Are amendments to Art 74 against basic structure of Constitution of India i.e Bharat?

42nd & 44th amendments to COI are not fair to the Oath taken by President under Art-60 as Protector of COI

A FAIR CASE FOR EVEN JUDICIAL REVIEW

DAYA SAGAR

The some important incorporations in the Constitution of India , before any amendment,that was adopted on 26-11-1949 where (i) Parliament comprised of the President of India, Lok Sabha and Rajay Sabha , see Art 79 of COI , (ii) The President of India though for general legislative purposes/ governance may ‘appear’ to some like a nominal head of ‘State’ but since he/she was given the responsibility to Preserve, Protect and Defend the Constitution of India {Art-60 of COI oath or affirmation by the President…… “I,…… 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.”} the President of India, that is Bharat, was constitutionally kept above all ‘boards’, (iii) Executive power of the Union rests in President of India (Art-53), The President is designated as supreme commander of the defence forces (Art-53) , ivi) The executive head of the Government of India designated as Prime Minister to be appointed by President ( Art74) has to be leader of the party / group that enjoyed the confidence of simple majority directly elected people’s representatives in Lok Sabha (v) All executive action of the Government of India are to be expressed to be taken in the name of the President (Art 77) (vi) It was not mandatory / must for the President to accept any/all amendment to the constitution or any bill passed by the Parliament / advice of Council of Ministers although hit was laid down in the 1949 ‘COI’ that there will be council of ministers headed by Prime Minister to aid and advice the President (Art 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. 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).So the authority of the President to preserve, protect and defend the Constitution even by over ruling the elected government was ultimate to some extent, of course keeping in view principles/ other provisions enshrined in the constitution, and the constituent power enshrined in Art-368.
But the 42nd and 44th Constitution amendments of 1976 and 1978 respectively weakened the authority of the President worth performing the duty in terms of Art-60 of COI since President was made to necessarily act as per the advice of Council of Ministers appointed by him/her. Since the authority/ capacity of President to preserve, protect and defend the constitution was weakened nearly making subordinate to advice of council of ministers , should not amendments to Art 74 made in 1970s be named as violation of Basic structure of COI ?
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. Not only that 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 1978 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 1978 i.e 44th Constitutional amendment President surely 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 adding clause 4 Nothing in this article shall apply to any amendment of this Constitution made under article 368.). Dr Bibek Debroy too has opined in his article “We no longer possess the one we inherited in 1950. It has been amended, not always for the better, though since 1973 we have been told its ‘basic structure’ cannot be altered, irrespective of what democracy desires through Parliament; whether there is a violation will be interpreted by courts >.
In my opinion with 42nd amendment Act of 1976 and 44th amendment Act of 1978 in place w.r.t Art 74 how could President of India hold to the Oath of Office taken in terms of Art 60 to preserve, protect and defend Constitution ? Are not the amendments to Art 74 not good and are not they against the basic structure of Constitution ?
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,. Other provisions as to Ministers.-(1) The Prime Minister shall be appointed (Art-75) by the President , Conduct of business of the Government of India. Art-77. 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 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 at least constitutional / political/ social / economic affairs during the tenure since he/she has to preserve, protect and defend the Constitution.
All executive action of the Government of India are to be expressed to be taken in the name of the President ( Art 77 ) so will it not be worth considering to name all the welfare programmes of Government of India as President’s programmes?
(The author is a Senior Journalist & analyst of J&K Affairs. [email protected]).