On "anti-nationals", fundamental duties and nullifying judicial review: What the 'Mini-Constitution' attempted to do

The 42nd amendment to the Constitution of India remains one of the most controversial changes made to the basic document till date..It was passed by Parliament in November 1976, when the Emergency was in operation and came into force in January 1977.It made many changes to existing Articles and also inserted many new provisions. Many of the changes drastically curtailed the power of the Supreme Court and the High Courts..It also introduced concepts like “anti-national” and fundamental duties to Constitution. Many of the changes were subsequently repealed by Parliament or struck down by the Supreme Court.Due to the extensive changes introduced by it, the 42nd amendment is many times referred to as the mini-constitution..Below are the important changes introduced it sought to bring in..Before the amendment, the Preamble to the Constitution began as follows:“We the people of India having resolved to constitute India into a sovereign, democratic republic…”The 42nd amendment inserted the words ‘socialist’ and ‘secular’ to the Preamble.While the insertion of the word ‘secular’ was just a reaffirmation of the Constitution’ s inherent character and the vision of the founding fathers which envisaged India as a secular country and was reflected in the Constituent Assembly Debates (CAD) as well, the insertion of the word “socialist” seemed to be a departure from this vision.Here is what Dr. BR Ambedkar had said during the debates:“What should be the policy of the State, how the society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether.”Both these words still continue to be part of the Preamble..Article 368 - taking away judicial review over Constitutional amendmentsThis was one of the most important amendments to the Constitution by the 42nd amendment. It added two clauses to Article 368 – clause 4 and clause 5.Clause 4 said that “no amendment of this Constitution (including the provisions of Part III on fundamental rights) made or purporting to have been made under this Article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.”Clause 5 said that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.It effectively took away the power of judicial review of Constitutional courts over amendments to the Constitution. These amendments were declared unconstitutional by the Supreme Court in the 1980 judgment of Minerva Mills v. Union of India..Article 32AAnother major change introduced by the mini constitution was Article 32A, which said that Supreme Court cannot examine the validity of laws made by State legislatures. This was repealed by the 43rd Amendment Act, which was enacted by the Janata Party government which defeated Indira Gandhi in the 1977 general elections..Articles 144A and 228A Article 144A laid down that the Supreme Court can consider the constitutional validity of Central or State laws only if it sits in a bench of at least seven judges.Similarly, Article 228A was inserted, which provided that a High Court can decide the constitutional validity of a State law only in a bench of at least five judges.Both these Articles were also omitted by the 43rd amendment..The amendment inserted Article 31-C to give precedence to directive principles over fundamental rights.The Article said that any law which has been enacted to give effect to a directive principle will not be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19.The Article was held to be unconstitutional by the Supreme Court in Minerva Mills..This term has been in vogue in the past few years, especially as a means to discredit critics of ruling dispensations. However, interestingly, this was also an introduction of the Emergency era, through Article 31D, which was again inserted by the 42nd amendment.Article 31A gave immunity to laws intended to prevent anti-national activities or prohibit anti-national associations. It said that such laws shall not be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, Articles 14, 19 or 31.It was also repealed by the Janata Party government by the 43rd amendment..The mini-constitution inserted Article 51A which laid down fundamental duties of citizens. This Article continues to be a part of the Constitution.