The Constitutional (Forty-Second) Amendment Act, 1976: Scope, Judicial Response, and Enduring Legacy

The Constitutional (Forty-Second) Amendment Act, 1976: Scope, Judicial Response, and Enduring Legacy

1. Introduction

Popularly styled the “Mini-Constitution,” the Constitutional (Forty-Second) Amendment Act, 1976 (“42nd Amendment”) is unrivalled in breadth and constitutional audacity. Enacted during the Internal Emergency (1975-1977), the measure sought simultaneously to entrench executive-legislative dominance, attenuate judicial power, and recalibrate the balance between Fundamental Rights and Directive Principles of State Policy (“DPSP”). This article undertakes a critical examination of the Amendment's architecture, the constitutional doctrines it engaged, and the Supreme Court’s layered response culminating in Minerva Mills Ltd. v. Union of India[1]. The discussion situates subsequent jurisprudence—Waman Rao[2], Sanjeev Coke[3], L. Chandra Kumar[4], and I.R. Coelho[5]—within the continuing dialectic over constituent power and constitutional supremacy.

2. Legislative Background and Context

Invoking Article 352, the Union Government proclaimed a nationwide Emergency on 25 June 1975. The attendant suspension of Articles 14, 19 and 21 under Article 359 eroded conventional checks on legislative overreach. In this milieu, Parliament adopted the 42nd Amendment on 7 December 1976, bringing into force staggered provisions between 3 January 1977 and 1 February 1977[6]. The Statement of Objects and Reasons characterised the initiative as an endeavour “to spell out expressly the high ideals of socialism, secularism and the integrity of the nation.” Yet the operative clauses went much further, seeking to immunise constitutional amendments and certain ordinary statutes from judicial review.

3. Salient Features of the 42nd Amendment

3.1 Preamble Revision

  • Addition of “Socialist” and “Secular” to the description of the Republic.
  • Insertion of the term “integrity” alongside unity.

3.2 Re-balancing Rights and DPSP

  • Section 4 amended Article 31-C to extend immunity from Articles 14, 19 and 31 to all laws implemented to give effect to any DPSP, repudiating the limited protection (Articles 39(b) & (c)) upheld in Kesavananda Bharati.

3.3 Curtailment of Judicial Review

  • Section 55 inserted clauses (4) & (5) in Article 368 declaring that (a) no amendment could “be called in question in any court on any ground,” and (b) constituent power was untrammelled.
  • Part XIV-A (Articles 323-A & 323-B) created administrative and other tribunals whose decisions were insulated from High Court scrutiny, foreshadowing L. Chandra Kumar.

3.4 Federal-Judicial Architecture

  • Article 226(2) conferred on High Courts territorial jurisdiction where the “cause of action, wholly or in part, arises,” expanding the writ ambit established earlier by the Fifteenth Amendment.[7]
  • Article 311(2) was truncated, deleting the requirement of a second show-cause notice on proposed penalty, thereby influencing public-service jurisprudence.[8]

3.5 Fundamental Duties & Miscellany

  • Article 51-A introduced a catalogue of Fundamental Duties, notably clause (g) directing citizens to “protect and improve the natural environment,” later invoked to justify wildlife legislation.[9]
  • Extended Lok Sabha tenure and facilitated preventive-detention regime amendments.

4. Doctrinal Landscape Prior to the 42nd Amendment

The Supreme Court’s 13-Judge majority in Kesavananda Bharati v. State of Kerala (1973) formulated the Basic Structure Doctrine, restraining Parliament from altering the Constitution’s foundational features.[10] In Indira Nehru Gandhi v. Raj Narain (1975) a Constitution Bench invalidated Article 329-A(4) (Thirty-Ninth Amendment) for undermining free and fair elections, reiterating that democracy and judicial review are basic features.[11] These pronouncements cast a long shadow over the 42nd Amendment.

5. Judicial Scrutiny of the 42nd Amendment

5.1 Minerva Mills Ltd. v. Union of India (1980)

Challenging Sections 4 and 55, the petitioners contended that Parliament had arrogated constituent supremacy and abrogated Fundamental Rights. A five-Judge Bench (Y.V. Chandrachud C.J.) struck down both sections, reasoning that:

  • The expansion of Article 31-C obliterated the “harmony and balance” between Part III and Part IV, itself a basic feature.[12]
  • Clauses (4) and (5) of Article 368 annihilated judicial review and nullified the very limited amending power recognised in Kesavananda; Parliament “cannot convert the limited power into an unlimited one.”[13]

Justice Bhagwati’s partial dissent agreed that the destruction of basic structure was impermissible, underscoring the principle’s resilience.

5.2 Post-Minerva Clarifications

5.2.1 Waman Rao v. Union of India (1981)

The Court upheld Articles 31-A, 31-B and Ninth Schedule inclusions prior to 24 April 1973, but subjected post-Kesavananda insertions to basic structure review.[14] Consequently, although the extended Article 31-C was already invalidated, Waman Rao demarcated a temporal boundary for parliamentary immunity.

5.2.2 Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1983)

Relying on the unamended Article 31-C, the Court validated the Coking Coal Mines (Nationalisation) Act, 1972, holding that laws aligned with Article 39(b) & (c) continue to enjoy protective cover.[15] The decision illustrates that Minerva Mills curtailed only the 42nd Amendment’s enlargement, not the original provision.

5.2.3 L. Chandra Kumar v. Union of India (1997)

Challenging Articles 323-A & 323-B (inserted by the 42nd Amendment), a seven-Judge Bench declared that exclusion of High Court writ jurisdiction offends the basic structure’s judicial review component.[16] The Court reinterpreted, rather than struck down, the articles: tribunal decisions are subject to certiorari before a division bench of the High Court.

5.2.4 I.R. Coelho v. State of Tamil Nadu (2007)

A nine-Judge Bench held that post-24 April 1973 statutes placed in the Ninth Schedule are reviewable for basic structure violations.[17] The ruling consolidates the principle that parliamentary acts—ordinary or constituent—cannot eviscerate fundamental constitutional values, completing the doctrinal arc begun with the 42nd Amendment.

6. Sector-Specific Ramifications

6.1 Service Jurisprudence under Article 311(2)

The deletion of the second show-cause requirement engendered debate on procedural fairness. While K. Manche Gowda (AIR 1964 SC 506) reflected pre-amendment jurisprudence, post-amendment cases recognise that natural-justice compliance now centres on supply of the inquiry report (Union of India v. Mohd. Ramzan Khan, 1991).[18] Recent Supreme Court decisions (State Bank of India v. Mohammad Badruddin, 2019) reaffirm that the constitutional text, as amended, dispenses with a second notice, though statutory rules may prescribe supplemental safeguards.[19]

6.2 Expanded Writ Jurisdiction

Article 226(2) has invigorated federal judicial review by permitting litigants to approach a High Court where only a fragment of the cause of action materialises. High Courts in Atlas Exporters v. K.V. Irniraya (Bombay, 1988) and J.C. Thind v. Union of India (Allahabad, 2005) have leveraged the clause to assert territorial competence.[20]

6.3 Environmental & Wildlife Protection

Fundamental Duty 51-A(g) has buttressed environmental jurisprudence. Delhi High Court in G.R. Simon v. Union of India (1997) cited the duty to uphold the 1986 amendment to the Wildlife (Protection) Act.[21] Thus, an ostensibly symbolic inclusion has acquired normative force.

7. Repeal, Retention, and the 44th Amendment

The succeeding Janata Government enacted the 43rd and 44th Amendments (1977-1978) to dismantle several 42nd provisions: clauses (4) & (5) of Article 368, curbs on judicial review under Articles 131-A, 144-A, 226-A, and 228-A, as well as constraints on the Press. Nevertheless, key elements—including the Preamble’s expanded ideals, Article 51-A duties, Article 226(2), and Part XIV-A tribunals—survive, though subject to doctrinal modulation by L. Chandra Kumar.

8. Enduring Constitutional Legacy

The 42nd Amendment, far from being a historical aberration, catalysed a constitutional conversation that clarified the outer limits of constituent power. Three lasting lessons emerge:

  1. Constitutional Supremacy over Parliamentary Sovereignty. Judicial repudiation of clauses attempting to oust review entrenches the Constitution as a Grundnorm transcending transient political majorities.
  2. Harmonious Construction of Parts III & IV. Minerva Mills reframed rights and directive principles as mutually reinforcing, a stance echoed in socio-economic-rights jurisprudence (e.g., Olga Tellis, 1985).
  3. Evolutionary but Bounded Amendment Power. The post-1976 case-law lineage culminates in I.R. Coelho, emphasising that Article 368 is inherently limited—not by textual reservation but by substantive constitutional identity.

9. Conclusion

The 42nd Amendment exemplifies both the malleability and the resilience of India’s Constitution. Its expansive aspirations, forged in an era marked by executive dominance, provoked a jurisprudential counter-movement that reaffirmed democratic equilibrium. While several provisions foundered against the basic structure bulwark, others embedded salutary innovations—environmental stewardship, socialist-secular ideals, and streamlined judicial process. The Supreme Court’s measured responses, oscillating between invalidation, interpretation, and conditional acceptance, underscore a mature constitutional dialogue in which amendment and adjudication operate as co-ordinates rather than antagonists. The continuing vitality of the basic structure doctrine ensures that future constitutional engineering—however well-intentioned—remains anchored to the core values enshrined in 1950 and vindicated, time and again, since 1973.

Footnotes

  1. Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.
  2. Waman Rao v. Union of India, (1981) 2 SCC 362.
  3. Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147.
  4. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
  5. I.R. Coelho (Dead) by Lrs. v. State of T.N., (2007) 2 SCC 1.
  6. See Gazette notification dates under Section 1 of the 42nd Amendment.
  7. Article 226(2) inserted by Section 38 of the 42nd Amendment.
  8. Deletion of second notice: Section 57 of the 42nd Amendment; see Mohd. Ramzan Khan, (1991) 1 SCC 588.
  9. G.R. Simon v. Union of India, 1997 SCC OnLine Del 324.
  10. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
  11. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
  12. Minerva Mills, supra note 1, at para 56 (balance between Parts III & IV).
  13. Ibid., para 18 (limited amending power).
  14. Waman Rao, supra note 2, paras 50-55.
  15. Sanjeev Coke, supra note 3, paras 22-30.
  16. L. Chandra Kumar, supra note 4, paras 79-93.
  17. I.R. Coelho, supra note 5, paras 98-119.
  18. Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588.
  19. State Bank of India v. Mohammad Badruddin, (2019) 16 SCC 69.
  20. Atlas Exporters v. K.V. Irniraya, 1989 ECR Bom 25 (1988); J.C. Thind v. Union of India, 2005 All LJ 1234.
  21. G.R. Simon, supra note 9.