India Explained
ImplementedJPMorarji Desai

Constitution (44th Amendment) Act, 1978

Amendment reversing several Emergency-era changes: narrower Emergency grounds, fixed limits on preventive detention, and removal of property from the fundamental rights.

Civil liberties

Facts

  • The Bill was introduced in the Lok Sabha on 16 December 1977 by Law Minister Shanti Bhushan, passed by the Lok Sabha on 23 August 1978 and by the Rajya Sabha with amendments on 31 August 1978; the Lok Sabha accepted the changes on 7 December 1978 [2].
  • After ratification by the States, the Act received the President's assent and was notified in the Gazette on 30 April 1979; some sections came into force on 1 August 1979 and others on 6 September 1979 [2].
  • Article 352 was amended so that "internal disturbance" was replaced by "armed rebellion" as a ground for Proclamation of Emergency; a Proclamation requires the Union Cabinet's decision communicated to the President in writing and must be approved by both Houses within one month [1].
  • Article 22(4) was amended to limit preventive detention to two months unless an Advisory Board, chaired by a serving High Court judge and constituted on the recommendation of the Chief Justice of the High Court, reports sufficient cause [1].
  • Article 31 was omitted and the right to property ceased to be a fundamental right, becoming a legal right (Article 300A) [1].
  • In the Rajya Sabha, motions to adopt clauses amending Articles 31C, 366 and 368 did not secure the required majority, so the Act differed from the Bill as introduced [2].
  • The Janata Party, which took office on 24 March 1977, had campaigned on restoring the Constitution to its pre-Emergency condition; the amendment aimed to undo several changes made by the 42nd Amendment of 1976, enacted under the Indira Gandhi-led Congress government [2][3].

Why

Reasons given by those who did it

  • The Statement of Objects and Reasons said that "the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority" and that safeguards were necessary against recurrence [1].
  • It said an Emergency proclamation "virtually has the effect of amending the Constitution" and that safeguards were necessary to ensure the power was not abused [1].
  • It said property, which "has been the occasion for more than one amendment", would cease to be a fundamental right to give a special position to the other fundamental rights [1].

Criticism of that reasoning

  • In the Rajya Sabha, clauses of the Bill amending Articles 31C, 366 and 368 did not secure the required majority and Part XIV-A was not omitted, so the House did not accept all of the proposals [2].

Benefits and concerns

Benefits (3)

  • Narrower and more procedural Emergency powers.Article 352 as amended: "armed rebellion" replaces "internal disturbance"; Cabinet decision in writing; approval by both Houses within one month [1].
  • Defined limits on preventive detention.Article 22(4) as amended: two months unless an Advisory Board chaired by a serving High Court judge reports sufficient cause [1].
  • Followed findings on the use of Emergency-era detention powers.The Shah Commission (appointed May 1977) concluded that the Maintenance of Internal Security Act and the Defence of India Rules were not followed but abused to damage political opponents [3]. The commission's process was also criticised for confusing investigation with inquiry [3].

Concerns (2)

  • Property ceased to be a fundamental right.The Statement of Objects states that property "would cease to be a fundamental right and become only a legal right" and Article 31 was omitted [1]; a person deprived of property can no longer invoke the fundamental right.
  • Parts of the Bill as introduced were not enacted.Rajya Sabha did not adopt clauses amending Articles 31C, 366 and 368 [2].

Evidence points

+16.5
points, mean of two scorers (scale −25 to +25)
+16 to +17
range between the two scorers' totals
Low confidence
scorers agree within 1 point on every criterion
ReachHow many people did the action materially affect?
Mean +2.5A +2B +3
Outcome evidenceDo official or independent data show the intended result (or its opposite), compared with the era baseline and peers?
Mean +3.0A +3B +3
Cost and sustainabilityIs the fiscal cost proportionate, and is the effect durable?
Mean +4.0A +4B +4
Process and rightsWas it made with debate, consultation and legal soundness, and did it respect rights and court rulings?
Mean +3.0A +3B +3
DeliveryWas it implemented as announced, on time and at scale?
Mean +4.0A +4B +4

Positive meanNegative meanScorer AScorer B

Scorer A. Narrowed Emergency grounds and set detention safeguards that endured, though removal of property from fundamental rights and dropped clauses temper the net effect.

Scorer B. Narrowed Emergency grounds and limited preventive detention, durable since enactment, though property ceased to be a fundamental right and parts of the Bill failed in the Rajya Sabha.

Context used when scoring

Era baseline
The 1975-77 Emergency had suspended civil liberties and the 42nd Amendment of 1976 had altered the Constitution; Janata Party won the March 1977 election on a promise to restore pre-Emergency safeguards.
Lag before outcomes show
5 years
Uncertainty
Low confidence. Scorer totals are +16 and +17. How uncertainty is shown.

In depth

The amendment was enacted by the Janata-led government elected in March 1977 after the Emergency of 1975-77. The Bill was debated in Parliament from December 1977 to December 1978; the Rajya Sabha did not adopt some clauses, and the Act took effect in stages from April to September 1979.

Its main provisions changed the conditions for declaring a national Emergency, limited the length of preventive detention without an Advisory Board, and removed the right to property from the list of fundamental rights, replacing it with a legal right. The government stated that it was guarding against fundamental rights being taken away by a transient majority.

Supporters say the amendment added procedural checks to emergency powers. Critics of particular provisions point to the loss of the fundamental right to property and to the clauses that were not enacted. This entry does not assess whether Emergency powers have been used differently since 1979, because the sources reviewed do not address that question.

Sources

  3. Shah Commission
    WikipediaMedia

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