44th Constitutional Amendment 1978 | Kerala PSC Graduate

The 44th Constitutional Amendment Act, 1978 is a landmark reform in Indian constitutional history that reversed several anti-democratic provisions introduced during the Emergency (1975–77). Enacted by the Janata Party government led by Morarji Desai (India’s 4th Prime Minister, 1977–79), the amendment restored fundamental rights, redefined the role of the President, and introduced safeguards against arbitrary executive actions. For Kerala PSC aspirants, this topic carries significant weight as it tests understanding of constitutional checks and balances, federalism, and judicial review. Questions often focus on the amendment’s impact on Article 352 (Emergency Provisions), Article 356 (President’s Rule), Article 359 (Suspension of Fundamental Rights), and the removal of Article 31 (Right to Property) from the category of Fundamental Rights. Mastery of this amendment is crucial for interpreting constitutional developments post-Emergency and their implications for governance in India.

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## Background and Context: The Emergency (1975–77) and Constitutional Erosion

The 44th Amendment was a direct response to the proclamation of the Emergency on 25 June 1975 by Indira Gandhi (Prime Minister 1966–77, 1980–84), which suspended fundamental rights and concentrated power in the executive. During the Emergency, the 38th, 39th, and 42nd Amendments were passed to shield the government from judicial review and extend the term of Parliament and state legislatures. Key erosions included:

• Suspension of Articles 20 and 21 (right to life and personal liberty) via Article 359, which allowed the government to detain individuals without judicial remedy.
• Removal of judicial review for constitutional amendments under Article 368, making amendments immune to judicial scrutiny (later partially restored by the 43rd Amendment, 1977).
• Extension of the term of Lok Sabha from 5 to 6 years via the 42nd Amendment, 1976, which was later reversed. The Janata Party, which came to power in March 1977, prioritised restoring democratic norms, leading to the 44th Amendment.

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## Key Provisions of the 44th Amendment Act, 1978

The 44th Amendment Act, 1978 (officially the Constitution (Forty-fourth Amendment) Act, 1978) introduced sweeping changes to reverse Emergency-era excesses. The amendment received Presidential assent on 20 April 1979 and came into force on 1 June 1979. Its major provisions are summarised below:

Article	Subject	Change Introduced
Article 352	Proclamation of Emergency	Added a proviso requiring the President to act on the written advice of the Cabinet (not a single minister). The Cabinet must approve the proclamation within 14 days of its issue.
Article 356	President’s Rule in States	Mandated that the President’s Rule proclamation must be approved by Parliament within 2 months (earlier, it was 6 months). Maximum duration reduced from 3 years to 1 year unless a national emergency is in operation.
Article 358	Suspension of Fundamental Rights during Emergency	Restricted suspension to Articles 19 (Fundamental Freedoms) only, excluding Articles 20 and 21 (right to life and personal liberty).
Article 359	Suspension of Fundamental Rights	Removed the power to suspend Articles 20 and 21 during an Emergency. Judicial review of Emergency orders was restored (earlier, courts could not review such orders).
Article 368	Amendment Procedure	Reintroduced judicial review over constitutional amendments by declaring that amendments cannot abridge or take away Fundamental Rights. This partially restored the basic structure doctrine established in Kesavananda Bharati v. State of Kerala (1973).
Article 31	Right to Property	Removed Article 31 from Part III (Fundamental Rights) and inserted it as Article 300A under Part XII (miscellaneous), making it a legal right (not fundamental). This was done to prevent excessive litigation over property disputes.
Article 71	Election of President	Extended the term of the President from 5 to 5 years, but limited re-election to a maximum of two terms.
Article 77	Conduct of Government Business	Mandated that all executive actions of the Government of India must be taken in the name of the President, ensuring accountability.

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## Restoration of Fundamental Rights and Judicial Safeguards

The 44th Amendment significantly strengthened judicial safeguards against executive overreach. Key changes included:

• Restoration of Articles 20 and 21: The amendment explicitly barred the suspension of Articles 20 (protection in respect of conviction for offences) and 21 (right to life and personal liberty) during an Emergency, ensuring that even during crises, individuals retained core protections.
• Judicial Review of Emergency Proclamations: The amendment allowed courts to review the validity of Emergency proclamations under Article 352, addressing the ADM Jabalpur v. Shivkant Shukla (1976) case, where the Supreme Court had ruled that habeas corpus petitions could not be filed during an Emergency.
• Reinstatement of the Basic Structure Doctrine: The 44th Amendment reaffirmed that Parliament cannot amend the Constitution to abridge or take away Fundamental Rights, reinforcing the Kesavananda Bharati (1973) judgment. This ensured that amendments like the 42nd Amendment (1976), which sought to curtail judicial review, could not override fundamental rights.
• Protection of Freedom of Speech and Expression (Article 19): The amendment ensured that Article 19 (freedom of speech, assembly, association, movement, etc.) could not be suspended arbitrarily, though it could be restricted during an Emergency.

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## Changes to Emergency Provisions and Federalism

The 44th Amendment introduced critical checks on the Centre’s power to impose Emergency in states and impose President’s Rule:

• Cabinet Approval for Emergency Proclamation: The amendment mandated that the President could proclaim an Emergency only on the written advice of the Union Cabinet, not a single minister. This prevented misuse by a single individual, as happened during the Emergency.
• Parliamentary Approval for President’s Rule: The proclamation of President’s Rule under Article 356 now required Parliament’s approval within 2 months, and the maximum duration was reduced to 1 year (unless a national Emergency was in operation). This addressed the frequent misuse of Article 356 during the Emergency era.
• Judicial Scrutiny of President’s Rule: The amendment allowed courts to examine the validity of President’s Rule proclamations, addressing the S.R. Bommai v. Union of India (1994) case, where the Supreme Court ruled that President’s Rule could not be imposed arbitrarily.
• Limits on Financial Emergency (Article 360): The amendment tightened the conditions for imposing a Financial Emergency, requiring the President to act on the Cabinet’s written advice and ensuring that such proclamations were subject to judicial review.

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## Removal of Right to Property as a Fundamental Right

One of the most significant changes introduced by the 44th Amendment was the removal of the Right to Property from Part III (Fundamental Rights):

• Article 31 (Right to Property) was deleted from Part III and inserted as Article 300A under Part XII (miscellaneous), making it a legal right (not fundamental).
• The amendment replaced the compensation-based acquisition (as per Article 31(2)) with a “just compensation” clause, ensuring that property owners could seek redress in civil courts rather than the Supreme Court.
• This change was aimed at reducing litigation over land acquisition disputes, which had clogged the judiciary. However, it also led to increased disputes over compensation, as seen in later cases like Indore Development Authority v. Manohar Lal (2020).
• The 44th Amendment also inserted Article 300A, which states: “No person shall be deprived of his property save by authority of law.”

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## Impact on the President’s Role and Constitutional Amendments

The 44th Amendment redefined the President’s role from a rubber-stamp authority to a constitutional head with independent powers:

• Cabinet Advice Mandatory: The amendment made it mandatory for the President to act on the advice of the Council of Ministers, reversing the 42nd Amendment (1976), which had made the President’s decision final and binding.
• Term and Re-election Limits: The term of the President was extended to 5 years, but re-election was limited to a maximum of two terms, addressing concerns about prolonged tenure.
• Judicial Review of Amendments: The amendment reintroduced judicial review over constitutional amendments, ensuring that Parliament could not amend the Constitution to abridge or take away Fundamental Rights. This was a direct response to the 42nd Amendment (1976), which had sought to immunise amendments from judicial scrutiny.
• Restoration of Parliamentary Sovereignty: The amendment reaffirmed that Parliament’s power to amend the Constitution was not absolute, reinforcing the basic structure doctrine established in Kesavananda Bharati (1973).

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## Comparison with the 42nd Amendment (1976) and Subsequent Amendments

The 44th Amendment was a direct counter to the 42nd Amendment (1976), which had concentrated power in the executive and weakened judicial review. A comparative analysis is essential for understanding the constitutional evolution:

Aspect	42nd Amendment (1976)	44th Amendment (1978)
Judicial Review	Removed judicial review of constitutional amendments (Article 368).	Restored judicial review over amendments that abridge Fundamental Rights.
Fundamental Rights	Suspended Articles 20 and 21 during Emergency.	Reinstated Articles 20 and 21 as non-suspendable rights.
President’s Role	Made the President’s decision final (no Cabinet advice required).	Mandated Cabinet advice for all executive actions.
Emergency Provisions	Extended term of Lok Sabha to 6 years.	Reverted term to 5 years and introduced Cabinet approval for Emergency proclamations.
Right to Property	Retained Article 31 as a Fundamental Right.	Removed Article 31 from Part III and inserted it as Article 300A.
Basic Structure Doctrine	Sought to override the basic structure doctrine.	Reaffirmed the basic structure doctrine by allowing judicial review.

Subsequent amendments, such as the 43rd Amendment (1977) and 45th Amendment (1980), further refined these changes, but the 44th Amendment remains the cornerstone of post-Emergency constitutional reforms.

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## Quick Recap for PSC

• The 44th Constitutional Amendment Act, 1978 was enacted by the Morarji Desai government to reverse Emergency-era excesses.
• It restored Articles 20 and 21 as non-suspendable rights during an Emergency.
• The amendment mandated Cabinet approval for Emergency proclamations under Article 352.
• Parliamentary approval within 2 months was made mandatory for President’s Rule under Article 356.
• Article 31 (Right to Property) was removed from Part III and inserted as Article 300A under Part XII.
• The term of the President was extended to 5 years, but re-election was limited to two terms.
• The amendment reintroduced judicial review over constitutional amendments that abridge Fundamental Rights.
• It overturned the 42nd Amendment (1976), which had removed judicial review and concentrated power in the executive.
• The 44th Amendment came into force on 1 June 1979 after receiving Presidential assent on 20 April 1979.
• Key Supreme Court judgments like Kesavananda Bharati (1973) and S.R. Bommai (1994) were reinforced by this amendment.