- 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
Art 74 of constitution of India ( COI) has been amended two times (1st edition 1949 Art-74 said <“There shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions. (2) The question whether any, and if so what advice was tendered by Ministers to the President shall not be inquired into in any court.”>).
First with a Section of 42ndConatitutionAmendment Act of 1976 and Second vide a Section of 44rth Constitution Amendment Act of 1978 ( The text <” There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”> has been replaced by <” (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: [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. > ) but where under the authority / status of President of India as preserver, protector and defender of constitution in terms Oath taken by President under Art 60 ( Original Art-60 < – “I, A.B., do swear in the name of God that I will faithfully execute the office solemnly affirm of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.” > ) has been very much “diluted” since President after that has to act only as per the advice of Council of Ministers where as in the original article President was not obliged to necessarily go only by the advice of the Council of Ministers but had the capacity to overrule even the parliament in case there were fears of damage to the basic structure of COI. Such like amendments surely are against the doctrine of basic structure of Constitution of India. Since the concerned sections of 42nd and 44th amendments to Constitution of India involve a big question of the status and authority of the President who is also part of Parliament of India in terms of Art -79 ( Art 79 <“Constitution of Parliament.-There shall be a Parliament 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”> ) and is on oath preserver, protector and defender of Constitution of India (Original Art-60 < – “I, A.B., do swear in the name of God that I will faithfully execute the office solemnly affirm of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.” “>)
Art 74 was amended the President cannot take any decision / issue any advice on his/her own level and hence can not truthfully act as per the Oath taken in terms of Art-60 what to talk of his/her effective role under Art-53 { 53. (i) The executive power of the Union shall be vested in the President … 53 (2) Without prejudice to the generality of the fore going provision, the supreme command of the Defence Forces of the Union shall be vested in the President, and ensuring that all actions /programmes/ schemes of the Government are made/ conducted in the name of President { Art- 77 Conduct of business of the Government of India. 77. (1) All executive action of the Government of India shall be expressed to be taken in the name of the President}.
So amendments to Art 74 of COI by 42nd& 44rth Acts of 1976 &1978 are surely violating the “Basic Structure ‘ of Constitution of India.
Article 368 of the Constitution of India (COI) may give to some the impression that Parliament’s amending powers are absolute and encompass all parts of the document but the position is not like that .The ‘team framers’ of the constitution comprised of a galaxy of intellectuals picked up very carefully who had wide knowledge /experience / feel of the socio – economic needs & aspirations of the Indian masses belonging to different regions / sects/ traditions / indigenous who had tried to provide a very comprehensive document but still they felt that at some time later may be some clarifications are still needed wrt to different features of the constitution related to interrelated conceptual understandings over the welfare & democratic spirits laid in the chapters like fundamental rights / directive principles / welfare terms like ST/SC / social- educational backward nes / backwardness to had they incorporated Art-368 for making amendments to the constitution but that was surely not to go far even conceptually changing the constitution, it was for making some amendments in existing articles of the constitution / elements of the constitution to enable implementing the intentions enshrined in the constitution with more ease & clarity. In the constitution Institution of the President was installed as protector, preserver & protector of Constitution and The Supreme Court can go for checks through reviews of the actions taken by the legislature & executive for being with the provisions of the Constitution.Supreme Court of India has at occasions acted for suitable checks on legislative enthusiasm since independence for serving the original spirits enshrined there in Supreme Court of India has even laid down in black & white more clarity the ”doctrine of basic structure of the the Constitution of India’ in 1973 ( through the Judgment of 13 judge Constitution Bench in The Kesavananda Bharati case ( Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74 and L±UO of 1972 , delivered on 24 April 1973 ) that Article 368 can not be used by Parliament to amend the constitution so as to distort, damage or alter the basic spirits /features of the Constitution under the pretext of amending it using Art 368. Although the phrase ‘basic structure’ itself” is not found in the Constitution but The Supreme Court had placed before the citizens this concept in black & white for the first time in the Kesavananda Bharati case in as something like commonly understood as Doctrine of Basic Structure . Supreme Court has been the interpreter of the Constitution and . the arbiter for any amendments made by Parliament ( Art- 124). Supreme court has in a way reserved the jurisdiction to ‘self’ to name the elements of basic structure as and when a case for review comes.
Continued
(The writer is a Sr Journalist &
analyst of J&K Affairs)