Anjuru Chandra Sekhar (Advocate ) 07 June 2012

How president was turned into puppet by government

How President’s powers were reduced by Indian Parliament

By 24^th Amendment act, President’s power to refuse any unconstitutional amendment made by Parliament is taken away by Parliament:

This was how Article 368 appeared originally as written by authors of Constitution. The President of India enjoyed such great powers that unless the President of India gives his assent to the Bill passed by majority of not less then two-thirds of the members of that House present and voting, the Constitution could not be amended.

368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to the effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

In 1971 Parliament introduced 24^th Amendment Act through which it made the following amendment that ‘takes away’ the power of President of India that gives him power to refuse any Amendment passed by Parliament as originally given to him by Dr. Ambedkar and his team:

(c) in clause (2) as so re-numbered, for the words "it shall be
presented to the President for his assent and upon such assent being
given to the Bill", the words "it shall be presented to the President
who shall give his assent to the Bill and thereupon" shall be
substituted;

Authors of Constitution maintained Doctrine of Separation of powers and gave equal powers to President of India (Executive) as Parliament (Legislature) enjoys

Article 3 says unless the President gives his assent for the introduction of Bill for the purposes mentioned in (a) to (e) of Article 3 after ascertaining the views of such State legislatures that will possibly be affected by such actions as mentioned in (a) to (e). Article 3 makes the President of India enjoy power over Parliament of India in the matters referred in (a) to (e) of Article 3 of Indian Constitution. Fortunately this Article is not touched by the Parliament as far as President’s powers are concerned simply because after amending Article 368 and Article 74, the Parliament felt it is unnecessary to alter every Article of the Constitution where President enjoys power over Parliament.

3. Parliament may by law-

(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;

(b) increase the area of any State;

(d) alter the boundaries of any States;

(e) alter the name of any State:

Provided that no Bill for the purpose shall be introduced in either House of the parliament, except on the recommendation of the President and unless, where the proposal contained in the Bill affects the boundaries of any State or States specified in Part A or Part B of the First Schedule or the name or names of any such State or States, the views of the Legislature of the State or, as the case may be, of each of the States both with respect to the proposal to introduce the Bill and with respect to the provisions thereof have been ascertained by the President.

This is how Article 3 looks like now.

3. Formation of new States and alteration of areas, boundaries or

names of existing States.-Parliament may by law-

(a) form a new State by separation of territory from any State or by

uniting two or more States or parts of States or by uniting any

territory to a part of any State;

(b) increase the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State:

_6[Provided that no Bill for the purpose shall be introduced in either

House of Parliament except on the recommendation of the President and

unless, where the proposal contained in the Bill affects the area,

boundaries or name of any of the States _7***, the Bill has been

referred by the President to the Legislature of that State for

expressing its views thereon within such period as may be specified in

the reference or within such further period as the President may allow

and the period so specified or allowed has expired.]

_8[Explanation I.-In this article, in clauses (a) to (e), "State"

includes a Union territory, but in the proviso, "State" does not

include a Union territory.

Explanation II.-The power conferred on Parliament by clause (a)

includes the power to form a new State or Union territory by uniting a

part of any State or Union territory to any other State or Union

territory.]

Amendments made to Article 3 of Constitution

THE CONSTITUTION (FIFTH AMENDMENT) ACT, 1955
[24th December, 1955.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:---

1. Short title.-This Act may be called the Constitution (Fifth Amendment) Act, 1955.

2. Amendment of article 3.-In article 3 of the Constitution, for the proviso, the following proviso shall be substituted, namely:-

"Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States specified in Part A or Part B of the First Schedule, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.".

Article 74 originally written like this :

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.

Later it was amended by 42^nd Amendment Act and after it was amended, it looks like this:

Article 74 Council of Ministers to aid and advise President

(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:
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.
(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.

Later through 42^nd Amendment Act, “act in accordance with such advice” has been added.

13. Amendment of article 74.-In article 74 of the Constitution, for
clause (1), the following clause shall be substituted, namely:-

"(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.

Later through some other Amendment they have inserted the sentence:

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.

I have not yet located through which amendment this sentence has been included in Article 74. But when you see the difference between the Article 74 that is originally made and Article 74 as it looks like now, you will understand how Parliament played foul with Constitution and reduced the powers of President of India (Executive) and hurt the balance of Separation of powers between Legislature, Executive and Judiciary. Introduction of this sentence (appearing in red above) and inclusion of phrase “act in accordance with such advice” through 42^nd Amendment Act 1976 has made President of India a mere dummy or puppet whatever you like to call.

He remained a Constitutional Head of State just for the stake of putting a Stamp on the decisions made by Parliament. His independence is totally taken away by Amendments in Article 74 and it started giving an impression that Article 74 gives sweeping powers to Parliament and Union Cabinet to exercise control over “all matters related to all Articles in the Constitution”. So even at places where separation of powers were appearing very clear and President apparently enjoyed power over Parliament (like Article 3 where it clearly appears President’s role is very crucial and Bill for a New State can never be introduced in Parliament without the assent of President of India) Article 74 seems to suggest that “the President shall act in accordance with the advise of council of ministers, in exercise of his functions”. So the phrase “in exercise of his functions” started appearing like a phrase that includes all powers of President in all Articles of Constitution and by virtue of amendments made to Article 74 (2) the Union Cabinet has gained total control over “all functions of President of India as they appear in all Articles of constitution”. Hence even though Article 3 says “no Bill for the formation of new State shall be introduced in Parliament without the assent of President”, the amended version of Article 74 gives power to Union Cabinet to “force the President to give his assent to any change proposed through any provisions of Article 3.

Parliament is greater than Union Cabinet. Parliament is equal to President of India. That is how the Doctrine of separation of powers were followed by B.R. Ambedkar and his team in their original version of Constitution of India. Later when Parliament amended Constitution to its own advantage, the power of President of India has been reduced to “power lesser than Union Cabinet”!

Not even more than Union Cabinet and lesser than Parliament! They have directly reduced the power of President of India to power lesser than Union Cabinet through amendments in Article 74. That is why President appears like a fellow who has no “dignity whatsoever” in Indian democracy. If the Spirit of Constitution as originally written by Dr. Ambedkar was followed the President would have remained a Power equal to that of Indian Parliament.

(This article was shared with Electonic Media by me in the year 2005 two years after I was removed from the services by ING Vysya Bank Ltd. where I was working as Asst. Manager)

Reply Follow

4 Replies

Anjuru Chandra Sekhar (Advocate ) 07 June 2012

I request the members of forum to pardon me if some of the views expressed in the article do not appear Moderate. Seven years back I was not that matured and I was carrying young blood. So some views may have turned extremist, lacking in moderation.

Anjuru Chandra Sekhar (Advocate ) 07 June 2012

Congress party made it easier for BJP to create a Hindu Rashtra by inserting Article 13(4) and Article 368(3), through 24^th Amendment Act, 1971.

Nothing in Indian Constitution is untouchable for the purpose of Amendment (24^th Amendment of Constitution, 1971)

I read the controversy between Judiciary and Parliament regarding the judgment delivered by Supreme Court in the case of Keshavananda Bharati Vs. State of Kerala, saying “the basic structure of the Constitution” cannot be altered. After having read the controversy between Legislature and Judiciary regarding the amendments the Legislatures make and the argument of Judiciary that the “basic structure of Constitution cannot be altered”, I had gone through Article 368 of Indian Constitution. After having gone through the entire Article and all provisions of that Article, I am surprised to note that “nothing in Indian Constitution is untouchable for the purpose of Amendment including Fundamental rights of Citizens”. And I also realized that the Judiciary is wrong in saying the “basic structure of Constitution cannot be altered” because the Indian Constitution did not remain in its “original form” because of amendments made to Article 13 and 368.

Read Article 368 (1) which says, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. When this provision (Art.368-1) clearly says, any provision of Constitution can be amended by way of addition, variation or repeal why the Supreme Court says, the basic structure of the Constitution cannot be altered? I would say, such judgment is inconsistent with the Spirit of Article 368(1) of Indian Constitution. There is no need of any further explanation as to what the authors of Constitution meant by “addition, variation or repeal of any provision of Constitution” it is as clear as spoon feeding. Certain Amendments are difficult to be made because they also require the resolutions from more than half of State legislatures apart from 2/3^rd majority of both Houses of Parliament (the quorum being not less than half of the Total number of members of each House). More than that the procedure of Amendment nothing in Article 368 has suggested to me that there is any part (including fundamental rights of Citizens) that cannot be amended by Parliament.

But the controversial 42^nd Amendment amended the Preamble itself by adding the words “socialist” and “secular” to the words, “sovereign”, “democratic” “republic”. I doubt whether Article 368 has any provision to alter the Preamble of the Constitution. Article 368 only speaks of “provisions of the Constitution”. If Preamble of the Constitution is also treated as one of the provisions of the Constitution by Parliament that is a different issue. But it shall become very clear to anyone who goes through Article 368 that “nothing in Indian Constitution is untouchable for the purpose of amendment”, only procedures are difficult.

I found it very amusing to note that even Fundamental rights are not beyond the power of Parliament for the purpose of amendment. Read Article 13(4) which says : (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

We will find similar provision or clause in Article 368 (3) which says : (3) Nothing in article 13 shall apply to any amendment made under this article.

And what is there in Article 13? Let us see.

Article 13 Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part (Part III, Fundamental rights), shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise required, - (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

How do you interpret Article 13(4), if you have the capacity to understand it in the light of Article 13 (1 – 3) of Constitution? One side Article 13 (2) says, the State shall not make any law which takes away or abridges the rights conferred by this part (this part means Part III Fundamental rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. The other side, Article 13(4) says, nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368. It means that Part III Fundamental rights can be changed or amended! This provision i.e., Article 13(4) and Article 368(3) were inserted by 24^th Amendment Act of Parliament in 1971 after Supreme court’s judgment in Golaknath case.

(The Supreme Court in the well-known Golak Nath's case [1967, 2 S.C.R.
762] reversed, by a narrow majority, its own earlier decisions
upholding the power of Parliament to   amend all parts of the
Constitution including Part III relating to fundamental rights.   The
result of the judgment is that Parliament is considered to have no
power to take away or curtail any of the fundamental rights guaranteed
by Part III of the Constitution even if it becomes necessary to do so
for giving effect to the Directive Principles of State Policy and for
the attainment of the objectives set out in the Preamble to the
Constitution.   It is, therefore, considered necessary to provide
expressly that Parliament has power to amend any provision of the
Constitution so as to include the provisions of Part III within the
scope of the amending power……24^th Amendment 1971)

Fundamental rights contain important provisions relating to Article 14 Equality before law, Article 15 Prohibition of discrimination on grounds of religion, race, caste, s*x or place of birth, Article 16 Equality of opportunity in matters of public employment, etc. etc. upto Article 35 of Indian Constitution.

In other words, the Constitution can be amended in such a way that India can be changed to a Theocratic State like Pakistan by repealing or modifying the provisions of Article 15 of Indian Constitution!! Article 368 (5) again reiterates :

(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.

Now the point to be noted by Parliament is without repealing the entire provision of Article 13(2) which says, “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”., the Parliament cannot insert Article 13(4) which totally contradicts Article 13(2). But Article 13(2) remained as a testimony to the fact that our Parliamentarians have “no Bheja”.

And another point to be noted by Parliament is it is easier to create “Hindu Rashtra” because of Article 13(4) and Article 368(3), than forming “Separate Telangana State”. The reason is it only requires approval of 2/3^rd majority of each House of Parliament (quorum being not less than half of the total membership of each House) for the Amendment of Part III Fundamental rights which also include the Right to practise any Religion of Choice (Article 15). But to make a separate Telangana State, we have to follow the procedure enunciated in Article 368 (2) (d) Representation of States in Parliament, which requires, apart from the approval of both Houses of Parliament in above fashion, the resolutions by more than half of the number of State legislatures in Indian Union to that effect. Hence it is easier to create “Hindu Rashtra” than to create a “separate Telangana State” if we understand the implications of Article 13(4). And it should be noted that it is Congress party that was in Power in 1971 at Centre and it made the way easier for “Hindu rashtra” by inserting Article 13(4) and Article 368(3), through 24^th Amendment Act.

Hence by arguing against the Judicial activism and seeking the Judiciary to not intervene in the matters related to Legislatures, the Left parties and UPA are actually helping the BJP’s cause of Hindu Rashtra.

*********

Encl. Article 368 (below)

Article 368 Power of Parliament to amend the Constitution and procedure therefor

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in -
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
(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.
(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.

Anjuru Chandra Sekhar (Advocate ) 07 June 2012

This article was also shared with Media during same period, i.e, 2005 or so.

Democratic Indian (n/a) 08 June 2012

No doubt Article 13(4) and Article 368(3) are contradicting the very purpose of Article 13(2) and also defeating the very purpose of guarantee of fundamental rights under Part III. As per Article 13(4) and Article 368(3), the guarantee of fundamental rights under Part III is no guarantee but a deception, a joke or an absurdity at the best. In other words Parliament can remove all fundamental rights from Part III and make it empty! What a joke is this with people of our country?

If parliament can amend anything or everything in the Constitution, then what is the point of having a written Constitution? To have a banana republic?

It needs to be understood that arms and property are basic human rights and fundamental rights that ensure freedom and liberty. If these rights are subverted every other fundamental right surely starts getting eroded. This is exactly why to protect all other fundamental rights, the 2nd Amendment was enacted by the framers of U.S. Constitution. First the tyrants disarm the citizens, then they take away freedom of speech, then they take away freedom of property, then they say you to shut up and say you are enjoying the rule. This is exactly happened and is happening in India in this perfect sequence. Read below to understand the basics:

Throughout the freedom struggle our politicians protested against the Arms Act of 1878, demanding for every Indian citizen the right to keep and bear arms. For example in Nagpur around 1923 or 1924 there was a Satyagraha movement against the prevailing Arms Act. This movement attracted Satyagrahis from all over India, it went on for six months and the Indian National Congress put its seal of approval on this Satyagraha movement against the Arms Act. In fact even the Father of Nation, Mahatma Gandhi, protested for the right of every Indian citizen to keep and bear arms, going so far as to state that, “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms, as the blackest”.

The Indian National Congress in it's historic 1931 Resolution on Fundamental Rights passed at Karachi stated “This Congress is of opinion that to enable the masses to appreciate what Swaraj as conceived by the Congress will mean to them, it is desirable to state the position of the Congress in a manner easily understood by them...” “...The Congress, therefore, declares that any constitution...” please note these words - any constitution, “...which may be agreed to on its behalf, should provide or enable the Swaraj Government to provide for the following...” and various fundamental rights are enumerated, among which was also this one-- “Every citizen has the right to keep and bear arms in accordance with regulations and reservations made in that behalf.”

The first attack on freedom and liberty: attack and reduce the most important freedom of all freedoms i.e. to keep and bear arms.

1. The moment the politicians were transferred power by British, they changed colours and forgot their promises to the people. Explicit enumeration of arms as fundamental right which was mentioned in the draft Constitution was removed from final Constitution. The fact that arms are still recognized as fundamental right by Article 19 was cleverly hidden from public knowledge.

The second attack on freedom and liberty: attack and reduce the freedom of speech and expression

2. 1st Amendment to the Constitution was done under some excuse to restrict freedom of Speech and Expression.

The third attack on freedom and liberty: attack and reduce the freedom to own property.

3. 44th Amendment done to reduce property to a mere legal right. Please note the language of legislature in this amendment, it is saying that Constitution is "granting" fundamental rights! It is has not even applied its mind that Constitutions or any government documents cannot "grant" fundamental rights, but can merely guarantee fundamental rights.

Now we all are enjoying the results!

Do we now need to be reminded of the following truth?

The usual road to slavery is that first they take away your guns, then they take away your property, then last of all they tell you to shut up and say you are enjoying it. -- James A. Donald

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How president was turned into puppet by government

Amendments made to Article 3 of Constitution

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Congress party made it easier for BJP to create a Hindu Rashtra by inserting Article 13(4) and Article 368(3), through 24^th Amendment Act, 1971.

Nothing in Indian Constitution is untouchable for the purpose of Amendment (24^th Amendment of Constitution, 1971)

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How president was turned into puppet by government

Amendments made to Article 3 of Constitution

4 Replies

Congress party made it easier for BJP to create a Hindu Rashtra by inserting Article 13(4) and Article 368(3), through 24th Amendment Act, 1971.

Nothing in Indian Constitution is untouchable for the purpose of Amendment (24th Amendment of Constitution, 1971)

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Congress party made it easier for BJP to create a Hindu Rashtra by inserting Article 13(4) and Article 368(3), through 24^th Amendment Act, 1971.

Nothing in Indian Constitution is untouchable for the purpose of Amendment (24^th Amendment of Constitution, 1971)