Constitution 44th Amendment Act, 1978

The 44th amendment of the Indian Constitution was significant as it removed partially the distortions that were introduced into the Constitution by 42nd Amendment.  It wanted to provide that certain changes in the Constitution  which would have the effect of impairing its secular  or democratic  character,  abridging  or taking away  fundamental   rights prejudicing  or impeding free and fair elections on the basis of adult suffrage  and compromising the independence of judiciary.

Important Facts

  • The fundamental rights, including those of life and liberty, granted to citizens are capable of being taken away by a transient majority. It  was, therefore,  necessary  to  provide  adequate  safeguards   against  the recurrence  of  such a contingency in the future and to ensure to  the people  themselves  an  effective  voice in determining  the   form  of government  under which they are to live.  This was one of the primary objectives of the Act.
  • The Act wanted to take away the right to property from the category of fundamental rights and to provide that no person shall be deprived of his property save in accordance with law.
  • A  Proclamation of Emergency under article 352 has virtually the effect of amending the Constitution by converting it for the duration into that of a Unitary State and made the rights of the citizen to move the courts for the enforcement of fundamental rights including the right to life and liberty to be suspended.  Adequate safeguards were, therefore, necessary to ensure that this power is properly exercised and is not abused.

Important provisions

  • The right to property was taken away from the category of fundamental rights and made as a legal right. Article 19(1)(f), which guarantees the citizens the right to acquire, hold and dispose of property and article 31 relating to compulsory acquisition of property have been omitted.  It was, however, be ensured that the removal of property from the list of fundamental rights would not affect the right of minorities to establish and administer educational  institutions of their choice.
  • It amended articles 19, 22, 30, 31A, 31C, 38, 71, 74, 77, 83, 103, 105, 123, 132, 133, 134, 139A, 150, 166, 172, 192, 194, 213, 217, 225, 226, 227, 239B, 329, 352, 356, 358, 359, 360 and 371F and inserted articles 134A and 361A. Further removed articles 31, 257A and 329A. It also amended part 12 and schedule 9.
  • A new directive principle has been inserted in article 38, which provides that State shall secure social order for promotion of welfare of the people.
  • Article 74(1) was amended to include a provision that President may require the Council of Ministers to reconsider any advice tendered to him but the President has to act in accordance with the advice tendered after such reconsideration. Earlier, the President has to act in accordance with the advice tendered by the Council of Ministers.
  • Article 83 and 172 was amended to restore the terms of the House of the People and the State Assemblies to five years. Earlier the 42nd CAA had extended the life of LokSabha and RajyaSabha from 5 to 6 years.
  • Article 103 and 192 relating respectively to decisions on questions as to disqualification of members of Parliament and of State Legislatures have been replaced to provide that the decision on the question as to disqualification, by the President in the case of a member of a State Legislature, will be in accordance with the opinion of the Election Commission.

Amendments related to High Courts

  • Article 226 was amended to restore to the High Courts their power to issue writs for any other purpose besides the enforcement of fundamental rights.
  • Article 227 was amended to restore to the High Courts their power of superintendence over all courts and tribunals within its territorial jurisdiction.
  • Article 257A which was related to power of Central government to send its armed forces or other forces of the union to address a grave situation there was omitted.

Amendments related to emergency

Article 352 was amended with the following changes:

  • The ground of “internal disturbance” was substituted by the ground of “armed rebellion”.Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion. Internal disturbance not amounting to armed rebellion would  not  be  a ground  for   the  issue  of  a Proclamation.
  • A provision was included stating that the President will not issue a Proclamation of Emergency unless the decision of the Union Cabinet that such a Proclamation may be issued has to be communicated to him in writing.
  • Proclamation of Emergency has to be approved within a period of one month (instead of two months) by resolutions of both Houses of Parliament and has to be passed by a majority of the total membership of each house and by a majority of not less than two-thirds of the members present and voting in each House instead of a simple majority.
  • For continuance of the Proclamation of Emergency, approval by resolutions of both Houses will be required every six months.
  • Proclamation of Emergency will be revoked whenever the House of the People passes a resolution by a simple majority disapproving its continuance.
  • Ten per cent or more of the Members of Lok  Sabha can request  a  special   meeting  for considering a resolution for disapproving the Proclamation.

Article 356 relating to the President’s power to issue a proclamation in case of failure of constitutional machinery in a State is amended with the following provisions:

  • The provision with regard  to the breakdown of the constitutional machinery in the States was amended  so as to provide that a Proclamation issued under article 356 would  be  in  force  only for a period of six  months  in the  first instance and that it cannot exceed one year ordinarily. However, if a Proclamation of Emergency is in operation and the Election Commission certifies  that the extension of the President’s rule beyond a period of  one  year  is necessary on account  of  difficulties in holding elections  to  the  Legislative Assembly of the State  concerned, the period  of  operation of the Proclamation can be extended  beyond one year. This is subject to the existing limit of three years. These changes were made to ensure that democratic rule is restored to a State after the minimum period which will be necessary for holding elections.

Article 358 relating to the suspension of Article 19 was amended:

  • The provisions of Article 19 will become suspended only in case of a Proclamation of Emergency issued on the ground of war or external aggression and not in the case of a Proclamation of Emergency issued on the ground of armed rebellion.

Article 359 relating to suspension of the enforcement of the rights conferred by Part III of the Constitution during Emergencies was amended:

  • Enforcement of rights under Article 20 and 21 cannot be suspended.

Other amendments

  • Article 360 clause (5) was omitted which states that the satisfaction of the President as to the arising of a situation whereby the financial stability or credit of the country of any part is threatened is final and conclusive.
  • Article 361A was inserted to provide constitutional protection in respect of publication of a substantially true report of the proceedings of Parliament and of State Legislatures. But the protection will be absent in respect of proceedings of secret sittings.
  • Entries such as 87 and 130 were omitted in the ninth schedule of the constitution. Entry 87 dealt with the Representation of People Act, 1951, 1974 and Election Laws (Amendment) Act, 1975 etc. Entry 130 dealt the Prevention of Publication of Objectionable Matter Act, 1976).
  • As a further check against the misuse of the Emergency provisions
    and to put the right to life and liberty on a secure footing, provisions was made such that the power to suspend the right to move the court for
    the  enforcement of a fundamental right cannot be exercised in respect
    of the fundamental right to life and liberty.  The right to liberty was
    further strengthened by the provision that a law for preventivedetention cannot authorize, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there issufficient cause for such detention. Article 22 has provisions for preventive detention.An additional safeguard was provided  by  the requirement that the Chairman of an  Advisory  Board shall be a serving Judge of the appropriate High Court and that the Board shall be constituted in accordance with the recommendations  of
    the Chief Justice of that High Court.
  • With a view to avoiding delays, articles 132,133 and 134 was amended to insert a new article 134A to provide that a High Court should  consider the question of granting  a certificate for appeal to Supreme  Court  immediately  after the delivery  of  the judgment, decree, final order or sentence concerned on the basis of an oral  application by a party or, if the High Court deems fit so to do, on  its own motion.  Cases of special leave to appeal by Supreme Court will be left to be regulated exclusively by article 136.

Implications

It modified the emergency provisions of the Constitution and prevented it from being misused in the future. Supreme Court and High Courts were restored with their jurisdiction and power which they enjoyed before the 42nd amendment act was passed. It restored the secular and democratic ideals present in the Constitution.

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