42nd Constitutional Amendment 1976 Mini Constitution | Kerala PSC Graduate

The 42nd Constitutional Amendment Act of 1976, often termed the ‘Mini Constitution’, represents a monumental legislative exercise during the Emergency period in India. It introduced sweeping changes across various parts of the Constitution, significantly altering the Preamble, Fundamental Rights, Directive Principles, and the powers of the Parliament and Judiciary. For Kerala PSC aspirants, understanding this amendment is crucial as it frequently features in Indian Polity sections, testing knowledge on its specific provisions, the context of its enactment, and its subsequent modifications.

Background and Enactment

The 42nd Constitutional Amendment Act was enacted by the Indian National Congress government led by Prime Minister Indira Gandhi during the period of National Emergency (1975-1977). This extensive amendment was largely based on the recommendations of the Swaran Singh Committee, which was constituted in 1976 to study the Constitution and suggest amendments.

• Period of Enactment: The Act was passed by Parliament in 1976 and came into effect on January 3, 1977.
• Government in Power: The Indian National Congress, under the leadership of Prime Minister Indira Gandhi, was in power during its enactment.
• Context: The amendment was passed during the National Emergency (declared under Article 352 on June 25, 1975), which allowed the government to push through significant legislative changes.
• Committee Recommendation: Many of its provisions were based on the report of the Swaran Singh Committee, established in 1976.

Preamble Amendments

One of the most significant changes introduced by the 42nd Amendment was to the Preamble of the Constitution, altering the very foundational description of the Indian Republic.

• The words ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic Republic’.
• The word ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
• These additions aimed to explicitly define India’s commitment to socialist ideals, secularism, and national cohesion.
• The Preamble has been amended only once, by the 42nd Constitutional Amendment Act, 1976.

Fundamental Duties (Part IVA)

The 42nd Amendment introduced a new Part to the Constitution, Part IVA, which for the first time enumerated the Fundamental Duties of citizens. These duties are non-justiciable but serve as a reminder of citizens’ responsibilities.

• Introduction of Part IVA: A new Part IVA was added to the Constitution.
• Article 51A: This new Article was inserted, listing the Fundamental Duties.
• Number of Duties: Initially, 10 Fundamental Duties were added.
• Source of Recommendation: The inclusion of Fundamental Duties was based on the recommendations of the Swaran Singh Committee, 1976.
• Later Addition: The 86th Constitutional Amendment Act, 2002, added an eleventh Fundamental Duty, making it a total of 11 duties.

Parliament and Executive Powers

The amendment significantly enhanced the powers of the Parliament and the Executive while curtailing the powers of the Judiciary.

• Duration of Lok Sabha and State Assemblies: The term of the Lok Sabha (under Article 83) and State Legislative Assemblies (under Article 172) was extended from 5 years to 6 years. This change was later reversed by the 44th Constitutional Amendment Act, 1978.
• President Bound by Advice: Article 74 was amended to make the President bound by the advice of the Council of Ministers, headed by the Prime Minister. This provision was later modified by the 44th CAA, 1978, allowing the President to send back the advice for reconsideration once.
• Constitutional Amendments Beyond Judicial Review: Article 368 was amended to declare that there would be no limitation on the constituent power of Parliament to amend the Constitution and that no amendment could be questioned in any court on any ground. This was later largely diluted by the Supreme Court in Minerva Mills v. Union of India, 1980.
• Quorum for Parliamentary Proceedings: The power to make rules for quorum in Parliament and State Legislatures was shifted from the Constitution to the respective Houses, allowing them to decide their own quorum.

Directive Principles of State Policy (Part IV)

The 42nd Amendment added several new Directive Principles of State Policy (DPSPs) to Part IV, reflecting an increased emphasis on social and economic justice.

• Article 39A: Added to provide for equal justice and free legal aid to the poor.
• Article 43A: Added to ensure the participation of workers in the management of industries.
• Article 48A: Added to mandate the protection and improvement of the environment and safeguarding of forests and wildlife.
• Article 31C Modification: The scope of Article 31C was expanded to give precedence to all Directive Principles (Part IV) over Fundamental Rights under Articles 14, 19, and 31. This expansion was later struck down by the Supreme Court in Minerva Mills v. Union of India, 1980, limiting Article 31C’s protection only to Articles 39(b) and 39(c).

Judiciary and Administrative Tribunals

The amendment significantly curtailed the powers of the High Courts and introduced provisions for the establishment of tribunals.

• Curtailed High Court’s Writ Jurisdiction: The power of High Courts to issue writs (under Article 226) was restricted, limiting their ability to review the constitutionality of central laws. The 44th CAA, 1978, later restored the original broad scope of Article 226.
• Introduction of Part XIVA: A new Part XIVA was added, comprising two articles:
  • Article 323A: Provided for the establishment of Administrative Tribunals for adjudication of disputes relating to recruitment and conditions of service of public servants.
  • Article 323B: Provided for the establishment of tribunals for other matters (e.g., taxation, land reforms, elections).
• Transfer of High Court Jurisdiction: The amendment allowed for the transfer of certain cases from High Courts to these new tribunals.

Centre-State Relations and Other Changes

The 42nd Amendment also brought about changes in the distribution of legislative powers between the Centre and States and other miscellaneous provisions.

• Transfer of Subjects to Concurrent List: Five subjects were transferred from the State List (List II of Seventh Schedule) to the Concurrent List (List III of Seventh Schedule):
  1. Education
  2. Forests
  3. Protection of Wild Animals and Birds
  4. Weights and Measures (except establishment of standards)
  5. Administration of Justice (organisation of all courts, except the Supreme Court and the High Courts)
• Deployment of Armed Forces: Article 257A was inserted, allowing the Union to deploy armed forces or any other force for dealing with any grave situation of law and order in any State. This Article was later repealed by the 44th CAA, 1978.
• Proclamation of Emergency (Article 356): The amendment made it possible to declare President’s Rule in a state for a period of one year at a time, instead of six months. This was also reversed by the 44th CAA, 1978.

Key Supreme Court Judgments and Reversal by 44th CAA

The extensive changes introduced by the 42nd Amendment led to significant legal challenges and subsequent modifications, primarily by the 44th Constitutional Amendment Act, 1978.

• Kesavananda Bharati v. State of Kerala (1973): This landmark judgment, delivered before the 42nd Amendment, established the Basic Structure Doctrine, holding that Parliament could amend any part of the Constitution but could not alter its “basic structure”. This judgment limited the Parliament’s constituent power, despite the 42nd Amendment’s attempt to remove all limitations.
• Minerva Mills v. Union of India (1980): The Supreme Court struck down two major provisions of the 42nd Amendment:
  • It invalidated Clause (4) and Clause (5) of Article 368, which had removed all limitations on Parliament’s power to amend the Constitution and barred judicial review of constitutional amendments. The Court reaffirmed the Basic Structure Doctrine.
  • It also struck down the expanded scope of Article 31C, which had given precedence to all DPSPs over Fundamental Rights under Articles 14, 19, and 31. The Court held that the harmony between Fundamental Rights and Directive Principles is a part of the basic structure.
• 44th Constitutional Amendment Act, 1978: Enacted by the Janata Party government (Prime Minister Morarji Desai), this amendment reversed many of the changes introduced by the 42nd Amendment, including:
  • Restored the term of Lok Sabha and State Assemblies to 5 years.
  • Restored the original broad scope of High Courts’ writ jurisdiction (Article 226).
  • Removed the provision that made the President bound by the advice of the Council of Ministers, allowing for reconsideration (Article 74).
  • Replaced the ‘right to property’ from a Fundamental Right (Article 31) to a legal right (Article 300A).
  • Introduced safeguards regarding the proclamation of National Emergency (Article 352).

Quick Recap for PSC

• The 42nd Constitutional Amendment Act, 1976, is known as the ‘Mini Constitution’.
• It was enacted during the National Emergency (1975-1977) by the Indira Gandhi government.
• The words ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the Preamble.
• Part IVA and Article 51A, containing 10 Fundamental Duties, were introduced.
• The term of Lok Sabha and State Assemblies was extended from 5 to 6 years (later reversed by 44th CAA, 1978).
• The President was made bound by the advice of the Council of Ministers (later modified by 44th CAA, 1978).
• New DPSPs (Articles 39A, 43A, 48A) were added to Part IV.
• Five subjects were transferred from the State List to the Concurrent List (e.g., Education, Forests).
• Part XIVA (Articles 323A, 323B) for Administrative and other Tribunals was inserted.
• The Supreme Court in Minerva Mills v. Union of India, 1980, struck down key provisions of the 42nd CAA, reaffirming the Basic Structure Doctrine.