Constitution of India

Introduction

• With the aim of restoring the Constitution of India, 1950 (COI) to the condition it was in before the emergency, the Government of India enacted the 44^th Constitutional Amendment Act of 1978.
• • It was introduced in the Lok Sabha.
• It made wide scale changes to the COI with the aim of making the Indian polity more democratic.

Objectives of the 44^th Amendment Act, 1978

The 44^th 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.

Modification Made by the 44^th Amendment Act, 1978

The 44^th amendment has made the following modifications to the COI.

Fundamental Rights

• The right to property was removed from the list of fundamental rights and elevated to the status of a legal right under Article 300A.
• Removal of Article 19(1)(f) and Article 31 from the COI.
• Article 31(1) became Article 300A which states that no person shall be deprived of his property saved by authority of law.
• The safeguard contained in Article 31(2) was incorporated in Article 30. Thus, a new clause (1A) has been added after Article 30(1) which states that -
  • Article 30 (1A)- In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause ( 1 ), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

Power of President

• Article 74(1) was revised, and a clause was added which stated that the President may require the council of Ministers to reconsider the advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
• Previously, the President was required to act in accordance with the Council of Ministers' advice.

Amendment to the Basic Structure

• Any modifications in the basic structure of the COI can only be enacted if the people of India approve them by a majority of votes cast in a referendum in which at least 51% of the voters participated. This has been ensured by amending Article 368.

Directive Principles of State Policy

• Article 38 was added which states that the state to secure a social order for the promotion of welfare of the people

Parliament and State Legislature

• The term of the Lok Sabha and the State Assemblies were restored to five years by amending Articles 83 and 172 of the COI.
• Article 361A was added to the COI in order to ensure that no one was held liable to any civil or criminal proceedings in a court in respect of the publication in a newspaper of a substantially true report of any proceedings of either house of parliament or of a state legislature unless the publication of any report of the secret proceedings of a House.

Judiciary

• Restored some of the powers of the Supreme Court and high courts.
• It allowed for the judicial review for the elections of the President, Governors and speaker of the Lok Sabha.

Restraint on the Power of the Parliament

• The 44^th 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 of the COI which related to the decisions on questions of disqualification of members of Parliament and State Legislatures, have been replaced to provide that the President's decision on the question of disqualification will be based on the Election Commission's opinion.

National Emergency

• It was introduced to prevent the misuse of emergency power by the executive. It introduced a number of safeguards under Article 352 which 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.
• There was no Parliamentary control, once a proclamation of emergency was approved by it. But now a special sitting of Lok Sabha can take place for the purpose of considering disapproval.
• Under the provisions of Article 358, Article 19 will be automatically suspended when an emergency is declared on the basis of war or external aggression.
• During an emergency, enforcement of the rights conferred by Article 20 and Article 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.

Conclusion

• The 44^th Amendment Act, 1978 intended to reform all the amendments that were made to the COI by the 42^nd Amendment Act, 1976. This Amendment Act nullified several provisions and introduced a number of positive changes in the COI. However, this Amendment Act is often regarded as an attempt to institutionalize emergency in the country forever.