Constitution of India
Article 144A: Special provisions as to disposal of questions relating to constitutional validity of laws
Part V — The Union, Chapter IV — The Union Judiciary
Clause (1)
WHAT IT SAID: The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the constitutional validity of any Central law or State law shall be seven. WHAT IT MEANT: No constitutional validity question could be heard by fewer than 7 Supreme Court judges — this raised the threshold far above the normal 5-judge Constitution Bench requirement. KEY DOCTRINE: Attempted legislative override of Supreme Court's bench-constitution power — an encroachment on the separation of powers doctrine.
Clause (2)
WHAT IT SAID: A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two-thirds of the Judges sitting for the purpose hold it to be constitutionally invalid. WHAT IT MEANT: Even if a majority of judges on a 7-judge bench found a law unconstitutional, the law would survive unless two-thirds (e.g. 5 out of 7) agreed — making it extremely difficult to strike down legislation. KEY DOCTRINE: Supermajority requirement for judicial review — designed to insulate parliamentary legislation from judicial invalidation.
Constitutional Inspiration
SOURCE(S): 1. No direct foreign source — this was a legislative invention of the 42nd Amendment (1976), based on recommendations of the Swaran Singh Committee. INDIA'S SPECIFIC CONTEXT: 1. The Swaran Singh Committee (1976) recommended curtailing the judiciary's power to review constitutional amendments and government decisions. 2. The 42nd Amendment was a direct reaction to the Kesavananda Bharati judgment (1973), which established the Basic Structure Doctrine and limited Parliament's amending power. 3. The Indira Gandhi government viewed judicial review as an obstacle to socio-economic reform and sought to make it harder for courts to strike down laws. ORIGINAL INDIAN CONTRIBUTION: 1. No other democracy imposed a supermajority judicial requirement of this kind. 2. The framers of the 42nd Amendment felt this was needed to ensure Parliament's legislative supremacy over judicial review. 3. The provision was widely condemned as an attack on judicial independence and the separation of powers doctrine.
Constituent Assembly Debate
NOT APPLICABLE — Article 144A was NOT part of the original Constitution. It was inserted by the 42nd Amendment Act, 1976, during the Internal Emergency (1975–1977). It was NOT debated in the Constituent Assembly (1946–1949). PARLIAMENTARY DEBATE CONTEXT: 1. The 42nd Amendment Bill was introduced in Lok Sabha on 1 September 1976 by H.R. Gokhale (Minister of Law, Justice and Company Affairs). 2. Lok Sabha debated it from 25 October to 2 November 1976. 3. Rajya Sabha debated it from 4 to 11 November 1976. 4. Received Presidential assent on 18 December 1976. 5. Based on the Swaran Singh Committee recommendations (February 1976). 6. Indira Gandhi stated the amendment was 'responsive to the aspirations of the people' (Lok Sabha, 27 October 1976). 7. Opposition was virtually absent — most leaders were jailed under MISA during the Emergency. REPEAL DEBATE: 1. The 43rd Amendment Bill was introduced by Shanti Bhushan (Minister of Law, Janata Government). 2. Repealed Article 144A along with Articles 31D, 32A, 131A, 226A, and 228A. 3. Aimed to restore judicial independence eroded by the 42nd Amendment.
Landmark Judgments
LANDMARK JUDGMENTS (related to the 42nd Amendment and judicial review curbs including Article 144A): 1. Kesavananda Bharati v. State of Kerala (1973) — Established the Basic Structure Doctrine; held Parliament cannot destroy the Constitution's basic features, which provoked the 42nd Amendment. 2. Minerva Mills Ltd. v. Union of India (1980) — Struck down Sections 4 and 55 of the 42nd Amendment; reaffirmed that judicial review and limited amending power are part of the basic structure. 3. Indira Nehru Gandhi v. Raj Narain (1975) — Used the basic structure doctrine to strike down the 39th Amendment; affirmed free and fair elections as a basic feature. 4. Waman Rao v. Union of India (1981) — Clarified that the basic structure doctrine applies to amendments made after 24 April 1973 (date of Kesavananda Bharati judgment). NOTE ON ARTICLE 144A SPECIFICALLY: Article 144A was in force for approximately 14 months (February 1977 to April 1978). It was repealed legislatively by the 43rd Amendment before any major Supreme Court case directly tested its validity. The broader 42nd Amendment provisions were challenged in Minerva Mills. NOTABLE DISSENTS: 1. Justice P.N. Bhagwati in Minerva Mills (1980) — Dissented partly, arguing amended Article 31C was valid to the extent it advanced socio-economic justice through Directive Principles. SCHOLARS & JURISTS: 1. Nani Palkhivala — Called the 42nd Amendment a transparent attempt to destroy the Constitution's soul; wrote extensively against it in Indian Express (1976). 2. Granville Austin — Described Article 144A and related provisions as Emergency-era attempts to curtail judicial independence in 'Working a Democratic Constitution' (1999). 3. Prof. Upendra Baxi — Analyzed the Swaran Singh Committee Report and noted that while judicial review was sought to be restricted, the principle itself was not fully infringed.