What impact did the 44th Amendment have in reversing 42nd Amendment changes?
Of course. This is a crucial topic for understanding the evolution of the Indian Constitution. Let's break down how the 44th Amendment acted as a corrective measure to the 42nd Amendment.
Opening
The 42nd Constitutional Amendment Act, 1976, enacted during the internal Emergency (1975-1977) by the Indira Gandhi-led government, fundamentally altered the constitutional framework. It sought to establish parliamentary supremacy, curtail judicial review, and centralise power. Often dubbed the "mini-constitution," its provisions were seen as a significant departure from the basic structure of the Constitution.
Following the 1977 general elections, the Janata Party government came to power with a mandate to "restore the Constitution to the condition it was in before the Emergency." This led to the enactment of the 44th Constitutional Amendment Act, 1978, which aimed to reverse many of the distortions introduced by the 42nd Amendment and build safeguards against future authoritarianism.
Comparison Table: 42nd Amendment vs. 44th Amendment
| Area of Impact | 42nd Amendment Act, 1976 (Indira Gandhi Govt.) | 44th Amendment Act, 1978 (Janata Party Govt.) |
|---|---|---|
| National Emergency (Art. 352) | Allowed proclamation on grounds of "internal disturbance." | Replaced the term "internal disturbance" with "armed rebellion." |
| President's Role in Emergency | Made the proclamation of Emergency non-justiciable (immune from court review). | Made the proclamation of Emergency subject to judicial review to check for mala fides. |
| Cabinet's Advice (Art. 74) | Made the advice of the Council of Ministers binding on the President. | Retained the binding nature but added a proviso allowing the President to return the advice once for reconsideration. |
| Fundamental Rights (Art. 19) | Allowed for the suspension of rights under Article 19 during any National Emergency. | Restricted the suspension of Article 19 to emergencies declared on grounds of "war" or "external aggression" only, not "armed rebellion." |
| Suspension of Rights (Art. 359) | Authorised the suspension of the enforcement of any Fundamental Right during an Emergency. | Prohibited the suspension of the right to move the court for the enforcement of Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) during an Emergency. |
| Parliamentary Privileges | Amended Article 105 to give Parliament the power to define its privileges from time to time. | Restored the pre-42nd Amendment position, where privileges are based on those of the British House of Commons as of 26th January 1950, until defined by Parliament. |
| Lok Sabha & State Assembly Term | Extended the term of the Lok Sabha and State Legislative Assemblies from 5 years to 6 years. | Restored the original term of 5 years for both the Lok Sabha and State Legislative Assemblies. |
| Fundamental Rights & DPSP | Gave primacy to all Directive Principles of State Policy (DPSP) over Fundamental Rights under Articles 14, 19, and 31 (Article 31C). | Restored the pre-42nd position where only specific DPSPs (Article 39(b) and 39(c)) had primacy. However, the Supreme Court in Minerva Mills Ltd. v. Union of India (1980) struck down the 42nd Amendment's extension of Article 31C, upholding the 44th Amendment's intent. |
| Right to Property | No change, but it set the stage by weakening its protection. | Removed the Right to Property from the list of Fundamental Rights (deleted Article 19(1)(f) and Article 31) and made it a legal/constitutional right under a new Article 300A in Part XII. |
Key Differences Explained
The 44th Amendment's primary objective was to dismantle the authoritarian architecture erected by the 42nd Amendment.
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Safeguards in National Emergency: The most significant changes were related to the Emergency provisions. The 42nd Amendment made it easy to impose and sustain an Emergency on the vague ground of "internal disturbance." The 44th Amendment made this significantly harder by:
- Requiring an "armed rebellion," a much higher and more objective standard.
- Mandating that the President can only proclaim an Emergency on the written advice of the Union Cabinet, not just the Prime Minister (a direct response to the 1975 Emergency).
- Requiring periodic parliamentary approval (every six months) for continuing the Emergency.
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Restoration of Individual Liberties: The 44th Amendment created a bulwark for personal liberty. By making Articles 20 and 21 non-suspendable even during an Emergency, it ensured that the core of civil liberties—the right to life and protection from arbitrary conviction—remains sacrosanct. This was a direct lesson from the Supreme Court's ruling in ADM Jabalpur v. Shivkant Shukla (1976), where the court had upheld the suspension of Habeas Corpus during the Emergency.
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Rebalancing Executive and Presidential Power: While the 42nd Amendment made the President a rubber stamp by making all cabinet advice binding, the 44th Amendment restored a degree of dignity and constitutional responsibility to the office. By allowing the President to return advice for reconsideration once, it created a crucial check, forcing the government to re-evaluate its decisions if the Head of State has reservations.
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Judicial Review and Basic Structure: While the 44th Amendment did not explicitly restore all powers of judicial review curtailed by the 42nd Amendment (e.g., the power to examine the constitutional validity of Central laws was curtailed by the new Article 323A and 323B on tribunals), it laid the groundwork. The Supreme Court, in the landmark case of Minerva Mills Ltd. v. Union of India (1980), invalidated the parts of the 42nd Amendment that gave DPSPs absolute primacy over Fundamental Rights and which removed all judicial review of constitutional amendments, cementing the "basic structure" doctrine. The 44th Amendment's spirit was thus judicially vindicated.
UPSC Angle
For the UPSC Civil Services Examination, examiners are not just looking for a list of changes. They expect a nuanced understanding of the constitutional philosophy behind these amendments.
- Thematic Understanding: Frame your answer around themes: Federalism, Separation of Powers, Fundamental Rights, and Checks and Balances. Show how the 42nd Amendment weakened these pillars and how the 44th sought to restore them.
- Continuity and Change: Acknowledge that the 44th Amendment did not reverse everything. For instance, the addition of Fundamental Duties (Article 51A) and the words "Socialist" and "Secular" in the Preamble by the 42nd Amendment were left untouched. This shows a balanced perspective.
- Interplay between Legislature and Judiciary: Your answer must highlight the dynamic between Parliament's amending power under Article 368 and the Supreme Court's power of judicial review. The 42nd and 44th Amendments