Question

With reference to the 44th Constitutional Amendment Act, consider the following statements:

i. It restored the powers of the Supreme Court and High Courts that were curtailed by the 42nd Amendment.

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

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

iv. It mandated that a national emergency proclamation must be approved by Parliament within one month.

Which of the statements given above are correct?

• A. i, ii, and iv only
• B. i, iii, and iv only
• C. ii and iii only
• D. i and ii only

Answer 1

Answer:

A. i, ii, and iv only

The 44th Constitutional Amendment Act, 1978

• The 44th Amendment Act of 1978 was a landmark piece of legislation aimed at undoing many of the controversial changes introduced by the 42nd Amendment Act, 1976, often referred to as the 'Mini-Constitution'. It was enacted during the Janata Party government, which came to power after the Emergency.

Key Provisions and their Significance:

• Statement i: Restored Powers of Supreme Court and High Courts
  • The 42nd Amendment had significantly curtailed the writ jurisdiction of the High Courts and limited the power of judicial review.
  • The 44th Amendment reversed these changes, restoring the original powers of the High Courts and the Supreme Court to issue writs for the enforcement of Fundamental Rights.
  • It also restored the jurisdiction of the High Courts to hear writ petitions concerning the validity of any central law.
• Statement ii: Right to Property - Shifted Status
  • Before the 44th Amendment, the Right to Property was a Fundamental Right under Article 31.
  • The 44th Amendment Act removed the Right to Property from the chapter on Fundamental Rights (Part III of the Constitution).
  • It was subsequently re-enacted as a legal or constitutional right under Article 300A in Part XII of the Constitution, dealing with 'Property, Contracts, Suits and Proceedings'.
  • This meant that the right to property was no longer enforceable through the writ jurisdiction of the High Courts and Supreme Court under Articles 32 and 226, but could be challenged through ordinary legal procedures.
• Statement iii: Suspension of Fundamental Rights during National Emergency
  • The 44th Amendment made significant changes to the provisions related to the suspension of Fundamental Rights during a National Emergency (under Article 352).
  • It amended Article 358 to clarify that the suspension of Fundamental Rights under Article 19 during a national emergency would be permissible only when the emergency is proclaimed on the ground of war or external aggression, not on the ground of internal disturbance.
  • The original wording of Article 359 (which was amended by the 42nd Amendment and later restored in part by the 44th) also underwent changes to prevent the arbitrary suspension of rights.
  • Therefore, the statement that it allowed suspension of Fundamental Rights under Article 19 during a national emergency declared on any ground is incorrect.
• Statement iv: Approval of National Emergency Proclamation
  • The 44th Amendment Act introduced stricter provisions for the proclamation and continuation of a National Emergency.
  • It mandated that a proclamation of National Emergency must be approved by a special majority of both Houses of Parliament.
  • Crucially, it stipulated that the proclamation must be approved by a resolution passed by each House of Parliament within a period of one month from the date of the proclamation. Previously, this period was two months under the 42nd Amendment.
  • If approved, the emergency continues for six months, requiring subsequent parliamentary approval every six months for its continuation.

Exam Relevance:

• The 44th Amendment is a critical topic for competitive exams, especially focusing on the Fundamental Rights, the powers of the judiciary, and the emergency provisions.
• Understanding the contrast between the 42nd and 44th Amendments is essential for distinguishing specific provisions and their impact on India's constitutional framework.
• Pay attention to the specific grounds for emergency proclamation and the procedural requirements for parliamentary approval, as these are frequently tested.