- Congress Government in 1976 & Morarji lead Janta Govt in 1978 constitutionally weakened Institution of President of INDIA
- 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 ?
DAYA SAGAR
The institution of President was not incorporated as formal head of the State as many people may be professing / inferring these day but has been as a very dedicated in superior status & authority institution which very explicitly reflects from the Articles like Art-52 ( There shall be a President ), Art-53{ (1) The executive power of the Union … Art 53 (2) ( the supreme command of the Defence Forces of the Union shall be vested in the President, Art- 54( The President shall be elected by the members, of an electoral college consisting of- members of Lok Sabha, members of Rajay Sabha and the members of Legislative Assemblies of States/ UTs), Art-60 (oath as protector, preserver and defender of constitution), Art-61 (impeachment of President ), Art-75 ( appointment of Prime Minister) Art-77 ( Conduct of Bussiness of Government ) and Art-79 ( There shall be a Parliament t for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.). Some may still argue that since president is elected by the MPs and MLAs he will be oblised to the Council of Ministers ( the ruling party in majority in Parliament so will go to their choice and does not matter whether amendended Art-74 comes in the way of President executing oath taken as per Art-60. But these people forget that there can be no any achievement in Public Life / Stature than the President of county like India hence it can be still expected that individual after reaching that stature may not fall in levels to some personal obligations at the cost of the future of his nation/ people and exercise his/ her authority if needed in terms of Art 74 to free will. It is not out of place to assert here that constitution also firmly lays the provision for installation of elected government with in a limited time.
As per my information the amendments to Art-74 have not so for come for review before the Supreme Court of India for having diluted the authority of President of India for protecting , preserving and defending the constitution of India keeping view that Kesavananda Bharti case 13 Judge Bench Constitution Judgement ( 1973 ) professed and held that although all parts of constitution including Fundamental Rights were not outside Parliament’s amending power, the “basic structure” of the Constitution cannot be distorted even by a constitutional amendment. Apex court can strike down any amendment made by Parliament that is against / in conflict with the ” basic structure” of Constitution which has also been the spirit ( Basic Structure Doctrine ) of the judgement in Minerva mills case (1980) where Section-4 added in Art-368 by a section of 42nd Constitution Amendment Act of 1976 was held in valid / quashed by Supreme Court of India {( <Section- 4″No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground”} was held not valid which prevented judicial review of the actions of the Parliament and was so held as against basic structure of constitution [Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 55 (w.e.f. 3-1-1977). This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others AIR 1980 ).
There has been discussion / debate in the Winter Session of Parliament where both the opposition & in power members have expressed their ‘sincere’ intentions / commitments of safe guard the Constitution that was adopted on 26 Nov 1949. Why not they either undo the amendments made to Art-74 through parliamentary process or any one approaches the Apex court for quashing amendments pleading the amendments being against the ‘basic structure of COI’ so as to restore the ‘independent’ authority to protect, preserve and the defend the Constitution in the Institution of President which has already been provided by the framers of Constitution of India ( COI) in the constitution itself and the President is on Oath in terms of Art-60 but amended Art-74 puts checks on the President to go by the oath independently .
Otherwise also there is case for the Apex court even taking suo moto notice of the unconstitutional amendments made to Art-74 of the COI { 1.by the Constitution (Forty-second Amendment) Act, 1976, s.13, for cl. (1) (w.e.f. 3-1-1977). 2. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 11 (w.e.f. 20-6-1979)} which have throttled the authority of the Institution of President of India to protect , preserve and defend the Constitution of India.
(The writer is a Sr Journalist & analyst of J&K Affairs)