Article 144A

Article 144A was a transient and repealed provision of the Constitution of India, introduced by the Constitution (Forty-second Amendment) Act, 1976, and subsequently omitted by the Constitution (Forty-third Amendment) Act, 1977. It sought to impose specific procedural requirements on the Supreme Court when dealing with questions concerning the constitutional validity of Central or State laws. Although it was in force for only a brief period, Article 144A remains significant as an illustration of how constitutional amendments during the Emergency period attempted to curtail judicial independence.

Introduction and Background

Article 144A was inserted into the Constitution during the period of internal Emergency (1975–1977), a time when several constitutional amendments were enacted to strengthen executive and legislative powers. The Forty-second Amendment, often referred to as the “Mini-Constitution,” brought sweeping changes to the balance of power among the organs of the State.
The primary aim of introducing Article 144A was to restrict the judiciary’s power of judicial review, especially its authority to strike down Central or State laws on grounds of unconstitutionality. By mandating a larger bench and a special majority for such decisions, the amendment sought to make it more difficult for the Supreme Court to invalidate legislation.

Text and Key Provisions of Article 144A

The text of Article 144A, as introduced by the Forty-second Amendment, stated:

“Where any question as to the constitutional validity of any Central law or State law is involved in any proceeding before the Supreme Court, the question shall be decided by a Bench of not less than seven Judges, and a law shall not be declared unconstitutional unless a majority of not less than two-thirds of the Judges sitting for the purpose hold it to be unconstitutional.”

From this, two main conditions emerged:

1. Minimum Bench Requirement:Any case involving the constitutional validity of a law had to be heard by a bench of at least seven Judges of the Supreme Court.
2. Two-Thirds Majority Requirement:A law could be declared unconstitutional only if at least two-thirds of the Judges on the bench concurred in striking it down.

These provisions represented a significant procedural constraint on the Court’s ability to review legislation.

Purpose and Legislative Intent

The stated objective of Article 144A was to ensure that important constitutional questions were deliberated upon by a larger and more authoritative bench, thereby adding weight and legitimacy to such judgments. However, the underlying political intent was widely perceived as an attempt to dilute judicial independence and limit the judiciary’s capacity to invalidate laws passed by the legislature.
By imposing numerical and majority thresholds, the amendment effectively made it more difficult for the Supreme Court to declare laws unconstitutional, thereby weakening the doctrine of judicial review, which is a cornerstone of the Constitution.

Criticism of Article 144A

Article 144A faced widespread criticism from jurists, legal scholars, and opposition leaders for several reasons:

• It restricted judicial flexibility, forcing the Supreme Court to convene large benches even in cases that did not warrant them.
• The two-thirds majority requirement undermined the principle of simple majority decision-making, which is foundational to judicial functioning.
• It was viewed as a deliberate attempt to curb the independence of the judiciary and tilt the balance of power towards the legislature and executive.
• It contradicted the basic structure doctrine established in Keshavananda Bharati v. State of Kerala (1973), which had affirmed judicial review as an essential feature of the Constitution.

In essence, Article 144A represented a move towards executive dominance over the judiciary, contrary to the constitutional vision of separation of powers.

Repeal by the Forty-third Amendment

After the Emergency ended and democratic governance was restored, the newly elected Janata Party Government undertook significant constitutional reforms to reverse many of the changes introduced by the Forty-second Amendment.
The Constitution (Forty-third Amendment) Act, 1977, passed on 13 April 1978 and effective from 1 February 1977, omitted Article 144A from the Constitution.
The repeal restored the earlier practice, allowing the Supreme Court to determine:

• The size and composition of benches hearing constitutional cases, and
• The decision-making process by simple majority, as followed under standard judicial norms.

Impact of the Repeal

The omission of Article 144A had several important consequences:

• Restoration of Judicial Independence: The repeal reinstated the Supreme Court’s discretion to constitute benches and decide constitutional questions without procedural restrictions.
• Reaffirmation of Judicial Review: The judiciary regained its unrestricted authority to strike down unconstitutional laws, preserving the basic structure of the Constitution.
• Return to Flexibility: The Court could again decide constitutional issues with benches of appropriate size, depending on the complexity and importance of the matter.
• Protection of Separation of Powers: The balance among the three branches of government—legislature, executive, and judiciary—was restored to its intended equilibrium.

Significance in Constitutional History

Article 144A is often cited in constitutional studies as an example of an ill-conceived attempt to weaken judicial oversight. Although short-lived, it serves as a reminder of the tensions that can arise between the judiciary and the legislature in a constitutional democracy.
Its introduction and repeal illustrate the resilience of India’s constitutional framework:

• The judiciary’s role as the final interpreter of the Constitution was reaffirmed.
• The basic structure doctrine, developed in Keshavananda Bharati (1973) and later reinforced in Minerva Mills Ltd. v. Union of India (1980), stood as a bulwark against any legislative attempts to undermine judicial authority.

Related Constitutional Amendments

• The Forty-second Amendment Act, 1976: Introduced Article 144A and other provisions intended to centralise power and curtail judicial review.
• The Forty-third Amendment Act, 1977: Repealed Article 144A, along with several restrictive provisions, as part of efforts to restore judicial and democratic integrity.

Case Law and Judicial Context

Because Article 144A was in force for only a brief period and was never substantially invoked, there are no significant Supreme Court judgments directly interpreting or applying it. However, its spirit and implications have been discussed in the broader context of judicial independence and constitutional amendments.
Later judgments such as:

• Minerva Mills Ltd. v. Union of India (1980) and
• L. Chandra Kumar v. Union of India (1997)

reaffirmed that judicial review is an inviolable part of the basic structure, thereby ensuring that similar legislative intrusions cannot recur.

Constitutional and Democratic Importance

The rise and fall of Article 144A represent a critical episode in India’s constitutional evolution. Its brief existence demonstrated how constitutional amendments, if motivated by political considerations, can threaten the core principles of democracy, judicial independence, and the rule of law.
The repeal of the Article reaffirmed India’s commitment to:

• An independent judiciary as the guardian of constitutional supremacy.
• The flexibility of the Supreme Court to adjudicate matters freely and efficiently.
• The principle that no procedural constraint can override the pursuit of justice.