Are amendments to Art 74 not good & are also against basic structure of Constitution of India i.e Bharat?

42nd & 44rth 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

In recent years opinions have been expressed by some Indian citizens about the status of the Constitution of India with respect to needs of India i.e Bharat after over 7 decades of adoption of Constitution of India . “There’s a case for ‘we the people’ to embrace a new Constitution” has opined Dr Bibek Debroy. No doubt there could be need for amendments or even some deletions but when someone hints for a need to redraw the basic structure of the constitutional fabric itself there could be agitating responses from some corners. As regards the needs for modifications / amendments /reviews that could be sensed by the Parliament with time there already exists a well laid down provision as Art 368 of COI where under using the “constituent power” the Parliament can amend the COI without violating the basic structure of COI in terms of the provision as laid down. And so with passage of time some modifications have been made even in Art 368 some of which too have also been subjected to judicial review (Clause -4as was added in Art 368 under 42nd Constitution amendment Act and was declared invalid by SC ).Till date COI has been amended 105 times.
Recently one opinion article that appeared in Mint news (“There’s a case for ‘we the people’ to embrace a new Constitution” ) on the eve of the 77th Independence day of India about Constitution of India commenting on the structure of COI and it’s match to the times when India is in Amritkal did attract more of attention of some because it was written by Bibek Debroy who happens to be the Chairman of The Prime Minister’s Economic Advisory Council (EAC-PM) . In the August 14/15 article titled “There’s a case for ‘we the people’ to embrace a new Constitution” in the Mint newspaper, Debroy wrote, <“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. To the extent I understand it, the 1973 judgement applies to amendments to the existing Constitution, not a fresh one.” >Debroy quoted a study to show that the lifespan of written constitutions is just 17 years. Terming the present Constitution of India as a colonial legacy, he wrote, <“Our current Constitution is largely based on the Government of India Act of 1935. In that sense, it is also a colonial legacy.””Much of what we debate begins and ends with the Constitution. A few amendments won’t do. We should go back to the drawing board and start from first principles, asking what these words in the Preamble mean now: socialist, secular, democratic, justice, liberty and equality. We the People have to give ourselves a new Constitution,”> .The opinion article did carry a foot note :These are the author’s personal views.In no way do they reflect the views of the Economic Advisory Council to the Prime Minister or the Government of India :
No doubt The Prime Minister’s Economic Advisory Council (EAC-PM) has distanced itself from Bibek Debroy’s recent opinion article in newspaper calling for a new Constitution for India saying “The recent article by Dr @bibekdebroy was in his personal capacity. In no way do they reflect the views of EAC-PM or the Government of India”, in a post. It has also been reported that on 17th Aug eveningDebroy told ANI, “The first thing is that whenever one writes a column, every column always carries the caveat that this column reflects the author’s personal views. It does not reflect the views of the organization that the individual is associated with… Unfortunately, in this particular case, one has ascribed these views… to the Economic Advisory Council to the Prime Minister. Whenever the Economic Advisory Council to the Prime Minister comes out with views in the public domain, it puts them on the EAC-PM website and tweets it from the handle. In this particular case, nothing of the sort had happened,”.
Surely it has been not in good and fair wisdom that some people have tried to link the opinion article of Bibek Debroy with views of the organization that he is associated with and so unfairly some also with the PM, which should not be done.
Bibek Debroy has also said in his article that ‘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. I would take liberty to discuss a bit w.r.t to < Bibek Debroy opining that ‘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.
Indians had earned freedom after great struggle , sacrifices and hence the prime objective before the Constituent Assembly was to incorporate the best out of the available governing systems & principles like the human rights having reflections in the fundamental rights of a citizen so as to give the people of India a democratic republic through a constitution with incorporated there in also safeguards to protect the Constitution even from the peoples representatives elected for a particular term. A very typical and unique feature of the constitution of India that was drafted by the Constituent Assembly of India and was adopted on26-11-1949 had been that though The President of India for general legislative purposes / governance appeared like a nominal head of ‘State’ but he/she was given the responsibility under oath to Preserve, Protect and Defend the Constitution of India and to devote his/her self to the service and well-being of the people of India { Art-60 of COI ). So the President was assigned a very very important role and for that was also vested with an inherent ‘authority’ to even over rule actions of the representatives of people elected through direct election {ofcourse President was also to be elected by indirect election by electoral college (Art 54 ) comprising of Lok Sabha, Rajya Sabha and Legislative Assemblies of States/UTs).

To be continued
(The author is a Sr Journalist & analyst of J&K Affairs. [email protected])