that preamble is not a part of constitution hence cannot be amended under the laws of article 368.
After that in Beruvadi Case, the supreme case overturned its own decision and clarifies that preamble is the part of Indian constitution and can be amended. But no negative amendment can be done on the preamble which lowers of affects the soul of the preamble. And it is must for every amendment of the preamble to going for judicial review; the 42nd amendment also went through the same, and the court accepted the changes.
· AMENDMENT OF DIRECTIVE PRINCIPLE OF STATE POLICY
The 42nd amendment also added three new directive principle in article number 39A, 43A and 48A.
- Article 39A- Equal Justice for all and free legal aid.
- Article 43A- Participation of workers in the management of industries.
- Article 48A- Protection and improvement of environment and safeguarding of forest and wildlife.
The directive Principle present in our constitution is the direction for the government so that they can use it while making the policies and law. The government is not bound to implement the directive principle; it is totally up to them that when and how they are going to follow the instructions. And that’s why they are also non judicial in nature, unlike the fundamental rights.
· CHANGES MADE TO SUSPEND FUNDAMENTAL RIGHTS
Before this amendment, there was no other way to suspend the fundamental rights by the government; it means rights were always there for the citizens in every situation. But the government felt that during the emergency or wars or the external attack, it is more important to save the sovereignty of the country rather than caring for the fundamental rights of citizens.
The government made the provisions to suspend the fundamental rights to handle unexpected situations during emergency more effectively. For this, they have added new provisions in article 358 and 359 which are respectively,
According to article 358, whenever the national emergency is imposed the fundamental rights provided under article 19 automatically get suspended. Government need not announce this separately, and this suspension cannot be questioned in the supreme court. After an emergency gets over, all the rights automatically come to effect. But the laws made during the emergency can be checked by the supreme court whether they are suspending the fundamental rights or not.
Unlike article 358 the article 359 does not suspend the fundamental rights automatically. Infect it empowers the president to suspend the right to remedy. It means presidents can suspend the right of citizens to go Supreme Court when the fundamental rights are abandoned during the emergency.
· AMENDMENT IN ARTICLE 74
Indian parliamentary system, there are two heads of the state on is the nominal and other is actual. The president is the nominal head, and the Prime Minister is the actual head of the state. All the official works of the Government of India is done in the name of the president, but the president does mostly all his work on the recommendation of Prime Minister and the Council of ministers.
Before the 42nd amendment of the Indian constitution, the government used to work in ht same structure as of right now, but there was no constitutional framework available for that. The change in article 74 made a provision which was easy to understand that it is compulsory for the President to act in accordance with the advice of Prime ministe.
· ESTABLISHMENT OF ADMINISTRATIVE TRIBUNALS
This amendment also established an administrative tribunal for the first time. The objective was to reduce the pending cases in the high court and also to reduce the mounting pressure on the high court and supreme court. The administrative tribunals deal with the matter of special importance, socio-economic and revenue matters. Tribunals provide quick judgment and speedy justice, making it more effective than high courts in some cases.
· DELIMITATION OF LOK SABHA SEATS
This amendment fixed the delimitation of Lok Sabha seats for the next 26 years, i.e. up to 2001. Delimitation means reorganizing the boundaries of all the Lok Sabha constituencies and re-allotting the reservation( The ST, SC and women reservation). Before 1976 the delimitation of Lok Sabha is carried out once every ten years according to article 82 of the Indian constitution.
After that amendment, the next delimitation commission was established on 12 July 2002 under the guidance of Justice Kuldeep Singh. This delimitation was done on the basis of 2001 census. The recommendation of the commission was implemented on 10th January 2008.
CRITICISM OF THE 42ND CONSTITUTIONAL AMENDMENT
The 42nd amendment was by far the most extensive change ever made in the constitution since independence, that why the experts also called it the mini-constitution.
The opponents of Indira Gandhi criticized the Indian Constitution Act 1976 badly. According to them, the change in constitution is an attack on the federal structure of India because the act has a provision to transfers major power from the state governments and gives it to the central government, which will lead to centralization of power and is against the federal structure of the nation.
Not only this, but the amendment also gives the boundless power to the Indian parliament to amend any part of the constitution, without worrying about the judicial review. After this, the court will not be able to upset parliament’s policy; it’s equivalent to reducing the judicial power review of the supreme court. When Morarji Desai became the prime minister, he again empowered the supreme court with the power of judicial review.
LEGAL CHALLENGES OF AMENDMENT
The constitutionality of sections 4 and 55 of the 42nd amendment was challenged in Minerva Mills v. Union of India. When Charan Singh was caretaker Prime Minister. Article 31C of the Constitution was amended by Section 4 of the 42nd Amendment to accord supremacy of the Directive Principles of State. The policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals articulated in Part III. 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, the Supreme Court declared sections 4 and 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution.
The 42nd amendment act, 1976, in the preamble, was the only benefit that came from the 42nd amendment act. Else, all other amendments were removed or transformed to a standard form by the successor government, Janta dal, and prime minister Morarji Desai. While the principal of the Amendment of the Indian Constitution in 1950, the republic of India was more about giving the right to speedy justice and equality to the supreme court and high Courts 42nd amendment act 1976, in the preamble, was all about giving these powers to the prime minister and the legislative assembly.
- Dr. J. N. Pandey, The Constitutional Law of India, 49th Edition (2012), Central Law Agency, Allahabad.
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