The Supreme Court’s Judgment on the Constitution (42nd Amendment) Act, 1976

By N. A. PALKHIVALA

Summary

In this Forum of Free Enterprise booklet, the jurist N. A. Palkhivala welcomes the Supreme Court’s judgment striking down Sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, 1976, framing it as the rekindling of ‘the light of the Constitution’ that had been extinguished when the Amendment was rushed through Parliament during the Emergency, days after Divali 1976. He argues that the Constitution is the priceless heritage of every Indian, designed to keep the country rich in individual freedom even while poor in per capita income, and that the Supreme Court’s role is to act as its watchdog rather than the poodle of the party in power.

Drawing on the basic-structure doctrine of Kesavananda Bharati (1973) and its application in the 1976 case voiding the constitutional amendment that shielded the Prime Minister’s election, Palkhivala contends that Parliament, being a creature of the Constitution, cannot use its amending power under Article 368 to destroy the Constitution’s basic structure. He characterises the Forty-Second Amendment’s attempt to make Parliament supreme over the Constitution as a ‘revolution’ and as constitutional ‘suicide’, and attacks Clause (4) inserted in Article 368 — which sought to oust judicial review of amendments — as ultra vires because it destroys the balance of power between legislature and judiciary.

The second half of the booklet turns to Article 31C, which the Amendment expanded to immunise any law claiming a nexus with the Directive Principles from challenge under the fundamental rights in Articles 14 and 19. Palkhivala calls the philosophy underlying Article 31C ‘the very quintessence of authoritarianism’, arguing that directive ends and fundamental-rights means need not conflict, that India’s fundamental rights mirror the 1948 Universal Declaration of Human Rights, and that Article 31C would subordinate equality before the law and freedom of speech and the press to a simple legislative majority. He concludes that freedom and Article 31C cannot co-exist, and that the Court’s judgment will save the people from despotism.

Key points

• Welcomes the Supreme Court judgment striking down Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 (the Minerva Mills judgment).

• Frames the Constitution as the heritage of every Indian, meant to keep India rich in individual freedom even while poor in per capita income.

• Relies on the basic-structure doctrine from Kesavananda Bharati (1973) and its 1976 application voiding a constitutional amendment.

• Argues Parliament is a creature of the Constitution and cannot use Article 368 to destroy its basic structure — calling the attempt a ‘revolution’.

• Attacks Clause (4) of Article 368, which barred courts from reviewing amendments, as ultra vires for destroying the legislature-judiciary balance.

• Condemns the expanded Article 31C as ‘the very quintessence of authoritarianism’ for immunising laws from Articles 14 and 19.

• Notes India’s fundamental rights mirror the 1948 Universal Declaration of Human Rights, to which India is a signatory.

• Concludes freedom and Article 31C cannot co-exist, and the judgment saves the people from despotism.

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