Exactly 40 years ago in the last weeks of October 1976, some heated debates were going on in the Indian parliament about the 42^nd Amendment to the Indian constitution. This amendment is regarded as the most controversial constitutional amendment in Indian history.

The result of this amendment was a substantial reduction in the powers of the Supreme Court and high courts to pronounce upon the constitutional validity of the laws passed by the Indian parliament. Though this amendment was undone in 1977 by the new Janata Party government through the 44^th amendment, it remains a black chapter in the Indian constitutional annals.

In this article, we first look at the events leading to the 42^nd amendment and then draw some lessons that could be useful for not only students of law and political science but also for general readers interested in understanding how societies progress in a non-linear fashion.

India which is, no doubt, the largest functioning democracy in the world has gone through periods in its history when it resembled more like a totalitarian regime than a democratic dispensation, not very different from the mid-1970s Pakistan where Z A Bhutto was introducing similar constitutional amendments to enhance his own powers.

To grasp the true nature of the 42^nd amendment we need to go back at least a decade in 1966 when Indira Gandhi was elected the prime minister of India by defeating an old guard of the Indian National Congress -- Morarji Desai (1896 - 1995). After the death of Lal Bahadur Shastri in Tashkent in January 1966 after only 18 months in power, Desai expected to be the new PM; but his dreams were shattered by the younger and more energetic Indira who was at least 20 years his junior. Indira made him her deputy PM and finance minister, the roles that were not entirely to his liking.

In 1967, Indira led her party to victory in general elections but Congress was marred by internal dissent, especially from the older-generation leaders. At the same time, the Supreme Court asserted its power in the famous Golaknath case, ruling that parliament could not curtail any of the fundamental rights in the constitution.

Indira Gandhi decided to play a populist leader and through a Bank Nationalisation Act 1969, nationalised 14 major banks and made paltry compensations payable in bonds to mature after 10 years. Morarji was not pleased and was relieved of his finance portfolio in 1969.

The same year the death of President Zakir Hussain posed a new challenge to the PM who wanted her own man in the president house. While Indira wanted vice-president, V V Giri, to become president, the Congress leadership nominated the speaker of Lok Sabha, Neelam Sanjiva Reddy, much to the chagrin of the PM. She encouraged V V Giri to contest as an independent candidate and asked the legislators to vote for their conscience.

Giri was elected, giving Indira an upper hand in the power struggle within her party. It is interesting to note that Indira who later initiated mass-sterilisation campaign, selected for president V V Giri who had sired 14 children.

In 1969, Congress split into two factions; and then in 1970 the Supreme Court in another famous case -- popularly known as the Bank Nationalisation Case -- gave a verdict that went against the government’s wishes. Justice A N Ray was the lone dissenter among the eleven Supreme Court judges who examined the constitutionality of the Act. He was duly rewarded by Indira who appointed him the chief justice in April 1973.

With increasing opposition within her own party and not happy with a resurgent Supreme Court, Indira went for early election in 1971, returning with a resounding majority thanks to her slogan of eliminating poverty.

Armed with this newly-won mandate, she went on to clip the wings of judiciary by introducing the 24^th and 25^th Amendments to the constitution, enabling parliament to dilute fundamental rights. These amendments provided expressly that parliament had the power to amend any provision of the constitution, and made it obligatory for the president to give his assent whenever an amendment bill was presented to him.

The 25^th Amendment curtailed the right to property and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the parliament and not the courts. Despite the opposition from almost all prominent jurists and surviving members of the Constituent Assembly, Indira Gandhi went ahead with these amendments and got away with them easily.

That was a seminal year for her, she won a war against Pakistan and helped Bengali nationalists in East Pakistan declare an independent state of Bangladesh. With a victory in war, and a pliant president, she was awarded the highest Indian award, Bharat Ratna in 1972 -- conferred upon her by V V Giri who later on received his own Bharat Ratna as a quid pro quo.

Such was the mockery of justice and democracy. In 1973, the Supreme Court struck back with Keshavananda Bharati judgement that outlined the Basic-Structure Doctrine of the constitution. Justice H R Khanna asserted through this doctrine that the constitution possesses a basic structure of principles and values.

This case was crucial in upholding the supremacy of the constitution and prevented authoritarian rule by a single party. The question was simple: was the power of parliament to amend the constitution unlimited?

The judgment spanning over 700 pages sharply divided the court and by a wafer-thin majority of 7:6 it held that the parliament could amend the constitution -- but not alter ‘the basic structure or essential features of the constitution’. In this case, two prominent persons played very important roles -- jurist Nanabhoy Palkhivala who presented the case against the government and Justice H R Khanna who propounded the Basic-Structure Doctrine.

This case was a major defeat for Indira Gandhi and the opposition led by J P Narayan and Raj Narayan was capitalising on increasing inflation and alleged malpractices in the previous elections. Indira Gandhi tried to restore some of her prestige by detonating a nuclear device in 1974 but after the initial euphoria was over things started taking a nasty turn for her.

The final blow came from the court in 1975 when the case against Indira Gandhi for election malpractices in Allahabad High Court went against her and she was unseated. The verdict was challenged in the Supreme Court which granted Gandhi a conditional stay but her continuation in power was threatened.

Then the ‘total revolution’ call given by J P Narayan demanded the resignation of the PM. On June 25, 1975, Gandhi invoked Article 352 of the Indian constitution that gave her extraordinary powers. Now the state could take any action but the people had no recourse. Thousands of people from the opposition were arrested and put behind bars without a trial.

There was extreme censorship and the press had no freedom to report. In a way, the emergency was the result of the clash between the legislature and the judiciary, compounded by the unrest from 1973 to 1975 exploited by the opposition.

Throughout the 21-month period of emergency, Indira Gandhi enjoyed the support of the chief justice, A N Ray, and the president, Fakhruddin Ali Ahmed both were indebted to her for selecting them for the top positions they were occupying. In the last part of this essay we will discuss the 42^nd and 44^th amendments and their lasting legacy.