Time to review some elements of 42nd & 44th Constitution Amendments made during Emergency Times

Have not Amendments to Art-74 diluted President’s Authority as Protector of Constitution?

DAYA SAGAR

People of India, that is Bharat ( Art-1 of Constitution of India -COI ::: Name and territory of the Union.-(1) India, that is Bharat, shall be Union of States ) shall be celebrating 77th Independence Day in 2023 , Indian citizens ( Art-5 to 10 of COI) shall be celebrating 75th Constitution day in 2023 and have already celebrated 74th Republic day in 2023. All these years Constitution of India has been subjected to 105 Constitution Amendment Acts made under Art-368 of Constitution of India. No doubt parliament has been vested with power ( later added words constituent power under 24th constitution amendment act of 1971 ) through Art-368 ( Procedure for amendment of the Constitution later amended by 24th and 42nd constitution amendment acts of 1971 and 1974 respectively ) of Constitution which ofcourse was not absolute / total as was also observed by Supreme Court of India after Article- 368 had been amended by 42nd Amendment Act 1974 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 insered in Art-368 but Supreme Court had held Clause-4 as in valid {Clause Cls. (4) and (5) were ins in article 368 by s. 55 of the Constitution (Forty-second 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}.
It could be said that framers of constitution had laid basic spirits for democratic republic of India , that is Bharat, in the Directive Principles of State Policy as well as the objectives set out in the Preamble to the Constitution and a way President of India Democratic Republic had been spirited the task of protecting & defending The Constitution ( Art-60 of Constitution of India ). A very significant feature of The Constitution of India well reflects from the fact that the oath that has to be taken by every President and every person acting as President or discharging the functions of the President before entering the Office of President of India is particularly mentioned as an Article of Constitution of India ( 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.” > )where as the oath that PRIME MINISTER has to take is mentioned in SCHEDULE-III [Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]*
Forms of Oaths or Affirmations ]which mentions the text of oaths for Minister/Prime Minister/ Chief Justice (“…that I will uphold the Constitution and the laws”)/ justice of SC /Comptoller Auditor General/ Minister for State / Judge of High Court / MP/ MLA / others.
The other very very special feature of COI reflects from (A) Art- 53 which said (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. (3) Nothing in this article shall-(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or (b) prevent Parliament from conferring by law functions on authorities other than the President : (B) Article -79 i.e . Constitution of Parliament..;(C) Among other features it is also worth going through the contents of Art-77 of Constitution ( Conduct of business of the Government of India) as well and consciously sense the spirit / directions enshrined there in to assess how far the ‘executive’ / political leaderships have been staying with that. { Art- 77. Conduct of business of the Government of India.-(1) All executive action of the Government of India shall be expressed to be taken in the name of the President…)
Similarly the Articles as regards election / appointment of President (Art-54 Election of President Art-55 : Manner of election of President . ) and impeachment of President (Art-61: Procedure for impeachment of the President ) too well reflect what STATUS the 1st Citizen of India( PRESIDENT) had been provided in The Constitution of India who had to protect& defend the Constitution of India, of course it had to be also 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 amend the constitution under Art-368.
In the Constitution of India (1st edition 1949) Art-74 said that 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> but President as protector & defender of Constitution was not supposed necessarily go by the advice of Council of Ministers {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 during the mid 1970s period / during Emergency period two amendments were made to the Constitution of India where in (i) through 42nd Amendment of 1976 Art-74(1) was amended w.e.f 3-1-1977 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 > and through 44rth Constitution Amendment of 1978 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. >. Surely the amendments to Art-74 had in a way weakened / diluted the delegation to President as protector & defender of Constitution and while having a review of Constitution after we are in Azadi ka Amritkal such like amendments to constitution of India made during the 1970s Emergency period too need be reviewed.Moreover India is approaching 75th Republic Day and dedicated regular review of the constitution, the amendments made there and needs of the time are otherwise too due that have references made in constitution too.
(The author is a Sr Journalist &
analyst of J&K Affairs. [email protected]).