MPSC 2022 Prelims Paper-I · Question 61 of 100

Correct — option (4), only statements (b) and (c). The question is really a sorting exercise between two amendments that stand back to back in the constitutional record, and the fastest way through it is to remember what each was for. The Forty-second Amendment of 1976 was an amendment of enlargement, passed at the height of the Emergency to widen the powers of the Union and of the executive; the Forty-fourth Amendment of 1978 was an amendment of repair, passed by the Janata government that followed, whose purpose was to undo the parts of the Forty-second that had made a repetition of the Emergency easy. Every statement in this list belongs to one project or the other. Statement (b) is a provision of the Forty-fourth. It added a proviso to Article 74(1) under which the President may require the Council of Ministers to reconsider the advice tendered to him, either generally or otherwise, and shall act in accordance with the advice tendered after such reconsideration. The word to hold on to is once: the President may send the advice back a single time, and if the same advice comes back he is bound by it. The Forty-second Amendment had already made ministerial advice binding on the President in terms; the Forty-fourth left that binding character intact but gave the office one deliberate pause, which is a very small power and yet the only formal check the President has over a Cabinet decision. Statement (c) is also a provision of the Forty-fourth, and it is the most important single thing the amendment did. Article 359 allows the President, during a Proclamation of Emergency, to suspend the right to move any court for the enforcement of Fundamental Rights. Before 1978 no right was carved out of that power, which is what made the decision in the habeas corpus case of 1976 possible, when detenus were held to have no enforceable right to life or liberty while the Emergency lasted. The Forty-fourth Amendment provided that the rights conferred by Article 20, protection in respect of conviction for offences, and Article 21, protection of life and personal liberty, can never be suspended, so that whatever else an Emergency does, it cannot put a person outside the protection of those two articles. Statement (a) belongs to the Forty-second Amendment, which amended Article 312 to allow Parliament to create an All India Judicial Service, and statement (d) belongs to the Forty-second Amendment as well, which moved five entries from the State List to the Concurrent List. Since both the statements that are true of the Forty-fourth are (b) and (c), and no other statement is, the answer is option (4).

• (1)(a), (b) and (c) — This option is correct on statements (b) and (c) and wrong on statement (a), which is the trap the option is built around. The All India Judicial Service is a creature of the Forty-second Amendment Act of 1976, which amended Article 312 to add that the all-India services Parliament may create by law include a judicial service; the article also provides that such a service shall not include any post inferior to that of a district judge. The provision has never been acted on — no All India Judicial Service exists, because Parliament has not passed the required law and the states and several High Courts have resisted the idea on the ground that recruitment and control of the subordinate judiciary belong to the High Court of the state under Articles 233 to 235. That the service is still only a proposal is exactly why candidates half-remember it and attach it to the wrong amendment. Note also the arithmetic of Article 312 itself, which was not changed in 1976: the Rajya Sabha must first pass a resolution supported by not less than two-thirds of the members present and voting, declaring that it is necessary or expedient in the national interest to create the service.
• (2)(a), (b) and (d) — This option is wrong twice over, since it carries both statement (a) and statement (d), and each of them belongs to the Forty-second Amendment rather than the Forty-fourth. Statement (d) refers to the transfer of five subjects from the State List to the Concurrent List, and the five are worth learning by name because they are asked directly: education; forests; weights and measures; protection of wild animals and birds; and administration of justice, together with the constitution and organisation of all courts except the Supreme Court and the High Courts. The transfer is one of the clearest illustrations of what the Forty-second Amendment was doing, which was to shift the balance of the federation towards the Union, and it has never been reversed — the five entries remain in the Concurrent List today, so that a candidate who tries to answer by asking what the law is now will get no help. The question is about which amendment made the change, and the answer is the Forty-second of 1976, not the Forty-fourth of 1978.
• (3)Only (c) and (d) — This option pairs a genuine Forty-fourth Amendment provision, statement (c), with statement (d), which is not one, and it also drops statement (b), which is. The construction is the commonest kind in this format: one true item is offered alongside one false item so that a candidate who has verified only the true one is satisfied too early. The discipline that defeats it is to test every statement in the option rather than to stop at the first that checks out, and here the fifth-subject transfer named in statement (d) is a Forty-second Amendment change. It is worth adding what else the Forty-fourth Amendment did on the emergency provisions, because the same paper could ask for any of it: it replaced the expression internal disturbance in Article 352 with armed rebellion, required the President to act on the written recommendation of the Cabinet before proclaiming a National Emergency, restored the term of the Lok Sabha and the state assemblies to five years from the six the Forty-second had given them, and omitted the right to property from Part III, moving it to Article 300A as a constitutional right.

The Forty-second and the Forty-fourth Amendments are best learnt as a pair, because the second was written to undo the first and their contents therefore mirror each other. The Forty-second Amendment Act of 1976, sometimes called a mini-Constitution for the sheer breadth of its changes, added the words socialist, secular and integrity to the Preamble, inserted the Fundamental Duties as Part IVA, extended the life of the Lok Sabha and the state legislatures from five to six years, moved five entries from the State List to the Concurrent List, provided for an All India Judicial Service in Article 312, made the President bound by ministerial advice in terms, added clauses to Article 368 barring courts from questioning a constitutional amendment, and curtailed the writ jurisdiction of the High Courts. The Forty-fourth Amendment Act of 1978 reversed a substantial part of that programme. It restored the five-year term; it substituted armed rebellion for internal disturbance as a ground of National Emergency, so that ordinary law-and-order trouble can no longer support a proclamation; it required a written recommendation of the Cabinet before a proclamation is issued; it required parliamentary approval within one month rather than two and by a special majority; it allowed the Lok Sabha to compel a revocation; it removed the right to property from the Fundamental Rights and re-enacted it as Article 300A; it left the binding quality of ministerial advice in place but gave the President one power of return under the proviso to Article 74(1); and it provided that the rights under Articles 20 and 21 cannot be suspended even during an Emergency. The last of these was the direct legislative answer to the majority decision in the habeas corpus case of 1976, in which the Supreme Court held that during an Emergency a detenu had no locus to move a High Court under Article 226 for a writ of habeas corpus.

Constitutional amendments are examined in MPSC papers in a very small number of shapes — which amendment made a named change, in which year it was passed, and which cluster of changes belongs together — and the Forty-second and Forty-fourth are the two most frequently set of all, because they carry more testable provisions between them than the rest of the list put together. The format used here, a menu of provisions of which some belong to one amendment and some to its neighbour, is the Commission's favourite way of testing whether a candidate has learnt the two as separate lists or has merged them into a vague memory of the Emergency years. The habit that pays is to file each provision under the purpose of the amendment that made it. If a change enlarges the power of the Union or the executive or shields it from a court, it is almost certainly from 1976; if a change puts a limit back on that power, it is almost certainly from 1978. That heuristic will not resolve every item, but it resolves this question completely: the All India Judicial Service and the transfer of subjects to the Concurrent List both enlarge central power, while the President's power of return and the protection of Articles 20 and 21 both restrain it. A second habit worth building is to check every statement inside an option rather than stopping at the first that verifies, since three of the four options here contain at least one statement that is true of some amendment.

• The Forty-fourth Amendment Act of 1978 added a proviso to Article 74(1) allowing the President to require the Council of Ministers to reconsider its advice once; after such reconsideration the President must act in accordance with the advice tendered.
• The Forty-fourth Amendment amended Article 359 to provide that the enforcement of the rights conferred by Article 20 and Article 21 cannot be suspended during a Proclamation of Emergency, the legislative answer to the habeas corpus decision of 1976.
• The All India Judicial Service was provided for by the Forty-second Amendment Act of 1976, which amended Article 312; no such service has ever been created, and Article 312 requires a Rajya Sabha resolution passed by two-thirds of the members present and voting before Parliament may legislate.
• The five subjects moved from the State List to the Concurrent List by the Forty-second Amendment Act of 1976 are education, forests, weights and measures, protection of wild animals and birds, and administration of justice with the constitution and organisation of all courts except the Supreme Court and the High Courts.
• The Forty-fourth Amendment also substituted armed rebellion for internal disturbance in Article 352, restored the five-year term of the Lok Sabha and the state assemblies, and removed the right to property from Part III, re-enacting it as Article 300A.

• Attributing the All India Judicial Service to the Forty-fourth Amendment, when Article 312 was amended for it by the Forty-second Amendment of 1976 and no such service has ever been created
• Attributing the transfer of five subjects to the Concurrent List to the Forty-fourth Amendment, when the transfer was made by the Forty-second and has never been undone
• Stopping at the first statement in an option that checks out, instead of testing every statement the option contains
• Believing that Articles 358 and 359 work the same way — Article 358 suspends the Article 19 rights themselves and only on an external emergency, while Article 359 suspends only the right to move courts and now cannot touch Articles 20 and 21

MPSC sets constitutional amendments constantly, and the Forty-second and Forty-fourth carry the heaviest load. The question shapes are few: name the amendment that made a stated change; name the year; identify which provisions of a list belong to a named amendment, as here; and, less often, name the provision that a later amendment reversed. Because the two amendments are mirror images, almost every question that can be asked about one can be turned into a question about the other, so the efficient preparation is a two-column table with the Forty-second on the left and the Forty-fourth on the right, and a row for each subject they both touch — the term of the legislature, the ground of emergency, the President and ministerial advice, judicial review, the right to property, the writ jurisdiction. Learning them as two separate lists takes longer than learning them as one comparison, and the comparison is what the Commission actually tests.

No directly related past PYQ was found.

• practice — not a real PYQ

  The proviso to Article 74(1), which allows the President to require the Council of Ministers to reconsider its advice, was inserted by which amendment ?

  • (a)The Forty-second Amendment Act, 1976
  • (b)The Forty-fourth Amendment Act, 1978
  • (c)The Fifty-second Amendment Act, 1985
  • (d)The Sixty-first Amendment Act, 1988

  Answer(b) The Forty-fourth Amendment Act, 1978. The Forty-second Amendment had already made the advice of the Council of Ministers binding on the President in express terms; the Forty-fourth left that binding character alone but added a proviso allowing the President to require the Council to reconsider its advice, either generally or otherwise, while providing that the President shall act in accordance with the advice tendered after such reconsideration. The return may therefore be made only once, and the second advice is conclusive.

• practice — not a real PYQ

  Which of the following subjects was moved from the State List to the Concurrent List by the Forty-second Amendment Act, 1976 ?

  • (a)Public health and sanitation
  • (b)Police
  • (c)Forests
  • (d)Agriculture

  Answer(c) Forests. The Forty-second Amendment moved five entries from the State List to the Concurrent List — education, forests, weights and measures, protection of wild animals and birds, and administration of justice together with the constitution and organisation of all courts except the Supreme Court and the High Courts. Public health and sanitation, police and agriculture all remain in the State List, and the transfer has never been reversed, so all five entries continue to sit in the Concurrent List today.