Are amendments made to Art-74 during Emergency ( 1976 ) & after Emergency (1978/79) not fair to Art-60
Contents of 42nd & 44th Constitutional amendments w.r.t. Art-74 need review w.r.t spirits laid in Art-60
DAYA SAGAR
The Constitution of India has the distinction of being the first very detailed and voluminous written document adopted by people of a country comprising of very very heterogeneous mass of religions / /traditions / geographical identities / economic diversities but well woven with threads of cultural & traditions of times immemorial who had remained under ‘foreign rule’ and were desirous of giving to their self a democratic parliamentary democracy which could be well read from the Preamble of the first edition of The Constitution of India itself and the Directive Principles of Constitution of India ( Article-36 to Art-51 ) and the fundamental rights granted to Citizens of India ( Article -11 to Art-35 ).No doubt Fundamental rights have been put under the constitutionally enforceable provisions but the Preamble & Directive Principles are not directly enforceable in legal terms still the ‘two’ are surely the basic principles expressing the ‘heart spirits’ of Constitution of India ( Art-37 : Application of the principles contained in this Part. The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws).
All these years Constitution of India has been subjected to 105 Constitution Amendment Acts made under Art-368 of Constitution of India. Even Art-368 has been amended twice. First vide 24th Amendment Act of 1971 (adding words constituent power and second vide 42nd Amendment Act of 1976 where under Clause – 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 } and Clause -5 ( “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article” ) were added but Supreme Court of India had held the Clause-4 as in valid {42nd Amendment Act, 1976. Clause -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. 59}. So it is also worth taking note that in the Indian Parliamentary system the Constitution of India does not give the Parliament unbridled power through Article 368 to amend the Constitution.
In the Indian Constitution the President of India is head of the State ( Union) and ‘part’ of Parliament along with the two houses of elected members (Sabha & Rajay Sabha) and Supreme Commander of the forces. President of India though was incorporated as an ‘elected office’ but he/she is elected peoples representative through indirect method of election i.e voted by the members of Lok Sabha ( elected by citizens of India directly), voted by the members Rajay Sabha (elected indirectly by citizens of India through their members in legislative Assemblies of States (elected by citizens directly) and the members of Legislative Assemblies of the States (elected by the citizens by direct election) The executive head of the Government is designated as Prime Minister who has to be leader of the party / group that enjoyed the confidence of simple majority of total members in Lok Sabha and is appointed by the President.
The Oath that has to be taken by every President of India and every person acting as President or discharging the functions of the President before entering the Office of President of India is particularly mentioned as an Article of Constitution of India ( 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.” > ) where as the oath that PRIME MINISTER has to take is mentioned in Schedule-III [ as related to Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219* Forms of Oaths or Affirmations ] which mentions the text of oaths for Minister/Prime Minister / Chief Justice (“…that I will uphold the Constitution and the laws”)/ Justice of SC /Comptoller Auditor General / Minister for State / Judge of High Court / MP/ MLA / others. Framers of constitution had laid basic spirits for democratic republic of India , that is Bharat, in the Directive Principles of State Policy as well as the objectives set out in the Preamble to the Constitution and President of India Democratic Republic had been spirited the task of preserving, protecting & defending The Constitution.
Similarly(A) Art- 53 says (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 in accordance with this Constitution(B) Article -79 Constitution of Parliament.;(C) Art-77 of Constitution ( Conduct of business of the Government of India1) All executive action of the Government of India shall be expressed to be taken in the name of the President…) and the like provisions ) too well reflect what STATUS the 1st Citizen of India ( PRESIDENT) and duties had been provided in The Constitution of India who had to preserve, protect & defend the Constitution of India.
To be continued
(The author is a Sr Journalist &
analyst of J&K Affairs. dayasagr45@yahoo.com).