44th Amendment: Restoring constitutional safeguards and limiting emergency powers

The twin objectives of the Forty-Fourth Constitutional Amendment, as stated in the amendment bill’s Statement of Objects and Reasons, were to restore the Constitution to its condition before the emergency amendments and to add safeguards to restrict the executive’s emergency and analogous powers. Indeed, the amendment did its best to place strong safeguards in this regard.

In the Statement of Objects and Reasons of the amendment bill, it was stated that the proclamation of an emergency can be issued only when the security of India or any part of its territory is threatened by war, external aggression, or armed rebellion. Internal disturbance not amounting to armed rebellion would no longer be a ground for the issue of a proclamation.

To ensure that a proclamation is issued only after due consideration, it was made compulsory that an emergency can be proclaimed only based on written advice tendered to the President by the Cabinet. In addition, as a proclamation of emergency virtually has the effect of amending the Constitution, it was provided that the proclamation would have to be approved by the two houses of Parliament by the same majority required to amend the Constitution. Such approval would need to be given within one month.

Any proclamation would be in force only for a period of six months and can be continued only by further resolutions passed by the same majority. The proclamation would also cease to be in operation if a resolution disapproving the continuance of the proclamation is passed by the Lok Sabha. Ten percent or more of the Members of the Lok Sabha can requisition a special meeting to consider a resolution disapproving the proclamation.

Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. This means (a) a majority of the total membership of that house, and (b) a majority of not less than two-thirds of the members present and voting.

As a further check against the misuse of the emergency provisions and to secure the right to life and liberty, it was provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The right to liberty was further strengthened by the provision that a law for preventive detention cannot authorize detention for longer than two months, unless an Advisory Board has reported that there is sufficient cause for such detention. An additional safeguard was provided by requiring that the Chairman of an Advisory Board be a serving Judge of the appropriate High Court and that the Board be constituted according to the recommendations of the Chief Justice of that High Court.

A special provision was made guaranteeing the right of the media to report freely and without censorship on the proceedings in Parliament and the State Legislatures.

Thus, the Forty-fourth Amendment Act of 1978 added two important safeguards. First, it introduced the requirement of periodic parliamentary approval; earlier, once approved, an emergency could continue as long as the Executive (the Cabinet) wished. Second, it mandated that such approval must now be by a special majority, whereas previously a simple majority was sufficient.

Concerning fundamental rights, many important changes were made. The Forty-fourth Amendment Act of 1978 narrowed the scope of Article 358 in two ways. First, now the six Fundamental Rights under Article 19 can be suspended only if a National Emergency is declared on the grounds of war or external aggression, not armed rebellion. Second, only laws specifically related to the Emergency are protected from legal challenge, and only executive actions taken under such laws are shielded.

As analyzed by M. Laxmikanth in his book Indian Polity, the Forty-fourth Amendment Act of 1978 also restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection against conviction for offenses (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during an emergency.

In a nutshell, the Forty-fourth Amendment marked a decisive step toward strengthening constitutional safeguards provided to citizens against the arbitrariness of the state, along with safeguarding democracy. By curbing the sweeping powers under Article 352 and reinforcing protections for fundamental rights, it ensured that no future government could so easily trample civil liberties in the name of emergency.