Constitution Law Ii

CONSTITUTION LAW II

TOPIC: “The 42ND And the 44TH Amendments to the Constitution of India”. SUBMITTED BY:AMIT SIKHWAL BCOM LLB SEM -V ROLL NO. -02

GUIDED BY:MS. ANUSHA RAI ASST. PROF OF LAW

Indian Institute of Legal Studies Dagapur, Matigara, Siliguri, Darjeeling, West Bengal 734010

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ACKNOWLEDGEMENT With profound gratitude and sense of indebtedness I place on record my sincerest thank s to Ms. Anusha Rai, Asst. Prof in Law, Indian Institute of Legal Studies, for her invalua ble guidance, sound advice and affectionate attitude during the course of my studies. I have no hesitation in saying that she molded raw clay into whatever I am through his incessant efforts and keen interest shown throughout my academic pursuit. It is due to his patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information therein. I also express my regards to the Library staff for cooperating and making available the books for this project research paper. Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project work.

________________ Teacher’s Signature

Student’s Signature

Date: __/__/____

Date:

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SYNOPSIS

1. INTRODUCTION The Constitution of India is the world's lengthiest written constitution with 395 articles and 8 schedules. It contains the good points taken from the constitution's of many countries in the world. It was passed on 26 Nov 1949 by the 'The Constituent Assembly' and is fully applicable since 26 Jan 1950. The Constituent Assembly had been elected for undivided India and held its first sitting on 9th Dec.1946, reassembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). At the time of signing 284 out of 299 members of the Assembly were present 2. RESEARCH METHODOLOGY The research methodology used is completely doctrinal which includes books, and websites. 2. OBJECTIVE OF THE STUDY To have a brief discussion about the 42nd and 44th amendment of the constitution. 3.1 Scope of the study The aim and objective of this project is to know about the 42nd and 44th amendment of constution

3.3 Data Collection Process The research methodology used is completely doctrinal which includes books, and websites. Websites http://www.yourarticlelibrary.com/indian-constitution/the-significance-of-the-forty-fourthamendments-to-the-constitution-of-india/5505 http://www.legalservicesindia.com/law/article/1256/10/Changes-in-Constitutional-Forty-SecondAmendment-Act http://www.suramya.com/india/india_constitution.php https://medium.com/tathya-india/features-of-the-indian-constitution-a63c776f329d http://www.suramya.com/india/india_constitution.php 3

CONTENT S.NO

TOPIC

PG.NO.

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INTRODUCTION

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FEATURES OF INDIAN CONSTITUTION

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THE 42ND AMENDMENT OF THE CONSTITUTION

09-11

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CHANGES IN THE CONSTITUTION AFTER 42ND

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AMENDMENT 05

THE 44TH AMENDMENT OF THE CONSTITUTION

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CHANGES IN THE CONSTITUTION AFTER 44TH

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AMENDMENT

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CHAPTER 1:- INTRODUCTION The Constitution of India is the world's lengthiest written constitution with 395 articles and 8 schedules. It contains the good points taken from the constitution's of many countries in the world. It was passed on 26 Nov 1949 by the 'The Constituent Assembly' and is fully applicable since 26 Jan 1950. The Constituent Assembly had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947, as The Sovereign Constituent Assembly for the dominion of India. In regard to its composition the members were elected by indirect election by the members of The Provisional Legislative Assemblies (lower house only). At the time of signing 284 out of 299 members of the Assembly were present.1 The constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It follows a British parliamentary pattern with a lower and upper house. It embodies some Fundamental Rights which are similar to the Bill of Rights declared by the United States constitution. It also borrows the concept of a Supreme Court from the US. India is a federal system in which residual powers of legislation remain with the central government, similar to that in Canada. The constitution provides detailed lists dividing up powers between central and state governments as in Australia, and it elaborates a set of Directive Principles of State Policy as does the Irish constitution. The constitution has provision for Schedules to be added to the constitution by amendment. The ten schedules in force cover the designations of the states and union territories; the emoluments for high-level officials; forms of oaths; allocation of the number of seats in the Rajya Sabha. A review of the constitution needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. The Indian constitution is one of the most frequently amended constitutions in the world. Infact the first amendment to it was passed after only a year of the adoption of the constitution and instituted numerous minor changes. Many more amendments followed, a

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rate of almost two amendments per year since 1950. Most of the constitution can be amended after a quorum of more than half of the members of each house in Parliament passes an amendment with a two-thirds majority vote. Articles pertaining to the distribution of legislative authority between the central and state governments must also be approved by 50 percent of the state legislatures PREAMBLE We, The people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do hereby Adopt, Enact and give ourselves this Constitution.

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CHAPTER 2:- FEATURES OF INDIAN CONSTITUTION FEATURES OF THE INDIAN CONSTITUTION2 The constitution is a fundamental law of a country that reflects the fundamental principles on which the government of the country is based. In this article, learn some of the interesting features of the Indian Constitution. THE BULKIEST CONSTITUTION OF THE WORLD The Indian constitution is one of the bulkiest constitution of the world, comprising of 395 articles, 22 parts and 12 schedules. So far the constitution underwent 100 amendments (28 May, 2015). RIGIDITY AND FLEXIBILITY The Indian constitution is combination of rigidity and flexibility, which means some parts of it can be amended by the Parliament by a simple majority, whereas some parts require a two-third majority as well as not less than one-half of the state legislatures. PARLIAMENTARY SYSTEM OF GOVERNMENT The Indian constitution provides for a parliamentary system of government, i.e., the real executive power rests with the council of ministers and the President is only a nominal ruler (Article 74). FEDERAL SYSTEM WITH A UNITARY BIAS The Indian constitution described India as a 'Union of States' (Article 1), which implies that Indian federation is not the result of any agreement among the units and the units cannot secede from it. FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES The Indian constitution provides an elaborate list of Fundamental Rights to the citizens of India, which cannot be taken away or abridged by any law made by the states (Article 12–

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35). Similarly, the constitution also provides a list of 11 duties of the citizens, known as the Fundamental Duties (Article 51A). DIRECTIVE PRINCIPLES OF STATE POLICY The Indian constitution mentions certain Directive Principles of State Policy (Article 36– 51) which that government has to keep in mind while formulating new policy. SECULARISM The constitution makes India a secular state by detaching from religious dogmas (Fortysecond Amendment). INDEPENDENT JUDICIARY The constitution provides an independent judiciary (Article 76) which ensures that the government is carried on in accordance with the provisions of the constitution and acts as a guardian of the liberties and fundamental rights of the citizens. SINGLE CITIZENSHIP The Indian constitution provides a single citizenship for all the people residing different parts of the country and there is no separate citizenship for the states (Article 5–11). BICAMERAL LEGISLATURES The Indian constitution provides a bicameral legislatures at centre consisting of Rajya Sabha (Council of States) and Lok Sabha (House of the People) (Article 79). EMERGENCY POWERS The constitution vests extraordinary powers, known as Emergency Powers in the President during emergencies out of armed rebellion or external aggression or due to failure of constitutional machinery in the state (Article 352–360). SPECIAL PROVISIONS FOR MINORITIES The constitution makes special provisions for minorities, Scheduled castes, Scheduled Tribes, etc. by granting them certain special rights and provisions.

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Basically those are some of the interesting features of Indian constitution. Moreover, the constitution also has many other features such as, Panchayati Raj, Rule of Law, Provisions for Independent Bodies, etc. which are very unique in nature.

CHAPTER 3:- THE 42ND AMENDMENT OF THE CONSTITUTION The 42nd amendment to Constitution of India,3 officially known as The Constitution (Forty-second amendment) Act, 1976, was enacted during the Emergency (25 June 1975 – 21 March 1977) by the Indian National Congress government headed by Indira Gandhi. Most provisions of the amendment came into effect on 3 January 1977, others were enforced from 1 February and Section 27 came into force on 1 April 1977. The 42nd Amendment is regarded as the most controversial constitutional amendment in Indian history. This was the first instance when the amendment had wholly come up with personal ambitions at the period of Emergency imposed by Indira Gandhi. It attempted to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws. It laid down the Fundamental Duties of Indian citizens to the nation. This amendment brought about the most widespread changes to the Constitution in its history, and is sometimes called a "miniConstitution" or the "Constitution of Indira". Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted. The amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward parliamentary sovereignty. It curtailed democratic rights in the country, and gave sweeping powers to the Prime Minister's Office.[4] The amendment gave Parliament unrestrained power to amend any parts of the Constitution, without judicial review. It transferred more power from the state governments to the central government, eroding India's federal structure. The 42nd Amendment also amended Preamble and changed the description of India from "sovereign democratic republic" to a "sovereign, socialist secular democratic republic", and also changed the words "unity of the nation" to "unity and integrity of the nation".

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The Emergency era had been widely unpopular, and the 42nd Amendment was the most controversial issue. The clampdown on civil liberties and widespread abuse of human rights by police angered the public. The Janata Party which had promised to "restore the Constitution to the condition it was in before the Emergency", won the 1977 general elections. The Janata government then brought about the 43rd and 44th Amendments in 1977 and 1978 respectively, to restore the pre-1976 position to some extent. However, the Janata Party was not able to fully achieve its objectives. On 31 July 1980, in its judgement on Minerva Mills v. Union of India, the Supreme Court declared unconstitutional two provisions of the 42nd Amendment which prevent any constitutional amendment from being "called in question in any Court on any ground" and accord precedence to the Directive Principles of State Policy over the Fundamental Rights of individuals respectively. This respectively amends mostly of whole constitution, hence is called as mini constitution.

PROPOSAL AND ENACTMENT The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok Sabha on 1 September 1976, as the Constitution (Forty-Second Amendment) Bill, 1976 (Bill No. 91 of 1976). It was introduced by H. R. Gokhale, then Minister of Law, Justice and Company Affairs. It sought to amend the Preamble and articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357, 358, 359, 366, 368 and 371F and the Seventh Schedule. It also sought to substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A and 257A in the Constitution. In a speech in the Lok Sabha on 27 October 1976, Gandhi claimed that the amendment "is responsive to the aspirations of the people, and reflects the realities of the present time and the future". The bill was debated by the Lok Sabha from 25 to 30 October and 1 and 2 November. Clauses 2 to 4, 6 to 16, 18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50 and 56 to 59 were adopted in their original form. The remaining clauses were all amended in the Lok Sabha before being passed. Clause 1 of the bill was adopted by the Lok Sabha on 1 November and amended to replace the name "Forty-fourth" with "Forty-second", and a similar amendment was made on 28 October to Clause 5 which sought to introduce a new article 31D to the Constitution. Amendments to all the other clauses were adopted on 1 November and the bill 10

was passed by the Lok Sabha on 2 November 1976. It was then debated by the Rajya Sabha on 4, 5, 8, 9, 10 and 11 November. All amendments made by the Lok Sabha were adopted by the Rajya Sabha on 10 November, and the bill was passed on 11 November 1976. The bill, after ratification by the States, received assent from then President Fakhruddin Ali Ahmed on 18 December 1976, and was notified in The Gazette of India on the same date. Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54 and 58 went into effect from 1 February 1977 and Section 27 from 1 April 1977.

CHAPTER 4:- CHANGES IN CONSTITUTION AFTER 42ND AMENDMENT In Preamble4 Two changes were made in the Preamble. Firstly, the Characterisation of India as Sovereign democratic republic has been changed to Sovereign socialist, secular democratic republic and Secondly, the words “unity of nation were changed to unity and integrity of the nation. Parliament and State Legislature The Number of seats for SC and ST tribes in Lok Sabha was also frozen. A person holding an office of profit is disqualified from the membership of Parliament or a State Legislature and the court’s power to declare what was an office of profit was ceased. Judiciary Earlier to 42nd Amendment, Indian Judiciary was unified, but the amendment restricted the power of High Court to only adjudicate upon the validity of State legislation and Supreme court on Central legislation. Emergency Provisions Article 352 was amended to authorize the President to declare Emergency not only throughout the country and but also in any part. For this, some necessary changes were made in Article 353, Article 358, and Article 359. Fundamental Rights and Directive Principles Through the change in Article 31-C, an attempt was made to give primacy to DPSP over Fundamental rights. Though no change was made directly in the articles related to fundamental rights. The amendment added few more Directive Principles, viz Article 39-A, Article 43-A, Article 48-A. Article 39 (f) was also redrafted. Article 31C was amended and provided that no law giving effect to Directive Principles will be held void for being inconsistent with any of the rights conferred by Article 14, article 19, 4

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or article 31. It was one of the most controversial provisions of the amendment – Prioritizing state policy director principles in comparison to fundamental rights CHAPTER 5 :- THE 44TH AMENDMENT OF THE CONSTITUTION STATEMENT OF OBJECTS AND REASONS Recents experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill. 2. It is, therefore, proposed to provide that certain changes in the Constitution which would have the effect of impairing its secular or democratic character, abridging or taking away fundamental rights prejudicing or impeding free and fair elections on the basis of adult suffrage and compromising the independence of judiciary, can be made only if they are approved by the people of India by a majority of votes at a referendum in which at least fiftyone per cent. of the electorate participate. Article 368 is being amended to ensure this. 3. In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to article 19 and article 31 is being deleted. It would, however, be ensured that the removal of property from the list of fundamental rights would not affect the right of minorities to establish and administer educational institutions of their choice. 4. Similarly, the right of persons holding land for personal cultivation and within the ceiling limit to receive compensation at the market value would not be affected. 5. Property, while ceasing to be a fundamental right, would, however, be given express recognition as a legal right, provision being made that no person shall be deprived of his property save in accordance with law.

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6. A Proclamation of Emergency under article 352 has virtually the effect of amending the Constitution by converting it for the duration into that of a Unitary State and enabling the rights of the citizen to move the courts for the enforcement of fundamental rights---including the right to life and liberty---to be suspended. Adequate safeguards are, therefore, necessary to ensure that this power is properly exercised and is not abused. It is, therefore, proposed that a Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion. Internal disturbance not amounting to armed rebellion would not be a ground for the issue of a Proclamation. 7. Further, in order to ensure that a Proclamation is issued only after due consideration, it is sought to be provided that an Emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet. In addition, as a Proclamation of Emergency virtually has the effect of amending the Constitution, it is being provided that the Proclamation would have to be approved by the two Houses of Parliament by the same majority which is necessary to amend the Constitution and such approval would have to be given within a period of one month. Any such Proclamation would be in force only for a period of six months and can be continued only by further resolutions passed by the same majority. The Proclamation would also cease to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha. Ten per cent. or more of the Members of Lok Sabha can requisition a special meeting for considering a resolution for disapproving the Proclamation. 8. As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there is sufficient cause for such detention. An additional safeguard would be provided by the requirement that the Chairman of an Advisory Board shall be a serving Judge of the appropriate High Court and that the Board shall be constituted in accordance with the recommendations of the Chief Justice of that High Court.

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9. A special provision is being made guaranteeing the right of the media to report freely and without censorship the proceedings in Parliament and the State Legislatures. The provision with regard to the breakdown of the constitutional machinery in the States is being amended so as to provide that a Proclamation issued under article 356 would be in force only for a period of six months in the first instance and that it cannot exceed one year ordinarily. However, if a Proclamation of Emergency is in operation and the Election Commission certifies that the extension of the President's rule beyond a period of one year is necessary on account of difficulties in holding elections to the Legislative Assembly of the State concerned, the period of operation of the Proclamation can be extended beyond one year. This is subject to the existing limit of three years. These changes would ensure that democratic rule is restored to a State after the minimum period which will be necessary for holding elections. 10. With a view to avoiding delays, it is proposed to amend articles 132, 133 and 134 and insert a new article 134A to provide that a High Court should consider the question of granting a certificate for appeal to Supreme Court immediately after the delivery of the judgment, decree, final order or sentence concerned on the basis of an oral application by a party or, if the High Court deems fit so to do, on its own motion. Cases of special leave to appeal by Supreme Court will be left to be regulated exclusively by article 136.

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CHAPTER :6 CHANGES IN CONSTITUTION AFTER 44TH AMENDMENT The 44th amendment5 of the Constitution was enacted by the Janata Government mainly to nullify some of the amendments made by the 42nd Amendment Act, 1976. It made wide scale changes to the Indian Constitution to make the Indian polity more democratic. Some of the changes introduced by the Act are as follows: i. Constitutional protection to publication in newspaper of the proceedings of the Parliament and State Legislatures. ii. The President may only once send advice of the Cabinet for reconsideration. iii. Restoration of some powers of the Supreme Court. iv. Fundamental Rights Guaranteed by Articles 20 and 21 cannot be suspended during a national emergency. v. The Right to Property was deleted from the list of fundamental right. It is now only a legal right under the Constitution. These amendments clearly suggest the amendment tried to conform to the values included in the preamble. However, the most important change made by the 44th Amendment Act was the deletion of the Right to Property from the list of fundamental right. Making it a legal right under the Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the Constitution. The 44th Amendment Act repealed Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and made a separate Article 300A in Ch IV of Part XII. This amendment may have taken away the scope of speedy remedy under Article 32 for the violation of Right to Property because it is no more a Fundamental Right.

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However one can find his remedy from the High Court under Article 226 or by an ordinary suit fabric of the Constitution through the instrumentality of Parliament’s amending power and that it should be trusted to exercise this seminal right wisely. It is argued that unlimited power of amendment is necessary to meet the democratically expressed will of the people and that the people’s representatives should be trusted not abrogate in basic freedoms. As the effect of the majority judgement of the Supreme Court, the Parliament cannot in the exercise of its amending power, alter the basic structure or framework of the Constitution. In Keshavananda Bharti’s Case, the second part of Article 31 C; in Mrs. Indira Gandhi’s Case, Article 329A (4) and in Minerva Mills Case, Sections 4 and 55 of the 42nd Amendment Act were struck down precisely because it affected the basic structure of the Constitution. The ‘basic features’ are those which are vital to the Constitutional scheme and which give the Constitution its identity and integrity. It is a fair assumption, that those who seek to amend the Constitution would have at least sufficient understanding to perceive its basic structure because it continues in the Constitution as legal right.

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CONCLUSION The 42nd and 44th amendment of the Indian Constitution is also termed as mini constitution. This project gives a brief summary about the 42nd and 44th amendment of the constitution. But the 42nd and 44th amendment holds a broder explanation in the history of Indian constitution many important provision such as emergency rules, preamble were been amended. So the 42nd and 44th amendment holds a very importance role in the Indian constitution .

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BIBLIOGRAPHY http://www.yourarticlelibrary.com/indian-constitution/the-significance-of-the-forty-fourthamendments-to-the-constitution-of-india/5505 http://www.legalservicesindia.com/law/article/1256/10/Changes-in-Constitutional-Forty-SecondAmendment-Act http://www.suramya.com/india/india_constitution.php https://medium.com/tathya-india/features-of-the-indian-constitution-a63c776f329d http://www.suramya.com/india/india_constitution.php

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