Examine the effects of the 42nd Amendment on the balance of power between the legislature, executive branch, and courts. The 42nd Amendment is also referred to as the “Constitution’s funeral.” What efforts were made to reverse the impacts of this amendment and how did it change the constitutional landscape?
Akash PatelBegginer
The 42nd Amendment Act of 1976 made significant changes to the Indian Constitution, aiming to strengthen parliamentary sovereignty and reduce judicial review. There are some factors illustrating its impact on the balance of power:-
1. Parliamentary sovereignty – The amendment sought to assert the supremacy of Parliament over other institutions by limiting judicial review, making certain fundamental rights non-justiciable, and expanding Parliament’s amendment powers.
2. Reducing Judicial Review – It restricted the scope of judicial review over constitutional amendments and other legislative actions, thereby curtailing the judiciary’s ability to strike down laws or amendments deemed unconstitutional.
3. Centralisation of Power – The 42nd Amendment centralised power in the hands of the executive and the Parliament, giving them broader authority to enact laws and amend the Constitution without significant checks from the judiciary.
4. Impact on Fundamental Rights – Some fundamental rights were altered or reinterpreted, with a focus on promoting socialist principles and limiting challenges to government actions.
Subsequent Efforts to Undo Its Effects-
1. 43rd and 44th Amendments
These subsequent amendments were passed in response to the overreach perceived in the 42nd Amendment. The 43rd Amendment (1977) and the 44th Amendment (1978) aimed to restore certain checks and balances,for example:-
The 43rd Amendment reinstated some fundamental rights that were curtailed.
The 44th Amendment reversed many of the changes made by the 42nd Amendment, restoring judicial review powers and reducing the supremacy of Parliament in amending the Constitution.
2.Judicial Activism – The judiciary, particularly the Supreme Court of India, played a crucial role in interpreting and restoring the balance of powers post the 42nd Amendment. It asserted its authority to review legislative and executive actions, ensuring they conform to constitutional principles.
3. Public and Political Backlash – The amendments faced significant public and political backlash, with critics arguing that they undermined democracy and fundamental rights. This pressure contributed to subsequent amendments that aimed to correct perceived imbalances.
Therefore, the 42nd Amendment had a profound impact on the balance of power in India’s constitutional framework, tilting it towards parliamentary sovereignty and centralising power in the executive and legislative branches. Subsequent efforts, including constitutional amendments and judicial actions, sought to restore the constant checks and balances intended by the framers of the Indian Constitution.
The 42nd Amendment, enacted in 1976 during the Emergency, is widely regarded as one of the most controversial and far-reaching amendments to the Indian Constitution. It had a significant impact on the balance of power between the judiciary, executive, and legislature, and its effects were widely debated in the years that followed.
Impact on the Balance of Power:
The 42nd Amendment significantly enhanced the powers of the Parliament and the Executive at the expense of the Judiciary. Some of the key changes it introduced include:
1.Curtailing Judicial Review: The amendment explicitly stated that the Constitution’s Fundamental Rights could not be challenged on the grounds of violation of basic structure. This severely limited the Judiciary’s power of judicial review, which had been established as a core feature of the Constitution through the Kesavananda Bharati case.
2. Strengthening Parliamentary Supremacy: The amendment gave Parliament the power to amend any part of the Constitution, including the Fundamental Rights, without any substantive limitations. This effectively undermined the Judiciary’s role as the guardian of the Constitution.
3. Expanding the Directive Principles: The 42nd Amendment added several new Directive Principles, further entrenching the state’s role in the social and economic spheres, and potentially allowing for greater interference in individual rights.
4. Diluting the Federal Structure: The amendment shifted the balance of power towards the Union government, reducing the autonomy of the States and centralizing decision-making authority.
Reshaping the Constitutional Landscape:
The 42nd Amendment was widely criticized for transforming the Indian Constitution from a system of checks and balances to one that favored parliamentary supremacy and executive dominance. It was seen as a blatant attempt to consolidate the ruling party’s power and undermine the independence of the Judiciary.
The amendment’s impact was far-reaching, as it threatened to erode the core principles of India’s constitutional democracy, such as the separation of powers, federalism, and the protection of fundamental rights.
Efforts to Undo the Effects:
In the aftermath of the Emergency, there were concerted efforts to undo the effects of the 42nd Amendment and restore the balance of power between the branches of government.
The 43rd Amendment: Enacted in 1977, this amendment partially reversed the 42nd Amendment, restoring the Judiciary’s power of judicial review and limiting Parliament’s ability to amend the Constitution’s basic structure.
The Minerva Mills Case: In this landmark judgment, the Supreme Court ruled that the 42nd Amendment’s provisions limiting judicial review were unconstitutional, reaffirming the Judiciary’s role as the guardian of the Constitution.
Subsequent Amendments: The 44th, 73rd, and 74th Amendments further decentralized power and strengthened the federal structure, partially undoing the centralizing tendencies of the 42nd Amendment.
Despite these efforts, the legacy of the 42nd Amendment continues to be debated, with ongoing discussions on the appropriate balance of power between the three branches of government and the need to preserve the Constitution’s core principles.
The 42nd Amendment remains a significant chapter in India’s constitutional history, serving as a cautionary tale about the dangers of unchecked legislative power and the importance of maintaining a robust system of checks and balances.