44th Amendment of the Indian Constitution

The 44th Amendment Act, 1978, is one of the most significant amendments to the Indian Constitution. It was enacted to rectify the excesses and limitat

44th Amendment of the Indian Constitution

The 44th Amendment Act, 1978, is one of the most significant amendments to the Indian Constitution. It was enacted to rectify the excesses and limitations imposed during the Emergency period (1975–1977) and to restore the democratic balance by amending key provisions introduced by the 42nd Amendment Act, 1976. This amendment was passed during the tenure of the Janata Party government, led by Prime Minister Morarji Desai.

Key Objectives of the 44th Amendment

The 44th Amendment Act, 1978, was enacted to rectify and balance the extensive changes brought by the 42nd Amendment Act, 1976. It aimed to strengthen democracy, safeguard fundamental rights, and prevent potential misuse of executive and legislative powers. Below are the key objectives of the 44th Amendment:

1. Safeguarding Fundamental Rights

• The amendment sought to restore the sanctity of fundamental rights, which were diluted during the Emergency (1975–77) imposed under the 42nd Amendment.
• Article 352 (National Emergency):
  • Introduced stricter conditions for proclaiming a national emergency by requiring written recommendations from the Council of Ministers and approval by both Houses of Parliament within one month.
  • Limited the scope of emergency to acts of war, external aggression, or armed rebellion, replacing the vague term "internal disturbance."
• Article 19 (Fundamental Freedoms):
  • Ensured that fundamental freedoms under Article 19 are not suspended automatically during a proclamation of emergency unless there is a declared war or external aggression.

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2. Restoring Parliamentary Sovereignty

• One of the major objectives was to ensure Parliament's supremacy and reduce the dominance of the executive:
  • Repealed certain provisions of the 42nd Amendment that increased executive authority over the legislature.
  • Reinstated the necessity for parliamentary approval for constitutional amendments affecting democratic processes and fundamental rights.

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3. Strengthening Federalism

• The amendment aimed to address concerns regarding the centralization of powers introduced by the 42nd Amendment:
  • Enhanced the autonomy of the States by curbing the Union's overreach in legislative matters.
  • Restored the democratic principle of a balance between the Union and State governments.

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4. Protecting the Independence of the Judiciary

• The amendment sought to preserve the judiciary’s independence by:
  • Limiting the scope of preventive detention laws:
    • Reduced the maximum duration of preventive detention without obtaining the opinion of an advisory board from three months to two months.
  • Restoring judicial review and preventing arbitrary amendments to the Constitution that could undermine judicial independence.

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5. Strengthening Democratic Principles

• Right to Property:
  • Downgraded the Right to Property from a fundamental right under Article 31 to a constitutional right under Article 300A. This prevented misuse of property-related provisions during emergencies while still offering protection under ordinary law.
• Representation of People:
  • Restored provisions ensuring free and fair elections by making amendments to the Representation of People Act.

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6. Curbing Abuse of Emergency Powers

• Prevented the arbitrary misuse of emergency powers by:
  • Requiring approval of the proclamation of emergency by special majorities in both Houses of Parliament.
  • Empowering citizens to approach courts for the enforcement of fundamental rights even during emergencies.

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7. Strengthening Civil Liberties

• Restored democratic and civil liberties that had been suppressed during the Emergency:
  • Provided greater safeguards against preventive detention laws.
  • Reinforced the importance of free speech, equality, and individual freedoms.

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8. Reversing Authoritarian Provisions of the 42nd Amendment

• The amendment repealed provisions that reduced checks and balances, such as:
  • Limitations on judicial review.
  • Constraints on legislative debates and decisions.

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Significance of the 44th Amendment

• Restoration of Democracy:
  • The 44th Amendment is regarded as a key reform that reinstated India's democratic character after the excesses of the Emergency.
• Balancing Power:
  • It helped restore the balance of power between the executive, legislature, and judiciary.
• Protecting Citizens' Rights:
  • Reinforced citizens' rights and freedoms, ensuring the government remained accountable.

The 44th Amendment Act, 1978, was instrumental in safeguarding democratic values, individual freedoms, and federal principles in India. It remains a cornerstone in ensuring that the Constitution protects citizens from potential abuse of power while maintaining a robust and functional democracy.

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Salient Features of the 44th Amendment Act

1. Amendment to Fundamental Rights:

   • Right to Property (Article 31):
     • The Right to Property was removed as a Fundamental Right and made a legal right under Article 300A.
     • This was done to prevent unnecessary litigation and ensure that the government could undertake land reforms and public welfare projects effectively.
   • Safeguards Against Preventive Detention:
     • Article 22 was amended to ensure that no person could be detained beyond two months without the recommendation of an advisory board comprising judges.

2. Changes to Emergency Provisions (Part XVIII):

   • Declaration of National Emergency (Article 352):
     • The grounds for proclaiming a national emergency were limited to war, external aggression, or armed rebellion (replacing "internal disturbance").
     • The President must now act on a written recommendation of the Cabinet to proclaim an emergency.
     • The proclamation of emergency must be approved by both Houses of Parliament within one month.
   • Duration and Revocation:
     • An emergency can continue for six months but requires periodic parliamentary approval every six months.
     • The Lok Sabha has the power to revoke an emergency by passing a resolution with a simple majority.
   • Personal Liberties During Emergency (Article 359):
     • Fundamental Rights under Articles 20 and 21 (protection of life and personal liberty) cannot be suspended even during a national emergency.

3. Restoration of Judicial Review:

   • Reaffirmed the Supreme Court's power of judicial review, which was curtailed by the 42nd Amendment.
   • The judiciary's independence was restored by removing provisions that weakened the courts' authority.

4. President’s Rule in States (Article 356):

   • Made it mandatory for Parliament to approve the imposition of President's Rule in a state within two months.
   • The duration of President's Rule was limited to six months but could be extended up to a maximum of three years with parliamentary approval.

5. Amendment to Directive Principles of State Policy:

   • Articles 38 and 39 were strengthened to emphasize the state's responsibility to secure economic justice and equality among citizens.

6. Curtailment of Parliamentary Supremacy:

   • Restored the balance of power between Parliament and the judiciary by removing provisions introduced in the 42nd Amendment that curtailed judicial authority.

7. Election Disputes and Disqualifications:

   • Repealed the 42nd Amendment provision that barred courts from questioning the validity of elections of the Prime Minister, President, or Vice President.

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Impact of the 44th Amendment

1. Protection of Democracy:
   The amendment played a crucial role in restoring the democratic framework of the Constitution, which had been distorted during the Emergency. It prevented the arbitrary imposition of authoritarian policies.

2. Strengthened Individual Rights:
   Citizens were granted additional safeguards to protect their personal liberty and property rights from undue governmental interference.

3. Judicial Independence:
   The amendment reestablished the judiciary’s role as the guardian of the Constitution and ensured that the principles of checks and balances were maintained.

4. Accountability in Emergency Powers:
   By making the declaration of emergency more stringent, the amendment ensured that such extraordinary powers could not be misused by the executive branch.

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Criticism of the 44th Amendment

1. Incomplete Reversal of the 42nd Amendment:
   While the amendment restored many democratic principles, some provisions of the 42nd Amendment, like changes to the Directive Principles of State Policy, were left untouched.

2. Removal of Right to Property as a Fundamental Right:
   Critics argue that making the Right to Property a legal right under Article 300A diluted its importance and left property owners vulnerable to arbitrary state action.

3. Implementation Challenges:
   Though it strengthened protections against misuse of power, the effectiveness of the amendment depends on its proper implementation by subsequent governments.

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Significance of the 44th Amendment

The 44th Amendment is regarded as a landmark in India’s constitutional history because it:

• Restored the spirit of democracy after a period of political and constitutional crisis.
• Highlighted the resilience of India’s democratic institutions.
• Demonstrated the ability of the Constitution to adapt and correct itself in the face of challenges.

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Conclusion

The 44th Amendment Act, 1978, was a corrective measure that safeguarded India’s democratic framework and ensured that no future government could misuse constitutional provisions, as was witnessed during the Emergency. It reinforced the fundamental rights of citizens, restored the judiciary’s authority, and emphasized accountability in governance. This amendment continues to hold immense significance in maintaining the constitutional balance between the legislature, executive, and judiciary.