Art-74 of COI as amended in 1976 & 1978 does not allow President of India to truthfully go by Oath taken under Art-60
DAYA SAGAR
Even Art 368 of Constitution of India has been amended ,(First) < Constitution (Twenty-fourth Amendment) Act, 1971 s3 where under “Procedure for amendment of the Constitution” was substituted with the text Power of Parliament to amend the Constitution and procedure therefor , (w.e.f. 5-11-1971); Clause- 1 inserted bys3 ; Art. 368 re-numbered as cl. (2) thereof by s. 3, ibid. (w.e.f. 5-11-1971; Clause -3 was added ” Nothing in article 13 shall apply to any amendment made under this Article ” inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3 (w.e.f. 5-11-1971).(Second )) of the constitution of India has been amended two times First vide 42nd Amendment Act of 1976 and Second vide 44rth 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 has been replaced by 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. >) 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 42ndanad 44rth amendments to Constitution of India involve a big question of the status and authority of the President to perform the role delegated under Art-60 as the preserver, protector and defender of Constitution of Indiaand his / her also being part of Parliament along with Lok Sabha ( house of people ) & Rajay Sabha ( council of states ) 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”> ).Surely the 42nd Constitution Amendment made by Parliament in 1976 and 44rth Amendment Made by Parliament in 1978 surely raise questions on their genuineness since they concern the Institution of President of India which has a very very special position in COI not just a symbolic status as ‘most’ of the commentators are found often saying or people in general have been made to believe but of immense weight which well reflects from many articles of COI as Art 53 ( supreme commander of defence forces), 75 ( appointment of Prime Minister ) ,77 ( all executive actions of the union are taken in President’s name), 79 ( part of parliament, Art-111 ( bills require presidential assent to become law ), 61 ( impeachment of President ) and like. And above all is status accorded & responsibility taken by the President on oath under 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.” “>) . So the 42nd and 44rth Constitution Amendments are surely bad and needed judicial review under the Basic Structure Doctrine.
Kesavananda Bharti case 13 Judge Bench Constitution Judgement professed and held that although allparts 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. Hence the Judiciary can strike down any amendment made by Parliament that is against / in conflict with the ” basic structure” of Constitution which has been the spirit of the judgement also in Minerva mills case (1980) using the Basic Structure doctrine where inserting Section -4 in Art 368 by constitution amendment was held invalid.
Although the Kesavananda Bharti case 13 Judge Constitution Bench Judgment had not provided any relief in favour of the petitioner but had unfolded the Doctrine of Basic Structure of Constitution of India.
Art 74 was first amended with 42nd Amendment Act in 1976 when Congress Government was in power and then in 1978 by 44rth Amendment Act when Janta Party government was there. I have sent notes to some of l those who talk of Protecting the COI “from BJP” through media or sources in public domain, response not encouraging. I still hope that some shall share my concern and see that the question comes before the SC.
In case the amendments to Art-74 are not to be undone by the Parliament then there is utmost need to amend the Art-60 of COI so that at some later date the generations may not be able to accuse the President of India of his/her having not done the due duty that may have been the requirement at a particular time in terms of Oath taken under Art-60. But there too another direct question may come of Basic Structure Doctrine.
So 42nd and 44rth Constitution amendments too should have been taken for review before the Supreme Court of India long back but that has not been done so far. It may not be wrong to say that the Political leaderships/ political parties will not in routine approach the SC since the amendments I question strengthen their position when in power. Some from civic institutions / individuals with resources should hence do. More so going by the importance of the issue , should not Hon’ble Supreme Court take on the question on its own.
(The writer is a Sr Journalist & analyst of J&K Affairs. dayasagr45@yahoo.com 9419796096)