- 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
Constitution of India (COI) is a very unique document prepared after very intimate study by the Constituent Assembly of India. In India President is head of State where as Prime Minister is head of Executive / Government where as in USA President is head of State as well as head of government. The process of Impeachment of President of India is tougher than impeachment of President of USA. In India Prime Minister & other ministers have to be members of Parliament and are appointed by President where as in USA no members of Senate & House of representatives is part of the Government as Secretary of State and President can appoint anybody as secretary of State, in US the Vice President becomes the President in case the President quits the office / the president becomes invalid / President leaves for heavenly abode but in India Vice President cannot become President in case president quits office and in that case there have to be fresh elections for the office of President.
A very salient feature of the Constitution of India with Art-74 in its first form { original Art-74 < 74. (1) 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 ……………. } was that although there was a provision of a council of ministers to aid and advice the President but the President was not bound with the advice of the council of ministers which well spoke of the status /position that framers of constitution had accorded to the President of India as preserver protector and defender of constitution where as what has become the position after Article 74 was amended during the Congress Government in 1976 and during the times of Janata Party Government in 1978 could be well sensed { After amendments Art 74 reads < 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………..> } . Constituent Assembly with Dr. Rajendra Prasad ji ( President of Constituent Assembly ) and Dr. Bhim Rao Ambedkar ji ( Chairman drafting Committee) had incorporated in the Constitution a Protector, preserver & defender in the in the institution of President ( Art-60 <“I, A, B., do solemnly affirm that I will faithfully execute the office 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.”>) surely to safe guard against even any political leadership voted with numbers to power any time going over “ambitious”. But through the amendments made under 42nd& 44rth Constitution amendment Acts in 1976 & 1978 in a way President has been in a way has been made e ultimately dependent on the advice of the Council of Ministers.
Basic spirits lying under the incorporation of the Institution of President of India could also be well sensed from some Arts of COI like Art-53{ (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him…), 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-77 ( Conduct of Business of 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), Art-79 ( Part V Union Chapter II.-Parliament Art -79. Constitution of Parliament.-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.). Similarly very meaningful indicators radiate from constitutional features like (i) there is a specific Article of Oath of office for the President only ( Art-60) which reads very differently than the oath taken by Prime Minister , Chief Justice / Judges , Chief Ministers etc (jj) The President pledges ( Art 60 <“I, A, B., do solemnly affirm that I will faithfully execute the office 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>, The Prime Minister pledges ( Art-75 Schedule-III <” ,, that I will bear true faith solemnly affirm and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.” >, where as the Chief Justice of SC ( Art- 124) pledges in terms of Schedule III <“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of)………… that I will bear true faith and allegiance to the Constitution of India as by law established, 2[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”).
So it could be easily inferred that the framers of COI were very particular about (i) protecting-preserving-defending the soul spirits of constitution for which President has been specifically delegated & assigned (ii) the Prime Minister is delegated to uphold the sovereignty and integrity of India & l faithfully and conscientiously discharge duties as a Minister for the Union and to do right to all people in accordance with the Constitution and the law, without fear or favour, affection or ill-will (iii) and the institution of Chief Justice / Judges to uphold the constitution & law. It has been after 24 yrs of 1949 that a thirteen judge constitution bench of supreme court of India had identified the spirit soul of COI as the ‘ Basic Structure of Constitution’ and opined that Parliament cannot use the constituent power enshrined in Art-368 for altering the Basic Structure of COI. And the Art-60 too forms part of basic structure and cannot be altered directly or indirectly in the spirits underlying that has been surely done by amendments to Art -74 by the 42nd& 44rth Constitution Amendment Acts of 1976 and 1978 during the Congress Govt and Janta Party governments respectively. {The Kesavananda Bharati judgment, delivered on 24 April 1973, is a landmark judgment of the Supreme Court of India that laid down Doctrine of Basic Structure of COI) .
Should not those who are giving call s from different political platforms for protection of Constitution of India should prove there truthfulness by unitedly working for undoing the amendments made to Art -74 of Constitution of India?
(The writer is Sr Journalist, social activist and analyst J&K affairs)