Forty-fourth Amendment of the Constitution of India
The Forty-fourth Amendment of the Constitution of India (1978–79), officially titled The Constitution (Forty-fourth Amendment) Act, 1978, was enacted by the Janata Party government to restore the balance of constitutional power that had been distorted during the Emergency (1975–1977). Described as the “Restoration Amendment”, it sought to reverse several authoritarian provisions introduced by the Forty-second Amendment (1976) and to reaffirm fundamental rights, judicial review, and democratic safeguards. Receiving Presidential assent on 30 April 1979, it remains one of the most consequential post-Emergency reforms, reaffirming the supremacy of constitutional democracy over executive absolutism.
Historical and Political Background
Following the Emergency imposed by Prime Minister Indira Gandhi, the Constitution had been extensively altered through the Forty-second Amendment, which expanded Parliament’s amending power, curtailed judicial independence, and subordinated fundamental rights to Directive Principles of State Policy. The 1977 general elections—India’s first after the Emergency—brought the Janata Party to power with a clear mandate to “restore the Constitution to the condition it was in before the Emergency.”
The Janata government, led by Morarji Desai, introduced two complementary constitutional measures: the Forty-third Amendment (1977), which repealed six Emergency-era provisions restricting judicial review, and the Forty-fourth Amendment (1978), which undertook a comprehensive structural correction—strengthening fundamental rights, reinforcing federalism, and restricting arbitrary exercise of emergency powers.
Legislative History
The Constitution (Forty-fourth Amendment) Bill, 1978 (Bill No. 88 of 1978) was introduced in the Lok Sabha on 15 May 1978 by Shanti Bhushan, the Minister of Law, Justice and Company Affairs. Initially designated as the “Forty-fifth Amendment Bill,” it was renumbered during debate.
The Bill proposed to amend, omit, or insert over fifty provisions, including Articles 19, 22, 30, 31A, 31C, 38, 74, 83, 352–360, 368, and others; introduce new Articles such as 134A and 361A; and repeal entire parts like Part XIV-A (Tribunals).
- Lok Sabha debates took place between 7 and 23 August 1978, with wide support for restoring democratic norms.
- Rajya Sabha considered the Bill from 28 to 31 August 1978, making certain amendments and rejecting clauses requiring a special majority, including those altering Articles 31C, 366, and 368.
- The Lok Sabha accepted the Rajya Sabha’s revisions on 7 December 1978.
- Following ratification by more than half the States, the Bill received Presidential assent on 30 April 1979.
Sections were brought into force in phases: the bulk of the provisions commenced on 30 April 1979, while others became effective on 1 August 1979 and 6 September 1979.
Objectives and Philosophy
The Amendment pursued three broad objectives:
- To restore fundamental rights and constitutional guarantees diluted during the Emergency.
- To institutionalise safeguards against misuse of emergency powers by the Executive.
- To reaffirm the independence of the judiciary and the integrity of democratic and federal institutions.
It aimed to secure civil liberties, protect press freedom, curb arbitrary detention, and ensure that emergency proclamations could never again be used for political purposes.
Major Constitutional Changes
1. Fundamental Rights and Liberties Restored
- Article 19: The right to freedom of speech, movement, and association—suspended during the Emergency—was reaffirmed. The restrictions allowing suspension of these rights under Article 358 were limited to emergencies declared on grounds of war or external aggression, not internal disturbance.
- Article 21: The right to life and personal liberty was made non-suspendable, even during a national emergency. This reversed the notorious ADM Jabalpur v. Shivkant Shukla (1976) precedent, which had held that rights could be suspended entirely during emergencies.
- Article 22: The scope of preventive detention was restricted; detainees were entitled to greater procedural safeguards, and advisory boards now had to include serving judges of High Courts.
2. Emergency Powers and Federal Safeguards
The Amendment substantially restructured Part XVIII (Articles 352–360) concerning emergencies:
- Article 352: The grounds for a National Emergency were narrowed from “internal disturbance” to “armed rebellion”, thus limiting executive discretion.
- Presidential satisfaction under Article 352 became justiciable—the President could proclaim an Emergency only on written advice of the Cabinet, which had to be laid before Parliament for approval.
- Parliamentary approval of an Emergency now required a special majority (two-thirds) and renewal every six months, replacing the previous indefinite extension mechanism.
- Article 356: Safeguards were introduced to prevent misuse of President’s Rule in States, ensuring continuity of legislative oversight.
- Article 358–359: The suspension of fundamental rights during an emergency was restricted to those explicitly mentioned in the proclamation, ensuring that Articles 20 and 21 would remain operative.
3. Curtailment of Executive Dominance
- Article 74: While retaining the provision that the President acts on ministerial advice, the Amendment authorised the President to require reconsideration of such advice once, ensuring a constitutional check.
- Article 123: Limited the duration of Ordinances and required Parliament to approve them within six weeks of reassembly, curbing excessive executive law-making.
4. Legislature and Democratic Tenure
- Article 83 and 172: Restored the normal five-year term of the Lok Sabha and State Legislative Assemblies, reversing the six-year extension imposed by the Forty-second Amendment.
- Article 105 and 194: Clarified the privileges of Parliament and State Legislatures, ensuring they were subject to constitutional discipline and judicial review.
5. Judiciary and Federalism
- Articles 132–134A: Streamlined appellate procedures, ensuring easier access to the Supreme Court in constitutional matters.
- Articles 225–227: Reinforced High Courts’ supervisory jurisdiction, previously curtailed during the Emergency.
- Article 239B: Revised provisions relating to Union territories, restoring legislative balance between the Centre and territories.
6. New Provisions Introduced
- Article 134A: Empowered High Courts to certify cases fit for appeal to the Supreme Court.
- Article 361A: Granted limited immunity to media for accurate reporting of parliamentary proceedings, protecting press freedom.
- Chapter IV in Part XIII: Introduced provisions for saving certain State laws, refining the relationship between Centre and States.
7. Omissions and Repeals
- Article 31 (Right to Property): Repealed from Part III, thereby ceasing to be a fundamental right. It was repositioned as a constitutional legal right under Article 300A.
- Articles 257A and 329A: Omitted—these had enabled central directives to States and excluded certain electoral disputes from judicial review.
- Part XIV-A (Tribunals): Proposal to omit this section was defeated in the Rajya Sabha; thus, it remained.
Ratification by States
The Amendment required ratification under Article 368(2), as it affected federal provisions. It was endorsed by Andhra Pradesh, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Rajasthan, Sikkim, Tamil Nadu, and West Bengal.States that did not ratify included Karnataka, Kerala, Uttar Pradesh, Jammu and Kashmir, and Tripura.
Significance and Constitutional Impact
The Forty-fourth Amendment represents the constitutional reassertion of democracy after authoritarian encroachment. Its enduring contributions include:
- Reassertion of Fundamental Rights: Ensured Article 21 could never again be suspended and restored the vitality of Articles 14 and 19.
- Constitutionalised Accountability: Made emergency proclamations subject to judicial review and parliamentary control.
- Reinstated Federal Balance: Restricted central interference in States under Article 356.
- Right to Property Redefined: Transitioned from a justiciable fundamental right to a legal right, enabling land reforms while protecting against arbitrary deprivation.
- Enhanced Press and Civil Liberties: Article 361A reinforced the role of free media as an institutional watchdog.
- Basic Structure Doctrine Strengthened: The amendment legislatively affirmed the Supreme Court’s interpretation in Kesavananda Bharati (1973) that Parliament’s amending power is limited.
Evaluation and Legacy
The Forty-fourth Amendment stands as a constitutional milestone, completing the post-Emergency democratic rehabilitation initiated by the Forty-third Amendment. It restored equilibrium among the three branches of government, redefined the contours of emergency powers, and fortified individual liberty as the core of constitutional governance.
In Indian constitutional history, the Amendment symbolises a return from authoritarianism to constitutionalism, reaffirming that popular sovereignty operates through the discipline of the Constitution, not through unchecked executive will. By codifying lessons from the Emergency, it ensured that no future government could repeat the suspension of democracy witnessed between 1975 and 1977.
In effect, the Forty-fourth Amendment of 1978–79 re-established the moral and structural architecture of the Indian Republic, marking the restoration of the Constitution as the supreme safeguard of liberty, equality, and the rule of law.