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THE CONSTITUTION
(FORTY-FOURTH AMENDMENT)
Statement of Objects and
Reasons appended to the
Constitution
(Forty-fifth Amendment) Bill, 1978 (Bill
No. 88 of 1978) which was
enacted as THE
CONSTITUTION (Forty-fourth Amendment) Act, 1978
STATEMENT OF OBJECTS AND REASONS
Recents experience
has shown that the fundamental rights, including
those of life
and liberty, granted to citizens by the Constitution are
capable
of being taken away by a transient
majority. It is,
therefore,
necessary to provide adequate safeguards
against the
recurrence of such a contingency in the
future and to ensure to the
people themselves
an effective voice in determining the form
of
government under which they are to live. This is one of
the primary
objects of this Bill.
2. It is, therefore,
proposed to provide that certain changes in the
Constitution
which would have the effect of impairing its secular
or
democratic character, abridging or taking
away fundamental rights
prejudicing or impeding free
and fair elections on the basis of adult
suffrage and
compromising the independence of judiciary, can be
made
only if they are approved by the people of India
by a majority of
votes at a referendum in
which at least fifty-one per cent. of the
electorate
participate. Article 368 is being amended to ensure this.
3. In view of the
special position sought to be given to fundamental
rights,
the right to property, which has been the occasion for
more
than one amendment of the
Constitution, would cease to be
a
fundamental right and become only a legal right. Necessary
amendments
for this purpose are being made to article 19 and
article 31 is being
deleted. It would, however, be ensured
that the removal of property
from the list of
fundamental rights would not affect the right
of
minorities to establish and administer educational
institutions of
their choice.
4. Similarly,
the right of persons holding land
for personal
cultivation and within the ceiling limit
to receive compensation at
the market value would not be
affected.
5. Property, while ceasing
to be a fundamental right, would, however,
be given express
recognition as a legal right, provision being made
that
no person shall be deprived of his property save in
accordance
with law.
6. A
Proclamation of Emergency under article 352 has virtually
the
effect of amending the Constitution by converting it for the
duration
into that of a Unitary State and enabling the rights of the
citizen to
move the courts for the enforcement of fundamental
rights---including
the right to life and liberty---to be
suspended. Adequate safeguards
are, therefore,
necessary to ensure that this power is
properly
exercised and is not abused. It
is, therefore, proposed that a
Proclamation
of Emergency can be issued only when the security
of
India or any part of its territory is threatened by war
or external
aggression or by armed rebellion.
Internal disturbance not amounting
to armed rebellion
would not be a ground for the
issue of a
Proclamation.
7. Further, in
order to ensure that a Proclamation is issued only
after
due consideration, it is sought to be provided that an
Emergency
can be proclaimed only on the basis of written advice
tendered to the
President by the Cabinet. In addition, as a
Proclamation of Emergency
virtually has the effect of
amending the Constitution, it is being
provided
that the Proclamation would have to be approved by the
two
Houses of Parliament by the same majority which is necessary
to amend
the Constitution and such approval would have to
be given within a
period of one month. Any such
Proclamation would be in force only for
a period of
six months and can be continued
only by further
resolutions passed by the same
majority. The Proclamation would also
cease to be in
operation if a resolution disapproving the continuance
of the
Proclamation is passed by Lok Sabha. Ten per cent. or more
of
the Members of Lok Sabha can
requisition a special meeting for
considering
a resolution for disapproving the Proclamation.
8. As a further check
against the misuse of the Emergency provisions
and to put the right to
life and liberty on a secure footing, it would
be provided that
the power to suspend the right to move the court for
the
enforcement of a fundamental right cannot be exercised in respect
of
the fundamental right to life and liberty. The right to liberty
is
further strengthened by the provision that
a law for preventive
detention cannot authorise, in
any case, detention for a longer period
than two months, unless
an Advisory Board has reported that there is
sufficient cause for
such detention. An additional safeguard would be
provided
by the requirement that the Chairman of an Advisory
Board
shall be a serving Judge of the appropriate High
Court and that the
Board shall be constituted in accordance
with the recommendations of
the Chief Justice of that High
Court.
9. A special
provision is being made guaranteeing the right of the
media
to report freely and without censorship the
proceedings in
Parliament and the State Legislatures.
The provision with regard to
the breakdown of the
constitutional machinery in the States is being
amended so
as to provide that a Proclamation issued under article 356
would
be in force only for a period of six months
in the first
instance and that it cannot exceed one year
ordinarily. However, if a
Proclamation of Emergency is in
operation and the Election Commission
certifies that the
extension of the President's rule beyond a period
of
one year is necessary on account of
difficulties in holding
elections to the
Legislative Assembly of the State concerned,
the
period of operation of the Proclamation can be
extended beyond one
year. This is subject
to the existing limit of three years. These
changes would
ensure that democratic rule is restored to a State after
the minimum
period which will be necessary for holding elections.
10. With a view to
avoiding delays, it is proposed to amend articles
132, 133 and
134 and insert a new article 134A to provide that a High
Court
should consider the question of granting a
certificate for
appeal to Supreme Court
immediately after the delivery of
the
judgment, decree, final order or sentence concerned on the basis of
an
oral application by a party or, if the High Court deems fit so
to do,
on its own motion. Cases of special leave to appeal
by Supreme Court
will be left to be regulated exclusively by article
136.
11. The other amendments
proposed in the Bill are mainly for removing
or correcting
the distortions which came into the Constitution
by
reason of amendments enacted during
the period of the
Internal
Emergency.
12. The
Bill seeks to achieve the above objects. The
notes on
clauses explain in detail the various provisions of the
Bill.
NEW DELHI;
SHANTI BHUSHAN.
The 9th May,
1978.
THE CONSTITUTION (FORTY-FOURTH
AMENDMENT)
ACT,
1978
-----------
ARRANGEMENT OF
SECTIONS
-------------
SECTIONS
1. Short title and
commencement.
2. Amendment of article 19.
3. Amendment of article
22.
4. Amendment of article 30.
5. Omission of sub-heading after
article 30.
6. Omission of article 31.
7. Amendment of article
31A.
8. Amendment of article 31C.
9. Amendment of article 38.
10.
Substitution of new article for article 71.
11. Amendment of article
74.
12. Amendment of article 77.
13. Amendment of article 83.
14.
Substitution of new article for article 103.
15. Amendment of article
105.
16. Amendment of article 123.
17. Amendment of article
132.
18. Amendment of article 133.
19. Amendment of article
134.
20. Insertion of new article 134A.
21. Amendment of article
139A.
22. Amendment of article 150.
23. Amendment of article
166.
24. Amendment of article 172.
25. Substitution of new article
for article 192.
26. Amendment of article 194.
27. Amendment of
article 213.
28. Amendment of article 217.
29. Amendment of article
225.
30. Amendment of article 226.
31. Amendment of article
227.
32. Amendment of article 239B.
33. Omission of article
257A.
34. Insertion of new Chapter IV in Part XII.
35. Amendment of
article 329.
36. Omission of article 329A.
37. Amendment of article
352.
38. Amendment of article 356.
39. Amendment of article
358.
40. Amendment of article 359.
41. Amendment of article
360.
42. Insertion of new article 361A.
43. Amendment of article
371F.
44. Amendment of the Ninth Schedule.
45. Amendment of THE
CONSTITUTION (Forty-second Amendment) Act, 1976.
THE CONSTITUTION
(FORTY-FOURTH AMENDMENT) ACT, 1978
[30th April, 1979.]
An Act
further to amend the Constitution of India.
BE it enacted by Parliament
in the Twenty-ninth Year of the Republic
of India as
follows:-
1. Short
title and commencement.- (1) This Act may be called
the
Constitution (Forty-fourth Amendment) Act, 1978.
(2) It shall come
into force on such date as the Central Government
may,
by notification in the Official Gazette, appoint and
different
dates may be appointed for different provisions of this
Act.
2. Amendment of article
19.- In article 19 of the Constitution,-
(a) in clause (1),-
(i) in sub-clause (e), the word
"and" shall be inserted at the end;
(ii) sub-clause (f) shall be
omitted;
(b) in clause (5),
for the words, brackets and letters "sub-clauses
(d),
(e) and (f)", the words, brackets and letters "sub-clauses
(d)
and (e)" shall be substituted.
3. Amendment of article
22.- In article 22 of the Constitution,-
(a) for clause
(4), the following clause shall be
substituted,
namely:-
`(4) No law providing for
preventive detention shall authorise the
detention of
a person for a longer period than two months unless
an
Advisory Board constituted in accordance with the
recommendations of
the Chief Justice of the
appropriate High Court has reported before
the expiration
of the said period of two months that there is in its
opinion
sufficient cause for such detention:
Provided that an
Advisory Board shall consist of a Chairman and not
less than two
other members, and the Chairman shall be a serving Judge
of the
appropriate High Court and the other members shall be serving
or
retired Judges of any High Court:
Provided further
that nothing in this clause shall authorise
the
detention of any person beyond the maximum period prescribed
by any
law made by Parliament under sub-clause (a) of clause
(7).
Explanation.-In this clause,
"appropriate High Court" means,-
(i) in the case of the
detention of a person in pursuance of an order
of detention
made by the Government of India or an
officer or
authority subordinate to that Government, the High
Court for the Union
territory of Delhi;
(ii) in the case of the detention
of a person in pursuance of an order
of detention made by the
Government of any State (other than a Union
territory), the High
Court for that State; and
(iii) in the
case of the detention of a person in pursuance of
an
order of detention made by the administrator of a Union
territory or
an officer or authority subordinate to such
administrator, such High
Court as may be specified by
or under any law made by Parliament in
this behalf.';
(b) in clause (7),-
(i) sub-clause (a) shall be
omitted;
(ii) sub-clause (b) shall be
re-lettered as sub-clause (a); and
(iii) sub-clause (c) shall be
re-lettered as sub-clause (b) and in the
sub-clause as
so re-lettered, for the words, brackets, letter
and
figure "sub-clause (a) of clause (4)", the
word,brackets and figure
"clause (4)" shall be
substituted.
4. Amendment of
article 30.-In article 30 of the Constitution, after
clause (1), the
following clause shall be inserted, namely:-
"(1A) In making any
law providing for the compulsory acquisition of
any
property of an educational institution
established and
administered by a minority,
referred to in clause (1), the State shall
ensure that the amount
fixed by or determined under such law for the
acquisition of such
property is such as would not restrict or abrogate
the right guaranteed
under that clause.".
5. Omission of
sub-heading after article 30.- The sub-heading "Right
to
Property" occurring after article 30 of the Constitution shall
be
omitted.
6. Omission of
article 31.- Article 31 of the Constitution shall
be
omitted.
7. Amendment of
article 31A.-In article 31A of the Constitution, in
clause
(1), for the words and figures "article 14, article
19 or
article 31", the words and figures "article 14 or
article 19" shall be
substituted.
8. Amendment of
article 31C.-In article 31C of the Constitution, for
the
words and figures "article 14, article 19 or article
31", the
words and figures "article 14 or article 19" shall be
substituted.
9. Amendment of
article 38.-Article 38 of the Constitution shall be
renumbered
as clause (1) thereof and after
the clause as so
renumbered, the following clause
shall be inserted, namely:-
"(2) The
State shall, in particular, strive
to minimise the
inequalities in income, and
endeavour to eliminate inequalities in
status, facilities
and opportunities, not only amongst individuals but
also amongst
groups of people residing in different areas or engaged
in
different vocations.".
10. Substitution of new
article for article 71.-For article 71 of the
Constitution, the
following article shall be substituted, namely:-
"71. Matters
relating to, or connected with, the election
of a
President or Vice-President.-(1) All doubts and
disputes arising out
of or in connection with the election of a
President or Vice-President
shall be inquired into and decided by the
Supreme Court whose decision
shall be final.
(2) If the
election of a person as President or Vice-President
is
declared void by the Supreme Court, acts done by him in
the exercise
and performance of the powers and duties of the
office of President or
Vice-President, as the case
may be, on or before the date of the
decision
of the Supreme Court shall not be invalidated by reason
of
that declaration.
(3) Subject to the
provisions of this Constitution, Parliament may by
law regulate
any matter relating to or connected with the election of
a President or
Vice-President.
(4) The election of a
person as President or Vice-President shall not
be called
in question on the ground of the existence of any
vacancy
for whatever reason among the
members of the electoral college
electing
him.".
11. Amendment
of article 74.-In article 74 of the Constitution, in
clause
(1), the following proviso shall be inserted at
the end,
namely:-
"Provided that the
President may require the Council of Ministers
to
reconsider such advice, either
generally or otherwise, and
the
President shall act in accordance with the advice tendered
after such
reconsideration.".
12. Amendment
of article 77.-In article 77 of the
Constitution,
clause (4) shall be omitted.
13. Amendment of
article 83.-(1) In article 83 of the Constitution,
in clause (2),
for the words "six years" in both the places where they
occur, the
words "five years" shall be substituted.
(2) The amendments made by
sub-section (1) to clause (2) of article 83
shall apply also to
the House of the People in existence on the date
of coming into
force of this section without prejudice to the power of
Parliament with
respect to the extension of the duration of that House
under the
proviso to that clause.
14. Substitution of
new article for article 103.- For article 103 of
the Constitution, the
following article shall be substituted, namely:-
"103. Decision on
questions as to disqualifications of members.-(1)
If
any question arises as to whether a member of either
House of
Parliament has become
subject to any of the
disqualifications
mentioned in clause (1) of article 102, the question
shall be referred
for the decision of the President and his decision
shall be final.
(2) Before giving any
decision on any such question, the President
shall
obtain the opinion of the Election Commission and shall
act
according to such opinion.".
15. Amendment of
article 105.-In article 105 of the Constitution, in
clause (3),
for the words "shall be those of the House of Commons
of
the Parliament of the United
Kingdom, and of its members
and
committees, at the commencement of this
Constitution", the words,
figures and brackets
"shall be those of that House and of its members
and committees
immediately before the coming into force of section 15
of
the Constitution (Forty-fourth Amendment) Act, 1978"
shall be
substituted.
16. Amendment
of article 123.-In article 123 of the Constitution,
clause
(4) shall be omitted.
17. Amendment of article
132.-In article 132 of the Constitution,-
(a) in clause (1),
for the words "if the High Court certifies", the
words,
figures and letter "if the High Court certifies under
article
134A" shall be substituted;
(b) clause (2) shall be
omitted;
(c) in clause (3), the words "or
such leave is granted," and the words
"and, with the leave of the
Supreme Court, on any other ground" shall
be omitted.
18. Amendment of
article 133.-In article 133 of the Constitution, in
clause (1),
for the words "if the High Court certifies-", the
words,
figures and letter "if the High Court certifies under
article 134A-"
shall be substituted.
19. Amendment of
article 134.-In article 134 of the Constitution, in
sub-clause
(c) of clause (1), for the word "certifies", the
words,
figures and letter "certifies
under article 134A" shall
be
substituted.
20. Insertion
of new article 134A.- After article 134
of the
Constitution, the following article shall be inserted,
namely:-
"134A.
Certificate for appeal to the Supreme Court.-
Every High
Court, passing or making a judgment, decree, final
order, or sentence,
referred to in clause (1) of article 132 or clause
(1) of article 133,
or clause (1) of article 134,-
(a) may, if it deems fit so to
do, on its own motion; and
(b) shall, if
an oral application is made, by or on behalf of
the
party aggrieved, immediately after the passing
or making of such
judgment, decree, final order or
sentence,
determine, as
soon as may be after such passing or
making, the
question whether a certificate of the nature referred
to in clause (1)
of article 132, or clause (1) of article
133 or, as the case may be
sub-clause (c) of clause (1) of
article 134, may be given in respect
of that case.".
21. Amendment of
article 139A.-In article 139A of the Constitution,
for clause
(1), the following clause shall be substituted, namely:-
"(1) Where
cases involving the same or
substantially the same
questions of law are pending
before the Supreme Court and one or more
High Courts or before two or
more High Courts and the Supreme Court is
satisfied on
its own motion or on an application
made by the
Attorney-General of India or by a
party to any such case that such
questions are substantial
questions of general importance, the Supreme
Court may withdraw
the case or cases pending before the High Court or
the High Courts and
dispose of all the cases itself:
Provided that
the Supreme Court may after determining
the said
questions of law return any case so withdrawn
together with a copy of
its judgment on such questions to the
High Court from which the case
has been
withdrawn, and the High Court shall on receipt
thereof,
proceed to dispose of the case in conformity with such
judgment.".
22. Amendment of article
150.-In article 150 of the Constitution, for
the words
"after consultation with", the words "on the advice
of"
shall be substituted.
23. Amendment
of article 166.-In article 166 of the Constitution,
clause
(4) shall be omitted.
24. Amendment of article
172.-(1) In article 172 of the Constitution,
in clause (1), for the
words "six years" in both the places where they
occur, the words "five
years" shall be substituted.
(2) The amendments
made by sub-section (1) to clause (1) of article
172-
(a) shall not apply
to any existing State Legislative Assembly the
period
of existence whereof as computed from the date appointed
for
its first meeting to the date of coming into force
of this section
(both dates inclusive) is more
than four years and eight months but
every such Assembly shall,
unless sooner dissolved, stand dissolved on
the expiry of-
(i) a period of four months from
the date of coming into force of this
section; or
(ii) a period
of six years from the date appointed for its
first
meeting,
whichever period expires
earlier;
(b) shall apply to
every other existing State Legislative
Assembly
without prejudice to the power of Parliament
with respect to the
extension of duration of
such Assembly under the proviso to the said
clause
(1).
Explanation I.-In its
application to the Legislative Assembly of the
State
of Sikkim referred to in clause (b) of article
371F of the
Constitution, this sub-section shall have
effect as if-
(i) the date appointed for the
first meeting of that Assembly were the
26th day of April, 1975;
and
(ii) the references in
clause (a) of this sub-section to "four years
and eight
months" and "six years" were references to "three years and
eight
months" and "five years" respectively.
Explanation II.-In
this sub-section, "existing State
Legislative
Assembly" means the Legislative Assembly of a
State in existence on
the date of coming into force of this
section.
25. Substitution of
new article for article 192.-For article 192 of
the Constitution,
the following article shall be substituted, namely:-
"192. Decision on
questions as to disqualifications of members.-(1)
If
any question arises as to whether a member of a
House of the
Legislature of
a State has become subject to
any of the
disqualifications
mentioned in clause (1) of article 191, the
ques-
tion shall be referred for the decision
of the Governor and his
decision shall be
final.
(2) Before
giving any decision on any such question, the
Governor
shall obtain the opinion of the Election
Commission and shall act
according to such
opinion.".
26. Amendment of
article 194.-In article 194 of the Constitution, in
clause (3),
for the words "shall be those of the House of Commons
of
the Parliament of the United
Kingdom, and of its members
and
committees, at the commencement of this
Constitution", the words,
figures and brackets
"shall be those of that House and of its members
and committees
immediately before the coming into force of section 26
of
the Constitution (Forty-fourth Amendment) Act, 1978"
shall be
substituted.
27. Amendment
of article 213.-In article 213 of the Constitution,
clause
(4) shall be omitted.
28. Amendment of
article 217.-In article 217 of the Constitution, in
clause
(2),-
(a) in sub-clause
(b), the word "or" occurring at the end shall
be
omitted;
(b) sub-clause (c) shall be
omitted;
(c) in the Explanation, clause
(a) shall be re-lettered as clause (aa)
and before
clause (aa) as so re-lettered, the following
shall be
inserted, namely:-
"(a) in computing the
period during which a person has held judicial
office in
the territory of India, there shall be included any period,
after
he has held any judicial office, during which the person
has
been an advocate of a High Court or has held the office of a member
of
a tribunal or any post, under the Union or a State, requiring
special
knowledge of law;".
29. Amendment of article
225.-In article 225 of the Constitution, the
following proviso shall be
inserted at the end, namely:-
"Provided that
any restriction to which the exercise of
original
jurisdiction by any of the High Courts with
respect to any matter
concerning the revenue
or concerning any act ordered or done in the
collection
thereof was subject immediately before the commencement of
this
Constitution shall no longer apply to the exercise
of such
jurisdiction.".
30. Amendment of article
226.-In article 226 of the Constitution,-
(a) in clause (1), for the
portion beginning with the words "writs in
the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, or
any of them" and ending with the words "such illegality
has
resulted in substantial failure of justice.", the following shall
be
substituted, namely:-
"writs in the
nature of habeas corpus, mandamus, prohibition,
quo
warranto and certiorari, or any of them, for the enforcement of any
of
the rights conferred by Part III and for any other
purpose.";
(b) for clauses (3),
(4), (5) and (6), the following clause shall
be substituted,
namely:-
"(3) Where any party
against whom an interim order, whether by way of
injunction or
stay or in any other manner, is made on, or in any
way
proceedings relating to, a petition under clause (1),
without-
(a) furnishing to such party
copies of such petition and all documents
in support of the plea for
such interim order; and
(b) giving such
party an opportunity of being
heard,
makes an application to the
High Court for the vacation of such order
and furnishes a copy of
such application to the party in whose favour
such order has been
made or the counsel of such party, the High Court
shall dispose of the
application within a period of two weeks from the
date on
which it is received or from the date on which the copy
of
such application is so furnished, whichever is later,
or where the
High Court is closed on the last day of that
period, before the expiry
of the next day afterwards on
which the High Court is open; and if
the application is not
so disposed of, the interim order shall, on the
expiry of that
period, or, as the case may be, the expiry of the said
next day, stand
vacated.";
(c) clause (7) shall be
renumbered as clause (4).
31. Amendment of article
227.- In article 227 of the Constitution,-
(a) for clause
(1), the following clause shall be
substituted,
namely:-
"(1) Every High Court shall
have superintendence over all courts and
tribunals throughout the
territories in relation to which it
exercises
jurisdiction.";
(b) clause (5) shall be
omitted.
32. Amendment of
article 239B.-In article 239B of the Constitution,
clause (4)
shall be omitted.
33. Omission of
article 257A.-Article 257A of the Constitution shall
be
omitted.
34. Insertion
of new Chapter IV in Part XII.-In Part XII of
the
Constitution, after Chapter III, the
following Chapter shall be
inserted,
namely:-
"CHAPTER IV.-RIGHT TO PROPERTY
300A. Persons
not to be deprived of property save by authority
of
law.-No person shall be deprived of his property save by
authority of
law.".
35. Amendment of
article 329.-In article 329 of the Constitution, in
the opening
portion, the words, figures and letter "but subject to the
provisions
of article 329A" shall be omitted.
36. Omission of
article 329A.-Article 329A of the Constitution shall
be
omitted.
37. Amendment of article
352.- In article 352 of the Constitution,-
(a) in clause (1),-
(i) for the words "internal
disturbance", the words "armed rebellion"
shall be
substituted;
(ii) the following Explanation
shall be inserted at the end, namely:-
"Explanation.-A
Proclamation of Emergency declaring that the security
of India or
any part of the territory thereof is threatened by war or
by
external aggression or by armed rebellion may be made before
the
actual occurrence of war or of any such aggression or
rebellion, if
the President is satisfied that there is imminent
danger thereof.";
(b) for clauses
(2), (2A) and (3), the following clauses shall
be
substituted, namely:-
"(2) A Proclamation issued
under clause (1) may be varied or revoked
by a subsequent
Proclamation.
(3) The President shall not issue
a Proclamation under clause (1) or a
Proclamation varying
such Proclamation unless the decision of
the
Union Cabinet (that is to say, the Council consisting
of the Prime
Minister and other Ministers of Cabinet
rank appointed under article
75) that such a
Proclamation may be issued has been communicated to
him in
writing.
(4) Every Proclamation issued
under this article shall be laid before
each House of Parliament
and shall, except where it is a Proclamation
revoking a previous
Proclamation, cease to operate at the expiration
of one
month unless before the expiration of that period it has
been
approved by resolutions of both Houses of Parliament:
Provided that
if any such Proclamation (not being a
Proclamation
revoking a previous Proclamation) is issued at a
time when the House
of the People has been dissolved, or
the dissolution of the House of
the People takes place
during the period of one month referred to in
this clause,
and if a resolution approving the Proclamation has
been
passed by the Council of States, but no resolution
with respect to
such Proclamation has been
passed by the House of the People before
the expiration of that
period, the Proclamation shall cease to operate
at the expiration
of thirty days from the date on which the House of
the
People first sits after its reconstitution, unless
before the
expiration of the said period of thirty
days a resolution approving
the Proclamation has been also passed
by the House of the People.
(5) A Proclamation so approved
shall, unless revoked, cease to operate
on the
expiration of a period of six months from the date of
the
passing of the second of the resolutions
approving the Proclamation
under clause (4):
Provided that
if and so often as a
resolution approving the
continuance in force of such
a Proclamation is passed by both Houses
of Parliament
the Proclamation shall, unless revoked, continue
in
force for a further period of six months from the date
on which it
would otherwise have ceased to operate under
this clause:
Provided further that
if the dissolution of the House of the People
takes
place during any such period of six months and a
resolution
approving the continuance in force of
such Proclamation has been
passed by the
Council of States but no resolution with respect to the
continuance in
force of such Proclamation has been passed by the House
of the
People during the said period, the Proclamation shall cease
to
operate at the expiration of thirty days from the date
on which the
House of the People first sits after its
reconstitution unless before
the expiration of
the said period of thirty days, a
resolution
approving the continuance in force of the Proclamation
has been also
passed by the House of the People.
(6) For the
purposes of clauses (4) and (5), a resolution may
be
passed by either House of Parliament only by a majority of
the total
membership of that House and by a majority of not less
than two-thirds
of the members of that House present and
voting.
(7) Notwithstanding
anything contained in the foregoing clauses, the
President
shall revoke a Proclamation issued under clause (1) or
a
Proclamation varying such Proclamation if the House
of the People
passes a resolution disapproving, or, as the
case may be, disapproving
the continuance in force of, such
Proclamation.
(8) Where a notice in writing
signed by not less than one-tenth of the
total number of members
of the House of the People has been given, of
their intention to move a
resolution for disapproving, or, as the case
may be, for
disapproving the continuance in force of, a Proclamation
issued
under clause (1) or a Proclamation varying such Proclamation,-
(a) to the Speaker, if the House
is in session; or
(b) to the President, if the
House is not in session,
a special sitting of the House
shall be held within fourteen days from
the date on which such
notice is received by the Speaker, or, as the
case
may be, by the President, for the purpose of considering
such
resolution.";
(c) clause (4) shall be
renumbered as clause (9) and in the clause as
so renumbered, for the
words "internal disturbance" in both the places
where they occur, the
words "armed rebellion" shall be substituted;
(d) clause (5) shall be
omitted.
38. Amendment of article
356.-In article 356 of the Constitution,-
(a) in clause (4),-
(i) for the words, brackets
and figure "one year from the date of the
passing of the
second of the resolutions approving the Proclamation
under clause
(3)", the words "six months from the date of issue of the
Proclamation"
shall be substituted;
(ii) in the first
proviso, for the words "one year", the words "six
months" shall
be substituted;
(iii) in the second
proviso, for the words "one year", the words "six
months" shall be
substituted;
(b) for clause
(5), the following clause shall be
substituted,
namely:-
"(5) Notwithstanding
anything contained in clause (4), a resolution
with
respect to the continuance in force of a Proclamation
approved
under clause (3) for any period beyond the expiration of one
year from
the date of issue of such Proclamation shall not be
passed by either
House of Parliament unless-
(a) a Proclamation of Emergency
is in operation, in the whole of India
or, as the case may be, in
the whole or any part of the State, at the
time of the passing of such
resolution, and
(b) the Election Commission
certifies that the continuance in force of
the Proclamation approved
under clause (3) during the period specified
in such resolution
is necessary on account of difficulties in holding
general
elections to the Legislative Assembly
of the State
concerned.".
39. Amendment of
article 358.-Article 358 of the Constitution shall
be renumbered
as clause (1) of that article, and-
(a) in clause (1) as so
renumbered,-
(i) in the opening
portion, for the words "while a Proclamation
of
Emergency is in operation", the words
"While a Proclamation of
Emergency
declaring that the security of India or any part of
the
territory thereof is treatened by war or by external
aggression is in
operation" shall be substituted;
(ii) in the
proviso, for the words "where a
Proclamation of
Emergency", the words "where such
Proclamation of Emergency" shall be
substituted;
(b) after clause (1) as so
renumbered, the following clause shall be
inserted,
namely:-
"(2) Nothing in clause (1) shall
apply-
(a) to any law which
does not contain a recital to the effect that
such
law is in relation to the Proclamation of Emergency in operation
when
it is made; or
(b) to any
executive action taken otherwise than
under a law
containing such a recital.".
40. Amendment of article
359.-In article 359 of the Constitution,-
(a) in clauses (1)
and (1A), for the words and figures "the
rights
conferred by Part III", the words, figures and
brackets "the rights
conferred by Part
III (except articles 20 and
21)" shall be
substituted;
(b) after
clause (1A), the following clause shall
be inserted,
namely:-
"(1B) Nothing in clause (1A)
shall apply-
(a) to any law which
does not contain a recital to the effect that
such
law is in relation to the Proclamation of Emergency in operation
when
it is made; or
(b) to any
executive action taken otherwise than under
a law
containing such a recital.".
41. Amendment of article
360.-In article 360 of the Constitution,-
(a) for clause
(2), the following clause shall be
substituted,
namely:-
"(2) A Proclamation issued under
clause (1)-
(a) may be revoked or varied by a
subsequent Proclamation;
(b) shall be laid before each
House of Parliament;
(c) shall cease to
operate at the expiration of two months,
unless
before the expiration of that
period it has been approved
by
resolutions of both Houses of Parliament:
Provided that if any
such Proclamation is issued at a time when the
House of the
People has been dissolved or the dissolution of the House
of the
People takes place during the period of two months referred to
in
sub-clause (c), and if a resolution approving the Proclamation
has
been passed by the Council of States, but no resolution
with respect
to such Proclamation has been passed by the House of
the People before
the expiration of that period, the Proclamation shall
cease to operate
at the expiration of thirty days from the date
on which the House of
the People first sits
after its reconstitution unless before
the
expiration of the said period of thirty days a
resolution approving
the Proclamation has been also passed by the
House of the People.";
(b) clause (5) shall be
omitted.
42. Insertion
of new article 361A.-After article
361 of the
Constitution, the following article shall be
inserted, namely:-
`361A.
Protection of publication of proceedings of Parliament
and
State Legislatures.-(1) No person shall be liable to any
proceedings,
civil or criminal, in any court in respect of
the publication in a
newspaper of a substantially
true report of any proceedings of either
House of Parliament or
the Legislative Assembly, or, as the case may
be,
either House of the Legislature,
of a State, unless the
publication is proved
to have been made with malice:
Provided that nothing in this
clause shall apply to the publication of
any report of the
proceedings of a secret sitting of either House of
Parliament or
the Legislative Assembly, or, as the case may be, either
House of the
Legislature, of a State.
(2) Clause (1) shall apply in
relation to reports or matters broadcast
by means of
wireless telegraphy as part of any programme or
service
provided by means of a broadcasting station as it applies
in relation
to reports or matters published in a newspaper.
Explanation.-In this
article, "newspaper" includes a news
agency
report containing material for publication in a
newspaper.'.
43. Amendment of
article 371F.-In article 371F of the Constitution,
in clause (c),
for the words "six years", the words "five years" shall
be
substituted, and for the words "five years" in both
the places
where they occur, the words "four years" shall be
substituted.
44. Amendment
of the Ninth Schedule.- In the Ninth Schedule to
the
Constitution, entries 87, 92 and 130 shall be omitted.
45. Amendment
of the Constitution (Forty-second Amendment)
Act,
1976.- In the Constitution
(Forty-second Amendment) Act, 1976,
sections 18, 19,
21, 22, 31, 32, 34, 35, 58 and 59 shall be
omitted.
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