39th Constitutional Amendment Act, 1975

To understand why the 39th Amendment was introduced, it is important to look at the events that happened before its passing. The 1970s were a turbulen

39th Amendment of the Indian Constitution

The Constitution of India is a living document that keeps evolving with time. Amendments help keep the Constitution aligned with new political, social, and administrative realities. 

Among all the constitutional amendments made after independence, the ones passed during the Emergency period (1975–1977) hold special importance. One such critical and highly debated amendment is the 39th Constitutional Amendment Act, 1975.

The 39th Amendment is closely connected with the political developments surrounding the Emergency and the legal case that almost removed the Prime Minister, Indira Gandhi, from office. This amendment was unique and controversial because it directly affected the relationship between elections, political power, and the judiciary. 

It tried to protect the Prime Minister’s position by placing certain elections beyond judicial scrutiny. Many constitutional experts have called it one of the most politically motivated amendments in Indian history.

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Historical Background Before the 39th Amendment

To understand why the 39th Amendment was introduced, it is important to look at the events that happened before its passing. The 1970s were a turbulent decade in Indian politics. The country was struggling with inflation, unemployment, food shortages, and social unrest. Various groups—including students, workers, farmers, and opposition parties—were protesting against the government.

The real turning point came in the 1971 general elections, when Indira Gandhi won a massive majority after the slogan “Garibi Hatao.” However, the victory did not end political tension. Opposition leaders accused her of misusing government machinery to win elections.

One of her opponents, Raj Narain, filed a case against her in the Allahabad High Court, accusing her of corrupt election practices. On 12 June 1975, the Allahabad High Court declared Indira Gandhi guilty of electoral malpractice and disqualified her from holding her parliamentary seat for six years. This verdict shook the political situation of the entire country. The legitimacy of the Prime Minister was at stake.

Indira Gandhi appealed to the Supreme Court, which granted her a conditional stay, allowing her to remain PM, but not to vote in Parliament. Meanwhile, massive protests erupted, demanding her resignation. The political crisis deepened.

In this tense environment, on 25th June 1975, Indira Gandhi advised the President to declare a National Emergency, citing internal disturbance. Soon after the Emergency was declared, the government started taking steps to protect the Prime Minister’s position and prevent courts from acting against her. One such step was the 39th Amendment Act, passed in August 1975.

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What Is the 39th Amendment of the Indian Constitution?

The 39th Constitutional Amendment Act, 1975 was introduced to protect the position of the Prime Minister and the Speaker of the Lok Sabha from judicial scrutiny in election matters. It inserted a new provision—Article 329A—into the Constitution.

The main purpose was to ensure that elections of certain high offices could not be challenged in any court of law. Instead, Parliament would decide these disputes. This amendment came at a time when Indira Gandhi’s own election was under legal challenge, making the amendment highly political and controversial.

Below is a simple explanation of what the 39th Amendment did.

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Political Context Surrounding Its Introduction

The 39th Amendment was passed during the Emergency, when:

● Opposition leaders were in jail
● Media was under strict censorship
● Public protests were banned
● Parliament had no meaningful opposition
● The ruling party had complete control

Because of this, the amendment passed quickly, without wide debate or discussion. Many constitutional experts believe that the amendment was passed mainly to protect Indira Gandhi from being forced to resign because of the court’s verdict.

During the Emergency, the government passed several constitutional amendments—38th, 39th, 41st, and the massive 42nd Amendment. The 39th Amendment was one of the most direct attempts to alter the balance between the judiciary and the executive.

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Provisions Introduced by the 39th Amendment

The amendment inserted a new Article 329A in the Constitution. Its major provisions are listed below and explained in paragraph format.

1. Article 329A(4): Excluding Judicial Review

This clause said that the election of the Prime Minister, the President, the Vice-President, and the Speaker of the Lok Sabha cannot be challenged in any court. This created a special category of elections that were beyond judicial scrutiny.

Instead of courts deciding election disputes, Parliament was given the power to settle them. This was a major shift in the traditional system, because elections in a democracy are meant to be free, fair, and subject to judicial review.

2. Retrospective Effect

The amendment declared that even past elections of the Prime Minister and Speaker would be considered valid, even if they violated existing laws. This was seen as a direct move to save Indira Gandhi from the consequences of the Allahabad High Court verdict.

3. Validation of Indira Gandhi’s 1971 Election

Although the amendment did not explicitly name Indira Gandhi, it clearly protected her 1971 election, which was challenged by Raj Narain. Through this amendment, Parliament validated her election by law, even though the High Court had declared it invalid.

4. Excluding Courts from Examining Certain Election Issues

The amendment ensured that courts could not question the following:

● the validity of election laws passed by Parliament
● the process followed in electing high constitutional officials
● whether they violated election rules

This was seen as an attempt to prevent courts from interfering with political decisions.

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Why Was Article 329A Introduced?

The government argued that high constitutional officials like the Prime Minister and Speaker must be able to function smoothly without the fear of being removed due to election disputes. It claimed that the stability of the government depended on uninterrupted leadership.

However, critics believed the real reason was different.

Political Motivation

Indira Gandhi was facing the risk of losing her office after the Allahabad High Court found her guilty of election malpractice. If she lost her seat, she would have had to step down as Prime Minister. To prevent this, the government introduced the 39th Amendment.

Avoiding Supreme Court Judgment

The Supreme Court was hearing her appeal at the same time. The 39th Amendment made the issue irrelevant by removing the Court’s authority to decide the matter. In simple words, the amendment overruled the Supreme Court before it could give its verdict.

Strengthening Executive Power

The amendment was also part of a larger plan to concentrate more power in the hands of the central government during the Emergency.

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Impact of the 39th Amendment

The amendment had wide and deep impact on the Indian political and constitutional system. Here are the major consequences.

1. Direct Interference with Judicial Independence

By removing election disputes of certain officials from judicial review, the amendment weakened the judiciary. The independence of the judiciary is a key element of the Basic Structure of the Constitution. The amendment violated this principle.

2. Political Advantage to the Ruling Party

The amendment helped secure the Prime Minister’s position at a time when she faced legal challenges. Critics called it a misuse of constitutional power for personal political gain.

3. Disturbance to Free and Fair Elections

Democracy depends on free and fair elections. Courts play a mandatory role in ensuring transparency and fairness. By excluding courts, the amendment reduced the credibility of the electoral process.

4. Concentration of Executive Power

The amendment strengthened the central government’s authority over democratic processes. It created an imbalance between the three pillars of democracy—Legislature, Executive, and Judiciary.

5. Constitutional Overreach

The amendment tried to change the structure of the Constitution in such a way that the judiciary had limited power. This went against the principle established in the Kesavananda Bharati case (1973), which said that the "Basic Structure" of the Constitution cannot be altered.

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Criticism of the 39th Amendment

The 39th Amendment faced strong criticism from constitutional experts, political leaders, scholars, and civil society.

1. Undemocratic in Nature

The amendment was passed during the Emergency, when most opposition leaders were jailed. This meant there was no real debate or discussion. Parliament functioned almost like a rubber stamp.

2. Against the Basic Structure Doctrine

The amendment violated the basic structure of the Constitution by:

● undermining judicial review
● weakening the independence of judiciary
● damaging free and fair elections
● affecting separation of powers

The Supreme Court later struck down some parts of the amendment for this reason.

3. Personal and Political Motivation

Many argued that the amendment was not made for national interest but to protect the Prime Minister’s personal political position. Such amendments damage public trust in the Constitution.

4. Lack of Transparency

The government introduced the amendment quickly and silently. The public did not get a chance to understand or debate it. This made people question the integrity of the process.

5. Misuse of Emergency Powers

The amendment proved how emergency powers can easily be misused. Instead of addressing actual national security concerns, the Emergency period saw constitutional changes aimed at consolidating political power.

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Role of the Supreme Court: The Kesavananda Bharati Legacy

Before the 39th Amendment was passed, the Supreme Court had already established the landmark Basic Structure Doctrine in the Kesavananda Bharati case (1973). According to this doctrine, Parliament can amend any part of the Constitution, but it cannot change the basic structure or destroy key features such as:

● Rule of law
● Judicial review
● Democracy
● Free and fair elections
● Separation of powers
● Federalism

The 39th Amendment violated several of these principles.

When the amendment was challenged in court, the Supreme Court examined whether Parliament could remove certain elections from judicial review.

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The Supreme Court Judgment in the Indira Gandhi Case

The amendment was challenged in the case Indira Nehru Gandhi v. Raj Narain (1975). The Supreme Court gave a historic judgment declaring parts of the amendment unconstitutional.

Key Findings of the Supreme Court

1. Judicial review is part of the basic structure, and Parliament cannot remove it.

2. The election of the Prime Minister must be subject to the same laws applicable to all other elections.

3. Parliament cannot pass a law that validates an election already declared invalid by a court.

4. Democracy requires free and fair elections, which cannot be compromised.

The Court struck down Article 329A(4) as unconstitutional. This restored the power of courts to hear election disputes involving the Prime Minister.

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Effect of the Supreme Court’s Decision

The Supreme Court’s judgment had several important consequences:

● It restored judicial review.
● It re-established the balance of power between the judiciary and the legislature.
● It prevented misuse of constitutional amendments for political gain.
● It reinforced the Basic Structure Doctrine.
● It protected democratic values.

However, the political situation during the Emergency did not change much immediately because censorship and arrests continued.

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Repeal Through the 44th Amendment

After the Emergency ended in 1977, the Janata Party came to power. One of its major promises was to restore democratic principles and reverse the authoritarian changes made during the Emergency period.

The Janata government passed the 44th Constitutional Amendment Act, 1978, which:

● Repealed Article 329A
● Restored the normal system of judicial review
● Strengthened safeguards for elections
● Ensured emergency powers would not be misused again

This amendment corrected many distortions created by the 39th Amendment.

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Long-Term Significance of the 39th Amendment

Even though Article 329A no longer exists, the 39th Amendment remains historically significant. It teaches important lessons about democracy and the misuse of political power.

1. Shows the Dangers of Unchecked Power

During the Emergency, the ruling party used its majority to amend the Constitution for political advantage. This shows how fragile democratic institutions can be when political power goes unchecked.

2. Highlights the Importance of Judicial Review

The amendment reminds us that judicial review is essential for protecting democracy. Without it, the executive can become authoritarian.

3. Demonstrates the Role of the Supreme Court

The Supreme Court’s courage in striking down parts of the amendment helped protect the Constitution’s basic structure. This shows how vital the judiciary is in maintaining balance among branches of government.

4. Serves as a Warning for the Future

The amendment teaches that constitutional changes should never be used for personal or political purposes. Such actions weaken public trust in democracy.

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Connection with Other Emergency Amendments

The 39th Amendment cannot be understood in isolation. It was part of a series of constitutional changes made during the Emergency:

● 38th Amendment – Expanded emergency powers and reduced judicial review
● 39th Amendment – Protected PM’s election from court scrutiny
● 41st Amendment – Gave immunity to high officials from legal action
● 42nd Amendment – Known as the “Mini Constitution,” expanded executive powers massively

Together, these amendments changed the nature of India’s democracy during the Emergency.

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Conclusion

The 39th Constitutional Amendment Act, 1975 is one of the most significant and controversial amendments in Indian history. Introduced during the Emergency, its main purpose was to protect the Prime Minister’s election from judicial examination. By inserting Article 329A, the amendment tried to place elections of top leaders beyond the reach of courts.

This amendment damaged the balance between the legislative, executive, and judicial branches. It weakened the principle of free and fair elections, restricted judicial review, and gave an unfair advantage to the ruling party. However, the Supreme Court recognized the threat to democracy and struck down crucial parts of the amendment.

Later, the 44th Amendment removed Article 329A completely, restoring democratic principles.

Today, the 39th Amendment stands as a historical reminder of how political power can misuse constitutional mechanisms. It teaches us the value of judicial independence, free elections, and the need for constant vigilance to protect democracy.