Constitutional (42nd) Amendment Act

1976: A critical Appraisal

Submitted to: Dr. Ashutosh Ahire

Asst. Professor (H.N.L.U)

Submitted by: Sanket Jamuar

Sem- III, Sec- B
Roll No - 128

Date of Submission – 3rd Sept, 2019

Hidayatullah National Law University

 Declaration
I, hereby declare that the project work titled “Constitutional (42nd) Amendment Act
1976: A critical Appraisal” is my own work and represents my own ideas and
where others’ ideas or words have been included, I have adequately cited and
referenced the original sources. I also declare that I have adhered to all principles
of academic honesty and integrity and have not misrepresented or fabricated or
falsified any idea/data/fact/source in my submission. It is a record of bona fide
project work carried out by me under the guidance of Dr. Ashutosh Ahire,
Professor, Sociology, H.N.L.U, Raipur. I further declare that the project has not
been submitted, either in part or in full, for the award of any other degree or
diploma in any other institute or university.

Sanket Jamuar
Semester-III, Section-B
Roll no.-128
 Acknowledgement

First and foremost, I would like to thank Ashutosh sir for offering this topic and for
her valuable guidance and advice. he inspired me greatly to work in this project.
His willingness to motivate me contributed tremendously to my project. I also
would like to thank his for showing me some example that related to the topic of
my project. Besides, I would like to thank the Hidayatullah National Law
University for providing me with a good environment and facilities to complete
this project. Last but not least, my friends who helped me do this project by sharing
their ideas when we combined and held productive deliberations together.

Sanket Jamuar
 Table of contents

Introduction…………………………………………………………………..1

Background of the Amendment........................................................................3

Important Prior Amendment…….……………………………………………5

The 42nd Amendment……………………...…………………………………6

Changes Brought……………..……………………………………………….7

Aftermath…………………...……...……………………………………..….13

Legal Challenges………………………………………………………..…...16

Conclusion…………….……………………………………………………..17

References……………………………………………………………………18
Research methodology
Definition of Research:

The term ‘research’ is derived from a French word ‘recerch’ meaning to ‘to search’
and a Latin word ‘circare’ meaning ‘to go round in a circle’1.

In research1 –

‘R’ stands for ‘rational way of thinking’

‘E’ stands for ‘expert and exhaustive treatment’

‘S’ stands for ‘search for solutions’

‘E’ stands for ‘exactness’.

‘A’ stands for ‘analytical analysis of adequate data’

‘R’ stands for ‘relationship between facts and theories’

‘C’ stands for ‘(a) constructive attitude; (b) critical evaluation; (c) condensed and
compactly stated generalisation; (d) cautious and careful recording’.

‘H’ stands for ‘honesty and hard work in all aspects of the treatment of data’.

Various definitions as stated by the jurists are as follows:

Manheim, says “research is the careful, diligent and exhaustive investigation of a

specific subject-matter, which has its aim the advancement of mankind’s
knowledge.”2

Redman and Mary defines research as “systematised efforts to gain knowledge”.3

1
1 Dr. S.R. Myneni, “Legal Research Methodology” 1 (Allahabad Law Agency,
5th ed. 2012)

2
2 Dr. S.R. Myneni, “Legal Research Methodology” 2 (Allahabad Law Agency,
5th ed. 2012)
Introduction
42nd Amendment “is responsive to the aspirations of the people, and reflects the realities of
the present time and the future.” With these words in her speech, Indira Gandhi introduced the
most criticized amendment to the Indian Constitution.

If the average of the total amendments in the Indian Constitution is taken out, then it is almost
two amendments per year. According to law experts, the Amendments to the Indian Constitution
have strengthened it over time. But this was the first instance when the amendment had wholly
come up with personal ambitions at the period of Emergency imposed by Indira Gandhi. She
changed the Constitution to such an extent that the “Constitution of India” was started being
called as “Constitution of Indira”.

What were the changes 42nd Amendment brought, what were the consequences of these changes
and how the Constitution was brought back to its original form? These questions make the most
essential part of the syllabus of Indian Constitution in law schools. Let’s start finding these
answers from the time when these all started.

The 42nd amendment to Constitution of India, officially known as The Constitution (Forty-
second amendment) Act, 1976, was enacted during the Emergency (25 June 1975 – 21 March
1977) by the Indian National Congress government headed by Indira Gandhi. 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. This was the first instance when the
amendment had wholly come up with personal ambitions at the period of Emergency imposed by
Indira Gandhi. 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".

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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. The amendment gave Parliament unrestrained
power to amend any parts of the Constitution, without judicial review. It transferred more power
from the state governments to the central government, eroding India's federal structure. The 42nd
Amendment also amended 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 India, 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. This respectively amends mostly of whole constitution, hence is called
as mini constitution.

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Background of the amendment
On March 19, 1975, Indira Gandhi had to visit the Court for her witness in an election plea. It
was the first instance where a Prime Minister had to visit the Court during its tenure. It was also
for the first time after Independence where Seven and a half lakh people under the leadership of
Jai Prakash Narayan were chanting slogans like ‘ससिंहासन खाली करो सक जनता आती है’ and

‘जनता का सिल बोल रहा है , इिं सिरा का आसन डोल रहा है’ and agitating against the government.
Massive rallies were being organized against the Prime Minister, and the whole country was
against her.

Describing emergency time as the need of the hour, Indira Gandhi constantly revised several
constitutional provisions in that period. 42th Amendment was passed after the change of several
provisions of the Constitution through the 40th and 41st Amendments.

Shortly after that, June 12, 1975, became a historic day in Indian history where the Allahabad
High court canceled the election of Indira Gandhi. Soon after that, on June 25, Emergency was
declared in the country. It initiated the phase when the government started changing the soul of
the Indian republic through the Constitutional Amendments.

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".

The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok
Sabha on 1 September 1976, as the Constitution (Forty-Second Amendment) Bill, 1976 (Bill No.
91 of 1976). It was introduced by H. R. Gokhale, then Minister of Law, Justice and Company
Affairs. 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

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Constitution. 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".

The bill was debated by the Lok Sabha from 25 to 30 October and 1 and 2 November. Clauses 2
to 4, 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. 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. Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55,
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.

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Important Prior amendments
38th Amendment to the Constitution was passed on July 22, 1975, first time after the
Emergency, where the Judiciary was stripped of the right to make judicial review of the
Emergency. Soon after two months of this amendment, the 39th Amendment to the Constitution
was introduced with the intent to keep the Prime Minister’s post for Indira Gandhi. Since the
Allahabad High Court had canceled the election of Indira Gandhi, 39th amendment stripped off
the right of High Courts to investigate the election of a person appointed to the post of Prime
Minister of the country. As per the amendment, the inquiry and investigation of Prime Minister’
election could only be done by the committee constituted by the Parliament.

The series of amendments did not stop here. Claiming Emergency as the need of the hour, Indira
Gandhi continuously made many constitutional amendments in that period. After changing
several provisions through 41st and 42nd Amendments to the Constitution, the 42nd amendment
was introduced, which made the joke of Indian Constitution. This amendment led to the position
where people started calling the Constitution as the “Constitution of Indira” instead of
“Constitution of India” or “mini-Constitution”. This Amendment Act even changed the
provisions of the Preamble of the Constitution.

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The 42nd amendment
The Constitutional (Forty-second) Amendment Act, 1976, was primarily a handicap of Congress
Party, majorly based on the proposals made by Swaran Committee. The Amendment amended
the Preamble of the Constitution, 40 Articles [article 31, article 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, article 368 and article 371F], Seventh
Schedule and added 14 New Articles [articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A,
226A, 228A and 257A and parts 4A and 14A] to the Constitution. As it was undertaken at the
time of Emergency, when most of the opposition leaders were detained in preventive detention,
so it became more or less a party affair of Indian National Congress instead of National Interest.
The Act introduced several changes, most of which sought to tilt the power in the favour of
executive away from the Judiciary.1

1
https://ccrd.vidhiaagaz.com/42nd-amendment-of-indian-constitution/

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Changes brought forward through the amendment

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.[14][15][16] Some of
these changes are described below.

The Parliament was given unrestrained power to amend any parts of the Constitution,without
judicial review. This essentially invalidated the Supreme Court's ruling in Kesavananda Bharati
v. State of Kerala in 1973. The amendment to article 368, 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. The 42nd Amendment also restricted the power of the courts to issue stay orders or
injunctions. The 42nd Amendment revoked the courts' power to determine what constituted an
office of profit. 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".
The amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and
moved the political system toward parliamentary sovereignty. The 43rd and 44th Amendments
reversed these changes.

Article 74 was amended and it was explicitly stipulated that "the President shall act in
accordance with the advice of the Council of Ministers".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.[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.

The 42nd Amendment added new Directive Principles, viz Article 39A, Article 43A and Article
48A.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

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that it violated any of the Fundamental Rights". The Amendment simultaneously stated that laws
prohibiting "anti-national activities" or the formation of "anti-national 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
"anti-national 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
harmony and the spirit of common brotherhood among all the people of India, transcending
religious, linguistic and regional or sectional diversities."

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). The 44th Amendment
repealed this change, shortening the term of the aforementioned assemblies back to the original 5
years.

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Article 312, which makes the provision for All India Services was amended to include the All-
India Judicial Service.

In Preamble
Two changes were made in the Preamble. Firstly, the Characterisation of India as “Sovereign
democratic republic” has been changed to “Sovereign socialist, secular democratic republic”
and Secondly, the words “unity of nation‘ were changed to “unity and integrity of the nation“.
The Act of adding these words were severely criticized by H.M Seervai as these words were
ambiguous and should not have been inserted in the Preamble without reason.

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".

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 organised 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 organisation 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

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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."

Ambedkar's 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, and the Preamble remained unchanged until the 42nd
Amendment.

Parliament and State Legislature

Further of 42nd Amendment provided for the readjustment in constituencies for election to Lok
Sabha, and State Legislative Assemblies, after every census held after ten years at the point of
1971 census till the holding of the first census after the year 2000. The Number of seats for SC
and ST tribes in Lok Sabha was also frozen. A person holding an ‘office of profit’ is disqualified
from the membership of Parliament or a State Legislature and the court’s power to declare what
was an office of profit was ceased. The boundation of President under Article 103 to follow the
opinion of Election commission was also removed.

Judiciary
Earlier to 42nd Amendment, Indian Judiciary was unified, but the amendment restricted the
power of High Court to only adjudicate upon the validity of State legislation and Supreme court
on Central legislation. A new provision was added as Article 131A, providing only Supreme
court exclusive jurisdiction to determine the question relating to central legislation. Article 226A

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and Article 228A restricted the high courts. It was also added through Article 144A and 228A
that at least seven judge bench would sit to decide a question of the constitutional validity of
Central Law and the legislation can be held unconstitutional only with a two-thirds majority.

Emergency Provisions
Article 352 was amended to authorize the President to declare Emergency not only throughout
the country and but also in any part. For this, some necessary changes were made in Article 353,
Article 358, and Article 359. Earlier the proclamation of Emergency under Article 356 needed
parliamentary approval to operate at the end of every six years, but now this period was extended
to one year.

Fundamental Rights and Directive Principles

Through the change in Article 31-C, an attempt was made to give primacy to DPSP over
Fundamental rights. Though no change was made directly in the articles related to fundamental
rights. A certain changes were made to dilute its effect. The article 31-D was added to enable
Parliament to make the law to prevent and prohibit Anti-national activities. Also, the laws made
under article 31-D was forbidden to be held void for being violative of Article 14, 19 or 31.

The amendment added few more Directive Principles, viz Article 39-A, Article 43-A, Article 48-
A. Article 39 (f) was also redrafted. Article 31C was amended and provided that no law giving
effect to Directive Principles will be held void for being inconsistent with any of the rights
conferred by Article 14, article 19, or article 31. It was one of the most controversial
provisions of the amendment – Prioritizing state policy director principles in comparison to
fundamental rights

Amendment
When another notorious provision of the 42nd amendment was about the ‘amendment to the
Constitution’. A few years back Supreme Court declared the historic Judgement in

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Keshavananda Bharati Case. Where it set a scale to amend the Constitution, but the 42nd
Amendment also squeezed these scales. After this amendment, the constitutional amendments
made by the legislature could not be challenged in the Court on any grounds. Also, the
membership of MPs and MLAs could not be challenged in the Court. In case of any dispute. The
right to decide on his membership was given to the President only, and the tenure of the
Parliament was extended from five years to six years.

Some Positive Perspectives

Not all the provisions of the 42nd Amendment were negative. The addition of words like
‘socialist’, ‘secular’ and ‘integrity’ and the inclusion of fundamental duties. Are some example
of the positive provisions, that were added through the 42nd amendment itself. It is the only
reason that still after 43 years of the 42nd Amendment, these provisions are an integral part of
the Constitution of India.

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Aftermath of 42nd Amendment
Indira Gandhi faced her worst defeat in the elections that followed Post-emergency. And for the
first time in Indian history, a non-congress led government was formed in India. In the leadership
of Morarji Desai, Janta Party Government started the work of reforming the Constitution. The
government felt the need of introducing some more amendments to amend the Constitution.
which was damaged by the amendments.

The powers of the Supreme Court and High Courts were provided back to them through the 43rd
Amendment. With the strengthening of the Judiciary and removing the 42nd amendment, the
44th Amendment has also done the task of strengthening the Constitution even more than ever.
This amendment did many changes to escape the situation like the 42nd Amendment in the
future. The term “Armed Rebellion” was added in the place of “Internal Unrest” in
Emergency related provisions. Along with this, this amendment also strengthened the
fundamental rights.

During the Emergency, Indira Gandhi implemented a 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. 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.

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". The election ended the control of the
Congress (Congress (R) from 1969) over the executive and legislature for the first time since
independence. 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.

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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". 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.

The constitutionality of sections 4 and 55 of the 42nd Amendment were challenged in Minerva
Mills v. Union of India, when Charan Singh was caretaker Prime Minister. Section 4 of the 42nd
Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive
Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights
of individuals articulated in Part III. Section 55 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 power of Parliament to amend the Constitution. After the 1980 Indian
general election, the Supreme Court declared sections 4 and 55 of the 42nd amendment as
unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution.
In the judgement on Section 4, Chief Justice Yeshwant Vishnu Chandrachud wrote:

Three Articles of our Constitution, and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of unrestrained power. They are
Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords
to the people of this country an assurance that the promise held forth by the preamble will be
performed by ushering an egalitarian era through the discipline of fundamental rights, that is,
without emasculation of the rights to liberty and equality which alone can help preserve the
dignity of the individual.

On Section 4, Chandrachud wrote, "Since the Constitution had conferred a limited amending
power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge
that very power into an absolute power. Indeed, a limited amending power is one of the basic
features of our Constitution and therefore, the limitations on that power can not be destroyed. In
other words, Parliament can not, under Article 368, expand its amending power so as to acquire
for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential

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features. The donee of a limited power cannot by the exercise of that power convert the limited
power into an unlimited one." The ruling was widely welcomed in India, and Gandhi did not
challenge the verdict. The Supreme Court's position on constitutional amendments laid out in its
judgements in Golak Nath v. State of Punjab, Kesavananda Bharati v. State of Kerala and the
Minvera Mills case, is that Parliament can amend the Constitution but cannot destroy its "basic
structure".

On 8 January 2008, a petition, filed by Sanjiv Agarwal of the NGO Good Governance India
Foundation, challenged the validity of Section 2 of the 42nd Amendment, which inserted the
word "socialist" in the Preamble to the Constitution. In its first hearing of the case, Chief Justice
K. G. Balakrishnan, who headed the three-judge bench, observed, "Why do you take socialism in
a narrow sense defined by communists? In broader sense, it means welfare measures for the
citizens. It is a facet of democracy. It hasn't got any definite meaning. It gets different meanings
in different times." Justice Kapadia stated that no political party had, so far, challenged the
amendment and everyone had subscribed to it. The court would consider it only when any
political party challenged the EC. The petition was withdrawn on 12 July 2010 after the Supreme
Court declared the issue to be

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Legal Challenges of Amendment
The constitutionality of sections 4 and 55 of the 42nd amendment was challenged in Minerva
Mills v. Union of India. When Charan Singh was caretaker Prime Minister. Article 31C of the
Constitution was amended by Section 4 of the 42nd Amendment to accord supremacy of the
Directive Principles of State. The policy articulated in Part IV of the Constitution over the
Fundamental Rights of individuals articulated in Part III. Section 55 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 power of Parliament to amend the Constitution.
After the 1980 Indian general election, the Supreme Court declared sections 4 and 55 of the 42nd
amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of
the Constitution.

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Conclusion
Regardless of the goals and objectives of this constitutional amendment. Told by the then ruling
class, the main aim of this constitutional amendment was the main focus of the power in the
hands of the Prime Minister and the Executive.

During the election of the sixth Lok Sabha, under the political program of election manifesto.
Which was published by the Janata Party. Cancelling the 42nd constitutional amendment was the
primary thing written. But after obtaining power a viable approach was adopted. Based on virtue
about this, instead of canceling all the provisions of the 42nd amendment. The 43rd and 44th
constitutional amendments were introduced to remove the harmful provisions introduced through
42nd Amendment.

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References
 Hart, Henry C. (April 1980). "The Indian Constitution: Political Development and Decay".
Asia Survey, Vol. 20, No. 4, Apr., 1980. University of California Press. JSTOR i345360.

 Admin, The (14 July 2019). "42nd Amendment, Was it India's or Indira's Constitution? -
CCRD". Centre for Constitutional Research and Development. Retrieved 14 July 2019.

 Dev, Nitish. "Constitutional Amendments of India". PublishYourArticles.org. Retrieved 12

April 2012.

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