The 44th Constitutional Amendment Act was enacted after the bill no. 88 of 1978 regarding the same was passed by the Janata Party. The promise to restore the constitution, back to the condition it was before the emergency period was compelling enough for them to win the general elections in 1977. The bill for the 44th Constitutional amendment was introduced by the then Minister of Law, Justice and Company Affairs, Shanti Bhushan. Its’ main aim was to undo many changes that were made in the 42nd Amendment by the Indian National Congress. The bill for the 44th Constitutional Amendment was introduced in the Lok Sabha. This amendment was enacted and passed by the Rajya Sabha on 31st August, 1978 and later the Lok Sabha passed it on 7th of December, 1978. It came into effect from 30th April, 1979
The 42nd Constitutional Amendment Act was enacted by Indira Gandhi who was the Prime Minister of India. The amendment, which came to be known as the Mini Constitution made a number of changes and re-defined the powers and privileges of the President, Supreme Court as well as High courts. There were changes made for the proclamation of emergency as well as the seventh schedule that deals with the power allocation to the Union and the States, divided in the three lists.
The words “Sovereign Democratic Republic” in the preamble were replaced with “Sovereign Socialist Secular Democratic Republic”. Further “unity of the nation” was substituted with “Unity and Integrity of the Nation”. Its not wrong to call this 42nd Amendment as the mini constitution taking into account the number of changes that were made but as it was enacted at the times of emergency when a large number of the parliament members were under imprisonment, many considered it to be unconstitutional. The bill for the 44th Amendment was introduced to counter the wrongs made in the amendment that was made in the times of emergency.
The 44th bill for amending the constitution sought to amend Article 19, 22, 30, 31A, 31C, 38, 74, 77, 83, 105, 123, 132, 133, 134, 139A, 150, 166, 172, 194, 213, 217, 225-227, 239B, 329, 352, 356, 358-360, 366, 368 and 371F along with the Seventh and the Ninth Schedules. The articles 71, 103 and 192 were to be substituted whereas new articles 134A, 361A and in the Part XIII, Chapter IV were to be inserted. In this amendment article 31, 257A, 329A and Part XIVA were omitted. Some sections that were added in the 42nd Amendment Act namely, 18, 19, 21, 22, 31, 32, 34, 35, 58 and 59 were repealed by the latter amendment.
Features of the 44th Constitutional Amendment Act, 1978
The 44th Amendment aimed at correcting the odds as well as bringing changes that were necessary at those times after the emergency. The emergency that was proclaimed showed various needs for making amendments to the Indian Constitution. Some of the significance and features of the 44th Constitutional Amendment are as follows:
- According to the bill proposed this amendment was to provide safeguard to the Indian citizen in case of emergency as some fundamental rights including life and liberty were curbed during these unprecedent times. The changes were to be made so that the article 368 would act as a barrier for the secularity and democracy of the fundamental rights provided by the Constitutional.
- Right to Property, which was a fundamental right under article 31 was removed from the list of fundamentals and was made a legal right under article 300A in this amendment. The right of liberty was strengthened so that the preventive detention would not extend further than three months unless it is reported by the Advisory Board.
- The proclamation of emergency which has to be imposed only when the security of India is under threat by war or external aggression or by internal disturbances. Also, it can only be proclaimed on the written advice of the cabinet to the President. The internal emergency that was imposed saw a violation of this procedure and thus the 44th Amendment sought to make these procedures as an essential for proclamation of emergency not until the internal disturbance has led to armed rebellion.
- The changes in the basic structure could only be made only if it has been approved by the Indian people by majority votes of at least fifty-one per cent of the electorates participating. For the same reason changes were made in article 368.
- The media was given the rights in this amendment to freely report the parliamentary proceedings as well as state legislatures without the need of censoring anything. This was done after the media was barred from performing their duty while the emergency was imposed. When at the stroke of midnight of 25th June, 1975, the connection to media houses and newspaper were cut down, such a provision in the 44th amendment was made for the betterment of the citizens who have all the authority to know what are the situation in their country.
- The amendment also involved a provision for the breakdown of constitutional machinery in the states. The proclamation issued under article 356 was made to be in force for a period of six months at first and later it cannot be extended for a period of more than a year. It can only be extended longer if the Election Commission certifies for the extension of the Presidential rule. The limit for the same was set to be three years.
These are some of the most significant features of the 44th Constitutional Amendment Act and as the bill itself contained “The other amendments proposed in the Bill are mainly for removing or correcting the distortion which came into the Constitution by reason of amendments enacted during the period of the Internal Emergency”.1
Important changes made in the 44th Constitutional Amendment Act, 1978 along with case references.
The Article 19 of the Constitution that deals with the freedom of expression and belief some changes were made and a sub-clause was omitted. Clause (a) of Sub-section (1) implies the freedom of press, the latter were given the rights to carry out their duty and as the right suggests everyone has the right to seek, receive and impart information and ideas through media. In the case of Maneka Gandhi v. Union of India2 the Supreme Court has held that there is no concept of geographical territories or frontiers in the right of freedom and speech. All the citizen has the right to gather and exchange information, provided that they are true and don’t lead to defamation. It is not restricted to India but also abroad irrespective of the boundaries. Although the Constitution of India does not directly refer to the media and press, they are said to be an implication of the freedom of expression and speech.
The changes made in article 22 of the Constitution, clause (4) was substituted with a new one dealt with the provision for preventive detention duration. It should not extend for more than two months unless the Advisory Board on the recommendation of the Chief Justice of the High Court has reported for the extension of the same. The Advisory Board was to be constituted of not less than two members along with a Chairman. In the case A. K. Gopalan v. State of Madras3 writ petition for the petitioner’s detention in Madras jail was filed. The issue was whether the preventive detention is beyond the powers of personal liberty, and also the same applies for the Preventive Detention Act, 1950 with respect to the Fundamental Rights provided by the Constitution.
The court in this case held that Preventive Detention Ant, 1950 was within the powers of Fundamental Rights and not vice-versa. The article 21 of the Constitution of India is applicable to preventive detention and the Parliament is not obliged to prescribe a maximum limit for the same. Further the case of Kharak Singh v. State of UP4 came up in which the accused was released from the charges of dacoity on the basis of lack of evidence, however he was monitored by the police. The court stated that unauthorised intrusion into someone’s home is violative of his rights to personal liberty, this judgement was somewhat different from that of Maneka Gandhi v. Union of India5 the Supreme Court held that as the state did not have any rules or regulations for prohibition of rights in such case the confiscation of passport was violating the article 21 of the Constitution.
Article 30 to the Constitution was amended with a new clause relating to the compulsory accusation of a property of any educational institution that is administrated by a minority, the amount fixed for such accusations should be ensured by the state. Further article 31 was to be omitted in this amendment. The sub-heading “Right to Property” was omitted and further in article 31A the words “article 14, article 19 or article 31” was replaced with “article 14 or article 19”, the same changes were made in the article 31C. The case of State of Haryana v. Mukesh Kumar, (2011)6 the government of Haryana forcibly took over the land of the defendant back in the year 1967 when Right to Property was a fundamental right, the Special Leave Petition was dismissed by the Court and the State was charged a fine of Rs. 50,000/- not only for filing a waggish petition but also for wasting the time of the Court.
A new Chapter IV was inserted in Part XII of the Constitution which was named “Right to Property”. Article 300A contained that no person shall be deprived of his property save by authority of law. This was earlier a fundamental right but after this amendment it was made a legal right. In the case mentioned above, State of Haryana v. Mukesh Kumar, the defendant argued that the right to property was his human right rather than just a constitutional right, moreover he was deprived of his property when this amendment has not been enacted, the court passed a judgement in his favour.
For the article concerning emergency provisions, in Article 352 clause (1) the words “internal disturbance” was substituted with “armed rebellion” along with this an explanation was inserted stating that a proclamation for emergency shall be declared with the statement of fact about the security of India or the territory that is under threat due to war, external aggression or by armed rebellion, if the President is satisfied that the situation may cause significant danger to the nation.
Further it said that the proclamation in such a case may be revoked or varied by a subsequent proclamation. This amendment also contained the following clause “(4) Every proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a proclamation revoking a previous proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolution of both Houses of Parliament” there was also a proviso added for the mentioned clause. This was done after seeing the internal emergency that had just ended. Earlier in the 38th Constitutional Amendment Act, 1975 the declaration of National emergency was made immune to any kind of judicial review, the concerned provision was omitted in this 44th Amendment. In the case of Minerva Mills7 the Apex Court held that such proclamations can be questioned and challenged in the court if the base of such proclamation was irrelevant or extraneous. Further various changes, with regards to the proclamation and duration of emergency, were made.
A new article 361A was inserted in the Indian Constitution after this amendment, it dealt with the protection of publication of proceedings of the Parliament as well as the State Legislatures. It stated that no person shall be liable to any civil or criminal proceedings, on the ground that he/she has published a true report od the proceeding of either house of Parliament or the State Legislature, in any newspaper. It contained a proviso that the publication should not be regarding a secret sitting of the either houses of parliament or of either house of State.
In the Ninth Schedule that concerns with the list of laws of the Centre as well as the State that cannot be challenged in the court, there are about 284 Acts that are included in this schedule. The Forty-fourth Amendment sought to omit entries 87, 92 and 130 of this schedule. Further this Act also led to some omission of some sections that had been inserted or amended in the 42nd Constitutional Amendment Act. The sections 18, 19, 21, 22, 31, 32, 34, 35, 58 and 59 of the mentioned Act were omitted.
In the cases of Indira Gandhi v. Raj Narain and Minerva Mills v. Union of India the Supreme Court of India struck down the 39th Amendment and some parts of 42nd Amendment on the basis of the doctrine of basic structure of the Constitution. The highest court of the Nation decided that the Parliament could not make changes that would hamper the basic structure of the Indian Constitution. This judgement was different from what the court has stated in earlier cases regarding the same issue. The Keshvananda Bharti case, in which the 13 judges’ bench was divided in its’ opinion held that the Parliament could not hamper the basic structure of the Constitution.
The 44th Amendment to the Indian Constitution seemed like a necessity after the emergency ceased to operate. The changes made in some recent amendments were said to unconstitutional not only by the opposition but also by the Supreme Court. The party in power changed from Indian National Congress to the Janata Party and they saw the need for making some changes that they thought would be beneficial for the country. There were a number of changes that were made, but the most significant of them were firstly, the right to property that ceased to be a Fundamental Right and was declared as a legal right. Many opposed it saying that possession of land was their right as a human but until now no such amendment has been made as to revoke this change. Further the amendments for the protection of freedom of speech and expression, the collecting of correct and true information and imparting them using media and press was recognized. The bar to publish documents regarding the proceedings of the Parliament was seen as a violation towards such rights.
Another significant change was the amendment in the articles dealing with emergency provisions. The procedures and duration for such proclamations were made strict in order to hamper the unconstitutional steps taken by the authorities. The power was somewhat curtailed by stating the procedure that were necessary for declaring emergency in the Nation of any State. The concept of challenging such proclamations in courts was a step that would make the people believe that the government representing them is not misusing their powers.
Some sections of the previously enacted amendments were omitted in this Act as they were giving enormous powers in the hands of the President, Supreme Court and High Courts. Some of them were omitted as they were considered to be unconstitutional and as the ruling party thought would be for the betterment of the democracy of the Country.
Author: Annu Kumari from LPU, Punjab.