- 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
The 42nd Constitution Amendment Act of 1976 and the 44th Constitution Amendment Act of 1978 indeed altered Article 74 [ 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 ……………. And after amendments Art 74 reads ] of the Indian Constitution, limiting the options for the President to act solely on the advice of the Council of Ministers.
The amendments to Art -74 should have sparked concerns due to the restrictions imposed on the President’s ability to fulfil the obligations enshrined in the oath ( under Art 60) as Preserver, Protector, and Defender of the constitution taken at the time of entering the office as President (swear in the name of God “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.”> ) , but did not happen so . Even those who are in 2024 so vociferously declaring / presenting their self ‘as’ solely committed for protection of Constitution of India that the Constituent Assembly on twenty-sixth day of November, 1949, did adopt, enact and give to ‘ourselves’ have not taken serious notice of weakening of the Institution of President. Our elders under the leadership of Dr. Rajendra Prasad ji ( President of Constituent Assembly ) and Dr. Bhim Rao Ambedkar ji ( Chairman drafting Committee) had so particularly placed in the Constitution in 1949 a Protector, preserver & defender in the name of the President of India and surely they had provided a safe guard against the politicians also who would be voted to power through Parliament but may any time go over “ambitious” . But through the amendments made under 42nd& 44rth Constitution amendment Acts in 1976 & 1978 have in a way have ultimately made the Institution dependent. So far no political leadership has made the reversal of amendments to Art-74 as ‘it’ agenda item. No doubt Dr. Rajendra Prashad Ji was the also the 1st President of India .
What important role had been enshrined in the Institution of President could be easily sensed from Articles like Art-52 ( There shall be a President ), 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. in accordance with this Constitution. (2) Without prejudice to the generality of the fore going 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}, 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-75 ( appointment of Prime Minister , Schedule III Form of Oath by Prime Minister (Form of oath of office for a Minister for the Union:- “I, A. B., do swear in the name of God that I will bear true faith solemnly affirm and allegiance to the Constitution of India as by law established, 1[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.” II Form of oath of secrecy for a Minister for the Union:- “I, A.B., do swear in the name of God that I will not directly or solemnly affirm indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.”), Art-77 ( Conduct of Bussiness 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.).
What serious safeguards had been taken in the original Constitution well reflects also from Part y Chapter IV The Union Judiciary Art -124 and the text of oath taken by Chief Justice of Supreme Court (“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of)………… do swear in the name of God solemnly affirm 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.”).
Not only amendments of Art- 74 some sections of The 42nd Constitution Amendment Act of 1976 enacted during the Emergency period also were aimed to reduce the Supreme Court’s role/ power including the restriction on judicial review. But In retrospect, the Apex Court did address some aspects of the 42nd Amendment while taking on the Minerva Mills case (1980) when out of the two new sections ( Section 4 and section 5 added to Art- 368 the Section-4 was held not valid which prevented judicial review of the actions of the Parliament and was so held as against basic structure of constitution. ). But amendments to Art- 74 have not so far come under judicial review ( directly or indirectly).
So a valid question remains , ” should the Apex Court have taken more proactive measures to examine the amendments’ to Art-74 ( implications on the President’s role ) and the Constitution’s basic structure?
To be continued
(The writer is Sr Journalist, social activist and analyst J&K affairs)