Provision Of The Day: The 42nd Amendment Of The Indian Constitution

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Analysis:

Provision Of The Day: The 42nd Amendment Of The Indian Constitution

The 42nd amendment to Constitution of India was also popularly known as the Constitution Act 1976. It was enacted during the time of Emergency, which took place between 25th June 1975 to 21st March 1977. This was held during the time of the rule of Indian National Congress Government which was headed by Indira Gandhi, although the emergency took place starting from 25th June 1975, most of the provisions were actively implemented from 3rd January 1977 whereas the leftover provisions were functionable from 1st February 1977 and Section 27 came into force on 1st April,1977.

The 42nd Amendment Act holds a special position in regards to the controversial amendments in History because, here there was an active attempt to reduce the power of the Supreme Court and High Court so that the Constitutional Validity of Law could be pronounced among the citizens. It is after this amendment that the Fundamental Duties of the Indian Citizen came into being. It is because of this amendment that the Constitution underwent a lot of changes and hence is also termed as “Mini – Constitution” or the “Constitution of Indira”.

The 42nd Amendment brought about changes in almost all parts of the Constitution which included the Preamble as well the amending clause. In due course, new sections and articles were inserted. Almost 59 clauses which worked in favour of Supreme Court were stripped and it was then that the political system took a turn towards parliamentary sovereignty. After the 42nd Amendment, unrestrained power was given to the Parliament as well as the Prime Minister’s office. Along with it, unrestrained power was given to the Constitution to amend any part without any judicial review. Also, a major part of the powers was shifted from the State Government to the Central Government. This step eroded the federal structure of India. The Preamble was also changed from “sovereign democratic republic” to “sovereign, socialist, secular democratic republic” and also changed the word “unity of the nation” to “unity and integrity of the nation”.

The era when the Emergency was declared had been a dark spot in the series of events which took place in accordance with the constitution and the amendments made. The clampdown of the civil liberty and rights of the citizens as well as abuse of the human rights by the police and public servants angered the police. In response to that the Janata Party headed by Moraji Desai, won the 1977 elections by promising restoration of peace in the country and also that the government would work towards sustaining the situation like the one existed before Emergency. It was that then the Janata Party brought about 43rd and 44th Amendment which helped to restore the pre-1976 conditions to some extent. In spite of this the Janata Party was not able to achieve the objectives fully.

Why is 42nd Amendment called “Mini Constitution”:

It was then that the judgement on Minerva Mills vs. Union of India on 31st July 1980, the Supreme Court declared two provisions of the 42nd Amendment as unconstitutional which stated that any constitutional amendment which is “called in question in Court on any ground” is prevented and to give priority to Directive Principles of State Policy more gravity over Fundamental Right.

There was change in the constitutional structure and incorporation of words “socialist, secular and integrity” in the preamble. Fundamental duties were added in part VIA. The 42nd Amendment also authorized to transfer cases from one High Court to another and also redefined the Writ Jurisdiction on High Courts. The Administrative tribunals were provided speedy justice. The Amendment empowered the Centre to deploy armed forces to deal with any grave situations. It gave the authority to the President to proclaim Emergency to any part or whole of India. After the Amendment the President is obligated to act on the suggestions and advice of the Council of Ministers. Tenure of Lok Sabha and State Assemblies were increased by one year.

These are the sole reasons 42nd Amendment is termed to be “Mini-Constitution”.

Aims of 42nd Constitutional AmendmentL

The aims of the 42nd Amendment Act included:

  • Reduction of powers of Supreme Court and High Court on the constitutional validity of law.
  • Laying down of Fundamental Duties of Indian Citizens.
  • Embedding the factors of Socialist, Secular and Integrity in the Indian Constitution.
  • Giving sweeping powers to the President’s Office and Parliament.
  • Stripping off the Supreme Court’s powers.
  • Transfer of powers so that there is more gravity to the parliamentary sovereignty.

Fundamental Duties Inserted after passing of 42nd Amendment Act:

A new chapter VI-A was inserted in the Indian Constitution which has one article. That one article housed eleven Fundamental Duties for citizens. The Fundamental Duties are:

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

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(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years

 Major Case Laws Which Had A Remarkable Contribution after 42nd Amendment:

1. Golak Nath vs. State of Punjab: it was one of the most famous cases which took place in the year 1967 where the Court rules that the Parliament could not curtail any Fundamental Rights in the Constitution of India. Also, the court developed jurisprudence which is known as basic structure doctrine. This case also led to the emergence of two schools, namely, Vindication of Fundamental Rights and Hindrance of Socio-Economic Obligations. It is after this case Golaknath reassured the faith of the Indian Citizens that Law is Supreme and nit the one who is making it, interpreting it or implementing it.

2.Kesavananda Bharati vs. State of Kerala: it is one of the landmark cases which gave birth to the legal doctrine of “basic structure”. In 1970, Bharati had challenged the Kerala Land Reforms Act and three Constitutional Amendments -24,25 and 29 stating that they are violating the Fundamental Rights to practise and propagate religion, freedom of religious denomination, which included managing and administering its property and right to property respectively. It was during this case that first time in history a bench of 13 judges was present for the hearing in Apex Court. It is the longest heard case in the Supreme Court.

3. Minvera Mills Ltd and Ors vs. Union of India and Ors: In this case, the Supreme Court Applied and evolved the basic structure doctrine of the Constitution of India. The court ruled that the power to amend the constitution by the parliament is limited. It also provided clarifications on interpretation of basic structure doctrine.

                                                                                Conclusion:

The main aim of the 42nd amendment was to focus all the power in hands of Prime Minister and Executive. After the 6th Lok Sabha Elections, the Janata Party held on cancelling the 42nd amendment and the provisions it covered. Hence, after the introduction of 43rd and 44th constitutional amendment the harmful provisions introduced were removed.

Nidhi Paul (LC Content Writer)


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