COI of India does not give Parliament unbridled power through Article 368 to amend Constitution

Like Preamble the Directive Principles are not enforceable by any Court still are ‘Heart Spirits’ of COI ( Art-37)

DAYA SAGAR

Although the Indian Independence Act of Parliament of United Kingdom ( Britain) was passed only in July 1947 but it was after the visit of Cabinet Mission to India that atlast in principle it had been decided in 1946 that India will be granted ‘freedom’. So under the Cabinet Mission Plan of 1946, elections were held for a Constituent Assembly of India to frame the constitution . For Constituent Assembly of free India of future, members were chosen by indirect election by the members of the Provincial Legislative Assemblies in terms of a single transferable vote of proportional representation (according to the scheme recommended by the Cabinet Mission).
The first meeting of the Constituent Assembly took place on December 9, 1946 at New Delhi where Dr Sachidanand eldest member elected as the interim President of the Constituent Assembly was in chair.
However, on December 11, 1946, Dr. Rajendra Prasad was elected as the President and H.C. Mukherjee as the Vice-President.
Indians had earned freedom from foreign rules/Autocratic rule / Monarchies after prolonged long struggle, sacrifices and hence the prime task before the Constituent Assembly (1946 to 1949) was to also study/ examine the best out of the available peoples / parliamentary democratic governing systems and principles like the human rights of a person , social & cultural safeguards needed for one & all , securing the aspirations of all irrespective of their geographical placement / economic placements/ gender /faith /age etc so as to give the people of India a democratic ‘republic’ through a constitution also well protected with incorporated in self- safeguards even from the people’s representatives elected for a particular term.
No doubt all may be knowing how India travelled from a colony of British to a Dominion of UK to India Democratic Republic but it may be still of interest to briefly mention here that upto 14-08- 1947 British India was a Colony / a Dependency / Upnivesh of British Empire (commonly referred as United Kingdom) i.e India was under legal, administrative, judicial, constitutional control of Britain where Vice Roy was the representative of the King of Britain in India and the Governor General was the head of Local Government in India (both the positions were held by the same person); and some parts of India ( commonly known as Princely States / Native States ) were governed by Indian Princes something ‘like’ their own States/’Countries’ which could be defined as protectorate / Sangrakshitrajay of the British where British held the total control/ responsibility as regards their defence from any external aggressions , foreign affairs and like and the King/ ruler there held control over all local matters I,e Britain was the sovereign ‘State’ which had Suzerainty over these states ( Princely States).
After the enactment of Indian Independence Act 1947 by British Parliament India from 15th August 1947 till the constitution of independent India was drafted , approved and enacted by Constituent Assembly of India, India remained ‘a’ Independent Dominion of United Kingdom ( with King Emperor of UK as the nominal State Head and the Governor General to be appointed by the King Emperor on the recommendations of the government of Dominion ( atleast till Constitution of the free country is decided and provision made otherwise) to work as head of the Government of the Dominion with Government of India Act 1935 read with Indian Independence Act 1947 to work as the ‘interim’ Constitution of India Dominion.
Late in the evening of 14 August, 1947 the Constituent Assembly of India met in the Constitution Hall and at the stroke of midnight, took over as the Legislative Assembly of an Independent India Dominion. The Constitution of India was finally passed and adopted by the Constituent Assembly on November 26,1949 ( that is known as Constitution Day ) to immediately come into force the same day where in the Art-394 of Constitution of India it is/was :: Art-394 Commencement.:< This article and articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution.::.> Hence India celebrates Republic day on 26th January every year { it is worthwhile mentioning here that It was on 31-12-1929 that in Lahore Session of Congress party ( Jawahar Lal Nehru as President ) a resolution was adopted for “Pooran Swaraj”/ Total independence from British by ’26 Jan 1930′ and which is why “India Democratic Republic” decided to observes the 26th January every year as Republic Day.}.
The last session of the Constituent Assembly was held on January 24, 1950 as ‘parliament of India’ and unanimously Dr. Rajendra Prasad was elected as the President of India by members of Constituent Assembly of India. The Constitution of India has the distinction of being the first very detailed & voluminous written document adopted by people of a country comprising of very very heterogeneous mass of religions / /traditions / geographical identities / economic diversities but well woven with threads of cultural & traditions of times immemorial who had remained under ‘foreign rule’ and were desirous of giving to their self a democratic parliamentary democracy which could be well read from the Preamble of the first edition of The Constitution of India itself { Preamble : We, the people of India, having solemnly resolved to constitute India into a 1[Sovereign Socialist Secular (42nd Amendment Act 0f 1976 wef 03-01-1977) Democratic Republic] and to secure to all its citizens: JUSTICE, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity (42nd Amendment Act 0f 1976 wef 03-01-1977) ) of the Nation]; in our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution} and the Directive Principles of Constitution of India ( Article-36 to Art-51 ) and the fundamental rights granted to Citizens of India ( Article -11 to Art-35 ).
No doubt Fundamental rights have been put under the constitutionally enforceable provisions but the Preamble & Directive Principles are not directly enforceable in legal terms still the ‘two’ are surely the basic principles expressing the ‘heart spirits’ of Constitution of India ( Art-37 : Application of the principles contained in this Part. The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws). So In the Indian Parliamentary system the Constitution of India does not give the Parliament unbridled power through Article 368 to amend the Constitution.
(The author is a Sr Journalist
& analyst of J&K Affairs. [email protected])