Aishwarya Lakshmi VM
“The Constitution is a part of the priceless heritage of every Indian. Its founding fathers wanted to ensure that even while India remained poor in per capita income, it should be rich in individual freedom.” remarked Nani Palkhiwala in an article titled ‘The Supreme Court’s judgment on the Constitution (42nd Amendment) Act, 1976’ originally published in the Indian Express.
The most voluminous and the most criticized Amendment to the Indian Constitution is the 42nd Amendment of the year 1976. In the case of State of Uttar Pradesh v. Raj Narain, judgment dated 12th June 1975 the Allahabad High Court found Mrs. Indira Gandhi, the then Prime Minister, as guilty of electoral malpractices. Following the judgment, an Emergency was imposed in India on 25th June 1975. During this period wherein opposition leaders were captive under preventive detention, several Amendments were made to the Indian Constitution, the most significant being the 42nd Amendment Act of 1976.
The 42nd Amendment amended the Preamble of the Constitution, inserted 14 new Articles and altered 40 existing Articles. This Amendment was called a ‘Mini-Constitution’. The powers were drastically shifted in favor of the Executive, especially to the Prime Minister. The power of the Judiciary to judicially review a matter was curtailed. There were progressive Amendments like the insertion of fundamental duties, amending the Preamble to include ‘socialist, secular’, emphasizing on the ‘integrity of the nation’ etc. However, a large chunk of the 42nd Amendment Act significantly altered the fabric of the Indian Constitution. Some major retrograde amendments include -
Removing election disputes from the purview of the Courts;
Transferring more power from the State Government to the Central Government;
Giving amending powers to the Parliament in an unrestrained manner;
Barring judicial review of Amendments to the Constitution of India;
Reducing the power of the High Courts to adjudicate on the validity of only the State Laws;
Giving primacy to Directive Principles of State Policy over Fundamental Rights;
Laws prohibiting ‘anti-national activities’ could not be struck down merely on the ground that it violates fundamental rights
Freezing delimitation of constituencies and the number of Lok Sabha and state legislative assembly seats to SC and ST members etc.
The effect of the 42nd Amendment was significantly nullified by the subsequent 43rd and 44th Amendment Acts enacted by the following Janata Government. However, positive portions of the 42nd Amendment were retained.
In the case of Minerva Mills v. Union of India, the Apex Court struck down Sections 4 and 55 of the 42nd Amendment Act both of which tried to restrain judicial intervention in matters of legislations enforcing the DPSP and amending the constitution respectively.
Though the 42nd Amendment Act, 1976 has been made into a toothless tiger by subsequent Amendments and judicial intervention, it has altered the Executive’s outlook of the Constitution of India.
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