Question

Consider the following statements regarding the 44th Constitutional Amendment:

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

2. It removed the right to property from the list of Fundamental Rights and placed it under Part XII.

3. It allowed the suspension of Fundamental Rights under Article 19 during a national emergency declared on any ground.

Which of the statements given above is/are correct?

• A. 1 and 2 only
• B. 2 and 3 only
• C. 1 only
• D. 1, 2, and 3

Answer 1

Answer:

A. 1 and 2 only

44th Constitutional Amendment Act, 1978

• The 44th Constitutional Amendment Act was enacted in 1978 by the Janata Party Government, led by Morarji Desai, to undo many of the controversial changes introduced by the 42nd Constitutional Amendment Act of 1976 (the 'Mini Constitution') during the Emergency period.
• Its primary objective was to restore democratic safeguards and protect fundamental rights, which had been significantly curtailed during the Emergency.

Key Provisions and their Impact:

• Regarding Judicial Review of Ordinances:
  • The 44th Amendment restored the powers of the Supreme Court and High Courts to conduct judicial review of ordinances issued by the President or Governors.
  • This provision effectively reversed the change made by the 38th Constitutional Amendment Act, 1975, which had made the President's satisfaction in promulgating an ordinance final and beyond judicial review, thereby making it immune from judicial review.
• Regarding the Right to Property:
  • The 44th Amendment removed the Right to Property from the list of Fundamental Rights (specifically, Article 31 and Article 19(1)(f)) in Part III of the Constitution.
  • It was made a legal right (Constitutional right) and placed under Article 300A in Part XII of the Constitution. This change ensures that no person shall be deprived of his property save by authority of law.
• Regarding Suspension of Fundamental Rights during Emergency:
  • The 44th Amendment introduced significant safeguards concerning the suspension of fundamental rights during a National Emergency.
  • It stipulated that Article 19 (which guarantees six freedoms) can only be suspended when the National Emergency is declared on the grounds of war or external aggression. It cannot be suspended when the emergency is declared solely on the ground of armed rebellion.
  • Crucially, the 44th Amendment also explicitly provided that the rights guaranteed by Article 20 (Protection in respect of conviction for offences) and Article 21 (Protection of life and personal liberty) cannot be suspended under any circumstances during a National Emergency. This is a vital protection for individual liberty.
  • It also replaced the term 'internal disturbance' with 'armed rebellion' as a ground for declaring a National Emergency, making it harder to impose an emergency arbitrarily.
  • Furthermore, it made it mandatory for the President to declare a National Emergency only on the written recommendation of the Union Cabinet.
  • The proclamation of emergency must be approved by both Houses of Parliament by a special majority within one month (instead of two months, as was the case earlier) and continue for a maximum period of six months unless re-approved.
  • It also restored the term of the Lok Sabha and State Legislative Assemblies to 5 years (from 6 years, which was extended by the 42nd Amendment).