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No one can transfer better title than who himself

CONTRACT

Submitted by:
LOKESH MAHAJAN
2013061
SEMESTER III

DAMODARM SANJIVAYYA NATIONAL LAW UNIVERSITY


Visakhapatnam

TABLE OF CONTENTS

TITLE

PAGE NO.

CONTENT
ACKNOWLEDGMENT
INTRODUCTION
OBJECTIVES
HISTORICAL BACKGROUND
MAIN TOPIC
EXCEPTIONS
CONCLUSION
BIBLIOGRAPHY
Books

ACKNOWLEDGEMENT
Researcher endeavored to attempt this project. However, it would not have been
feasible without the valuable support and guidance of Miss. Parvathi I would like to
extend my sincere thanks to her. I am also highly indebted to Damodaram Sanjivayya
National Law University Library Staff, for their patient co-operation as well as for
providing necessary information & also for their support in completing this project.
My thanks and appreciations also go to my classmates who gave their valuable insight
and help in developing this project.

INTRODUCTION

The Constitution (44th Amendment) Act, 1978:1 The Constitution (45th Amendment)
Bill, re-numbered as the 44th Amendment came into force on April 30, 1979, when
the President gave his assent.
The 42nd amendment undertaken during emergency (1975-77) had been the most
controversial amendment in whole constitution history. It had a number of obnoxious
features, and had a number of distortions in the constitution; it was regarded as an
attempt to institutionalise emergency in the country forever.
One of the most debatable feature was to curtail the power of high courts and the
supreme court to review the legislation and give redress to the individual against
administrative excesses. Another feature was to dilution of fundamental rights. Also,
the central powers vis-a-vis those of increase were increased and art. 368 was sought
to be amended to make parliaments amending power beyond judicial review. There
was so much public sentiments against the 42nd amendment that one of election issue
in sixth general election was the repeal of the 42nd amendment. The janta party won
the election and it redeemed its pledge by enacting 43rd and 44th amendment to the
constitution to undo most of the provisions of the 42nd amendment.
The Constitution (forty-fourth Amendment) Act, passed in1978, removed most of the
aberrations and distortions into the constitution by 42nd amendment of the
constitution. Not only this, the 44th amendment sought to amend a few other
provisions of the constitution so as to achieve the following major objectives:

indiacode.nic.in/coiweb/amend/amend44.htm
Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur. Pg. no. 1829

Objectives of 44th Amendment:2

To ensure that fundamental rights were not restricted or taken away by a


transient majority in parliament, it was necessary to provide adequate
safeguards against recurrence of such a contingency in the future and to ensure
to the people themselves effective voice in determining the form of
government under which they were to live;

To take the controversial property right out of the category of fundamental


rights and make it an ordinary legal right;

To ensure that the power to proclaim an emergency under art. 352, which
virtually has the effect of amending the constitution by converting it to a
unitary state and suspending the right of the citizen to enforce fundamental
rights, was used properly and after due consideration and deliberation and was
not misused for personal or partisan ends;

To ensure that the fundamental and the basic features of the constitution were
not lightly interfered with by parliament in exercise of its power of
constitutional amendment under art.368.

Salient features of the Amendment :


(I)

PARLIAMENT AND STATE LEGISLATURE

CA 42 had extended the life of lok sabha and state legislative assemblies from
five to six years. CA 44 reduced the term again to five years and, thus,
restored the status quo ante.

Status quo also was restored in respect of the quorum in the house of the
parliament as well the legislature. CA 42 had reduced the question of quorum
from substantive to a merely procedural matter. Charges made in this area by
CA 42 were cancelled and the original articles 100(3) and (4) and 189(3) and
(4) were restored by the CA 44.

www.yourarticlelibrary.com/.../the...amendments-to... 55 5
Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur. Pg. no. 1830

CA 42 had amended art. 103 as regards the procedure to decide the question of
disqualification of a member of parliament. CA 44 amended art. 103 again so
as to restore the position to what it was before the passage of CA 42.
Henceforth, the question of disqualification of a member of a house of
parliament is to be decide by the president in accordance with the opinion of
the election commission.

Art. 1 2(1) (a) regarding office of profit as it stood originally prior to CA 42


has been restored. The change made therein by CA 42 taking away from the
courts the power to declare what was an office of profit was cancelled by
CA 44. The court get back the power to decide whether an office is an office
of profit. The similar change was made as regards the state legislature.

Arts. 105 and 194 dealing with the privileges of parliament and of the state
legislatures had been amended by CA 42 so as to drop partially the reference
to the house of commons. CA 44, in the first place, cancelled the amendments
made by CA 42 and then amend articles 105(3) and 194(3) so as to drop
completely any reference to the house of commons in future. The privillage
enjoyed by a house of parliament or state legislature, or any of its committee
members, would henceforth be the same as existing immediately before
coming into force of CA 44.

(II)

EXECUTIVE

CA 39 had deprived the supreme court of its jurisdiction to decide dispute


concerning election of the president and the vice-president. CA 44
cancelled this amendment and restore to the supreme court its original
jurisdiction in this respect. CA 44 thus restored the status quo abtaining
before CA 39.

CA 42 amended art. 74 so as to make ministerial advice binding on the


president. The president was left with no option exept to act in accordance
with the ministerial advice. The provision was not changed by CA 44 but
so somewhat relax the rigours of this provision, a new provision was
added to act art.74(1) saying that president could required the council of
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ministers to reconsider its advice given to him, either generally or


otherwise, and president should act accordance with the advice tendered
after such reconsideration. This means that while the president remains
bound by ministerial advice , he now gets a limited right to refer the matter
back to the council of minister for reconsideration. The provision
supplements art. 78(c).

CA 42 barred the courts requiring production of business rule made by the


central or a state government. For this purpose, clause (4) was added to art.
77 and 166 of the constitution. CA 44 repealed new clause (4) and thus
enabled the courts to require the government to produce its rule of
business, if necessary, to decide a controversy before them as they could
do prior to the enactment of CA 42.

Art. 239B(4) added by CA 38 declaring satisfaction of the administrator of


a union territory to issue ordinances final and conclusive was also
withdrawn by CA 44.

(III)

HIGH COURTS AND SUPREME COURT

CA 42 had added art. 139A so as to enable the supreme court in certain


circumstances, to withdraw cases from high court and decide them itself.
CA 44 continued this provision subject to some modifications. Previously,
the court could do so only on the application of the Attorney-general.
Now, CA 44 enable the court to do so additionally either suo motu or on
the application of a party to any such case.
The supreme court would decide the question of law involved in the case
withdrawn and thereafter would send the case back to concerned for
disposal.

CA 44 inserted new art. 134A and made consequential verbal changes in


132,133 and 134(1)(c).

The underlying purpose of these amendments was to cut down any element of delay
in the Supreme court hearing appeals from the high courts. Art. 134A laid down the
procedure for grant of certificate of fitness by the high courts for appeal to the
supreme court. Art. 134A makes it obligatory on the high court to consider the
question of granting certificate immediately on the delivery of the judgement.

Formally there was Art. 132(2) authorising the supreme court to grant
special leave to appeal if high court refuse to grant the necessary
certificate. CA 44 repealed Art. 132(2) as in such a case , the supreme
court could consider grant of special leave to appeal under Art.136.

CA 42 had brought major change in the jurisdiction of the high court to


issue writs under Art.226. the avowed purpose of this change was to curtail
the writ jurisdiction of these courts and to curtail judicial review of
administrative action. This constitutes a serious encroachment of
individuals right to seek redress against the administration in case he was
adversely affected by its action.
CA 44 amended Art. 226 again so as to restore the position as it obtained
prior to CA 42.

CA 42 had amended Art. 227 so as to divest the high court of their power
of superintendence over the tribunals. Art. 227 was amended by CA 44 so
as to restore it to the form in which it stood prior to CA 42. The high court
thus get their power back of superintendence over the tribunals existing
within there territorial jurisdiction.

CA 42 had made provision for appointment of distinguished jurist as judge


of the high court. The provision was repealed by CA 44.

(IV)

FEDERALISM

Art. 257A was omitted.

(V)

EMERGENCY3

Art. 352 was amended by CA 44 so as to introduce a number of safeguards therein


against abuse of power regarding proclamation of emergency. The idea underlying
these amendments was to make practical impossible the repetition of 1975 situation
when an emergency was declared without adequate cause on the grounds of internal
disturbance. These amendment made in Art. 352 have been made earlier.

Clause 5 of art. 352,which had been inserted by CA 38, and which made the
satisfaction of the president as to the existence of a grave emergency
necessitating the issue of a proclamation of emergency final was withdrawn by
CA 44.

The scope of art. 358 was also restricted.

Art. 360 concerning financial emergency was also amended so as to include


some more safeguard therein. For this purpose, art. 360(2) was replaced by
new clause.
Further, art. 360(5) which was inserted by CA 38 and which made presidential
satisfaction as to the matter mentioned in art. 36 (1) final and conclusive
was dropped.

(VI) PREVENTIVE DETENTION


Art. 22 containing provision regarding preventing detention was amended so as to
introduce a few more safeguards therein as follows:

The maximum period without which a person may be detained without


obtaining the opinion of the adversary board has been reduced from 3 to 2
months. In all cases of preventive detention beyond two months, adversary
board is to be consulted. There will be no preventive detention beyond two
months unless the adversary board reports that there is in its opinion sufficient
cause for such detention.

No person is to be kept in preventive detention beyond the maximum period


prescribe by the parliament.

Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur. Pg. no. 1832-33

These changes have not been and so have not been effectuated so far. The old
art. 22 still operates.
(VII) FUNDAMENTAL RIGHTS4
CA 44 removed the right to property from the category of fundamental rights and
made it right which can be regulated by ordinary law. With a view to achive this
objective the following changes were introduced:

Art. 19(1)(F) was deleted.

Art. 31 was omitted.

Art. 31(1) became art. 300A staying that no person shall be deprived of his
property save by authority of law.

The safeguard contained in art.31(2) relating to acquisition of property of an


educational institution established and administered by a minority is now
sought to be incorporated in art.30. thus a new clause (1A) has been added
after Art. 30(1).

Art. 31D was repealed by CA 44.

(VIII) DIRECTIVE PRICIPLES


A new directive principle was inserted by adding a new clause to art. 38 to the
effect that the state shall strive to minimise inequalities in income and endeavour
to eliminate inequalities in status, facilities and opportunities not only amongst
individuals but group of people residing different areas.
(IX)

ELECTION

Art. 329A inserted by CA 39 making special provision regarding election to


parliament of the prime minister and speaker was now omitted.

Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur. Pg. no. 1834

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DEFECTS AND IMPLICATIONS OF 44TH AMENDMENT:-5


Defects of the 44th Amendment Act
The amendment was brought out without realizing the following draw backs:
(1) The close relation of property with other fundamental rights, which the Janata
Party was pledged to restore;
(2) The effect of this change on the legislative power to acquire and requisition
property; and
(3) The correlation of fundamental rights to Directive principles of state policy.
Implications
(i) The Right to Property would now be a Constitutional Right and not a Fundamental
Right. A legislation violating the constitutional right to property could now be
challenged only in High Courts and not directly in the Supreme Court.
(ii)Due to the deletion of Article 31 the Government was no longer under an
obligation to compensate persons whose land had been acquired as per a law passed
by Parliament.

CONCLUSION
So as we see that CA 44 made many changes in our constitution but As of now, it is,
beyond the scope of my research and understanding as to whether Proposition (ii) i.e.
deprivation of property without compensation is still legally tenable especially in light
of the Supreme Court's ruling, in the Maneka Gandhi case, which held that each and
every provision of the Constitution had to be interpreted in a just, fair and reasonable
manner. Therefore any law depriving a person of his property shall have to do so in a
reasonable manner. It could be argued that the only reasonable manner to deprive a
person of his property would be to offer him, reasonable compensation for the same.
This discussion however is not completely relevant for the purpose of this post. The
only relevant point is the fact that under the Constitution no person can be deprived of
their property without the authority of law.
The 44th Amendment provides safeguards against future subversion of the
Constitution for establishing an authoritarian regime. It contains provisions which are
designed to make it impossible to impose the kind of emergency the country had
experienced for 19 months.

www.jagranjosh.com/.../important-amendments-to-the-constitution-12 2...

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BIBLIOGRAPHY

BOOK:Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur
WEBSITES:indiacode.nic.in/coiweb/amend/amend44.htm
www.yourarticlelibrary.com/.../the...amendments-to... 55 5

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