What was the 44th Amendment all about?

Imagine a situation where India is under an emergency state and one of your family members kith or kin is being jailed illegally. You can file a Habeus Corpus writ under Article 226 or 32 and pray to the court to release them. This was not the situation in India in the year 1975-77. Those who raised their voice against the government were detained illegally without any trial forever. To put an end to this autocracy the 44th amendment act of 1978 was passed. It helped to safeguard the fundamental rights of people including Article 19 and 21 of the Indian Constitution. If we look at the contemporary India, there is hardly any alarm of an emergency situation. Yet many opposition leaders, students, activists are picked up and detained without trial under the Unlawful Activities Prevention Act (UAPA),1967. Lord Acton’s maxim ‘Power tends to corrupt, and absolute power corrupts absolutely’[1] has become undeniably true even after seventy-two years of independence. This article talks about the significance of 44th Amendment Act of the Indian constitution in depth.

BACKGROUND OF THE AMENDMENT

The advent of 44th amendment owes its substance to the year 1971, 5th Lok Sabha General Elections. The then Prime Minister Indira Gandhi stood for election at Rae Bareilly in Uttar Pradesh against Raj Narain, the leader of Samyukta Socialist Party. Congress led by Indira Gandhi came out victoriously with a wide-ranging majority. Saddened by this downfall, Raj Narain filed a petition at Allahabad High Court on 24th April,1971 in the case of Raj Narain v State of Uttar Pradesh[2] accusing Miss Gandhi of following corrupt electoral practice. He alleged her of buying the votes and using government vehicle for election campaign. On June 12 ,1975 Justice Jagmohanlal Sinha pronounced the election to be null and void and also barred Indira Gandhi from contesting in election for six years.

Aggrieved by this decision, Miss Gandhi appealed to the Supreme Court. The court was on vacation and permitted a conditional stay on High Court order on June 24,1975 stating that ‘Gandhi could attend Parliament, but would not be allowed to vote unless the court decided on her appeal’[3] and ordered the parties to be present before the court on 11 August,1975. This led to country wide protest and gave momentum to the Jayaprakash Narain led Bihar movement to demand the abandonment of Prime Ministership of Indira Gandhi. Thus, on the midnight of June 25,1975 Miss. Gandhi wrote a letter to the then President, Fakhruddin Ali Ahmed stating that ‘information has reached us that indicate impending danger to the security of India’[4]and he signed on the ordinance proclaiming emergency. Within three hours opposition leaders like Morarji Desai, Jayaparakash Narayan, Vajpayee were arrested.

The freedom of press was curtailed and about 11 lakh people were put behind bars. However, on 22 July,1975 38th amendment was passed which allowed the State to infringe fundamental rights like Article 19,21 during emergency and also barred judicial review on the proclamation of emergency. On 10th August,1975 39th constitutional amendment was passed by introducing Article 329-A by which the power of any court to investigate on a petition challenging the election of President, Prime Minister, speaker of Lok Sabha was taken away and can be done only before a committee formed by the Parliament itself. Thus, Supreme Court was curtailed the power to take decision on Miss. Gandhi’s case. Raj Narain challenged the constitutionality of 39th Amendment Act in the case of Indira Nehru Gandhi v Raj Narain[5] popularly known as Election case. The respondents submitted that Article 329-A (4) has to be struck down as it disrupts the idea of free and fair election and thus violates the doctrine of basic structure as held in Kesavananda Bharti v State of Kerala[6]. It also destroys the principle of separation of power and judicial review.

Also, this amendment was illegal as it was passed when many opposition leaders were under preventive detention thus violating Article 14. The judgment was passed on 7th November,1975 to struck down 39th amendment as it was against rule of law, right to fair hearing (Audi Alteram Partem), basic structure and separation of power doctrines. But the Supreme court set aside the Allahabad High Court judgment and declared the election law amendment valid. The Emergency was revoked on March 21, 1977 and general elections were run. Indira Gandhi lost the elections to Janata Party government and Raj Narain was made the health minister. Soon after that the Morarji Desai led Janata government came up with the 44th Amendment Act,1978 which was unanimously passed in both the Houses.

SALIENT FEATURES OF 44TH AMENDMENT

44th Amendment Act reinstated the honour of democracy lost in the period from 1975-77.42nd Amendment Act contained various provisions which were neither protecting the citizens nor serving the interests of the nation. Therefore 44th amendment was initiated to provide sufficient safeguards against the taking over of fundamental rights and to maintain the principle of doctrine of separation of powers. The main features of this amendment are as follows.

  • Emergency Provisions

The word ‘internal disturbance’ in Article 352 was substituted by the word ‘armed rebellion’. The constitution makers inserted the word ‘internal disturbance’ to cover natural disasters like flood, cyclone, epidemic as stated by Sarkaria Commission’s report on ‘Centre State Relations’[7]. Thus, the replacing to ‘armed rebellion’ which is an apparent form of attack was done with a view to not repeat the situation that had happened in 1975.

To proclaim emergency under Article 352(National Emergency), the presence and voting of two-third of the majority of members of each house is required and emergency declaration could be delivered only on the basis of written advice proffered to the President by the cabinet. For prolongation of the emergency, acceptance by both the Houses will be needed every six months.

Declaration of emergency will be cancelled whenever the Lok Sabha passes a resolution by a simple majority rejecting the prolongation. The word ‘one year’ in Clause (4) of Article 356(State emergency) was replaced by six months. The 44th Amendment Act declared that Article 19 can be suspended only when the National Emergency is laid on the grounds of war or external aggression. It also mandated the President not to suspend the right to move the court for the imposition of fundamental rights under Article 20 and 21.

  • Right to Property

44th Amendment took away the ‘right to property’ as a fundamental right under Article 19(1)(f) and Article 31 and made it a statutory right under Article 300 A. This Article requires the state to follow due procedure of law to dispossess a person of his property. The two reasons for doing this were:1) It gives priority to the value of socialism in the Preamble.2) It affirms to the doctrine of basic structure. The provision relating to procurement of property of educational institution controlled and established by a minority under Article 31 has been transferred and incorporated into Article 30 by adding a new clause(1-A).

  • Preventive Detention

Article 22(4) in the 42nd amendment authorized the detention of a person for a period of three months. But Section 3 of 44th amendment replaced this clause and made the detention period only for two months. It suggested for the creation of an Advisory Board consisting of a chairman and not less than two members.

The Chairman must be a sitting judge of High court and other members must be a sitting or retired judge of High Court. Also, no person should be holded up beyond the maximum period stipulated by any law made by the Parliament unless the Advisory Board reports adequate cause for detention.  7(a) of Article 22 which gave power to the Parliament to make laws for preventive detention of a person for more than three months was erased by Section 3 of the 44th amendment.

  • Judiciary

High Court’s jurisdiction in revenue matters were carried away by the 42nd amendment. However, it was reinstated by 44th amendment in Article 225 by giving original jurisdiction to High Courts in revenue matters. Article 226 was altered to reimpose the right of High Court to issue writs for any purpose except to replace fundamental rights. Article 227 was altered to reinstate the power of supervision of High Courts over lower courts and tribunals.

  • Other amendments

42nd Amendment Act expanded the life of Lok Sabha and State Legislatures to six years. The 44th Amendment Act reinstated it to five years by amending Article 83 and 172.Under Article 361- A, immunities were provided to true publication of the proceedings of Parliament and State legislatures. Article 134A was incorporated to allow a certificate of appeal to Supreme Court over any decree, order or judgment passed by any High court on the oral application of the aggrieved party.

The 42nd amendment which took away the power of courts to decide whether an office is an ‘office of profit’ was restored in the 44th amendment. 44th amendment which took away the power of Article 71 and Article 329-A which gave power to the Supreme Court and High Courts to decide on election disputes of President, Vice President and Prime Minister, Lok Sabha speaker was reimposed. The 42nd Amendment demanded the President to act in line with the advice of Council of Ministers. But 44th amendment gave some power to the President, to send back the advice presented to him by the Council of Ministers for reconsideration under Article 74(1).

CONSTITUTIONAL VALIDITY OF 44TH AMENDMENT

44th Amendment was a saviour of democracy in view of the incidents prior to 1978.It was welcomed by all with much appraisal. Rule of law was re-asserted and right to free speech and dissent was re-established. It modified the emergency provisions and made sure that it won’t be misused in the future. The restoration of democratic ideals was done by reimposing the powers of Supreme Court and High Courts. Another notable feature was the extra power given to the President to send back the advice proffered to him by the council for re-examination.

This ensured that he was not to be treated like a puppet in the future times as in the history. Also, the amendment changed Article 359 and now a person can approach the courts to issue a writ of Habeus Corpus, which was impossible in the 1975 emergency period. Citizens are now also allowed to challenge the proclamation of emergency on the basis of dishonest intentions. A declaration of emergency under Article 352 prior to 44th amendment was a resolution made by the government to change a democratic state into a dictatorship which deprives the basic fundamental rights of the citizens.

This was used for the personal and political advantage of the Indira Gandhi government. It had the power to destabilize the democratic structure of India. By 44th amendment, such abuse of power is held at bay now. Quoting the words of Shanti Bhushan, senior advocate in Supreme Court who represented Raj Narain in the case against Indira Gandhi that, the 44th amendment ensured democracy’s survival in India’[8].

LANDMARK JUDGMENTS

  • Additional District Magistrate v Shivkant Shukla[9]

This case happened as an aftermath of 1975 emergency in India. On June 27,1975 the President under Article 359(1) announced that ‘none (citizens and non-citizens) can move any court for the implementation of rights guaranteed under Article 14,21 and 22 till the emergency is in force’. Many opposition leaders, activists were held up under the Maintenance of Internal Security Act,1971(MESA). Under preventive detention laws, anyone who was regarded to be a political threat to the government was taken into custody without trial.

These detenues filed for Habeus Corpus writ under various High courts and the court gave the judgment in affirmative. This aroused the temper of Indira Gandhi government to move to the Supreme Court. This famously became the ADM Jabalpur or Habeus Corpus case. The main issues raised in this case were :1) If the High Court has the power to decide on writ of Habeus Corpus petitions on preventive detentions during an emergency? 2)If it was right to suspend Article 21 against the principle of rule of law? 3)If the detainees have locus standi for the case?

In a 4:1 judgment, court held that no person has the locus standi to submit to the High court through Article 226 to implement the right to personal liberty by filing Habeus Corpus writ or any other writ even though it contravenes the rule of law principle. The Supreme Court also declared Section 16A (9) of MESA as valid. However, this decision was overruled in the case of K.S. Puttuswamy v Union of India[10].

  • A.K. Roy v Union of India[11]

In this case, A.K. Roy, a member of Parliament was confined under the National Security Act. While examining the lawfulness of this act, court held that the President’s power to make ordinance is not a far from the scope of judicial review as clause (4) of the 38th Amendment Act was deleted by the 44th amendment. Due to replacement of the ordinance by an Act, the court was unable to explore this issue in detail.

  • Minerva Mills v Union of India[12]

In this case the court struck down Section 4 and 55 of the 42nd Amendment Act as it was forbidding judicial review on constitutional amendments, thus violating the basic structure doctrine. Section 55 was declared void as it prohibited the questioning of validity of constitutional amendments and also gave unlimited powers to the Parliament under Article 368 to alter the constitution.

  • S.R. Bommai v Union of India[13]

In this case the S.R. Bommai government was suspended under Article 356 and President’s rule was imposed stating the reason that his government has lost the majority. It was held in this case that till the declaration of emergency is approved by both the Houses of Parliament, it is not legitimate for the President to take any irreversible action under clause (a), (b), (c) of Article 356(1). It was also pronounced that the power under Article 356 is an extraordinary one and has to be made use of periodically to meet the demands of special circumstances.

CONCLUSION

44th Amendment Act saved the democratic ideals for ever. It was able to cut down the arbitrary powers of the government through amending various provisions which created problems during the 1975 emergency period. It repealed the provision of 42nd Amendment stating that Directive principle of State Policy can take precedence over fundamental rights. It gave a new ray of hope in effect to the application of fundamental rights. The most important ones being the resumption of fundamental rights under Article 21 and 19 during an emergency.

The judiciary succeeded in burying the defective judgment in the case of ADM Jabalpur(supra) through Puttuswamy case(supra). The opinion of the judges are noteworthy. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution[14].The ‘Anna Andolan’ anti-corruption movement of 2011 was strong enough to threaten the government. It was an instance where the history of 1975 would have been employed by the government to suppress the movement. However, the 44th Amendment came as an emergency-proof wherefore the government could not make any arbitrary arrest nor ban the press or media reporting it. Thus, it was a watershed moment.


[1]     Historical Essays, p.504[Liberty Fund edition, Essays in the Study and writing of History, p.383]

[2]     AIR 1975 SC 865

[3]     Four reasons why Indira Gandhi declared Emergency, available at: https://indianexpress.com/article/research/four-reasons-why-indira-gandhi-declared-the-emergency-5232397/

[4]     Four reasons why Indira Gandhi declared Emergency, available at: https://indianexpress.com/article/research/four-reasons-why-indira-gandhi-declared-the-emergency-5232397/

[5]     AIR 1975 SC 2299

[6]     AIR 1973 SC 1461

[7]     Of Disasters and Epidemics: The Constitution (44th Amendment) Act, a probe into the wisdom of our choices, available at: https://www.barandbench.com/columns/of-disasters-and-epidemics-the-constitution-44th-amendment-act-a-probe-into-the-wisdom-of-our-choices

[8]     The 44th amendment ensured democracy’s survival in India, available at: https://www.livemint.com/Politics/zwYWp4CHWdDDZ3KY7xHUVK/The-44th-amendment-ensured-democracys-survival-in-India-Sh.html

[9]     AIR 1976 SC 1207

[10]   AIR 2017 SC 4161

[11]   AIR 1982 SC 710

[12]   AIR 1980 SC 1789

[13]   1994(3) SCC 1

[14]   ADM Jabalpur :The Case that was but should never have been, available at: https://www.theleaflet.in/adm-jabalpur-the-case-that-was-but-should-never-have-been/


Author: Avanthika R from St. Joseph’s College of Law.


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