The Constitution (42nd Amendment) Act 1976 was enacted during the National Emergency 1975-77, and is the most controversial constitution amendment in the history of India. It brought so widespread changes in the Constitution of India, that scholars often call it a mini constitution. Most of the provisions of this amendment were later reversed and negated, parly by the 43rd and 44th Constitution amendment acts enacted by the new parliament, and partly by the judgements of the Supreme Court of India.
Let us see the most prominent changes brought by the 42nd amendment.
Description of India
The 42nd amendment changed the description of India from “sovereign democratic republic” to a “sovereign socialist secular democratic republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation”, in the Preamble to the Constitution of India.
The 42nd amendment sought to give more power to the parliament. It moved the political system towards parliamentary sovereignty, and gave the parliament unrestrained power to amend any parts of the Constitution. It also protected such parliamentary actions from the Judiciary by taking away their power to interpret or pronounce upon the validity of such acts of the parliament. Now annulled.
Precedence to DPSPs over Fundamental Rights – the most controversial part
The 42nd amendment accorded priority to the Directive Principles of State Policy (DPSP), over the Fundamental Rights. It stated that the laws made for implementation of DPSPs cannot be declared invalid by courts on the grounds of violation of some Fundamental Rights. Now annulled.
More power to the Centre
The 42nd amendment transferred five subjects from the state list to the concurrent list:
- weights and measures,
- protection of wild animals and birds,
- administration of justice – constitution and organisation of all courts except the Supreme Court and the high courts.
Addition of more directive principles
42nd amendment added the following directive principles to the original list of the Directive Principles of State Policy (DPSP):
- to secure opportunities for healthy development of children
- to protect and improve the environment and to safeguard forests and wildlife
- to promote equal justice and to provide free legal aid to the poor
- to promote participation of workers in the management of industries.
Introduction of Fundamental Duties
The 42nd amendment added Article 51A – Fundamental Duties of every citizen of India, to the constitution of India. This includes duties such as respect for Constitution, national flag, and national anthem; to preserve and protect the heritage of India; to develop scientific temper and humanism; to abjure violence, etc; and these were added on the recommendation of the Swaran Singh Committee. These fundamental duties are not mandatory legal obligations on individuals, but can be enforced through separate legislation.
Reversal and Negation
The 43rd Constitution (Amendment) Act 1977 and 44th Constitution (Amendment) Act 1978 reversed most of the provisions of 42nd amendment.
In the Minerva Mills Case 1980, the Supreme Court of India declared two provisions of the amendment as unconstitutional.
One, the provision of parliamentary sovereignty, which prevented any constitutional amendment from being called in question in any Court on any ground. The Supreme Court affirmed that judicial review is a basic feature of the constitution, and that the basic structure of the constitution, not the parliament, is supreme.
Two, the provision which accorded precedence to the DPSP over the Fundamental Rights of individuals (most controversial provision of 42nd amendment). The provision said “..laws made for implementation of DPSPs cannot be declared invalid by courts on the grounds of violation of some Fundamental Rights..” It was in this landmark Minerva Mills case, that the Supreme Court noted that a balance between fundamental rights and fundamental duties is important.
More related information:
Article 323A- Administrative Tribunals, and Article 323B – Tribunals for other matters, were added to the constitution by the 42nd amendment.
Justice Verma Committee 1998 was appointed to look into legal provisions that implement Fundamental duties. This Justice Verma Committee is different from the similar sounding Justice Verma Committee 2012 that was concerned with reformation of sexual crime laws.
Some of the fundamental duties are already enforced using existing laws such as National Honour Act, and several IPC provisions such as – promoting enmity between religious groups (153A IPC).
Provisions of 42nd and the 44th amendment made Council of Ministers’ advice binding on the President of India, thus ending the confusion over the discretion of the President.