The Amendments That Changed Part III

The Eighty-sixth Amendment, 2002

Three operations at once, which is why [Article 21A: Education as a Fundamental Right] treats it as the model case.

It inserted article 21A in Part III: free and compulsory education for children of six to fourteen.

It substituted article 45, which now directs early childhood care and education until the age of six.

And it inserted article 51A(k), the parental duty to provide educational opportunities between six and fourteen.

It is the only occasion on which a claim was promoted from Part IV into Part III by amendment.

The others worth naming

The First Amendment, 1951, added clause (4) to article 15, added public order, friendly relations with foreign States and incitement to an offence to article 19(2), and created the Ninth Schedule with article 31B.

The Twenty-fourth Amendment, 1971, inserted article 13(4) to put constitutional amendments outside article 13.

The Forty-third Amendment, 1977, omitted article 32A, restoring the Supreme Court's power to consider the constitutional validity of a State law in an article 32 proceeding.

The Ninety-third Amendment, 2005, inserted article 15(5) on admissions to educational institutions including private unaided ones.

The One Hundred and Third Amendment, 2019, inserted article 15(6) and article 16(6) on economically weaker sections, with a ten per cent ceiling.

The pattern

Three observations, and they are the analysis rather than the list.

Part III has been narrowed once and widened once. The removal of property is the only occasion on which a fundamental right was abolished. The insertion of article 21A is the only occasion on which one was created.

The equality articles absorb most of the traffic. Articles 15 and 16 have been amended repeatedly, always to permit a special provision, which reflects a settled constitutional preference for substantive over formal equality.

And the machinery articles were repaired after they failed. Article 32A was removed, articles 20 and 21 were put outside article 359, and article 31C's widened form was struck down. Every one of those is a correction of something that had gone wrong.

Worked example

A question on the development of human rights in the Indian Constitution, or on the Emergency.

Do not list every amendment. Give the three that matter and name four or five others.

On the Forty-second, give both sides: article 39A and article 48A on one hand, the widened article 31C on the other.

On the Forty-fourth, lead with articles 20 and 21 being taken outside article 359, then property, then the unnotified article 22(4).

On the Eighty-sixth, give the three simultaneous operations.

Close on the pattern: narrowed once, widened once; equality absorbs the traffic; and the machinery articles were repaired after failing.

What it does NOT mean

It does not mean the Forty-second Amendment was wholly bad. Articles 39A and 48A came from it and are used constantly.

It does not mean the Forty-fourth completed the repair. The article 22(4) substitution was never notified.

And it does not mean amendments to Part III are unlimited. The basic structure doctrine constrains them, which is why the widened article 31C fell.

Quick revision

• Forty-second, 1976: widened article 31C to cover any directive and bar judicial inquiry, struck down; inserted 39A, 43A, 48A and substituted 39(f); inserted Part IVA, article 51A; added socialist and secular to the Preamble.
• Forty-fourth, 1978: omitted article 31 and article 19(1)(f), inserting article 300A; excluded articles 20 and 21 from article 359; inserted article 38(2); substituted article 22(4), three months to two, which has never been notified; required armed rebellion for an article 352 proclamation.
• Eighty-sixth, 2002: inserted article 21A, substituted article 45, inserted article 51A(k). The only promotion from Part IV to Part III.
• Others: First 1951, article 15(4), three grounds added to 19(2), the Ninth Schedule; Twenty-fourth 1971, article 13(4); Forty-third 1977, omitted article 32A; Ninety-third 2005, article 15(5); One Hundred and Third 2019, articles 15(6) and 16(6), ten per cent.
• The pattern: narrowed once (property), widened once (education); equality absorbs the traffic; the machinery articles were repaired after failing.

Test yourself

1. What did the Forty-second Amendment do to Parts III and IV, and how should it be assessed? It widened article 31C so that a law giving effect to any directive principle, and not merely to article 39(b) and (c), would be immune from challenge under articles 14 and 19, and it added a provision barring any court from asking whether the law in fact gave effect to the directive. It inserted articles 39A on free legal aid, 43A on worker participation and 48A on the environment into Part IV, and substituted article 39(f) on children. It inserted the whole of Part IVA, article 51A, the Fundamental Duties. And it added the words socialist and secular to the Preamble.

It should be assessed as double-edged, and an answer that treats it as uniformly bad is as wrong as one that treats it as uniformly good. The widened article 31C was an attempt to subordinate Part III to Part IV by amendment and did not survive: it was struck down on the reasoning that the balance between the two Parts is itself a basic feature which no amendment may destroy. But articles 39A and 48A came from the same amendment and are among the most heavily used provisions in Part IV, the first being the basis on which free legal aid became an element of the fair procedure article 21 requires, and the second being, with article 51A(g), the foundation of Indian environmental law.

2. Why is the Forty-fourth Amendment the one that matters most on this paper? Because it is the constitutional response to the Emergency and it changed the two things that had failed. It excluded articles 20 and 21 from the article 359 power, so that the enforcement of the protection against retrospective punishment, double jeopardy and self-incrimination, and of the protection of life and personal liberty, can no longer be suspended during any emergency. That answers directly the position of 1975 to 1977, in which a detained person could not approach a court even to allege that the detention had no legal authority at all, and it is the single most important amendment for a paper about the protection and enforcement of human rights.

It also removed the right to property from Part III, omitting article 31 and article 19(1)(f) and inserting article 300A outside Part III, so that property is now protected only by the requirement of authority of law. It inserted article 38(2) on inequalities in income, status, facilities and opportunities among groups as well as individuals. And it required armed rebellion rather than internal disturbance as a ground for a proclamation under article 352, with the Cabinet's advice in writing. The qualification is that it also substituted a new article 22(4) reducing preventive detention without an Advisory Board from three months to two and requiring a serving High Court judge as Chairman, and that substitution has never been brought into force, the bare Act still printing it as a change whose date is yet to be notified.

3. What pattern emerges from the amendments to Part III? Three observations. Part III has been narrowed once and widened once. The removal of the right to property by the Forty-fourth Amendment is the only occasion on which a fundamental right has been abolished, and the insertion of article 21A by the Eighty-sixth is the only occasion on which one has been created. That is a remarkably stable record for a Part that has been in force for over seventy years and has been amended in many other respects.

The equality articles absorb most of the traffic. Articles 15 and 16 have been amended repeatedly, by the First Amendment adding article 15(4), the Ninety-third adding article 15(5), the One Hundred and Third adding articles 15(6) and 16(6), and earlier amendments adding articles 16(4A) and 16(4B). Every one of those permits a special provision rather than restricting one, which reflects a settled constitutional preference for substantive over formal equality. And the machinery articles have been repaired after they failed: article 32A was omitted once its effect on the article 32 jurisdiction was apparent, articles 20 and 21 were put beyond suspension after the Emergency showed what suspension meant, and article 31C's widened form was struck down when it threatened the balance between the Parts. Each of those is a correction rather than a design change, which is the most useful thing to say about the amendment history in an answer about protection and enforcement.