42nd Constitutional Amendment - Explained

The 42nd Amendment of the Indian Constitution, often referred to as the "Mini-Constitution," was a transformative amendment that made extensive change

The 42nd Amendment of the Indian Constitution, often referred to as the "Mini-Constitution," was a transformative amendment that made extensive changes to the structure and functioning of India’s Constitution. 

Passed during the Emergency period in 1976, this amendment holds a significant place in India’s legal history due to its far-reaching provisions and the controversies it sparked.

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42nd Constitutional Amendment

The 42nd Amendment, officially called the Constitution (Forty-second Amendment) Act, 1976, was passed by Parliament in a context of political turmoil. Prime Minister Indira Gandhi’s government introduced this amendment to give greater power to the central government, curtail judicial review, and emphasize the socialist orientation of the state. 

This amendment altered numerous articles across the Constitution, affecting everything from the judiciary to fundamental duties and Directive Principles of State Policy (DPSP).

Key Provisions of the 42nd Constitutional Amendment

The 42nd Amendment of the Indian Constitution, often called the "Mini-Constitution," introduced significant changes across various articles and added new elements to the Indian Constitution. 

1. Strengthening of Directive Principles Over Fundamental Rights

• The 42nd Amendment emphasized that Directive Principles of State Policy (DPSP) should guide governance, giving them precedence over Fundamental Rights in cases of conflict. This aimed to prioritize social welfare and economic equity as the foundation of governance.

2. Amendments to the Preamble

• The amendment added the terms “Socialist,” “Secular,” and “Integrity” to the Preamble, describing India as a “Sovereign Socialist Secular Democratic Republic.” These additions highlighted the government’s commitment to an inclusive and equitable society.

3. Introduction of Fundamental Duties (Article 51A)

• A new section, Part IVA, introduced Fundamental Duties for Indian citizens, including respect for the Constitution, upholding sovereignty, protecting the environment, and preserving cultural heritage. These duties were meant to instill a sense of civic responsibility.

4. Limitation on Judicial Review

• By amending Articles 32, 226, and 368, the amendment limited the judiciary’s power to review constitutional amendments, especially if they were passed by Parliament. This curbed the judiciary’s role in scrutinizing amendments, diminishing the independence of courts.

5. Changes to the Judiciary

• The amendment required that constitutional amendment challenges must be heard by a minimum of seven judges, thus limiting the court's ability to invalidate amendments with smaller benches. It also amended procedures to prevent lower courts from easily challenging constitutional validity.

6. Extension of the Parliament and State Legislatures’ Terms

• The tenure of Lok Sabha and state assemblies was extended from five to six years. This provision allowed for longer terms of governance without the need for frequent elections, aligning with the Emergency’s suspension of democratic norms.

7. Centralization of Power Over State Authority

• Several powers previously held by state governments were centralized. Matters like education, forests, protection of wild animals, and administration of justice were moved to the Concurrent List, granting the central government greater control over these areas.

8. Amendments to Emergency Provisions

• The amendment broadened the grounds on which a National Emergency could be declared, making it easier for the government to justify an Emergency declaration. This included situations of “internal disturbance,” which critics argued was vague and could lead to misuse.

9. Restrictions on Civil Rights During Emergency

• The amendment enabled the government to suspend Fundamental Rights more broadly during an Emergency, limiting personal freedoms and protecting the government from judicial intervention. This effectively curtailed civil liberties.

10. Introduction of Tribunals

• The amendment introduced provisions for the establishment of Administrative and other Tribunals under Article 323A and Article 323B, reducing the workload of regular courts by creating specialized courts for administrative cases.

These key provisions of the 42nd Amendment significantly shifted the balance of power within the Indian Constitution, favoring the central government and placing limitations on the judiciary and state governments. Its long-lasting impact and subsequent rollbacks through the 44th Amendment highlight its pivotal role in India’s constitutional history.

Purpose of the 42nd Constitutional Amendment

The primary purpose behind the 42nd Amendment was to strengthen the central government’s authority and diminish the influence of judicial and legislative checks on the executive. 

Indira Gandhi’s government argued that the changes were necessary to ensure a strong, stable government that could implement welfare reforms effectively. 

However, many viewed the amendment as a means for the ruling party to consolidate power and curtail the independence of institutions, particularly during the politically charged Emergency period.

Arguments For and Against the 42nd Constitutional Amendment

The 42nd Amendment of the Indian Constitution generated strong opinions on both sides, as it introduced sweeping changes that impacted the balance of power, judicial independence, and individual rights. Below are the main arguments for and against the 42nd Constitutional Amendment:

Arguments For the 42nd Amendment

1. Strengthening the Role of Directive Principles:

   • Proponents argued that giving Directive Principles of State Policy (DPSP) precedence over Fundamental Rights would allow the government to focus on social welfare and economic equality. This shift was seen as aligning constitutional priorities with the goal of establishing a more just and equitable society.

2. Introduction of Fundamental Duties:

   • The inclusion of Fundamental Duties was welcomed as a way to foster a sense of civic responsibility and commitment among citizens toward national integrity, environmental conservation, and upholding democratic principles. It highlighted the importance of citizens’ roles in nation-building, beyond just exercising rights.

3. Expansion of Emergency Powers:

   • Supporters argued that expanding the grounds for National Emergency provided the government with necessary powers to tackle threats to the nation's stability, including internal disturbances, which were not covered earlier. This, they claimed, allowed for more efficient management of crises.

4. Strengthening Parliamentary Authority:

   • The amendment gave Parliament greater powers to amend the Constitution without fear of judicial overreach. Supporters argued that this respected the democratic principle of legislative supremacy and ensured that elected representatives, not appointed judges, held the ultimate power in constitutional matters.

5. Administrative Efficiency through Tribunals:

   • The establishment of tribunals was seen as a positive step toward specialized and efficient administration of justice in areas like taxation, labor disputes, and administrative cases. Tribunals allowed for faster resolution of cases, relieving the regular court system of certain burdens.

6. Stabilizing Government Tenures:

   • Extending the term of the Lok Sabha and State Assemblies from five to six years was seen as a way to ensure stable governance without the disruption of frequent elections, especially during the period of Emergency when political stability was a stated priority.

Arguments Against the 42nd Amendment

1. Erosion of Judicial Independence:

   • Opponents criticized the amendment for limiting judicial review and judicial independence, arguing that the judiciary’s role as a check on legislative and executive power was undermined. By curtailing the courts’ ability to review constitutional amendments, the amendment disrupted the balance of power among the branches of government.

2. Curbs on Fundamental Rights:

   • By allowing suspension of civil rights during an Emergency, critics argued that the amendment diminished individual freedoms and enabled government overreach. This provision was viewed as a tool for restricting dissent and silencing opposition, particularly because of the broad definition of “internal disturbances.”

3. Centralization of Power:

   • Shifting subjects like education, forests, and administration of justice to the Concurrent List was seen as an infringement on state autonomy. Opponents believed this created an imbalance between the central and state governments, diminishing the federal structure of the Constitution.

4. Excessive Emergency Powers:

   • The expanded grounds for declaring a National Emergency were viewed as too broad and vague, especially the term “internal disturbances,” which was open to interpretation. This raised concerns that the government could misuse these powers to stifle opposition and govern without accountability.

5. Introduction of Fundamental Duties Without Legal Enforcement:

   • Although Fundamental Duties were introduced, they were not legally enforceable, leading critics to argue that these duties were largely symbolic and had limited practical value. They also worried that duties could be used as a basis for moral policing without legal backing.

6. Weakening of Democratic Processes:

   • The amendment’s centralizing tendencies and extended legislative tenures were seen as an attempt to weaken democratic processes and concentrate power. Opponents believed it reduced the scope for public accountability and potentially extended the rule of an unpopular government by eliminating the prospect of timely elections.

7. “Mini-Constitution” or Overreach:

   • Many critics described the 42nd Amendment as a “mini-Constitution” because it altered a vast number of provisions, making fundamental changes to the structure of the Constitution. Critics argued that the amendment went beyond the mandate of any single government, altering the core framework of Indian democracy.

The 42nd Amendment was ultimately a controversial exercise in constitutional power. While it sought to enhance social welfare priorities and strengthen governmental powers during crises, it also faced backlash for undermining judicial independence, limiting civil liberties, and concentrating power with the central government. 

These criticisms led to the subsequent 44th Amendment in 1978, which reversed many of the 42nd Amendment's more controversial changes and restored balance within the Constitution. 

The debate surrounding the 42nd Amendment remains a critical chapter in India’s constitutional history, showcasing the tension between central authority and democratic safeguards.

Controversies and Public Reaction

The 42nd Amendment faced substantial criticism from the opposition, civil society, and legal experts who argued that it was undemocratic and repressive. There were widespread concerns about curtailing judicial powers and diminishing fundamental rights. 

The amendment was also passed with little public debate or legislative opposition, as many opposition leaders were in jail during the Emergency. Public reaction was largely negative, and the amendment fueled significant political dissent against the ruling government.

The 44th Amendment and Rollback of the 42nd Amendment Provisions

After the Emergency ended, the 44th Amendment Act, 1978 was passed by the succeeding Janata Party government, which aimed to reverse many provisions of the 42nd Amendment. The 44th Amendment:

• Restored judicial review powers.
• Restricted the grounds for imposing a National Emergency to cases of “external aggression” or “armed rebellion” only.
• Shortened the term of Parliament and state legislatures back to five years.
• Limited the suspension of Fundamental Rights during emergencies.

The rollback through the 44th Amendment was seen as a move to restore democratic principles, judicial independence, and the balance of power.

Legacy of the 42nd Amendment

The 42nd Amendment remains a key chapter in Indian constitutional history. It serves as a reminder of the importance of constitutional checks and balances and the potential risks of centralized power. The amendment’s sweeping changes and subsequent rollback underscored the resilience of Indian democracy and the judiciary’s role in protecting constitutional principles.

The legacy of the 42nd Amendment is twofold:

1. As a Warning Against Authoritarianism: It serves as a caution against excessive consolidation of power, illustrating how constitutional amendments can significantly impact the balance of democracy.
2. Affirmation of Judicial Review and Basic Structure Doctrine: The amendment, alongside the Kesavananda Bharati case, reinforced the importance of the basic structure doctrine, protecting certain core aspects of the Constitution from amendments that would alter its democratic foundation.

Conclusion

The 42nd Amendment profoundly impacted the Indian political landscape and constitutional law, leaving a lasting imprint on how amendments are viewed in the context of democratic governance. 

While it was introduced with the stated aim of ensuring a strong, centralized government, it ultimately led to a reaffirmation of judicial independence, federal balance, and fundamental rights. 

The events following the amendment highlight the importance of constitutional safeguards in preserving democratic principles and preventing the concentration of power.