The Bold Voice of J&K

Will Rahul Gandhi work for undoing amendments made to Art 74 of COI by 42nd & 44rth Amendment Acts

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  • 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


Framers of The Constitution of India had in a way laid down basic spirits for governance and management of the needs & aspirations of the citizens of democratic republic of India , that is Bharat, in the Directive Principles of State Policy & Part III (fundamental rights) as well as the objective spirits set out in the Preamble to the Constitution and The PRESIDENT of India Democratic Republic who has also been named as part of Parliament along with Lok Sabha & Rajya Sabha had been spirited the task of preserving, protecting & defending The Constitution. One may ask from whom The President of India has to preserve, protect and defend the constitution in terms of oath ( Art – 60 ) that is taken before entering office ? 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/ democratic parliamentary system and hence there may arise need for preserving , protecting and defending the COI even from two elected houses & may be from the “Executive” too. It is also pertinent to mention here that Constitution creates the Parliament through Art-79 and hence Parliament has to be guided/ “governed” by the basic spirits / structure laid in the Constitution and hence has no unbridled powers/ delegations to operate on constitution under Art-368. On 24th of June , the day the members elected to 18th Lok Sabha were to enter the Parliament House to take oath , the INDIA alliance elected MPs lead by Rahul Gandhi were again seen in the parliament house complex displaying the copies of COI and raising ‘Sambhidhan Bachao’ slogans which was surely in the same context in which ‘they’ had campaigned during recently concluded elections alleging that BJP would change the COI in case the party secures absolute majority. Although even absolute numbers are not designated with ultimate unchecked authority to use Art 368 which out any checks / balances and the Institution of President is there to Preserve, Protect & Defend of the constitution as well as institution of Supreme Court is there to review / test the acts of the executive as well as Legislature but the way Congress leadership has made an issue against BJP of ill intention to ‘change’ the constitution of India in case they succeed to get absolute numbers it could be said that while installing the Institution of President of India as a part of Parliament and as a preserver, protector & defender of Constitution the ‘framers’ of constitution also had in their sub conscious mind the ‘elected representatives’ of the people . INDIA alliance leadership , particularly Rahul Gandhi must at the same time take immediate notice of the fact that it has been the Congress Government which during the times of 1975 through 1977 Emergency [ 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)] got amended Art74 (Council of Ministers to aid and advise President.> :”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) of the COI by 42nd Constitution Amendment Act of 1976 wef 01Mar 1977 (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 ) & which was after emergency days that further amened through 44rth Amendment Act of 1978 wef 20June 1979 ( 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, 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 indirectly the status of President of India as protector, preserver and defender of COI has been in a way subordinate to the advice of Council of Ministers ( the executive , which consists of only the directly / indirectly elected members of Parliament) appointed by President. So if at all there is any scope to change unilaterally the COI of India by any Executive / Group having absolute numbers / influence in parliament beyond the limits of basic structure doctrine it has been created indirectly with amendments to Art 74 so in case Rahul Gandhi & Congress are so serious about that they should make open declaration that in case they come with majority will work to revert the amendments made to Art74 (Council of Ministers to aid and advise President. ) and make the status of the President of India free from the ropes of the advice of the Council of Ministers so as to make the President as Preserver, Protector and Defender of COI in true spirits of the Oath taken under Art 60 of COI.. With the riders put on Art 74 by 42nd amendment Act 0f 1976 [ as Subs. by the Constitution (Forty-second Amendment) Act, 1976, s.13, for cl. (1)(w.e.f. 3-1-1977)}.& 44rth Amendment Acts of 1978 [ as Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 11 (w.e.f. 20-6-1979). ] President is not free to go with oath taken under Art 60.( 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”).
Prime Minister Narendra Modi to has before taking Oath as member of Lok Sabha too has pledged that he is for preserving and protecting the Constitution of India and has too in a way tried to send a clear message that nobody should be under any misconception that damage could be done to the values enshrined in the constitution of India .Hope the “TWO” come together to cut the limits set on the President of India in Art 74 by the 42nd & 44rth Amendments Acts enacted during 1975-1977 emergency and thereafter in 1978-1979 Janta Govt times respectively.

To be Continued

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

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