Institution of President as Preserver Protector Defender of COI weakened after Art-74 was amended during Emergency

One may ask from whom President has to preserve, protect & defend constitution in terms of Art – 60 ?

Team Ambedkar provided checks & balances on Elected Leadership going Undemocratic/ Autocratic

With President as Head of State’ & Prime Minister as head of Govt. all actions are taken in name of President of India is designated on Oath as Preserver, Protector and Defender of Constitution.

DAYA SAGAR

No doubt originally ( before 42nd and 44rth constitution amendments of 1976/1978) in the Constitution of India 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 was not supposed necessarily go by the advice of council of ministers and in exceptional circumstances , if required in his/her fair wisdom , President could work with his/her independent wisdom, if required, as preserver, protector & defender of Constitution.
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 Act of 1976 amended Art-74(1) > w.e.f 03-01-1977 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 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 >. So after 42nd and 44rth Constitution amendments President cannot take a decision independent of the aid and advice of council of ministers and discretion for taking any decision for preserving, protecting and defending constitution was in a way was taken. Any reasoning wisdom would so simply infer that with the amendments made during the ‘1975’ internal emergency period have been against the basic spirits underlying 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.
According to the Constitution of India, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws/acts of Parliament . If a law / Act / amendment to Constitution made by Parliament or the state legislatures violates any provision / element of basic structure of the Constitution, the Supreme Court has the power to declare such a law/ Act invalid or ultra vires
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}The 13 Judge – Bench ( Chief Justice S. M. Sikri, Justice J.M.Shelat, Justice K.S. Hegde, Justice A.N.Grover, Justices A.N. Ray, Justice P. Jaganmohan Reddy, Justice D.G. Palekar, Justice H.R. Khanna, Justice K.K. Mathew, Justice M.H. Beg, Justice S.N. Dwivedi, Justice A.K. Mukherjee and Justice Y.V. Chandrachud ) Judgment of Supreme Court of India delivered on 24 April 1973 in Kesavananda Bharati Vs State of Kerala ( His Holiness Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74) had held that Parliament has powers to amend the Constitution using Art- 368 but the Parliament cannot go beyond disturbing the basic structure of the Constitution of India and amendments made to constitution are subject to judicial review. The Supreme Court, in a historic 7:6 majority decision, propounded the basic structure doctrine of the Constitution, which holds that certain fundamental features of the Constitution, such as democracy, secularism, federalism, like the rule of law, cannot be amended by parliament using Art- 368 .
So the questions here are (1) can the President of India with the amended Art-74 ultimately hold to the oath taken under Art- 60 of the Constitution of India ? (2) Is not the status / spirits enshrined in the institution of President as part of Parliament ( Art 79 ) & preserver plus protector plus defender of Constitution very intrinsic elements of the Basic Structure of Constitution of India ? (3) Should not amendments made to Art 74 by 42nd & 44rth Constitution amendment Acts of 1976 & Act of 1978 be held void being against the basic structure of the Constitution ?
No doubt what falls in the arena of Basic Structure of COI has to be decided by Supreme Court of India.
To be continued …..
(The writer is Sr Journalist, social activist and analyst J&K affairs).