Author: Karthik k & Geethika K


                 General elections were held in India to the 5th lok sabha in 1971, wherein Indira Gandhi campaigned heavily for herself and her party and steered the Congress to come out victorious by securing 352 seats out of 518 seats in the said elections[1]. Raj Narain, the leader of Ram Manohar Lohia’s SSP stood against Indira Gandhi in the elections of Rae Bareilly in Uttar Pradesh. Raj Narain was extremely confident of his victory in the elections, he ventured to such an extreme as to take out a triumph rally before the declaration of results[2].

Raj Narain was very disappointed when he lost the elections with a huge margin. Raj Narain did not accept the defeat and decided to appeal to nullify the election, accusing Indira Gandhi of adopting corrupt practices during her election campaigns. On 24th April, 1971, he challenged the Prime Minister’s election by filing a petition in the Allahabad High Court, putting allegations on Indira Gandhi of violating the election code enshrined in the Representation of the People Act of 1951 as her election campaigns were assisted by many government officers which also included the armed forces and local police. He also alleged that Indira Gandhi had used government vehicles for her election campaigning, and had distributed liquor and blankets amongst the voters so as to influence them and had also exceeded the campaign expenses limit which was Rs 35,000[3].


                   The judgment of Honourable Allahabad High Court delivered by Justice Jagmohan sinha declared Indira Gandhi’s election void on grounds of corrupt practices committed under sec 123(7) of the RP Act, 1951[4], Indira Gandhi made an appeal against the decision. The Supreme Court was on vacation at that time so she was granted a conditional stay by Justice V. R. Krishnaiyer[5]. Thereafter, emergency was declared due to internal disturbance. In the meantime, Indira Gandhi passed the 39th constitutional amendment[6], which introduced Article 392A to the Constitution of India. Article 392A stated that the election of the Prime Minister and the Speaker cannot be questioned in any court of law, it can only be challenged before a committee formed by the Parliament itself. Thus, barring the Supreme Court from deciding Indira Gandhi’s case. Therefore, the constitutional validity of the 39th amendment was challenged.


  1. Whether or not Clause 4 of Article 329 A of the Constitution of India, was constitutionally valid?
  2. Whether or not, Representation of the People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975, was constitutionally valid?
  3. Whether or not, the election of Indira Gandhi was void?


The court gave its decision on November 7, 1975. It must be kept in the mind that this was the first case when the landmark decision of Kesavananda Bharti[7]was applied by the apex court. The apex court upheld the contention of the petitioner and declared the impugned Clause 4 of Article 329A unconstitutional. The bench also found the said amendment violative of the principles of natural justice i.e. Audi Altrem Partem[8]since it denies the right of fair hearing who is challenging the election of the members mentioned under the amendment. Democracy is a basic feature of Indian Constitution. The amending body i.e. Parliament is not empowered to pass a retrospective law validating an invalid election. This exercise is nothing but an example of despotic use of unrestrained and unfettered power

The said amendment ought to transfer such determining powers to the Parliament. However, a legislative body cannot find adjudicative facts like a judicial body therefore, in the opinion of bench the impugned amendment is nail in the coffin of democracy.

In the words of Chief Justice Ray C.J. found that the said amendment violated a basic feature i.e. rule of law

Justice Khanna that  clause (4) of Article 329A violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution[9]

Mathew J. held that  if  by clause (4), any essential feature of the democratic republican structure of our polity as visualized by the Constitution has been damaged or destroyed, the clause would be ultra vires the Constitution[10]. He was of the opinion that a healthy democracy can only function when there is possibility of a contest of free & fair elections. The impugned amendment destroyed that possibility therefore it is violative of Basic feature of Constitution.

Chandrachud J. found the said amendment violative of the principle of Separation of Power as it intently transferred a pure judicial function into the hands of legislature. Further, he was certain that the said amendment is also violative of Article 14 as it creates an unequal position for specific members against others.

Therefore, on the varied reasons the court struck down the 39th (Amendment) Act, 1975 finding it unconstitutional and violative of Basic Structure of the Constitution


 After through examinations of the rationale given by the judges in this particular case, and after going through the background of the case it is found that although the judgment was academically and theoretically correct, but in practicality and on the grounds of justice equity and good conscience it was a failed judgment. The then prime minister had taken assistance of the gazetted officer in her election campaign, she also availed services from the army and airforce. The Hon’ble Allahabad High court have ruled out correctly by finding her guilty for corrupt practices under sec 123(7) of the RP Act, 1951 and made her election void. Indira Gandhi took an unconditional stay order from Justice Jag Mohan Lal Sinha, and then appealed to the supreme court, meanwhile  she very artfully imposed emergency on the nation and then got many opposition members arrested under preventive detention, by doing this she was able to pass the 39th amendment act of the constitution. She also passed People’s Representative (amendment) Act,1974 and the Election laws (amendment) act 1975. These three major amendments were clearly made to remove all grounds on which she was found guilty by Allahabad High Court. The Supreme Court in its judgment held that the amendment act 1974,1975, were constitutionally valid as they were legislative rules and the parliament has powers to amend them but the judges should have noticed that the amendments were made for the sole propose of removal of all kind of charges from Indra gandhi’s head. Also at the time of passing these amendments most of these opposition members were under preventive detention, without any cause, this prevented them from giving their opinions and vote for or against that legislation. The Supreme Court very ignorantly said that it was a matter of Government’s decision and Supreme Court has nothing to do with it. It is to be noted here that it is the duty of the supreme court to uphold the constitution, it is considered as the guardian, the watchdog of the constitution, and here the constitution was being tampered within an illegal manner, and all that we heard from the supreme court judges was that it was out of their jurisdiction and hence they would not go into the matter. It was by the reason of these amendment acts, that Indra Gandhi was allowed to set free. Had she been an ordinary person, she would have never been able to make these amendments; she misused the power given to her as a prime minister, for her own benefits.

The importance and the aftereffects of the judgments can be well and clearly understood from the quick passage of 42nd Amendment Act, 1976 which made the challenge of Amendments in the court of law impossible (however this amendment was struck down in Minerva Mills). The parliament in its desperation and fury on the judiciary passed a law by the virtue of which the courts lost the power to question any amendment of the constitution.              


 This judgment of the Supreme Court was the first in which the basic doctrine was applied to save the constitution from malicious attacks. The five judges bench by holding the impugned 39th proved to the parliament that they are just elected to make laws which are beneficial to the “people of India” & not those laws which are beneficial for them. This judgment was the triumph of Rule of Law because once again it was the law that proved to be triumphant and not those who make it. The apex court proved that law is supreme and it cannot be brought to knees even by the chosen ones.

India is the largest democracy in the world. The essence of a democratic government lies in the conduct of free & fair elections. The parliament tried to mold this basic essence towards their end so that they could have the prerogative to validate an invalid election. One could only imagine and fear the imagination that this regressive amendment would have brought to the Indian Democracy. Besides, what is the meaning of Democracy i.e. for the people, by the people & of the people if there are no free & fair elections? The amendment privileged the specific members’ elections being challenged in the court which is like stripping a person of his legal right to remedy.

It was very brave of the judiciary that along with the Emergency turmoil it came up with such a brave and important decision where it was proven that Indian Constitution will not bend its knees against such malicious bunch of politicians. The apex court must be honored for such a important decision against the mighty Indira Gandhi Government.  


Parliament after facing such a severe loss at the hands of the Judiciary was so furious that it planned to make a law by the virtue of which no court in the future would have jurisdiction to entertain a challenge of Constitutional Amendment. In pursuance of the above objective the Parliament amended the Constitution through 42nd Constitutional (Amendment) Act, 1976 also known as Mini-Constitution.

The argument advanced against the passage of such a brute amendment were two-fold

  1. Supremacy of Parliament
  2. Criticism of Basic structure

The proponents of the amendment argued that there are no basic or fundamental provisions in the Constitution and every provision is equal in status for the purposes of Parliament. This was basically the implication that there is no limitation whatsoever in the competence of Parliament with respect to its amending power. Such arguments were in direct defiance to the landmark rulings of Supreme Court in Golaknath Kesavananda

Therefore, to achieve the said objectives Clause 4 & 5 were added in the Article 368 with the following effect:

  1. Clause 4 was added to make it clear that from this date onwards there shall be no challenge in the courts on the issue of constitutionality of any amendment passes by the Parliament. This was to ensure the bar on the jurisdiction of the courts to entertain a challenge on amendment i.e. directly barring the jurisdiction of Supreme Court. This clause also had the power of validating earlier amendments invalidated by the Supreme Court such as 25th Amendment’s 2nd limb, 39th amendment etc.
  2. Clause 5 starts with the phrase “For the removal of doubts”. This clause was added to make it explicit that there is no limitation on the power of parliament with respect to its amending competence. Implying that not only can parliament amend Fundamental Rights it can also amend the basic structure of the Constitution.
·       . I. C. Golaknath & Ors. Vs. State of Punjab & Anrs.
·       . Kesavananda Bharati Vs. State of Kerala
·       . Minerva Mills Ltd. & Ors. Vs. Union of India
·       Raj Narain v. Uttar Pradesh 1975 A.I.R. 865. 




[3] Raj Narain v. Uttar Pradesh 1975 A.I.R. 865. 

[4] Representation of peoples Act, 1951

[5] 1975 AIR 1590 1975 SCC  (2) 159

[6] Enacted on 10th august, 1975

[7] (1973) 4 SCC 225 : AIR 1973 SC 1461

[8] Latin term Meaning –  No one should be left unheard

[9] para 231 of the judgment

[10] para 265 of the judgement

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