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THE MOST CONTROVERSIAL AMENDMENT OF THE INDIAN CONSTITUTION: THE INDIRA’S CONSTITUTION

THE MOST CONTROVERSIAL AMENDMENT OF THE INDIAN CONSTITUTION THE INDIRA’S CONSTITUTION

INTRODUCTION

“The drafting of the Indian constitution was done by the constituent Assembly. Indian constituent assembly was convened in December 1946. The members of this assembly were only Indians. Our constitution was adopted on 26th January 1950, which we commemorate as our Republic day”.

The constitution is important because it forms the basic structure of the administration. It lays down the Fundamental political principles, procedures, practices, rights, powers, and duties of the government and gives constitutional and extra-parliamentary supremacy because it is not created by parliament but by the constituent assembly and adopted by the people. Also, it distributes powers among the various state organs. It sets national goals, democracy, integration, secularism, etc. rights of people that are of the utmost importance to a person’s life. The constitution is also very important from the point of view of contingency or emergency, as it determines the change in the power structure without uncertainty. Importance of the Constitution India’s 42nd Amendment to the Constitution, dating from 1976, is of due importance because it has been confused with most of the principles set out earlier. The 42nd Amendment is ironically referred to as the “mini-constitution” or “Indira’s constitution”.

BACKGROUND

Since the verdict in Golaknath v State of Punjab was passed in 1967, there has been a battle between the former government, led by Indira Gandhi, and the judicial machine. In 1971 parliamentary elections were held across India, in which Indira Gandhi comfortably won against Mr. Raj Narain and became Prime Minister. After the defeat, Mr. Raj Narain filed a lawsuit against Prime Minister for Election Fraud and Use of State Machines to Campaign. These charges have been brought to the Allahabad High Court and Indira Gandhi had to appear in court, which was the first instance of its kind for an Indian Prime Minister.

The case has lasted for four years since its inception and was heard solely by Judge Jagmohanlal Sinha. In 1975 Allahabad HC issued a decision found guilty of abuse by police and government agents for the party’s election campaign and declared as null and void also excluded from voting for the next six years. Many other charges against her have been dropped and the aforementioned charges, which were comparatively frivolous, have been proven in the Allahabad HC. The political opposition launched anti-government protests in the Supreme Court. Well-known leader, Mr. Jaya Prakash Narayan, organized a massive demonstration in the capital to demand that Indira Gandhi abandon the Prime Minister’s office. In 1975 the government declared a nationwide emergency and named “internal disturbance” as the motive.

Then The 38th Amendment was passed on July 22, 1975, expanding the power of the state to violate fundamental rights during emergencies and also prohibiting judicial review of evictions. After that, the 39th Amendment was passed by the legislature, which was also controversial in intent and effect. This amendment removed the power of the Supreme Court to investigate the election of a prime minister.

INCEPTION OF THE 42ND CONSTITUTIONAL AMENDMENT ACT, 1976

The 1976 Constitutional Amendment Act, which is the 42nd constitutional amendment in India, is known for its controversial amendments and inclusions. The changes were made in accordance with the proposals of the Swaran Singh Committee established for this purpose of Indira Gandhi. This change includes changes to the preamble, 40 provisions, the seventh schedule, and 14 new articles that have been added to the Constitution. The following are some of the important alterations made through this amendment.

PREAMBLE

The preamble is considered a reflection of the constitution. The two most important supplements have been added to the preamble of the constitution. First is that “The Sovereign Democratic Republic” has been replaced by the expression “Sovereign Socialist Secular Democratic Republic”. The second is that the expression “unity of the nation” was replaced by the “unity and integrity of the nation”. According to reports, this change in legal and public spheres was fraught with major setbacks nationwide, as it “changed the way the Constitution of India was presented internationally”. Dr. B.R Ambedkar, chairman of the drafting committee, at the time the constitution was drafted, as these words refer to “Marxist socialism” and “Western concept of secularism” around the world. These expressions are very different from the Indian concept of socialism and secularism. This amendment violates the principles and procedures established in the case of Kesavananda Bharti v. the State of Kerala. Aside from these criticisms, the amendment to the preamble has been strongly criticized by Mr. Seervai, a respected Indian lawyer, for being ambiguous. These words are inappropriately induced.

DELAY OF FUNDAMENTAL RIGHTS

The Fundamental rights have been conferred on people without interruption since the Constitution came into force, but the 42nd Amendment has included the relevant provisions on suspending fundamental rights in emergencies. Awarded without notice in accordance with Article 19 of the Constitution when an external emergency is imposed. Under this provision, Article 19 will be suspended throughout the country for the duration of the emergency and the Court will be granted immunity from “emergency laws”.

At the same time, Article 359 has been amended to allow the President to suspend the right to redress of any person who is inconsistent with the “Emergency Laws” that are incompatible with a certain fundamental right, with the exception of Articles 20 and 21 of the Indian Constitution. According to this provision, the order of the president may be made during an internal emergency or an external emergency for a specified time or for the entire emergency time. It should be noted that the fundamental rights are not automatically suspended, but their “enforceability” in court is suspended under Article 359 of the Constitution.

FUNDAMENTAL DUTIES

The constitution consisted of certain parts of the fundamental rights and guiding principles from the beginning, but the government and the Swaran Singh committee believed that the citizens of this country should also have certain obligations towards the state to have a cordial relationship. Therefore, under the 42nd Amendment of 1976, the ten basic duties were added to the constitution in the form of Part IVA. However, since it was not possible to impose duties on citizens, as this contradicts the whole structure of a democratic country, they were given a – judicial and inapplicable effect. Some of the most important fundamental tasks are respected for the Constitution and its ideals, the preservation of the sovereignty, unity, and integrity of the country, the protection of the environment, the provision of national services, etc.

DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP)

The other changes made, in the changes to the Guiding, Principles included both positive and negative criticism. First, the amendment to Article 31C had become the most controversial provision of the DPSP 1971 amendment, its scope was expanded by the current amendment. So far, this provision has had the effect of creating a valid law under Articles 39 (b) and 39 (c) of the Constitution, even if that law violates the fundamental rights of citizens.

Although this is considered unacceptable by a large part of the population, the 42nd Amendment was introduced which expanded the scope of Article 31C to such an extent that any law passed under a DPSP is considered valid, even if that law is against a Fundamental right violates. At the same time, Article 31D was introduced to legalize any law relating to anti-national elements, even if those laws violate Articles 14 and 19. These two changes related to the functioning of the DPSP have collided with negative public reactions. The other community-praised changes to the DPSP are the introduction of Article 39-A and the amendment to Article 39 (f) of the Constitution. According to Article 39-A, the poor and most vulnerable parts of society must be given free legal assistance to avoid injustices based solely on economic or social backwardness. Article 39 (f) has been amended to protect against exploitation and moral and material neglect of children and young people. Apart from these changes, there were some references in Part IV (DPSP) of the constitution, such as Article 43A and Article 48F, which dealt with the rights of workers and the protection of the environment.

REACTION FROM THE LEGISLATURE

After the 1977 emergency, the parliamentary elections were held across the country, in which Congress was defeated by the alliances of the Janta Party. The government was formed under the leadership of Mr. Morarji Desai and its main task was to establish the constitution. In the previous position as before the emergency. But the new government and legislature did not have the vision of reversing all of the changes made during the Constitution.

Therefore, the 43rd Amendment Act of 1977 and the 44th Amendment Act of 1978 were introduced to remedy of 42nd Amendment. Some of the notable changes made by these changes are to transfer the previous powers to the Superior Courts and Supreme Courts, to replace “civil unrest” with “armed rebellion” and so on. Senior Advocate of constitutional law, Mr. Nani Palkhiwala represented the owners in court, objected to the government’s actions on various grounds, and further argued that Section 4 and Section 55 of the 42nd Amendment from 1976 were unconstitutional. Article 31C has been amended to make the DPSP dominate fundamental rights. Section 55 added two clauses to Article 368 to give parliament uncontrolled powers to amend the Constitution, overturning the judgment of Kesavananda Bharti, and the other clause excluded judicial review of laws enacted during an emergency. As the judgment shows, for many reasons, by accepting Mr. Nani Palkhiwala’s ingenious arguments, the Court had repealed sections 4 and 55 of the 42nd Amendment of 1976 which were made by the judiciary and had to be passed by the legislature.

CONCLUSION

As we all know that this amendment is considered to be the most controversial in the history of the Indian Constitution, but there are still certain provisions that have been in force for years until today because they are considered beneficial. Regardless of the aims and objectives of this constitutional reform, which were counted by the ruling class at the time, the main aim of this constitutional reform was the main focus of power in the hands of the Prime Minister and executive.

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Written by Tanya Sharma

Tanya Sharma is a final year law student from GGSIP University, New Delhi. She is very passionate about legal research and writing articles/blogs. As it has enhanced her adaptability and communication skills. She was the part of Legal Research organization. She has a keen interest in Criminal law as well as Family law.

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