42nd Amendment – The Draconian Mini Constitution of India
June 10, 2020
Constitution-making is a Continuous process, it requires to be developed
according to the needs of society, and this is the reason why the founding
father of the Indian Constitution introduced the amendment procedure.
The first thing that comes to our mind when we read the title is what was the 42nd amendment and why it is known as the mini-constitution. 42nd amendment was one such amendment in history that modified most parts of the Constitution. This amendment incorporated fundamental changes in the constitutional structure. Before getting into the details of the 42nd Amendment, it is imperative to have basic knowledge of our Constitution.
Constitution of India
The constitution, in the simplest way, can be understood as a set of rules that guides the whole country.
The Constitution of India is the supreme law of the land which is living and growing with the people of our country. It came into effect on 26th January 1950. For the making of the constitution, a constituent assembly was created, the members of the assembly were inclusive of some of the eminent personalities of our country such as Dr. B.R. Ambedkar, Jawaharlal Nehru, Sucheta Kripalani, and many more. As our constitution was created by the Constituent Assembly, it imparts constituent supremacy and not parliamentary supremacy. It frames various parts of the constitution such as the fundamental political principles, procedures, practices, rights, powers, and duties of the government and citizens.
It is important to note that when the Constitution of India came into effect, it consisted of 395 articles in 12 parts and 8 schedules, however, at present, it consists of 448 articles in 25 parts and 12 schedules, it shows us how our Constitution has developed and grown over the period. The lesser-known fact is that it is the lengthiest written constitution in the world.
Draconian Act of the Parliament
The 42nd Amendment, also known as the Mini-Constitution of India attempted to bring changes in the basic structure of the Indian Constitution, almost all the parts of the Constitution were amended including the Preamble and the amending clause, some new articles and sections were also inserted. The amendment gave parliament unrestricted power to modify any part of the Constitution, without any need for judicial review. It transferred more power from the State government to the Central government, dissolving the federal structure of India. This amendment had completely turned the tables around and had changed the structure of the constitution which is why the 42nd amendment is also referred to as the Mini-Constitution of India.
When did the amendment act come into effect? The 42nd Amendment came into existence during the Emergency which was enacted by the Indian National Congress when Indira Gandhi was the Prime minister of our country; the emergency lasted for almost 2 years, from 25 June 1975 to 21 March 1977. Most of the changes that took place through the amendment came into existence on 3rd January 1977, however, the other changes came into existence from 1st January and section 21 came into force on 1 April 1977.
Some major changes that took place due to the 42nd Amendment are discussed as follows:-
Amendment of the Preamble Before the 42nd Amendment, the first line of the Preamble was read as “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a Sovereign, Democratic, Republic and to secure all its citizens” however, three more words were included in this sentence, Socialist, Secular and Integrity which changed the description of India.
Another major change in the Preamble was that of replacing the Unity of the Nation with the Unity and Integrity of the Nation.
Various changes took place in the normal functioning of the courts, the power of the judicial review got restricted through this amendment, the jury was given more importance in the functioning of the courts and the right of the Supreme Court to examine the validity of the laws of the state under Article 32A was abolished.
Extension of the Directive Principle of State Policy More importance was given to the Directive Principle of State Policy over the Fundamental Right, following DPSP’s were added to the list:-
Provision for Equal Justice and free legal aid in order to ensure that justice is not denied to any citizen by reason of Economic and other disability. (Article 39A)
Provision of opportunities and facilities to children to develop in a healthy manner and in a condition of freedom and dignity and protection of childhood and youth against exploitation and against moral and material abandonment. (Article 39 (f))
Made a provision for the participation of workers in the management of Industries (Article 43A)
Protection of Environment and wildlife. (Article 48A)
Inclusion of Fundamental Duties Fundamental duties are referred to as the moral or legal obligation of the citizens of the country in order to promote a feeling of patriotism and unity. The fundamental duties were added through this amendment by including articles 51A and IVA under the Directive Principle of State Policy, the state can enforce them through appropriate law, enacted by legislatures. Article 51A declares it to be the duty of every citizen of India to abide by the Constitution, uphold the sovereignty and unity, and integrity of India, and defend the Country. It also aims to promote harmony amongst all the people of India and to renounce practices that are derogatory to the dignity of women. It also aimed to safeguard public property.
National Emergency Provisions There were several Emergency provisions, the one-time duration of the President’s rule in a state under Article 356 was extended from 6 months to one year and National Emergency could be proclaimed in any part of the Territory of India.
The Central Government was given the power to send
central forces in any state or part of the state to control the law and order
in the state and control of such forces shall rest with the Central Government.
Through this amendment, the duration of the House
of the people and the Legislative Assemblies of the state also got extended to
6 years during National Emergency.
Legal Challenges Faced by the 42nd Amendment Various challenges were faced by the 42nd Amendment in landmark judgments, like –
In Minerva Mills v. Union of India, The Supreme court struck down clauses (4) and (5) of Article 368 that were inserted by the 42nd Amendment. The justification that was given by the courts for abolishing the above-stated clauses was that it destroyed the Basic structure as it gave the Parliament unrestrained power to amend the Constitution.
It was held in the landmark judgments, Kesavananda Bharati v. State of Keralaand the Minerva Mills v. Union of India that the Parliament can amend the Constitution but it cannot amend the Basic Structure of it.
It is an indubitable fact that the 42nd Amendment was one of the most controversial Amendments of all. Many a time it has been viewed negatively by the people due to its negative provisions and aspects that were later on overruled by the 43rd and 44th Amendments of the Constitution.
It has also been criticized that the Amendment came up due to the personal ambitions of Indira Gandhi and her lust for power. However, besides the criticism, there are several positive aspects of the 42nd Amendment as well due to which even after 44 years, the provisions that were made by the Amendment are still an integral part of the Constitution.