44th Constitutional Amendment Act, 1978: Objectives, Key Provisions, and Impact

The 44th Constitutional Amendment Act (1978) stands as one of the most critical “restorative” legislations in Indian constitutional history. Enacted by the Janata Party government under Prime Minister Morarji Desai, its primary purpose was to undo the distortions introduced by the 42nd Amendment Act during the 1975–1977 Emergency.

Often referred to as the “Anti-Emergency Amendment,” it focused on safeguarding democratic institutions, strengthening the judiciary, and ensuring that the fundamental rights of citizens—specifically the Right to Life and Liberty—could never again be suspended arbitrarily.

Primary Objectives of the 44th Amendment

The amendment was driven by a mandate to prevent the recurrence of authoritarian rule.

1. Limiting Executive Discretion: Ensuring that a National Emergency cannot be declared solely on the whims of a Prime Minister.
2. Restoring Judicial Authority: Reinstating the power of the Supreme Court and High Courts to review elections and executive actions.
3. Protection of Human Rights: Providing a “fail-safe” for civil liberties so they remain intact even during periods of internal or external crisis.
4. Institutional Balance: Reverting the tenure of the Lok Sabha and State Assemblies to their original five-year terms.

Major Amendments to Emergency Provisions

The 44th Amendment introduced stringent checks on the invocation of Article 352 (National Emergency) to prevent its misuse.

1. “Armed Rebellion” vs. “Internal Disturbance”: The vague term “internal disturbance” was replaced with “armed rebellion.” This ensured that a National Emergency could not be declared in response to simple political protests or strikes.
2. Written Advice of the Cabinet: The President can now only proclaim an Emergency based on the written recommendation of the Cabinet (the Prime Minister and other ministers of cabinet rank), rather than just the Prime Minister’s verbal advice.
3. Parliamentary Approval: The time for Parliament to approve a proclamation was reduced from two months to one month. Furthermore, approval now requires a special majority (majority of total membership and 2/3rd of those present and voting) instead of a simple majority.
4. Periodic Review: The Emergency must now be re-approved by Parliament every six months to continue.
5. Revocation Power: If 1/10th of the members of the Lok Sabha give notice for a special sitting, the House must meet within 14 days to consider a resolution to revoke the Emergency.

Impact on Fundamental Rights

The 44th Amendment brought about the most significant changes to the “Magna Carta” of India since its inception.

1. Protection of Articles 20 and 21: It mandated that the right to protection in respect of conviction for offenses (Article 20) and the right to life and personal liberty (Article 21) cannot be suspended even during a National Emergency.
2. Reclassification of the Right to Property: The Right to Property was removed from the list of Fundamental Rights (Articles 19(1)(f) and 31). It was re-inserted as a Legal Right under Article 300A in Part XII of the Constitution.
3. Minority Rights: Added Article 30(1A) to ensure that the state provides adequate compensation if it acquires the property of a minority educational institution, so as not to abridge their constitutional rights.

Restoration of Judicial and Parliamentary Integrity

The amendment sought to reverse the “centralization of power” that had occurred between 1975 and 1977.

1. Judicial Review of Elections: It repealed Article 329A, which had placed the election disputes of the Prime Minister and the Speaker beyond the reach of the courts. The Supreme Court once again became the final authority for disputes regarding the President and Vice-President.
2. Tenure of Legislatures: The 42nd Amendment had extended the term of the Lok Sabha and State Legislative Assemblies to six years. The 44th Amendment restored the five-year term.
3. Parliamentary Privileges: It introduced Article 361A, providing constitutional protection to the publication of substantially true reports of the proceedings of Parliament and State Legislatures in newspapers and radio (except for secret sittings).
4. The “Reconsideration” Power: It amended Article 74(1) to state that the President may require the Council of Ministers to reconsider its advice. However, once the Cabinet sends the same advice back, the President is bound to act on it.

Comparison: 42nd vs. 44th Amendment

FAQs: 44th Constitutional Amendment Act

WHO WAS THE PRIME MINISTER WHEN THE 44TH AMENDMENT WAS PASSED?

The amendment was passed in 1978 during the tenure of Morarji Desai, leading the Janata Party government.

WHICH ARTICLE OF THE CONSTITUTION WAS REPEALED TO REMOVE THE RIGHT TO PROPERTY?

Articles 19(1)(f) and 31 were deleted, and the right was shifted to Article 300A.

CAN THE RIGHT TO LIFE (ARTICLE 21) BE SUSPENDED DURING A NATIONAL EMERGENCY NOW?

No. Following the 44th Amendment, Articles 20 and 21 remain operative even during a National Emergency.

WHAT TERM REPLACED “INTERNAL DISTURBANCE” IN ARTICLE 352?

The term “Armed Rebellion” replaced “Internal Disturbance” to prevent misuse of emergency powers against political dissent.

WHAT IS THE CURRENT DURATION FOR PARLIAMENTARY APPROVAL OF AN EMERGENCY?

Parliament must approve the proclamation within one month (previously two months) from its issuance.

HOW DID THE AMENDMENT CHANGE THE PRESIDENT’S POWER REGARDING CABINET ADVICE?

The President was given the power to send the advice back to the Cabinet for reconsideration once.

WHICH AMENDMENT HAD ORIGINALLY INCREASED THE LOK SABHA TERM TO SIX YEARS?

The 42nd Amendment Act (1976) had increased the term to six years; the 44th restored it to five.

WHAT IS ARTICLE 361A?

It provides immunity to the press for publishing true reports of Parliamentary and State Legislature proceedings.

WHO DECIDES DISPUTES RELATED TO THE ELECTION OF THE PRESIDENT?

The 44th Amendment restored this power to the Supreme Court of India, making its decision final.