Last week was the 39th anniversary of the ‘internal emergency’ imposed by Indira Gandhi. To call the era that lasted a little shy of two years as the ‘dark period’ would be too stark, because what it did to India and her democracy was to add more and more layers of grey.
The Emergency was imposed on the night of 26th June 1976 and by September, Mrs Gandhi had instructed Swaran Singh, then her Minister of External Affairs to prepare a report “to study the question of amendment of the Constitution in the light of experience”. One must bear in mind the fact that the Emergency itself was thrust upon the nation by Mrs Gandhi after the Allahbad High Court had struck down her election to the Lok Sabha from Rae Bareily and ruled that it found her guilty of electoral malpractices. The decision also banned her from contesting elections for 6 years. Mrs Gandhi was successful in obtaining a stay on this judgment from the Supreme Court and went on to switch off every limb and organ of our democratic structure.
Swaran Singh presented a report that went on to be the draconian 42nd Constitutional Amendment Act of 1976. This Amendment altered and trampled over every portion of the Constitution, including its Preamble. The design of Swaran Singh’s Report and the ensuing 42nd Amendment was to make the Parliament sovereign by according it unbridled powers to amend any part of the Constitution. In 1973, a decision of 13 Supreme Court judges Kesavanada Bharati v/s State of Kerala had laid down the principle of ‘Basic Structure’, which would be protected from any Constitutional Amendment. The 42nd Amendment also made the judiciary weaker and a pawn of the Parliament by a bizarre dictat that made the Directive Principles of State Policy override the Fundamental Rights. Also, a new ‘10 commandment’ Fundamental Duties were inserted in the Constitution.
Courts emasculated: The courts were entirely excluded to hear election disputes as per this Amendment – perhaps to defeat Indira Gandhi’s fate when it came up before the Courts. The Amendment also sought to grant lifelong immunity from civil or criminal prosecution to the President, Vice President, Speaker and the Prime Minister.
The independence of the judiciary was muzzled by making judicial remedy under Art 32 available only if Fundamental Rights were denied under Central Laws. The Amendment to Article 368 (amendment of the Constitution) prevented any constitutional amendment from being “called in question in any Court on any ground”. It also affirmed that there would be no limitation whatever on the Constituent power of Parliament to amend by way of definition, variation or repeal the provisions of the Constitution.
President’s role diminished: The 42nd Amendment was the one which rendered the President a mere rubber stamp, or to use a more politically correct expression “as titular head of the country”. Article 74 was amended and it was stated in no uncertain terms that “the President shall act in accordance with the advice of the Council of Ministers.” Article 352 was altered and it empowered the President to vary proclamation of Emergency, which he could not do previously.
States marginalized: Prior to the 42nd Amendment, the proclamation of Emergency under Article 356 was mandated to seek Parliament’s approval at the end of six months, this period was extended to one year. States, after the lifting of President’s Rule, had to enact new laws to undo the emergency provisions, by amending Article 357. The Amendment also gave the Union Government the right to authorize the use of any central military force “for dealing with any grave situation of law and order in any State.” The President was empowered, in consultation with the Election Commission, to disqualify members of State Legislatures.
Directive Principle override Fundamental Rights: The amendment to Article 31C empowered all Directive Principles to ride over the Fundamental Rights, by stating that “no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights”.
Preamble Amended: Thanks to the 42nd Amendment, from a “sovereign democratic republic”, India became a “sovereign, socialist secular democratic republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation”. Legal experts criticized this move because of the ambiguity of the word ‘socialist’ and more so because there were already socialist provisions in the Constitution. Reference were made to the Constitutional Assembly debates where the proposal of the words “Secular, Federal, Socialist” nation were already discussed and were turned down by the Drafting Committee under Dr Ambedkar.
The effects of the 42nd Amendment were watered down by the 43rd and 44th Amendment that was passed by the Janata government that came to power after the lifting of the emergency. In the landmark case of Minerva Mills (1980), the Supreme Court resettled the supremacy of Fundamental Rights over Directive Principles of State Policy.
(Harshvardhan Bhatkuly is a lawyer, writer and reluctant social commentator)
