Maarg Manthan · Topic 10.6

44th Amendment Act, 1978, and Changes to Emergency Provisions

Indian Polity › Emergency Provisions · Topic 10.6

The 44th Amendment Act, 1978 added safeguards after the 1975 Emergency: armed rebellion replaced internal disturbance, the Cabinet must advise in writing, approval needs a special majority within a month, and Articles 20 and 21 cannot be suspended.

5 min read · UPSC Prelims · Polity · Emergency Provisions

At a Glance

What it is The amendment that added safeguards against misuse of emergency powers
Year 1978, by the Janata Government
Cause Misuse of the 1975 Emergency and the Shah Commission findings
Main idea Make declaration and continuation harder
Exam link UPSC Prelims, Polity: Emergency Provisions

Where Does It Fit?

This is the sixth topic of the category on Emergency Provisions. The Emergency declared in 1975 proved to be the most controversial. After the 1977 elections, the Janata government appointed the Shah Commission, which did not justify the declaration, and the 44th Amendment Act was enacted in 1978 to introduce a number of safeguards against the misuse of emergency provisions.

Changes to National Emergency

Provision	Before the 44th Amendment	After the 44th Amendment
Ground	War, external aggression or internal disturbance	War, external aggression or armed rebellion
Who decides	Prime Minister could act alone	Written recommendation of the Cabinet required
Approval time	Two months	One month
Approval majority	Simple majority	Special majority
Continuation	As long as the Executive desired	Six months, renewed by Parliament every six months
Revocation	President on own	President must revoke if Lok Sabha disapproves
Special sitting	None	On notice by one-tenth of Lok Sabha members, within 14 days
Judicial review	Barred by the 38th Amendment	Bar removed

Changes to Rights, President’s Rule and Financial Emergency

The 44th Amendment restricted Article 358 to External Emergency and protected only emergency-related laws. It barred the suspension of the enforcement of Articles 20 and 21 under Article 359. It removed the bar on judicial review of the President’s satisfaction for President’s Rule and Financial Emergency that the 38th Amendment had put in place.

For President’s Rule, the 42nd Amendment had raised the period of continuation from six months to one year, but the 44th Amendment reduced it again to six months. It also provided that, beyond one year, the proclamation can be extended by six months at a time only if a National Emergency is in operation and the Election Commission certifies that elections to the assembly cannot be held.

Other Safeguards in Short

Besides the changes in the table, the amendment made the President’s Rule period shorter and tied any extension beyond one year to a National Emergency and an Election Commission certificate. It also restricted Article 358 to External Emergency, made emergency-related laws the only laws protected, and shielded Articles 20 and 21 from suspension. Each safeguard is aimed at one weakness of 1975: the single decision by the Prime Minister, the vague ground, the long unchecked duration, the closed courts and the suspended liberty.

In the Constituent Assembly, Dr Ambedkar had accepted that the emergency Articles could be abused for political purposes; the 1978 amendment is the constitutional response to that possibility. The amendment did not remove the emergency powers, because the Constitution still needs them for real threats, but it made their use depend on more than one authority. For revision, remember the pairs: ground (armed rebellion), advice (Cabinet), vote (special majority), time (one month and six months), review (courts and Lok Sabha).

Why It Matters

The 44th Amendment is the answer to the question of how the Constitution could prevent a recurrence of 1975. By requiring the written advice of the Cabinet, Parliament’s special majority and repeated renewal, it made the proclamation a decision of the Union as a whole and not of one office. The Minerva Mills ruling of 1980 later confirmed that a proclamation could be questioned in court on the grounds of malafide, extraneous facts or perversity. Together, the amendment and the ruling mean that an emergency proclamation today is a decision that must pass the Cabinet, Parliament and, if challenged, the courts.

Why Is This Topic Important?

Consolidation It brings all reforms of the chapter together
Table question Before and after is a favourite format
Link to 1975 Context of the safeguards

What Came Next?

The next topic covers the three instances of National Emergency in 1962, 1971 and 1975.

Key People and Terms

Shah Commission Probed the 1975 Emergency
Janata government Government that enacted the amendment
Armed rebellion Replaced internal disturbance
Special majority Needed to approve emergency
Fait accompli Informing the cabinet after the proclamation

Exam Corner

Points to Remember

44th Amendment: 1978.
Armed rebellion replaced internal disturbance.
Cabinet written advice; one month; special majority.
Articles 20 and 21 cannot be suspended.

Do Not Confuse With

42nd and 44th Amendments The 42nd raised President’s Rule to one year; the 44th reduced it
38th and 44th Amendments The 38th barred review; the 44th removed the bar
Armed rebellion and internal disturbance Only the former is a ground now

Memory Hook

Cabinet writes, month to approve, two-thirds to pass, six months to renew, courts may look.

Mains Angle

Questions on this topic usually ask whether the safeguards are enough. Use these points to add depth.

Executive restraint The decision moves from one person to the Cabinet
Parliamentary control Special majority and periodic approval
Judicial role Review restored
Remaining concern Article 356 still sees contested use

A Question You May Face

An original practice question, not a past paper question.

“How far do the changes made by the 44th Amendment Act protect against misuse of emergency powers?”

How to Answer

Introduction 1975 and the Shah Commission.
Changes Grounds, advice, approval, rights.
Assessment Minerva Mills and Bommai.
Conclusion Safeguards still need vigilance.

GS Relevance

Prelims: Indian Polity, amendments, emergency. GS Paper 2: Constitutional safeguards.

Frequently Asked Questions

Why was the 44th Amendment Act passed?

It was enacted in 1978 to introduce safeguards against the misuse of emergency provisions after the controversial Emergency of 1975. The Janata government appointed the Shah Commission, which did not justify the declaration of the 1975 Emergency.

What ground replaced internal disturbance?

The 44th Amendment substituted the words armed rebellion for internal disturbance as a ground for National Emergency, because internal disturbance was too vague and had a wider connotation. It cannot now be used as in 1975.

How did the 44th Amendment change approval of a National Emergency?

It reduced the approval period from two months to one month, required a special majority in both Houses instead of a simple majority, and required Parliament to renew the emergency every six months instead of letting it run on.

What did the 44th Amendment do for Articles 20 and 21?

It provided that the President cannot suspend the right to move the court for enforcement of the rights under Article 20 and Article 21, so protection against conviction and the right to life and liberty stay enforceable.

What did it do for judicial review of emergency?

It deleted the provisions inserted by the 38th Amendment that made the President’s satisfaction in proclaiming National Emergency, President’s Rule and Financial Emergency final and immune from judicial review, so the satisfaction is open to review.

PYQ Practice — Statement Analysis

1 The 44th Amendment made the Cabinet’s written advice compulsory for emergency.

True

In 1978.

2 The 44th Amendment raised the term of President’s Rule to one year.

False

The 42nd did; the 44th reduced it.

3 After 1978 a National Emergency cannot be declared for internal disturbance.