Table of Contents

Introduction ..................................................................................................................................... 2

1. Proposal and enactment .............................................................................................................. 3

1.1 Ratification ................................................................................................................................ 5

2. Objective ..................................................................................................................................... 5

3. Constitutional changes ................................................................................................................ 6

4. Amendment of the Preamble ...................................................................................................... 8

5. Aftermath .................................................................................................................................. 10
INTRODUCTION

The Forty-second Amendment of the Constitution of India, officially 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 effect 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

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 amendment’s
fifty-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 Minister’s Office.3 The amendment gave Parliament unrestrained
power to amend any parts of the Constitution, without judicial review. It transferred more power

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 16 August 2017.
2
Dev, Nitish. “Constitutional Amendments of India”. PublishYourArticles.org. Retrieved 16 August 2017.
3
John R. Walker (June 21, 1977). “Janata’s flaws shown by wins in northern India”. The Calgary Herald. Southam
News Services. Retrieved 21 November 2013.
from the state governments to the central government, eroding India’s 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.

On 31 July 1980, in its judgement on Minerva Mills v. Union of India4, the Supreme Court
declared unconstitutional 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

Then Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of then
Minister of External Affairs Swaran Singh “to study the question of amendment of the
Constitution in the light of experience”5

The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok
Sabha on 1 September 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

4
AIR 1980 SC 1789
5
“The bill finally cometh”. The Sunday Indian. August 21, 2011
Affairs.6 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.7 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 reflects the realities of the present
time and the future”.89

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 1976.10 The bill, after ratification by the States, received assent
from then President Fakhruddin Ali Ahmed on 18 December 1976, and was notified in The
Gazette of India on the same date.11 Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55,

6
R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern Book
Centre. pp. 76–84;190–196.
7
Forty Second Amendment”. Indiacode.nic.in. Retrieved 2017-08-16. This article incorporates text from this
source, which is in the public domain.
8
Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols.141-2.
9
“Parliament Has Unfettered Right”. Indira Gandhi, Selected Speeches and Writings, vol.3. pp. 283–91.
10
Supra Note 6
11
ibid
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 effect from 1 February 1977 and Section 27 from 1 April 1977.12

1.1 RATIFICATION

The Act was passed in accordance with the provisions of Article 368 of the Constitution, and
was ratified by more than half of the State Legislatures, as required under Clause (2) of the said
article. State Legislatures that ratified the amendment are listed below: 13

2. OBJECTIVE

The amendment removed election disputes from the purview of the courts. The amendment’s
opponents described it as a “convenient camouflage”.14

Second, the amendment transferred more power from the state governments to the central
government, eroding India’s federal structure. The third purpose of the amendment was to give
Parliament unrestrained power to amend any parts of the Constitution, without judicial review1516
The fourth purpose was to make any law passed in pursuance of a Directive Principle immune
from scrutiny by the Supreme Court.17 Supporters of the measure said this would “make it
difficult for the court to upset parliament’s policy in regard to many matters”.1819

12
“The Constitution (Amendment) Acts”. Constitution.org. Retrieved 2017-08-15. This article incorporates text
from this source, which is in the public domain.
13
Supra Note 6
14
“When in doubt, amend”. Indian Express. 2009-08-21.
15
“The bill finally cometh”. The Sunday Indian. August 21, 2011.
16
Granville, Austin. Working A Democratic Constitution - The Indian Experience. p. 371.
17
"'Issue too academic', so PIL on socialism in statute withdrawn”. The Indian Express. 2010-07-13.
18
Supra Note 15
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.2021 Some of these
changes are described below.

The Parliament was given unrestrained power to amend any parts of the Constitution,22 without
judicial review.23 This essentially invalidated the Supreme Court’s ruling in Kesavananda
Bharati v. State of Kerala in 1973.24 The amendment to article 368,25 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.26 The 42nd Amendment also restricted the power of the courts to issue
stay orders or injunctions.2728 The 42nd Amendment revoked the courts’ power to determine what
constituted an office of profit.29 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”.30 The amendment’s fifty-nine clauses stripped the Supreme Court of many of

19
Supra Note 16
20
“The Rise of Indira Gandhi”. Library of Congress Country Studies. Retrieved 2009-06-27.
21
“A living legend”. The Indian Express. 24 January 1998. Archived from the original on 3 December 2013.
22
“The Rise of Indira Gandhi”. Library of Congress Coun-try Studies.
23
“IndianConstitution: Sixtyyearsofourfaith”, TheIndianExpress, 2010-02-02.

24
“A living legend”. The Indian Express . 24 January 1998. Archived from the original
25
R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern Book
Centre. pp. 76–84;190–196.
26
ibid
27
Supra Note 13
28
“A living legend”. The Indian Express . 24 January 1998 .Archived from the original on 3 December 2013
29
Prateek Deol. “42nd Constitutional Amendment: A Draconion Act Of Parliament - Gujarat National Law
University”. Legal service india.com
30
Supra Note 5
its powers and moved the political system toward parliamentary sovereignty. The 43rd and 44th
Amendments reversed these changes.31

Article 74 was amended and it was explicitly stipulated that “the President shall act in
accordance with the advice of the Council of Ministers".323334 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. 35 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.36
The 42nd Amendment added new Directive Principles, viz Article 39A, Article 43A and Article
48A.37 The 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 Amendment’s provision that Directive Principles take
precedence over Fundamental Rights, and also curbed Parliament’s 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

31
“India - The Constitution”. Countrystudies.us. Retrieved 2013-11-23. This article incorporates text from this
source, which is in the public domain.
32
Supra Note 1
33
Prateek Deol. “42nd Constitutional Amendment: A Dra-conion Act Of Parliament - Gujarat National Law Univer
sity”. Legalserviceindia.com.
34
“India - The Constitution”. Countrystudies.us. Retrieved2013-11-23. This article Incorporates Text from this
source ,which is in the public domain
35
Supra Note 33
36
ibid
37
Supra Note 16
harmony and the spirit of common brotherhood among all the people of India, transcending
religious, linguistic and regional or sectional diversities.”38

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. 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 defined the meaning of the terms
“Central Law” and “State Law” by inserting two new clauses 4A and 26A into article 366 of the
Constitution.

The 42nd Amendment froze any delimitation of constituencies for elections to Lok Sabha and
State Legislative Assemblies until after the 2001 Census of India, by amending article 170
(relating to composition of Legislative Assemblies). 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. The number of seats reserved for the Scheduled Castes and Scheduled Tribes
in the Lok Sabha and State Legislative Assemblies was also frozen. The amendment extended
the term of Lok Sabha and Legislative Assemblies members from five to six years, by amending
article 172 (relating to MLAs) and Clause(2) of Article 83 (for MPs).

4. 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

38
Supra note 17
Maneckji Seervai severely criticized this amendment stating that the newly inserted words are
“ambiguous” and “should not have been inserted in the Preamble without a reason”.39

B. R. Ambedkar, the principal architect of the Constitution, was opposed to declaring India’s
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 briefly are two. In the first 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 office. What should
be the policy of the State, how the Society should be organized 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 organization 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 superfluous” 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”. Shah’s amendment failed to pass,40 and the Preamble
remained unchanged until the 42nd Amendment.

39
“Delimitation of constituencies”. The Hindu . 2001-09-17.

40
“CONSTITUENT ASSEMBLY OF INDIA - VOLUMEVII”. NIC. 15 November 1948.
5. AFTERMATH

During the Emergency, Indira Gandhi implemented a 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 conflicts. Encouraged by these positive signs and distorted and
biased information from her party supporters, Gandhi called for elections in May 1977.41 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. 42 In its
election manifesto for the 1977 elections, the Janata Party promised to “restore the Constitution to the
condition it was in before the Emergency and to put rigorous restrictions on the executive's emergency
and analogous powers”.43 The election ended the control of the Congress (Congress (R) from 1969) over
the executive and legislature for the first time since independence.44 After winning the elections, the
Moraji Desai government attempted to repeal the 42nd Amendment. However, Gandhi’s Congress party
held 163 seats in the 250 seat Rajya Sabha, and vetoed the government’s repeal bill.45

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. Among other changes, the amendments revoked the 42nd
Amendment’s provision that Directive Principles take precedence over Fundamental Rights, and also
curbed Parliament’s power to legislate against “antinational activities”.46 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.

41
Paul R. Brass (1994). The Politics of India Since Independence. Cambridge University Press. pp. 40–50. ISBN
978-0-521-45970-9.
42
“The Rise of Indira Gandhi”. Library of Congress Country Studies
43
Ibid
44
Supra Note 32
45
Supra Note 3
46
“India - The Constitution”. Countrystudies.us. Retrieved2013-11-23. This article Incorporates Text from this
source ,which is in the public domain