Forty-third Amendment of the Constitution of India

The Forty-third Amendment of the Constitution of India (1977–78) marked the first systematic legislative rollback of the Emergency-era constitutional changes. Enacted by the newly elected Janata Party government and receiving presidential assent on 13 April 1978, it selectively dismantled key provisions of the Forty-second Amendment (1976) that had insulated wide swathes of executive and legislative action from judicial scrutiny. The Amendment chiefly restored the High Courts’ and Supreme Court’s jurisdiction curtailed in 1976, removed extraordinary hurdles to striking down unconstitutional laws, and reaffirmed the principle that judicial review is central to India’s constitutional design.

Background and political context

The Emergency (25 June 1975–21 March 1977) witnessed far-reaching constitutional alterations aimed at concentrating power in the Union executive and limiting the scope of rights enforcement. The Forty-second Amendment added multiple articles that either curbed the jurisdiction of constitutional courts or raised onerous thresholds for invalidating legislation. In the 1977 general election, the Janata Party campaigned on a pledge to “restore the Constitution to the condition it was in before the Emergency”, winning a popular mandate to reverse Emergency-era excesses. The Forty-third Amendment was the first major instalment of that restoration programme (followed by the Forty-fourth Amendment (1978)).

Legislative history and enactment

Introduced in the Lok Sabha on 16 December 1977 as the Constitution (Forty-fourth Amendment) Bill, 1977, by Shanti Bhushan, Minister of Law, Justice and Company Affairs, the Bill sought to repair the architecture of judicial review and federal adjudication. During passage in the Lok Sabha on 20 December 1977, a formal change retitled it the Forty-third (to reflect sequencing of pending measures). The Rajya Sabha passed the Bill on 23 December 1977. As the Bill touched provisions affecting the federal balance and judicial powers, it required ratification by more than half of the States under Article 368(2), which was duly obtained. It came into force upon Presidential assent on 13 April 1978.

Objectives and scope

The Amendment’s central purposes were to:

• Reinstate judicial review over Central and State laws by removing Emergency-era barriers to constitutional adjudication.
• Restore the jurisdictional balance between the Supreme Court and High Courts, reversing exclusivity rules that had sidelined High Courts.
• Eliminate super-majority and minimum-bench hurdles for striking down legislation that the Forty-second Amendment had imposed.
• Remove broad anti-dissent enabling clauses that had permitted Parliament to legislate on so-called “anti-national activities” and “anti-national associations”.

In sum, the Forty-third Amendment re-opened the constitutional courts’ gates for rights-based challenges and ordinary judicial review, reinforcing separation of powers and federalism.

Articles repealed and associated amendments

The measure omitted six articles inserted by the Forty-second Amendment and made consequential changes to three others to knit the text back together coherently.

• Article 31D (repealed): Had enabled Parliament to make laws regarding “anti-national activities” and “anti-national associations.” Its breadth risked criminalising dissent and political opposition. Repeal removed this sweeping, indeterminate legislative head.
• Article 32A (repealed): Barred the Supreme Court from considering the constitutional validity of State laws in writ proceedings for enforcement of Fundamental Rights. This directly undercut Article 32’s guarantee. Its repeal restored the Court’s traditional writ jurisdiction to examine State legislation in fundamental rights cases.
• Article 131A (repealed): Had vested exclusive jurisdiction in the Supreme Court to decide the constitutional validity of Central laws, thereby excluding High Courts. Repeal reinstated High Courts’ competence to test Union legislation, preserving multi-tiered access to justice.
• Article 144A (repealed): Required that a bench of at least seven judges of the Supreme Court, by a two-thirds majority, was necessary to strike down any Central or State law. This extraordinary hurdle was inconsistent with ordinary judicial practice and threatened to entrench unconstitutional statutes. Repeal restored normal decision-making thresholds.
• Article 226A (repealed): Prevented High Courts from considering the constitutional validity of Central laws in writ jurisdiction. Its removal re-empowered High Courts under Article 226 to scrutinise Union legislation.
• Article 228A (repealed): Imposed special conditions on High Courts before striking down State laws, akin to 144A’s constraints at the Supreme Court level. Repeal re-established routine standards for constitutional invalidation in High Courts.

To facilitate these omissions and ensure textual alignment, the Amendment modified:

• Article 145 (Supreme Court rules, benches and procedure),
• Article 228 (transfer of certain cases to High Courts/Supreme Court), and
• Article 366 (definitions),

removing references that had buttressed the now-repealed provisions and reaffirming procedural flexibility for constitutional adjudication.

Restoration of High Court jurisdiction and access to justice

A notable achievement of the Forty-third Amendment was the revival of High Courts as primary constitutional fora. Under the Forty-second regime, litigants challenging Central laws were forced to approach the Supreme Court alone, concentrating litigation in Delhi and erecting geographic, financial and logistical barriers to rights enforcement. By striking 32A, 131A and 226A, Parliament re-decentralised constitutional review, reinstating the High Courts’ pivotal role as courts of first instance in rights litigation and alleviating docket pressure on the Supreme Court. This change also revived Article 226 as a robust, local remedy—critical for speedy relief in fundamental rights cases.

Federalism and institutional balance

The Forty-third Amendment realigned judicial federalism by restoring concurrent constitutional jurisdiction: High Courts could again review both State and Central laws for constitutional infirmity, subject to the Supreme Court’s appellate and authoritative role. This structure is intrinsic to India’s quasi-federal design—ensuring that constitutional questions arising in the States receive proximate adjudication while maintaining national coherence through Supreme Court oversight. By removing exclusivity and super-majority constraints, Parliament affirmed that constitutional supremacy rests on effective, accessible judicial control, not on institutional bottlenecks.

Ratification landscape

The Amendment secured ratification from a substantial cohort of States, including Andhra Pradesh, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, and West Bengal. A few States—Karnataka, Jammu and Kashmir, Kerala, and Uttar Pradesh—did not ratify. Nonetheless, the requisite majority of State legislatures supported the measure, reflecting a broad, though not unanimous, federal endorsement of the post-Emergency constitutional reset.

Relationship with the Forty-fourth Amendment (1978)

While the Forty-third focussed on jurisdictional restoration and removal of procedural obstacles, the Forty-fourth Amendment complemented it by re-balancing the Emergency framework (e.g., reinstating the five-year legislative term; reshaping Articles 352–359 safeguards; strengthening protections around Articles 20–21). Together, these measures constituted a two-step recovery: first, reopen the courts; second, embed safeguards against future overreach. The Supreme Court’s contemporaneous jurisprudence—especially Minerva Mills (1980)—then consolidated the basic structure doctrine, putting substantive limits on amendment power and reaffirming judicial review as non-derogable.

Doctrinal significance

By repealing Articles 144A and 228A, the Forty-third repudiated the notion that extraordinary majorities or minimum bench sizes should shield statutes from invalidation. Indian constitutional practice had always rested on the persuasive authority of reasoned adjudication, not on numerical barriers. Restoring ordinary standards reaffirmed that unconstitutionality is a question of principle, not a test of headcount. Likewise, repealing 31D signalled a legislative retreat from broad, amorphous security categories, which risked criminalising disagreement rather than addressing concrete threats.