The 44th Constitutional Amendment 1978 was an attempt to rebalance the Constitution after the Emergency, but several of its safeguards remain unenforced. Examine.
Subtopic: Polity · Constitutional Amendments
How to structure your answer
Introduction: The 44th Amendment was passed in April 1979 by the Janata government to undo the most far-reaching provisions of the 42nd Amendment 1976, restoring the constitutional balance disturbed during the 1975-77 Emergency.
Body: Three dimensions — (i) safeguards enacted — Article 352 now requires 'armed rebellion' instead of 'internal disturbance', Article 358 suspends Article 19 only during external emergency, Article 359 cannot suspend Articles 20 and 21, written Cabinet advice is required for proclamation, and Article 74 mandates the President send back advice once; (ii) restoration of right to property — Article 31 omitted, Article 300A inserted, ending fundamental-right status; (iii) unenforced provisions — Section 3 on press freedom for parliamentary proceedings and Article 22(7) safeguards on preventive detention have not been notified, as flagged by Soli Sorabjee and successive Law Commission reports.
Way forward / Conclusion: Notify the pending Sections, codify a parliamentary review of every Emergency proclamation, and read Article 21 expansively into Article 22 to complete the 44th Amendment's promise.
Written within the word limit
214 words · target 250 words · 14 min
Introduction:
The 44th Constitutional Amendment Act 1978 was passed by the Janata government to undo the most far-reaching provisions of the 42nd Amendment 1976 and rebalance the Constitution after the 1975-77 Emergency, which ADM Jabalpur v. Shivkant Shukla (1976), since overruled in Puttaswamy (2017), had enabled.
Safeguards enacted: Article 352 now requires 'armed rebellion' instead of 'internal disturbance'; Article 358 suspends Article 19 only during external emergency; Article 359 cannot suspend Articles 20 and 21 even during Emergency; written Cabinet advice is mandatory for an Emergency proclamation; and Article 74(1) permits the President to return advice once for reconsideration.
Right to property restored on a new footing: Article 31 was omitted and Article 300A inserted, ending the fundamental-right status of property — a change Minerva Mills v. Union of India (1980) read alongside basic-structure protection of Articles 14 and 19, while Indira Nehru Gandhi v. Raj Narain (1975) flagged the dangers the 44th Amendment sought to neutralise.
Unenforced provisions: Section 3 on press freedom for parliamentary proceedings and Article 22(7) safeguards on preventive detention remain unnotified, as Soli Sorabjee and successive Law Commission Reports have flagged; the Shah Commission Report (1978) on Emergency excesses has likewise not produced statutory follow-through.
Way forward / Conclusion:
Notify the pending Sections, codify mandatory parliamentary review of every Emergency proclamation under Article 352, and read Article 21 expansively into Article 22 to complete the 44th Amendment's promise of a rebalanced constitutional order.
What an examiner expects to see
- 44th Constitutional Amendment Act 1978 (effective from 1979–80)
- Article 352 — 'armed rebellion' replaced 'internal disturbance'
- Article 359 — Articles 20 and 21 cannot be suspended even during Emergency
- Article 74(1) — President may return Cabinet advice once for reconsideration
- Article 300A — right to property as a constitutional, not fundamental, right
- Article 358 — Article 19 suspended only during external emergency
- Section 3 of the 44th Amendment on press freedom for Parliament reporting — never notified
Concrete cases, schemes and judgments
- ADM Jabalpur v. Shivkant Shukla (1976) — overruled in Puttaswamy (2017)
- Minerva Mills v. Union of India (1980)
- Indira Nehru Gandhi v. Raj Narain (1975)
- Shah Commission Report on Emergency Excesses (1978)
- Soli Sorabjee on unnotified Section 3 of 44th Amendment