Thirty-ninth Amendment of the Constitution of India

The Thirty-ninth Amendment of the Constitution of India (1975) was enacted during the period of national emergency proclaimed by Prime Minister Indira Gandhi, and constituted one of the most politically charged constitutional changes in India’s history. The amendment placed the elections of the President, Vice-President, Prime Minister, and Speaker of the Lok Sabha beyond judicial scrutiny, thereby exempting them from challenge in any court of law. Its enactment was a direct consequence of the political and judicial crisis precipitated by the Allahabad High Court’s judgment in State of Uttar Pradesh v. Raj Narain (1975), which invalidated Indira Gandhi’s 1971 election for alleged electoral malpractices.

Background and Context

The 1971 general elections saw Indira Gandhi secure a sweeping victory from the Rae Bareli constituency, reinforcing her political dominance. However, Raj Narain, the defeated opposition candidate, filed an election petition in the Allahabad High Court, alleging misuse of government machinery and violation of election laws under the Representation of the People Act, 1951.
On 12 June 1975, Justice Jagmohan Lal Sinha of the Allahabad High Court found Indira Gandhi guilty of electoral malpractice, set aside her election, and barred her from holding elective office for six years. The verdict effectively disqualified her as both Prime Minister and Member of Parliament, precipitating an unprecedented constitutional crisis.
Indira Gandhi immediately appealed to the Supreme Court of India, which on 24 June 1975 granted her conditional stay, allowing her to continue as Prime Minister but not to vote or participate in Lok Sabha proceedings. The following day, citing threats to internal security and political stability, Gandhi advised the President, Fakhruddin Ali Ahmed, to declare a national emergency under Article 352, invoking “internal disturbance.”
Within weeks, opposition leaders were arrested, civil liberties curtailed, and the press censored. Against this backdrop, the government introduced and passed the Thirty-ninth Amendment to insulate high constitutional offices—including Gandhi’s own election—from judicial oversight.

Objectives and Purpose

The stated purpose of the Thirty-ninth Amendment was to prevent undue judicial interference in the functioning of constitutional offices and to ensure “continuity and stability” in governance. However, its political motive was unmistakable—to secure Indira Gandhi’s position as Prime Minister by retroactively validating her election and pre-empting any adverse Supreme Court verdict.
The amendment reflected the government’s broader Emergency-era strategy of subordinating judicial review to executive and legislative supremacy. It accompanied other measures—including the Thirty-eighth (1975) and Forty-second (1976) Amendments—which collectively sought to centralise power and restrict judicial intervention in constitutional and political matters.

Key Provisions and Constitutional Changes

The Constitution (Thirty-ninth Amendment) Act, 1975, enacted on 10 August 1975, introduced the following key changes:

1. Substitution of Article 71
   • A new Article 71 was inserted, providing that Parliament may, by law, regulate all matters relating to or connected with the elections of the President and Vice-President, including the grounds on which such elections may be questioned.
   • This effectively transferred jurisdiction over these elections from the judiciary to Parliament, removing them from the purview of the Supreme Court.
2. Insertion of Article 329A
   • A new Article 329A (comprising six clauses) was inserted to deal specifically with elections to Parliament, including those of the Prime Minister and Speaker of the Lok Sabha.
   • The article declared that the election of the Prime Minister and Speaker could not be challenged in any court of law. Instead, Parliament was empowered to determine all matters related to such elections by legislation.
   • It also provided that laws made under Article 329A would not be deemed unconstitutional merely because they contravened Articles 14, 19, or 21 (the fundamental rights guaranteeing equality, freedom, and personal liberty).
   • Clause (4) retrospectively validated the 1971 election of Indira Gandhi, stating that it “shall not be deemed void or ever to have become void,” effectively overruling the Allahabad High Court judgment.
3. Amendment to the Ninth Schedule
   • New Entries 87 to 127 were added to the Ninth Schedule of the Constitution, placing various laws beyond judicial review. This expansion further insulated a broad range of legislation from constitutional challenge.

By these provisions, the Thirty-ninth Amendment sought to place key constitutional offices—particularly that of the Prime Minister—above judicial scrutiny, thereby dismantling the principle of equality before the law and judicial independence.

Legislative Process and Enactment

The amendment was introduced as Bill No. 55 of 1975 in the Lok Sabha on 7 August 1975 by H. R. Gokhale, the Minister of Law, Justice and Company Affairs. In a politically subdued environment—characterised by the suspension of civil liberties, censorship, and detention of opposition leaders—the Bill passed both Houses of Parliament with overwhelming majorities and negligible debate.

• Lok Sabha passed the Bill on 8 August 1975.
• Rajya Sabha passed it on 9 August 1975.
• The Bill received Presidential assent on 10 August 1975 and came into force immediately.

Given its impact on federal and constitutional arrangements, the amendment required ratification by more than half of the State Legislatures under Article 368(2), which was duly obtained, aided by the dominant presence of Congress-led governments across most States during the Emergency.

Judicial Challenge: Indira Gandhi v. Raj Narain (1975)

The constitutionality of the Thirty-ninth Amendment was challenged before the Supreme Court of India in the landmark case Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299). A five-judge bench, comprising Chief Justice A. N. Ray and Justices H. R. Khanna, K. K. Mathew, M. H. Beg, and Y. V. Chandrachud, delivered its judgment on 7 November 1975.
The Court partially struck down the amendment, holding that while Parliament had broad constituent powers under Article 368, these powers were not unlimited and could not destroy the basic structure of the Constitution. Applying the Basic Structure Doctrine formulated in Kesavananda Bharati v. State of Kerala (1973), the Court held that:

• Clause (4) of Article 329A, which sought to make the Prime Minister’s election unchallengeable, violated the basic structure by undermining free and fair elections, equality before law, and judicial review.
• The other provisions relating to presidential and vice-presidential elections were upheld, as they were regulatory and did not offend the Constitution’s core principles.

The judgment reaffirmed the judiciary’s role as the guardian of constitutional supremacy, even amid extraordinary political circumstances, and marked a decisive check on Emergency-era authoritarianism.

Political Context and Consequences

The Thirty-ninth Amendment epitomised the concentration of power characteristic of the Emergency (1975–77). It was accompanied by widespread restrictions on civil liberties, preventive detentions under the Maintenance of Internal Security Act (MISA), and heavy censorship of the press. By constitutionally protecting the Prime Minister’s contested election, the amendment symbolised the erosion of democratic accountability and the transformation of constitutional mechanisms into instruments of executive control.
However, the 1977 general elections, held after the Emergency was lifted, resulted in a sweeping defeat for Indira Gandhi’s Congress Party and the rise of the Janata Party government, which initiated a series of restorative constitutional amendments. The Forty-fourth Amendment (1978) later reaffirmed the independence of elections, restored judicial review, and strengthened procedural safeguards against abuse of emergency powers.

Significance and Legacy

The Thirty-ninth Amendment holds enduring significance as a cautionary episode in Indian constitutional history. Its implications include:

• Erosion of the Rule of Law: By exempting the Prime Minister’s election from judicial challenge, it violated the principle that all individuals are equal before the law.
• Assault on Judicial Independence: It sought to curtail the judiciary’s constitutional function as a check on arbitrary power.
• Strengthening of the Basic Structure Doctrine: The Supreme Court’s invalidation of Article 329A(4) fortified the doctrine as the ultimate safeguard against constitutional subversion.
• Political and Constitutional Learning: The amendment’s reversal and repudiation after the Emergency demonstrated the resilience of Indian democracy and the people’s commitment to constitutionalism.

In retrospect, the Thirty-ninth Amendment stands as a symbol of executive overreach and a turning point in India’s constitutional journey, reaffirming that no political office, however exalted, lies beyond the discipline of constitutional law and judicial accountability.