Framers of COI were very particular for protecting-preserving-defending soul spirits of Constitution

Some may profess that Article 368 of COI gives unchecked amending power to Parliament, but it is not so!

• Should not those who call for protection of COI unitedly work for undoing amendments made in 1976 & 1978 to Art -74 ?
• Congress Government in 1976 & Morarji lead Janta Govt in 1978 constitutionally weakened Institution of President of INDIA
• Will Block NDA and Block INDIA unitedly work to bring Art-74 back to its original form?

DAYA SAGAR

According to the Constitution of India, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions but the constitution can be amended by Parliament only and that too within the jurisdiction of granted limits subject to judicial review. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws/acts of Parliament ( including Acts amending the Constitution making use of the constituent power vested in Art-368 of the Constitution.. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra virus. Notwithstanding review jurisdictions, those who drafted the constitution through the Constituent Assembly surely wanted the Constitution to be an adaptable citizen friendly democratic socialist document but they were very much conscious of their limitations in time & text at the time of drafting the constitution which on date was the most exhaustive , comprehensive and very broad spectrum written document focusing on a very heterogeneous geographical physical ,social, economic, indigenous and cultural requirements & aspirations of their people .Those who had in hand the task of drafting the constitution had no any previous experience of having lived in such like system of governance (Independent Democratic Socialist Republic with ‘parliamentary’ system of governance ) and since they also did not want to give their generations a rigid framework for governance so they had also kept a provision in the form of Art 368 for amendments to be made by Parliament in a way by like using the constituent power’ but not beyond the principles enshrined in the document by the Constituent Assembly on 26 Nov 1949 and for the purpose the Institution of President was laid in Art-74 to protect, preserve and defend the Constituion under oath taken in terms of At-60 before entering the office & institution of Supreme Court ( Art 124 ) for review of the . actions of the government / parliament to remain with the provisions of laid principles / Acts of constitution.

Article 368 has been used by Parliament for amending different articles of COI at number of occasions and so far 105 Constitution Amendment Acts have been paased by the Parliament even related to the chapter on the fundamental rights of Indian citizens. Some amendments had been challenged before supreme court including ,related to fundamental rights as early as in 1951. After independence, several laws were enacted with the objective of reforms like land ownerships / special supports so socialy& economically weaker people & areas keeping in view socialistic spirits of the Constitution/ Article 39 (b) (c) of the Directive Principles of State Policy/ prevention of concentration of wealth in the hands of a few but citizens like the owners of properties/Zamindaars / large land owners affected by such laws went to courts under protections provided in constitution where in some cases the land reforms laws were struck down by courts naming the laws as violating the fundamental right to property, Upset by unfavorable judgments Parliament amended the constitution using Art 368 and placed such laws even in the Ninth Schedule of the Constitution through amendments like the First Constitution Amendment Act of 1951 and Fourth Amendment Act of 1954 respectively making them free from the scope of judicial review.
In Sankari Prasad Singh Deo v. Union of India 1952 and Sajjan Singh v. Rajasthan 1955, the Supreme upheld that Parliament can amend any part of the Constitution including fundamental rights. But the dissent of two dissenting judges in Sajjan Singh v.Rajasthan case raised the questions about dangers of the fundamental rights at some occasion becoming of play way of the majority party/ group in Parliament..Not only that In 1967 an eleven-judge bench of the Supreme Court delivering its 6:5 majority judgement in the Golaknath v. State of Punjab case Chief Justice Subba Rao put forth the position that Article 368, that contained provisions related to the amendment of the Constitution ,merely laid down the amending procedure and Article 368 did not confer upon Parliament the power to amend the Constitution and the amending power (constituent power ) of Parliament arose from other provisions as contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2). The majority judgement invoked the concept of implied limitations on Parliament’s power to amend the Constitution. This view held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed this limitation on the powers of Parliament. In a way the apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
To be continued
(The writer is a Sr Journalist &
analyst of J&K Affairs)