44th Amendment Act, 1978

44th Amendment Act, 1978

 

Introduction

The 44th Constitutional Amendment, introduced during the Janata Government’s tenure, played a crucial role in reverting certain alterations made by the 42nd Amendment Act of 1976. This amendment brought sweeping changes to the Indian Constitution, significantly enhancing the democratic nature of India’s political system.

 

What is the 44th Amendment in the Indian Constitution?

  • The 44th Amendment Act, brought into effect in 1978, played a crucial role in rectifying changes made in 1976 through the 42nd Amendment Act. These alterations, made against the will of the citizens, necessitated the introduction of the 44th Amendment Act. It aimed to reverse these changes and protect the nation’s interests, making it a significant constitutional development in India’s history.

 

Objectives of the 44th Amendment Act, 1978

  • The 44th Amendment Act, 1978 was introduced for achieving the following objectives:
    • To ensure the Fundamental Rights were not restricted or taken away by a transient majority in Parliament, it was necessary to provide adequate safeguards against recurrence of such a contingency in the future.
    • To ensure that the power to proclaim an emergency under Article 352 of the COI, must be used properly and after due consideration and deliberation.
    • To ensure that the basic features of the COI were not lightly interfered with by Parliament in exercise of the power of constitutional amendment under Article 368 of the COI.

 

Modifications By The 44th Amendment Act

The 44th amendment has made the:

Fundamental Rights

  • The right to property was removed from the list of fundamental rights and elevated to the status of a legal right
  • Article 19(1)(f) of the Constitution, which gives citizens the right to acquire, keep and dispose of property, and article 31 of the Constitution, which deals with compulsory acquisition of property, have been removed

Power Of President

Article 74(1) was revised to contain a clause stating that the President may ask that the Council of Ministers reconsider any advice given to him

 

Amendment To The Basic Structure

Any modifications to the constitution's basic structure can only be enacted if the people of India agree to them by a majority of votes cast in a referendum in which at least 51% of the voters participated. This is being ensured by amending Article 368.

 

 

Parliament And State Legislature

  • The terms 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's terms were previously extended from 5 to 6 years by the 42nd Constitutional Amendment Act, 1976.

 

Judiciary

  • Restored some of the powers of the Supreme Court and high courts.
  • It allowed for judicial review of the president's, governors', and Lok Sabha speaker's elections.

President’s Rule

The 44th Amendment introduced a new provision to put a restraint on the power of Parliament to extend a proclamation issued under Article 356 beyond one year.

 

Parliamentary Privileges

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 based on the Election Commission's opinion.

 

National Emergency

It was enacted to prevent the misuse of emergency power by the executive. It has introduced a number of safeguards in Article 352. These are as follows:

  • Prior to the 44th Amendment Act 1978, a proclamation of emergency could be issued on the grounds of war or external aggression or internal disturbance. The internal disturbance was a vague one and could be misused by the executive. The Act, therefore, introduced the expression "armed rebellion" in place of internal disturbance.
  • The President can proclaim an emergency only after a written recommendation from the Cabinet. Article 352 defines the Cabinet as Prime Minister along with other ministers of cabinet rank. Initially, approval was to be on the basis of a simple majority, but at present it needs a special majority.
  • There was no parliamentary control, once a proclamation of emergency was approved by it. But now a special sitting of Lok Sabha can be held for the purpose of considering disapproval.
  • Under article 358, Article 19 is automatically suspended only when an emergency is declared on the basis of war or external aggression; earlier it was suspended on the basis of internal disturbances also.
  • During the emergency enforcement of the rights conferred by Article 20 and 21 cannot be suspended. Prior to the Act, enforcement of any or all the Fundamental rights could be suspended when an emergency was in force.

Federalism

  • Article 257A, which dealt with the power of the central government to deploy its military forces or other union forces to deal with a grave crisis, was removed.

 

 

Criticism of 44th Amendment Of Indian Constitution

  • Parliament has the authority to propose constitutional amendments. There is no provision for a particular body to amend the Constitution, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly.
  • A significant portion of the Constitution can be amended solely by Parliament, either by a special or a simple majority.
  • The process of amending is similar to that of legislating.
  • The 44th Amendment Act aims to rectify the inconsistencies in the 42nd Amendment to prevent future misuse of the Constitution’s emergency clauses.
  • With the rescinding of the 42nd Amendment, the Supreme Court and High Courts recovered their pre-42nd Amendment jurisdiction, reinstating the Constitution’s secularism and democracy.

 

Conclusion

  • Under the 42nd amendment, parliamentary supremacy could be taken advantage of and the fundamental rights could be easily revoked under emergency provisions.
  • This resulted in grave injustice for the people of India and violated the spirit of the constitution and the fundamental rights enshrined in it.
  • As a result, a 44th amendment was enacted to ensure that such events do not occur again in the future.
  • The 44th amendment to the Indian Constitution was significant because it partially removed the distortions introduced into the Constitution by the 42nd Amendment.