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Submitted by:
LOKESH MAHAJAN
2013061
SEMESTER III
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
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.
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.
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
(III)
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 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.
(IV)
FEDERALISM
(V)
EMERGENCY3
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.
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. 31(1) became art. 300A staying that no person shall be deprived of his
property save by authority of law.
ELECTION
Jain M.P., Indian Constitutional Law, 6th Edition, 2010, lexis nexis, Nagpur. Pg. no. 1834
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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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