The Constitution (Forty-Fourth Amendment) Act, 1978 was the Janata government's answer to the 42nd Amendment. After the Emergency was lifted and the 1977 elections produced a Janata victory, the new government had a mandate to undo the 42nd Amendment's distortions. It could not undo everything — the Janata had a majority in the Lok Sabha but not in the Rajya Sabha, where the Congress still held the majority. So the 44th Amendment is what the Janata could push through both Houses with Congress concurrence. Its most enduring change is moving the right to property out of Part III, making it a constitutional right under Article 300A but not a Fundamental Right. The 2021 Prelims tested precisely this. The 2019 Prelims tested another 44th Amendment fact — that it did NOT introduce an Article placing the Prime Minister's election beyond judicial review.
The political context — post-Emergency reversal
The Emergency was lifted in March 1977. The sixth general election produced a Janata Party victory. The Janata Party, led by Morarji Desai, took office with an explicit campaign pledge to repeal the 42nd Amendment and restore the constitutional balance disrupted during the Emergency.
The Janata government had a comfortable majority in the Lok Sabha but a minority in the Rajya Sabha, where the Congress Party still held majority. This meant that any constitutional amendment required Congress concurrence to pass the Rajya Sabha. The Janata's rollback was therefore partial — only those provisions on which the two parties could agree.
The Janata's preferred Bill — the Constitution (Forty-Fifth) Amendment Bill — was much more ambitious than what eventually became law. It contained provisions to define "secular" and "socialist" in the Preamble, to remove Articles 323A and 323B (the tribunal articles), to retransfer Education and Forests from the Concurrent List back to the State List, and to introduce a referendum requirement for amendments affecting basic features. None of these provisions made it through the Rajya Sabha. The 44th Amendment is therefore the negotiated minimum.
The 43rd Amendment in December 1977 had already started the rollback — repealing the most aggressive judicial review limits (Articles 32A, 131A, 144A, 226A, 228A, and 31D). The 44th Amendment in 1978 completed the work on emergency provisions, the right to property, and several other matters.
Right to property — moved out of Part III
The most lasting change made by the 44th Amendment was the removal of the right to property from Part III of the Constitution.
The original Constitution had two property-related provisions in Part III. Article 19(1)(f) guaranteed every citizen the right to acquire, hold, and dispose of property. Article 31 protected against deprivation of property without authority of law and required compensation for compulsory acquisition. Together, these articles made the right to property a Fundamental Right.
The right to property had been the most-litigated Fundamental Right since 1950. Land reform, urban land ceiling, bank nationalisation, abolition of privy purses — every major social-reform measure had been challenged on property grounds. Successive amendments (1st, 4th, 17th, 25th) had progressively narrowed the protection. The 44th Amendment took the final step: it removed the right entirely from Part III.
The amendment did three things on property:
(i) Article 19(1)(f) was deleted. The freedom to acquire, hold, and dispose of property is no longer a Fundamental Right.
(ii) Article 31 was omitted. The protection against deprivation of property and the compensation requirement were removed from Part III.
(iii) Article 300A was inserted in Part XII, Chapter IV. It reads: "No person shall be deprived of his property save by authority of law." This makes the right to property a constitutional right but not a Fundamental Right.
The distinction matters for two reasons. First, enforceability: a person can move only the High Court under Article 226 (not the Supreme Court directly under Article 32) to enforce a right under Article 300A. Article 32 is itself a Fundamental Right, available only for enforcement of other Fundamental Rights. Second, scope of protection: Article 300A only requires "authority of law" — it does not require compensation, fairness of procedure, or any of the substantive protections that had built up around the original Article 31. The State has wide latitude in regulating and acquiring property as long as it acts under a valid law.
Emergency safeguards — preventing another 1975
The Emergency of 1975-77 had been declared on the ground of "internal disturbance" — a phrase in the original Article 352 that the Janata government considered too vague. The 44th Amendment introduced multiple safeguards to prevent the recurrence of an unjustified emergency.
Internal disturbance replaced by armed rebellion. The phrase "internal disturbance" in Article 352 was replaced with "armed rebellion." This narrowed the constitutional grounds for emergency. An emergency can now be declared only on grounds of war, external aggression, or armed rebellion — not on broader notions of internal disturbance.
Cabinet recommendation in writing required. The President can declare an emergency only when the Cabinet (not the Prime Minister alone) communicates the decision in writing. This was a response to the 1975 declaration, which had been issued on the Prime Minister's advice without prior Cabinet consideration.
Special majority required for parliamentary approval. Article 352(6) was added to require approval by a special majority — majority of total membership and two-thirds of those present and voting in each House — for the resolution approving the emergency proclamation. Before, simple majority sufficed.
Periodic re-approval. Once approved by Parliament, the proclamation remains in force for six months only. Continued operation requires re-approval every six months by the same special majority. The 42nd Amendment had extended this period to one year; the 44th reverted to six months.
Right to life and liberty protected. Article 359 was amended to provide that the rights under Articles 20 and 21 cannot be suspended during an emergency. Articles 20 (protection against retrospective punishment, double jeopardy, self-incrimination) and 21 (right to life and personal liberty) now operate even during emergency. The Janata government wanted to prevent a recurrence of ADM Jabalpur v. Shivkant Shukla (1976), in which the Supreme Court had held that even Article 21 could be suspended during the Emergency.
The 2019 Prelims — what the 44th Amendment did NOT do
The 2019 Prelims tested two related but separate constitutional amendments — and the trap was about what the 44th Amendment did not do.
- The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
- The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of judiciary.
The 2019 trap was the confusion between the 39th and 44th Amendments. The 39th Amendment (August 1975) added Article 329A specifically to immunise the elections of the Prime Minister, the Speaker, and certain other officeholders from judicial review — a politically motivated change made to protect Indira Gandhi after the Allahabad High Court had set aside her election in Indira Nehru Gandhi v. Raj Narain. The 44th Amendment removed Article 329A, reversing this protection. The 2019 question reversed the action — attributing the addition (which was the 39th) to the 44th.
Preventive detention safeguards
The 44th Amendment also introduced safeguards in the area of preventive detention, though these were never notified into force. Article 22 was modified in three ways:
Maximum detention period without advisory board reduced from 3 to 2 months. Beyond two months of preventive detention, an advisory board would have to be consulted. This shortens the period during which a person can be held in preventive detention without independent review.
Advisory board to be chaired by a serving High Court judge. The composition of the advisory board was changed — chairman must be a serving High Court judge; other members must be serving or retired High Court judges. The board is to be constituted on the recommendation of the Chief Justice of the appropriate High Court. This was designed to make the board independent of the executive.
Maximum period of detention to be set by Parliament. No person could be kept in preventive detention beyond a maximum period prescribed by parliamentary law.
These changes were not notified into force after the Janata government fell in 1979. The Indira Gandhi government, which returned to power in 1980, never notified them. The original Article 22 continues to apply. This is a notable example of a constitutional amendment that has been enacted but never operationalised.
Other 44th Amendment changes
The 44th Amendment made several other changes worth knowing.
Article 38(2) added. A new clause was added to Article 38 directing the State to "strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities." This was a Janata-era addition to the welfare-state framework.
Article 71 amended. Disputes regarding the election of the President and the Vice-President are to be inquired into and decided by the Supreme Court. The 39th Amendment had moved this to Parliament; the 44th restored it to the Supreme Court.
Article 134A inserted. Provided that High Courts shall consider whether to grant a certificate of appeal to the Supreme Court immediately after a judgment is delivered.
Article 257A omitted. The 42nd Amendment had inserted Article 257A allowing the Centre to deploy armed forces in States. The 44th Amendment removed this.
Right to compensation for minority educational institutions. A new clause was added to Article 30 (rights of minorities to establish educational institutions) to require compensation when such property is acquired by the State. This partial restoration of property protection was specifically for minority institutions.
What the 44th Amendment achieved — and didn't
The 44th Amendment achieved much of what the Janata government had promised, but not everything.
Achieved. Right to property removed from Part III (Article 300A). Emergency declaration grounds narrowed (armed rebellion replacing internal disturbance). Cabinet recommendation in writing required. Special majority for emergency approval. Six-month re-approval cycle. Articles 20 and 21 protected during emergency. Right to compensation for minority institutions. Article 38(2) on inequalities. Several Article 22 amendments (though never notified).
Not achieved. The proposals to define "secular" and "socialist," to remove Articles 323A and 323B (tribunals), to retransfer Education and Forests from Concurrent to State List, and to introduce a referendum requirement for amendments affecting basic features were all blocked in the Rajya Sabha by the Congress majority.
The 44th Amendment is therefore an incomplete reversal of the 42nd. The constitutional balance after 1978 reflects what the Janata could push through both Houses, not what it ideally wanted. Some 42nd Amendment changes survived — the Preamble keywords, the Fundamental Duties chapter, the new Directive Principles, the tribunal articles, the Education-and-Forests-on-Concurrent-List, the binding ministerial advice for the President. The Janata's ambition was bigger than the rollback that actually happened.
What students must hold
One final reflection on the 44th Amendment's long-term significance. The amendment is sometimes underappreciated because it operated as a corrective rather than as an original constitutional move. But its work was substantial — it preserved the constitutional protection of life and liberty during emergency, narrowed the grounds for emergency declaration, and removed the right to property from the most-litigated zone of the Constitution. The Indian polity's recovery from the Emergency was, in significant part, a constitutional recovery — and the 44th Amendment was its primary instrument.
Six points carry the weight. One, the 44th Amendment was passed in 1978 by the Janata government to undo the worst of the 42nd Amendment.
Two, the right to property was removed from Part III. Article 19(1)(f) deleted; Article 31 omitted; Article 300A inserted in Part XII. The right is now a constitutional/legal right, not a Fundamental Right. It is available to any person (including non-citizens), not just citizens (2021 PYQ).
Three, emergency safeguards added — "armed rebellion" replacing "internal disturbance"; Cabinet written recommendation; special majority approval; six-month re-approval; Articles 20 and 21 protected during emergency.
Four, the 44th Amendment did NOT introduce any Article placing the PM's election beyond judicial review (2019 PYQ statement 1 wrong) — that was the 39th Amendment, and the 44th in fact removed it.
Five, Article 22 changes on preventive detention were enacted but never notified into force. The original Article 22 continues to apply.
Six, what was NOT rolled back — the Preamble keywords, Fundamental Duties, new Directive Principles, tribunal articles, Article 74 amendment. The Rajya Sabha's Congress majority blocked the more ambitious rollback. For more, see the dedicated 42nd Amendment article.