43rd Amendment Act, 1977

The 43rd Amendment Act, 1977 (Act 2 of 1977) is a landmark constitutional amendment that rolled back several of the most controversial changes introduced by the 42nd Amendment of 1976. Enacted by the Janata‑led Parliament on 3 December 1977, it restored the Supreme Court’s power to review constitutional amendments, excised the right to property from the roster of fundamental rights, and repealed the sweeping alterations to Articles 31, 31A, 31B, 31C and 368 that had been inserted during the Emergency. By re‑establishing judicial oversight, the amendment re‑balanced the relationship between the legislature and the judiciary and marked the first major legislative reversal of the “mini‑Constitution” of 1976.

Historical Background

The 42nd Amendment, passed on 3 April 1976 under Prime Minister Indira Gandhi, sought to cement the executive’s dominance during the Emergency (1975‑77). It added clause (4) to Article 368, declaring that no amendment could be questioned in any court, and elevated the right to property to a fundamental right by inserting Article 31 and the ancillary Articles 31A‑31C. The Janata Party’s victory in the March 1977 general election ushered in a government intent on restoring democratic norms. Within months, the new administration introduced the 43rd Amendment to dismantle the Emergency‑era curbs on judicial review and to demote property rights back to ordinary legislation.

Key Provisions

• •Section 1 repealed clause (4) of Article 368, thereby removing the blanket bar on judicial scrutiny of constitutional amendments. This reinstated the Supreme Court’s authority under Article 13(2) to examine whether an amendment violates the basic structure of the Constitution.
• •Section 2 annulled the 42nd Amendment’s insertions of Articles 31, 31A, 31B and 31C. Consequently, the right to acquire, hold, and dispose of property ceased to be a fundamental right, reverting to a statutory guarantee later codified in Article 300A by the 44th Amendment (1978).
• •Section 3 restored the pre‑Emergency text of Article 13, reaffirming that any law inconsistent with the Constitution is void and that the courts may strike down such inconsistencies.
• •Section 4 amended Article 368 to delete the words “no amendment… shall be called into question in any court of law,” thereby re‑opening the constitutional amendment process to judicial oversight.

These provisions collectively reversed the most draconian aspects of the 42nd Amendment, while leaving untouched other changes such as the addition of the Fundamental Duties (Article 51A) and the expansion of the Directive Principles.

Mechanism of Restoration

The amendment operated through a straightforward legislative repeal: by expressly nullifying the specific clauses inserted by the 42nd Amendment, the Constitution automatically reverted to its earlier language. The removal of clause (4) of Article 368 meant that any future amendment would again be subject to the “basic structure” doctrine articulated by the Supreme Court in Kesavananda Bharati v. State of Kerala (1973). Thus, the 43rd Amendment did not create a new procedural mechanism but reinstated the pre‑Emergency status quo, allowing courts to assess whether an amendment infringes essential constitutional features such as democracy, secularism, or the separation of powers.

Significance

The 43rd Amendment is widely regarded as the constitutional “reset” that ended the Emergency’s legal legacy. By reviving judicial review, it reinforced the doctrine that Parliament cannot alter the Constitution’s core identity without oversight—a principle that underpins later Supreme Court rulings on amendments (e.g., Minerva Mills Ltd. v. Union of India, 1980). The removal of property from the fundamental rights chapter also reflected a shift toward a more egalitarian socio‑economic agenda, paving the way for the 44th Amendment’s insertion of Article 300A, which treats property as a legal, not a fundamental, right. Scholars cite the amendment as a pivotal moment when India’s constitutional architecture reclaimed its checks and balances after a period of authoritarian centralisation.

Current Status

All provisions of the 43rd Amendment remain in force. The Supreme Court continues to exercise the power of judicial review over constitutional amendments, as evidenced in cases such as *S. R. Bommai v. Union of India