This article was written and edited by the team at Anoop & Co. – AOR Anoop Prakash Awasthi, Adv. Parthvi Ahuja and Ananya Singh.
The 44th constitutional amendment is considered to be one of the most important constitutional amendments in constitutional history. The 44th Amendment Act, 1978 was introduced to provide adequate safeguards against the recurrence of the tendency to take over the fundamental rights by the transient majority in the future and to ensure to the people an effective voice in determining the form of government under which they are to live.
44th Amendment is an act that was introduced into the constitution by 45th Amendment Bill in the year 1978. In 1976, with the introduction of the 42nd Amendment Act, there were various provisions that were amended against the will of the citizens hence, to reverse those changes and safeguard the interests of the nation, 44th Amendment Act was called into action.
The Indian Constitution’s Article 352 was utilised to declare a national emergency in India. Prior to the 44th Amendment Act of 1978, Article 352 of the Constitution stated that the President of the country could declare an emergency if she or he was satisfied that there was a grave threat to the security of the entire country or territory of India, whether caused by war, external aggression, or internal disturbances. The President issued the proclamation in accordance with Article 352, after Prime Minister Indira Gandhi made a decision and submitted it to the President without consulting her cabinet. A day later, Indira Gandhi’s Cabinet Ministers absolutely supported this move. The proclamation was accepted by both chambers of Parliament with a simple majority.
According to previous rules, the state of emergency could continue unless there is a new parliamentary decision. After the declaration of the state of emergency in 1975, the laws governing the state of emergency were carefully adjusted and clarified. The meaning of freedom of speech and expression was restored, the rule of law was restored.
The Statement of Objects and Reasons that was appended to the Constitution (Forty-fifth Amendment) Bill, 1978 which was enacted as the Constitution (Forty-fourth Amendment) Act, 1978 provided the following:
The Constitution’s fundamental rights, including those of life and liberty, can be taken away by a temporary majority, as recent experience has demonstrated. As a result, proper protections must be put in place to prevent such a situation from occurring again in the future, as well as ensure that the people have a meaningful say in deciding the type of government they will live under. One of the key goals of this Bill was to address this issue.
As a result, it is proposed to provide certain changes to the Constitution that would have the effect of undermining its secular or democratic character, abridging or taking away fundamental rights, prejudicing or impeding free and fair elections on the basis of adult suffrage. Jeopardising the independence of the judiciary can be made only if they are approved by the people of India by a majority of votes cast in a referendum in which at least 51% of the electorate participated. This is being ensured by amending Article 368 of the Indian Constitution.
Because of the elevated status desired for fundamental rights, the right to property, which has been the subject of several constitutional amendments, would cease to be a fundamental right and become just a legal right. Article 19 will be amended as needed for this purpose, and Article 31 will be deleted. The elimination of property from the list of fundamental rights would, however, ensure that minorities’ freedom to create and govern educational institutions of their choosing would not be harmed.
Similarly, those holding land for personal cultivation and within the ceiling limit would not be harmed in their entitlement to obtain market value compensation.
While property would no longer be a fundamental right, it would be given explicit recognition as a legal right, with the condition that no one may be dispossessed of their property unless in compliance with the law.
A proclamation of emergency under Article 352 effectively amends the Constitution by changing it into a unitary state for the length of the emergency and allowing citizens to petition the courts to have fundamental rights, such as the right to life and liberty, suspended. As a result, adequate safeguards are required to guarantee that this authority is appropriately employed and not abused. As a result, it is advocated that a proclamation of emergency be issued only when India’s or any portion of its territory’s security is endangered by war, external aggression, or armed rebellion. The internal disturbance that does not get to the level of armed rebellion would not be grounds for issuing a proclamation.
Furthermore, in order to guarantee that a proclamation is only issued after careful study, it is proposed that an emergency be declared only on the basis of written advice from the Cabinet to the President. As a proclamation of emergency effectively amends the Constitution, it is stipulated that the proclamation must be approved by the two Houses of Parliament with the same majority required to amend the Constitution and that such approval must be obtained within one month. Any such proclamation would only remain in effect for six months and could only be renewed by resolutions voted by the same majority. If the Lok Sabha passes a resolution condemning the proclamation’s continuation, the proclamation will likewise come to an end. A special meeting can be called by 10% or more of the Lok Sabha members to examine a motion condemning the proclamation.
It would be provided 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, as a further check against the misuse of the emergency provisions and to put such right on a secure footing. The stipulation that law for preventative detention cannot permit detention for more than two months in any situation unless an Advisory Board has certified that there are adequate grounds for such detention strengthens the right to liberty even further. The requirement that the Chairman of an Advisory Board is a serving Judge of an appropriate High Court, and that the Board is constituted in line with the Chief Justice’s recommendations, would provide additional protection.
A special provision is being created to protect the right of the media to report on the events in the Parliament and state legislatures openly and without restriction. The clause relating to the breakdown of the constitutional machinery in the states is being revised to specify that a proclamation issued under Article 356 would only be in effect for six months in the first instance and that it could not last more than one year in most cases. However, if a proclamation of emergency is in effect and the Election Commission certifies that extending the President’s rule beyond one year is necessary due to difficulties in holding elections to the State’s Legislative Assembly, the proclamation’s period of operation can be extended beyond one year. This is subject to the current three-year restriction. These measures would ensure that a state’s democratic governance is restored after the bare minimum of time required to organise elections.
To avoid delays, it is proposed to amend Articles 132, 133, and 134 and add a new Article 134A to provide that a High Court should consider granting a certificate for an appeal to the Supreme Court on the basis of an oral application by a party or, if the High Court deems it appropriate, on its own motion, immediately after the delivery of the judgement, decree, final order, or sentence in question. Article 136 will be the exclusive rule in cases of special permission to appeal granted by the Supreme Court.
Other amendments suggested in the Bill are primarily aimed at eliminating or rectifying constitutional distortions that arose as a result of legislation adopted during the Internal Emergency.
The 44th Amendment to the Indian Constitution was significant because it partially reversed the distortions introduced by the 42nd Amendment. It changed the Constitution’s emergency provisions to prevent them from being abused in the future. The Supreme Court and the High Courts were given back the jurisdiction and power that they had before the 42nd Amendment. It reinstated the Constitution’s secular and democratic values.
