Changes made by Forty Fourth (44h) Constitutional Amendment in Emergency - MAINS QUESTION - DAILY CURRENT AFFAIR QUESTIONS AND ANSWERS

Tuesday, September 1, 2020

Changes made by Forty Fourth (44h) Constitutional Amendment in Emergency

In Part-18 of the Indian Constitution, Articles 352 to 360 provide for the President to get wide powers when there is a state of emergency in the country. President to declare an emergency in the country.
The right is obtained under the following three extraordinary circumstances-

1 War arises in the event of an external invasion or armed rebellion (Article 352).
2 A crisis arising in the state of failure of constitutional rule in a state (Article 356).
3 Financial stability or credit crisis (Article 360).

44th Amendment in emergency provisions under Constitution Amendment Act 1978 - imposed by then Prime Minister Indira Gandhi in June 1975. There was intense opposition to the Emergency throughout the country. Civil rights were violated during the Emergency and the popular government channeled into an autocratic and capricious government. After the Lok Sabha elections in 1977, when the Janata Party government came, it amended the Constitution tried to bring some such provisions that the Central Government could not arbitrarily declare a national emergency under Article 352 nor can there be a recognition of fundamental civil rights. The amendment related to emergency provisions under the 44th Constitution Amendment Act can be seen under the following points:

1.44 Before the Constitution Amendment Act, an emergency could be declared on the basis of war or external aggression or internal disturbance, but after this amendment, instead of 'internal disturbance'
The term 'armed rebellion' was introduced. By this amendment, adding clarification to Article 352 (1), it was provided that the President could proclaim emergency even before the war or external aggression or armed rebellion actually took place.

2. Prior to the 44th amendment, the President could make a proclamation of emergency on oral advice of the Prime Minister. The President will not make such a proclamation until he receives written notice of the Union Cabinet to issue an emergency.

3.44 Before the Constitution Amendment, the President required approval from the Parliament within two months of the Emergency Proclamation, but after the amendment, it was decided that the President required his approval from the Parliament within a period of one month of the Proclamation of Emergency. [Article 352]. 

4.Before the 44th Amendment, the resolution related to the Emergency Proclamation was passed by the Parliament with a simple majority, but after this amendment, the resolution was passed by both the Houses of Parliament as the total members of the house. It was necessary to pass by a majority of the number and at least two-thirds majority of the members present and voting in each House [Article 352 (6)].

5. Before the 44th Amendment, if the proclamation of emergency was approved by both the Houses of Parliament once, they would have no power to withdraw it. After this amendment, the Lok Sabha may at any time pass a resolution recommending the withdrawal of the Emergency Proclamation to the President. If she makes such a recommendation, the President will withdraw the Proclamation [[Article 352] |

6. Before the 44th amendment, if a national emergency was proclaimed and once it got parliamentary approval, it could be extended for eternity. In this amendment, a provision has been made that once declared by the President, the emergency can only continue for a period of 6 months from the date of declaration after parliamentary approval. If it is to be taken forward, the above process has to be repeated.

7.38 Under the Constitution Amendment Act, 1975, a provision was made that the national emergency declared by the President under Article 352 cannot be challenged in the Court.
The Emergency Proclamation was brought under judicial review under the 44th Amendment. That is, if it appears that the emergency declaration is unfair and arbitrary, then it can be challenged in the court.

8. The original rights conferred by Article 19 are automatically suspended regardless of the basis of the proclamation of emergency before the 44th Amendment. After this amendment, there will be an automatic suspension of Article 19 only during the emergency declared on the basis of 'war and external aggression'. A separate declaration will have to be made to suspend Article 19 during an emergency declared on the basis of 'armed rebellion'.

10. During the Emergency before the 44th Amendment, the President could by order suspend any of the fundamental rights mentioned in Part-3, but after this amendment, it was provided that Article 20 and Part 21 of Part 3 was not suspended during this period. would be able tod.

In the 356 (5) by the 44th Constitutional Amendment Act 1978, it has been provided that in order to continue the proclamation of President's rule for any period beyond one year, the following circumstances are necessary-

(A) At that time the proclamation of national emergency is in force in the whole of India or in the whole state or any part thereof;
(B) The Election Commission certifies that it is necessary to continue the President's rule even after one year, as there is difficulty in conducting general elections for the Legislative Assembly in the concerned state.

This can be understood by an example. If the President's rule is imposed under Article 356 due to the failure of the constitutional machinery in a state and during this period, the state becomes highly resolute and it is not possible to elect the Legislative Assembly in such a situation.

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