44th Constitutional Amendment Act, 1978: Changes to Emergency Provisions

Introduction

The 44th Constitutional Amendment Act, 1978 introduced important safeguards to prevent the misuse of emergency powers under the Indian Constitution. It was enacted in response to the Emergency of 1975–1977, during which civil liberties were severely restricted and press censorship was imposed. The amendment strengthened parliamentary control, protected certain fundamental rights and made it more difficult for the executive to declare a National Emergency without proper justification.

Meaning and Background of the 44th Amendment

The 44th Constitutional Amendment Act, 1978 was enacted to restore democratic safeguards and correct several changes made by the 42nd Constitutional Amendment Act, 1976.

During the National Emergency proclaimed in June 1975, the government exercised extensive powers. Fundamental rights were restricted, many people were detained under preventive detention laws, and press censorship was imposed. These events raised serious concerns about the misuse of emergency provisions for political purposes.

The amendment sought to ensure that emergency powers would be used only in exceptional circumstances and under stronger constitutional safeguards.

Its major objectives were to:

• Make the declaration of a National Emergency more difficult.
• Strengthen parliamentary supervision over emergency proclamations.
• Protect the rights to life and personal liberty.
• Restore the normal five-year term of the Lok Sabha and State Legislative Assemblies.
• Remove constitutional protection that attempted to prevent judicial review of the President's satisfaction in declaring a National Emergency.
• Reduce the possibility of arbitrary use of President's Rule in States.

Major Changes Introduced by the 44th Amendment

Replacement of Internal Disturbance with Armed Rebellion

Before the amendment, Article 352 allowed a National Emergency to be declared on the ground of internal disturbance. This expression was broad and could be interpreted in different ways.

The 44th Amendment replaced internal disturbance with armed rebellion.

Under the present Article 352, a National Emergency may be declared when the security of India or any part of its territory is threatened by:

• War.
• External aggression.
• Armed rebellion.

This change narrowed the grounds for declaring an emergency and reduced the possibility of using ordinary political unrest or public disorder as a justification.

Written Advice of the Union Cabinet

The amendment introduced a requirement under Article 352(3) that the President may issue a National Emergency proclamation only after receiving the written advice of the Union Cabinet.

The Union Cabinet means the Prime Minister and other ministers of Cabinet rank.

This safeguard prevents a National Emergency from being declared solely on the advice of the Prime Minister or another individual minister without a formal Cabinet decision.

Parliamentary Approval Within One Month

Before the amendment, a National Emergency could remain in force for a longer initial period without parliamentary approval.

The 44th Amendment reduced the period for parliamentary approval to one month from the date of the proclamation.

Both Houses of Parliament must approve the proclamation by a special majority. This requires:

• A majority of the total membership of each House; and
• At least two-thirds of the members present and voting in each House.

If either House fails to approve the proclamation within the prescribed period, it ceases to operate.

Renewal of Emergency Every Six Months

The amendment required parliamentary approval for every further six-month period of a National Emergency.

Both Houses must pass fresh resolutions using the same special majority required for the initial approval.

This provision ensures that the continuation of an emergency is periodically examined by Parliament rather than left entirely to the executive.

Revocation of a National Emergency

The 44th Amendment strengthened the procedure for revoking a National Emergency.

The President may revoke the proclamation at any time. In addition, if the Lok Sabha passes a resolution disapproving the proclamation or its continuation, the President must revoke it.

A special sitting of the Lok Sabha must be considered under the constitutional procedure when at least one-tenth of its total members give written notice of their intention to move a resolution disapproving the proclamation or its continuation.

Such a sitting must be held within 14 days of receiving the notice.

The resolution disapproving the proclamation is passed by a simple majority of members present and voting.

These safeguards allow elected representatives to challenge the continuation of emergency powers.

Protection of Fundamental Rights Under Article 358

Article 358 deals with the effect of a National Emergency on the freedoms guaranteed by Article 19.

Before the 44th Amendment, Article 19 freedoms could be affected during a National Emergency without the present distinction between the grounds for the emergency.

The amendment restricted this effect. Article 19 is automatically affected under Article 358 only when the National Emergency is declared on the grounds of war or external aggression, not armed rebellion.

Article 358 also protects laws and executive action only within the constitutional conditions specified in that Article. A law relying on Article 358 must contain a recital stating that it relates to the proclamation of emergency. After the emergency ends, the special protection does not continue for future use of that law, although actions already taken are treated according to the constitutional provisions.

This change reduced the scope for restricting Article 19 freedoms during an emergency declared on the ground of armed rebellion.

Protection of Articles 20 and 21 Under Article 359

Article 359 allows the President to suspend the right to approach courts for enforcement of specified fundamental rights during a National Emergency.

The 44th Amendment provided that the President cannot suspend the right to move courts for enforcement of:

• Article 20: Protection in respect of conviction for offences.
• Article 21: Protection of life and personal liberty.

These protections are especially important because they safeguard individuals against certain forms of unlawful punishment and deprivation of life or personal liberty.

Even during a National Emergency, the constitutional protection against suspension of court enforcement of Articles 20 and 21 remains in force.

Restoration of the Five-Year Term of the Lok Sabha and State Assemblies

The 42nd Constitutional Amendment had extended the normal term of the Lok Sabha and State Legislative Assemblies from five years to six years.

The 44th Amendment restored the normal term to five years.

This change strengthened democratic accountability by ensuring that elected representatives return to the electorate at regular intervals, subject to the constitutional provisions governing elections and any permitted extension during a National Emergency.

Removal of Protection Against Judicial Review of National Emergency

The 38th Constitutional Amendment Act, 1975 had inserted Article 352(5), which attempted to make the President's satisfaction in declaring a National Emergency final and conclusive, preventing it from being challenged in court.

The 44th Amendment removed this provision.

As a result, a proclamation of National Emergency is subject to judicial review. Courts can examine whether constitutional requirements have been followed and whether the power has been exercised in bad faith or on wholly irrelevant grounds.

However, judicial review does not mean that courts can freely replace the President's constitutional assessment with their own view of whether an emergency was necessary. The review remains subject to constitutional principles and the limits established by judicial decisions.

Changes Relating to President's Rule Under Article 356

Article 356 permits the President to impose President's Rule when the government of a State cannot be carried on in accordance with the Constitution.

The 44th Amendment did not introduce all the safeguards associated with Article 356. However, the broader constitutional changes and the removal of restrictions on judicial review strengthened the ability of courts to examine the use of emergency powers.

A proclamation under Article 356 must be approved by both Houses of Parliament within two months. It can continue for six months at a time, subject to parliamentary approval and additional conditions for continuation beyond one year. Its total duration cannot exceed three years.

Judicial Review of President's Rule

A proclamation under Article 356 is subject to judicial review because the President's power depends on the existence of a constitutional condition: the inability to govern the State in accordance with the Constitution.

Courts may examine whether the proclamation is supported by relevant material and whether it was issued for a constitutionally valid purpose. A proclamation based on bad faith or wholly irrelevant grounds may be invalidated.

The Supreme Court's decision in S. R. Bommai v. Union of India (1994) established important safeguards against the misuse of Article 356.

The Court held that:

• A proclamation under Article 356 is subject to judicial review.
• The majority of a State Government should ordinarily be tested on the floor of the Legislative Assembly when its support is in doubt.
• If a proclamation is found unconstitutional, the court may grant suitable relief, including restoring the government or Assembly where appropriate.

The judgment strengthened federalism and restricted arbitrary dismissal of State Governments.

Important Case Laws on Emergency Provisions

Bhut Nath v. State of West Bengal (1974)

The case arose in the context of emergency powers and constitutional restrictions. The older judicial approach to the President's satisfaction reflected the limited willingness of courts at the time to interfere in matters considered political.

However, the legal position subsequently changed through constitutional amendments and later Supreme Court decisions. The President's satisfaction in declaring a National Emergency is not beyond judicial review under the present Constitution.

State of Rajasthan v. Union of India (1977)

The case concerned the proposed use of Article 356 against certain State Governments.

The Supreme Court considered the scope of judicial review over the exercise of emergency powers. The Court declined to interfere with the action challenged in that case, while recognising that the exercise of constitutional power could not be treated as wholly beyond legal scrutiny in every situation.

The judgment is important for understanding the early judicial approach to Article 356. The later decision in S. R. Bommai v. Union of India provided a clearer and stronger framework for reviewing President's Rule.

Minerva Mills Ltd. v. Union of India (1980)

The case examined important constitutional changes made during the Emergency period and the limits of Parliament's amending power.

The Supreme Court reaffirmed that judicial review is an essential feature of the Constitution's basic structure. The judgment supports the principle that constitutional powers cannot be placed entirely beyond judicial scrutiny.

In relation to emergency powers, the courts may examine whether the constitutional requirements have been followed and whether the power was exercised in bad faith or on irrelevant grounds, while respecting the limits of judicial review.

S. R. Bommai v. Union of India (1994)

The Supreme Court held that a proclamation under Article 356 is subject to judicial review and that the President's power must be exercised within constitutional limits.

The Court emphasised that a State Government's majority should ordinarily be tested on the floor of the Legislative Assembly when it is disputed. The decision is a leading authority on federalism and safeguards against misuse of President's Rule.

Difference Between the Position Before and After the 44th Amendment

Practical Example

Suppose the government faces large protests and widespread political opposition in several States. Under the earlier expression internal disturbance, there was greater scope to argue that such circumstances could justify a National Emergency.

After the 44th Amendment, ordinary protests or political opposition cannot by themselves justify a National Emergency. The constitutional ground must be war, external aggression or armed rebellion threatening the security of India or a part of its territory.

Even when a National Emergency is declared, the Union Cabinet must provide written advice, both Houses of Parliament must approve the proclamation within one month, and further approval is required every six months.

If the emergency is declared on the ground of armed rebellion, Article 19 freedoms are not automatically affected under Article 358. The right to approach courts for enforcement of Articles 20 and 21 also cannot be suspended under Article 359.

This example illustrates how the 44th Amendment introduced safeguards to prevent emergency powers from being used merely to address political opposition.

Summary

• The 44th Constitutional Amendment Act, 1978 was enacted in response to the misuse of emergency powers during the 1975–1977 Emergency.
• It replaced internal disturbance with armed rebellion as a ground for declaring a National Emergency.
• A National Emergency now requires the written advice of the Union Cabinet.
• Both Houses of Parliament must approve a National Emergency within one month using a special majority.
• Parliamentary approval must be renewed every six months.
• The amendment strengthened the procedure for revoking a National Emergency and enabled the Lok Sabha to disapprove its continuation.
• Article 19 freedoms are affected under Article 358 only during an emergency declared on the grounds of war or external aggression.
• Article 359 cannot suspend the right to approach courts for enforcement of Articles 20 and 21.
• The amendment restored the normal five-year term of the Lok Sabha and State Legislative Assemblies.
• It removed Article 352(5), which had attempted to exclude judicial review of the President's satisfaction in declaring a National Emergency.
• Minerva Mills Ltd. v. Union of India (1980) and S. R. Bommai v. Union of India (1994) are important judgments on constitutional limits and judicial review.
• The amendment strengthened democratic accountability, fundamental rights and safeguards against the misuse of emergency powers.