The 42nd Amendment: A Comprehensive Overview

The 42nd Amendment to the Constitution of India, passed in 1976, remains one of the most significant and controversial amendments in Indian constitutional history. Known for its sweeping reforms, the 42nd Amendment altered the very framework of the Constitution, influencing various aspects of governance, democracy, and the balance of powers within the country. The amendment was enacted during the Emergency period under the leadership of then-Prime Minister Indira Gandhi, a period marked by political turmoil, civil liberties restrictions, and an emphasis on centralization of power. This article delves deep into the provisions of the 42nd Amendment, its impact, the reasons behind its implementation, and its eventual modification.

Historical Context of the 42nd Amendment

The 42nd Amendment was passed by the Indian Parliament in December 1976, during the Emergency (1975-1977), a period when the government of India, led by Indira Gandhi, had assumed extraordinary powers to curb political opposition. The Emergency was declared under Article 352 of the Indian Constitution, granting the Prime Minister and the government the authority to rule by decree, limit civil liberties, and suppress political dissent.

The context surrounding the amendment was one of intense centralization of power, limited political opposition, and the weakening of the judiciary’s ability to challenge executive decisions. The ruling party, led by Indira Gandhi, sought to restructure the Constitution to consolidate political power and align it with the government’s objectives.

Provisions of the 42nd Amendment

The 42nd Amendment was an extensive piece of legislation, impacting various parts of the Constitution. Some of the key provisions included:

1. Changes to the Preamble

The amendment made significant changes to the Preamble of the Constitution. The words “Sovereign Democratic Republic” were replaced with “Sovereign Socialist Secular Democratic Republic,” and “unity of the nation” was changed to “unity and integrity of the nation.” These additions were meant to reflect the government’s commitment to socialism and secularism.

2. Enhancement of the Power of the Central Government

The amendment drastically shifted the balance of power between the central and state governments. Some of the major changes included:

• Article 31C: This article was amended to ensure that laws made by the Parliament to implement the Directive Principles of State Policy (DPSPs) could not be challenged in court, even if they violated the Fundamental Rights.
• Article 368: The procedure for amending the Constitution was altered, making it more difficult to challenge or modify constitutional amendments. The amendment effectively curtailed the scope for judicial review in constitutional matters.
• Strengthening of the Parliament’s Authority: The amendment introduced a change to the definition of “laws” under Article 123, empowering the Parliament to pass laws concerning subjects in the Concurrent List, even when state legislatures had conflicting laws.

3. Judicial Reforms

The 42nd Amendment curtailed the power of the judiciary by reducing the scope for judicial review. The amendment:

• Restricted judicial review: It made judicial review of amendments made to the Constitution more difficult by inserting provisions that prevented the courts from questioning the validity of any amendment to the Constitution.
• Weakened the independence of the judiciary: The amendment also made changes to the process of appointment and removal of judges, thus affecting the independence of the judiciary.

4. Directive Principles of State Policy

The amendment gave more emphasis to the Directive Principles of State Policy (DPSPs), making them justiciable to an extent. It also introduced the concept of “socialist” and “secular” into the text, reflecting the government’s intention to make the Indian state more aligned with socialist ideals.

5. Fundamental Rights and Duties

• Article 39A: The amendment introduced this article, which emphasized the promotion of equal justice and free legal aid. It was an attempt to ensure that the legal system is more inclusive and accessible to the common people.
• Article 51A: This article, introduced by the 42nd Amendment, made it a fundamental duty of every citizen to uphold and protect the sovereignty, unity, and integrity of India.

6. Changes in the Electoral System

The amendment reduced the influence of the judiciary on electoral matters. The power to challenge elections in court was limited, and political parties found it easier to manipulate the political process under the new framework.

7. The “Anti-Defection” Law

The 42nd Amendment was also instrumental in curbing the problem of defection among legislators. It led to the introduction of the Anti-Defection Law (subsequently codified as the Tenth Schedule), which aimed to prevent members of Parliament and State Legislatures from defecting to other political parties. It was an effort to stabilize the political landscape and reduce the shifting of allegiances in the legislature for personal gain.

Impact and Criticism of the 42nd Amendment

While the 42nd Amendment sought to consolidate the powers of the central government and reinforce the authority of the ruling party, it faced widespread criticism for its authoritarian nature. Some of the major criticisms include:

1. Centralization of Power: The amendment enhanced the powers of the central government at the expense of states, leading to fears of federal imbalance. The expansion of the central government’s powers reduced the autonomy of states and undermined the principle of federalism.
2. Undermining the Judiciary: The reduction of the judiciary’s power to review constitutional amendments and laws was seen as an attack on the independence of the judiciary. Critics argued that this move was intended to prevent the judiciary from striking down controversial decisions of the government.
3. Authoritarian Overtones: The passage of the 42nd Amendment during the Emergency period fueled concerns that it was aimed at legitimizing the government’s authoritarian rule. The changes to the Preamble and the strengthening of the executive were viewed as steps to ensure that the ruling party’s policies would not face any significant opposition.
4. Dilution of Fundamental Rights: The amendment sought to limit the scope of fundamental rights, especially in relation to the Directive Principles of State Policy. This was seen as an attempt to override the rights of citizens in favor of the state’s goals.

The 44th Amendment: Reversal of the 42nd Amendment

The 42nd Amendment was seen as an attempt to tilt the balance of power in favor of the executive, leading to its eventual reversal after the Emergency ended. The 44th Amendment, passed in 1978, sought to undo some of the changes made by the 42nd Amendment. Some of the significant changes introduced by the 44th Amendment included:

1. Restoration of Fundamental Rights: The 44th Amendment restored the right to move the courts for the enforcement of fundamental rights, which had been curtailed under the 42nd Amendment.
2. Reduction of Executive Powers: The 44th Amendment aimed to restore some checks and balances between the executive, judiciary, and legislature, reversing the excessive centralization of power under the 42nd Amendment.
3. Reinforcement of Judicial Review: It restored the scope for judicial review and re-emphasized the independence of the judiciary.
4. Preservation of Federalism: The 44th Amendment reversed some provisions of the 42nd Amendment that had reduced the powers of the states, thus strengthening the federal structure.

Conclusion

The 42nd Amendment to the Indian Constitution was a landmark development in the nation’s constitutional history. While it aimed to enhance the powers of the central government and institutionalize certain ideals, its authoritarian tendencies led to widespread criticism. Its eventual partial rollback through the 44th Amendment signaled a return to a more balanced structure of governance. However, the 42nd Amendment’s significance cannot be understated, as it reshaped India’s political landscape, prompting future debates on the balance between executive power, judicial oversight, and the protection of fundamental rights.

The legacy of the 42nd Amendment continues to influence discussions on constitutional reforms and the interpretation of the Indian Constitution in the context of democratic governance.