Question

Consider the following statements regarding the 44th Constitutional Amendment Act:

1. It restored the powers of the Supreme Court and High Courts to conduct judicial review of laws.

2. It removed the right to property as a Fundamental Right and placed it under Article 300A.

3. It abolished the provision for a joint sitting of Parliament for constitutional amendment bills.

Which of the statements given above is/are correct?

• A. 1 and 2 only
• B. 2 only
• C. 1 and 3 only
• D. All of the above

Answer 1

Answer:

A. 1 and 2 only

The 44th Constitutional Amendment Act, 1978

• This landmark amendment was enacted by the Janata Party government, led by Prime Minister Morarji Desai. Its primary objective was to undo many of the changes introduced by the 42nd Constitutional Amendment Act, 1976, which was passed during the Emergency period under Indira Gandhi and significantly altered the Constitution.
• The 42nd Amendment is often referred to as the 'Mini-Constitution' due to its extensive nature, which broadly aimed at strengthening the Executive's powers and curbing fundamental rights.

Key Provisions and Impacts of the 44th Constitutional Amendment Act:

• Restoration of Judicial Review:
  • The Act significantly restored the original jurisdiction and powers of the Supreme Court (under Article 32) and High Courts (under Article 226) concerning judicial review and writ jurisdiction.
  • The 42nd Amendment had curtailed the powers of judicial review, especially for High Courts, and also attempted to limit the Supreme Court's power in certain areas.
• Right to Property:
  • It was a pivotal change that removed the Right to Property from the list of Fundamental Rights (Part III of the Constitution).
  • Previously, the right to property was enshrined in Article 19(1)(f) (which granted the freedom to acquire, hold, and dispose of property) and Article 31 (dealing with compulsory acquisition of property).
  • The 44th Amendment repealed both these articles and reclassified it as a legal right (or constitutional right) under a new Article 300A, placed in Part XII of the Constitution.
  • This modification ensured that while the state could acquire private property for public purposes, it was still obligated to provide compensation. However, individuals could no longer directly approach the Supreme Court under Article 32 for the enforcement of this right, as it was no longer a Fundamental Right.
• Emergency Provisions:
  • The amendment introduced crucial safeguards to prevent the future misuse of emergency powers, directly addressing the abuses of the 1975 Emergency.
  • The ground for proclaiming a National Emergency was changed from 'internal disturbance' to 'armed rebellion', making it a more stringent condition.
  • It mandated that the President could proclaim a National Emergency only on the written recommendation of the Union Cabinet, ensuring collective responsibility and preventing unilateral decisions by the Prime Minister.
  • A significant restoration was the provision that the right to life and personal liberty (Article 20 and 21) cannot be suspended even during a National Emergency. This is a crucial safeguard for individual liberties.
  • It also stipulated that a proclamation of emergency must be approved by both Houses of Parliament within one month by a special majority.
• Parliamentary Proceedings:
  • The Act provided constitutional protection for media reporting of the proceedings of Parliament and State Legislatures.
• Presidential and Vice-Presidential Election Disputes:
  • It restored the power of the Supreme Court to adjudicate disputes related to the election of the President and Vice-President, a power that had been taken away by the 39th Amendment Act, 1975.

Important Clarification on Joint Sittings for Constitutional Amendment Bills:

• A joint sitting of Parliament (provided under Article 108 of the Constitution) is only applicable to ordinary bills when there is a deadlock between the Lok Sabha and Rajya Sabha.
• For Constitutional Amendment Bills (governed by Article 368), there is no provision for a joint sitting. These bills must be passed by a special majority (requiring a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting) in each House separately.
• Therefore, the 44th Amendment Act could not have abolished a provision for joint sitting for Constitutional Amendment Bills, as such a provision never existed in the first place for this category of bills.