Question

Which of the following statements are correct regarding the 44th Constitutional Amendment?

1. It restored the tenure of the Lok Sabha and State Legislative Assemblies to 5 years from 6 years.

2. It introduced the term "Cabinet" in Article 352, requiring the President to act on the Cabinet’s written recommendation for proclaiming an emergency.

3. It allowed the suspension of Articles 20 and 21 during a national emergency.

• A. 1 and 2
• B. 2 and 3
• C. 1 and 3
• D. All are correct

Answer 1

Answer:

A. 1 and 2

The 44th Constitutional Amendment Act, 1978

• The 44th Amendment Act was enacted in 1978 by the Janata Party government, led by Prime Minister Morarji Desai.
• It was primarily introduced to nullify or reverse many of the changes made by the controversial 42nd Constitutional Amendment Act, 1976 (also known as the 'Mini Constitution'), which was enacted during the Emergency period under Indira Gandhi's government.

Key Provisions and Significance:

• Restoration of Lok Sabha and State Legislative Assemblies Tenure:
  • The 42nd Amendment Act had extended the tenure of the Lok Sabha and State Legislative Assemblies from 5 years to 6 years.
  • The 44th Amendment Act reversed this change, restoring the original 5-year term for both the Lok Sabha and State Legislative Assemblies. This was a crucial step towards re-establishing democratic norms.
• Introduction of the term "Cabinet" for Emergency Proclamation:
  • Before the 44th Amendment, the President could proclaim a National Emergency (under Article 352) on the 'satisfaction' of the Prime Minister without any formal written advice.
  • The 44th Amendment Act introduced the word "Cabinet" in Article 352, stipulating that the President can declare a National Emergency only on the written recommendation of the Union Cabinet. This measure was aimed at preventing arbitrary declarations of emergency, such as the one in 1975.
  • It ensured that the decision to proclaim an emergency is a collective one, not a unilateral decision by the Prime Minister.
• Safeguards Regarding Fundamental Rights during Emergency:
  • One of the most significant changes was related to the suspension of Fundamental Rights during a National Emergency.
  • The 44th Amendment Act made a critical change by stating that Articles 20 (Protection in respect of conviction for offences) and 21 (Protection of life and personal liberty) cannot be suspended even during a National Emergency.
  • This provision was a direct response to the misuse of emergency powers during the 1975-77 Emergency, when these fundamental rights were suspended, leading to widespread human rights violations.
• Abolition of Right to Property as a Fundamental Right:
  • The 44th Amendment Act also removed the Right to Property (Article 31 and 19(1)(f)) from the list of Fundamental Rights.
  • It was made a legal right (constitutional right) under Article 300A in Part XII of the Constitution. This change was primarily to overcome hurdles in land reforms and other socio-economic legislation.
• Other Important Changes:
  • It provided that the fundamental right to liberty cannot be suspended merely by an executive order but requires legislative action.
  • It restored the powers of the Supreme Court and High Courts which were curtailed by the 42nd Amendment.
  • It required the imposition of emergency to be approved by a resolution of both Houses of Parliament within one month (earlier two months).
  • It mandated that a proclamation of emergency would cease to operate if not approved by a resolution of both Houses of Parliament within one month. Also, it required a special majority (not simple majority) for such a resolution.
  • It also provided that a resolution disapproving the continuance of emergency could be passed by a simple majority of the Lok Sabha and required at least 1/10th members of Lok Sabha to give a written notice for holding a special sitting.