42nd Amendment of the Indian Constitution (Mini constitution)

42nd Amendment of the Indian Constitution (Mini constitution)

 

Introduction

One of the main features of the Indian Constitution is that it has a good mix of both rigidity and flexibility. That is, proper arrangements have been made in the Indian Constitution to change it according to the circumstances and requirements.

The process of amending the Indian Constitution is neither as easy as it is in the UK nor overly difficult as it is in the US. The process of revision being too easy increases the possibilities of its misuse and being too rigid makes it difficult to rectify the errors.

 

42nd Constitutional Amendment of the Constitution.

  • The 42nd Constitutional Amendment Act, 1976 is considered to be the most important amendment in the Indian Constitution.
  • The 42nd Constitutional Amendment Act is known as the 'mini constitution' because it made major changes in the constitution. And by this amendment the recommendations of the Swaran Singh Committee were made effective in the Indian constitution.
  • It was enacted by the Indian National Congress headed by Indira Gandhi. The 42nd amendment is considered to be the most controversial constitutional amendment in history.
  • It curtailed democratic rights in the country, and gave sweeping powers to the Prime Minister's Office.
  • This amendment is considered to be the most controversial amendment in Indian history.
  • It was passed on 11 November 1976.
  • It was introduced by H. R. Gokhale.

 

Key Changes Introduced by the 42nd Amendment

Several crucial changes were introduced through the 42nd Amendment, which had lasting impacts on the functioning of the Indian State:

 

  • Preamble Alterations: The words "Socialist", "Secular", and "Integrity" were added to the Preamble. This marked a shift in India's ideological direction, with a focus on Socialism and Secularism, although these terms sparked debate over their true meaning in the Indian context.

 

  • Judiciary Curtailment: The powers of the Supreme Court and High Courts were significantly restricted. The introduction of Article 31C limited the Judiciary's ability to review laws made to implement the Directive Principles, even if they violated Fundamental Rights

 

  • Directive Principles of State Policy: New provisions were added to the DPSP, including Article 39A (equal justice and free legal aid), Article 43A (worker participation in industry management), and Article 48A (environmental protection). These additions aimed to make the State more socially responsible.

 

  • Extension of Legislative Terms: The term of the Lok Sabha and State Legislative Assemblies was extended from five to six years, a change that was widely criticized for delaying elections and weakening democratic processes.

 

  • Emergency Provisions: The Amendment extended the powers of the Central government during National emergencies, allowing for longer durations of President's Rule and expanding the grounds for imposing emergency provisions. This shift led to concerns about potential misuse of emergency powers.

 

  • Transfer of Subjects to Concurrent List: Several key subjects, including education, forests, and weights and measures, were moved from the State List to the Concurrent List, thereby increasing Central control over these subjects.

 

Important point.

  • Many of the provisions of the 42nd Constitutional Amendment Act were repealed by the 44th Constitutional Amendment Act, 1978.

○Following are the major provisions of the 44th Constitutional Amendment.

○It allowed the government to amend the constitution at will by Article 368. It was abolished by the 44th Amendment Act.

○The 44th Amendment Act removed the right to property from the list of fundamental rights and made it a legal right.

○The grounds for declaration of national emergency were external aggression and internal disturbance but the 44th amendment changed the term 'internal disturbance' to 'armed rebellion'.

○Article 226 was amended to restore the power of the High Courts to issue writs for any purpose other than the enforcement of fundamental rights.

○It restored the jurisdiction and power of the Supreme Court and the High Courts that they enjoyed before the 42nd Amendment Act was passed. It restored the secular and democratic ideals present in the constitution.

 

The process of amending the Indian Constitution.

 

  • In Article-368 of Part 20 of the Constitution, the Parliament of India has been given the power to amend the Constitution.

 

  • Using this article, the Parliament can add, change or take away any provision of the constitution.

 

  • However, the Parliament cannot amend the provisions that form the 'Basic Structure' of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case in 1973.

 

This article describes the following procedures for amendment.

  • The amendment of the constitution can be initiated only by introducing an amendment bill in either House of the Parliament in Lok Sabha or Rajya Sabha and not in any State Legislature or Legislative Council.
  • An amendment bill can be introduced by any minister or any MP and does not require prior assent of the President.
  • It is mandatory for the bill to be passed by a special majority (two-thirds percent) in both the houses. It is mandatory for the bill to be passed separately in each house. In case of disagreement between the two houses, the provision of joint sitting of both the houses has not been made in the context of amendment of the constitution.
  • If the bill is on the issue of amendment of the federal system of the constitution, then it must be passed by a simple majority (50%) from the legislatures of at least 50% of the states.
  • After it is passed by both the Houses of the Parliament, and after the recommendation of the State Legislatures where necessary, this amendment bill is sent to the President for assent.
  • In the case of an amendment bill, the President of India can neither exercise his veto power nor send it to the Parliament for reconsideration. If understood in clear terms, it is necessary to give approval to the President.

 

Revision Type

  • Article 368 provides for two types of amendments.

1. by a special majority of the Parliament.

2 With the ratification of the legislatures of half the states by a special majority of the Parliament as well as by a simple majority.

 

What is the special majority?

  • Under Article 368(2), Parliament can amend the constitution by passing a bill with a special majority.
  • Fundamental Rights and Directive Principles of State Policy are the two most important provisions that can be amended by a special majority, but the amendment must be within the basic structure of the Constitution.
  • All provisions which do not require ratification by the states, and which directly fall within the purview of Article 368, can be amended by a special majority.

 

Special majority with the consent of half the states.

  • Those provisions of the constitution which are related to the federal structure of the polity can be amended only by a special majority of the Parliament and a simple majority of half of the state legislatures.
  • Important provisions requiring ratification by the states include the election of the President, the Supreme Court and the High Courts, the representation of the states in Parliament, the distribution of legislative powers between the Union and the States, and the limits on the executive power of the Union and the States.
  • Most importantly, amendment to Article 368 requires ratification by the states.
  • There is a procedure for amendment of certain provisions of the constitution by a simple majority of each house present and voting. These amendments are not considered as amendments under Article 368.

What is the simple majority?

  • Outside the purview of Article 368, many provisions of the Constitution can be amended by a simple majority of both the Houses of Parliament.
  • These provisions include.

○Formation of new states and alteration of areas, boundaries or names of existing states.

○Abolition or creation of Legislative Councils in the States.

○Use of official language.

○Citizenship - Acquisition, and Termination.

○Elections to Parliament and State Legislatures.

○Fifth Schedule - Administration of Scheduled Areas and Scheduled Tribes.

○Sixth Schedule - Administration of tribal areas.

○Change in Salary and Allowances of Members of Parliament

○rules of procedure in parliament

○Privileges of Parliament, its members and its committees

 

42nd Amendment - Criticism and Consequences

  • The 42nd Amendment was broadly scrutinized, and the clampdown on common freedoms and boundless maltreatment of basic liberties by police during the national emergency irritated general society, and thus it led to the defeat of the Indira Gandhi-led Political faction in the 1977 General Elections.
  • The people were outraged by the police's crackdown on civil freedoms and widespread violations of human rights.
  • The Janata Party, which promised to "return the Constitution to its pre-Emergency condition," won the 1977 general elections. The Janata government responded by enacting the 43rd and 44th Amendments in 1977 and 1978, respectively, to partially restore the pre-1976 situation.
  • The 42nd Amendment Act granted the Directive Principles legal primacy and supremacy over the Fundamental Rights conferred by Articles 14, 19, and 31.
  • Nonetheless, the Janata Party couldn't completely accomplish its goal of re-establishing the Constitution to the condition it was in before the Emergency.

 

Conclusion

The 42nd Amendment significantly transformed the Indian Constitution, giving more authority to Parliament and reducing the role of the courts in resolving election disputes. It also strengthened the central government, emphasizing a unitary system over a federal one. This amendment limited the judiciary’s power to challenge legislation, which had implications for democracy and the protection of fundamental rights.