How does the 42nd Amendment of the Constitution impact the power of judicial review under Article 13?

Detailed Legal Analysis

The 42nd Amendment, enacted in 1976 during the Emergency period in India, introduced significant changes to the Constitution, including alterations to the power of judicial review under Article 13. Article 13 of the Indian Constitution declares that any law which is inconsistent with the Fundamental Rights guaranteed by Part III of the Constitution shall be void. Essentially, this provision empowers the judiciary to review and nullify any legislative or executive action that infringes upon these rights.

One of the most critical changes brought about by the 42nd Amendment is the addition of Article 31D, which provided for preventive detention laws and curtailed the scope of judicial review in matters related to certain laws. It specified that laws made to maintain public order, or for the purposes of preventive detention, shall not be deemed to be void on the ground of inconsistency with the rights conferred by Part III. This essentially limited the judiciary's ability to strike down laws, thereby impacting the safeguard mechanism that Articles 13 and 32 provide to uphold Fundamental Rights.

Furthermore, the 42nd Amendment also amended Article 368, thus altering the procedure for amending the Constitution itself. While it does not directly affect the power of judicial review under Article 13, it reflects the government's intent during that era to limit judicial oversight. The judiciary, particularly through landmark judgments like **Kesavananda Bharati v. State of Kerala (1973)**, reaffirmed the power of judicial review, stating that the basic structure of the Constitution cannot be altered, even by a constitutional amendment. This indicates that despite the 42nd Amendment's attempts to limit judicial review, the Supreme Court maintained its critical role in upholding Constitutional supremacy.

Practical advice for individuals facing issues relating to judicial review or Fundamental Rights is to seek legal counsel promptly if they believe their rights have been violated by legislative actions. Moreover, understanding the implications of the 42nd Amendment can be crucial for legal practitioners and activists. If a law is suspected of infringing upon Fundamental Rights, action can be taken by filing a writ petition under Article 32 before the Supreme Court or Article 226 before High Courts, invoking judicial review principles, despite the constraints introduced by the 42nd Amendment.