Every Action of Ours too Should Strengthen the Constitution
Daya Sagar
These days it is so common a phrase that President in India has to do everything as per the advice of council of ministers and hence how can the President be named as the guardian of constitution of India who will to the best of ability preserve, protect and defend the Constitution when the ‘ability’ of President is in a way subordinate to the advice of the council of ministers in terms of Art -74 of the Constitution of India which reads on date , <” Art-74 (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. (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”>. Yes most of the people in general will ask this question. The Answer is simple and that is that Article 74 has been amended two times , once in 1976 { congress rule : 42nd Amendment Act, 1976 (effective from January 3, 1977), which amended it to: , < Art-74 “(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. (2)….”} and 2ndtime 1978( Janta Party Government < Proviso was added “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.”> ). Before Amendment Art-74 only said that there will be council of minsters to aid & advice the president ,so then in the real spirit the president may not go by that advice in executing the office of President (or discharge the functions of the President).
Text of the Art-74 before amendment was very clearly worded & there was no ambiguity in it saying :”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.” >. So it could be believed that the Constituent Assembly was well aware of the spirits that were being laid down in Article -60 for retaining the President as Protector Preserver & Defender of COI & other contents of Art-60 since the position & role of the President very intimately & importantly also reflects from a good number of articles in constitution ( which too will be referred briefly here) which could also be easily read between the lines from the spirits contained in some articles of COI.
The intensions of the framers of Constitution of India and what role & responsibility they had conceived to be enshrined in the CHAIR of President of India could be well sensed from the contents of (i) Article- 53 – Executive power of the Union shall be vested in President as also without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law (ii) Art-60 Oath or affirmation by the President, (iii) Art-61. Procedure for impeachment of the President is veryvery intricate, (iv) Art-74. Council of Ministers to aid and advise President, (v) Art-75. Other provisions as to Ministers.-(1) The Prime Minister shall be appointed by the President, ( vi) Art-77. Conduct of business of the Government of India.- All executive action of the Government of India shall be expressed to be taken in the name of the President ; (vii) Art-78 ( Duties of Prime Minister as respects the furnishing of information to the President, etc. ) too makes the President important (viii) 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), (ix ) in US after President is incapacitated due to any reason due even death or resignation the VP becomes the president where as in India after elected president dies or resigns the VP can not become regular President and there have to be election of new president (Art-54, Art-55- manner of election of president , Art-62 filling the vacancy in office of President ), (x) in terms of Art- 143 : President has power to consult Supreme court and (xi) Actions of the President too are subject to judicial review by SC ( art-124) & hence can not be simply considered with any possibility of being simply discretionary in case Art-74 is taken in unamended form ,
Similarly after President dissolved the Lok Sabha there have to be new elections with in 6 months for Lok Sabha . So the duty assigned to President has not been casually inked but has been very seriously inked so any considerate mind would immediately visualise that the contents of the Art-60 are actual spirits of the doctrine of basic structure of COI and hence would have been protected by dismissing the amendments made to Art-74 had any body gone to Apex Court or had the issue come before the court in some other context. Some onemay contest why has not the SC suo moto taken the subject, I have no answer for that. The basic structure doctrine (from Kesavananda Bharati judgement 1973) protects core features like democracy, rule of law, separation of powers, judicial review, and the parliamentary system (including checks and balances). It is very pertinent to mention here that a part of Section -55 of the 42nd Constitution amendment Act of 1976 i.e adding Section- 4 to Art 368 was found against the basic structure doctrine and was seen by SC as tilting toward parliamentary sovereignty (reducing judicial checks), and hence was struck down in Minerva Mills v. Union of India (1980) for violating basic structure (e.g., limiting judicial review). [Clauses (4) and (5) were ins. in article 368 by s. 55 of the Constitution (Forty-second Amendment) Act, 1976. Section-4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591. ]
In the COI with Art 74 in original form President is not bound to go by the advice of council of ministers and the debate over issues between President and Parliament or Council of ministers has to conclude with reasoning’s & not simply by numbers. So President had been given a long rope in case very controversial or questionable advice / bill/ proposal about subject requiring rejection of that so as to protect the Constitution from the only institution that could demolish the constitution by amendments i.e Parliament . The Parliament or the Council Ministers had to hold back till President was convinced in the greater interest. Not only that even President not giving assent was subject to judicial review. Hence in the original form there was no ultimate discretionary power flowing to President , the presidents considerations too had to stand to technical test .
The related section of the 42nd Amendment Act of 1976 (making advice of council of ministers explicitly binding on President through Constitution (Forty-second Amendment) Act, 1976, s. 13, for cl. (1) (w.e.f. 3-1-1977) } and even related section of the 44th{ .the Constitution (Forty-fourth Amendment) Act, 1978, s. 11 (w.e.f. 20-6-1979)} which do appear casting ultimate shadows on the role that has been assigned to the President on oath under Art-60 ) must be seriously reviewed for needed parliamentary corrections/ actions or judicial review in the direction of strengthening the safeguards to preserve protect & defend the constitution since they could be taken against the basic structure of constitution and should have been struck down is a strong scholarly critique worth sharing with some students of constitution.
(The writer is a Sr Journalist & analyst of J&K Affairs)