The Relation between the 42nd Amendment and 44th Amendment explained by Bharatee Preeya A.K.
The most controversial and debatable piece of constitutional amendment ever taken in India since 1950 was none other than the Forty-second Amendment. The Constitutional Act,1976 received the assent of the president on 18th December 1976. Some of the provisions became operative on 3rd January 1977, while the rest was enforced from 1st February 1977. This amendment amended the preamble of the constitution, 40 articles, and Seventh Schedule, and added 14 new articles to the constitution. A fundamental objection against this amendment is that it was undertaken at the time of emergency period when most of the members of the opposition were detained in preventive detention and where free, frank, and fair discussion of the arguments on for and against the proposed modification is impossible. The numerous changes which were brought by this amendment had greater significance but most of the amendments sought to tilt the balance of power in favor of the executive and away from the other two organs that is the judiciary and the legislative. The amendment also strengthens parliament in various ways which in effect added to the powers of the Central Government besides their existing powers. The main justification provided by the Law Minister on behalf of the Central Government in justifications of the various modifications being brought in the constitution by the 42nd amendment was:
The Supremacy of the Parliament should be asserted, especially in respect of its constituent power under article 368 which should be uncontrolled and subject to no judicial review; hurdles and the obstacles in the way of enactment of socio-economic legislation should be removed so that the pace of improvement of the conditions of the masses may be accelerated and this could be achieved by declaring the directive principles overrides the fundamental rights;
The sense of the confrontation between the judiciary and the parliament should be removed to achieve this; powers of the courts need to be curtailed somewhat and jurisdiction of the courts redefined with greater precision.
The constitution act, (44th Amendment) was passed in 1978, removed most of its aberrations and distortions introduced into the constitution by the 42nd amendment of the constitution. The 44th amendment ought to amend a few other provisions of the constitution to achieve certain objectives
- To ensure the Fundamental rights were not restricted or taken away by a transient majority in the parliament and to provide adequate safeguards
- To take away the controversial rights of property right out of the fundamental right and make it an ordinary legal right
- To ensure that power to proclaim an emergency under Article 352 was used properly and after due consideration and deliberation it was not misused for personal or partisan ends
- To ensure that the fundamental structure of the constitution was not lightly interfered with by parliament in the exercise of its constitutional amendment under Article 368.
Relation of the 42nd Amendment with 44th amendment:
There was huge public emotion against the 42nd amendment that one of the major election issues in the sixth general election was the repeal of the 42nd amendment and the Janata Party won the election and redeemed its pledge by enacting the 43rd and the 44th amendment to the constitution and to undo most of the provisions of the 42nd amendment. The 44th amendment as stated above were brought in bringing the rectifications of the errors made in the 42nd amendment.
Impact of the 44th amendment on the 42nd amendment:
The 42nd amendment had extended the life of the Lok Sabha and the state legislative assemblies from five years to six years which was reduced back to five years by the 44th amendment. The 42nd amendment had amended article 103 as regards the procedure to decide the question of disqualifications of members of the parliament. The 44th amendment had restored the position of Article 103 of the constitution to its original position as same before the 42nd amendment. The disqualification of the member of the house parliament and state legislative was changed.
Article 102(1) (a) which was amended by the 42nd amendment regarding the “office of Profit” was restored its original position by the 44th amendment.
The changes made therein by the constitutional amendment 42 which is taking away the powers of the courts to declare what was an “office of profits”. The court retrieved back its power to decide whether an office is an office of profit. Article 105 and Article 194 of the constitution dealing with the privileges of the parliament and state legislature which had been amended by the Constitutional Amendment 42 to drop partially the reference to the House of Commons. The Constitutional amendment 44 had firstly canceled the amendments made by the 42nd amendment and then amended the articles 105(3) and Article 194(3) to drop completely any references to the house of commons in the future. The privileges enjoyed by the House of Parliament or State Legislature or any of its committees of members would henceforth be the same as existing before the 42nd amendment.
The 42nd amendment had amended Article 74 to make ministerial advice binding on the president. The President was left without any option except to act by the ministerial advice. This provision was not amended by the 44th constitutional amendment but a new proviso was added by the amendment to Article 74(1), by that the president remains bound by the ministerial advice he now gets a limited right to refer the matter back to the Council of Ministers for reconsideration.
The 42nd Amendment barred the courts requiring the production of Business Rule made by the central or a state government. For this purpose clause (4) was added to articles 77 and 166 of the constitution. The 44th amendment repealed the new clause (4) and thus enabled the courts to require the government to produce its Rules of Business, if necessary to decide a controversy before them.
The 42nd amendment had added Article 139A, to enable Supreme Court in certain circumstances to withdraw cases from the High Court and decide them themselves. 44th Amendment continued this provision subject to modifications. Previously the court could do so only on the application of the Attorney-General. Now, 44th Amendment enabled the court to do so additionally either suo-motto or on the application of a party of such. Constitutional Amendment 42nd had made provisions for the appointment of the distinguished jurists as the Judge of the High Court and this provision was repealed by the 44th Amendment.
The 42nd amendment had amended Article 225 to re-impose on the original jurisdiction of the High Court’s restrictions regarding matters concerning revenue or acts done in collection thereof. 44th amendment again amended Article 225 so as to remove this bar on High Court’s Original Jurisdiction. The 42nd amendment which had amended Article 226( Jurisdiction of the High court) Article 227 (divest the High Court’s power of superintendence over the tribunals) was restored to its original position by the 44th amendment.
The 44th amendment and the 42nd amendment had close interrelations as stated above. In other words, the 44th Amendment of the constitution had negative most of the distortions introduced into the constitution by the 42nd Amendment. However, there was an additional remark stated that the 44th amendment didn’t propose the changes as far as the Constitutional Forty-fifth Amendment Bill which contains more significant provisions which were absent by the 44th amendment. The bill also tries to bring the referendum in the constitution which had been failed in Rajya Sabha. The bill ought to amend Article 31c so as to restricts its scope to what it was before the 42nd constitutional Amendment. The word secular and the socialist which were brought by the 42nd amendment was significantly explained by the 45th amendment bill, not by the 44th amendment. The Bill was considered the tool to fulfill the lacunas that the 44th amendment had made while distorting the 42nd amendment.
44th constitutional amendment Bill
NARENDRA KUMAR, Constitutional Law, Constitutional Amendments,1205-1206(Allahabad law agency),(10th ed.2018)