Topic: The Emergency (1975-77) & The 42nd Constitutional Amendment

 

Syllabus Mapping

• GS Paper 2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

• Topic: The Emergency Provisions, 42nd Amendment Act, Fundamental Rights vs. Directive Principles.

 

Why in News?

January 2, 1976, a "dark day" in India's constitutional history, when the 42nd Amendment came into effect (specifically Article 31D), marking the culmination of the Emergency's attempt to institutionalize dictatorship and subordinate Fundamental Rights to executive power.

 

Key Highlights

• The Context of Breakdown:

  • Pre-Emergency Tension: The 1960s and 70s saw economic stress (inflation, unemployment) and political corruption. The "Total Revolution" call by Jayaprakash Narayan (JP) articulated a moral indictment of the ruling establishment.

  • Judicial Tussle: The Supreme Court in Golaknath (1967) and Kesavananda Bharati (1973) had asserted that Parliament could not alter the "Basic Structure" or Fundamental Rights to suit executive whims. The Emergency was a direct political response to this judicial check.

• January 2, 1976: The "Architecture of Fear" (Article 31D):

  • The Provision: Article 31D empowered Parliament to prohibit "anti-national activities" and "anti-national associations."

  • The Danger: The term "anti-national" was deliberately left vague. It shielded laws from judicial challenge under Articles 14 (Equality) and 19 (Freedoms). In practice, this criminalized dissent—political opposition, trade unions, and protests could be labeled "anti-national".

• The ADM Jabalpur Case (Habeas Corpus Case):

  • The Verdict: The Supreme Court held that during an Emergency, Article 21 (Right to Life) was suspended, and citizens had no locus standi to approach courts against illegal detention.

  • Justice HR Khanna's Dissent: While the majority legitimized tyranny, Justice Khanna famously dissented, arguing that the "rule of law" cannot be reduced to mere "executive convenience." This dissent cost him the Chief Justiceship but saved the Court's conscience.

 

Critical Analysis:

• Significance:

  • Institutional Collapse: The Emergency showed how easily institutions (President, Cabinet, Judiciary) could capitulate to a strong executive. The 42nd Amendment (Mini-Constitution) attempted to permanently alter the balance of power, making the Executive supreme over the Judiciary and Legislature.

  • Restoration: The 44th Amendment Act (1978) was the corrective response. It repealed Article 31D and ensured that Article 21 can never be suspended, even during an Emergency.

• Pros/Cons:

  • Cons: It was a "constitutional dictatorship" where preventive detention (MISA) was used to silence opposition (e.g., the death of P. Rajan in police custody).

  • Lesson: It established that democracy survives in India not just because of the Constitution's text, but because of "constitutional morality"—the adherence to self-restraint by those in power, which was absent in 1976.

 

Value Addition:

• Safeguard Added: To prevent a recurrence of the 1975 declaration (based on "Internal Disturbance"), the 44th Amendment Act, 1978 replaced the ground of "Internal Disturbance" with "Armed Rebellion" in Article 352. It also mandated that the President can proclaim Emergency only after receiving a written recommendation from the Cabinet (not just the PM's advice).

 

Conclusion:

The events of January 2, 1976, serve as a stark reminder of the fragility of democratic rights. While Article 31D was repealed, the episode underscores the importance of the "Basic Structure" doctrine as the ultimate firewall against majoritarian excesses. The survival of Indian democracy owes less to the letter of the law and more to the resilience of its people who rejected the "discipline of the graveyard" in the 1977 elections.

 

Mains Question:

"The 42nd Constitutional Amendment Act, 1976, was not merely a legislative exercise but an attempt to institutionalize a 'Constitutional Dictatorship'." Discuss this statement with special reference to Article 31D and the impact on Judicial Review. (250 words)

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PreliminaryMCQ:

With reference to the constitutional developments during the Emergency (1975-77), consider the following statements:

1. Article 31D was introduced by the 42nd Amendment Act to empower Parliament to ban 'anti-national' activities.

2. The Supreme Court in the ADM Jabalpur case (1976) held that the Right to Life (Article 21) remains enforceable even during a National Emergency.

3. The 44th Amendment Act, 1978, replaced the term 'Internal Disturbance' with 'Armed Rebellion' in Article 352.

Which of the statements given above is/are correct? 

(A) 1 only

(B) 1 and 3 only

(C) 2 and 3 only

(D) 1, 2 and 3

Answer: (B)

Explanation:

• Statement 1 is correct: Article 31D was indeed introduced to prohibit anti-national activities and associations, shielding such laws from Articles 14 and 19.

• Statement 2 is incorrect: In ADM Jabalpur, the majority held that Article 21 was suspended, and citizens had no right to move courts for Habeas Corpus. Only Justice Khanna dissented.

• Statement 3 is correct: The 44th Amendment substituted "Internal Disturbance" with "Armed Rebellion" to tighten the grounds for declaring Emergency.