42nd Amendment of Indian Constitution

3 Jan 2023  Read 8241 Views

The 42nd amendment act, as alleged, was India’s Constitution or Indira’s Constitution? We are saying this because the Indira Gandhi government brought the most criticised amendment of all time, known as the “mini-constitution”, which is the 42nd amendment. Every time a constitutional amendment is introduced, it undoubtedly strengthens our Indian Constitution, but it was the first time when an amendment (42nd amendment) came up to satisfy the personal ambitions of a government leader, Indira Gandhi, and not to strengthen our Constitution and Indian democracy with few of its provisions chucked out while some still in force.

The 42nd amendment is called the “Mini-Constitution” because of the enormous amendments it brought to the Indian Constitution. Also, it attempted to alter the basic structure of the Indian Constitution. Indian Constitution forms not only part of law entrance exams but also other competitive exams like UPSC etc. Therefore, we have covered the most controversial yet important amendment made to the Indian Constitution in our article. So, let’s get started. 

What is the 42nd Amendment Act?

The Indian Constitution is unique in its spirit, which decides the rule of the land & it is taken as the supreme law of the land. Apart from formulating our Constitution, the constituent assembly had also given scope for amendments in it with changing times. Therefore, the Indian Constitution as we see it today has undergone substantive changes because of several amendments. One such amendment, also called the Constitution Amendment Act of 1976, is one of the most controversial & major acts in the history of amendments to the Indian Constitution. 

Changes brought by the 42nd Amendment Act

What were the amendments?

Preamble

Words ‘Socialist’, ‘Secular’ and ‘Integrity’ added

7th Schedule

Transferred 5 subjects from the state list to the concurrent list:

  1. Education

  2. Forests

  3. Weights & Measures

  4. Protection of Wild Animals and Birds

  5. Administration of Justice

Article 51A

10 Fundamental Duties added for the citizens on the recommendations of the Swaran Singh Committee that was constituted by the government in 1976

Parliament

  1. Made President bound to the advice of the cabinet

  2. Allowed the Centre to deploy central forces in State to deal with the conflicting situations of law and order (Article 257A)

  3. Gave special discretionary powers to the speaker of  the Lok Sabha and Prime Minister (Article 329A)

  4. Directive Principles were given precedence over Fundamental Rights and any law made to this effect by the Parliament was kept beyond the scope of judicial review by the Court

Judicial Powers of HC

Curtailed the judicial review power of the High Courts

Articles 323A and 323B, Part XIV-A 

Part XIV-A added entitled as ‘Tribunals dealing with Administrative matters’ and ‘Tribunals for other matters’

DPSPs 

Three new Directive Principles of State Policy were added to the existing list of DPSPs and one was amended:

  1. To secure opportunities for the healthy development of children (Article 39)

  2. To promote equal justice and to provide free legal aid to the poor (Article 39 A)

  3. To take steps to secure the participation of workers in the management of industries (Article 43 A)

  4. To protect and improve the environment and to safeguard forests and wildlife (Article 48 A)

What are the major changes brought by 42nd amendment?

These are a few major changes brought by the 42nd amendment which significantly impacted the pre-existing model of the Constitution. 

  1. Preamble

Preamble explains the Constitution's philosophy and objectives as it presents its framers' intention. Article 368 of the Indian Constitution allows the Preamble to be amended. However, it is not that easy. Until now, Preamble had been amended only once by the 42nd amendment with two new additions. Firstly, “Sovereign Socialist Secular Democratic Republic” replaced the designation of India as a “Sovereign Democratic Republic.” Secondly, “unity and integrity of the nation” replaced “unity of the nation”. 

  1. Judicial Power

Before this modification, the High Courts might even challenge the Union Government’s Acts in court. So, the public found it pretty easy to challenge this practice at the high court of their respective state. The amendment then limited the High Court’s authority, under which Articles 226A and 228A allowed High Courts to rule only on the legality of State legislation. Similarly, Article 131A was adopted to provide the Supreme Court with authority to consider whether central legislation is legal exclusively. Apart from these, two new articles were included, articles 144A and Article 228A, that generated controversy in the area of judicial power.

  1. Suspension of the Fundamental Rights

Our Constitution has mandated the grant of fundamental rights for every citizen in any case. However, the 42nd amendment brought the necessary clauses to the Constitution which allowed for the suspension of fundamental rights in times of need for example, in cases of emergency. So, whenever an external emergency is imposed, Article 358 can suspend the rights under Article 19 of the Constitution (right to freedom) without any special notice. This clause states that the “emergency laws” are given legal immunity.

  1. Introduction of Fundamental Duties

Under the Indian Constitution, fundamental rights and Directive Principles of State Policy have been provided for each and every citizen. However, one must not forget that it’s our duty to protect the right of every other individual. So, every Indian citizen also needs to bear some obligations to the state if the state, in reciprocation, is bound to protect the rights of every people.  Therefore, to maintain a friendly relationship, the government and the Swaran Singh Committee thought of bringing fundamental duties as part of the 42nd Amendment of 1976 (Art. 51A). It includes 10 essential obligations under Part IVA. But they were given a non-judicial and unenforceable impact.

  1. Directive Principle of State Policy

Under this amendment, Article 31C emerged as the DPSP clause as Sec. 4 of 42nd amendment stated to give precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals provided in Part III. Although the 1971 amendment inserted this Article, this amendment widened its scope. Adding Article 39-A and the amendment to Article 39(f) of the Constitution are two further DPSP improvements that this brought. Article 39-A provides free legal aid for those who cannot afford for trial, meaning free legal assistance must be given to the less powerful members of society to prevent injustices arising solely from economic or social backwardness. Then, Article 39(f) was amended. Previously, Article 39(f) stated that “childhood and youth are protected or guarded against exploitation or manipulation and against moral and material abandonment.” This article, therefore, ensures adequate means of livelihood, fair distribution of wealth, equal pay for equal work, protection of children and labour whose responsibility is vested upon the state.

  1. Delimitation of Parliamentary Constituencies

The borders of parliamentary constituencies (seats) could not be changed as per the 42nd amendment until the first census following 2000, or 2001. This amendment froze any delimitation of constituencies (redrawing parliamentary or state legislative districts) for elections to Lok Sabha and State Legislative Assemblies until after the 2001 Census of India, by amending article 170 (relating to the composition of Legislative Assemblies) Before this, Article 82 mandated the redrawing of parliamentary and state legislative districts every 10 years, following each census, in accordance with the information gathered now the borders or districts of the constituencies cannot be altered.

  1. Alteration to Article 74

The 42nd amendment added only a statutory provision to a long-standing practice in India, it didn’t amend anything. This article states that "there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. When we examine the power structure in our country, the Prime Minister is viewed as the real leader, while the President is the nominal constitutional head of state. Even though this practice is not governed by any clause of the Constitution or any other law, the President followed the cabinet's recommendations before the revision of Article 74.

  1. Legislative and Judicial Responses

Following the emergency state, India’s general elections were held in 1977, and the Janata Party coalitions beat Congress. Mr Morarji Desai served as the head of the newly established government, and their main responsibility was to restore our Constitution to its pre-emergency state. Consequently, the 42nd amendment was addressed by the 43rd and 44th Amendment Acts of 1977 and 1978, respectively. The High Courts and Supreme Court now have the prior authorization, so now the “Internal Unrest” has been replaced with “Armed Rebellion,” with several other modifications being made as a result of these amendments.

Conclusion

Although the 42nd amendment is considered the most controversial amendment in the history of the Indian Constitution, wherein many amendments have been scrapped, like DPSP shall have precedence over Fundamental rights have been scrapped by the following amendments; yet many of its amendments are still intact and in force due to their benefits like for example it is considered beneficial for everyone to have free legal aid policies, safeguarding children and the environment, and the fundamental duties are also intact. However, to conclude, the amendment had a negative image due to its impact on our Indian democracy.

About the Author: Kakoli Nath | 275 Post(s)

She is a Legal Content Manager at Finology Legal! With a Masters in Intellectual Property Rights (IPR), a BBA.LL.B from ITM University, and patent analyst training from IIPTA, she truly specializes in her field. Her passion for IPR and Criminal laws is evident from her advanced certification in Forensic Psychology and Criminal Profiling from IFS, Pune.

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