- Institution of President as Preserver Protector Defender of COI weakened after Art-74 was amended during 1970s Emergency
- Amendments made to Art-74 through 42nd and 44rth CAAs are not fair to the spirits of Oath enshrined in Art-80 of COI
- Team Ambedkar provided checks & balances on Elected Leadership going Undemocratic/ Autocratic
- With President as Head of State’ & Prime Minister as head of Govt. all actions are taken in name of President
- President of India is designated on Oath as Preserver, Protector and Defender of Constitution.
DAYA SAGAR
Notwithstanding review jurisdictions, those who drafted The Constitution of India in 1949 through the Constituent Assembly surely wanted the Constitution to be an adaptable citizen friendly democratic socialist document but they were at the same time very much conscious of their limitations, circumstances in hand , having no any previous experience of having lived in such like system of governance and experience of the type they did not want to give their generations a rigid/ closed framework for governance so they had also kept a provision in Art 368 for amendment by Parliament using power like constituent power but not beyond the principles enshrined in the document adopted in 1949.
Article 368 of the Constitution 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 Supreme Court can go for checks through reviews and has at occasions acted for suitable checks on legislative enthusiasm since independence. It has been only in that context, with the intention of preserving the original ideals of the visionary constitution-makers enshrined there in, that the Supreme Court of India laid down in 1973 ( through the Judgment 13 judge Constitution Bench in The Kesavananda Bharati judgment ( 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 cannot be used by Parliament to amend the constitution so as to distort, damage or alter the basic features of the Constitution under the pretext of amending it. 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 Kesavananda Bharati case in 1973 as something like commonly understood as Doctrine of Basic Structure . But supreme court has in a way reserved the jurisdiction to ‘self’ to name the elements of basic structure of COI as and when case for review comes before the apex court..
So far the Indian Constitution has been amended 105 times by Parliament of India using constituent power resting in Art -368 . Some of the amendments have been made to explicitly project the spirits/principles enshrined in the ‘hearts’ of constitution like the insertions made in the text of the Preamble { using/substituting “Sovereign Socialist Secular Democratic Republic” by Forty-second Amendment Act, 1976, s.2, for “Sovereign Democratic Republic” (w.e.f. 3-1-1977). And using expression/ substituting “unity and integrity of the Nation ” by s.2, ibid., for “Unity of the Nation” (w.e.f. 3-1-1977) by making insertions } and some of the amendments have been made keeping in view implementation of welfare intentions laid down in some articles of the constitution/ directive principles / fundamental rights / like as through Constitution first the Constitution (First Amendment) Act, 1951 June 18 1951 where under Art 15,Art 19, Art 31, Articles 85, 87, 174, 176,341, 342, 372 ,376 were amended and Ninth Schedule was added after 8th Schedule and 4rth Amendment Act (The Constitution (Fourth Amendment) Act, 1955 17 April 1954 where under articles 31, 31A & 305 of, and the Ninth Schedule to the Constitution were amended.
The substitutions made in the text of Preamble of Constitution of India have been very much within the powers of Parliament as laid in Art 368 of COI since the concerned section of the 42nd amendment Act of 1976 have very much within the doctrine of basic structure of COI as professed in The 13 Judge – Bench Judgment of Supreme Court of India delivered on 24 April 1973 in Kesavananda Bharati Vs State of Kerala (His Holiness Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. had held that Parliament has powers to amend the Constitution using Art- 368 but the Parliament cannot go beyond disturbing the basic structure of the Constitution of India and all amendments made to constitution are subject to judicial review).
Even Art 368 has been amended after 1950 like , < 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) ; vide s 55 of the Constitution (Forty-second Amendment) Act, 1976, s. 55 (w.e.f. 3-1-1977) ; Section 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 Section-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.) . But Section 04 added to Art 368 by Parliament had been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others 1980 in terms of doctrine of basic structure of Constitution.
Elders who drafted the constitution of India were conscious enough that those who get elected for a term and constitute the two houses of Parliament of which President of India is also a part may in their wisdom “accidently” operate upon the constitution through Art-368 or conduct the affairs of the State in a way that may not be in the spirits of the basic structure / common welfare intentions/ democratic parliamentary system and hence there may arise need for preserving , protecting and defending the COI even from two elected houses & may be from the “Executive” too. So has been installed in COI the President on oath under Art 60 to preserve, protect & defend the Constitution.
To be continued …..
(The writer is Sr Journalist, social activist and analyst J&K affairs).