Topic: Forty-Second Amendment
Synopsis
Submitted By: Pritam Raman Giriya
56LLB16
Introduction:
Of the hundred constitution amendments in the Constitution of India, there are few
as important and as controversial as the Forty-second Amendment.1
The Constitution (Forty-Second Amendment) Act, 1976 was enacted during the
period of Emergency by Indian National Congress, headed by the then PM of India
Indira Gandhi. Rightly called as ‘mini constitution’ it substantially changed the
Constitution. The Forty-Second amendment is not just of legal importance but is
the manuscript to the changing times of the Indian democracy.
The forty second amendment is greatly remembered for its boldness of length. It
was not a simple amendment of one or two articles or a few words here and there.
It was a complete act in itself. A "mini-constitution" as it is called. It amended 57
articles including a few new ones. It stripped the powers of Supreme Court and
moved the political system towards parliamentary sovereignty. It centred the power
from state government eroding India’s Federal Structure. The Parliament through
amendment got the unrestrained power to amend any part of the Constitution
without Judicial Review. The Preamble was also changed by adding the word
‘Socialist and Secular’ making it ‘Sovereign Socialist Secular Democratic
Republic’ and added ‘Integrity’ making it ‘Unity and Integrity of the Nation’. The
civil liberties (fundamental rights) stood suspended. Widespread abuse of human
rights by state spread the anger nationwide. A separate part was added in the
constitution namely Part IV-A, the fundamental duties of the citizens. This part
was introduced in order to not only bind the government but also the citizen to
certain duties. Quoting Indira Gandhi, “people tend to remember their rights but
forget their duties”.
Apart from constitutional impacts, Forty-second amendment also resulted in
Popularization of Politics which has been enlighten further in the Research.
1
M.V. Pyle, “Constitutional Amendments in India”
No matter how draconian or effective the amendment was, but undoubtedly it
greatly changes the course of history of the nation.
Review of Literature:
Forty-Second amendment, resulted in great popularization of politics, drastically
curtailed the powers of judiciary and armed the government with special powers to
deal with anti-national activities and it was introduced to gain control over the
other institutions of state.2 Describing the story of contemporary India, ‘India after
Independence’3 makes the strong argument of whether there was an effort made to
change the basic civil libertarian structure of the constitution through Forty-Second
Amendment. The Supreme Court in the election disqualification case4 added the
following feature as ‘basic features” to the list of it: – Rule of Law, Democracy
that implies free and fair elections, Judicial Review and Jurisdiction of Supreme
Court under Article 32. Later on the Constitution was tweaked and the judgment to
an extent was reversed by Forty-Second Amendment to get over certain
ineligibilities of the then PM held by the court. Article 144A as introduced by the
Forty-Second Amendment held unconstitutional.5 It was observed that
inconvenience and delay in constituting a Bench of seven judges each time the
question of constitutionality of any law is raised pointed out. There was no point
of introducing ‘Secular’ and ‘Socialist’ in the Preamble as they are already
enshrined and inbuilt in the fabric of the Indian Constitution. The word ‘secular’
was inserted to validate the action of sending "communal" leaders to prison and
banning their organisations; and the word "socialist" was intended to similarly
justify the incarceration of the left. Indira Gandhi bunged in these two words to
justify her undemocratic actions against leaders from right to left.6 Levin in his
articles7 speaking about suspension of Habeas Corpus and the curbs on press he
elaborated that latest changes had confirmed the ‘transformation of India’ into a
fully authoritarian regime under its seedy dictator. The term of the Parliament was
extended to a year by the provision in amendment but leading to an irony, on 18
2
Raman Sunder “Amending power under the Constitution of India”
3
Chandra Bipin, Mukharjee Mridula, Mukharjee Aditya, “India after Independence”
4
Indira Nehru Gandhi V. Raj Narain “1975 Supp Scc 1 = AIR 1975 SC 229”
5
Misrilal Jain V. State of Orissa, 1977 3 SCC 212, = AIR 1977 SC 1686
6
R. Jagannathan’s “Secular, socialist' are relics of Congress' undemocratic past; they
have little meaning today”:
7
Bernard Levin, widely respected columnist of times wrote widely famous long series
of articles on Emergency and Attacks in Democracy in India. Levin’s articles are
reproduced in Rao and Rao, The Press She Could Not Whip, pp.124-31, 268-76
January 1977 The then PM announced that Parliament was to be dissolved and
fresh elections to be held. Irony was a result of fear to lose the elections as well as
criticism and boycott from Western observers (especially Socialist).8
Statement of Problem:
Rightly famed as ‘mini constitution’, forty-second amendment derives its general
contex from the emergency and tumultuous political era. Whether it has brought an
effective change among various arms of state or affected them in certain sense has
been a major concern till date among the various scientists of law. How the popular
politicization at that period of time shades the nation and impacted the election
disqualification case9 has been framed as one of the major problem in the research.
The reason behind introduction of new principles to Preamble when Constitution
was already built on the fabric of ‘Secularism and Socialism’ is the problem which
is worth exploring in the research.
Hypothesis:
Forty-second amendment more or less proved to be a draconian amendment used
by Indira Gandhi as a tool, which seeks to influence various arms of state, to pacify
the revolution against her, to drag herself out from the election disqualification
case and ultimately to win the election and return back in the Government.
Research Objectives:
It is hoped that the following research objectives would be fulfilled by this
research:
• Understanding the changes introduced by Forty-second amendment and its
effect in present context.
• To analyse the changes in democracy and rise of popular politicization in
democracy in the context of emergency and Forty-second amendment.
Research Questions:
The following questions would hopefully guide the research in the right direction
and would help to achieve the objectives of the research:
8
Guha Ramachandra, “India After Gandhi”
9
Indira Nehru Gandhi V. Raj Narain “1975 Supp Scc 1 = AIR 1975 SC 229”
1. Whether the words ‘Socialist’ and ‘Secular’ are redundant in the Preamble
of India? Whether Dr. Ambedkar rightly turned down the proposal of
inclusion of same in Preamble in 1948 by quoting that ‘Secularism was
inherent to the Constitution’s structure and mentioning it in the Preamble
would be redundant and DPSP enshrines the Socialism in its nature’ or it
was need of the hour in 1976 for the inclusion of them? How they are seen
in the present Judicial and Political context?
2. Whether the Constitution was politicized by Indira Gandhi through Forty-
Second amendment to get over with the election disqualification case10?
How the various institutions of the state were influenced by her? How did it
impact the judiciary changed it in today’s scenario after the amendment?
Research Methodology:
The researcher applied the doctrinal method of research. Print resources from
Justice TPS Chawla library at NLU, Delhi focussed on Constitution (Forty-Second
Amendment) Act, 1976 and Emergency Era were referred as primary sources for
finding answers to the research questions. Online resources such as Jstor, Hein
Online and SCC were also made use to research the cases, statutes and articles,
though not every resource directly helped in the project; they were nevertheless
useful in leading the researcher to the right direction. The resources mentioned
above were used both for the purposes of developing an understanding and finding
gaps or inadequacies which may be filled through this research by critical appraisal
and analysing available texts. Also, help from resource persons and teachers were
sought for keeping the research focussed.
Tentative Chapters:
My research will include the following tentative chapters:
Synopsis.
History and background of the forty-second amendment.
Important provisions of the amendment and their background.
Changes in Preamble. Historical background and present context.
Impact on various institutions of state.
Emergency Era, Popular Politics and Forty-second amendment.
The vision of Judiciary towards amendment aftermath and in present
Judicial context.
10
Indira Nehru Gandhi V. Raj Narain “1975 Supp Scc 1 = AIR 1975 SC 229”
Legacy and Aftermath.
Conclusion.
