Libertatem Magazine

Analysing 44th Amendment Act: Saviour of Democratic Ideas of the Constitution

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The 44th Amendment Act, 1978, was introduced to provide adequate safeguards against the taking over of fundamental rights shortly and ensure the people of India an effective voice in determining the government.

The Act also nullifies various provisions that were brought through the 42nd Amendment of the Constitution. The 44th Amendment Act was introduced into the Constitution Amendment Bill in 1978. The 42nd Amendment Act contained various provisions which were neither safeguarding the citizens of India nor serving the interest of the Nation, the 44th Amendment Act was passed.

44th Amendment Act – Saving Democracy

The Emergency was declared in 1975 and the horrors were rescued by the 44th Amendment Act 1978. Before the Amendment Act, the Emergency could be declared in case of war, external aggression or internal disturbance and the Emergency declared in the year 1975 was sought declared as an internal disturbance. The term “internal disturbance” was not defined and was kept open-ended. Hence, there was a misuse of power. however, with this Amendment, the phrase ‘internal disturbance’ was replaced with armed rebellion which was restrictive in interpretation as compared to the earlier phrase. It particularly described the Internal Disturbance does not amount to armed rebellion and therefore is not ground to proclaimed Emergency in the Country.

Prior to the Amendment, the Prime Minister alone could take the decision in regards to the Emergency and the consent of Cabinet Ministers was not necessary and also there was a need for the president’s consent in writing.  It was then Prime Minister Indira Gandhi, who declared the Emergency, even many Ministers were not present. However, to avoid such misuse of power the Article 352(3) was introduced through this Amendment Act.

Under Article 352 The proclamation of Emergency can only be issued when the security of India or any part of its territory is threatened by war or external aggression or armed rebellion. The Emergency can be proclaimed based on written advice to the President by the Cabinet. The president can under the amended Article 74 remit it back to the Council of Ministers for reconsideration and then he should act according to the reconsideration.

Prior to the 44th Amendment to proclaimed the Emergency, it needed to be approved by both the houses by resolution passed by simple majority, however, the Amendment, provides the approval by a special majority. Both the houses need to approve it by a majority of the total membership of the house and by the majority should not be less than two-thirds of members of the house present and voting.

The idea behind amending Article 352 was to ensure that the year 1975 would not repeat in future again. Indira Gandhi used the framework of the Constitution to exploit the fundamental rights of the people and even the Supreme Court in the case of ADM Jabalpur v. Shivkant Shukla abused the power of the fundamental rights.

The fundamental rights, including the right to life and liberty, ensured by the Constitution to the citizens of India were taken away. However, through the 44th Amendment Act, Article 368 was amended, to ensure that if there are any changes to be made in the Basic Structure of the Constitution, they can only be made with the approval of the people of India by a majority of votes at a referendum wherein at least Fifty-one per cent of the electorate participated. The provisions of the 42nd Amendment which allowed the government to amend the Constitution as per their wish by Article 368 is being nullified through the 44th Amendment Act and after this, the unjust power of the government has been taken off.

The right to property is no more a fundamental right (Article 31), after the introduction of the 44th Amendment Act. It has now become a Legal Right under Article 300A.

The preventive detention cannot be authorized in any case, detention for a longer period than two months, unless and until an Advisory Board reports the sufficient cause for detention. The right to liberty by the provision has been strengthened.

The Right ensured to media to report freely and without any censorship the proceedings in the Parliament and the State Legislatures.


The introduction of the 44th Amendment Act was of great significance. Having the national Emergency in the year 1975 was an unconstitutional step taken by then Prime Minister Indira Gandhi. The 44th Amendment Act repealed the provisions of the 42nd Amendment Act, which gave unnecessary power to the Parliament to legislate against anti-national activities. The 42nd Amendment’s provision that the Directive Principles can take precedence over the fundamental rights of the citizen was also repealed.

The 44th Amendment Act gave a new ray of hope, in effect to the application of fundamental rights. It modified the Emergency provisions of the Constitution and is preventing the misuse of the provisions shortly. Safeguarding the fundamental rights of the citizen and preventing the misuse of the power, this Amendment Act saved the democratic ideals of the nation.

44th Amendment Act restored the secular and democratic ideals of the Constitution. is now on Telegram. Follow us for regular legal updates and judgments from the Court. Follow us on Google NewsInstagramLinkedInFacebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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