44th amendment of Indian Constitution

Just imagine India is in a national emergency, and one of your relatives is detained illegally. So, in such a case, what can you do? You can file a writ petition of habeas corpus (illegal detention) in the High Court or Supreme Court. But this was the situation during the phase between 1975-77. This phase is considered our country's darkest hours as it witnessed a constitutional crisis during the 21-month period in 1975-1977 when the country was under a state of emergency. 

That year in 1977, it was clear to everyone that Indira Gandhi would definitely lose the elections because of her autocracy, the introduction of the most criticised 42nd amendment, the imposition of a national emergency, and Janata Party would come into power. Hence, Indira Gandhi, the then Prime Minister defeat, led the country's first national coalition government, comprised of five parties, four of which formed the Janata Party.  

Altogether, to put an end to autocracy and such problems, the 44th Constitutional Amendment Act 1978 was introduced which nullified various provisions brought as new articles or as amendments by the controversial 42nd Amendment Act. This article discusses the 44th amendment and the changes brought by it. So, let’s get started.

What is the 44th Amendment Act, 1978?

A 44th amendment was passed by the government in 1978 to revoke a few amendments made under the 42 amendment act 1976, which was a highly criticised amendment of all time. The 44th Amendment was made to ensure that people also have equal rights & provide sufficient safeguards against any instance which will have a tendency to take over fundamental rights.

Changes brought by 44th amendment

1. 42nd amendment's amendment: In the 42nd amendment Act, 1976, Ss. 18, 19, 21, 22, 31, 32, 34, 35, 58 & 59 shall be omitted. 

2. Article 19's amendment (Right to Freedom): 

• In Art. 19 clause (1) sub-clause (e), the word “and” shall be added in the end.

• Art. 19 sub-clause (f) was omitted.

• In Art. 19 clause (5), for the words, brackets and letters “sub-clauses (d), (e) and (f)”, the words, brackets, and letters “sub-clauses (d) and (e)” was substituted.

3. Article 22's amendment (Protection against arrest and detention in certain cases): 

• Amendment to Clause 4 of Article 22 

• In art. 22 clause (7), sub-clause (a) has been omitted, sub-clause (b) has been re-written as sub-clause (a), and similarly, sub-clause (c) has been re-written as sub-clause (b)

• In the sub-clause, as so re-written, for the words, brackets, letter, and figure “sub-clause (a) of clause (4)”, the word, brackets and figure “clause (4)” has been substituted.

4. Article 30's amendment (Right of minorities to establish and administer educational institutions)

• Insertion of Clause 1A 

• The “Right to Property” sub-heading occurring post Article 30 of the Indian Constitution was omitted.

5. Omitting Article 31 (Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication): Right to property was omitted from fundamental rights, and it was made a legal right. Also, article 31 of the Constitution, which deals with the forced acquisition of property, was omitted.

6. Modification of Article 31A (Saving of laws providing for acquisition of estates, etc.): In Article 31A clause (1), the words and numbers “Article 14, Article 19, or Article 31″ shall be switched with the words and figures “Article 14 or Article 19.”

7. Amending Article 31C (Saving of laws giving effect to certain directive principles): “Article 14 or Article 19” shall be replaced with the words and figures “Article 14, Article 19, or Article 31”.

8. Amending Article 38 (State to secure a social order for the promotion of welfare of the people): Under this article, a new directive principle has been inserted, stating that the State must maintain social order to promote the welfare of the public.

9. Substituting new article for Article 71: Article 71 was substituted with a new article concerning matters in relation to the President or Vice-President elections, by the 44th Amendment Act. 

10. Article 74's Amendment: Article 74(1) was amended with a provision that the President may request the Council of Ministers to rethink any advice given to him but that the President should act on the advice provided after such reconsideration. Before this, the President was required to follow the Council of Ministers’ advice.

11. Amending Article 77 (Matters relating to, or connected with, the election of a president or Vice President): Article 77 clause 4 was omitted by this 44th Amendment.

12. Modifying Articles 83 (Duration of Houses of Parliament) and 172 (Duration of State Legislatures): The term of the House of the People and the State Assemblies was restored to five years by amending Articles 83 and 172 because this term was extended from 5 to 6 years by the 42nd amendment.

13. Substituting new article for Articles 103 (Decision on questions as to disqualifications of members) & 192: Articles 103 & 192, concerning decisions on questions of disqualification of MPs & MLAs, have been replaced to state that in the case of a member of a State Legislature, the decision of the President on the question of disqualification will comply with the opinion of Election Commission.

14. Amending Article 105 (Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof)

Under Article 105 clause (3) of the Constitution, the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution,” will be substituted with the words, figures, and brackets “shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978” .

15. Modifying Article 123 (Power of President to promulgate Ordinances during recess of Parliament)

Article 123 clause (4) has been omitted.

16. Amending Article 132 (Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases):  

• Under Art. 132, clause (1), the words, figures, and letter “if the High Court certifies under Article 134A” will be substituted for the words “if the High Court certifies”.

• Clause (2) of this article shall be omitted.

• In clause (3), the words “or such leave is granted”, and the words “and, with the leave of the Supreme Court, on any other ground” was omitted.

17. Modification of Article 133 (Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters): In Article 133 clause (1) of the Constitution, the words, numbers, and the letter “if the High Court certifies under Article 134A” must be modified with “if the High Court certifies under Article 134 A.”

18. Article 134 amended (Appellate jurisdiction of Supreme Court in regard to criminal matters): The words, numbers, & letter “certifies under Article 134A” was replaced for the word “certifies” in sub-paragraph (c) of Article 134(1) of the Constitution.

19. Addition of a new Article 134A (Certificate for appeal to the Supreme Court Every High Court, passing or making a judgement, decree, final order, or sentence, referred to in clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or clause ( 1 ) of Article 134): Art. 134A was introduced, that deals with certificates for an appeal to the Supreme Court. 

20. Article 139A amended (Transfer of certain cases): Article 139 A clause (1) was amended.

21. Modifying Article 150 (Form of Accounts of The Union and of The States): The texts “on the advice of” were modified with the words “after consultation with” in Art. 150 of the Constitution.

22. Amending Art. 166 (Conduct of business of the Government of a State): Article 166 clause (4) of the Indian Constitution was omitted.

23. Modification of Art. 194 (Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof): Under Article 194 clause (3) , the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution”  was substituted instead of the words, figures, and brackets “shall be those of that House, and of its members and committees, immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978”. 

24. Article 213 amended (Power of Governor to promulgate Ordinances during recess of Legislature): In Art. 213 of the Constitution, clause (4) was omitted.

25. Amending Article 217 (Appointment and conditions of the office of a Judge of a High Court): In Article 217 clause (2):

• The term “or” at the end of sub-clause (b) must be omitted;

• The sub-clause (c) was omitted,

• In the Explanation, clause (a) was re-written as clause (aa), and the latter was added prior to a clause, “(a) in computing the period during which a person has held a judicial office in the Indian territory, any period after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post”.

26. Modification of Article 225 (Jurisdiction of existing High Courts): The said proviso was positioned at the end of Art. 225 of the Constitution which states:

“Provided that any restriction which applied to the exercise of original jurisdiction by any of the High Courts with regards to any matter relating to revenue or any act ordered or done in the collection thereof immediately prior to the commencement of this Constitution shall no longer apply to such exercise.”

27. Amendment of Articles 226 (Power of High Courts to issue certain writs) & 227 (Power of superintendence over all courts by the High Court)

The High Court’s power to issue writs for purposes apart from the enforcement of fundamental rights were restored by amendment of Article 226. The High Court's supervision power over all courts & tribunals within its geographical jurisdiction was restored by modifying Article 227. It deleted the provisions which stripped the court of the power to decide on the President, Vice President, Prime Minister, and Speaker of the Lok Sabha’s election issues.

28. Amendment of Article 239B (Power of administrator to promulgate Ordinances during recess of Legislature): In Article 239B, clause (4) was omitted.

29.Omission of Article 257A: Article 257A, dealt with the ability of the Centre to dispatch its military forces or other Union forces to deal with a grave crisis, was omitted.

30.Added a new Chapter IV in Part XII: Chapter IV on the Right to Property under Article 300A was inserted in Part XII of the Constitution. (Right to property was deleted from Part III, fundamental rights under this amendment)

31.Amending Art. 329 (Bar to interference by courts in electoral matters) and omission of Article 329 A: The words, numbers, & letter “but subject to the conditions of Article 329A” were omitted from the starting paragraph of Art. 329 of the Constitution & Art. 329A of the Constitution was omitted. 

32.Amendment of Articles 352, 356, and 358: Proclamation of emergency under this amendment was subjected to various modifications.

33.Article 359 amended (Suspension of the enforcement of the rights conferred by Part III during emergencies):

Article 359 of the Constitution reads as:

1. In Art. 359 clauses (1) and (1A), the words, figures, & brackets “the rights provided by Part III (excluding Articles 20 and 21)” was modified with the words, figures, & brackets “the rights conferred by Part III (except for Articles 20 & 21)”,

2. The amendment provided the following sentence post clause (1A):

(1B) The provisions of paragraph (1A) is not applicable-

(i) to any law that does not contain a recital stating that it is applicable to the Proclamation of Emergency in effect at the time it is issued; or

(ii) to any executive action not conducted in accordance with a statute providing such a recital “.

34.Amended Article 360 (Provisions as to financial emergency): Article 360 clause (5), was omitted, that gave the President’s satisfaction as to the occurrence of a circumstance threatening the country’s financial stability or credit in any section is final & conclusive.

35.Adding new Article 361A (Protection of publication of proceedings of Parliament and State Legislatures): Art. 361A of the Constitution deals with the safeguard of the publication of proceedings of Parliament & State Legislatures.

36. Article 371F modified (Special provisions with respect to the State of Sikkim notwithstanding anything in this Constitution): In Article 371F clause (c), the words “six years” shall be substituted with “five years,” & the words “five years” will be substituted with “four years” in both cases where they appear.

37. Ninth Schedule amended: Under the 9th Schedule of the Indian Constitution, Entries 87, 92, and 130 were repealed.

Conclusion

As, the 42nd amendment did grave injustice to the citizens of India and violated the trust and spirit of the constitution by suppressing the fundamental rights enshrined in it. The 44th amendment had to come to the rescue to ensure that such instances could never occur again in the future and saved the Indian democracy by removing the distortions introduced by the 42nd Amendment in the Indian Constitution.