The Bold Voice of J&K

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

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

  • Amendments made to Art-74 through 42nd and 44rth CAAs are not fair to the spirits of Oath enshrined in Art-80 of COI

  • 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

  • President of India is designated on Oath as Preserver, Protector and Defender of Constitution.

Daya Sagar

This the week of birth anniversary of Bharat Ratna Dr. Bhimrao Ramji Ambedkar Tributes are paid to Baba Saheb by one and all political parties but on this day too the political leaderships are seen trying to look more in race to prove their self as ‘real’ Ambedkarite instead of introspecting what have yet to do for ‘our’ people. May be most appropriate tributes to Baba Saheb would be try to have a feel of the spirits infused in Constitution of India by Team Ambedkar and work for going by that.
A very typical and unique feature of the constitution of India that was drafted & adopted by the Constituent Assembly of India on 26 November 1949 has been that though The President of India for general legislative purposes / governance appeared like a nominal head of ‘State’ but he/she is in a way given the very special responsibility under oath to Protect & Defend the Constitution of India { Art-60 of COI }.Not only that although like US President the Vice President of India can hold the office of the President during his/ her absence but the vacancy if there, has to be filled by a fresh election with in prescribed time ( 6 months).
It was in June 1947 that British Parliament finally enacted Indian Independence Act 1947 which was assented by the British Crown ( King of Britain) on 18-07-1947 where Section-1 of the Act said ” 1.-(i) As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as India and Pakistan. (2) The said Dominions are hereafter in this Act referred to as the new Dominions “, and the said fifteenth day of August is hereafter in this Act referred to as ” the appointed day “.
Section-7.–(1) of Indian Independence Act 1947 said As from the appointed day- (a) His Majesty’s Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India ; (b) the suzerainty of His Majesty over the Indian States lapses, …… and (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal area… So the task of drafting a constitution for Independent India was unimaginable uphill task with many Princes outside India and Pakistan Dominions still holding to their ‘country rights’ free from any other suzerainty . Constitution of India emerged out of a well reasoned draft sketch which had taken the leads particularly from “unwritten” British Constitution and the Constitution of United States, the Government of India Act 1935 and drip in wisdom of drafting committee headed by Dr. Bhimrao Ramji Ambedkar ( Baba Saheb) so as to give people of India a ‘socialist’ democratic republic
The Constitution of India has the distinction of being the first ( rather only) very detailed & voluminous written document adopted by people of a country aspiring to live in a democratic system of governance comprising of very very heterogonous mass of religions / /traditions / geographical identities / economic diversities / social and linguistic regions but well knit with ‘yarns’ of humanitarian culture & traditions of times immemorial who had just come out of ‘foreign rule’ ( after having been governed by the foreigners ( British for about two centuries ) but still had many ( nearly 565 ) Princely States ruled by Princes ( monarchs) of Indian origin left around by retreating British with the impressions that rulers of Princely states outside the erstwhile British India could take them as sovereign identities outside the ‘dominion’ even on 15 August 1947 would they not have acceded to Independent ‘India Dominion” before 15 August 1947. .
Those entrusted with the task of drafting the constitution of India i.e Bharat were in principle desirous of giving to their self not only a well meaning parliamentary system of democracy suiting all the diversities & needs of Indian people but also wanted to provide checks & balances / safeguards for ensuring that the elected governments always work within the provisions of Constitution and at no time even any elected Parliament could amend the Constitution to ‘conservative’ democratic system / ‘autocratic” system / or the Executive could misuse the ‘authority’ ( constituent authority provided in Art368 ) for which the ‘institution’ of Judiciary for judicial review of actions of executive as well as legislature elected/installed for a particular term, 5 years max ,{ see Art-13 < Laws inconsistent with or in derogation of the fundamental rights>, Art32 < Remedies for enforcement of rights conferred by Part -III of COI , Art-124 of Part-V Chapter -IV The Union Judiciary < Art 124. Establishment and constitution of Supreme Court.-< (1) There shall be a Supreme Court of India ….. > , Art-129< Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself>, Art-131 <. Original jurisdiction of the Supreme Court >, Art -220 < Restriction on practice after being a permanent Judge >,Art 143 <. Power of President to consult Supreme Court>, Art 147.< Interpretation> } and ‘institution of President of India ( also as part of Parliament <Art Article -79 which says 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 ) was incorporated in Constitution so as to best of his/ her ability preserve, protect and defend the Constitution & the law and devote his/her self to the service & well-being of the people of India Article -60 where under the President elect before entering office on oath says “I, A.B., do swear in the name of God that I will faithfully execute the office solemnly affirm 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 Indian constitution although focused on all the powers resting in the representatives directly elected by the common citizen of India but at the same time also kept an inherent check on the elected representatives /their elected leader to prevent them from curving the authority of common man as a unit of republic at any later date with President of India as Head of ;State’ and the Prime Minister as the head of government where all actions of the Government are taken in the name of President who is designated as preserver, protector and defender of the constitution.

To be continued..

(The writer is Sr Journalist, social activist and analyst J&K affairs)

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