This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the 44th amendment of the Indian Constitution. 

Introduction 

The 44th Amendment to the Indian Constitution is an Act that was introduced into the Constitution by the 45th Amendment Bill in 1978. With the introduction of the 42nd Amendment  Act, 1976, various provisions of the Indian Constitution were subjected to modifications and alteration against the will of the citizens of the nation. The same was enacted by the Indira Gandhi-led Indian National Congress during the Emergency, declared under Article 352. In order to reverse those changes and establish harmony between the State and its people, the Constitution (Forty-fourth Amendment) Act, 1978 was welcomed. This article provides a detailed analysis of the 44th amendment of the Indian Constitution. 

Scenario prior to the introduction of the 44th Amendment Act, 1978

Article 352 of the Indian Constitution was used to declare a national emergency in India. Prior to the 44th Amendment Act, 1978, Article 352 of the Constitution stated that the President of the country could declare an emergency if she or he was satisfied that a grave threat to the security of the whole of India or territory of India remained, whether caused by war, external aggression, or internal disturbances. According to Article 352, the President issued the proclamation after Prime Minister Indira Gandhi made a decision and transmitted it to the President without consulting her cabinet. Indira Gandhi’s Cabinet Ministers had undoubtedly endorsed this decision a day later. The declaration was approved by a simple majority in both chambers of the Parliament. The emergency might last as long as there was no new Parliamentary decision, according to the previous rule.

Following the 1975 emergency, the laws surrounding the proclamation of emergency were carefully adjusted and specified. The importance of free speech and dissent was re-established, and the rule of law was re-established. However, because we are still in the early stages of democracy, there are many unanswered questions.

The Constitution (Forty-fourth Amendment) Act, 1978 

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: 

1. 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.
2. 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.
3. 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.
4. Similarly, those holding land for personal cultivation and within the ceiling limit would not be harmed in their entitlement to obtain market value compensation.
5. 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.
6. 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.
7. 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.
8. 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. 
9. 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.
10. 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.
11. 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.

A brief overview of the changes introduced by the 44th Amendment Act, 1978

The changes that were introduced by the 44th Amendment Act, 1978 have been laid down hereunder for the readers to get a glimpse of the same at one go.

1. Amendment of the Constitution (Forty-second Amendment) Act, 1976: In the Constitution (Forty-second Amendment) Act, 1976, Sections 18, 19, 21, 22, 31, 32, 34, 35, 58 and 59 shall be omitted. 
2. Amendment of Article 19 (Right to Freedom): The changes that were brought in Article 19 of the Indian Constitution by the 44th Amendment Act, 1978 have been provided hereunder: 

1. In Clause (1) sub-clause (e), the word “and” shall be inserted at the end.
2. Sub-clause (f) was omitted.
3. In clause (5), for the words, brackets and letters “sub-clauses (d), (e) and (f)”, the words, brackets, and letters “sub-clauses (d) and (e)” were substituted.
4. Amendment of Article 22 (Protection against arrest and detention in certain cases): 

1. Clause 4 of Article 22 has been subjected to changes.
2. In clause (7), sub-clause (a) has been omitted, sub-clause (b) has been re-lettered as sub-clause (a) and sub-clause (c) has been re-lettered as sub-clause (b) and in the sub-clause, as so re-lettered, for the words, brackets, letter, and figure “sub-clause (a) of clause (4)”, the word, brackets and figure “clause (4)” has been substituted.
3. Amendment of Article 30 (Right of minorities to establish and administer educational institutions): 

1. Clause 1A was inserted, and
2. The sub-heading “Right to Property” occurring after Article 30 of the Constitution was omitted.

5. Omission of Article 31 (Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication): The right to property was removed from the list of fundamental rights and elevated to the status of a legal right. Article 31 of the Constitution, which deals with the forced acquisition of property, has been removed.
6. Amendment of Article 31A (Saving of laws providing for acquisition of estates, etc): In clause (1) of Article 31A of the Constitution, the words and numbers “Article 14, Article 19, or Article 31″ should be replaced with the words and figures “Article 14 or Article 19.”
7. Amendment of Article 31C (Saving of laws giving effect to certain directive principles): “Article 14 or Article 19” shall be substituted with the words and figures “Article 14, Article 19, or Article 31” in Article 31C of the Constitution.
8. Amendment of Article 38 (State to secure a social order for the promotion of welfare of the people): In Article 38, a new directive principle has been added, stating that the State must maintain social order in order to promote the welfare of the people.
9. Substitution of new article for Article 71: Article 71 was substituted with a new article altogether concerning matters relating to, or connected with, the election of a President or Vice-President, by the 44th Amendment Act, 1978. 
10. Amendment of Article 74: Article 74(1) was amended to contain a provision that the President may request that the Council of Ministers rethinks any advice given to him, but that the President must act on the advice given after such reconsideration. Previously, the President was required to act in line with the Council of Ministers’ advice.
11. Amendment of Article 77 (Matters relating to, or connected with, the election of a president or Vice President): Clause 4 of Article 77 was omitted by the Amendment Act of 1978.
12. Amendment of Article 83 (Duration of Houses of Parliament) and 172 (Duration of State Legislatures): The periods of the House of the People and the State Assemblies were restored to five years by amending Articles 83 and 172. The Lok Sabha and Rajya Sabha had their terms extended from 5 to 6 years by the 42nd Constitutional (Amendment) Act.
13. Substitution of new article for Article 103 (Decision on questions as to disqualifications of members) and 192: Articles 103 and 192, relating to decisions on questions of disqualification of members of Parliament and State Legislatures, have been replaced to provide that in the case of a member of a State Legislature, the President’s decision on the question of disqualification will be in accordance with the Election Commission’s opinion.
14. Amendment of Article 105 (Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof): In clause (3) of Article 105 of the Constitution, for the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution,” the words, figures, and brackets “shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978” are substituted.
15. Amendment of Article 123 (Power of President to promulgate Ordinances during recess of Parliament): Clause 4 of Article 123 has been omitted. 
16. Amendment of Article 132 (Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases):  In Article 132 of the Constitution, 

1. The words, figures, and letter “if the High Court certifies under Article 134A” shall be substituted for the words “if the High Court certifies” in clause (1),
2. Clause (2) shall be omitted, and
3. In clause (3), the words “or such leave is granted,” and the words “and, with the leave of the Supreme Court, on any other ground” shall be omitted.

17. Amendment of Article 133 (Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters): In clause (1) of Article 133 of the Constitution, the words, numbers, and letter “if the High Court certifies under Article 134A” should be changed with “if the High Court certifies under Article 134 A.”
18. Amendment of Article 134 (Appellate jurisdiction of Supreme Court in regard to criminal matters): The words, numbers, and letter “certifies under Article 134A” was substituted for the word “certifies” in sub-paragraph (c) of clause (1) of Article 134 of the Constitution.
19. Insertion of new Article 134A (Certificate for appeal to the Supreme Court Every High Court, passing or making a judgement, decree, final order, or sentence, referred to in clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or clause ( 1 ) of Article 134): Article 134 A was inserted, which deals with certificates for an appeal to the Supreme Court. 
20. Amendment of Article 139A (Transfer of certain cases): Clause (1) of Article 139 A was subjected to changes.
21. Amendment of Article 150 (Form of Accounts of The Union and of The States): The words “on the advice of” were changed with the words “after consultation with” in Article 150 of the Constitution.
22. Amendment of Article 166 (Conduct of business of the Government of a State): Clause (4) of Article 166 of the Constitution was omitted.
23. Amendment of Article 194 (Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof): In clause (3) of Article 194 of the Constitution, for the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution,” the words, figures, and brackets “shall be those of that House, and of its members and committees, immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978” were substituted.
24. Amendment of Article 213 (Power of Governor to promulgate Ordinances during recess of Legislature): In Article 213 of the Constitution, clause (4) was omitted.
25. Amendment of Article 217 (Appointment and conditions of the office of a Judge of a High Court): In Article 217 of the Constitution, in clause (2),

1. The term “or” at the end of sub-clause (b) should be omitted;
2. The sub-clause (c) was omitted,
3. In the Explanation, clause (a) was re-lettered as clause (aa), and the following was inserted before a clause, “(a) in computing the period during which a person has held a judicial office in the territory of India, any period after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post”
4. Amendment of Article 225 (Jurisdiction of existing High Courts): The following proviso was placed at the end of Article 225 of the Constitution:

“Provided that any restriction that applied to the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or any act ordered or done in the collection thereof immediately before the commencement of this Constitution shall no longer apply to such exercise.”

27. Amendment of Articles 226 (Power of High Courts to issue certain writs) and 227 (Power of superintendence over all courts by the High Court): The High Court’s ability to issue writs for purposes other than the enforcement of fundamental rights were restored by amending Article 226. The High Court’s authority of supervision over all courts and tribunals within its geographical jurisdiction was restored by amending Article 227. It deleted the sections that stripped the court of the ability to decide on the President, Vice President, Prime Minister, and Speaker of the Lok Sabha’s election disputes.
28. Amendment of Article 239B (Power of administrator to promulgate Ordinances during recess of Legislature): In Article 239B of the Constitution, clause (4) was omitted.
29. Omission of Article 257A: Article 257A, which dealt with the ability of the Central Government to dispatch its military forces or other Union forces to deal with a grave crisis, was removed.
30. Insertion of new Chapter IV in Part XII: In Part XII of the  Indian Constitution, after Chapter III, Chapter IV dealing with the Right to Property under Article 300A was inserted.
31. Amendment of Article 329 (Bar to interference by courts in electoral matters) and omission of Article 329 A: The words, numbers, and letter “but subject to the conditions of Article 329A” were eliminated from the beginning paragraph of Article 329 of the Constitution. Article 329 A of the Constitution was omitted. 
32. Amendment of Articles 352, 356, and 358: Proclamation of emergency under the Act of 1978 was subjected to several changes which have been discussed later in this article.
33. Amendment of Article 359 (Suspension of the enforcement of the rights conferred by Part III during emergencies): Article 359 of the Constitution reads as follows:

1. In clauses (1) and (1A), the words, figures, and brackets “the rights given by Part III (excluding Articles 20 and 21)” was changed with the words, figures, and brackets “the rights conferred by Part III (except Articles 20 and 21)”,
2. the following sentence was placed after clause (1A):

“(1B) The provisions of paragraph (1A) do not apply-

(i) to any law that does not contain a recital stating that it is applicable to the Proclamation of Emergency in effect at the time it is issued; or

(ii) to any executive action not conducted in accordance with a statute providing such a recital “.

34. Amendment of Article 360 (Provisions as to financial emergency): Article 360, clause (5), was removed, which stipulates that the President’s satisfaction as to the occurrence of a situation threatening the country’s financial stability or credit in any section is final and conclusive.
35. Insertion of new Article 361A (Protection of publication of proceedings of Parliament and State Legislatures): Article 361A of the Indian Constitution deals with the protection of the publication of proceedings of Parliament and State Legislatures.
36. Amendment of Article 371F (Special provisions with respect to the State of Sikkim Notwithstanding anything in this Constitution): In clause (c) of Article 371F of the Indian Constitution, the words “six years” shall be replaced with “five years,” and the words “five years” shall be replaced with “four years” in both instances where they appear.
37. Amendment of the Ninth Schedule: In the Ninth Schedule to the Indian Constitution, Entries 87, 92, and 130 were omitted.

Right to property under 44th Amendment Act, 1978

The scope of the right to property was being reduced by the legislature from the originally drafted Constitution, year by year. The Constitution’s 44th Amendment, enacted in 1978, marked a significant shift. It changed the Constitution’s right to property by declassifying it as a fundamental right and reclassifying it as a constitutional right. Article 300A, which corresponds to Article 31(1) solely, has been put under Part XII under a separate Chapter IV ‘Right To Property,’ while Article 19 (1) (f) and Article 31 of the Constitution of India have been eliminated. The above-mentioned Article took effect in regards to;

1. A shift in the legislature’s attitude on the necessity to provide compensation when acquiring or requisitioning property.
2. The intimate connection between property and other basic rights.
3. Finally, the relationship between basic rights and directive principles.

Proclamation of emergency under 44th Amendment Act, 1978

1. In its current form, under Article 352 of the Indian Constitution, the President can only declare an emergency if the Prime Minister and their Cabinet affirm the crisis situation in writing and deliver it to the President. The President can remit the written dossier for an Emergency declaration to the Prime Minister and Cabinet under Article 74. If the Cabinet resends it, however, the President must comply and declare an emergency. Unlike in 1975, the Prime Minister may no longer make a unilateral decision on the declaration of an emergency without a written explanation or transparency. 
2. Similarly, a simple majority in Parliament is no longer sufficient to declare an emergency. After the 44th Amendment, 1978, a special majority is required for this. The proclamation must be approved by a majority of the entire membership of each House of Parliament, as well as a majority of not less than two-thirds of the members present and voting. Previously, in the lack of majority agreement from both chambers, the proclamation would expire after two months. After the 44th Amendment, however, this term was decreased to only one month. 
3. After the decision was ratified by the two Houses of Parliament in 1975, there was no provision for a periodic review of the proclamation of emergency. The 44th Amendment Act, 1978, mandated that the emergency declaration be revisited after six months and, in the absence of fresh legislative consent, the emergency be discontinued. The Amendment further stated that ten percent or more of the Lok Sabha members might convene a meeting to discuss a bill to revoke the proclamation. A demand of this nature must be issued within 14 days. The emergency will be lifted if the bill is passed by a simple majority at the specially called meeting. 
4. In most cases, the term of emergency is restricted to one year. The 44th Amendment Act, 1978 stated that the right to public access to Parliamentary proceedings will not be revoked in the event of a national emergency. 
5. Furthermore, the 44th Amendment Act, 1978 changed Article 359, making it permissible to petition the Supreme Court and High Courts for writs in the form of Habeas Corpus, which was not available during the 1975 Emergency. Article 352(5) of the 38th Constitutional Amendment rendered the declaration of emergency non-justiciable. However, since Clause 5 was removed, any person can now challenge any declaration of emergency in a court of law on the basis of the government’s mala fide intentions. Enforcement of rights under Articles 20 and 21 cannot be suspended during the operation of the National Emergency.

State emergency as perceived by the 44th Amendment Act, 1978

The following clauses are added to Article 356 pertaining to the President’s ability to make a proclamation in the event of a state’s constitutional apparatus failing:

1. The clause relating to the breakdown of the constitutional machinery in the states was 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.
2. 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 a restriction of three years. 

Judicial review of Presidential Proclamation 

1. A President can declare an emergency under Article 352(1) if he/she is certain that a threat to India’s security, or a part of it, exists. The subject revolves around the question of whether the President’s satisfaction is justified or not. The effect of a proclamation of emergency on preventive detention, the effect of the suspension of Article 19 following a proclamation of emergency, and the effect of the President’s Order under Article 359, are some of the issues that the courts have explored in a number of instances over time.
2. Sub-article (5) of Article 352 was inserted by the 42nd Amendment, which made the President’s satisfaction in declaring an emergency final and conclusive, provided that such satisfaction shall not be questioned in any court on any ground, and further barred any court from considering the validity of the President’s proclamation and its continued operation. It was evident that judicial review of a declaration or its continuation was not intended. 
3. The 44th Amendment then struck out clause (5), indicating that the court’s jurisdiction to look into the mala fide issue of a proclamation or its mala fide continuation was not to be ruled out.

Conclusion 

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.

References 

1. https://www.theleaflet.in/pre-and-post-44th-amendment-how-to-declare-a-national-emergency/.
2. https://journals.sagepub.com/doi/pdf/10.1177/0019556119790242.
3. https://byjus.com/free-ias-prep/44th-amendment-act/#:~:text=The%2044th%20Amendment%20of%201978,save%20by%20authority%20of%20law%E2%80%9D.
4. https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978.

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.