IMPACT OF THE FORTY-SECOND AMENDMENT
ON OUR PARLIAMENTARY DEMOCRACY
In the working of parliamentary democracy in India during the first twenty-five years no serious departures were made from the New Constitution. However, during the past three or four years it has been subjected to constitutional convulsions. The recent 42nd Amendment1 has brought about significant changes both in the letter and spirit of our parliamentary democracy. It contains 59 clauses covering the entire Constitution, from the preamble to the Seventh Schedule. Even the Constitution of the U. S. A. contains only 84 clauses. It must be said that the 42nd Amendment is not a mere amendment to the Constitution; it has practically given a new Constitution to India. This becomes all the more significant for two reasons. In the first place, all the opposition parties boycotted and did not participate in the Lok Sabha on the discussion over the Amendment Bill. The amendments proposed by the Pro-Congress opposition parties like the C. P. I. and ADMK were summarily rejected. The C. P. I. (M) questioned the competence of the parliament to pass the 42nd Amendment bill and suggested that it may be referred to a new Constituent Assembly formed by direct election under proportional representation. The other opposition parties like the Congress (O), Socialists and Jan Sangh expressed the view that parliament which had completed its five-year tenure should not bring about far-reaching changes in the Constitution; the subject should be referred to the newly-elected parliament. Eminent jurists like Sri Palkhivala asserted that the parliament has no right to change the basic principles of the Constitution. The 42nd Amendment is purely the work of the Congress party. The second noteworthy point is that a major amendment to the Constitution was brought about when two emergencies were under operation. The Prime Minister no doubt called for a national debate on the Amendment Bill. But in view of the restrictions imposed on the freedom of the press and suspension of Fundamental Rights the climate for a free and fearless debate was not at all favourable.
The Fifth General Elections to the Lok Sabha marked a turn in the tide in the history of our parliamentary democracy. The first twenty-three amendments made during 1951 to 1971 were largely in the nature of general amendments which did not violate the spirit of the Constitution; but those made during the last six years (1971-1977) were something more than mere amendments. They have changed the basic features of the Constitution and turned our parliamentary democracy into a shell without substance. Erosion of fundamental rights, subordination of the judiciary to parliament and growth of executive power are the guiding principles in bringing about changes in the Constitution. The 42nd Amendment is the culmination of the new trend started by the 24th Amendment. The judgement of the Allahabad High Court invalidating the election of Mrs. Indira Gandhi and the violent and massive demonstrations held under the leadership of the opposition leaders like Sri Jayaprakash Narayan against Mrs. Indira Gandhi Government, served as the last straw on the camel’s back. But for these occurrences the 42nd Amendment would not have been passed during the Emergency.
The objectives of the Amendment are viewed differently by the Congress and by the opposition parties. Mr. H. R. Gokhale, the then Union Law Minister, said that “the Constitution has to be revamped to expressly spell out the high ideals of socialism, secularism and democracy.” Stating that the 42nd Amendment is “the biggest of all Amendments” the Law Minister explained that it is “aimed at removing obstacles to a socio-economic revolution that would end poverty and ignorance, disease and inequality of opportunity.” Further, the Amendment aims at giving priority to the Directive Principles over the Fundamental Rights. The opponents of the Amendment contended that it “aims at altering or destroying the basic structure of the Constitution.” The Amendment is intended (1) to overthrow the supremacy of the Constitution and instal parliament as the supreme authority, (2) to enact that the Fundamental Rights will no longer be justiciable, (3) and to enforce laws which are held unconstitutional by a majority of the judges in the Supreme Court or High Court. Mr. H. V. Kamath observed that this is “neither amending nor mending but ending the Constitution.” While the passing of the Amending Act was hailed as the “finest hour” by Mr. H. R. Gokhale, it was described by Mr. Shibban Lal Saxena as the “darkest hour.”
The clauses in the 42nd Amendment Act can be broadly divided into two parts–the socio-economic part and the political part. The first twelve clauses dealing with the Preamble, Fundamental Rights, Directive Principles and Fundamental Duties are concerned with the socio-economic changes and the rest of the clauses dealing with the President, Council of Ministers, Parliament, the Supreme Court, State Executive, State Legislature, High Court, relations between the Union and the States, the Civil Service and transfer of subjects are concerned with political changes.
A study of the clauses in the Amendment shows that certain changes like creation of special tribunals, proclamation of emergency in a part of India, and transfer of education from the State List into the Concurrent List are quite commendable. But there are certain clauses which have undoubtedly brought about basic changes in the Constitution of our parliamentary democracy. These changes make India more a socialist than a democratic republic. In the Preamble which forms an integral part of the Constitution, significant additions are made by adding the words “socialist” and “secular.” India is described as a “Sovereign Socialist Secular Democratic Republic.” According to the noted constitutional lawyer, Mr. Nani A. Palkhivala, “Preamble is a part of the Constitution but not the statute and Article 368 deals only with an Amendment of the Constitution but not the constitution statute.” Apart from the constitutional validity or otherwise of the change, while the inclusion of the word “secular” is quite redundant, the term “socialist” may prove dangerous to parliamentary democracy. In the Constituent Assembly the term “socialist” was rejected after lengthy discussion for two reasons. Firstly, the basic principles of socialism like equality and social welfare are implicit in the term democracy. Democracy today means socialist democracy, for rugged individualism does not exist in any country. So the word “socialist” is quite redundant, Secondly, it is a “dangerously ambiguous” word. “Socialism,” in the words of Edmund Kelly, “is too vast a subject to be brought within the four corners of anyone definition.” This led Ramsay Muir to remark that “Socialism is a chameleon-like creed. It changes its colour according to its environment.” The units in the Soviet Union are described as Socialist Republics. Now India is described as a Socialist Republic and no wonder if in future India becomes less democratic and more socialist in nature. Another much publicised word in the post-independence era is “integrity.” Communalism and regionalism which caused serious riots in the country, led to the formation of National Integration Council. For the words “unity of the nation,” the words “unity and integrity of the nation” are substituted. After all, the meaning of the word “integrity” is implied in the word “unity.”
Fundamental Rights, especially those stated in Articles 14, 19 and 31, form the footnotes to the nature of our parliamentary democracy. They were already scissored by the earlier Amendments to the Constitution and now the 42nd Amendment reduces the rights of Equality, Freedom and Property to a shadow without substance. Notwithstanding anything contained in Article 13 of the Constitution, no law providing for the prevention or prohibition of anti-national associations or preventing the formation of or the prohibition of anti-national associations, shall be deemed to be void on the ground that it is inconsistent with Articles 14, 9 and 31. “Anti-national activity” is described to signify not only as one intended at secession of any part of the territory in India from the Union or intended to disrupt harmony between different religions, racial language or regional groups but also overthrowing the Government by force or creating internal disturbance. The above description indicates that in the name of anti-national activities a party having no faith in the philosophy of Fundamental Rights may after coming into power, take any unfair action on any individual or association. Clause 5 in the Amendment Act reminds us of Section 12 in the Government of India Act, 1935, dealing with the Special Responsibilities of the Governor-General. As “internal disturbance” is not clearly defined in our Constitution, emergency could be continued even at the time of conducting general elections to Lok Sabha. No doubt the authors of the Constitution used the words “internal disturbance” along with the words “external aggression” in Article 352, in the sense that the former should be as grave as the later. But this has been ignored. Mr. C. K. Daphtary, former Attorney-General remarked, “he feared that measures to be taken against anti-national activities might ultimately boil down to preventive detention”.2 In fact an amendment to the Constitution is not warranted to prevent anti-national activities. Under the Unlawful Activities (Prevention) Act, 1967, as amended in 1972, the Government can effectively check dangerous activities. So abridgement of Fundamental Rights which are of crucial importance for the functioning of our democratic institutions amounts to cutting at the very root of the democratic structure.
Two significant clauses are added to the Directive Principles of State Policy. With a view to provide equal opportunities in securing justice a new clause is inserted after Article 39 in the Constitution according to which the statute shall “provide free legal aid...to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. “This arrangement attains value only if rule of law is upheld in the country. Clause 9 in the Amendment Act provides for workers’ participation in the management of industry. Democracy in industry is not a new concept though it is found more in precept than in practice in most of the modern democracies.
The working of parliamentary democracy in India during the last quarter of a century has revealed that by and large people have grown more rights-minded than duty-minded. It is a political truism that there can be no rights empty of duties. In accordance with this principle at the end of Part IV of the Constitution, Fundamental Duties are incorporated (Part IV-A). Clause 11 in the Amendment Act deals with ten duties, viz., (1) to show respect for the ideals of the Constitution and National Flag and National Anthem, (2) to cherish and follow the noble ideals which inspired Our national struggle for freedom, (3) to uphold and protect the sovereignty, unity and integrity of India, (4) to defend the country and render national service when called upon to do so, (5) to promote harmony and the spirit of common brotherhood amongst all the people of India, (6) to value and preserve the rich heritage of our composite culture, (7) to protect and improve the natural environment, (8) to develop the scientific temper, humanism and the spirit of inquiry and reform, (9) to safeguard public property and to abjure violence and (10) to strive towards excellence in all spheres of individual and collective activity. Through this charter of Fundamental Duties the Congress Government proposed to change the attitude and thinking of the people and bring about a peaceful revolution.
The incorporation of duties in our Constitution is of doubtful value for three reasons. Firstly, there is really no need for separately mentioning duties, for they are already present in the various restrictions imposed on each Fundamental Right. “In Part III the Constitution guarantees rights to people in words as generous as those in the American Constitution in an opening clause, only to take away all security for these rights by exceptions and saving clauses which leave precious little residue of the right, whether it is of personal liberty, of free association or any other right”.3 As A. G. Noorani pointed out, “our Constitution already provides for the citizen’s duties by spelling out precisely the restrictions to which each of the Fundamental Rights is subject”.4 For a second reason also the insertion of duties is quite redundant. Duties like national and military service, payment of taxes or protection of public property are already covered by the statute. As far as respect for the national flag and national anthem is concerned there are already the Prevention of Insults to National Honour Act, 1971, on the statute under which a person who insults the flag or prevents singing the national anthem can be punished with imprisonment for three years or with fine or with both. All Municipal Acts in the country have provisions to prevent pollution of water. Parliament also has enacted the Water (Prevention and Control) Pollution Act, 1974. For the protection of wild life, The Wild Life (Protection) Act, 1972, has been passed. 5
Thirdly, most of the duties that are enumerated are vaguely worded. They need more precise definition. For example, “showing respect to the ideals of our Constitution” is a very loose expression, for even those who are dictatorial in their behaviour swear by democracy and secularism. It is still more difficult to prove communal bias. “In certain localities of metropolitan cities landlords fight shy of letting out their premises to a Muslim or a Harijan. How does one make out a case against such communalists”? 6 Development of scientific temper is mentioned as one of the duties, for people in India are obsessed by superstition, blind faith in certain religious Customs and beliefs. But can this outlook of the people be changed by a constitutional amendment especially when more than 70 per cent of the people are illiterate? “Striving for excellence” is defined as a duty. But what does it mean? For example, for an M. L. A. excellence means becoming an M. P., or a minister and for a minister to become a Chief Minister. Thus the duties incorporated in the Constitution by the 42nd Amendment are redundant and vague. Nor is it necessary to separately enumerate duties, for rights imply duties.
The political aspect of the 42nd Amendment lies in upsetting the balance between the legislative, executive and judicial powers. Our Constitution strikes a healthy compromise between the British theory of legislative supremacy and the American theory of judicial Supremacy. The 24th and 25th Amendments eroded the authority, prestige and position of the Supreme Court and made the parliament supreme. The 42nd Amendment completed this process of upsetting the balance between the legislative, executive and judicial powers. Under the party system supremacy of parliament means supremacy of the cabinet which in its turn means supremacy of the Prime Minister.
In regard to the executive the 42nd Amendment introduced two significant changes in the Constitution: (1) Article 74 in the Constitution is amended by stating that the President in discharging his functions shall act on the advice of the Council of Ministers. What has been done in practice is now put in writing. A convention is made a law. With this the controversy over the nature of the Indian Presidency has ended and the President is made a nominal executive. (2) It is stated that no court can have power to question the rules laid down by the President for the transaction of Government business. This has nullified judicial control over the executive.
One of the noteworthy changes made in the Constitution of legislatures is that the tenure of the Lok Sabha and of the State Assemblies is raised to six years. Mr. Swaran Singh, Chairman of the Constitution Reforms Committee, observed “considering the size of the country and the continuous process of elections to Parliament, State Assemblies and Corporations, Municipalities and Panchayats, these things kept our people preoccupied and exercised over elections all the while. The Amendment raising the tenure to six years sought to prolong this process”. 7 In the absence of the system of Recall, extension of tenure to six years may make the legislators corrupt and autocratic.
The most outstanding change brought about by the Amendment is that it has clipped the wings of the judiciary. It is stated that the question of disqualification of members of legislature due to corrupt practices in elections shall be decided by the President and his decision shall be final. In view of clause 13 in the Amendment Act, this would mean that in practice the Prime Minister arrogates to himself or herself the powers of the Election Commission and of the judiciary in such matters.
With a view to establish the supremacy of parliament over the judiciary the following changes are brought about in the functioning and powers of the Supreme Court and High Courts: (1) The Supreme Court only, and not the High Courts, shall have the power to determine the constitutional validity of central laws. Cases relating to the constitutional validity of any central laws, pending before the High Court shall be referred to the Supreme Court for its disposal. Or the Supreme Court itself may require the High Court to refer such questions to it for its disposal. (2) A bench of a minimum of seven judges of the Supreme Court with 2/3 majority can decide such cases. In the case of a High Court the minimum is five judges. (3) The High Court’s jurisdiction conferred by the expression “for any other purpose” in Article 226 of the Constitution is now deleted. (4) Jurisdiction of the Supreme Court and of the High Courts on certain specified matters including revenue matters is excluded by the creation of administrative tribunals for that purpose.
These changes in the jurisdiction and functioning of the Supreme Court and High Courts will not only affect a massive devaluation of the High Court in a State” but they will also create certain difficulties. By the limitation imposed on the jurisdiction of the High Courts the load on the Supreme Court will undoubtedly increase. Moreover, appeals from the administrative tribunals also will lie to the Supreme Court and this will further add to its load. There is already a general complaint that undue delay is caused in giving justice and it is reported that early in 1976 about 10, 357 appeals to the Supreme Court remained pending. “Justice delayed is justice denied.” Justice may also become costly. For example, if a teacher in Trivandrum is to file an appeal against the order passed under a Central Act or its Rules at New Delhi, can he afford that? Moreover, the special majority that is required in both the Supreme Court and High Court, Mr. Palkhivala remarked, “violates the rudiments of arithmetic. Neither 2/3 of 7 is a whole number nor 2/3 of 5 is a whole number and a fraction of a judge cannot vote for or against the validity of a law”. 8
Centralisation of power in the Union Government is the key-note of the 42nd Amendment. According to clause 43 in the Amendment Act the Union Government is empowered to send armed forces into any State when there is danger to law and order and the State Government will not have any control over such armed force. This clause was strongly opposed in the Lok Sabha by the opposition parties. Replying to a question who would decide whether a situation was grave or not, Mr. Gokhale said, “that obviously the Central Government would have to do it.” A member of the R. S. P. moved an Amendment proposing that the Central Government should deploy the armed forces only after securing parliament’s approval through a resolution passed in both Houses by a 2/3 majority. The C. P. I. members proposed an Amendment seeking to vest in the State Government the superintendence or Control of the Union forces deployed. Sri Indrajit Gupta expressed the fear that the Amendment might “vitiate” the principle of State autonomy. Members of ADMK also demanded that the Central Government should deploy armed forces only after “due consultation with the State Government.” The Amendments of the opposition were ruthlessly negatived. State autonomy was further affected by clause 57 which transferred from the State List to the Concurrent List subjects like constitution and organisation of all courts except the Supreme Court and the High Courts, education, weights and measures, forests and protection of wild animals and birds. A subject like education is becoming not only costly but, also highly important and as such its transfer to the Concurrent List is quite welcome. As Mr. Swaran Singh rightly remarked, “there is an All-India aspect of education to ensure the unity and integrity of the country and from this point of view this provision is salutary”. 9
Some political commentators and constitutional pundits observed that the emergency provisions in our Constitution may undermine our democracy and give rise to authoritarianism. Their worst fears came true during the last two years of Mrs. Indira Gandhi’s tenure as Prime Minister. Significantly the indiscreet use of emergency powers by the Government resulted in the reeling blow given by the electorate to Mrs. Indira Gandhi in particular and to the Congress party in general in the VI General Elections to Lok Sabha. The 42nd Amendment further widened the emergency powers of the Union Government. According to it the period after which the proclamation of emergency ceases is extended from six months to one year. Further, any law made by parliament in exercise of the powers of the State Legislature shall continue idefinitely till altered by the competent legislature or other authority instead of ceasing to operate one year after the expiration of emergency. One salutary addition made by the Amendment to the emergency provisions in our Constitution is that the President is empowered to proclaim emergency applicable not only for the whole country but also to a part of the country.
Mrs. Indira Gandhi proclaimed that the 42nd Amendment was enacted not to weaken the parliamentary system but to strengthen it. But the provisions in the Amendment Act belie this conclusion. Devaluation of the judiciary and dominance of the Union executive which are the prominent features of the Amendment strike at the very roots of parliamentary democracy. As Earnest Barker remarked “maladies of maladjustment arise because each institution indulges in institutionalism. There is no sovereignty of parliament. There is no sovereignty of cabinet or electorate. No part is sovereign. The one thing sovereign is the whole system of representation”. 10 However, justifying the Amendment Act Mr. H. R. Gokhale remarked: “There is something more Supreme than the Supreme Court and that is parliament”. 11 Supremacy of parliament in practice means cabinet supremacy. As Herold Wilson observed, “in a parliamentary democracy the checks and balances operate not only as long-term safeguards but also in one way or another (often unpredictable) almost everyday”.12 The great damage caused to our parliamentary democracy by the 42nd Amendment is that the balance of powers is upset. In view of the devastating defeat faced by the Congress party in the recent general elections to the Lok Sabha, the damage that has been done to our democracy by the Amendment Act has to be undone. The President in his address to the joint session of the two Houses of parliament struck the right note when he stated that a comprehensive measure will be shortly placed before parliament “to restore the balance between the people and parliament, parliament and the judiciary, the judiciary and the executive, the States and the Centre, the citizen and the Government”. 13
Constitution should be respected by all sections of people and this would be possible only when people feel that it is not the work of a single party or of a few individuals. So in bringing about major changes in the Constitution the views of the opposition parties and of all sections of people have to be ascertained and respected. The guiding principle in bringing about changes in our Constitution should be the maintenance of balance of powers which is the sine qua non of parliamentary democracy.
1 It was first called the 44th Amendment. But as the 42nd and 43rd Amendments have not yet become statutes, this is renumbered as 42nd Amendment.
2 Indian Express, November 6, 1976.
3 Dr. N. C. Sea Gupta. Riddles and Ironies in our New Constitution. p. 16.
4 Fundamental Duties: Need for Precise Definition. Indian Express, July 12, 1976.
5 Vinod Sethi. Fundamental Duties. Indian Express, Sept. 30, 1976.
6 Kuldip Nayar. A Charter of Duties. Indian Express, July 8, 1976.
7 Indian Express September 5, 1976
8 Reshaping the Constitution. Illustrated Weekly of India, July 4, 1976.
9 Indian Express, Sept. 1976.
10 Parliamentary system of Government. Page 23
11 Indian Express, October 29, 1976.
12 The Government of Britain.
13 Indian Express, March 29, 1977.