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amendment to art.74 futile

Advocate

Amendment made to Article 74(1) which erodes the Autonomy of President of India is a futile and meaningless amendment

 

Media has been comparing the current General elections as Presidential elections because the BJP contested the elections having declared its nominee for the post of Prime Minister.  The election results are to be declared tomorrow ie., 16th May, 2014.  Entire nation is looking forward to it.  General Election creates a kind of frenzy situation in the country.  It is a game of fame and shame where everyone has the pleasure of participation.  The day of results is a full day movie which all Indians sit together and watch.  The theatre is the living rooms and the TV screen is the movie screen.   It is unfortunate to note that elections are more about the fortunes of the contestants than the masses.   The fortunes of the privileged class is decided by the hungry underprivileged unfortunate millions.  And we are only shamed for the personal loss in elections because it hurts our pride, not for the reason that we have placed the fate of our fortunes in the hands of such unfortunate population.

 

Now coming back to the subject of Article 74(1), prior to 42nd Amendment Act, 1977 it perfectly maintained the balance of separation of powers between Executive, Legislature and Judiciary.  We all know the 42nd Amendment Act was made during Emergency period when Smt. Indira Gandhi was the Prime Minister.  For reasons well understandable, and not to be stressed and repeated again keeping in view the circumstances that led to declaration of Emergency, she wanted the President to follow the diktats of Union Cabinet and accordingly she amended this Article 74 to take away the Functional Autonomy of the President of India even in the matters that he alone has to use his discretion.

 

With this amendment the President had become the rubber stamp of Union Cabinet.  The Union Cabinet will aid and advise the President of India and President of India may require the Council of Ministers to reconsider such advice and the President shall act in accordance with the advice tendered after such reconsideration. 

 

We had seen several Union Governments working with Presidents after this Amendment to Constitution.  There were partymen elected as Presidents and as there was no dispute between party and the President who carry party loyalties, there was no conflict between President and Council of Ministers.  There were some apolitical presidents like K.R. Narayanan, Abdul Kalam and R. Venkataraman with whom no Union Government had any trouble.  When non-Congress government was in place between 1996 to 2004 the President was Abdul Kalam with whom the NDA had no problems.  After him, the UPA had Pratibha Patil, she is a party woman, there was no problem with her.  Pranab Mukherjee also belongs to Congress hence UPA had no problem with him.

 

Now the exit polls predict NDA victory.  The present situation as far as President and Union Cabinet is concerned is very unique.  This kind of situation was never there in the past.  The BJP will form government and the President belongs to Congress party.  In view of this, what is the significance of Article 74(1)?   Anyone with little knowledge of Constitution would say President is puppet in the hands of Union Cabinet there will be no problem for BJP government.  Even BJP might be thinking in the same lines.   The President should function with the AID and ADVISE of Council of Ministers it is mandated by Constitution so even if the President belongs to Congress party, as per mandate of Constitution he should obey what the Council of Ministers convey him to do. 

 

Now the important question is – What if, the President of India say to Council of Ministers, “I won’t sign I won’t obey”. 

 

We know every Constitutional expert would say, “HE MUST OBEY…it is mandate of Constitution”.   But for every eventuality there must be some consequence.  He is President of India.  No one can hold him by neck and force him to put his signature on papers.  Suppose, he says, I won’t sign, what is the remedy for the Council of Ministers.  There is no authority above President of India to approach. 

 

The ruling party can impeach the President of India.  It requires 2/3rd majority which NDA may not have.  So the situation would be, he can neither be impeached nor he will sign the papers sent to him by Union Cabinet. 

 

Can the Union Government go to Supreme Court against President of India?

 

No court in India would accept a petition with cause title Union of India vs. President of India.  They are one and same.  That is why I am saying Article 74(1) is futile.  If the President has party loyalties and is a party man like what Pranab Mukherjee was to UPA, you don’t have to bend him using the power given to Union Cabinet by Amended Article 74(1).  In such situation this Amendment is futile.  If the President belongs to some other party and does not obey the diktats of Union Cabinet, then also it is futile.  And also meaningless because it does not allow the Constitution to envisage a situation that is mentioned above. 

 

To the best of my knowledge, the Constitution has no remedy if such situation arises. 

 

 

 

 
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