Indians had given to their self a Constitution on 26 Nov 1949 with President therein to protect it

Are amendments made to Art-74 during Emergency (1976) & after Emergency (1978) not fair to Art-60
Contents of 42nd& 44th Constitutional amendments w.r.t. Art-74 need review w.r.t spirits laid in Art-60
For preserving basic principles enshrined in COI – must start with undoing amendments to Art-74

DAYA SAGAR

One may ask from whom The President of India has to preserve, protect and defend the constitution in terms oath that is taken before entering the office ( Art-60 of constitution of India ) ? Ofcourse the answer could be that the elders who drafted the constitution of India were conscious enough that those who get elected for a term and constitute the two houses of Parliament of which President of India is also a part may in their wisdom “accidently” operate upon the constitution through Art-368 or conduct the affairs of the State in a way that may not be in the spirits of the basic structure / common welfare intentions of the COI and hence there may arise need for preserving , protecting and defending the COI even from two elected houses & the executive with Prime Minister as head of the Government. Constitution creates the Parliament through Art-79 and hence Parliament has to be guided/ “governed” by the basic spirits laid in the Constitution and has no unbridled powers/ delegations to operate on constitution under Art-368. Not only that , the President of India had also been well protected against any otherwise intentions of the members elected by the citizens of India for a particular term who may not assume to their self ultimate authority once elected and even overstep their delegations / confidence imposed by voter citizen which could be well read from the provisions as made as regards impeachment of President (Art-61: Procedure for impeachment of the President ). No doubt originally in the Constitution of India (1st edition 1949) existed Art-74 which said <” {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.”}> but President as preserver, protector & defender of Constitution was not supposed necessarily go by the advice of council of ministers.
But it was during the period { 25 June 1975 ( Notification G.S.R -353 E 26 June 1975 Proclamation of by President dated 25 June 1975 ) to 21 Mar 1977 ( Notification G.S.R 117-E of 21 Mar 1977 Proclamation of Vice President acting as President dated 21 Mar 1977) }of declared internal emergency that was ordered by President Fakhruddin Ali Ahmed under Art-352 of Constitution of India on the night of 25 June 1975{proposed by Indira Gandhi PM, agreed upon by the President of India, later ratified by the Cabinet and the Parliament from July to August 1975)} that in 1976 the elected houses of parliament of India through 42nd Amendment of 1976 amended Art-74(1) from < 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 > w.e.f 03-01-1977 to < 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 > that made the President to necessarily go by the advice of council of ministers only which was not the provision originally. Not only that even after the period of internal emergency ( 1975-1977) it was through 44rth Constitution Amendment Act of 1978 that Art-74(1) was further added a Proviso w.e.f. 20-6-1979 < 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 >.
Any reasoning wisdom would so simply infer that with the amendments made during the ‘1975’ internal emergency period and after emergency in 1979 have been against the basic spirits underlying constitution of India where in President of India has been designated as the preserver, protector & defender of Constitution who swears to devote “self” to the service and well-being of the people of India but after 42nd and 44th Constitutional Amendments the “advice” of council of ministers has been made over ridding . These two amendments have surely been against the basic principles ‘our’ democracy as enshrined in Constitution of India.
With 42nd and 44rth amendments in place can the Hon’ble President of India independently hold to the oath of office as enshrined in Art-60 of Constitution of India ? Surely not.
Art-368 was also amended under 42nd Constitution Amendment in 1976 where under Clause – 4 { “No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground } and Clause -5 ( “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article” ) were added but Supreme Court of India had held the Clause-4 as in valid {42nd Amendment Act, 1976. Clause -4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980 ) 2 S.C.C. 59}.
Surely the amendments to Art-74 have in a way weakened / diluted the delegation to President as preserver, protector & defender of Constitution. We are in Azadi Ka Amrit Kaal and such like amendments to Constitution of India made during the Internal Emergency Period { ( 1975-1977) 42nd Amendment Act 1976 } and thereafter ( 44rth Constitutional Amendment Act 1978 w.e.f 20-06-1979 )
Should not the 42nd and 44rth amendment of 1976 & 1978 be also subjected to judicial review by a constitutional bench as far as amendments to Art- 74 of Constitution of India are concerned?

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