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Forty-second Amendment of the Constitution

of India
The Forty-second Amendment of the Constitution of
India, ocially known as The Constitution (Fortysecond amendment) Act, 1976, was enacted during the
Emergency (25 June 1975 21 March 1977) by the
Indian National Congress government headed by Indira
Gandhi.[1] Most provisions of the amendment came into
eect on 3 January 1977, others were enforced from 1
February and Section 27 came into force on 1 April 1977.
The 42nd Amendment is regarded as the most controversial constitutional amendment in Indian history. It attempted to reduce the power of the Supreme Court and
High Courts to pronounce upon the constitutional validity
of laws. It laid down the Fundamental Duties of Indian
citizens to the nation. This amendment brought about the
most widespread changes to the Constitution in its history, and is sometimes called a mini-Constitution or the
Constitution of Indira.[2]

tional two provisions of the 42nd Amendment which prevent any constitutional amendment from being called in
question in any Court on any ground and accord precedence to the Directive Principles of State Policy over the
Fundamental Rights of individuals respectively.

1 Proposal and enactment

Almost all parts of the Constitution, including the


Preamble and amending clause, were changed by the
42nd Amendment, and some new articles and sections were inserted. The amendments fty-nine clauses
stripped the Supreme Court of many of its powers
and moved the political system toward parliamentary
sovereignty. It curtailed democratic rights in the country, and gave sweeping powers to the Prime Ministers
Oce.[3] The amendment gave Parliament unrestrained
power to amend any parts of the Constitution, without
judicial review. It transferred more power from the state
governments to the central government, eroding Indias
federal structure. The 42nd Amendment also amended
the Preamble and 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.
The Emergency era had been widely unpopular, and the
42nd Amendment was the most controversial issue. The
clampdown on civil liberties and widespread abuse of human rights by police angered the public. The Janata Party
which had promised to restore the Constitution to the
condition it was in before the Emergency, won the 1977
general elections. The Janata government then brought
about the 43rd and 44th Amendments in 1977 and 1978
respectively, to restore the pre-1976 position to some extent. However, the Janata Party was not able to fully
achieve its objectives.

Prime Minister Indira Gandhi, whose Indian National Congress


government enacted the 42nd Amendment in 1976, during the
Emergency.

Then Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of then Minister
of External Aairs Swaran Singh to study the question of amendment of the Constitution in the light of
experience.[4]

On 31 July 1980, in its judgement on Minerva Mills v. The bill for the Constitution (Forty-second Amendment)
Union of India, the Supreme Court declared unconstitu- Act, 1976 was introduced in the Lok Sabha on 1 Septem1

3 CONSTITUTIONAL CHANGES

ber 1976, as the Constitution (Forty-fourth Amendment)


Bill, 1976 (Bill No. 91 of 1976). It was introduced
by H.R. Gokhale, then Minister of Law, Justice and
Company Aairs.[5] It sought to amend the Preamble and
articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102,
103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192,
194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352,
353, 356, 357, 358, 359, 366, 368 and 371F and the Seventh Schedule. It also sought to substitute articles 103,
150, 192 and 226; and insert new Parts IVA and XIVA
and new articles 31D, 32A, 39A, 43A, 48A, 131A, 139A,
144A, 226A, 228A and 257A in the Constitution.[6] In a
speech in the Lok Sabha on 27 October 1976, Gandhi
claimed that the amendment is responsive to the aspirations of the people, and reects the realities of the present
time and the future.[7][8]
The bill was debated by the Lok Sabha from 25 to 30 October and November 1 and 2. Clauses 2 to 14, 6 to 16,
18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50 and 56
to 59 were adopted in their original form. The remaining clauses were all amended in the Lok Sabha before
being passed. Clause 1 of the bill was adopted by the
Lok Sabha on 1 November and amended to replace the
name Forty-fourth with Forty-second, and a similar
amendment was made on 28 October to Clause 5 which
sought to introduce a new article 31D to the Constitution.
Amendments to all the other clauses were adopted on 1
November and the bill was passed by the Lok Sabha on 2
November 1976. It was then debated by the Rajya Sabha
on 4, 5, 8, 9, 10 and 11 November. All amendments made
by the Lok Sabha were adopted by the Rajya Sabha on
10 November, and the bill was passed on 11 November
1976.[5] The bill, after ratication by the States, received
assent from then President Fakhruddin Ali Ahmed on 18
December 1976, and was notied in The Gazette of India on the same date.[5] Sections 2 to 5, 7 to 17, 20, 28,
29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd
amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54 and 58 went into eect from
1 February 1977 and Section 27 from 1 April 1977.[9]

1.1

Ratication

The Act was passed in accordance with the provisions


of Article 368 of the Constitution, and was ratied by
more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that
ratied the amendment are listed below:[5]

Objective

the state governments to the central government, eroding Indias federal structure. The third purpose of the
amendment was to give Parliament unrestrained power
to amend any parts of the Constitution, without judicial review.[4][11] The fourth purpose was to make any
law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court.[12] Supporters of the measure said this would make it dicult for
the court to upset parliaments policy in regard to many
matters.[4][11]

3 Constitutional changes
Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd
Amendment, and some new articles and sections were
inserted.[13][14] Some of these changes are described below.
The Parliament was given unrestrained power to amend
any parts of the Constitution,[13] without judicial
review.[15] This essentially invalidated the Supreme
Courts ruling in Kesavananda Bharati v. State of Kerala in 1973.[14] The amendment to article 368,[5] prevented any constitutional amendment from being called
in question in any Court on any ground. It also declared
that there would be no limitation whatever on the constituent power of Parliament to amend the Constitution.[5]
The 42nd Amendment also restricted the power of the
courts to issue stay orders or injunctions.[13][14] The 42nd
Amendment revoked the courts power to determine what
constituted an oce of prot.[16] A new article 228A
was inserted in the Constitution which would give High
Courts the authority to determine all questions as to the
constitutional validity of any State law.[5] The amendments fty-nine clauses stripped the Supreme Court of
many of its powers and moved the political system toward
parliamentary sovereignty. The 43rd and 44th Amendments reversed these changes.[17]
Article 74 was amended and it was explicitly stipulated
that the President shall act in accordance with the advice
of the Council of Ministers".[1][16][17] Governors of states
were not included in this article. The interval at which a
proclamation of Emergency under Article 356 required
approval from Parliament was extended from six months
to one year. Article 357 was amended so as to ensure
that laws made for a State, while it was under Article 356
emergency, would not cease immediately after the expiry
of the emergency, but would instead continue to be in effect until the law was changed by the State Legislature.[16]
Articles 358 and 359 were amended, to allow suspension
of Fundamental Rights, and suspension of enforcement
of any of the rights conferred by the Constitution during
an Emergency.[5]

The amendment removed election disputes from the


purview of the courts. The amendments opponents described it as a convenient camouage.[10]
The 42nd Amendment added new Directive Principles,
Second, the amendment transferred more power from viz Article 39A, Article 43A and Article 48A.[16] The

3
42nd Amendment gave primacy to the Directive Principles, by stating that no law implementing any of the
Directive Principles could be declared unconstitutional
on the grounds that it violated any of the Fundamental Rights. The Amendment simultaneously stated that
laws prohibiting antinational activities or the formation of antinational associations could not be invalidated because they infringed on any of the Fundamental Rights. The 43rd and 44th Amendments repealed
the 42nd Amendments provision that Directive Principles take precedence over Fundamental Rights, and also
curbed Parliaments power to legislate against antinational activities. The 42nd Amendment also added a
new section to the Article on Fundamental Duties in
the Constitution. The new section required citizens to
promote harmony and the spirit of common brotherhood
among all the people of India, transcending religious, linguistic and regional or sectional diversities.[17]
The 42nd Amendment granted power to the President, in
consultation with the Election Commission, to disqualify members of State Legislatures. Prior to the Amendment, this power was power vested in the Governor of the
State.[16] Article 105 was amended so as to grant each
House of Parliament, its members and committees the
right to evolve their powers, privileges and immunities, from time to time. Article 194 was amended to
grant the same rights as Clause 21 to State Legislatures,
its members and committees. Two new clauses 4A and
26A were inserted into article 366 of the Constitution,
which dened the meaning of the terms Central Law
and State Law by inserting two new clauses 4A and 26A
into article 366 of the Constitution.[5]
The 42nd Amendment froze any delimitation of constituencies for elections to Lok Sabha and State Legislative Assemblies until after the 2001 Census of India,[16] by amending article 170 (relating to composition of Legislative Assemblies).[5] The total number of
seats in the Lok Sabha and the Assemblies remained the
same until the 91st Amendment, passed in 2003, extended the freeze up to 2026.[18] The number of seats
reserved for the Scheduled Castes and Scheduled Tribes
in the Lok Sabha and State Legislative Assemblies was
also frozen.[16] The amendment extended the term of Lok
Sabha and Legislative Assemblies members from ve to
six years,[16] by amending article 172 (relating to MLAs)
and Clause(2) of Article 83 (for MPs).[5]

Amendment of the Preamble

The 42nd Amendment changed the description of India


from a 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. The jurist and constitutional expert Hormasji
Maneckji Seervai severely criticized this amendment stating that the newly inserted words are ambiguous and

The original text of the Preamble before the 42nd Amendment

should not have been inserted in the Preamble without a


reason.[16]
B. R. Ambedkar, the principal architect of the Constitution, was opposed to declaring Indias social and economic structure in the Constitution. During the Constituent Assembly debates on framing the Constitution in
1946, K.T. Shah proposed an amendment seeking to declare India as a Secular, Federal, Socialist nation. In his
opposition to the amendment, Ambedkar stated, My objections, stated briey are two. In the rst place the Constitution, ... , is merely a mechanism for the purpose of
regulating the work of the various organs of the State. It
is not a mechanism where by particular members or particular parties are installed in oce. What should be the
policy of the State, how the Society should be organised
in its social and economic side are matters which must be
decided by the people themselves according to time and
circumstances. It cannot be laid down in the Constitution
itself, because that is destroying democracy altogether. If
you state in the Constitution that the social organisation
of the State shall take a particular form, you are, in my
judgment, taking away the liberty of the people to decide what should be the social organisation in which they
wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society
is better than the capitalist organisation of society. But it
would be perfectly possible for thinking people to devise
some other form of social organisation which might be
better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should

tie down the people to live in a particular form and not


leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be
opposed. His second objection was that the amendment
was purely superuous and unnecessary, as socialist principles are already embodied in our Constitution
through Fundamental Rights and the Directive Principles
of State Policy. Referring to the Directive Principles, he
asked Shah, If these directive principles to which I have
drawn attention are not socialistic in their direction and in
their content, I fail to understand what more socialism can
be. Shahs amendment failed to pass,[19] and the Preamble remained unchanged until the 42nd Amendment.

Aftermath

See also: Indian general election, 1977


During the Emergency, Indira Gandhi implemented a

LEGAL CHALLENGES OF THE AMENDMENT

dition it was in before the Emergency and to put rigorous restrictions on the executive's emergency and analogous powers.[12] The election ended the control of the
Congress (Congress (R) from 1969) over the executive
and legislature for the rst time since independence.[17]
After winning the elections, the Moraji Desai government attempted to repeal the 42nd Amendment. However, Gandhis Congress party held 163 seats in the 250
seat Rajya Sabha, and vetoed the governments repeal
bill.[3]
The Janata government then brought about the 43rd
and 44th Amendments in 1977 and 1978 respectively,
to restore the pre-1976 position to some extent.[4]
Among other changes, the amendments revoked the
42nd Amendments provision that Directive Principles
take precedence over Fundamental Rights, and also
curbed Parliaments power to legislate against antinational activities.[17] However, the Janata Party was not
able to fully achieve its objective of restoring the Constitution to the condition it was in before the Emergency.

6 Legal challenges of the amendment


The constitutionality of sections 4 and 55 of the 42nd
Amendment were challenged in Minerva Mills v. Union
of India, when Charan Singh was caretaker Prime Minister. Section 4 of the 42nd Amendment, had amended
Article 31C of the Constitution to accord precedence to
the Directive Principles of State Policy articulated in Part
IV of the Constitution over the Fundamental Rights of individuals articulated in Part III. Section 55 prevented any
constitutional amendment from being called in question
in any Court on any ground. It also declared that there
would be no limitation whatever on the power of Parliament to amend the Constitution. After the Indian general election, 1980, the Supreme Court declared sections
4 and 55 of the 42nd amendment as unconstitutional. It
further endorsed and evolved the basic structure doctrine
of the Constitution.[15][21] In the judgement on Section 4,
Chief Justice Yeshwant Vishnu Chandrachud wrote:
Morarji Desai became Prime Minister after the 1977 elections.

20-point program of economic reforms that resulted in


greater economic growth, aided by the absence of strikes
and trade union conicts. Encouraged by these positive
signs and distorted and biased information from her party
supporters, Gandhi called for elections in May 1977.[20]
However, the Emergency era had been widely unpopular. The 42nd Amendment was widely criticised, and
the clampdown on civil liberties and widespread abuse
of human rights by police angered the public.[13]
In its election manifesto for the 1977 elections, the Janata
Party promised to restore the Constitution to the con-

Three Articles of our Constitution, and


only three, stand between the heaven of freedom into which Tagore wanted his country to
awake and the abyss of unrestrained power.
They are Articles 14, 19 and 21. Article 31C
has removed two sides of that golden triangle which aords to the people of this country an assurance that the promise held forth
by the preamble will be performed by ushering an egalitarian era through the discipline
of fundamental rights, that is, without emasculation of the rights to liberty and equality
which alone can help preserve the dignity of
the individual.[22]

5
On Section 4, Chandrachud wrote, Since the Constitution had conferred a limited amending power on the
Parliament, the Parliament cannot under the exercise of
that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one
of the basic features of our Constitution and therefore,
the limitations on that power can not be destroyed. In
other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the
right to repeal or abrogate the Constitution or to destroy
its basic and essential features. The donee of a limited
power cannot be the exercise of that power convert the
limited power into an unlimited one.[22] The ruling was
widely welcomed in India, and Gandhi did not challenge
the verdict.[10] The Supreme Courts position on constitutional amendments laid out in its judgements in Golak
Nath v. State of Punjab, Kesavananda Bharati v. State
of Kerala and the Minvera Mills case, is that Parliament
can amend the Constitution but cannot destroy its basic
structure.[15][17]

8 See also
List of amendments of the Constitution of India

9 References
[1] Hart, Henry C. (April 1980). The Indian Constitution:
Political Development and Decay. Asia Survey, Vol. 20,
No. 4, Apr., 1980. University of California Press. Retrieved 12 April 2012.
[2] Dev, Nitish. Constitutional Amendments of India. PublishYourArticles.org. Retrieved 12 April 2012.
[3] John R. Walker (June 21, 1977). Janatas aws shown by
wins in northern India. The Calgary Herald. Southam
News Services. Retrieved 21 November 2013.
[4] The bill nally cometh. The Sunday Indian. August 21,
2011. Retrieved 2013-11-23.
[5] R.C. Bhardwaj, ed.

(1 January 1995).

Constitution

On 8 January 2008, a petition, led by Sanjiv Agarwal


Amendment in India (Sixth ed.). New Delhi: Northern
of the NGO Good Governance India Foundation, chalBook Centre. pp. 7684;190196. Retrieved 21 Novemlenged the validity of Section 2 of the 42nd Amendment,
ber 2013.
which inserted the word socialist in the Preamble to
the Constitution.[23] In its rst hearing of the case, Chief [6] Forty Second Amendment. Indiacode.nic.in. Retrieved
2013-11-26. This article incorporates text from this source,
Justice K. G. Balakrishnan, who headed the three-judge
which is in the public domain.
bench, observed, Why do you take socialism in a narrow
sense dened by communists? In broader sense, it means [7] Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols.141welfare measures for the citizens. It is a facet of democ2.
racy. It hasn't got any denite meaning. It gets dierent
meanings in dierent times.[24] Justice Kapadia stated [8] Parliament Has Unfettered Right. Indira Gandhi, Selected Speeches and Writings, vol.3. pp. 28391.
that no political party had, so far, challenged the amendment and everyone had subscribed to it. The court would [9] The Constitution (Amendment) Acts. Constitution.org.
Retrieved 2013-11-25. This article incorporates text from
consider it only when any political party challenged the
this source, which is in the public domain.
EC.[25] The petition was withdrawn on 12 July 2010 after the Supreme Court declared the issue to be highly
[10] When in doubt, amend. Indian Express. 2009-08-21.
academic.[12]
Retrieved 2013-11-23.
[11] Granville, Austin. Working A Democratic Constitution The Indian Experience. p. 371.

Legacy

In the book JP Movement and the Emergency, historian


Bipan Chandra wrote, "Sanjay Gandhi and his cronies
like Bansi Lal, Minister of Defence at the time, were
keen on postponing elections and prolonging the emergency by several years ... In OctoberNovember 1976,
an eort was made to change the basic civil libertarian
structure of the Indian Constitution thorough the 42nd
amendment to it. ... The most important changes were
designed to strengthen the executive at the cost of the judiciary, and thus disturb the carefully crafted system of
Constitutional checks and balance between the three organs of the government.[26]

[12] "'Issue too academic', so PIL on socialism in statute withdrawn. The Indian Express. 2010-07-13. Retrieved
2013-11-23.
[13] The Rise of Indira Gandhi. Library of Congress Country Studies. Retrieved 2009-06-27.
[14] A living legend. The Indian Express. 24 January 1998.
Archived from the original on 3 December 2013. Retrieved
2014-11-21.
[15] Indian Constitution: Sixty years of our faith. The Indian
Express. 2010-02-02. Retrieved 2013-11-23.
[16] Prateek Deol. 42nd Constitutional Amendment: A Draconion Act Of Parliament - Gujarat National Law University. Legalserviceindia.com. Retrieved 2013-11-23.
[17] India - The Constitution. Countrystudies.us. Retrieved
2013-11-23. This article incorporates text from this source,
which is in the public domain.

11 FURTHER READING

[18] Delimitation of constituencies. The Hindu. 2001-0917. Retrieved 2013-11-23.


[19] CONSTITUENT ASSEMBLY OF INDIA - VOLUME
VII. NIC. 15 November 1948. Retrieved 2013-11-23.
This article incorporates text from this source, which is in
the public domain.
[20] Paul R. Brass (1994). The Politics of India Since Independence. Cambridge University Press. pp. 4050. ISBN
978-0-521-45970-9.
[21] Raghav Sharma (2008-04-16). Minerva Mills Ltd. &
Ors. v. Union of India & Ors: A Jurisprudential Perspective. Social Science Research Network. Retrieved
2012-07-17.
[22] Minerva Mills Ltd. & Ors. vs. Union of India & Ors..
Open Archive. Retrieved 2012-07-17. This article incorporates text from this source, which is in the public domain.
[23] Front Page : 'Socialist' tag in statute challenged. The
Hindu. 2008-01-09. Retrieved 2013-11-23.
[24] India a socialist nation? SC says keep the tag. Ibnlive.in.com. 2008-01-08. Retrieved 2013-11-23.
[25] J. Venkatesan (2010-07-13). Petition against term socialist in Constitution rejected. The Hindu. Retrieved
2013-11-23.
[26] New book ays Indira Gandhis decision to impose
Emergency. IBN Live News. 2011-05-30. Retrieved
2013-11-23.

10

External links

Full text of the 42nd Amendment - NIC


Full text of the 42nd Amendment - india.gov.in

11

Further reading

G. G. Mirchandani Subverting the Constitution (Abhinav Publications, 1977)


Kiru nant, Vi India Since Independence: Making Sense of Indian Politics (Pearson Education India, 2010)

12

Text and image sources, contributors, and licenses

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Text

Forty-second Amendment of the Constitution of India Source: https://en.wikipedia.org/wiki/Forty-second_Amendment_of_the_


Constitution_of_India?oldid=688402396 Contributors: Iota, VishalB, Wikidea, Ardfern, Dwaipayanc, Pegship, SmackBot, Saravask,
Paxse, Shyamsunder, Cydebot, Kvtej, PamD, Silver seren, Dinakarr, Addbot, Yobot, S h i v a (Visnu), Full-date unlinking bot, Vikrantkatoch, Diannaa, CanonLawJunkie, Mantha.satish, Khaydock, Rostz, AgniKalpa, Helpful Pixie Bot, Tiginedits, Yogirox234, Shibingeorge,
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is/was here. Beohar Rammanohar Sinha illuminated, beautied and decorated the original manuscript calligraphed by Prem Behari Narain
Raizada. Beohar Rammanohar Sinhas legible short-signature in Devanagari-script as Ram on the Preamble-page (lower-right corner within
the outermost border-design), and as Rammanohar on other pages of the Constitution bear unambiguous testimony to this fact. He was the
favorite disciple of Nandalal Bose. After nishing the Constitution, some leftover art-material was carefully preserved by the artist which
he bequeathed to his son Beohar Dr Anupam Sinha. Original artist: Illumination/ornamentation by Beohar Rammanohar Sinha, calligraphy
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