42nd Amendment of Indian Constitution

Introduction

The role of a constitution is often considered to provide the key to defining national growth and determining the overall direction. It functions as a means that creates administrative actions, judicial judgments, and legislative laws based on it.

Any country needs a constitution whether deemed or unwritten in its nature since it will be anarchy deadness without one.

The democracy denotes the highest priority while the hierarchy of militaries and administrative devolve into oblivions in the case of democratic countries such as India, more specifically; the Constitution is in authority over all other governmental bodies and bureaucratic institutions. This implies that the ideals and values secured in the Constitution are taken as a basic structure for the administration of judgment over this nation.

What is the Constitution Amendment

The meaning of a constitutional amendment as a legal modification or inclusion in the constitution of a nation. This constitution is the base legal document that creates the framework and principles of a government, describing in legislature the shape of the administration, rights and commitments of residents, and stuns on office power.

Constitution amendments become necessary when it becomes necessary to key modifications, revisions, or additions to an existing constitution. Amendments can cover a variety of concerns, which may relate to the protection of individual freedoms, legislative attributions defined by governmental branches, changes involving social and political practices.

The procedure of amendment to the constitution is changing from country to country. Generally, it incorporates a submission or resolution of an amendment and a law for the process, to validate. This is often the case whereby one has to secure a supermajority vote in the legislature or a referendum as they may deem fit depending on the constitutional provisions as well as based on the political and legal system.

First of all, constitutional amendments are quite important and they can alter quality of powers and legal properties in long term. It plays a role in changing the constitution, it is also a means for making the constitution respond to the changing needs and values of society.

Origin of the 42^nd Amendment

A very enjoying specific moment was 1976 being employed in which within time of too much politics turbulence, the 42^nd Amendment to the Constitution of India was brought into reality. It was introduced then presented under the prime ministership of Indira Gandhi in India during that an era. The one that stands out from the rest in terms of being one of the most expansive and debatable amendments to the Indian Constitution is the 42^nd Amendment.

It was introduced under the Public Order and Security Act of 1970, which took effect during the state of emergency (1975-1977), declared by the government upon incitement violently from internal disturbances. During those days of emergency, they suspended the rights that people should enjoy anytime such as the freedom of speech; there was a lot of censorship taking place at that moment and centralization of power to the Prime Minister. This is established by the fact that 42nd Amendment was understood as the strong grip to be hold to the central government, and particularly, Prime Minister’s office.

The 42^nd Amendment to the Constitution contained fundamental changes, such as alterations in the Preamble of the constitution, some terms were introduced into the description of its principles and some definition was introduced into it regarding which directive principles get a priority when they are contradictory. Equally, during a state of emergency, it also increased the tenure time of the Lok Sabha and state legislative assemblies from 5 years to6 years. Moreover, the amendment brought a drastic reduction in the extent of this review and gave Parliament a power to amend any part of the Constitution without striking at its basic structure.

The 42^nd Amendment for the new wishes was a controversial one and was criticized because it was purported to be in gross violation of democratic and individual liberties. Various successive governments, after the emergency period concluded, attempted to abolish or revoke some of the provisions enacted by the 42nd Amendment. As time has shown, it underwent a process of amendment of some elements or nullification by other later Constitutional amendments.

Significance of the 42^nd Amendment

The 42nd Amendment of the Indian Constitution first enacted in 1976 is one of the most significant constitutional amendments in regard to its character since it introduced numerous changes that affected all the above-mentioned principles. This amendment is also often called ‘the mini Constitution’ or the “Constitution of Indira” and this was fundamental as it made some revolutionary changes because this Amendment exhibited a number of alterations and introduced several unheard-before provisions.

Changes introduced by the 42^nd Amendment

When the country was in a state of emergency, there were several proposed constitutional amendments that triggered the undermining of civil liberties and asserted control over powers and judicial authority. The constitutional history of India encompassing this stage had the 42nd Amendment as an important milestone.

The Swaran Singh committee, set up following the marching orders of Mrs. Indira Gandhi, was responsible for these notorious changes and amendments to the Indian Constitution. Several subsections in the Constitution were affected, Preamble analysis, 40 provisions, the Seventh Schedule, and the inclusion of fifteen nap Articles.

Impact of the 42^nd Amendment in Indian Constitution

• The Inclusion of Fundamental Rights

Part IVA was added through the forty-second Amendment in 1977 and entailed ten fundamental duties that are supposed to be observed while performing other primary activities. State Patriotic Guidelines are loyalty to the Constitution, protection of national sovereignty, preservation of the environment, and national service. Importantly, these tasks denote a non-judicial, unenforceable sway.

Although this aspect was highly praised by some and hailed for the possibility of creating civic responsibility, others expressed fascism over imposing obligations under a democratic framework. Skeptics were doubtful regarding the feasibility, arguing that if the duties are impractical they have no enforceability and thus shall lead to merely cosmetic compliance.

This is a finely balanced tension between citizen-making aspiration and the realities of making it stick, found in this discourse. The lasting legacy of these duties supports the area of individual rights and social tasks, along with the delicacy seen via India’s democratic ethics portrays the distinction between activities sought among personal rights, and individual freedom.

• The Impact of the 42^nd Amendment on the Judiciary

 It was the 42nd Amendment that changed considerably the extent of jurisdiction which the judiciary had in India. Until its amendment, the power of the High Courts to act over Acts passed by legislatures of both state and union was still left intact. However, the 42nd Amendment censored the jurisdiction of the High Courts and curtailed it to assessing State legislature only.

The amendment introduced articles 226A and 228A, which made it necessary that a seven-judge bench of the Supreme Court should adjudicate the constitutionality of Union laws. A ruling that a law is unconstitutional is made after acquiring a two-thirds vote from the bench.

However, these changes were severely criticized as an attack on the judiciary’s powers and even as a possible infringement on the separation of power.

• The power to suspend fundamental rights

The 42nd Amendment contained measures that would enable the temporary derogation of basic rights at the emergencies. In particular, Article 358 implicitly and automatically empowers the application of the rights enumerated in Article 19 whenever a state of emergency has originated from an external force. On the other hand, Article 359 of the constitution makes the President authorized to temporarily suspend the right of appeal for those individuals affected with emergency legislation which goes against expressively declared fundamental rights, all except for Article 20 and Article 21.

In emergency periods, the fundamental rights continued to perform their roles; however, their castigation in the courts was tinted. These constitutional amendments that were supposed to be designed to remedy exigencies are yet to be used in the future because they have continuously been criticized for having the potential to undermine individual freedoms and balance between an Executive authority and the preservation of fundamental rights.

• DPSP and the 42^nd Amendment

DPSP refers to the policies and principles that the Indian government must follow in its various policies and law-making processes. These policies are constitutional and cannot be enforced in the courts, unlike Fundamental Rights. DPSP is dependent on the socioeconomic idea of the country.

The 42nd amendment to the Indian Constitution, which occurred in 1976 during the Emergency period, brought major changes to DPSP. It clarified that the rationale, along with Fundamental Rights, specified in DPSP would also be taken into consideration. However, this provision showed a change in the balance whereby socio-economic objectives that required fundamental liberties became dominant during the Emergency than individual rights.

The amendment also introduced some new Directive Principles including provisions to bring in a social order for the welfare, ensure environmental protection, and promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other backward classes.

The integration of the words “socialist” and “secular” within the Preamble via the 42nd Amendment coincided with a wider social movement that sought to promote socialist values within DPSP. This showed the philosophical orientation of the ruling government during that era.

Through the amendment demanded by the state of emergency, the term of the Lok Sabha and state legislative assemblies increased from five years to six years, indirectly influencing the political environment and the process of socio-economic policies.

The 42nd Amendment curtailed the ambit of judicial review, a function whereby the courts could not easily have their way with scanning the government activities, specifically during the emergency as encountering. Such a move was taken to counter the checks.

• Inclusion of the terms “Socialist, Secular” and “Unity and integrity of the nation”

The Preamble of the Indian Constitution outlines the fundamental values and principles on which the document is based. The Preamble underwent two significant changes as a result of the 42nd Amendment. The phrase “Sovereign Democratic Republic” was replaced with “Sovereign Socialist Secular Democratic Republic“. At the same time, the phrase “unity of the nation” was modified to “unity and integrity of the nation“.

These changes were met with significant opposition as people felt that the words “socialist” and “secular” had different meanings than what was originally intended by the drafting committee under the leadership of Dr. B.R. Ambedkar. There were concerns about whether these new additions were compatible with “Marxist socialism” and “Western secularism” and whether they would deviate from India’s unique interpretations of these ideologies.

Rectifications of Amendments made in the course of the Emergency

The 42nd Amendment of the Indian Constitution caused a lot of controversy and resulted in the Congress government being defeated in the 1977 general elections by the Janata Party alliance, following the emergency period. Mr. Morarji Desai led the newly established administration with the aim of addressing certain unconstitutional modifications made during the emergency period. The 43rd and 44th Amendment Acts were focused on specific provisions of the 42nd Amendment. The case of Minerva Mills v. Union of India in 1980 played a crucial role in rectifying specific contentious provisions of the 42nd Amendment. The legal dispute arose from the nationalization of Minerva Mills, and it ultimately led to the invalidation of Section 4 and Section 55 of the 42nd Amendment. These sections gave precedence to the Directive Principles of State Policy (DPSP) over fundamental rights and expanded the authority of Parliament to amend the Constitution without undergoing judicial review.

Conclusion

The 42nd Amendment to the Indian Constitution is a significant and controversial chapter in the nation’s constitutional history. Its impact continues to be felt, with some provisions remaining relevant while others have been modified through subsequent amendments and judicial interventions.

Enacted during a period of political and social turmoil, this Amendment highlights the delicate balance between upholding the Constitution and preserving democratic principles. During times of upheaval, the constitutional fabric faced challenges, and the 42nd Amendment emerged as a response to the prevailing circumstances and a catalyst for debates on the nature of governance.

While some provisions of the 42nd Amendment, such as the addition of Fundamental Duties and changes to the Preamble, remain integral components of the constitutional framework, others have been subject to scrutiny and rectification. The Amendment’s implications for the separation of powers, the judiciary’s authority, and the relationship between Fundamental Rights and Directive Principles have sparked extensive discourse.

Subsequent amendments, particularly the 44th Amendment Act of 1978, played a vital role in correcting certain excesses introduced by the 42nd Amendment. Judicial interventions have further shaped the interpretation and application of its provisions, reflecting the resilience of India’s constitutional democracy.

In retrospect, the 42nd Amendment serves as a complex historical marker, representing the challenges faced in reconciling governance imperatives with democratic ideals. As the nation continues its constitutional journey, the legacy of the 42nd Amendment underscores the need for vigilant constitutional stewardship and the perpetual quest for an equilibrium that sustains the core values of the Indian Republic.

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BY: Aman Bijoriya ( 3^rd Year, B.A.LL.B)