Not just ‘socialist, secular', a lot more from Emergency-era 42nd Amendment still part of Constitution

The Print

4 hours ago

The 42nd was, by far, and still is, the most comprehensive of all the amendments. It not only amended the Preamble, but also 40 Articles and the Seventh Schedule, and added 14 new Articles. Hence, having altered the face of the Constitution of India, it is often referred to as the 'mini' Constitution.
It was the Constitution (Forty-second Amendment) Act, 1976 that added the two words, but it did not just change the Preamble.
New Delhi: RSS General Secretary Dattatreya Hosabale, speaking at an event to mark 50 years of the Emergency Thursday, called for a discussion and review of the words 'socialist' and 'secular', which were included in the Preamble to the Constitution during the Emergency.
Among other things, the 1976 amendment made fundamental rights subservient to the Directive Principles of State Policy. It gave the Parliament unbridled powers to amend any part of the Constitution. It restricted the powers of the Supreme Court and high courts to strike down any laws that violated the Constitution. Through these changes, it destabilised the separation of powers, tilting the scales in favour of the ruling central government.
Moreover, the 42nd Amendment added to the Constitution the fundamental duties that Prime Minister Narendra Modi and the Bharatiya Janata Party have often emphasised. In 2019, soon after his victory in the Lok Sabha elections, Modi called for a 'paradigm shift' in India from the centrality of 'fundamental rights' to that of 'fundamental duties'.
While subsequent amendments and court judgments overturned the amendments introduced by Indira Gandhi, other changes, including the fundamental duties and the changes made to the Preamble, despite periodic opposition, seem to have stood the test of time. No political party has ever formalised a bill to bring changes to these provisions.
ThePrint explains the changes inserted by the 42nd Amendment, the changes that remain, and the changes that subsequent amendments or judicial pronouncements removed.
Fundamental duties
The 42nd Amendment inserted the fundamental duties into the Constitution through Article 51-A.
The original 1976 amendment included 10 such duties, calling upon citizens to respect the Constitution, the national flag, and the national anthem; to cherish the noble ideals of the freedom struggle; uphold and protect the sovereignty, unity, and integrity of India; defend the country and render national service when called; promote harmony and common brotherhood among all the people of India; preserve the rich heritage of the composite culture of the nation; protect the natural environment and have compassion for living creatures; develop scientific temper, humanism, and spirit of inquiry and reform; safeguard public property and abjure violence; strive for excellence in all individual and collective activity.
Atal Bihari Vajpayee added to these fundamental duties in 2002 through the 86th Amendment to the Constitution, calling upon parents and guardians to 'provide opportunities for the education of his child, or as the case may be, ward between the age of six and fourteen years'.
The Swaran Singh Committee recommended that the fundamental duties, in nature, be made obligatory, suggesting a law to provide for the imposition of a penalty or punishment for non-compliance.
However, the 10 fundamental duties eventually included in the Constitution were a modified form of the committee recommendations.
Also Read: BJP has learned to exploit web of power relations created by India's Constitution
Ones that remained
The 42nd Amendment introduced changes to the Seventh Schedule, which deals with the division of the crucial lawmaking powers between the Centre and the states. It transferred five subjects—education, forests, weights and measures, protection of wild animals and birds, and administration of justice—from the state list to the concurrent list. A new entry, 20A, was also added to the Concurrent list, adding population control and family planning as a subject.
Both Parliament and state governments can enact laws on the subjects listed under the concurrent list. However, according to Article 254, if there is a conflict between laws, the central law overrides the state law.
The 42nd Amendment also introduced Articles 323A and 323B to the Constitution, establishing the tribunals.
Article 323A pertains to administrative tribunals that look into disputes or complaints concerning recruitment or conditions of service of people appointed to government posts or public services.
Article 323B is about the establishment of the other tribunals by the Parliament or the state legislatures on assessment or collection of any tax, labour disputes, land reforms, and elections, among other matters.
The Constitution has retained the provisions related to the tribunals.
Additionally, the 1976 amendment added Articles 39A (equal justice and free legal aid), 43A (participation of workers in the management of industries), 48A (protection and improvement of the environment and safeguarding of forests and wildlife), and 39(f) (protection of children and youth).
All of these provisions have also remained in the Constitution.
Besides these, the 42nd Amendment made changes to Articles 81 and 82 of the Constitution, effectively freezing the number and boundaries of parliamentary constituencies– or the delimitation exercise— based on the 1971 Census until the publication of the post-2000 Census. In 2001, the 84th Amendment to the Constitution extended the deadline from 2000 to 2026.
Ones that had to go
Morarji Desai became the first non-Congress Prime Minister in India after the 1975 Emergency when the Janata Party assumed power. The Indira Gandhi government had to go, and so did many of the amendments it had introduced through the 42nd Amendment.
The 42nd Amendment restricted the powers of the high courts, allowing them to consider only the constitutional validity of state laws, and gave exclusive power to the Supreme Court to consider the constitutional validity of central laws. It also added a provision requiring a minimum of seven judges to consider and a two-thirds majority of them to declare a law unconstitutional. The Constitution (Forty-third Amendment) Act 1977, however, removed these restrictions on the judiciary.
The 42nd Amendment introduced a provision for Parliament to enact specific laws against anti-national activities and anti-national associations. However, the 43rd Amendment criticised the 'sweeping nature' of the powers and how open they were to 'abuse', leading to the deletion of the provision.
The statement of objects and reasons of the 44th Amendment cites one of the primary objectives of the bill as providing safeguards to recent experiences that showed a 'transient majority' was capable of taking away fundamental rights. The 44th Amendment removed 'internal disturbance' as a ground for the proclamation of a national Emergency—the provision India Gandhi used. Instead, it included 'armed rebellion' as a ground for declaring an Emergency.
The 42nd Amendment also increased the term of the Lok Sabha and the legislative assemblies from five to six years. However, the 44th Amendment restored their term to five years.
Before the 44th amendment, Article 359 allowed the suspension of fundamental rights and their enforcement during an Emergency. However, the 44th Amendment reined in this power, asserting that even during an Emergency, the government could not suspend the rights in Articles 20 (protection in respect of conviction for offences) and 21 (right to life and personal liberty).
Additionally, while Article 358 allowed the suspension of Article 19 during any national Emergency, the 44th Amendment inserted a safeguard—the government could suspend the right only when an Emergency was declared on the basis that 'war' or 'external aggression' threatened the security of India.
Also Read: Is UCC a state issue or a national one? Uttarakhand vs the Constitution
Minerva Mills case
The changes made by the 42nd Amendment but not undone by subsequent amendments bore the brunt of a landmark Supreme Court judgment in what was popularly known as the Minerva Mills case.
In the early 1970s, the Congress government nationalised Minerva Mills, a textile mill based in Karnataka, claiming that management of the mill affairs was highly detrimental to the public interest. Shareholders and creditors of the mills then approached the Supreme Court, challenging Congress's move.
While the issues at the centre of their petitions were the government's nationalisation power and the right to property, it was the legendary jurist and lawyer Nani Palkhivala who decided to use the case to challenge Indira Gandhi's amendments.
The key issues involved the amended Article 31C, giving the Directive Principles of State Policy primacy over the Fundamental Rights enshrined under Articles 14 (right to equality) and 19 (protection of certain rights, including freedom of speech and expression) of the Constitution. It meant that any laws made to give effect to any of the Directive Principles of State Policy could not be struck down by a court if they violated the right to equality or the freedom of speech and expression or other rights under Article 19.
The 42nd Amendment also tweaked Article 368, which pertains to parliamentary powers to amend the Constitution. It provided the Parliament with unlimited powers to amend the Constitution. Meanwhile, it took away court powers to review the amendments.
With the amendment to Article 368, the Congress government attempted to undo the landmark Kesavananda Bharati judgment, which laid down the basic structure doctrine, holding that certain fundamental features of the Constitution cannot be altered by the Parliament through amendments.
However, the Supreme Court, through the Minerva Mills verdict, struck down these amendments, which the Indira Gandhi government introduced during the Emergency.
The seeds
At a time, the government was operationalising the Emergency, the Sardar Swaran Singh Committee constituted in 1976 sowed the seeds for the 42nd Amendment.
Appointed by then Congress President D.K. Barooah, Sardar Swaran Singh, the then external affairs minister, headed the 12-member committee.
The committee report, while giving a plethora of recommendations, said that while the Constitution functioned without any serious impediment, the interpretation of some of its provisions threw up difficulties—'more particularly when they concern the right of Parliament to be the most authentic and effective instrument to give expression and content to the sovereign will of the people'.
However, there were warning signs about the extent of the changes suggested.
Renowned lawyer Nani Palkhivala had warned that the committee report 'will in reality change the basic structure of our Constitution'. In an article published in the 4 July 1976 edition of the Illustrated Weekly of India, Palkhivala lamented that 'our monumental apathy and fatalism are such that the proposals are less discussed in public and private than the vagaries of the monsoon or the availability of onions'.
On 1 September, 1976, the Indira Gandhi government introduced the amendment bill in the Lok Sabha, incorporating several of the changes suggested by the Swaran Singh Committee. In her speech in the Lok Sabha, the then prime minister asserted that the purpose of the bill was 'to remedy the anomalies that have long been noticed, and to overcome obstacles put up by economic and political vested interests'.
The Lok Sabha and the Rajya Sabha then passed the bill, which received the President's assent on 18 December 1976.
(Edited by Madhurita Goswami)
Also Read: Tharoor calls Bhagwat's embrace of Constitution 'triumph', Sibal warns against taking it at face value