What are the implications of the 42nd Amendment (1976) on the power of judicial review as per Article 368 of the Constitution?

Detailed Legal Analysis

The 42nd Amendment of 1976 significantly impacted the power of judicial review as enshrined in Article 368 of the Indian Constitution by introducing provisions that aimed to limit the judiciary's ability to challenge amendments made by Parliament.

Key implications of the 42nd Amendment on the power of judicial review include:

• Restriction on Judicial Review: The amendment sought to limit the scope of judicial review concerning constitutional amendments. Specifically, it aimed to curtail the courts' power to invalidate amendments that were deemed to violate fundamental rights or other provisions of the Constitution.
• Insertion of New Clauses: The 42nd Amendment introduced clauses that declared certain amendments as not subject to judicial review. This was primarily articulated in Article 368(2), which stated that Parliament could make laws to amend the Constitution, and such laws would not be subject to judicial scrutiny.
• Impact on Fundamental Rights: The amendment attempted to position the supremacy of Parliament over the basic structure of the Constitution. However, the judiciary, through various landmark judgments, reaffirmed the doctrine of the basic structure, asserting that certain fundamental features of the Constitution are beyond the reach of parliamentary amendments.
• Judicial Activism: In response to the limitations imposed by the 42nd Amendment, the judiciary adopted a more proactive stance, thereby reinforcing the doctrine of judicial review. The Supreme Court in cases such as Kesavananda Bharati v. State of Kerala (1973) and Minerva Mills v. Union of India (1980) established that amendments infringing upon the basic structure of the Constitution could be struck down.
• Subsequent Amendments: Subsequent amendments, particularly the 44th Amendment in 1978, sought to restore the power of judicial review and reaffirm the judiciary's role as the guardian of the Constitution, thereby partially nullifying the restrictive measures of the 42nd Amendment.

In summary, while the 42nd Amendment aimed to limit the judiciary's power to review constitutional amendments, it sparked a significant judicial response that ultimately reinforced the principle of judicial review and the basic structure doctrine, ensuring a balance between parliamentary supremacy and constitutional integrity.