CDS (II) 2021 General Knowledge · Question 76 of 120

Correct — C, 42nd Amendment. That is the option UPSC's official key marks, and it belongs to the same 1975-77 package of amendments that placed executive action beyond the reach of the courts. The Forty-second Amendment, assented to in December 1976 and commenced in January 1977, was the widest attack on judicial review the Constitution has seen: section 55 inserted Article 368(4) and (5), declaring that no amendment 'shall be called in question in any court on any ground' and that there is 'no limitation whatever' on Parliament's constituent power; and it inserted Articles 32A, 131A, 144A, 226A and 228A, which between them stopped the High Courts from considering the constitutional validity of central laws, stopped the Supreme Court under Article 32 from considering the validity of State laws, and required minimum benches and special majorities before a law could be struck down. On the emergency articles themselves it made the Proclamation extendable to part of India, stretched President's rule under Article 356 from six months to one year at a time, and widened Articles 353, 358 and 359.

• (a)39th Amendment — The Thirty-ninth Amendment of 1975 put a different class of dispute beyond the courts. It inserted Article 329A to take the election of the President, Vice-President, Prime Minister and Speaker out of the ordinary judicial process — not the Proclamation of Emergency.
• (b)40th Amendment — The Fortieth Amendment of 1976 added a long list of statutes to the Ninth Schedule, shielding those laws from challenge on Fundamental Rights grounds. It did not touch the emergency articles.
• (d)44th Amendment — The Forty-fourth Amendment of 1978 moved in the opposite direction. It was the restoring amendment — it replaced 'internal disturbance' with 'armed rebellion' in Article 352, required a written Cabinet recommendation, tightened parliamentary approval, and removed the clause that had barred courts from questioning a Proclamation.

Between 1975 and 1978 the emergency provisions were rewritten twice in opposite directions. The Thirty-eighth and Forty-second Amendments together made emergency power harder to challenge and easier to prolong; the Forty-fourth Amendment, passed by the Janata government after the Emergency, put back most of the safeguards. What survives today is a Proclamation that needs a written Cabinet recommendation, must be approved by both Houses by special majority within a month, lapses after six months unless renewed, and can be revoked if the Lok Sabha so resolves.

This card has to be honest about a real difficulty, because a careful student will hit it. The clause that actually made a Proclamation of Emergency final, conclusive and unquestionable in any court was Article 352(5), and the official as-amended text of the Constitution records in the footnote to that article that clauses (4) and (5) were inserted by the Constitution (Thirty-eighth Amendment) Act, 1975 and that clause (5) was omitted by the Forty-fourth Amendment in 1978. Reading the Forty-second Amendment Act's own text confirms the point from the other side: its emergency sections deal with part-of-India proclamations and with the length of President's rule, and its bar on judicial review is aimed at constitutional amendments and at the validity of central and State laws, not at the Proclamation itself. The Thirty-eighth Amendment is not among the four options, so the question as printed cannot be answered exactly; the key selects the Forty-second, which is the amendment of that period most associated with curbing the courts, and the answer to give in the examination hall is (c). The two facts worth carrying away are that the Thirty-eighth inserted the bar and the Forty-fourth removed it.

• Article 352(5), which made the President's satisfaction on a Proclamation final and conclusive, was inserted by the Constitution (Thirty-eighth Amendment) Act, 1975 and omitted by the Forty-fourth Amendment Act, 1978.
• The Forty-second Amendment Act, 1976 inserted Article 368(4) and (5), barring any court from questioning a constitutional amendment; the Supreme Court struck those clauses down in Minerva Mills in 1980.
• The same amendment inserted Articles 32A, 131A, 144A, 226A and 228A to restrict the courts' power over the validity of central and State laws; most were omitted by the Forty-third Amendment in 1977.
• The Forty-second Amendment allowed a Proclamation of Emergency to be issued for part of the territory of India and extended President's rule under Article 356 from six months to one year at a time.
• The Forty-fourth Amendment substituted 'armed rebellion' for 'internal disturbance' in Article 352 and required a written recommendation of the Union Cabinet before a Proclamation is issued.

• Assuming that because the 42nd Amendment is the Emergency amendment it must have done everything associated with the Emergency.
• Confusing Article 368(4), which bars review of amendments, with a bar on reviewing a Proclamation of Emergency.
• Reading the 44th Amendment as strengthening emergency power; it did the reverse.

As an amendment-to-provision match, as a question on what the 44th Amendment restored, or as a statements item on the safeguards now built into Article 352.

• practice — not a real PYQ

  The expression 'internal disturbance' in Article 352 was replaced by 'armed rebellion' by which one of the following amendments?

  • (a)38th Amendment
  • (b)42nd Amendment
  • (c)44th Amendment
  • (d)52nd Amendment

  Answer(c) 44th Amendment — one of several safeguards it built back into the emergency provisions in 1978.

• practice — not a real PYQ

  Article 368(4) and (5), which declared that no constitutional amendment could be questioned in any court, were struck down in which one of the following cases?

  • (a)Kesavananda Bharati
  • (b)Minerva Mills
  • (c)Golak Nath
  • (d)Indra Sawhney

  Answer(b) Minerva Mills — the Supreme Court held in 1980 that the clauses inserted by the 42nd Amendment destroyed the limits on amending power.