Thirty-ninth Amendment of the Constitution of India
|The Constitution (Thirty-ninth Amendment) Act, 1975|
|Parliament of India|
|An Act further to amend the Constitution of India.|
|Enacted by||Lok Sabha|
|Date passed||7 August 1975|
|Enacted by||Rajya Sabha|
|Date passed||8 August 1975|
|Date assented to||10 August 1975|
|Date commenced||10 August 1975|
|Bill introduced in the Lok Sabha||The Constitution (Fortieth Amendment) Bill, 1975|
|Bill citation||Bill No. 60 of 1975|
|Introduced by||H.R. Gokhale|
|First reading||7 August 1975|
|Status: Not fully in force|
The Thirty-ninth Amendment of the Constitution of India, enacted on 10 August 1975, placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts. It was passed during the Emergency of 1975-1977. It was moved by the Congress government headed by Indira Gandhi to preempt a hearing by Supreme Court of India concerning the setting aside of Gandhi's election by the Allahabad High Court on the grounds of corrupt electoral practices.
The 39th Amendment attempted, among other provisions, to legitimize the election of Indira Gandhi in 1971. Article 329A put the elections of the Prime Minister and Lok Sabha Speaker outside the purview of the judiciary and provided for determination of disputes concerning their elections by an authority to be set up by a Parliamentary law. The Supreme Court struck down clauses (4) and (5) of the article 329A, which made the existing election law inapplicable to the Prime Minister's and Speaker's election, and declared the pending proceedings in respect of such elections null and void.
After that, the Allahabad High court did find her guilty and barred her from contesting in future elections and demanded her removal from the Lok Sabha. But Indira Gandhi moved ahead to declare a state of emergency and began her rule by decree.
During this time period, Indira Gandhi pushed for the thirty ninth amendment act to secure her position and prevent her removal from Indian politics. She also went ahead bringing about the forty second amendment act that introduced clause four and five of the article 368 to remove all restriction regarding the amendment power of the parliament and for such amendments not to be contestable in any court of law in India.
The Bill of The Constitution (Thirty-ninth Amendment) Act, 1975 was introduced in the Lok Sabha on 7 August 1975, as the Constitution (Fortieth Amendment) Bill, 1975 (Bill No. 60 of 1975). It was introduced by H.R. Gokhale, then Minister of Law, Justice and Company Affairs. The Bill sought to amend article 329; substitute new article for article 71; insert new article 329A; and include thirty-eight Central and State enactments in the Ninth Schedule to the Constitution. The Bill was considered by Lok Sabha on 7 August 1975 and passed on the same day with only formal amendments in clauses 1 and 4 replacing the word “Fortieth” by the word “Thirty-ninth”. The Bill, as passed by the Lok Sabha, was considered and passed by the Rajya Sabha on 8 August 1975. Clauses 2, 3 and 5 of the Bill were adopted, in the original form, by both Houses. The Bill, after ratification by the States, received assent from then President Fakhruddin Ali Ahmed on 10 August 1975. It was notified in The Gazette of India, and also came into force on the same date.
The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was ratified by more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that ratified the amendment are listed below:
Did not ratify:
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Section 2 of the 39th Amendment substituted a new article for the existing article 71 of the Constitution which pertains to matters relating to or connected with the election of (a) President or Vice-President. Clause (1) of the new article empowers Parliament to make a law to regulate any matter relating to or connected with the election of a President or Vice-President. Under clause (2), all doubts and disputes concerning their election shall be inquired into and decided by such authority or body as may be provided for by or under any law referred to in clause (1). Clause (3) of the article states that the validity of any law made under clause (1) and the decision of any authority or body under such law shall not be justiciable. If the election of a person as President or Vice-President is declared void under the relevant Parliamentary law, clause (4) provides that acts done by such person in the exercise and performance of the powers and duties of the office of President or Vice-President shall not be invalidated by reason of his election being declared void. By section 3, the provision of article 329, which bars interference by courts in electoral matters and which were non-obstante in character, have been subjected to the provisions of article 329A hereinafter inserted in the Constitution by section 4 of the 39th Amendment.
Section 4 inserted a new article 329A in the Constitution containing special provision as to elections to Parliament in the case of Prime Minister and Speaker. Clause (1) of article 329A states that the election to either House of Parliament of a person holding the office of Prime Minister at the time of such election or who is appointed as Prime Minister after such election, shall not be called in question except before such authority [not being such authority as is referred to in clause (b) of article 329] or body as may be provided under any law made by Parliament. Similar provision is contained in this clause as regards the election to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election. The provisions of clause (1) have been made subject to the provisions of Chapter II of Part V [except article 102(1)(e)]. Clause (2) of article 329A provides that the validity of any law made by Parliament, as is referred to in clause (1) above, and the decision of any authority or body under such law shall not be justiciable in any Court. Clause (3) states that where an election petition under article 329(b) in respect of the election of a person to either House of Parliament is pending, such election petition shall abate upon such person being appointed as Prime Minister or being chosen to the office of the Speaker. It further states that such election may, however, be called in question under any such law made by Parliament, as is referred to in clause (1).
According to clause (4), an election of a person mentioned in clause (1) would continue to be valid notwithstanding any order of a Court or a law made by Parliament to the contrary before the commencement of the present Amendment Act. Clause (5) provided for the disposal of any appeal or cross appeal against an order of any Court, as is referred to in clause (4), which is pending immediately before the commencement of the present Amendment Act. Such an appeal would have been disposed of in conformity with the provisions of clause (4). By virtue of clause (6), the provisions of article 329A would have effect notwithstanding anything contained in the Constitution. Clauses 4 and 5 were later held to be unconstitutional, and struck down by the Supreme Court.
Section 5 amended the Ninth Schedule to the Constitution by inserting therein 38 new entries, i.e. Entry 87 to Entry 124.
- "THE CONSTITUTION (THIRTY-NINTH AMENDMENT) ACT, 1975". india.gov.in. Retrieved 7 May 2012.
- "Constitution Amendment: Nature and Scope of the Amending Process" (PDF). Lok Sabha Secretariat. pp. 14–20. Retrieved 20 May 2015. This article incorporates text from this source, which is in the public domain.
- "Constitution Amendment in India" (PDF). Lok Sabha Secretariat. pp. 152–155. Retrieved 20 May 2015. This article incorporates text from this source, which is in the public domain.