44th Constitutional Amendment Act 1978

Also called: Forty-fourth Amendment Act 1978, 44th Amendment · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 4 "Executive"; Class 11, Ch 9 "Constitution as a Living Document"; Class 12, Ch 6 "The Crisis of Democratic Order"

Meaning

The 44th Constitutional Amendment Act, 1978 was passed by the Janata government. It undid many changes made during the 1975–77 Emergency and added lasting safeguards against misuse of emergency powers and for civil liberties [5].

It matters because it turned the lessons of the Emergency into rules inside the Constitution. Most of the emergency procedure under Art. 352 that we follow today comes from this Act. NCERT sums it up with the line "the constitutional balance was restored."

Explanation

Background: what it was correcting

• The Emergency (1975–77): an internal emergency under Art. 352 was in force from June 1975 to March 1977.
• Emergency-era amendments: the 38th (1975), 39th (1975) and 42nd (1976) Amendments made the government stronger and the courts weaker.
• The 38th made the President's satisfaction in declaring an emergency, and in issuing ordinances (Art. 123), non-justiciable. Non-justiciable means courts could not question it. The 38th did the same for the Governor's ordinances (Art. 213).
• The 39th inserted Art. 329A. It took election disputes of the PM and the Speaker away from the ordinary courts.

• The 42nd raised the term of the Lok Sabha and state assemblies to six years. It also made ministerial advice binding on the President (Art. 74(1)).

• Restoration in two steps:

• 43rd Amendment (1977): gave back the powers of the courts. It omitted Arts. 32A, 131A and 226A and repealed Art. 31D.
• 44th Amendment (1978): dealt with emergency powers, rights, property and the remaining Emergency-era changes.

Emergency safeguards: the procedure under Art. 352 after 1978

• New ground: "armed rebellion" replaced "internal disturbance". A national emergency can now be declared only on the grounds of war, external aggression or armed rebellion [2].

• "Internal disturbance" was a loose phrase that could cover almost any unrest. "Armed rebellion" is much narrower.

• Steps in order: 1. Cabinet decision: the Union Cabinet (the PM and Cabinet-rank ministers) must send its decision to the President in writing [2]. The PM alone cannot advise it. 2. Proclamation: the President proclaims the emergency, on one of the three grounds only [2]. 3. Parliamentary approval: both Houses must approve it within one month [2]. 4. Majority needed: a special majority, meaning a majority of the total membership of the House and two-thirds of the members present and voting [2]. 5. Duration: six months at a time. It continues only if Parliament approves it again [2]. 6. Revocation: the President must revoke it if the Lok Sabha passes a resolution disapproving it [2]. 7. Special sitting: if one-tenth of Lok Sabha members give notice, a sitting must be held within 14 days to consider disapproval [2].

• Court review restored: the 38th Amendment's non-justiciability clauses were removed. Courts can again examine an emergency proclamation and ordinances.

Rights and property

• Arts. 20–21 cannot be suspended, even during an emergency:
• Art. 20: a person cannot be punished under a law made after the act was done, among other protections.

• Art. 21: protection of life and personal liberty.

• Property became a legal right instead of a Fundamental Right:

• Art. 19(1)(f) and Art. 31 were omitted.
• Art. 300A was added. It says no person shall be deprived of property except by authority of law.
• Effect: a person can no longer go straight to the Supreme Court under Art. 32 over property. A law is still needed to take property away.

Institutions and elections

• Five-year terms of the Lok Sabha and state assemblies were restored, in place of the 42nd Amendment's six years.
• Art. 74(1) proviso: the President can send the ministers' advice back for reconsideration once. The President must accept the advice given after that.
• Art. 329A was omitted. Election disputes involving the PM and the Speaker went back to the normal courts.
• Art. 361A was added. It protects newspapers and the media when they publish true reports of the proceedings of Parliament and state legislatures.

In the Constitution and practice

• Where it sits: it is an amendment under Art. 368, the power of Parliament to amend the Constitution. Its changes are spread across:
• Art. 352 (national emergency);
• Arts. 20–21 (rights that cannot be suspended);
• Art. 74(1) (President and the Council of Ministers);
• Art. 300A (property);
• Art. 361A (media reporting);

• the omission of Arts. 19(1)(f), 31 and 329A.

• Who made it: the Janata government, which came to power after the 1977 election. That election ended the Emergency rule of the Congress government.

• Link with the courts:
• Courts acted first. In Indira Gandhi v. Raj Narain (7 November 1975), the Supreme Court struck down Art. 329A(4) because it violated the basic structure [3]. The basic structure means the core features of the Constitution, such as democracy, free and fair elections, the rule of law and judicial review, which Parliament cannot destroy.
• Parliament finished the job. The 44th Amendment then omitted the whole of Art. 329A.

• Courts acted again later. In Minerva Mills (1980), the Court struck down Art. 368(4)–(5), which the 42nd Amendment had added to block court review of amendments [4].

• In practice: the special majority, the six-monthly renewal and the Lok Sabha's power to revoke made a national emergency much harder to declare and to keep in force. These safeguards came straight from the 1975–77 experience [2][5].

Don't confuse with

• 42nd Amendment (1976): it made ministerial advice binding (Art. 74(1)), but it left "internal disturbance" in place. "Armed rebellion" came in only with the 44th.
• 43rd Amendment (1977): it removed Arts. 32A, 131A, 226A and 31D. The 44th did not. The 44th dealt with emergency powers, property, Art. 329A and Art. 361A.
• Fundamental Right vs legal right to property: before 1978, property was protected by Arts. 19(1)(f) and 31 (Part III). After the 44th, it is a legal/constitutional right under Art. 300A, outside Part III. It can be enforced in court, but not through Art. 32.
• Art. 74(1) "return once" vs a veto: the President can send advice back only once. After that, the advice is binding. It is not a power to reject advice.

Prelims Hooks

• "Armed rebellion" replaced "internal disturbance" in Art. 352 through the 44th Amendment (1978), not the 42nd [2].
• An emergency needs the Union Cabinet's written decision, approval by both Houses within one month by special majority, and renewal every six months [2].
• The Lok Sabha can force the President to revoke an emergency. A special sitting must be held within 14 days if one-tenth of members give notice [2].
• Added by the 44th: Art. 300A (property as a legal right) and Art. 361A (protected reporting of legislative proceedings). Omitted by the 44th: Arts. 19(1)(f), 31 and 329A.
• Arts. 20 and 21 cannot be suspended even during an emergency, because of the 44th Amendment.
• Art. 329A: inserted by the 39th (1975). Clause (4) was struck down in Indira Gandhi v. Raj Narain (1975) [3]. The whole article was omitted by the 44th (1978).

Mains Points

• Safeguards built into the Constitution: the 44th Amendment turned the experience of 1975–77 into permanent rules [2][5]:
• written Cabinet advice;
• approval by special majority within one month;
• six-monthly renewal;
• the Lok Sabha's power to revoke an emergency;
• Arts. 20–21 cannot be suspended.

Use these in GS-II answers on emergency provisions and civil liberties. They show that the lesson was to make the procedure harder to misuse, not to remove emergency powers altogether.

• Political and judicial checks working together:
• The courts struck down Art. 329A(4) (Raj Narain, 1975) [3] and Art. 368(4)–(5) (Minerva Mills, 1980) [4].
• Most of the restoration, however, came from the 1977 vote and the 43rd and 44th Amendments.

• So a constitution is protected both by judicial review and by the people's vote.

• Balance in the executive and on property:

• Art. 74(1): the "return once" proviso keeps the President a constitutional head. It also gives the President a short pause to ask the government to think again.
• Property: moving it to Art. 300A ended long fights between land reform and Fundamental Rights. The trade-off is that property owners lost direct access to the Supreme Court under Art. 32.

Related concepts

• 38th Constitutional Amendment Act 1975
• 39th Constitutional Amendment Act 1975
• Indira Gandhi v. Raj Narain case
• 42nd Constitutional Amendment Act 1976
• 43rd Constitutional Amendment Act 1977

Read more

• The Emergency amendments and the restoration