44th Constitutional Amendment Act, 1978
📜 44th Constitutional Amendment Act, 1978 – Explained in Detail
âś… Background
The 44th Amendment was enacted in 1978 during the Janata Party government under Prime Minister Morarji Desai.
It was a corrective amendment intended to reverse or dilute several controversial provisions introduced by the 42nd Constitutional Amendment Act, 1976, which was passed during the Emergency (1975–77) imposed by the Indira Gandhi government.
The 42nd Amendment had curtailed fundamental rights, strengthened the executive, and weakened the judiciary and federal structure.
The 44th Amendment sought to restore the balance of power and protect civil liberties.
⚖️ Objective of the 44th Amendment
To restore democratic values by undoing the authoritarian changes made by the 42nd Amendment.
To strengthen fundamental rights, particularly the right to life and liberty.
To ensure judicial review and parliamentary accountability.
To reinforce the separation of powers and federalism.
đź“Ś Key Features and Provisions of the 44th Amendment
1. Article 21 – Right to Life and Personal Liberty
Before: Under the 42nd Amendment, Article 21 could be suspended during an Emergency.
After 44th Amendment:
It added a safeguard that Article 21 (Right to Life and Liberty) cannot be suspended even during a National Emergency.
2. Article 359 – Suspension of Fundamental Rights
The amendment limited the power of the President to suspend the enforcement of Fundamental Rights during an Emergency.
It clarified that Articles 20 and 21 cannot be suspended, ensuring protection from arbitrary arrest and punishment even during an Emergency.
3. Article 19 – Freedom of Speech, Assembly, etc.
The amendment restored Article 19 to its original form, reversing the changes made by the 42nd Amendment that had curtailed these freedoms during an Emergency.
4. Emergency Provisions (Articles 352, 356, 358)
Introduced safeguards against misuse of Emergency powers:
a) Article 352 (National Emergency)
The President can proclaim an Emergency only if there is armed rebellion, replacing the previous phrase "internal disturbance".
The written recommendation of the Cabinet is required for declaring an Emergency.
The duration of President’s Rule was restricted to 6 months, extendable up to 3 years with strict conditions.
Now applies only to Article 19 (and not all Fundamental Rights), and only when Emergency is declared due to war or external aggression, not armed rebellion.
5. Right to Property – Deletion from Fundamental Rights
Article 31 (Right to Property) was deleted from Part III of the Constitution.
The Right to Property was made a legal right under Article 300-A, not a fundamental right anymore.
This allowed the State to acquire property for public purposes more easily.
6. Tenure of Legislatures (Article 83 & 172)
Restored the term of Lok Sabha and State Legislative Assemblies from 6 years back to 5 years.
7. Restoration of Judicial Review
Removed the restrictions imposed on courts by the 42nd Amendment.
Restored the power of judicial review to examine constitutional amendments and government actions.
8. Article 74 – Council of Ministers
Clarified that the President shall act on the aid and advice of the Council of Ministers, reinforcing the parliamentary system.
9. Other Provisions
Provided constitutional protection to civil servants under Article 311.
Restored the jurisdiction of High Courts and the Supreme Court that had been curtailed.
Strengthened the federal structure by reducing the Centre's overriding powers.
🧑‍⚖️ Important Case Laws Related to the 44th Amendment
1. Maneka Gandhi v. Union of India (1978)
Though delivered around the same time, this case strongly influenced the strengthening of Article 21.
The Court interpreted “procedure established by law” to mean fair, just, and reasonable procedure.
The 44th Amendment ensured that Article 21 would remain enforceable even during Emergency, inspired by the reasoning in this case.
2. ADM Jabalpur v. Shivkant Shukla (1976) (Criticized)
In this case (during the Emergency), the Supreme Court held that Right to Life and Liberty could be suspended during Emergency.
The 44th Amendment overruled this position, ensuring Article 21 is inviolable even during Emergency.
3. Minerva Mills v. Union of India (1980)
The Court struck down parts of the 42nd Amendment and upheld the basic structure doctrine.
The 44th Amendment aligned with this ruling by restoring judicial review and balance between Fundamental Rights and Directive Principles.
đź“ť Summary Table
| Provision | Before 44th Amendment | After 44th Amendment |
|---|---|---|
| Article 21 | Could be suspended during Emergency | Cannot be suspended at all |
| Right to Property | Fundamental Right | Legal Right under Article 300-A |
| Emergency Declaration | Internal disturbance | Only in case of armed rebellion |
| Term of Lok Sabha | 6 years | 5 years |
| President's Rule | Extendable with fewer checks | Stringent conditions after 1 year |
| Cabinet's Advice to President | Not mandatory in writing | Must be in writing |
| Article 19 | Could be suspended during any Emergency | Suspended only in war or external aggression |
🎯 Conclusion
The 44th Constitutional Amendment Act, 1978 is a historic and reformative amendment that aimed to restore constitutional democracy, civil liberties, and judicial independence after the authoritarian era of the Emergency. It is a symbol of India’s commitment to fundamental rights, federalism, and the rule of law.
RELATED Blog
0 comments