An Analysis of 42nd Constitutional Amendment Act (CAA 1976)

The Constitution of a nation establishes the fundamental framework for the government, allocates authority among the many state organs, identifies the nation’s objectives, such as democracy, integration, secularism, etc., and protects citizens’ fundamental rights. The 42nd Constitutional Amendment Act (CAA, 1976), gains relevance based on these principles of the Constitution. It introduced new provisions in addition to changing the ones that were already there. As a result, the 42nd Constitutional Amendment Act is also referred to as the “Mini Constitution of India.”

Background of the 42nd Constitutional Amendment Act:

The major events that led to the declaration of emergency by the Indira Gandhi government and the passage of the 42nd Constitutional Amendment are as follows: 

• The Golaknath v. State of Punjab, 1967 case led to friction between Indira Gandhi’s government and the judiciary. 
• In a lawsuit filed by Raj Narain against Indira Gandhi for electoral fraud and using government resources for the 1971 general election campaign, the 1-judge bench of the Allahabad High Court found her guilty and consequently ruled her election invalid and forbade her from running in elections for 6 years.
• The political opposition, led by Jaya Prakash Narayan, started anti-government demonstrations and demanded Indira Gandhi resign from her position as Prime Minister. 
• Additionally, the modification was a response to the Kesavananda Bharati verdict (1973), which had curtailed the parliament’s ability to amend the constitution.
• The government proclaimed a state of emergency on June 25, 1975, citing “internal turmoil” and after an emergency, the 42nd Constitutional Amendment was passed in 1976.

Major Amendments under the 42nd Constitutional Amendment Act:

Following are the major amendments enacted under the 42nd CAA:

• Preamble: Added three new words: “Socialist,” “Secular,” and “Integrity.”
• Fundamental Rights (FRs): Added the relevant provisions to the constitution for suspension of FRs during emergencies.
• Directive Principles of State Policies (DPSPs): Gave precedence to DPSPs over the Fundamental Rights. It added 3 DPSPs and amended one DPSP, they are: 
• Article 39: To provide children with the opportunities necessary for their healthy growth.
• Article 39A: To advance equal justice and offer the needy free legal assistance.
• Article 43A: To ensure that workers are involved in the management of industries.
• Article 48A: To safeguard forests and wildlife, as well as to protect and develop the environment.
• Concurrent List (Schedule VII): It transferred 5 subjects from the state list to the concurrent list. They are education, forests, weights and measures, protection of wild animals and birds, and administration of justice.
• Added Fundamental Duties (FDs): Added Part IV-A (Article 51A), under which 10 FDs were included, based on recommendations of the Swaran Singh Committee (1976).
• Added Part XIV A: Titles ‘Tribunals dealing with Administrative matters’(Article 323A) & ‘Tribunals for other matters’ (Article 323B).
• Amended Article 102 (1)(a): Provided for disqualification if a person holds any such office of profit under the Government of India or the Government of any State as is declared by Parliamentary law. The power to disqualify the offices’ vests in the Parliament, and not in the State Legislature.
• President: Prescribed President to act in accordance with the advice of the Council of Ministers (CoM).
  • This was modified by the 44th CAA (1978), which provided that the President could send back the advice once for reconsideration. Therefore, he must approve if the advice comes back after reconsideration from the CoM.

A. Parliament:

• Article 257A: Centre can send police forces into the state to deal with law-and-order issues.
• Article 329A: Gave discretionary powers to the Prime Minister and the Speaker of the Lok Sabha.
• FRs were subordinated to DPSPs, and any law passed by Parliament to that effect was exempt from judicial scrutiny by the court.
• State legislatures and Parliament no longer require quorums.
• Granted power to the Parliament to regularly decide on the privileges and rights of its committees and members.
• The term length for the Lok Sabha and state legislative bodies was increased from 5 years to 6 years.
• Froze the reorganization of boundaries of parliamentary constituencies till the first census after 2000 i.e 2001.

B. Judiciary:

• Limited the High Courts’ ability to conduct judicial reviews.
• Allowed for the All-India Judicial Service to be established.
• Any law introduced at the Union level must be decided upon by a 7-judge bench of the Supreme Court.
• Only such a bill can be declared unconstitutional by a judgment that has a 2/3rd majority of the bench.

C. Social and Economic Democracy:

• Social democracy is a form of government that shares socialist ideals but operates within a capitalist framework. It upholds democratic principles of equality in class status, social protection, and social welfare.
• Economic democracy advocates for everyone to benefit from economic growth, especially the underprivileged and poorer segments of society. It does not seek to abolish private property but aims to limit private property so that it can be used for the good of the country rather than eliminate it. Thus, favouring a “mixed economy” rather than a “socialist economy” or “capitalist economy”.

The 42nd CAA explicitly reinforces Economic and Social Democracy:

• 42nd CAA aimed to implement the socialist ideals and overcome any constitutional and legal obstacles, to develop and widen targeted poverty eradication programs.
• Political justice comes after social and economic fairness in the Preamble and the 42nd CAA tried to make it practical.
• Embody the welfare state concept, therefore aids courts in assessing and determining whether a statute is constitutional in light of socio-economic propriety.
• The constitution stipulates that DPSPs, although not enforceable in courts, are essential to government policies. But 42nd CAA made DPSP above FRs in some cases.
• According to the Supreme Court, the main goals of “Democratic Socialism” are to eliminate income, status, and lifestyle inequalities and to give poor people a good standard of living. 
• Examples of socio-economic policies successfully implemented under the socialism aspect introduced under the 42nd CAA are: the establishment of the National Legal Services Authority (NALSA), enforcement of the Environment Protection Act (1986), and poverty eradication programs (like MGNREGS, PDS), etc.
• Five Year Plans (taken from the erstwhile USSR), the nationalization of banks, and the establishment of public sector undertakings (PSUs) made the goals of social and economic democracy evident and the 42nd CAA  made it further easier. 
• Thus, the objective of social and economic democracy, which was already ingrained in both the Indian constitution and government, was made explicit by the 42nd CAA.

Critique of the 42nd CAA in terms of Socio-Economic Democracy:

• As Preamble and the DPSPs are still non-justiciable and non-enforceable in nature and the government is not being held responsible for implementing socio-economic principles inscribed in the Preamble and DPSPs..
• Giving preference to DPSPs over FRs curtails socio-economic freedoms provided under Part III of the constitution.
• Certain principles are subjective and open to interpretation (E.g. cow slaughter), making them open to interpretation.
• K.C. Wheare states the directives as “a manifesto of aims and aspirations”.
• According to K.T. Shah, DPSPs are “a bank check that is only payable when the bank’s resources allow”.
• Also, B. R. Ambedkar rejected the explicit declaration of India’s social and economic structure in the constitution, considering that doing so would destroy democracy by depriving the right of the people to decide what should be the social organization in which they choose to live.
• Hence, the 42nd CAA’s many socio-economic democratic changes were revoked by the 44th CAA.

Conclusion:

Even though the 42nd CAA amendment is regarded as the most controversial in the history of the Indian Constitution, many of its provisions have remained in place for years. They are still in force today as they are viewed advantageously. Indian democracy functions as a self-improving and self-correcting system. With time, political democracy in India also strengthened the economic and social democracy, as there is a tremendous amount of hope that our democracy will continue to flourish and inspire others as long as the average Indian upholds both democratic ideas and syncretistic cultural practices.