44 years of the 44th Amendment

The Parliament of India

15 May holds a very special place in the annals of India’s Constitutional History. Just like December 1946 when the Constituent Assembly met to decide the fate of the Indian Constitution, on 15 May 1978, the Parliament saw the introduction of India’s Mini-Constitution i.e., the Constitution (Forty-Fourth Amendment) Act, 1978. This Amendment is called a ‘Mini-Constitution’ (albeit informally) because of the significance it holds and the much needed changes it brought to the Constitution. 

The Amendment was introduced post the dark period of Emergency by a new democratically elected government that wanted to heal the Constitution from the attacks on it during the Emergency. It aimed at removing the draconian provisions inserted during the Emergency and also protect India from such happenings in future by providing necessary safeguards. In this post I discuss the Amendment and the impactful changes it made, and the ones it failed to. 

The 21 month period from the year 1975 to 1977, is arguably the darkest period in independent India’s history. The Indira Gandhi government at the time declared a state of Emergency which saw blatant violation and suspension of fundamental rights. Finally, in 1977 the Emergency was revoked and national elections were called. Mrs. Gandhi’s party suffered a crushing defeat and the primary opposition Janta Party formed the government. One of the key tasks of the government was to repeal the draconian laws passed during the Emergency and also put in place safeguards that would prevent abuse of power by a government again. In September 1977, the Janta Party constituted a committee to discuss the changes that needed to be made. This Committee consisted of Home Minister Charan Singh, Law Minister Shanti Bhushan, I&B Minister L.K. Advani and Education Minister P. Chunder. Result inter alia was the the Constitution (Forty-Third Amendment) Act, 1977 and Constitution (Forty-Fourth Amendment) Act, 1978 (‘44th Amendment’)

The Proclamation of Emergency issued on 25 June 1975 by President Ahmed.

The Statement of Objects and Reasons of the 44th Amendment read that the intention behind it was to safeguard fundamental rights from being taken away by transient majorities and also correct the distortions to the Constitution, made during the Emergency.

It read, “Recents experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.

***

The other amendments proposed in the Bill are mainly for removing or correcting the distortions which came into the Constitution by reason of amendments enacted during the period of the Internal Emergency.”

The Amendment inter alia made the following key changes. 

a. Safeguards against Invocation of Emergency:

Prior to the Amendment, under Article 352 Proclamation of Emergency could be issued by the President if s/he was satisfied that there existed a grave threat to the security of India by war, external aggression or internal disturbance. The satisfaction of the President here means the satisfaction of the Council of Ministers. Mrs. Gandhi had advised President  Fakkrudin Ali Ahmed for the proclamation on the ground of ‘internal disturbance’. It is believed that opposition leader Morarji Desai had publicly stated that ‘we intend to overthrow her, to force her to resign (Indira Gandhi). For good, the lady won’t survive our movement… thousands of us will surround her house to prevent her from going out… we shall camp there night and day.’ His remarks were in response to her election being declared void by the Allahabad High Court and the protests in result. Mrs. Gandhi used these remarks to advise the President that there is grave threat to the security of the nation due to internal disturbance. 

The 44th Amendment made changes to Article 352 by substituting ‘internal disturbance’ with ‘armed rebellion’. It raised the threshold to invoke a proclamation to armed rebellion, which is a higher standard than a mere internal disturbance. The Amendment further added a stipulation that a proclamation cannot be issued unless the President receives the recommendation of the Union Cabinet/Council of Ministers to that effect in writing. It also empowered the President to require the Cabinet to reconsider its advice once, if s/he feels so. However, the President was bound by the advice if re-submitted. This change was probably made to prevent the President from being a mere rubber-stamp and have some independent authority to advice the Cabinet. 

The infamous cartoon on President Ahmed showing the President as a mere rubber stamp on the decision of Mrs. Gandhi’s Cabinet.

The Amendment also added that any proclamation issued under the Article would have to be laid before the Houses of Parliament within one month of its Th, otherwise it would cease to operate. Each house of the Parliament must pass a resolution approving the proclamation with a majority of the total membership of the house and by a majority of 2/3 members present and voting. Such a resolution would give a life of six months to the proclamation, after which the Parliament would have to approve a continuation following the same procedure. The Amendment also allowed 1/10 members of the house to introduce a motion disapproving the continuation of the Proclamation or seeking its variation. This motion must be considered by the House within 14 days of it being received by the Speaker. 

The Amendment also made changes to Article 356 that deals with breakdown of a constitutional machinery in states. The Article inter alia allows the President (in effect the Council of Ministers) to issue a proclamation and assume the powers or functions of a state government if there is a failure of constitutional machinery in a state. The Amendment added that such a proclamation can only be issued for a period of 6 months and cannot exceed one year. This period can be extended beyond one year only when the President’s Rule is necessary on account of difficulties in holding elections in the state. Such circumstances need to be mandatorily certified by the Election Commission and have the upper limit of three years. Through these changes, the Amendment ensured that democratic rule is restored in the state as soon as possible. 

b. Undoing the perils of ADM Jabalpur v. Shivkant Shukla-

During the Emergency, the government using Article 359 issued a proclamation suspending the enforcement of fundamental rights during the Emergency. As a result, detainees (which included opposition leaders and dissenters) were left remediless against their detention, since the right to life was suspended during the Emergency in light of the proclamation. In ADM Jabalpur’s case, this proclamation was upheld as constitutionally valid by the Supreme Court. This is the famous case where Justice Khanna (the dissenting Judge) asked Attorney General Niren De “In view of his submissions would there be any remedy if a police officer because of his personal enmity killed another man?” To which De responded, “consistently with my argument, there would be no judicial remedy in such a case so long as Emergency exists” . He further said, “It may shock your conscience, it may shock my conscience but consistently with my submissions, no proceedings can be taken in a Court of law that score“. It is believed that De went on to argue that during an Emergency even if a person was to be killed by the security forces in the presence of the Judges, they would remain helpless.

The 44th Amendment curbed the misuse of Emergency provisions and provided that the power to suspend the right to move the courts for enforcement of the fundamental rights does not cover the right to life. Therefore, the right to approach courts for a violation of the right to life cannot be suspended even during the operation of an Emergency. 

The Amendment also made changes to Article 22 i.e. Protection against arrest and detention and provided that no law could advise detention of a person for more than two months, unless advised by a duly constituted Advisory board. 

c. Judicial oversight in matters concerning the Presidential & Vice Presidential elections:

Prior to the Amendment, Article 71 of the Constitution stipulated that all disputes concerning the election of a President or Vice President shall be adjudicated by the Supreme Court. During the Emergency, the government passed the Constitution (Thirty-Ninth Amendment) Act, 1975 which amended the Article and took away the powers of the Supreme Court to try electoral disputes and vested them in a separate body created by the Parliament. The Amendment was aimed at shielding the government from judicial scrutiny and prevent Mrs. Gandhi and her functionaries from any challenge. The 44th Amendment restored the original text and vested the Court with powers again. 

During the Emergency, the government had amended Article 77 as well. The Article provides that the President shall make rules for transactions of the government. The amended article provided that no Court or authority could call for/require production of rules made under the Article. This clause was another attempt to shield government action from scrutiny and was deleted by the 44th Amendment. 

Concluding Remarks:

Law Minister Bhushan recalled in an interview, that he called a conference of leaders of all political parties in both Houses to discuss the 44th Amendment and debate every provision. However, the Amendment was not passed in its entirety and certain provisions were dropped. This was mostly because the Janta Party had the majority in the Lok Sabha and not the Rajya Sabha. The opposition majority of Congress (I), other Congress Parties and CPI voted down five clauses of the Bill in the Rajya Sabha. Two of these clauses were crucial. 

First, the clause on referendums. The Amendment proposed that certain changes in the Constitution should only be made once they are approved by the people of India through a referendum in which 51% electorate participate. These changes were the ones that (a) impaired the secular and democratic character of the country; (b) abridged or took away fundamental rights; (c) prejudiced free and fair elections; and (d) compromised independence of the judiciary. This was an attempt to preserve certain basic features of the Indian Constitution which could only be altered by the people directly and not a representative Parliament. 

Second, the clause defining the phrases ‘Secular Republic’ and ‘Socialistic Republic’. The Amendment defined them as ‘Secular Republic’ means a republic in which there is equal respect for all religions and the phrase ‘Socialistic Republic’ means a republic in which there is freedom from all forms of exploitation – social, political and economic. Both these clauses were defeated in the Rajya Sabha. 

Let’s celebrate the 44th anniversary of the Constitution (Forty-Fourth Amendment) Act, 1978, as it was today that this Bill was introduced in the Parliament. 

Post Script:
In common practice, it is the 42nd Amendment to the Constitution that is called a ‘Mini-Constitution’. However, in my opinion since most of its provisions were repealed by the subsequent amendments, we should refer to those repealing amendments as the Mini-Constitution and not the 42nd Amendment.

Views are personal.

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