Transformative Constitutionalism and Authoritarian Populism in India: The 42nd Constitutional Amendment of 1976
1 January 2021 – 30 June 2021
This project aims at the re-examination of the concept of ‘transformative constitutionalism’ through the detailed case study of a key event in its Indian career – the 42nd Constitutional Amendment of 1976. This amendment, during the Internal Emergency of 1975–77, was the most thoroughgoing and radical constitutional amendment in post-independence Indian history. It was the culmination of a turbulent decade in India’s political and constitutional history – a period during which the survival of India’s 1950 Constitution was threatened like never before or since. Indeed, this period saw, ‘the great war, as distinct from earlier skirmishes, over parliamentary versus judicial supremacy’, as Granville Austin would later call it. The irony is that the political onslaught against the textual framework of the Indian constitution was led in the name of the constitutionally promised agenda of socio-economic transformation, embodied in the chapter on Directive Principles of State Policy. These directives were strictly speaking, non-enforceable, but these fourteen legally non-binding provisions of the Constitution were repeatedly invoked in this period to trump the other provisions of the constitutional text, which were legally binding.
While the rhetoric of constitutional aims trumping constitutional rights was a recurring theme throughout the constitutional debates of this period, its apogee was the 42nd amendment. My focus will be on the introduction of Article 31C, which provided that laws declared by Parliament to be implementing Directive Principles could no longer be declared invalid even if they violated the Right to Equality, Freedom and Property. This provision was the defining feature of the 1976 amendment as it explicitly declared that state goals of socio-economic transformation trump fundamental rights. Much of the public discourse around the 42nd amendment too was centred on this provision. Studying the complex career of this provision helps us better understand the challenge posed by statist transformative constitutionalism to the liberalism professed in the Indian constitution of 1950.
Anuj Bhuwania is a professor at Jindal Global Law School, Sonipat. He has previously held teaching positions at South Asian University and Ambedkar University, Delhi. He has also held visiting positions at the Centre for Modern Indian Studies, University of Göttingen; Centre for the Study of Developing Societies (CSDS); and Centre for the Study of Law and Governance (CSLG), Jawaharlal Nehru University, Delhi. He is the author of ‘Courting the People: Public Interest Litigation in Post-Emergency India’ published by Cambridge University Press in 2017.