All about the 44th amendment of the Indian Constitution

• An article by Lavanya Goinka

The 44th Amendment to the Indian Constitution was enacted in 1978, following the passage of the 45th Amendment Bill. With the passage of the 42nd Amendment Act, 1976, certain provisions of the Indian Constitution were subjected to changes and amendments against the will of the people. During the Emergency, declared under Article 352, the Indira Gandhi-led Indian National Congress legislated the same. The Constitution (Forty-fourth Amendment) Act of 1978 was welcomed in order to reverse those developments and restore unity between the State and its citizens. The 44th amendment to the Indian Constitution is examined in depth in this article.
Scenario before the amendment
The Indian Constitution’s Article 352 was utilised to declare a national emergency. Prior to the 44th Amendment Act of 1978, Article 352 of the Constitution specified that the President of the country might declare an emergency if she or he believed there was a significant threat to the security of India or its territory, whether caused by war, external aggression, or internal disturbances. The President issued the proclamation after Prime Minister Indira Gandhi made a decision and sent it to the President without consulting her cabinet, according to Article 352. A day later, Indira Gandhi’s Cabinet Ministers clearly backed this decision. In both chambers of Parliament, the declaration was accepted by a simple majority. According to the former rule, the emergency might remain as long as there was no new Parliamentary decision.
Following the 1975 emergency, the regulations governing the declaration of a state of emergency were revised and clarified. The significance of free speech and dissent was re-established, as was the rule of law. However, many questions remain unresolved because we are still in the early stages of democracy.
The Constitution (Forty-fourth Amendment) Act, 1978
The Constitution (Forty-fifth Amendment) Bill, 1978, which was enacted as the Constitution (Forty-fourth Amendment) Act, 1978, had the following Statement of Objects and Reasons:

1. As recent experience has shown, the Constitution’s fundamental rights, including those of life and liberty, can be taken away by a temporary majority. As a result, appropriate safeguards must be put in place to prevent a repeat of this situation, as well as to ensure that the people have a real say in determining the type of government they will live under. One of the main objectives of this bill was to deal with this problem.
2. As a result, certain amendments to the Constitution are proposed that would have the effect of undermining the Constitution’s secular or democratic character, abridging or taking away essential rights, and preventing or obstructing free and fair elections based on adult suffrage. Only if they are authorised by the people of India by a majority of votes cast in a referendum in which at least 51% of the voters participated may they jeopardise the independence of the judiciary. Article 368 of the Indian Constitution has been amended to ensure this.
3. The right to property, which has been the subject of multiple constitutional changes, would cease to be a fundamental right and become merely a legal right as a result of the enhanced position wanted for basic rights. Article 19 will be changed as needed for this, and Article 31 will be removed. The removal of property from the list of fundamental rights, on the other hand, would protect minorities’ ability to establish and run educational institutions of their choosing.
4. Similarly, persons who own land for personal cultivation and are within the ceiling limit will not lose their right to market value compensation.
5. While property would no longer be a fundamental right, it would be recognised as a legal right, with the caveat that no one could be deprived of their property unless they followed the law.
6. A declaration of emergency under Article 352 effectively changes the Constitution by making it a unitary state for the duration of the emergency and enables citizens to petition the courts to have fundamental rights suspended, such as the right to life and liberty. As a result, suitable protections must be in place to ensure that this power is utilised appropriately and not abused. As a result, it is recommended that a declaration of emergency be issued only when the security of India or any part of its territory is threatened by war, external attack, or armed insurrection. Internal unrest that does not escalate to the point of armed insurrection would not constitute cause for a declaration.
7. Furthermore, it is proposed that an emergency be proclaimed only on the basis of written advice from the Cabinet to the President, in order to ensure that a proclamation is only given after due consideration. Because a declaration of emergency effectively alters the Constitution, it is necessary to be approved by the two Houses of Parliament with the same majority required to amend the Constitution, and it must be done within one month. Any such proclamation would only be valid for six months and could only be renewed by resolutions passed by a majority of the same people. The proclamation will come to an end if the Lok Sabha approves a resolution denouncing its continuation. A special meeting of the Lok Sabha can be summoned if 10% or more of the members vote in favour of a motion denouncing the proclamation.
8. As a further check against the misuse of the emergency provisions and to put such a right on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The requirement that any statute for preventative detention cannot allow detention for more than two months unless an Advisory Board certifies that there are acceptable grounds for such custody increases the right to liberty even more. The Chairman of an Advisory Board must be a serving Judge of an appropriate High Court, and the Board must be formed in accordance with the Chief Justice’s recommendations.
9. A unique provision is being introduced to guarantee the media’s right to report freely and without limitation on happenings in the Parliament and state legislatures. The section pertaining to the breakdown of state constitutional machinery is being updated to stipulate that a proclamation issued under Article 356 would only be in effect for six months in the first instance, and in most situations would not extend longer than one year. However, if a proclamation of emergency is in existence and the Election Commission certifies that extending the President’s authority beyond one year is required owing to difficulty holding elections to the State’s Legislative Assembly, the proclamation’s length of operation can be prolonged. This is subject to the three-year time limit that is currently in place. These procedures would ensure that a state’s democratic governance is restored in the shortest amount of time possible once elections are held.
10. To avoid delays, it is proposed that Articles 132, 133, and 134 be amended and a new Article 134A be added to provide that a High Court should consider granting a certificate for an appeal to the Supreme Court on the basis of an oral application by a party or, if the High Court deems it appropriate, on its own motion, immediately after the delivery of the judgement, decree, final order, or sentence in question. In circumstances of special permission to appeal granted by the Supreme Court, Article 136 will be the sole norm.
    Right to property under 44th Amendment Act, 1978
    Year by year, the extent of the right to property was decreased by the legislature from the initial draught of the Constitution. The 44th Amendment to the United States Constitution, ratified in 1978, signified a significant transition. The right to property in the Constitution was reclassified as a constitutional right when it was declassified as a fundamental right. Article 300A, which only relates to Article 31(1), has been moved to Part XII, under a new Chapter IV titled “Right To Property,” whereas Article 19 (1) (f) and Article 31 of the Indian Constitution have been repealed. The above-mentioned Article went into effect in the following areas:

• A change in the legislature’s stance on the need to compensate when acquiring or requisitioning property.
• Property and other fundamental rights are inextricably linked.
• Finally, there’s the issue of the link between fundamental rights and directive principles.
  Proclamation of emergency under 44th Amendment Act, 1978

1. In its current form, Article 352 of the Indian Constitution allows the President to declare an emergency only if the Prime Minister and his Cabinet agree in writing to the crisis situation and deliver it to the President. Under Article 74, the President can send the written dossier for an Emergency declaration to the Prime Minister and Cabinet. However, if the Cabinet resends it, the President is required to comply and declare an emergency. Unlike in 1975, the Prime Minister can no longer declare an emergency unilaterally without providing a written reason or transparency.
2. Similarly, declaring an emergency no longer requires a simple majority in Parliament. After the 44th Amendment was ratified in 1978, a special majority was required. A majority of the whole membership of each House of Parliament, as well as a majority of not less than two-thirds of the members present and voting, must support the proclamation. Previously, if neither chamber reached a majority accord, the proclamation would expire after two months. However, after the 44th Amendment, this tenure was reduced to just one month.
3. There was no mechanism for a periodic review of the proclamation of emergency once the decision was adopted by both Houses of Parliament in 1975. The 44th Amendment Act of 1978 required that the emergency declaration be reviewed after six months and, if new legislative consent was not obtained, the emergency be ended. The Amendment also stated that a meeting of ten percent of Lok Sabha members or more could be called to examine a bill to repeal the proclamation. This type of demand must be made within 14 days. If the law is passed by a simple majority at the special meeting, the emergency will be lifted.
4. The duration of the emergency is usually limited to one year. The 44th Amendment Act of 1978 specified that in the event of a national emergency, the right to public access to Parliamentary proceedings will not be abolished.
5. Furthermore, the 44th Amendment Act of 1978 amended Article 359 to allow petitions to the Supreme Court and High Courts for writs in the form of Habeas Corpus, which were unavailable during the 1975 Emergency. The declaration of emergency became unjustifiable under Article 352(5) of the 38th Constitutional Amendment. Since Clause 5 was repealed, anyone can now challenge any proclamation of emergency in a court of law based on the government’s bad intentions.