Role & Responsibility Framers enshrined in President well reflets from Articles 53, 60,61, 74,75,77,79
Status of President of India was very considerately enshrined as Protector of COI under Art-60
President takes oath to Protect COI but 42nd & 44rth amendments of COI are not fair to President
Daya Sagar
In the original Constitution of India adopted on 26-11-1949 there were two important features which had their shadows in the constitution of UK and US (i) The President was designated as head of State ( Union) and supreme commander of the forces. The executive head of the Government of India is designated as Prime Minister who has to be leader of the party / group that enjoyed the confidence of majority in Lok Sabha and is appointed by the President. (ii) The President of India though for general legislative purposes / governance appeared like a nominal head of ‘State’ but since he/she was given the responsibility to Protect the Constitution of India { Art-60 of COI Oath or affirmation by the President…… “I, A, B., do swear in the name of god / 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.”} was not must bound to accept ( Art-74) any/all amendment to the constitution or any bill passed by the Parliament / actions of Council of Ministers although/ since it was laid down in the COI that there will be council of ministers headed by Prime Minister to aid and advice the President ( Art-74 of the COI laid down that < (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. (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> but the advice of the Council of Ministers was not binding on the President so the authority of the President to defend the Constitution even by over ruling the elected government was ultimate to some extent, ofcourse keeping in view principles enshrined in the constitution , and the constituent power enshrined in Art-368 was/ is not / cannot be taken as ultimate by the Parliament constituted under the provisions of Constitution itself).
But the Indian constitution was amended first with 42nd Amendment Act of 1976 to amend Art-74 as < For clause (1), the following clause shall be substituted, namely:-“(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.”> which was to in a way make the advice of cabinet almost binding on the President.
To make the council of ministers in a way constitutionally imposing on the wisdom and authority of President once again with 44rth amendment Act of 1976 Article-74 was further amended to lay down < In article 74 of the Constitution, in clause (1), the following proviso shall be inserted at the end, namely:-“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.”>.
So after 1976 44rth Constitutional amendment President became a nominal head of State only and was snatched the power to veto any amendment of constitution by the majority of members even if that was against the basic structure of the constitution. ( See Art-13 which too has been amended under Constitution (Twenty-fourth Amendment) Act, 1971, s. 2 (w.e.f. 5-11-1971), Art-32 ).
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 Article- 53. Executive power of the Union, Art-60. Oath or affirmation by the President, Art-61. Procedure for impeachment of the President, Art-74. Council of Ministers to aid and advise President, Art-75. Other provisions as to Ministers.-(1) The Prime Minister shall be appointed by the President, Art-77. Conduct of business of the Government of India.-(1) All executive action of the Government of India shall be expressed to be taken in the name of the President and 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) of COI that was adopted and enacted by Constituent Assembly of India on 26th November 1949. So Indian citizen now need to understand how serious and considerate the framers of constitution were who had kept the President at a very high pedestal but the elected governments that followed did not hold the spirit that firmly and surely today there is need to review the constitution as regards the 42nd and 44th Constitution amendments. Not only that going by the experiences over the last seven decades and now in the times when we are celebrating Swatantrata (Azadi) ka Mahotsav there is need for creating a constitutional provision delegating to President also authority like to on his own decide and appoint an advisory committee for assisting him/ her on matters related to atleast constitutional / political/ social / economic affairs during the tenure since he/she has to protect the Constitution.. Since constitutionally the Executive power of the Union rests in President of India ( Art-53), President is supreme commander of Armed Forces, in terms of Art-79 (Constitution of Parliament) the Parliament for the Union consists of the President, &two Houses (the Council of States and the House of the People) and , in terms of Art-77 {Conduct of business of the Government of India.-77(1) } all executive action of the Government of India are to be expressed to be taken in the name of the President so will it not be worth considering to name all the welfare programmes of Government of India as President’s programme ?
concluded
(The author is a Sr Journalist & analyst of J&K Affairs. dayasagr45@yahoo.com 9419796096)