42 n 44 constitutional amendments

The 42nd Constitutional Amendment Act (1976) brought a number of changes in the Constitution. The Act
inter-alia gave preponderance to the Directive Principles of State Policy over the Fundamental Rights.
Established the supremacy of Parliament and curtailed the powers of Judiciary. The Act was first of its kind. Is
was the most comprehensive Act and touched almost all the sensitive areas of the Constitution. The
Amendment was meant to enhance enormously the strength of the Government.

"The major Amendments made in the Constitution by the 42nd Amendment Act are: "

• . . . . . Preamble . . . . . »
The characterization of India as ‘Sovereign Democratic Republic’ has been changed to ‘Sovereign Socialist
Secular Democratic Republic’. The words ‘Unity of the nation’ have been changed to ‘Unity and integrity of the
nation' .

• . . . . . Parliament and State . . . . . »

Legislatures » The life of the Lok Sabha and State Legislative Assemblies was extended from 5 to 6 years.

Executive » It ammended Article 74 to state explicitly that the President shall act in accordance with the advice
of the Council of Ministers in discharge of his duty .

Judiciary » The 42nd Ammendment Act inserted Article 32A in order to deny the Supreme Court the power to
consider the Constitutional validity of a State law. Another new provision. Article 131A, gave the Supreme
Court and exclusive jurisdiction to determine question relating to the Constitutional validity of a central law.

Article 144A and Article 128A, the creatures of Constitutional Amendment Act made further innovation the
area of judicial review of the Constitutionality of legislation. Under Article 144A the minimum number of
judges of the Supreme Court to decide a question of a Constitutional validity of a central or State law was fixed
as at least seven and further, this required two-two-thirds majority of the judges sitting declare law as
unconstitutional. While the power of the High Court enforce fundamental rights remained untouched, several
restrictions were imposed on its power to issue writs ‘for any other purpose’.

• . . . . . Federalism . . . . . »
The Act added Article 257A in the Constitution to enable the Centre to deploy any armed force of the union, or
any other force under its control. For dealing with any grave situation of law and order in any State.

• . Fundamental Rights and Directive Principles . » A major change that was made by 42nd Constitutional
Amendment was to give primacy to all directive principles over the fundamental right contained in Articles 14,
19 or 31. the 42nd Constitutional Amendment added a few more directive principles free legal aid,
participation of workers in management of industries, protection for environment and protection of forests
and wildlife of the country .

• . . . Fundamental Duties . . . » The 42nd Ammendment Act inserted Article 51-A to create a new part called
IV-A in the Constitution, which prescribed the fundamental duties to the citizens.

• . . . . . Emergency . . . . . »
Prior to 42nd Amendment Act, the President could declare emergency under Article 352 throughout the
country and not in a part of the country alone. The Act authorised the President to proclaim emergency in any
part of the country.
The dominant thrust of the Amendment was to reduce the role of courts, particularly, that of the High Courts.
It also sought to strengthen Parliament in various ways which in effect, added to the power of the Central
Government it drew enormous criticism particularly for it was pushed through during Emergency

The 44th amendment of the Constitution was enacted by the Janata Government mainly to nullify
some of the amendments made by the 42nd Amendment Act, 1976. It made wide scale changes to
the Indian Constitution to make the Indian polity more democratic. Some of the changes introduced
by the Act are as follows:

i. Constitutional protection to publication in newspaper of the proceedings of the Parliament and

State Legislatures.

ii. The President may only once send advice of the Cabinet for reconsideration.

iii. Restoration of some powers of the Supreme Court.

iv. Fundamental Rights Guaranteed by Articles 20 and 21 cannot be suspended during a national
emergency.

v. The Right to Property was deleted from the list of fundamental right. It is now only a legal right
under the Constitution.

These amendments clearly suggest the amendment tried to conform to the values included in the
preamble. However, the most important change made by the 44th Amendment Act was the deletion
of the Right to Property from the list of fundamental right. Making it a legal right under the
Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the
preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the
Constitution.

CASES---

GolaknathVsState of Punjab 1967

The Supreme Court made fundamental rights immune from amendment until Parliament reasserted its authority
in 1971 by amending Articles 13 and 368 of the Constitution.

Kesavananda BharatiVsState of Kerala1973

In 1971, Parliament empowered itself to amend any part of the Constitution. However, the Supreme Court laid
down that such amendments could not destroy the 'basic structure' of the Constitution-fundamental rights are part
of the 'basic structure.

Maneka GandhiVs Union of India1978

The case caused a huge uproar over the definition of freedom of speech.The court ruled that the procedure must
be fair and the law must not violate other fundamental rights.

Minerva MillsVsUnion of India 1980

The Supreme Court again applied the 'basic structure' theory, saying that social welfare laws could not curb
fundamental rights.

Kehar SinghVsDelhi Administration1984

Kehar Singh was accused of taking part in the murder of Indira Gandhi. Though the death sentence was upheld
by the Supreme Court, its accuracy has often been questioned.

Babri Masjid, Ayodhya Case1994

The case questioned the Constitutional validity of the acquisition of a certain area adjoining the disputed site. The
Supreme Court upheld status quo on the disputed structures.

Shah Bano Case1985

The case, related to the issue of Muslim personal law, caused a furore as the court awarded Shah Bano a
maintenance allowance after divorce.
Courtroom Judgment

Indira SawhneyVsUnion of India1992

The Supreme Court upheld the implementation of recommendations made by the
Mandal Commission. It also defined the "creamy layer" criteria and reiterated that
the quota could not exceed 50 per cent.

S.R. BommaiVs Union of India 1994

The case laid down the guidelines in proving a majority under Article 356. The recent
Arjun Munda case judgement was also passed with reference to the Bommai case.

VishakaVsState of Rajasthan1997
For the first time, sexual harassment, including sexually coloured remarks and
physical contact, was explicitly and legally defined as an unwelcome sexual gesture. It stated that every instance
of sexual harassment is a violation of fundamental rights.

Representation of the People (Amendment) Act2002

The judgement of a three-member Bench ordered candidates contesting elections to declare their assets and all
criminal cases pending against them at the time of filing of nominations.

LANDMARK CASES RELATING TO THE BASIC STRUCTURE OF THE

CONSTITUION
November 9, 2015

1. Shankari Prasad case v. Union of India, 1951

2. Sajjan Singh v. State of Rajasthan, 1965

3. Golak Nath vs. The State of Punjab, 1967

4. Kesavananda Bharati v. The State of Kerala, 1973

5. Indira Gandhi v. Raj Narain, 1975

6. Minerva Mills Ltd. v. Union of India, 1980

7. Chandra Kumar v. Union of India, 1997

A brief on the above cases has been laid down below.

1. Shankari Prasad Case V. Union of India, 1951

Shankari Prasad Vrs. Union of India is a landmark case in the basic structure of our constitution. In the cases, the power to

amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority six judges in
special bench of eleven, overruled the previous decisions.

2. Sajjan Singh v. State of Rajasthan, 1965

The validity of the Seventeenth Amendment was challenged in this case. The main contention before the five-judge bench of

the Supreme Court was that the Seventeenth Amendment limited the jurisdiction of the High Courts and, therefore, required

ratification by one-half of the States under the provisions of article 368. The court unanimously disposed of this contention,
but members of the court chose to deal with a second submission, that the decision in the Shankari Prasad case should be

reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo
and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case. The words “amendment of this

constitution” in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would,

therefore, be unreasonable to hold that the word “law” in Article 13(2) took in Constitution Amendment Acts passed under

article 368.

They went on to point out that, even if the powers to amend the fundamental rights were not included in article 368,

Parliament could by a suitable amendment assume those powers. The Chief Justice also dealt in his judgment with the

wording of article 3lB. That article, he considered, left it open to the Legislatures concerned to repeal or amend Acts that had

been included in the Ninth Schedule. But the inevitable consequence would be that an amended provision would not receive

the protection of article 31B and that its validity could be examined on its merits.

Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they would have difficulty in accepting the

reasoning in Shankari Prasad’s case in regard to the relationship of articles 13 (2) and 368. Hidayatullah J. said that he would

require stronger reasons than those given in that case to make him accept the view that the fundamental rights were not really

fundamental, but were intended to be within the power of amendment in common with other parts of the Constitution. The

Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special

majority.” Mudholkar J. took the view that the word “law” in article 13 (2) included an amendment to the Constitution under

article 368.Article 368 does not say that when Parliament makes an amendment to the Constitution it assumes a different

capacity, that of a constituent body. The learned Judge recalled that India had a written constitution, which created various
organs at the Union and State levels and recognized certain rights as fundamental.

3. Golak Nath vs. the State of Punjab (1967)

In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (such a large bench constituted for the first time) of

the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be

revoked or limited by amendment of the constitution.

Secondly, the Supreme Court of India gave a momentous judgement on the 28th February ,1967 in the famous case of Golak

Nath & others Vrs. State of Punjab by declaring that the Fundamental Rights were transcendental and inviolable and the

Parliament of India had no power to take away or abridge any of the Fundamental Rights guaranteed by the Constitution by

way of the Constitutional amendments. Their lordship felt that the liberty of the Individual in the Indian Constitution is

subject to various “ reasonable restrictions” which are expressly mentioned in the Constitution and that no further limitations
should be imposed on it at any time.

4. The Kesavananda case (1973)

The decision of the Supreme Court in the Golak Nath Case has created a constitutional deadlock. The deadlock was over in

the famous case of Keshavananda Bharati and Others vrs.State of Kerala in 1973. The Supreme Court recognized basic

structure concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been

the interpreter of the Constitution and the arbiter of all amendments made by parliament. The court by majority overruled the

Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. In this case the petitioners
challenged the validity of the 24th, 25th, 26th and 29th constitutional amendments.

This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. It is a
landmark of the Supreme Court of India, and is the basis in Indian law for the exercise by the Indian judiciary of the power
to judicially review, and strike down, amendments to the Constitution of India passed by the Indian Parliament which
conflict with or seek to alter the Constitution’s basic structure.

5. Indira Gandhi v. Raj Narain, (1975)

Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of basic structure and struck down

Cl(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending

power of the parliament as it destroyed the basic feature of the constitution.

Four basic features

Justice Y.V. Chandrachud listed four basic features which he considered unamendable:

• Sovereign democratic republic status.

• Equality of status and opportunity of an individual.

• Secularism and freedom of conscience and religion.

• ‘Government of laws and not of men’ i.e. the rule of law.

42nd Amendment

After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi case the constitution (42nd

Amendment) Act, 1976 was passed which added two new clauses, namely, clause (4) and (5) to Art.368 of the Constitution.

It declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition,

variation or repeal of the provisions of the Constitution under this Article.

This Amendment would put an end to any controversy as to which is supreme, Parliament or the Supreme Court. Clause (4)

asserted the supremacy of the parliament. It was urged that Parliament represents the will of the people and if people desire

to amend the Constitution through Parliament there can be no limitation whatever on the exercise of this power. This

amendment removed the limitation imposed on the amending power of the Parliament by the ruling of the Supreme Court in

Keshvanand Bharti’s case. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague and will
create difficulties. The amendment was intended to rectify this situation.

6. Minerva Mill v. Union of India (1980)

In this case of Minerva Mill v.Union of India, the validity of 42nd amendment Act was challenged on the ground that they

are destructive of the ‘basic structure’ of the Constitution. The Supreme Court by majority by 4 to 1 majority struck down

clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature

of the Constitution. The historical Judgment laid down that: The amendment made to Art.31C by the 42nd Amendment is

invalid because it damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they

violate two basic features of the Constitution viz. limited nature of the power to amend and judicial review. The courts

cannot be deprived of their power of judicial review. The procedure prescribed by Cl. (2) is mandatory. If the amendment is

passed without complying with the procedure it would be invalid. The Judgment of the Supreme Court thus makes it clear

that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited amending power so as to damage or
destroy the Constitution to which it owes its existence and also derives its power.

The Fundamental Rights and the Directive Principles are required to be viewed as the two sides of the same coin. Both
should be complementary to each other and there should be no confrontation between them. Undoubtedly, Part IV
(containing the Directive Principles) is a part of the Constitution. Even though the Directives are not enforceable in the

Courts of law, Article 37 clearly says that “it shall be the duty of the State to apply these principles ill making laws.

An undue importance on civil liberties and rights in total disregard of the need to bring about social and economic justice,

may lead to a mass upheaval. Any importance on the Directive Principles alone, in total disregard of the rights and liberties,

may lead to totalitarianism. Hence a harmonious balance should be maintained between Part III and Part IV of the

Constitution and real synthesis should come out only from harmonising the spirit of political democracy with the spirit of
economic democracy.

7. Chandra Kumar v. Union of India (1997)

Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and

Clause 3(d) of 323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the Supreme

Court under Art.32.

Majority Judgment:

The judgment of CJ Sikri held that fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a

reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment

by necessary implication which was apparent from a reading of the preamble Every provision of the Constitution was open

to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Verdict of the Judgment

Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be

balanced and harmonized.

• This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which

cannot be altered.

• The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to preserve the power of

the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the

Constitution.

There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the

identity of the Constitution or any of its basic features.

Chief Justice Sikri listed Basic Structure features

• The supremacy of the constitution.

• A republican and democratic form of government.

• The secular character of the Constitution.

• Maintenance of the separation of powers.

• The federal character of the Constitution.

Justices Shelat and Grover listed Basic Structure features

• Maintenance of the unity and integrity of India

• The sovereignty of the country

• The sovereignty of India

• The democratic character of the polity

• The unity of the country

• Essential features of individual freedoms
• The mandate to build a welfare state

CONSTITUTIONAL IMPLICATIONS
• The Supreme Court in this case held these provisions as unconstitutional because they deny judicial review which is basic

feature of the Constitution.

• It held that the power of judicial review vested in the High court under Art.226 and right to move the Supreme Court under

Art.32 is an integral and essential feature of the Constitution.