44th Amendment of the Constitution of India- An Overview

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44th Amendment of the Constitution of India- An Overview

44th AMENDMENT OF THE CONSTITUTION – AN OVERVIEW.

INTRODUCTION-

The constitution of India set out the basic principles and guidelines , for efficient functioning of the country.

The Constitution of India was adopted by the Constituent Assembly on 26th November 1949 and it was brought into force on 26th November 1950. Till date there are 104 Amendments made. Every Amendment brought some changes in the constitution.

We will be taking about the 44th Amendment Act which, came into force on 1978.

The 44th Amendment was introduced to safeguard the interest the Nation and it made few changes to the provisions of the Indian Constitution.

It seeks to remove the distortions that the 42nd Amendment had brought about the constitution during the emergency.  Besides, the amendment has considerably modified the emergency provisions of the constitution so as to ensure that it is not abused by the Executive in Future.

Forty-Forth Amendment – 1978

The provisions of the 44th Amendment are as follows-

  1. Parliament , Executive , Legislature

The 44th Amendment has amended Article 83, 172, 371-F, and has restored the “Tenure” of Lok Sabha and State Legislative Assemblies , to 5 years, which was extended to 6 years in the 42nd amendment Act. Article . Article 113 was also amended and original article 100(3) and (4) and 189 (3) was restored. This restored the positions as regards the quorum in the Houses of Parliament and the State Legislature. The 42nd Amendment took away the powers to the court to decide whether an office is an “office of profit”, but the 44th Amendment restored this power to the Courts.

The 44th Amendment also added a new Article 361(A) which gives Constitutional Protection to Publication of Proceedings of Parliament and State Legislatures).

Article 71 “as Originally enacted” gave jurisdiction to the Supreme Court to decide

Election disputes of the President and the Vice-President . This provision was taken

By the 42nd amendment but the 44th Amendment restored this Article in its original Form

  1. Judiciary – The 42nd Amendment took away the jurisdiction of the High in Revenue matters. But the 44th amendment  restored the provision to article 225 and again gave Original Jurisdiction to the High Courts on revenue Matters.
  2. National Emergency– The 44th amendment had made number of changes in the Emergency Provisions.
  • In clause (1) the words “Internal Disturbance” was replaced by the word “Armed Rebellion”
  • Emergency Proclamation can only be issued on the basis of written advice tendered to the president by the Cabinet.
  • To declare National Emergency , a Majority of the total membership of each House, i.e. not less than 2/3 majority of members is required.
  • Change made in Article 356- In Clause (4) for the words ‘one year’ the word” six months” was substituted . This was extended to one year by the 42nd
  • Change were made in article 358 i.e. , Article 19 will get suspended in case of Proclamation of Emergency on the ground of war or external aggression .
  • Changes were made in Article 359 i.e., during emergency, article 20 and21 cannot be suspended at all.
  1. Preventive Detention– Article 22 was amended by the 44th amendment , which incorporated few safeguards against Preventive Detention, Firstly, it restricts the maximum period , for which a person may be detained , without obtaining the  Advisory Board from 3months to 2months. Secondly , the Advisory board must consist of a Chairman and not less than two other members . The Chairman of the Board shall be a sitting judge of the High Court and the other two members must be a sitting or retired judge of the High Court. Thirdly , No person shall be detained beyond the maximum period prescribed by any law made by the Parliament and Fourthly, Consultation with the advisory Board is necessary , in case of preventive detention beyond the period of two months .
  2. Property Rights– The 44th Amendment separated “Right to Property”,  from the Fundamental Rights , i.e. it took away the Right to Property from the category of Fundamental Right and made it a right which can be regulated by ordinary law. It repealed Article 19(1) (f) and Article 31 and inserted a new Article i.e. , Article 300A , under the heading , “Right to Property” , in Part XII of the Indian Constitution, which states that , “no person shall be deprived of his Property save by authority of Law”. The safeguards contained in the Article 31, relating to the acquisition of property of educational institution established and administered by a minority has now been incorporated in Article 30 by adding a new clause (1-A) after clause (1).
  3. Elections– The 44th amendment omitted Article 329- A , which was inserted by the 42nd Amendment . The 42nd amendment took away the powers of the Court to decide the election dispute of Prime Minister and the Speaker of the Lok Sabha.
  4. Relation between The Union and the States –  The 44th Amendment had repealed Article 257-A , which was inserted by the 42nd

CONCLUSION –

This was an overview of the  44th Amendment. The 44th Amendment  brought up many changes in the Indian constitution, and therefore it is considered to be one of the important amendment of the Indian Constitution , till date. It removed the distortions that were made by the 42nd Amendment during the emergency. To safeguard and save the people of India from grave injustice , the 44th Amendment was , brought into force.

According to my view, the 44th Amendment, at least gave some power to the President of India. This is because , in the 42nd amendment it was stated , that the President had to follow the advices of the Council of Ministers. The President did not had any absolute power but in the 44th Amendment , the president had at least the power of reconsideration for the Advice given by the council of Ministers. Thus the 44th Amendment was useful.

Author: Beas Sain,
IFIM Law School , 2nd Year - BBA LLB / Student

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