Explained: 44th Amendment

The role of the constitution is very vital as it decides the future of the country. The powers of the different organs are delegated by the constitution. Therefore, we can say that the constitution is a set of laws that is meant for the governance of any nation. In a democratic country, the position and supremacy of this powerful book become important. The basic foundation to any administrative, legislative, or judicial interpretation comes from the constitution. Additionally, how the powers between these organs will be distributed and what basic rights and duties are required for the citizens comes from the structure of the Constitution.

Now, to alter the constitution according to the nature and condition of the society, amendments are introduced. The 44th amendment act of 1978, was one of the important amendments.

To know briefly about the said amendment, it is crucial for us to know about the 42nd amendment, because the 44th amendment was a response to the most controversial change bought by the government in 1976.

Background of 44th amendment act. Was it used for inoculating the provisions given by the 42nd amendment?

The history of the 44th amendment act finds its roots in the draconian amendment of Indian constitutional history. Therefore, for a better understanding of the 44th amendment of 1978, it is vital to know the background of the 42nd amendment act of 1976.

Brief background of 42nd amendment: –

This 42nd amendment act finds its traces from the controversial imposed emergency in 1975 by prime minister Indira Gandhi. Initially in 1967, when the discretion was passed on Golaknath v. state of Punjab[1] the tussle between the judiciary and government emerged. Following this, the political situation of the country was not in supportive condition. When Indira Gandhi came into power, various allegations were imposed on her that used the state machinery for the campaign and committed fraud, these allegations were taken by Mr. Raj Narain in the Allahabad High Court.

Justice Jagmohanlal Sinha, in 1975 announced his judgment and found PM Indira Gandhi guilty of fraud and other taken-up charges including the misuse of police and state machinery. Following the judgment, her election was declared to be of no value in the eyes of law and hence became void and null, additionally, a ban was also imposed on her that she will not participate in elections for the next 6 years. An appeal was presented in the Supreme Court but the aggression of the other political parties was on acme, they initiated protests and rallies to take off PM Indira Gandhi from the chair. Considering this situation, the government declared a national emergency by giving a reason for internal disparities on 25th June 1975. This emergency was one of the most heated topics of deliberations at that time because it made a series of amendments to our constitution.

The amendments that were introduced were not only changed the provisions but also added new provisions of law. Some prior important amendments include the 38th amendments where the judiciary was deprived of making the judicial review of the emergency, it also empowered the state authority to intervene in the fundamental rights during the time of emergency. After the judgment of Allahabad high court regarding the election came, the opposition party was in a temper of making the PM office vacant, considering the difficult situation the ruling party on 10 august 1975 introduced the 39th amendment, which curtailed the power of high courts to look into or investigate the matter related to the election of a person who is at the position of PM, the right to intervene and to inquire such matters was only given to the committee constituted by the parliament.

But the adamant nature of legislature compelled them to be consistent with making the amendments. Again, to water their intentions, the legislature introduced the 42nd amendment to the constitution which made the constitution a pun. This amendment was this much deliberated that the people of India calling the Constitution as Indira’s Constitution.

The provisions of the 42nd amendment which acted as roots for the introduction of the 44th amendment act of 1978: –

As the act sought to change a series of provisions it would be unreasonable to count all the small and minor changes some of the important and landmark changes were: –

The preamble: –

The part of the constitution which is considered to be the heart and soul of the constitution was amended by adding certain new words. The term “sovereign democratic republic” was altered to “sovereign, socialist secular democratic republic”, similarly the term “unity of the nation” added with “unity and integrity of the nation”.

The added words created a heat of criticism in the minds of the opposing parties. Many contentions were raised by the opponents such as including the term “socialist” and “secular” is killing the soul of democracy and influence Marxist socialism. The father of the constitution B.R. Ambedkar was opposed to adding such terms in the constitution as he never wanted to reflect the social and economic setting of India in the Constitution. The act of 1976 was unnecessary as it was only talked about those provisions which were already existed in the constitution.

Judicial powers: –

When our constitution was made the intention of the legislature reflected that there shall be an independent judiciary in the country. The principle of separate powers was the main aim of the working of the organs and the Constitution was regarded as the machinery to regulate those organs.

Before the commencement of the 42nd amendment act, the judiciary was free to decide and intervene in the matter of union legislature. The amendment restricted the High courts under articles 226A and 228A to review the matters related to the union legislatures, the jurisdiction was limited to only state legislatures.

Similar provisions were made for the jurisdiction of the Apex court, where a new provision of Article 131A was added, which stated that the Supreme Court is empowered to take up matters relating to the Central Legislation. Additionally, Article 141A and 228A also talked about the Supreme Court’s discretion in matters relating to the validity of central legislation, it was stated in the said Articles that at least a bench of judges was mandatory to decide the question of the validity of the central legislation and to held the legislation as unconstitutional the majority of two-thirds was required.

The above-stated Articles and the provisions were criticized and it was observed that the basic intention of the separation of powers had trespassed.

The fundamental rights

The fundamental rights are regarded as the basic needed rights of the citizens which are influenced by the inherent human rights. The provisions relating to the fundamental rights are mentioned in the constitution since it was made and the intention of the legislature while enacting these rights was to adopt the real democratic framework for India.

But the amendment of 1976, added some provisions which talked about the suspension of these basic rights during the period of emergency. Amending Article 358 the new provision stated that during the period of emergency the rights mentioned under Article 19 will be suspended in the whole country without any specific marked declaration.

Article 359 also altered which stated that the President can suspend the remedy right of the people who are aggrieved by the “emergency laws”.

Fundamental duties: –

The Swaran Singh committee and the government of Indiara Gandhi were not satisfied by the provisions of fundamental rights and directive principle of state policy in the constitution, they wanted the people of India to be more law-abiding and respect the nation. Therefore, they introduced certain duties with the intention of making the relationship between the state and the citizen more powerful and robust. This provision was not criticized and condemned as it reflected the national interest.

Part IVA was introduced in this regard which consisted of ten fundamental duties. Considering the democratic structure of the country, these duties were unenforceable that made these duties a manner to be performed by every citizen of a country. Some of the basic duties were regarding the law abiding of the citizen, consideration of the integrity of the state, protect the sovereignty and unity of the country, respect to nation, furnish national services, protection of the environment, and many more.

Directive principles of state policy: –

This section of the amendment accepted both negative and positive criticisms of the people. Initially in 1971, when Article 31C was amended then it was stated that this right has the power to make any law under Article 39b and 39c of the Constitution and that law can be made valid even if that infringing the basic mentioned fundamental rights of the people. The 42nd amendment act made its scope and ambit wide. After the amendment of article 31c, it was stated that any law can be made valid even if violates the fundamental rights of the people. In a similar manner, Article 31D was introduced which stated that any law which is made in the concern of anti-national elements and that infringing with the basic rights under Article 14 and Article 19 shall be considered legal. This section of the Directive Principle of State Policy faced a number of criticisms and contentions as it slapped the most sensitive and basic part of the constitution.

Some other alterations or changes were also made which talked about the introduction of Article 39A which talked about the weaker sections of the society to get free legal aid, this provision was added to eradicate social backwardness in the society which was a good move as it supports the upliftment of the people. Similarly, Article 39(f) faced some alterations including the provisions concerning the protection against exploitation and many more. The rights of the worker section and provisions relating to environment protection were introduced. Therefore, this part of the directive principle of state policy as mentioned in the act of 1976 was regarded good as it promoted the weaker section, children, youth, workers, and environment.

Parliamentary seats: –

Before the introduction of the 42nd amendment act Article 82 of the constitution provided for the reallocation of constituencies for parliament and state legislature after every 10 years as per the data collected. The reorganization of the constituencies was frozen by the 42nd amendment act. Along with this, the seats relating to SC’s ST’s and women were also frozen and their reallocation of reservation stopped.

Article 74: –

No special alteration was observed by this amendment. It just made a statutory provision to a followed exercise; in simple words, we can say that this amendment was a repetition of the previous one with a mentioned statutory provision.

As we know that the president is regarded as the titular and nominal head of the country and the prime minister is regarded as the actual head of the country. The hierarchy of the powers confined in the constitution also supports this notion. Before the commencement of the amendment of Article 74, this implemented exercise was in use, the president used to take the advice of the cabinet and this practice was not violating any provision of any law. This amendment only came into existence to lift the prevailed exercise and to make it a statutory provision.

Provision related to Amendment: –

The discretion that was given by the Supreme court in Keshavananda Bharti Case[2] where the limits were set up to amend the constitution. This discretion was also challenged by the 42nd amendment,1976. One of the ill-famed moves by the government was observed by this part of the act. After the amendment, the constitutional validity of any amendment could not be challenged by any court on any ground. Moreover, the membership of MLAs, MPs can’t be questioned in any court of law. Along with this, the tenure of the parliament was also increased to six years.

The discretion of Janata Dal Party

This arrogant and adamant behavior of Indira Gandhi didn’t welcome her back with open arms, but she faced the most embarrassing shame when in 1977 during the post-emergency she was defeated by a non-congress party led by Morarji Desai in the general elections. The basic intention of the Janata party was to give the constitution its soul which was crushed by Indira Gandhi’s Government.

But as some of the provisions which were made during her capacity, were accepted by the then Government and they had a view of not amending every amendment made during the period of emergency. Considering all factors and situations, 43rd and 44th amendments acts came into the light to eradicate some superfluous provisions imposed by the 42nd amendment act of 1976. The basic powers of the High Courts and the Supreme Courts were revived and the reason that was given for the emergency was replaced by “Armed Rebellion”. The fundamental rights were also revived and amended.

The legislative history of the 44th amendment act of 1978

The bill the regarding 44th amendment was introduced in Lok Sabha in 1978 by Mr. Shanti Bhushan. The bill was introduced to alter the provisions of the constitution and also to add new needed provisions in the Indian constitution. Some provisions related to Articles 19, 20, 30, 31A,31C, and many more sought to be altered. The bill was thoroughly debated in the Lok Sabha and finally passed on 23rd August 1978.

The passed bill was taken into consideration by the upper house. Some clauses were adopted by the house on 31st august but some provisions were rejected such as clause 8, 10 which talked about amending Article 31C and many more. The rejected provisions were again amended and accepted by the house on 31st august.

The amended bill was considered and passed by the lower house on 7th august 1978. The bill was passed in accordance with the provisions listed under Article 368 of the Constitution and it was ratified by a majority of the state legislature. After being ratified by the states, the bill got the consent of the President of India and was finally introduced in the Gazette of India on April 30th ,1979.

Some important facts about the 44th amendment act of 1978

  • Considering the nature of the country in which we live, fundamental rights relating to life, liberty were strengthened. Before this amendment, these rights can be taken away by a short majority. The main objective of this act was to nullify the unreasonable provisions introduced by the 42nd amendment and to provide a safe platform for the citizens living in the country.
  • Before the introduction of the 44th amendment act, the right to property was the fundamental right mentioned under Article 19(1)(f) and Article 31. The main focus of the said amendment in this regard was the introduction of socialism, eradication of the zamindari system, the allotment of land to the tiller. Therefore, the status of the right to property was altered and it became a legal right under Article 300-A. In the leading case of Jilubhai Nabhai Khachkar v. State of Gujrat[3] it was held that Article 300-A is not the part of the basic structure of the Constitution and therefore it can be amended by the legislature. However, the legislature ensured that the deletion of the right to property as a fundamental right shall not affect the right of the minorities to establish their educational institutions.
  • Series of provisions got altered and amended including Article19, 22, 30, 31A, 31C, 38, 71, 74, 77, 83, 103, 105, 123, 132, 133, 134, 139A, 150, 166, 172, 192, 194, 213, 217, 225, 226, 227, 239B, 329, 352, 356, 358, 359, 360 and 371F. Some new provisions also integrated by the said amendment including articles 134A and 361A.
  • The focus of this amendment was to make the state moreover on a social setting; therefore, it introduced a new directive principle of state policy under Article 38 which talks about the duty of the state to take necessary social actions for the upliftment of the and welfare of the people.
  • As stated above, the 42nd amendment increased the tenure of the houses to 6 years instead of 5 years. The said amendment of 1978, introduced amendments in Article 83 and 172 to alter the setting of tenure back to 5 years.
  • Earlier the president has to follow the advice given by the council of ministers and no other provision regarding this existed. The 44th amendment act amended this provision and inserted new grounds under Article 74(1) that the President may require the advice from the council of ministers. Therefore, the compelling nature that prevailed earlier was eradicated.

Amended provision regarding the position of High courts

The 44th amendment was a response to the distortions created by the 42nd amendment in the field of judiciary. The power was again allotted to the courts according to the basic structure of the constitution. Some provisions were: –

  • The power of high courts to issue writs under article 226 was restored
  • Amended article 227 and the high courts restored their power to be at the apex position with respect to all courts and established tribunals in its jurisdiction.

Amendments regarding the emergency provisions

The distortions which were existing in the emergency provision sought amendments. Article 352 was thoroughly revised and amended to revive the basic intention of the constitution-makers.

The ground which was taken by the Indira Gandhi’s government to impose the emergency in 1975 was changed with the term “armed rebellion”. The basic intention of the legislature behind this was to remove the vague term “internal disturbance” as it was very exhaustive in nature and can be misused.

Secondly, a provision was also added that the president needs a written recommendation from the cabinet for the proclamation of emergency. Moreover, for the approval of emergency, the resolution must be considered and passed by both the houses with a majority of two-third instead of a simple majority, and the time was also changed to 1 month. Additionally, the provision relating to the continuity of the emergency should be passed by both houses every six months.

The proclamation of the emergency can be revoked and stopped whenever the Lok Sabha passes resolution of a simple majority regarding its discontinuation and 10% of the members of the house of people can schedule a meeting for deciding such discontinuation.

The nature of Article 358 regarding Article 19 was also amended and it was stated that the suspension of Article 19 can only be possible in case of a proclamation of emergency based on war and external aggression not in the case of armed rebellion.

Similarly, Article 359 also got alteration and it was stated that the fundamental rights relating to life and personal liberty, under articles 20 & 21 can be suspended.

Other major and substantial changes

  • Clause (5) of Article 360 was excluded as it stated the president’s decision and satisfaction is sufficient in a situation where financial stability is challenged.
  • For making the system more transparent and accountable, Article 361 was introduced which provided constitutional support to the publications relating to the exact and true report of the parliamentary proceedings including state legislature also. However, it was ensured that such protection can’t be provided in such proceedings that are secret in nature.
  • Further, to secure the right to life and liberty of the citizens and making the notion to be robust in any situation, a provision regarding preventive detention was added which stated that in any case, the preventive detention can’t authorize the detention of more than 2 months.
  • The Concept of an advisory board in the cases of preventive detention was introduced. The composition of the advisory board was also strengthened as it provided that the chairman of the board must be serving judge of a High Court and the board should be constituted on the recommendations given by the chief justice of that particular high court.

Conclusion

The basic objective of the 44th amendment act was to eradicate the disastrous provisions of the 42nd amendment. This act acted as a vaccine for reviving the dead intentions of our constitution-makers. The notions and the concept introduced by the amending act were making the country a social nation win which the separation of power is delegated according to the provisions initially mentioned in the constitution.


[1] 1967 AIR 1643, 1967 SCR (2) 762

[2] (1973) 4 SCC 225; AIR SC 1461

[3] 20th July, 1994


Author: Ishika Tyagi from IMS Law College.


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