The Emergency of 1975 to 1977 and the 42nd and 44th Amendments | CBSE Class 12 Political Science Notes

Part of: The Crisis of Democratic Order (CBSE Class 12 Political Science). This page goes deeper into one part of that chapter: how the Constitution was changed during the Emergency, and how most of the changes were reversed.

Why did the Emergency lead to changes in the Constitution itself?

On 25 June 1975 the President proclaimed a national emergency under Article 352, on the ground of "internal disturbance". Orders under Article 359 then suspended the right to move the courts to enforce several Fundamental Rights.

These steps used powers the Constitution already contained. The government then used its large majority in Parliament to amend the Constitution, so that the courts could not undo what was being done.

The government's case. The proclamation said that internal disturbance threatened the security of India. The government pointed to the movement led by Jayaprakash Narayan, who on 25 June 1975 asked the army, police and officials not to obey orders he called illegal. It also argued that the courts had blocked laws meant for social and economic reform; the 42nd Amendment bill's statement of reasons (August 1976) said the Directive Principles should take precedence over rights used to frustrate such reform. Critics, including most of the opposition, argued that the real aims were to protect the Prime Minister after the Allahabad judgment and to silence dissent.

Three aims run through the amendments of this period:

• to protect the election of Prime Minister Indira Gandhi, which the Allahabad High Court had set aside on 12 June 1975;
• to stop the courts from reviewing the Emergency and the laws made under it;
• to shift lasting power towards Parliament and the Union government.

Definition: A constitutional amendment is a change to the Constitution's text under Article 368. It needs a majority of the total membership of each House and two-thirds of the members present and voting; some also need ratification by half the States.

The Congress and its allies commanded the two-thirds majority this needed, so the opposition could not block these amendments. Many opposition members were also in detention.

What did the 38th and 39th Amendments change in 1975?

The 38th Amendment: keeping the Emergency out of court

The 38th Amendment (1975) made the President's "satisfaction" final when proclaiming an emergency under Articles 352, 356 and 360. It said this decision could not be questioned in any court. It also protected ordinances from challenge on the same basis.

The 39th Amendment: the Prime Minister's election

The 39th Amendment came into force on 10 August 1975, while the Prime Minister's appeal against the Allahabad judgment was pending in the Supreme Court. It took disputes about the elections of the President, Vice-President, Prime Minister and Speaker out of the ordinary courts.

For the Prime Minister and the Speaker it inserted Article 329A. Its clause (4) went further still. It declared that the earlier election of a person who later became Prime Minister was valid, whatever any court had ruled. The Allahabad judgment was declared void.

How did the Supreme Court respond in Indira Nehru Gandhi v Raj Narain?

On 7 November 1975 the Supreme Court decided the appeal. It upheld the Prime Minister's election, but on other grounds. Parliament had meanwhile changed the election law with retrospective effect, and the Court applied the changed law.

The Court struck down clause (4) of Article 329A. The five judges gave different reasons. Justice Khanna held that the clause destroyed democracy, which needs free and fair elections and is part of the basic structure laid down in Kesavananda Bharati (1973). Chief Justice Ray held that Parliament had decided one election dispute without applying any law, which offends the rule of law. Either way, Parliament may amend the Constitution, but it cannot use an amendment to decide a single case.

What did the 42nd Amendment of 1976 change?

The 42nd Amendment was the largest change ever made to the Constitution in one Act, which is why it is often called a "mini-Constitution". Parts of it drew on the report of a committee chaired by Swaran Singh (1976). It received the President's assent on 18 December 1976.

What changed in the Preamble?

The words "socialist" and "secular" were added to describe the Republic. "Unity of the Nation" became "unity and integrity of the Nation". These are the only changes ever made to the Preamble.

Which duties and directives were added?

A new Part IVA, Article 51A, listed ten Fundamental Duties of citizens. An eleventh was added by the 86th Amendment in 2002. Three new Directive Principles were added:

• Article 39A: equal justice and free legal aid;
• Article 43A: participation of workers in the management of industries;
• Article 48A: protection of the environment, forests and wildlife.

How did it shift power towards Parliament and the Union?

1. Amendments beyond review. New clauses (4) and (5) of Article 368 said that no constitutional amendment could be questioned in any court, and that Parliament's power to amend had no limit.
2. Directives over rights. Article 31C was widened. A law giving effect to any Directive Principle could not be challenged for violating Articles 14, 19 or 31.
3. Longer terms. The terms of the Lok Sabha and the State Legislative Assemblies were raised from five to six years.
4. A bound President. Article 74(1) was changed to say the President "shall" act in accordance with the advice of the Council of Ministers.
5. Subjects to the Concurrent List. Education, forests, weights and measures, the protection of wild animals and birds, and the administration of justice were moved from the State List to the Concurrent List.
6. Courts limited. New articles restricted the power of the Supreme Court and High Courts to rule on the validity of laws, and Part XIVA allowed tribunals to take over some cases from the courts.

How were the Emergency changes undone after 1977?

The Emergency was lifted on 21 March 1977, after the Congress lost the Lok Sabha election. The new Janata Party government had promised to restore the Constitution. It lacked a two-thirds majority in both Houses, and the Congress controlled the Rajya Sabha, so the reversal needed support across parties.

The 43rd Amendment (passed 1977, in force 1978)

The 43rd Amendment restored the powers of the Supreme Court and High Courts that the 42nd Amendment had cut. It removed the new articles that had limited judicial review of laws.

The 44th Amendment (1978)

The 44th Amendment rewrote the emergency provisions so that 1975 could not easily be repeated:

1. "Internal disturbance" was replaced by "armed rebellion" as a ground for a national emergency.
2. The President can proclaim an emergency only when the Union Cabinet advises it in writing. In 1975 the Prime Minister had advised the President before the Cabinet met.
3. Each House must approve the proclamation within one month by a special majority, and it must be renewed every six months.
4. The Lok Sabha can end an emergency by a resolution passed by a simple majority.
5. The rights under Articles 20 and 21, protection in respect of conviction and the right to life and personal liberty, can no longer be suspended during an emergency.
6. The terms of the Lok Sabha and the Assemblies went back to five years.
7. The right to property stopped being a Fundamental Right. It became a legal right under Article 300A.
8. The President may send advice back to the Council of Ministers once for reconsideration, but must then act on it.

How did Minerva Mills complete the reversal?

Two of the 42nd Amendment's power-concentrating changes survived Parliament: the clauses of Article 368 that barred review of amendments, and the wider Article 31C. In Minerva Mills v Union of India (1980) the Supreme Court struck both down. It held that a limited amending power and the balance between Fundamental Rights and Directive Principles are themselves part of the basic structure.

What did the ADM Jabalpur case decide, and why was it overruled?

During the Emergency, many detained people filed habeas corpus petitions, asking courts to examine whether their detention was lawful. Several High Courts heard them, and the government appealed.

On 28 April 1976, in ADM Jabalpur v Shivkant Shukla, a five-judge bench of the Supreme Court ruled four to one for the government. While the Article 359 order stood, the majority held, no one could go to court to enforce the right to personal liberty under Article 21, even against a detention said to be illegal.

The one dissent came from Justice H. R. Khanna. He held that the right to life and liberty does not depend on Article 21 alone, and that the rule of law does not disappear during an emergency. In January 1977 he was passed over for the post of Chief Justice, though he was the senior-most judge, and he resigned.

The judgment was answered twice. The 44th Amendment made Article 21 impossible to suspend. In 2017, in Justice K. S. Puttaswamy v Union of India, a nine-judge bench recognising the right to privacy held that ADM Jabalpur had been wrongly decided and overruled it.

Timeline: the Emergency and the Constitution, 1971 to 2017

What lessons does this period hold for constitutional democracy?

The first lesson is that a constitution can be changed against its own spirit by its own procedures. Every amendment of 1975 and 1976 was passed by the required majorities. The basic structure doctrine let the courts strike down some of the most far-reaching of them, and Parliament reversed most of the rest between 1977 and 1979.

The second lesson is that safeguards work together: the press, the courts, opposition parties and voters all helped restore democracy, not the 44th Amendment's text alone.

The third lesson concerns emergencies themselves. No national emergency under Article 352 has been proclaimed since June 1975, and none has been in force since March 1977. The written Cabinet advice, the shorter approval period and the protection of Articles 20 and 21 make such a step harder and more visible.

Sources

• The Constitution of India as amended (Legislative Department, Government of India): Articles 51A, 74, 300A, 352, 359 and 368.
• The Constitution (Thirty-eighth Amendment) Act, 1975, 1 August 1975.
• The Constitution (Thirty-ninth Amendment) Act, 1975, 10 August 1975.
• The Constitution (Forty-second Amendment) Act, 1976, 18 December 1976, with its statement of objects and reasons.
• The Constitution (Forty-third Amendment) Act, 1977, 13 April 1978.
• The Constitution (Forty-fourth Amendment) Act, 1978, 30 April 1979.
• The Constitution (Eighty-sixth Amendment) Act, 2002, which added the eleventh Fundamental Duty.
• Supreme Court of India: Kesavananda Bharati v State of Kerala, 24 April 1973; Indira Nehru Gandhi v Raj Narain, 7 November 1975; ADM Jabalpur v Shivkant Shukla, 28 April 1976; Minerva Mills v Union of India, 31 July 1980; Justice K. S. Puttaswamy (Retd) v Union of India, 24 August 2017.
• Supreme Court of India: Babu Rao Samant v Union of India, 1987, which records the proclamations of 3 December 1971 and 25 June 1975 and their revocation in March 1977.
• NCERT, Politics in India since Independence (Class 12), "The Crisis of Democratic Order".

Glossary

• Basic structure: the core features of the Constitution that Parliament cannot destroy by amendment, as held in Kesavananda Bharati (1973).
• National emergency: a proclamation under Article 352 that lets the Union take wide powers when the security of India is threatened.
• Habeas corpus: a court order requiring a detained person to be produced so that the legality of the detention can be examined.
• Judicial review: the power of courts to test laws and government actions against the Constitution and strike down those that violate it.
• Fundamental Duties: the duties of citizens listed in Article 51A, added by the 42nd Amendment in 1976.
• Preventive detention: holding a person to stop an expected offence, rather than as punishment for an offence already committed.

Common errors and misconceptions

• Misconception: The 44th Amendment cancelled the whole 42nd Amendment. Correct: It reversed the parts that weakened rights and concentrated power; the Preamble words, Fundamental Duties and Concurrent List changes stayed.
• Misconception: The Emergency was declared on the ground of armed rebellion. Correct: It was declared for "internal disturbance"; "armed rebellion" replaced that ground only through the 44th Amendment.
• Misconception: In Raj Narain the Supreme Court set aside the Prime Minister's election. Correct: The Court upheld her election under the amended law, but struck down clause (4) of Article 329A.
• Misconception: The right to property was abolished in 1978. Correct: It stopped being a Fundamental Right but remains a constitutional legal right under Article 300A.

Exam-style questions with model answers

Q1. On which ground was the national emergency of June 1975 proclaimed? (a) war (b) external aggression (c) internal disturbance (d) armed rebellion [1 mark]

(c) Internal disturbance. It was proclaimed under Article 352 on that ground, which the 44th Amendment later replaced with "armed rebellion".

Q2. State any two changes the 42nd Amendment made to the Preamble and to citizens' obligations. [2 marks]

1. It added the words "socialist" and "secular", and changed "unity of the Nation" to "unity and integrity of the Nation".
2. It added ten Fundamental Duties of citizens in a new Article 51A.

Q3. Explain any four safeguards the 44th Amendment added to the emergency provisions. [4 marks]

1. The ground "internal disturbance" was replaced by "armed rebellion", narrowing when an emergency can be declared.
2. The President can proclaim an emergency only on the written advice of the Union Cabinet, not of the Prime Minister alone.
3. The rights under Articles 20 and 21 can no longer be suspended, so personal liberty stays enforceable in court even during an emergency.
4. Each House must approve the proclamation within one month by a special majority, and the Lok Sabha can end it by a resolution passed by a simple majority.

Q4. Why is ADM Jabalpur v Shivkant Shukla regarded as a low point for civil liberties? [4 marks]

In April 1976 the Supreme Court held, by four to one, that while the Article 359 order stood, detained people could not go to court to enforce their right to personal liberty, even if the detention was illegal. This left everyone held in preventive detention without a judicial remedy. Justice H. R. Khanna dissented, holding that the rule of law survives an emergency. The 44th Amendment later protected Article 21 during emergencies, and the Supreme Court overruled the ruling in 2017 in Puttaswamy.

Q5. "The 44th Amendment restored the Constitution, but it did not undo every change made during the Emergency." Examine this statement. [6 marks]

The statement is accurate. The 44th Amendment reversed the changes that most weakened democracy. It replaced "internal disturbance" with "armed rebellion" as a ground for emergency, required written Cabinet advice, shortened the approval period and protected Articles 20 and 21. It restored five-year terms for the Lok Sabha and the Assemblies, and moved the right to property out of the Fundamental Rights.

Other changes of the 42nd Amendment stayed. The words "socialist" and "secular" remain in the Preamble, the Fundamental Duties in Article 51A remain, and education and forests are still in the Concurrent List. Two key clauses survived Parliament too: the bar on judicial review of amendments and the wider Article 31C were removed only by the Supreme Court in Minerva Mills (1980). So Parliament and the courts restored the Constitution together, keeping the changes that had wide support.

Key takeaways

• The 39th Amendment tried to place the Prime Minister's election beyond the courts; the Supreme Court struck down that clause in 1975.
• The 42nd Amendment of 1976 changed the Preamble, added Fundamental Duties, extended terms to six years and barred review of amendments.
• The 43rd and 44th Amendments restored court powers, five-year terms and narrower emergency grounds with written Cabinet advice.
• Articles 20 and 21 can no longer be suspended in an emergency, the direct answer to the ADM Jabalpur judgment of 1976.
• Minerva Mills (1980) struck down the 42nd Amendment's bar on judicial review of constitutional amendments, using the basic structure doctrine.

Test yourself

Which article did the 39th Amendment insert for the election of the Prime Minister and Speaker?

Article 329A. The Supreme Court struck down its clause (4) in Indira Nehru Gandhi v Raj Narain in November 1975.

Which two words did the 42nd Amendment add to describe the Republic in the Preamble?

"Socialist" and "secular", added by the 42nd Amendment in 1976; the 44th Amendment kept both words.

What replaced "internal disturbance" as a ground for national emergency?

"Armed rebellion" replaced it through the 44th Amendment of 1978, narrowing the grounds for a national emergency.

Who dissented in the ADM Jabalpur case?

Justice H. R. Khanna, the only one of the five judges who held that detainees could still approach the courts.

Under which article is the right to property now protected?

Article 300A. Since the 44th Amendment it is a constitutional legal right, no longer a Fundamental Right.