In India, the supreme law is undoubtedly the Constitution of India. The government and the people are subordinate to it and no law can be promulgated that is against the provisions of the Constitution. It is a detailed piece of legislation that lays down the framework to govern the country, the rights and duties of the people, the obligations of the government, the offices of the government and other important rules. In no circumstance can the parliament of the country override the constitution.
However, to keep the constitution at pace with the ever-evolving society as well as the needs and aspirations of the people, the constitution itself provides with the procedure for amendment. This procedure, mentioned in Article 368, states that the constitution can be amended, that is, altered, according to the procedure mentioned therein. The constitution can be amended surely, but care must be taken to keep the basic principles, often referred to as the Basic Structure, of the constitution intact. These principles were incorporated by the makers of the constitution and they reflect the ideals they wanted the country to stand upon. Thus, an amendment to the constitution may be affected only if it is in consonance with the basic structure.
Amendments to the Constitution of India
At the time India got independence and the constitution came into being, India was a newly found nation, so to say. It was at the stage where the potential for rapid development and change existed, and at the same time a need for stability was required. Keeping these thoughts in mind, the Constituent Assembly drafted the constitution in such a way that it would, in the near future, be able to stay at par with the constantly changing society but keep its ground all the while. Thus, the provision of amendment was introduced and consequently, since independence, a number of amendments have been made to the constitution. Since the procedure for amendment to the constitution, although flexible, is not easy to achieve, all the amendments have brought important alterations in the constitution which had been the need of the hour. Since independence and till date, about 105 amendments have taken place.
The procedure for amendment requires that a bill for the same be introduced in the Lok Sabha, the lower house of the parliament, or the Rajya Sabha, the upper house. This bill requires two majorities to be fulfilled: a total majority of each house, and a majority of not less than two-thirds of the members present and voting, the latter also called a special majority. The bill after attaining the successful majority is presented to the President of India, who gives his assent to the same. If the bill is such that it amends Article 368 itself, then it requires the ratification of not less than half of the State Legislatures. Every constitutional amendment is passed as a statute, for example, the Constitution (First Amendment) Act.
Various amendments have proved to be detrimental to the Constitution, but others have proved to be fruitful. During the period of Emergency in India, the provisions of the Constitution were altered extensively by the changing governments. In order to understand why the 44th amendment of Indian constitution was brought forth, we first need to understand the situation prior to it.
Prior to the 44th Amendment
Article 352 of the Constitution mentions the provision of declaring emergency in the country. It stated that the President of India could declare a situation of emergency if he was satisfied that a grave threat existed to the security of the whole of India or a part therein, because of a war, external aggression, or internal disturbance. Owing to the provision, a national emergency was declared by the then President in confirmation with the then Prime Minister of India, but without the Prime Minister consulting her cabinet. Moreover, the declaration of emergency was affected only by a simple majority from both houses of the Parliament and as per the rules existing then, an emergency could last until there came a parliamentary decision.
When the emergency was affected, a number of changes were made regarding the emergency provisions themselves. The provisions regarding freedom of speech and dissent, as well as the rule of law were re-established. The 42nd amendment proved destructive to the constitution as well as to the fabric of democracy. As a result, the 44th amendment of Indian Constitution was introduced by the newly elected Janata Party to restore certain changes as well as to introduce some new developments.
The 44th Amendment, 1978
The 44th amendment of Indian constitution was introduced by the Janata Party who had won the election of 1977, as a promise during campaigning to restore the constitution to its pre-emergency form. The Bill for the amendment was introduced by the then Minister of Law, Justice and Company Affairs, Shanti Bhushan, and sought to amend several articles of the constitution. Although the amendment in itself was very vast, some of the significant changes have been discussed below:
- With respect to the Fundamental Rights, the right to property was removed from the list and was mentioned separately as a legal right in Article 300A of the Constitution of India. The provisions of the right to property were mentioned under Article 19(1)(f) and 31(1), which have now been removed.
- Regarding the powers of the President of India, the President was required to act on the advice of the Council of Ministers, but after the amendment, the President may send the advice back for reconsideration.
- A new principle in the Directive Principles of State Policy was added, namely the state’s obligation to promote the welfare of the people.
- Amending the provision for emergency, the amendment changed the words “internal disturbance” to “armed rebellion”, and required that the President could proclaim emergency only on the written request of the council of Ministers.
- It also included that even during a national emergency, the Fundamental Rights under Articles 20 and 21 could not be taken away or abridged.
- Further, amendment to the provisions of emergency require a 51% vote of the people of India in a referendum. Also, a national emergency could not be declared for a period of more than 6 months at a time.
- Since the 42nd amendment restricted the provisions of the freedom of speech, the 44th amendment of Indian Constitution provided liberty to newspapers in terms of publishing the proceedings of the Parliament and State Legislatures, even during the situation of emergency.
- The 42nd amendment also increased the tenure of the parliament and state legislatures to 6 years, which was restored to 5 years by the 44th
- The powers of the Supreme Court and the High Courts that were taken away as a result of the 42nd amendment were restored, namely, the right to access the courts through a writ petition of habeas corpus.
- A declaration of emergency in a state would also not last for a period for more than 6 months, and in most cases the maximum period would be of one year.
- The election of the President, the Governors of the States and the Speaker of the Lok Sabha were subject to Judicial Review as per the 44th
The situation before the 44th amendment of Indian Constitution was intense enough to bring into effect another amendment, so that the provisions of the constitution could be restored back to their original position. It must be noted that an amendment cannot alter the basic ideology of the constitution, but the 42nd amendment was a clear misuse of emergency provisions by the then existing government. The constitution after the 42nd amendment became subordinate to the parliament, making it easy for the government to abuse the powers accorded to it. As a result, it was voted out and the new government made the necessary restorations to the constitution.
Amendments to the Constitution are not a new thing; in fact, they are very much required so that the constitution does not fail to deliver according to the contemporary times. However, as mentioned before, certain amendments can prove to be detrimental for the society, and damage the principles of democracy, secularism and constitutional sovereignty. It falls upon the governments to exercise their powers within the boundaries set by the constitution, otherwise it can lead to abuse of power and arbitrariness. The people of India are required to be more vigilant about their government and condemn actions where necessary.
Frequently Asked Questions (FAQs)
What is the procedure to amend the Constitution of India?
The procedure for amendment of the Constitution requires that a bill for the same be introduced in the Lok Sabha, the lower house of the parliament, or the Rajya Sabha, the upper house. This bill requires two majorities to be fulfilled: a total majority of each house, and a majority of not less than two-thirds of the members present and voting, the latter also called a special majority. The bill after attaining the successful majority is presented to the President of India, who gives his assent to the same. If the bill is such that it amends Article 368 itself,that is, the emergency provisions, then it requires the ratification of not less than half of the State Legislatures.
What was the need to introduce the 44th amendment to the Constitution?
A national emergency was declared in India from 1975 to 1977, during which the 42nd amendment to the constitution was introduced. The said amendment altered major features of the constitution and proved to be an abuse of the provisions of emergency by the government. In order to rectify the situation, the new government brought the 44th amendment to the constitution which restored the constitution prior to the 42nd amendment.
What changes were made by the 44th amendment regarding the Fundamental Rights?
With respect to the Fundamental Rights, the right to property was removed from the list and was mentioned separately as a legal right in Article 300A of the constitution. The provisions of the right to property were mentioned under Article 19(1)(f) and 31(1), which have now been removed. Also, during a national emergency, the Fundamental Rights under Articles 20 and 21 could not be taken away or abridged.