44th Amendment Emergency Provisions Abuse of Power

The Constitution (Forty-fourth Amendment) Act, 1978, introduced significant modifications to the emergency provisions, primarily aimed at preventing the kind of subjective invocation and perceived misuse witnessed during the 1975-77 emergency.

Key Changes Introduced by the 44th Amendment Act, 1978 to Article 352

The amendments focused on making the invocation and continuation of a National Emergency more stringent and subject to greater scrutiny.

• Grounds for Proclamation: The original Article 352 allowed the President to issue a proclamation if satisfied that a 'grave emergency' existed due to war, external aggression, or 'internal disturbance'. The 44th Amendment replaced 'internal disturbance' with the more specific and stringent ground of 'armed rebellion'. This aimed to prevent the declaration of emergency for less severe internal disturbances.
• Written Advice from Cabinet: Earlier, the President could act on the subjective satisfaction of the Prime Minister alone. The 44th Amendment mandated that the President could issue a proclamation of National Emergency only upon the 'written advice' of the Union Cabinet. This ensured that the decision was collective and recorded, not arbitrary.
• Parliamentary Approval:
  • Time Limit: The period for seeking parliamentary approval was reduced from two months (under the 42nd Amendment) to one month from the date of proclamation.
  • Special Majority: While the initial approval required a simple majority, the continuation of the emergency beyond one month required approval by a special majority (two-thirds of the members present and voting) in both Houses of Parliament. This significantly strengthened parliamentary control.
• Revocation of Emergency: The 44th Amendment introduced a specific mechanism for revocation. The President could revoke the proclamation either on his own initiative or if a resolution disapproving it was passed by both Houses of Parliament. Furthermore, if the Prime Minister requested the President to revoke the proclamation, the President was bound to do so. A specific provision was added requiring the Lok Sabha to consider a notice for a vote of disapproval if given by at least 1/10th of its members.
• Judicial Review: While the 38th Amendment (1975) had barred judicial review of emergency proclamations, the 44th Amendment effectively restored it to some extent. Although the 'satisfaction' of the President remains non-justiciable, the grounds (e.g., 'armed rebellion') and the 'mala fide' nature of the proclamation could potentially be subject to judicial review, as affirmed in subsequent interpretations. The Minerva Mills case is significant here.
• Scope Limitation: Article 356 (President's Rule in States) was amended (Article 356(5)) to prevent judicial review of the satisfaction of the President regarding the breakdown of constitutional machinery, but this was later struck down by the Supreme Court in the Bommai case. However, the spirit of the 44th amendment was towards greater checks.

Comparison of Article 352 Provisions (Pre- and Post-44th Amendment)

Feature	Pre-44th Amendment (Post 42nd)	Post-44th Amendment (1978)
Grounds	War, External Aggression, Internal Disturbance	War, External Aggression, Armed Rebellion
Basis of Satisfaction	Prime Minister's advice (potentially subjective)	Written advice of the Union Cabinet (collective decision)
Parliamentary Approval Timeline	Within 2 months (simple majority)	Within 1 month (simple majority)
Continuation beyond 1 month	Simple majority approval every 6 months	Special majority approval every 6 months
Revocation	President's discretion	President's discretion OR on written advice of PM OR disapproval resolution by Parliament
Judicial Review Scope	Severely restricted (38th Amendment)	Limited, but grounds and mala fides potentially reviewable

Efficacy of the Changes in Preventing Abuse of Power

The amendments introduced by the 44th Act have significantly enhanced the safeguards against the misuse of Article 352, though complete elimination of potential abuse is debatable.

Arguments for Efficacy:

• Increased Subjectivity Threshold: Replacing 'internal disturbance' with 'armed rebellion' raises the bar for declaring an emergency, making it harder to justify on flimsy grounds.
• Collective Responsibility: The requirement of the Union Cabinet's written advice ensures the decision is collective, reducing the possibility of a Prime Minister acting unilaterally based on personal or political motives.
• Strengthened Parliamentary Control: The shorter timeline for approval, the special majority requirement for continuation, and the specific revocation procedures give Parliament a more assertive role in overseeing and controlling emergency powers.
• Enhanced Revocation Mechanism: The explicit provisions for revocation, especially the binding nature of the Prime Minister's request and the Lok Sabha's disapproval role, empower legislative bodies to end an emergency more readily.
• Potential for Judicial Scrutiny: While the President's satisfaction remains largely non-justiciable, the possibility of challenging the proclamation based on mala fide intent or if it deviates from the stipulated grounds offers a crucial check.

Limitations and Potential Loopholes:

• Definition of 'Armed Rebellion': The term 'armed rebellion' itself can be open to interpretation by the executive, potentially allowing for subjective application in certain political contexts.
• Executive Dominance: In situations where the ruling party has a comfortable majority in Parliament, the special majority requirement might still be manageable, and parliamentary oversight could become less effective if Parliament is overly deferential to the executive.
• Timing and Information Control: The government in power controls the flow of information and can potentially present a situation in a manner that compels the Cabinet and Parliament to accept the need for an emergency.
• Presidential Role: While the President acts on the advice of the Cabinet, the initial recommendation still originates from the executive, and the effectiveness relies on the President's adherence to constitutional norms.
• Article 356 Overlap: While the 44th Amendment focused on Article 352, the potential for misuse of Article 356 (President's Rule) remains a related concern, although judicial pronouncements like the Bommai case have sought to curb it.