The Bold Voice of J&K

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

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Will Rahul Gandhi also work for undoing amendments made to Art 74 of COI by 42nd & 44rth Amendment Acts?
With present form of Art 74 President can not freely work as Preserver, Protector & Defender of COI
With the riders put in Art 74 by 42nd & 44rth Amendment Acts of 1976 & 1979 President is not free to go by oath taken under Art 60
If it was Indira Gandhi during Emergency responsible for Amending Art 74 in 1976 it was Janta Govt in 1979

DAYA SAGAR

Even Art 368 has been amended after 1950 like , < Constitution (Twenty-fourth Amendment) Act, 1971 s3 where under “Procedure for amendment of the Constitution” was substituted with the text Power of Parliament to amend the Constitution and procedure there for (w.e.f. 5-11-1971) ; Clause- 1 inserted bys3 ; Art. 368 re-numbered as cl. (2) thereof by s. 3, ibid. w.e.f. 5-11-1971; Clause -3 was added ” Nothing in article 13 shall apply to any amendment made under this Article ” inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3 (w.e.f. 5-11-1971) ; vide s 55 of the Constitution (Forty-second Amendment) Act, 1976, s. 55 (w.e.f. 3-1-1977) ; Section 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 was added Section-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.). But Section 04 added to Art 368 by Parliament had been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others 1980 in terms of doctrine of basic structure of Constitution. Supreme Court has the dutiful authority for seeing and reviewing the actions of the executive and legislature to be within the provisions /principles enshrined in COI and it has been due to which that the Section 4 added in Art 368 of COI by 42nd Constitution Amendment Act of 1976 [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 was held invalid by SC in 1980 but Section-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.) was not struck by SC. Art-74 as there in first edition of COI ( 1949) 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.”>). Article 74 has been amended two times after 1949 , First by 42nd Amendment Act of 1976 and Second by 44rth Amendment Act of 1978 . The text <” 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”> has been replaced by <” (1) 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: (2) [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. > ) where under the status of President of India as preserver, protector and defender of constitution in terms Oath taken by President under Art 60 ( Original Art-60 < – “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.” > ) has been made very much “diluted” since President after that has to act only as per the advice of council of ministers where in the original article President was not obliged to necessarily go only by the advice of the Council of Ministers or had the capacity to over rule even the parliament in case there were fears of damage to the basic structure of COI. Such like amendments surely are against the doctrine of basic structure of Constitution of India since it involves a big question of the capacity of the President to perform the role as a part of Parliament of India in terms of Art -79 ( Art 79 <“Constitution of Parliament.-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”> ) of Constitution of India and as a preserver, protector and defender of constitution of India (Art-60 ). Such like amendments surely also need review by supreme court of India before any unwanted events against the doctrine of basic structure take birth.
In Kesavananda Bharti case 13 Judge Bench professed that although all parts of constitution including Fundamental Rights were not out side the Parliament’s amending power but the “basic structure” of the Constitution can not be distorted even by a constitutional amendment. Hence the judiciary can strike down any amendment made by Parliament that is against / in conflict with the basic structure of the Constitution which has been the underlying spirit of the Judgment in Minerva Mills Ltd. and Others Vs. Union of India and Others in 1980 where under inserting Section -4 in Art 368 by constitution amendment was held invalid. It is not out of place to say here that Kesavananda Bharti case 13 Judge Bench Judgment had not provided any relief in favour the petitioner but had unfolded the Doctrine of Basic Structure of Constitution of India.
So the 18th Lok Sabha may restore the spirited authority in President of India as preserver , protector and defender of constitution of India by undoing the amendments made in Art 74 of COI by 42nd Constitution amendment Act of 1976 enacted during the times of Congress government and by the 44rth Constitution Amendment Act of 1978 during the times of Janta Party government in 1978 as both INDIA alliance and NDA leaderships have declared their total commitment for preserving the Constitution of India. Rahul.
(The writer is Sr Journalist, social activist and analyst J&K affairs).

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