The Mini-Constitution: 42nd Constitutional Amendment

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The period of 1965-67 was considered to be the darkest years for the nation since its independence. A national emergency was proclaimed and the most terrible draconian behaviour was displayed to anyone who disagreed with the government at the time.

That period saw the imprisonment of the highest number of Parliamentarians in all of the time. The laws were twisted to suit the needs of the Government. New laws were made with similar intentions too. The 42nd Amendment was one such Amendment that was passed to mostly suit the whims of bureaucrats.

The Mini-Constitution

This Amendment also came to be known as the mini Constitution. Presumably, the reason it was called so was that the Act amended not 1, or 2, or 10 Articles of the Constitution but more than 50 of them. That is more than one-seventh of the number of Articles there are in the Constitution in its totality. The Articles were not even confined to any few Parts of the Constitution. An Article was amended from almost all parts of the Constitution. There were so many changes it seemed to have changed a few basic things about the Constitution itself.

Political Background at the Time Being

The Prime Minister at the time, Mrs Indira Gandhi, had gotten into trouble for electoral malpractice of some form and her position at the Office was under threat. The economic conditions of the nation were at an all-time low. This was owed, among other reasons, to the all-time high in the inflation rates within the country. Through many reasons provided as justification by the then government, a Nation-wide Emergency was proclaimed. Following this, several things happened like a chain reaction. Ultimately, this Act was passed to amend the Law of the Land – the Constitution.

The Highlight Provisions of the Constitution (42nd Amendment) Act, 1976

  1. Preamble – Two important changes were made to the Preamble of the Constitution. The words – “secular” and “socialist” were included as a part of the Preamble. This, though debatably not problematic, was a big change to the basic features of the Constitution and the identity of the Nation.
  2. Anti-national Activity – Article 13, which speaks about laws that are inconsistent with the fundamental rights being invalid, was deemed to be inapplicable if a threat to national integrity and safety was posed. This included preventive measures and not just consequential measures.
  3. Changes were made to Directive Principles of State Policy (DPSPs) under Part IV to include 4 new provisions to be a part of the laws to be implemented in the future. Some of the DPSPs included child safety, equal justice, free legal aid and environment conservation and protective measures for the same.
  4. Fundamental Duties – A new Part, Part IVA was inserted with the title- “Fundamental Duties”. Article 51A was inserted with all fundamental duties as we know them today, except for the duty to educate children, which was only added in the 83rd Amendment.
  5. Article 77 and 166, which deal with the conduct of the business of the Central and State Legislatures. The Amendment to Article 77 made it such that the Court or any other authority could not ask for the production of the rules made by the President for the more convenient transaction of the business of the government. Article 166 had a similar purpose but on the State level. The provisions of this amended Article said that the Court or any other authority could not ask for the production of the rules made by the Governor for the more convenient transaction of the business of the government.
  6. Duration of the House – Articles 83 and 172 were amended to increase the term of both Houses from 5 years to 6 years.
  7. Loosening of Regulations for Conducting Meetings in either Houses or Both – Articles 100 and 189 both had 4 clauses. The third clause in both provisions spoke about the minimum quorum for conducting a meeting, which was removed. The 4th clause in both provisions spoke about the responsibility of the Chairman of the Speaker to adjourn the House or suspend the meeting in case the minimum quorum requirement was not met. This clause was omitted from both provisions. This meant that now there was no minimum quorum requirement for a meeting to proceed which made it a more loose process.
  8. The Question of Constitutional Validity of Laws – Some of the laws being passed were of questionable  Constitutional validity. But at the time, there was little remedy for the same. Articles 131A and 228A were inserted into the Constitution. In summary, they provided the power to entertain such cases only to the Supreme Court. This means that the Supreme Court has exclusive jurisdiction over the cases questioning the Constitutional validity of central laws. The High Court had no jurisdiction to rule any central law as Constitutionally invalid. They only had permission to rule state laws as Constitutionally invalid, that too in rare cases and with every bit of restriction to the same.
  9. Part XIV-A – A new part, Part XIV-A of was added to the Constitution. It deals with tribunals for administrative as well as other issues.
  10. Emergency provisions were all changed. Among many changes was the one which allows the President to proclaim emergency in states for up to 1 year as against 6 months, as it previously was.
  11. The Seventh ScheduleEducation, Forests, Weights & Measures, Protection of Wild Animals and Birds, Administration of Justice were all transferred from the State List to the Concurrent List. This led to more legislative power in the hands of the centre.
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These were few among the many changes that were made to the Constitution through the 42nd Amendment.

The Aftermath and Rectification through 44th Amendment

Many of these changes were, in retrospect, realised to be unConstitutional. The changes were not for the good of the nation. It was an attempt by the powerful to reach out and grab more power. Thus many of these changes were undone by future Amendments, mostly by the 44th Constitutional Amendment, through the Constitution (Forty-Fourth Amendment) Act, 1978.

Conclusion

Not all was bad in the 42nd Constitutional Amendment. Some of the changes were for the betterment of the nation. Others were the last ray of hope for politicians who were hanging by a thread, holding onto their positions. Prime Minister Indira Gandhi was on the verge of losing her power. She mended the laws to help her evade this bullet that was coming for her. Points 5, 6 and 7 explained under the IV heading can be connected to the political position of the then Prime Minister. They were laws that gave more power to the central legislature and made it less answerable. There is no concrete evidence but the facts add up. This Amendment was a huge setback in the nation-building and stabilizing process. Thankfully the errors were mostly undone and the Constitution was left better off for it.


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