42nd amendment reduced powers of the judiciary, took away all human rights

On 16th October 1976, Mrs Indira Gandhi was invested in Lusaka by the Zambian President, Mr Kaunda, the highest honour (Grand Companion of Freedom, First Division) which Zambia could award. It was reported to be a surprise investure. Mrs Gandhi is reported to have accepted the award "on behalf of India and its people". Ironically, the same person had clamped Emergency over a year ago and her government was planning to amend the Constitution with a view to destroying its democratic structure by drastically reducing the powers of the judiciary as well as the fundamental rights of the citizen.This was done by following a procedure which was partisan in its approach and oppressive in its operation, what had been painstakingly constructed in 35 months was demolished in a short span of seven working days beginning October 26, 1976.The human freedoms promised by the Constitution in 1950 became a mirage and its basic features undermined to the point of destruction. Fundamental rights became a dirty word overnight and altruistic arguments were hurriedly invented in the "enlightened" self interest of the Congress party. The process to nibble away in parts the Constitution had, however, started on the sly even earlier, in 1971, after the Indira wave had given the ruling Congress party a massive majority in Parliament. The Indira government made 20 amendments in the Constitution between 1971 and 1976 - a record performance for any country. The 42nd amendment was the most destructive of all.Every constitution, be it democratic or otherwise, has certain basic elements which if removed can make the constitution meaningless. This basic fact is recognized even by the Supreme Court. The basic features of our Constitution are: the rule of law without which no justice can be dispensed, the human rights without which liberty is meaningless; equality without which justice and liberty cannot exist; fraternity which is the only guarantee of unity in a diverse society like ours. Underlying all these is the democratic and republican character of our body politic.The rule of law was done away with by invoking the fallacious doctrine of the sovereignty of Parliament and secondly by robbing the high courts by amending Articles 226 and 227 for restricting their jurisdiction. Justice has been taken beyond the reach of the common man by drawing the litigants to the far away and more costly Supreme Court. To eliminate these features from the Constitution is to destroy the basic fabric of the constitution. The 42nd amendment has done precisely this.Even the Constituent Assembly never subscribed to the theory of sovereignty of Parliament. Mr Brajeshwar Prasad had categorically stated in the Constituent Assembly on October 10, 1949: "We are sovereign and not the future Parliament." His view was accepted by the Constituent Assembly as correct. The assertions of Mrs Gandhi and the former Union Law Minister Gokhale that Parliament had unfettered powers had no precedence.Gokhale had ridiculed the judges of the higher courts during his speech in the Lok Sabha on October 28, 1976 and warned them that if they did not fall in with him they will be thrown in the dustbin of history.The 42nd amendment took away all human rights by giving absolute protection to the Preventive Detention Acts like MISA and COFEPOSA. So long as the 42nd amendment remains a part of the Constitution no one is secure in India. Every person's liberty and freedom is in grave jeopardy. The whole country is on parole. The 42nd amendment has given absolute protection to MISA by including it in the Ninth Schedule which means placing the arbitrary arrest beyond scrutiny of the courts.The right to equality has been taken away as the executive can now act as arbitrarily and irresponsibly as it likes. It also makes proclamation of emergency beyond scrutiny by the court. And, this is totally destructive of all human freedoms guaranteed under the Constitution. It has put the executive beyond the reach of any legal retribution. It can, if it is so inclined even practise genocide.The 42nd amendment is also a grave danger to the republication form of government. It is axiomatic that equality breeds no revolution but an excess of power to .a coterie breeds tyrants. The danger comes from men vested with irresponsible power. This is precisely what is attempted by incorporating Article 31-D. It deals with "anti-national activities", although there already existed a law dealing with the subject. The span of Article 31-D is so wide that it can take the breath out of democracy leaving a mere carcass behind. Any inconvenient association can be banned under this article. There would be no redress before any impartial tribunal. By incorporating fundamental duties as Article 51-A of the Constitution the wolf and the lamb story has been woven into the Constitution. It can any time be used as a snare to trap inconvenient persons andor association.In a republic, sovereignty lies with the people, and nowhere else. It cannot be delegated. It is Res Publico or "everybody's business". This basic concept of the republican constitution is lost on the authors of the 42nd amendment who in their wisdom, have invented a peculiar kind of jurisprudence which is known only to them but is unknown to history and the juridicial world; their concept of republic advocates that the Indian Constitution holds parliament and not the people who are elected by them as sovereign. The 42nd amendment is nothing but legalization of the authoritarian trends and subversion of a democratic constitution.Surely, Mrs Gandhi must have felt amused while accepting the award of the Zambian award of Grand Companion of Freedom on behalf of the people of India because it was nearly 16 months earlier when she had sentenced the very same people to bondage and was feverishly sharpening the legal tools for destroying any vestiges of freedom which had escaped her notice since the proclamation of internal emergency by her on June 25, 1975.Published By: AtMigration Published On: Apr 22, 2015 15:52 IST--- ENDS ---

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42nd amendment reduced powers of the judiciary, took away all human rights

The human freedoms promised by the Constitution in 1950 became a mirage and its basic features undermined to the point of destruction. Fundamental rights became a dirty word overnight and altruistic arguments were hurriedly invented in the "enlightened" self interest of the Congress party.

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