Lessons from India’s 42nd Constitution amendment: History revisited

The making of the 42nd Constitution amendment – whose 46th anniversary falls today – and its subsequent substantial reversal reminds us of the extraordinary power of the Indian people to restore the founding principles of the Constitution, subjected to erosion by those in power, from time to time.

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ON December 18, 1976, the then President, Fakhruddin Ali Ahmed, gave his assent to the Constitution (Forty Second Amendment) Act, 1976. The Bill was earlier passed by the Lok Sabha on November 2, 1976 and the Rajya Sabha on November 11, 1976. While only five members opposed the Bill in the Lok Sabha, there was none to oppose it in the Rajya Sabha. Those who recorded their opposition to the amendment were rebels from within the ruling Indian National Congress party. Twenty-one MPs, all from opposition parties, were held in jail under preventive detention laws such as the Maintenance of Internal Security Act, 1971.

The Bill, as passed by both the Houses of Parliament, was ratified by 16 state assemblies, all being states where the Congress party was in power.

This amendment, indeed, was the most substantial of all the amendments to the Constitution until then. It included deletion of several provisions, changes in many others, and adding a host of Articles to the Constitution. All these, together, turned the Constitution into a qualitatively different text from the one that was adopted on November 26, 1949. The amendment reduced the Constitution into a thing that could be played with by the political establishment by inserting clauses that rendered legislative acts beyond the purview of judicial review. In this, the majority decision of the Supreme Court in the landmark Kesavananda Bharati case of 1973 – that enunciated the Basic Structure Doctrine – was buried.