Legal Notes by Arvind Datar - The historic 45th Amendment Bill

On August 28, 1976, the Forty-Fourth (Constitution Amendment) Bill, 1976 was introduced in Parliament. No other amendment in Indian constitutional history had damaged the power of judicial review as badly as this Bill had.

The late jurist HM Seervai termed this amendment as outrageous. It was the Emergency and, as expected, it became the Constitution (42nd Amendment) Act, 1976. It contained more than 59 clauses that made several draconian changes. These included - in Article 31C - barring judicial review of any law which merely contained a declaration which was to give effect to the Directive Principles of State Policy. Article 368 was amended so that no constitutional amendment that had been made before or after 1976 could ever be called into question in any court on any ground. This could have been the death of the Basic Structure doctrine.

Another Chapter which was designed to cut down the judiciary was the insertion of Part XIV-A, which dealt with tribunals and inserted Article 323A and 323B.

After the historic Lok Sabha elections of 1977, the Janata Party came to power and its election manifesto promised to repeal the 42nd Amendment. It introduced the 43rd and 44th Amendment Bills to set at naught the damaging amendments made to the Constitution. The 44th Amendment Bill was passed and became the 43rd Amendment Act, which restored the status quo ante with regard to the Supreme Court and High Courts by repealing Articles 32A, 131A, 144A, 226A, 288A and 31D. It also deleted certain other provisions.

The 45th Amendment Bill later became the Constitution (44th Amendment) Act, 1977. This sought to set at naught certain amendments which had adversely amended the Constitution. One of the proposals in the 45th Amendment Bill was to insert the definition of ‘Secular Republic’ and ‘Socialistic Republic’.

The phrase ‘Secular Republic’ was defined to mean a republic in which there is equal respect for all religions and the phrase ‘Socialistic Republic’ was defined to mean a republic in which there is freedom from all forms of exploitation - social, political and economic. However, although the Janata Party had a majority in the Lok Sabha after the 1977 elections, it continued to be in a minority in the Rajya Sabha, where the Congress continued to have a majority. The proposal to insert definitions of Socialist Republic and Secular Republic was defeated in the Rajya Sabha. Similarly, the 42nd Amendment had transferred Education and Forests from the State List to the Concurrent List. The proposal to restore it to the earlier position was also defeated.

Interestingly, there was a proposal to have a referendum if any change was to be made to the secular and democratic character of our nation, or if there was any proposal which either abridged or took away the fundamental rights or impeded free and fair elections. This had to be approved by a referendum of at least 51% of the electorate. This proposal was also defeated in the Rajya Sabha.

Lastly, the insertion of Article 323A and 323B enabled the setting up of tribunals that were intended to substitute the jurisdiction of the High Courts. This would have severely undermined the independence of the judiciary. For some strange reason, the Congress Party refused to permit the deletion of these Articles and these provisions came to stay. Mercifully, their scope was diluted by Sampathkumar and L Chandrakumar, and the power of judicial review under Articles 226 and 227 were held to be part of the Basic Structure. Over the years, tribunals have substantially taken over several traditional judicial functions, but these have been upheld from time to time, albeit with certain safeguards.

Thus, if the 45th Amendment Bill had been passed, Articles 323A and 323B would have been deleted and the extensive litigation on tribunals could have been avoided. The existing law which permitted the cutting-up of statutory tribunals could have continued, maintaining the demarcation between the judiciary and the tribunals.

The damage done by the 42nd Amendment was thus substantially undone by the 43rd and 44th Amendments to the Constitution. But it is seldom noticed that the 45th Amendment Bill ran into difficulties in the Rajya Sabha leading to a truncated 44th Amendment to the Constitution.

Author is a Senior Advocate.