42nd Constitutional Amendment: A Mini Constitution

Background :-

  • The Forty-second Amendment of the Constitution of India was enacted during the Emergency (25 June 1975 – 21 March 1977) by the Indian National Congress government headed by Indira Gandhi. This amendment brought about the most widespread changes to the Constitution in its history, and is sometimes called a “mini-Constitution”.

It brought the following changes in the constitution :-

  • Preamble:-
    • The preamble has been amended to substitute the words “SOVEREIGN DEMOCRATIC REPUBLIC”, with the words “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC” and the words “unity of the Nation” was substituted with “unity and integrity of the Nation.”
  • Article 31C:-
    • The scope of article 31C was widened to cover all the directive principles laid down in the Constitution. Earlier Article 31C saved only laws giving effect to the directive principles of State policy specified in article 39(b) and 39(c).
    • Provided that the laws made for the implementation of Directive Principles cannot be declared invalid by the courts in the ground of violation of some Fundamental Rights.
  • Directive principles:-
    • New directives was added by new articles 39A, 43A, 48A which, respectively, provide for equal justice and free legal aid to economically backward classes, participation of workers in the management of industries, and protection and improvement of environment and safeguarding of forests and wildlife.
  • Article 31D:-
    • New article 31D provides for the making of a Parliamentary law to prevent or prohibit anti national activity and anti-national associations. Further it was provided that article 31D will not be deemed to be void on the ground that it takes away or abridges any of the fundamental rights conferred by article 14, article 19 and article 31.
  • Fundamental duties:-
    • New Part IVA containing article 51A was added to provide lists of fundamental duties of citizens.
    • Article 74(1) was amended to make the President to act in accordance with the advice of the Council of Ministers.
  • Courts:-
    • Article 77 and article 166 relating to the Union government and State government have been amended to provide that no court or other authority will be entitled to require the production of any rules framed for the transaction of Government business.
    • New article 32A was added to provide that the Supreme Court will have no jurisdiction to decide the constitutional validity of a State law in any writ proceedings under article 32.
    • It curtailed the power of the Supreme Court and High Court with regard to the issue of writs and judicial review.
  • Disqualification:-
    • Article 102(1)(a) was amended to provide that a person will be so disqualified if he holds any such office of profit under the Government of India or the Government of any State as is declared by Parliamentary law to disqualify offices will vest in Parliament instead of in the State Legislature.
  • Duration of Loksabha:-
    • It amended the articles 83 and 172 to increase the duration of the Lok Sabha and every Legislative Assembly from five to six years during a situation of emergency.
  • It provided the Union Government to deploy personnel of armed forces in any state to deal with a ‘grave situation of law and order’
  • Supremacy of the Parliament was established by this 42nd CAA with regard to the amendment of the Constitution.
  • Made the constitutional amendments beyond judicial scrutiny.
    • Article 368 has been amended to provide that no constitutional amendment will be called in question in any court on any ground.
  • Union list, state list and concurrent list:-
    • It transferred subjects like forests, education, weights and measures except establishments of standards, protection of wild animals and birds from the State List to the Concurrent List. New entry 20A was added in Concurrent List which is “Population control and family planning”.
  • President:-
    • Made the president bound by the advise of the cabinet.
    • Extended the one – time duration of the president’s rule in a state from 6 months to one year.
  • Tribunals:-
    • Provided for administrative tribunals and tribunals for other matters (Added Part XIV A).
  • Delimitation:-
    • Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971 census till 2001.
  • Parliament:-
    • Empowered the Parliament to make laws to deal with anti – national activities and such laws are to take precedence over Fundamental rights.
    • Did away with the requirement of quorum in the Parliament and the state legislatures.
    • Empowered the parliament to decide from time to time the right and privileges of its members and committees.
  • Emergency:-
    • Facilitated the proclamation of national emergency in a part of territory of India.
  • Provided for the creation of the All – India Judicial Service.
  • Shortened the procedure for disciplinary action by taking away the right of a civil servant to make representation oat the second stage after the inquiry (i.e, on the penalty proposed).

Most of the changes were nullified:-

  • The 44thamendment of the Indian Constitution was significant as it removed partially the distortions that were introduced into the Constitution by 42nd
  • It wanted to provide that certain changes in the Constitution  which would have the effect of impairing its secular  or democratic  character,  abridging  or taking away  fundamental   rights prejudicing  or impeding free and fair elections on the basis of adult suffrage  and compromising the independence of judiciary.
  • It modified the emergency provisions of the Constitution and prevented it from being misused in the future.
  • Supreme Court and High Courts were restored with their jurisdiction and power which they enjoyed before the 42ndamendment act was passed.
  • It restored the secular and democratic ideals present in the Constitution.

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