42nd Constitutional Amendment (1976)

The 42nd Constitutional Amendment Act, 1976 is one of the most significant and controversial amendments to the Constitution of India, often referred to as the “Mini Constitution” due to the extensive and wide-ranging changes it introduced. Enacted during the period of Emergency (1975–1977) under Prime Minister Indira Gandhi, it aimed to strengthen the central government, curtail the powers of the judiciary, and alter the fundamental framework of the Constitution. The amendment touched nearly every part of the constitutional structure, affecting the Preamble, Fundamental Rights, Directive Principles of State Policy, and the relationship between the executive, legislature, and judiciary.

Background and Context

The 42nd Amendment was passed at a time of extraordinary political control by the ruling Indian National Congress, following the declaration of the Emergency under Article 352 on grounds of internal disturbance in 1975. The government sought to consolidate authority and address what it perceived as judicial overreach and obstacles to rapid social and economic reform.
The Supreme Court’s earlier rulings in cases such as Kesavananda Bharati v. State of Kerala (1973), which established the Basic Structure Doctrine, and Indira Nehru Gandhi v. Raj Narain (1975), which invalidated Indira Gandhi’s election to Parliament, had limited Parliament’s amending powers. In response, the 42nd Amendment was introduced to reassert parliamentary supremacy and curb judicial intervention in constitutional matters.
The Bill was introduced by H. R. Gokhale, the then Law Minister, and was enacted after minimal debate, as opposition parties were largely absent from Parliament during the Emergency.

Major Provisions of the Amendment

The 42nd Amendment introduced changes to 59 Articles, added 13 new Articles, and inserted two new Schedules (the 9th and 10th), making it the most comprehensive amendment in Indian constitutional history.
Key provisions included:

• Changes to the Preamble: The words “Socialist” and “Secular” were added to define India as a “Sovereign Socialist Secular Democratic Republic.” The term “unity of the Nation” was replaced with “unity and integrity of the Nation.”
• Directive Principles of State Policy (DPSPs): Several new principles were added, strengthening the role of the state in economic and social policy:
  • Article 39 was expanded to ensure equal justice and free legal aid.
  • Article 39A was added for providing free legal aid to the poor.
  • Article 43A introduced the concept of workers’ participation in management of industries.
  • Article 48A required the state to protect and improve the environment.
• Fundamental Duties: A new Part IVA (Article 51A) was inserted, introducing Ten Fundamental Duties for citizens, such as respecting the Constitution, promoting harmony, protecting the environment, and safeguarding public property.
• Curtailment of Judicial Powers:
  • The amendment sought to limit the power of judicial review by amending Articles 32, 131–136, 226, and 227.
  • The decisions of Parliament regarding constitutional amendments were declared beyond judicial scrutiny.
  • The jurisdiction of High Courts was restricted in certain areas to reduce interference in administrative actions.
• Strengthening the Parliament and Executive:
  • The amendment affirmed the supremacy of Parliament in amending the Constitution.
  • It extended the duration of the Lok Sabha and State Legislative Assemblies from five to six years (later reversed by the 44th Amendment in 1978).
  • The President was made bound by the advice of the Council of Ministers, effectively reducing the discretionary powers of the President.
  • Article 74(1) was amended to clarify this subordination.
• Emergency Provisions:
  • The scope of the term “internal disturbance” in Article 352 was retained, making it easier to declare a national emergency.
  • The effect of a Proclamation of Emergency was extended, allowing suspension of Fundamental Rights for an indefinite period.
• Constitutional Amendments and Basic Structure:
  • The insertion of Article 368(4) and 368(5) sought to declare that constitutional amendments could not be questioned in any court, effectively nullifying the Basic Structure Doctrine.

Impact on Fundamental Rights and DPSPs

The 42nd Amendment tilted the balance between Fundamental Rights and Directive Principles in favour of the latter. It amended Article 31C to provide that any law made to implement any Directive Principle could not be challenged on the grounds of violating Fundamental Rights under Articles 14 or 19. Originally, Article 31C protected laws implementing only Article 39(b) and (c), concerning equitable distribution of resources.
This modification significantly reduced the scope of judicial protection for individual rights and increased state intervention in social and economic spheres.

Criticism and Controversies

The 42nd Amendment faced widespread criticism for undermining the democratic and federal nature of the Constitution. Critics described it as an attempt to establish a constitutional dictatorship, concentrating excessive power in the hands of the central government.
Key criticisms included:

• Erosion of Judicial Independence: Curtailment of judicial review was seen as a direct assault on the separation of powers.
• Weakening of Federalism: Enhanced central control reduced the autonomy of the states.
• Undemocratic Process: The amendment was passed during the Emergency when civil liberties were suspended, and political opposition was silenced.
• Alteration of Constitutional Philosophy: By modifying the Preamble and the balance between rights and duties, it was argued that the amendment distorted the liberal democratic essence of the Constitution.

Reversal and Judicial Response

Following the end of the Emergency and the electoral defeat of Indira Gandhi in 1977, the Janata Party government undertook efforts to restore the constitutional balance through the 44th Amendment Act of 1978. This amendment:

• Restored the original duration of Lok Sabha and State Assemblies to five years.
• Reinstated judicial review of constitutional amendments.
• Repealed Articles 368(4) and 368(5).
• Restored the primacy of Fundamental Rights over Directive Principles (limiting Article 31C protection again only to Article 39(b) and (c)).

The Supreme Court also reaffirmed its authority in Minerva Mills v. Union of India (1980), declaring that the amending power of Parliament is limited by the Basic Structure Doctrine and striking down several provisions of the 42nd Amendment as unconstitutional.