Lessons from India’s 42nd Constitution amendment: History revisited

The making of the 42nd Constitution amendment – whose 46th anniversary falls today – and its subsequent substantial reversal reminds us of the extraordinary power of the Indian people to restore the founding principles of the Constitution, subjected to erosion by those in power, from time to time.

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ON December 18, 1976, the then President, Fakhruddin Ali Ahmed, gave his assent to the Constitution (Forty Second Amendment) Act, 1976. The Bill was earlier passed by the Lok Sabha on November 2, 1976 and the Rajya Sabha on November 11, 1976. While only five members opposed the Bill in the Lok Sabha, there was none to oppose it in the Rajya Sabha. Those who recorded their opposition to the amendment were rebels from within the ruling Indian National Congress party. Twenty-one MPs, all from opposition parties, were held in jail under preventive detention laws such as the Maintenance of Internal Security Act, 1971.

The Bill, as passed by both the Houses of Parliament, was ratified by 16 state assemblies, all being states where the Congress party was in power.

This amendment, indeed, was the most substantial of all the amendments to the Constitution until then. It included deletion of several provisions, changes in many others, and adding a host of Articles to the Constitution. All these, together, turned the Constitution into a qualitatively different text from the one that was adopted on November 26, 1949. The amendment reduced the Constitution into a thing that could be played with by the political establishment by inserting clauses that rendered legislative acts beyond the purview of judicial review. In this, the majority decision of the Supreme Court in the landmark Kesavananda Bharati case of 1973 – that enunciated the Basic Structure Doctrine – was buried.

In the words of American historian of the Indian Constitution, Granville Austin:

"The important Constitutional development of the Emergency, other than its very imposition, was the enactment of the Forty Second Amendment. Coming in November 1976, the amendment demonstrates the progression of the Prime Minister and her government from having near-absolute power without a coherent programme – other than the protection of her prime ministry to power expressed through fundamental constitutional change."

Austin's comment, in his seminal text published about the time when the nation observed the 50^th anniversary of its independence in 1997 ('Working a Democratic Constitution', 1999), was indeed on the dot.

Then Prime Minister Indira Gandhi's establishment was irritated with the Basic Structure doctrine propounded by the Supreme Court in the Kesavananda Bharati verdict. An attempt to undo the Basic Structure Doctrine, as enunciated in the Kesavananda case, was initiated soon after the judgment was announced. Justice A.N. Ray, among the minority that did not accept the Basic Structure Doctrine, was made the Chief Justice of India on April 26, 1973 overlooking the seniority of Justices J.M. Shelat, A.N. Grover and K.S. Hegde, all of whom had espoused the Basic Structure Doctrine and that judicial review of Parliament's decision in Constitution amendments is part of the Basic Structure of the Constitution.

On September 1, 1975, in the midst of the National Emergency imposed on June 25, 1975, the Attorney General, Niren De, moved an application for urgent hearing of a petition to review the Supreme Court's decision in the Kesavananda Bharati case. Chief Justice Ray obliged and ordered this to be heard by a 13-judge bench on September 10, 1975. The issues before this bench were:

1. Whether the power of amendment of the Constitution was restricted by the theory of basic structure and framework as propounded in Kesavananda Bharati; and
2. Whether the Bank Nationalisation case was correctly decided in 1970.

Also read: The Emergency, the first few days – A personal recollection

An intervention by Justice H.R. Khanna, by now the second senior-most judge in the Supreme Court, asking the Advocate General De, whether the doctrine came in the path of any socio-economic measure, took the gloss off the effort. The cat was let out of the bag when De answered the same question posed by Justice Y.V. Chandrachud. The Advocate General said: "Socio-economic measures are not the only thing, important as they are; at the same time, the very structure of Government is the object of the amending power."

The hearing lasted only a couple of days. On September 12, 1975, Chief Justice Ray announced, just after the 13-member bench had assembled for the day, the dissolution of the Bench. In other words, the Basic Structure Doctrine and the power of Judicial Review of constitutional amendments survived.

It is appropriate here to locate the desperate attempts to relook the Basic Structure Doctrine, and the higher judiciary's powers therein to review Parliament's decisions annulled, in context; for the Constitution (Forty Second Amendment) Act, 1976 was indeed the culmination of this desperation. The ghost of the Allahabad High Court's decision holding Indira Gandhi's election to the Lok Sabha null and void continued to haunt the establishment. Indira Gandhi's appeal against the Allahabad High Court decision was pending before the Supreme Court when the Emergency was imposed. The establishment struck fast.

On August 6, 1975, the Law Minister, H.R. Gokhale moved the Constitution (Thirty Ninth Amendment) Bill. The Bill was "discussed" and "passed" the very next day, that is, August 7, 1975; the Rajya Sabha "discussed" and "passed" it on August 8, 1975 and State Assemblies across the nation were convened on August 9, 1975, which happened to be a Saturday, where the amendment was ratified. President Fakhruddin Ali Ahmed gave his accent on August 10, 1975 and the Constitution (Thirty ninth Amendment) Act, 1975 was notified the same day.

Indira Gandhi's appeal before the Supreme Court was listed for August 11, 1975 and Section 4 of the amendment Act, excluding election petitions against the President, the Vice-President, the Prime Minister and the Speaker of the Lok Sabha from the purview of the higher judiciary, was in place just in time.

However, the Supreme Court, on November 7, 1975 had struck down Article 329A, the provision inserted thus. The establishment had crafted this device to prevent the Prime Minister from being disqualified. Indira Gandhi had managed to remain Prime Minister after that by imposing the Emergency and tampering with the law to ensure that the Supreme Court struck down the Allahabad High Court's decision of June 12, 1975.

The Supreme Court's decision on November 7, 1975 to strike down Article 329A was seen by the establishment as a threat to Indira Gandhi's designs to emerge as the absolute leader. The attempt to have the Kesavananda decision reviewed by another bench, initiated on November 10, 1975 too had failed. The Constitution (Forty Second Amendment) Act, 1976, thus was the culmination of this effort and was indeed a comprehensive measure to achieve this end.

But then the conspiracy – to couch the objective of ensuring the higher judiciary remained subservient to the Executive – in a language that would ensure holier objectives was set in motion even earlier. This was framed to pose Parliament, elected by the people as supreme rather than the higher judiciary whose members, after all, were appointed and hence not necessarily accountable to the people.

Then Congress president, D.K. Barooah, had circulated a paper titled A Fresh Look at Our Constitution – Some Suggestions, among a cross section of lawyers and civil society activists. This concept paper, prepared by A.R. Antulay, one of Indira's cheerleaders then, argued the merits of a Presidential system against Parliamentary democracy and also thought aloud on the need to contain the scope for judicial review on a range of issues. The paper was circulated, without anyone owning it up, towards the end of 1975 and around the same time when the Supreme Court was hearing Indira Gandhi's election petition and the validity of the Constitution (Thirty ninth Amendment) Act, 1975.

Also read: Emergency: Who Benefited from it?

Meanwhile, Law Minister, H.R. Gokhale, addressing the National Forum of Lawyers (a Congress party outfit) at Chandigarh urged them to think over the obstructions placed by the judiciary to the legislative initiatives against poverty and suggested that the Congress party session scheduled at Guwahati in December 1975 consider raising the demand for scrapping the right to property from among the Fundamental Rights. The All India Congress Committee (AICC) met at Guwahati in December 1975 and passed a resolution to set up a committee to recommend substantive changes in the Constitution.

Barooah appointed Swaran Singh (sent out of Indira Gandhi's cabinet on December 21, 1975) as head of the panel to study the Constitution, the experience with the judiciary and recommend amendments to enable the statute to be more responsive to the task of poverty alleviation and other such measures. Indira Gandhi herself laid out the scope of the committee thus: "Our basic fight is against the entrenched privilege of the few,'' she said speaking at the Guwahati session. All those in the Swaran Singh Committee, made up of 12 members, were Indira Gandhi's cheerleaders; A.R. Antulay, S.S. Ray, Rajni Patel, H.R. Gokhale, V.A. Syed Mohammed, V.N. Gadgil, C.M. Stephen, D.P. Singh, Dinesh Goswami, Vasanth Sathe and B.N. Banerjee.

The Swaran Singh Committee report was presented to Congress president Barooah on April 3, 1976. Barooah, after "consultations'' with his party men, commended the report to be presented by Swaran Singh himself at the All India Congress Committee. The Committee had, among several things, included a categorical statement against the Presidential form of Government.

Interestingly, Indira Gandhi herself had asserted against the Presidential form in her statement at the time of a visit by French President, Jacques Chirac in February 1976. Similarly, Rajni Patel, who had tremendous influence in the Committee, stressed on the need for changes that would ensure a system where the Prime Minister elected by the popular vote was not subjected to the vexatious pulls and pressures. Patel had made this point while addressing a convention organised by the Bombay Regional Committee of the Congress party. The convention on Disciplined Democracy, held in February 1976, was inaugurated by Indira Gandhi.

Among the changes recommended by the Swaran Singh Committee to the Constitution were:

• Under Article 71 and 329A of the Constitution, elections disputes relating to the offices of President, Vice-President, Prime Minister and Speaker are to be decided by an authority or body to be created by a law of Parliament. It is felt that the Constitution should provide for another body or authority to determine all questions of disqualification (including the period of such disqualification) of Members, both of Parliament and of State Legislatures. This body or authority may consist of nine members, three each from the Rajya Sabha and Lok Sabha and three to be nominated by the President.
• The constituent power of Parliament to amend the Constitution as provided in Article 368 should not be open to question or challenge. Though the language of Article 368, as it stands at present, is clear and categoric, it is considered necessary that the matter should be placed beyond doubt. Hence, a new clause may be inserted in Article 368 to the effect that any amendment of the Constitution, passed in accordance with the requirements specified in that Article, shall not be called in question in any court on any ground.
• Article 31C provides that no law giving effect to the directive principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it contravenes Articles 14, 19 or 31. It is proposed that the scope of the present Article 31-C should be widened so as to cover legislation for implementation of all or any of the directive principles enumerated in Part IV of the Constitution, and that such legislation should not be called in question on the ground of infringement of any of the fundamental rights contained in Part III. Provision should, however, be made that no such law shall affect the special safeguards or rights conferred on the minorities, or the Scheduled Castes, the Scheduled Tribes or Other Backward Classes under the Constitution.
• At present, the constitutional validity of a law, whether Central or State, may be challenged in any High Court or in the Supreme Court. The Committee is of the opinion that the Constitution should be suitably amended so as to provide that the constitutional validity of a Central law and any rule, regulation or bye-law made thereunder may be challenged only in the Supreme Court.
• The number of judges of the Supreme Court who are to sit for the purpose of deciding any case involving a question of constitutional validity of a law shall be not less than seven, and the decision of the Court declaring a law invalid must have the support of not less than two-thirds of the number of judges constituting the Bench. The number of judges of a High Court for the same purpose shall be not less than five, and the decision of the Court declaring a law invalid must be supported by not less than two-thirds of the number of judges constituting the Bench. In a High Court where the total number of judges is less than five the full court shall sit, and the decision as to invalidity of a law should have the support of the whole court.

On September 1, 1976, the Law Minister, H.R. Gokhale introduced the Constitution (Forty Second Amendment) Bill in the Lok Sabha. The Bill contained all that Swaran Singh had recommended and even more. Apart from such changes in the Preamble of the Constitution, where the words Socialist and Secular were inserted, the amendment rendered the higher judiciary subservient to Parliament.

Also read: Reforms that India needs to fulfil its Constitutional goals

The intent was to clip the wings of the higher judiciary during the short 'debate' in Parliament. Speaking in the Rajya Sabha, Antulay said: "The conspiracy started in 1967; the Chief Justice resigned to contest for the Presidency and it continued through the intervening years in the attempts to thwart Mrs. Gandhi."

The reference was to Justice K.Subba Rao who was the combined opposition's candidate against Zakir Hussain. Barooah went on to add: "It is the political ambition that entered by the portals of the Supreme Court and judicial restraint and discretion escaped by the window when a Chief Justice campaigned for the Presidency."

And Indira Gandhi herself took this a step further in the Lok Sabha to describe Justice Rao's decision to contest for the President's post as "a blatant indication, not only of the political bias of some of the judiciary, but of their intention to be involved in and interfere in politics."

It must be stressed that while the Bill was "debated" in two Houses of Parliament, the opposition was not there even to register its objection. A few were present though. P.G. Mavlankar (an independent MP from Gandhinagar in Gujarat) declared that it was not merely an amendment to the Constitution but an exercise to alter the Constitution. Mavlankar called it "a dishonest move on the part of the Government". Similarly, Kishen Kant, who continued to be a member of Indira's Congress party in Parliament put his decision to boycott on hold and attended the session. In a spirited defence of democracy, Kant concluded his speech in the Rajya Sabha saying: "People's rights have no place when a dictator wants to take up a programme."

It was thus that the Constitution (Forty second Amendment) Act, 1976 was passed on December 18, 1976. The amendment achieved the following:

1. Took away the power of the Higher judiciary to decide on election disputes;
2. Vested the Union Government with authority on several subjects that were hitherto with the State Governments and thus eroding the Federal Structure of the Constitution;
3. Vested Parliament with unrestrained powers to amend the Constitution and denied the Higher judiciary the power to judicial review; and
4. Rendered laws passed by Parliament in pursuance of the Directive Principles of State Policies immune from scrutiny by the Supreme Court. The amendment specified that a mere declaration of intent – that it was in pursuance of the Directive Principles – was sufficient for such immunity.

In addition, the Constitution (Forty second Amendment) Act, 1976 added the words 'Socialist' and 'Secular' to the Preamble to the Constitution. Almost all the substantive provisions of the Constitution stood amended and most significantly the settled position insofar as the balance of power between Parliament and the Higher Judiciary as laid in the Keshavananda case – judicial review of Constitutional amendments as part of the Basic Structure Doctrine – stood nullified.

This inglorious move was brought to naught after the defeat of Indira Gandhi and her Congress party in the general elections of 1977. The Janata party that won a majority in Parliament had committed to restore the Constitution to where it stood before the amendment. The restoration act was done in two stages; the Constitution (Forty third Amendment) Bill, introduced on December 16, 1977, after passage in both the Houses of Parliament and ratified by the State Assemblies, was notified as an Act on April 13, 1978.

Thereafter, the Constitution (Forty fourth Amendment) Bill was introduced on May 15, 1978 and after passage by both the Houses of Parliament and ratified by the state assemblies became an Act on April 30, 1979.

Also read: Strength of democracy lies in its institutions

An interesting fact, and not trivial in the passage of the Constitution (Forty fourth Amendment) Act, 1979, was that Indira Gandhi herself and members of her party had voted in its favour in 1978-79. In other words, a pointer to the vitality of democracy and the people as the sovereign.

However, insertions to the Preamble – Socialist and Secular — were left to remain. These were challenged before the Supreme Court. On May 9, 1980, a Constitution Bench of the Supreme Court decided the case in Minerva Mills vs Union of India (AIR 1980 SC 1789). The five-Judge Bench, in a 4:1 judgment declared these insertions – Socialist and Secular – in the Preamble as valid. The Bench held that these aspects render vitality to the Constitution's philosophy and add "strength and succor to its foundations". The majority held:

"The amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage."

Recalling the Constitution (Forty second Amendment) Act, 1976, the context and the fact that the Constitution and its scheme could be destroyed by a regime with such ease is only one part, as dark as it is.

The ease with which the Constitution could be erased from the life of a nation by a regime ought to be recalled this day 46 years later. However, such desperate acts striking at the roots of Constitutional democracy were frustrated by the people (when they voted out the Emergency regime in March 1977 and thus led the path to restore the Constitution) as well as by the Supreme Court as it did in the Minerva Mills case later.