By Dr Chaganti Nagaraja Rao
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| Dr Chaganti Nagaraja Rao |
Dr Sarvepalli Radhakrishnan, the
second President of India took a detached and yet a deep and comprehensive look
at the political panorama of the country. The relations between Radhakrishnan
and Nehru were most cordial but differences cropped between them on certain matters.
It was marked by critical events when the country went through the agonizing
ordeals of the death of two Prime Ministers, two wars and two droughts. When
the Chinese attacked the North-Eastern Frontiers, he didn’t hesitate to
attribute the retreat of India in the Indo-China war of 1962 to our credulity
and negligence. Radhakrishnan played a stabilising role through all these
turmoils.
The experience of the Prime
Minsters with the first two Presidents led the PMs to choose their own comrades
so that the PM’s will would prevail and conflicts between the two heads of the
country could be avoided. That was how Dr Fakhruddin Ali Ahmad became the
President. He proved that the President
was nothing more than a rubber stamp, simply obeying the dictates of the Prime
Minster. He did not hesitate a second to sign the bill to impose emergency in
July 1975 without considering its pros and cons.
His successor Dr Neelam Sanjiva
Reddy, who was elected unopposed, however, asserted that the President could act
on his own as and when the situation warranted. His tenure witnessed internal
and internecine quarrels in the ruling Janata party that led to the change of
Prime Minster, when he played a decisive role and installed Chaudhary Charan
Singh as Prime Minister in July 1979. When Charan Singh recommended the dissolution
of the Lok Sabha and order of fresh elections even without facing the
Parliament at least once, Sanjiva Reddy dissolved the Lok Sabha on his advice,
a hasty decision which met with severe criticism from all over the country.
Gyani Zail Singh’s tenure faced a
critical problem. Prime Minister Indira Gandhi was assassinated on October 31,
1984 and her successor incumbent was to be appointed. He took the advice of
seniors in the party and appointed Rajiv Gandhi, the son of Indira Gandhi as
Prime Minister and the succession was smooth. President Zail Singh had come
very close to taking up cudgels against the then Prime Minister Rajiv Gandhi
and was prepared even to threaten to dismiss him. He asserted his independent
position by refusing to give his assent to the Postal Bill. Similarly R
Venkataraman returned to the Government the Bill seeking to give pension to
Members of Parliament even with just a year of term.
Dr Shankar Dayal Sharma (1992-97),
KR Narayanan (1997-2002), Dr APJ Abdul Kalam and Mrs. Pratibha Patil maintained
normal relations with the Prime Ministers of their times. Pranab Mukherjee
maintained the dignity of office.
In view of the importance of the style
of working in the highest office of the land since its inception, it would be
of interest to study the role the President has to play under the Constitution.
Questions relating to the
relationship between the Prime Ministers and the Presidents have been a subject
of controversy right from the election of the first President. There were
differences between certain Presidents and Prime Ministers on certain crucial
issues. The fundamental question is whether the President can act independent
of the decision of the Council of Minsters or is bound by its advice. According
to an article by President VV Giri in The
Illustrated Weekly of India (during 1981), the President is a moral
authority and defender of the Constitution of India. As such he should not turn
into a rubber stamp without independent powers.
The provisions which deal with the
status, powers and functions of the President of India are contained in
Articles 52, 53, 60, 74, 75 and 78.
Article 52 of the Constitution says
that there shall be a President of India. It is an office of the highest honour
and dignity. According to Article 53 (1), “The executive power of the Union
shall be vested in the President of India and shall be exercised by him either
directly or through offices subordinate to him in accordance with this
Constitution.” The expression “either directly” empowers the President to act
on his own. As pointed out by Durga Das Basu, “There is no provision in our
Constitution making it obligatory upon the President to act only in accordance
with the advice tendered by the Council of Ministers.” (Commentary on the Constitution of India, 5th Edition,
Volume I, p 32). All executive action of the Government of India is taken in
his name. The supreme command of the Defence Forces is vested in him and is to
be exercised in accordance with law, as specified in Articles 53 and 57. As per
Article 75 the President appoints the Prime Minister and on his advice the
other Ministers. The Council of Ministers holds office during the pleasure of
the President.
According to Article 74 (1), “There
shall be a Council of Minsters with the Prime Minster as the head to aid and advise
the President in the exercise of his functions.” This clearly means that the
Council of Minsters (including the Prime Minster) can only assist the President
in discharging his duties, but cannot forcibly impose their will on him,
reducing him to the status of a subordinate to the Union Cabinet. Charles Henry
Alexeandrowicz says: “The provisions of Chapter I of Part V of the Constitution
relating to the Executive convey prima facie
the impression that the President of India, the head of the state, is also the real
head of the Executive and the Ministry is only there to aid and to advise him in
the exercise of his functions” (Constitutional
Development in India, page 127). Durga Das Basu expresses a similar view
when he says, “So far as the text of our Constitution itself is concerned,
there is no mandatory provision to compel the President to act according to the
advice of the Minsters, and there is no corresponding English rule, requiring
the President to act only under the counter-signature of a Minister.”
President of India is an integral
part of the Parliament. He summons the two Houses of the Parliament to meet. He
prorogues their meetings and is empowered to dissolve the Lok Sabha (Art. 85).
All Bills passed by the Parliament must receive President’s assent in order to
become laws. The President can promulgate Ordinances, on being satisfied about
the need for immediate action when both Houses of Parliament are not in session
(Art. 123) which has the effect of temporary legislation. The President is
empowered to summon the joint session of both Houses of Parliament in case of
final disagreement between them on a Bill.
The President under Article 354 may
restrict or prohibit the distribution of revenues. The President may suspend
the enforcement of Fundamental Rights under Article 359, when a Proclamation of
Emergency is in operation. In the case of failure of Constitutional machinery
in any State he is empowered to impose President Rule in that state.
The comparison between the English monarch
and the President of India should be understood correctly. In England, monarchy
was sold to Democracy through centuries, and conventions carry on the whole governmental
functioning. The King of England has no role to play in the governmental
activities unlike the President of India. The British monarch being a
hereditary ruler cannot possess the same powers as the Constitutional Head of
India, who is duly elected by the directly elected representatives of the
people. An even distribution of powers between the President and the Prime Minister
to ensure smooth working of the Constitution might be the idea of the framers
of the Constitution.
The powers of the Prime Minster of
England have grown gradually over the centuries and those of the monarch were reduced
by an equal degree. But in India such is not the case. The President, under the
Constitution of India, forever remains the Supreme Authority as and when the
situation calls for. But by a false interpretation of the meaning and
significance of the provisions relating to the Union Executive, in the course
of the working of our Constitution, our politicians devalued the highest office
of the land to the extent that it has become only an office of economic
superfluity without any significance attached to it, which poor India cannot
afford.
The Constitutional framers have not
incorporated any express provision requiring the President to act only in
accordance with the advice of the Council of Ministers in all cases and
circumstances. The expression ‘aid’ in the Constitution only means “to help the
President by way of suggestions and providing the required material in taking a
decision.” But this can neither add to the rights of the Council of Minsters
nor affect the position of the President.
What contributed to the declining
powers of the President during the last few decades or so is a set of
circumstances combined with the import of English conventions into Indian
Governmental activities. But conventions grow out of people’s political
sentiments and over several years of experience of the working of the
Constitution and they operate in areas not covered by any law validly made but
conventions cannot be imported from one political system into another political
system.
Article 74 (1) confers the
constitutional right on the Council of Ministers to advise the President and
the same article imposes a constitutional duty on the President to consider the
advice and give due weight to such advice. But the President being a single
individual, cannot pay attention to each and every detail of the day-to-day
administration. It has, therefore, become a practice to leave all such matters
to the Council of Minsters without President’s interference. But this practice
cannot, however, alter his position as and when the need for his direct action
arises. Further, Article 74 (1) clearly means that the functions of the Council
of Ministers are of advisory nature only. Under the provisions of the Constitution,
the President is not bound to accept each and every piece of advice tendered by
the Union Cabinet unless he is personally satisfied, and he can reject any
advice if it is in violation of any provision of the Constitution.
Although Article 74 (1) requires
the President to act with the aid and advice of the Council of Ministers in the
discharge of all his functions, there are certain areas where the President may
still have to use his own judgement and wisdom. He appoints the Prime Minster under
Article 75 (1) in a situation where no single party or coalition commands the
clear support of the majority of the members of the Lok Sabha. Appointment of a
Prime Minister of his choice in case of sudden death of the incumbents is the
exclusive power of the President. Dr S Radhakrishnan appointed Gulzari Lal
Nanda, the senior most member, both times when the office fell vacant after the
death of Jawaharlal Nehru and Lal Bahadur Shastri till the new incumbent was
elected. After Indira Gandhi’s assassination President Gyani Zail Singh
appointed Rajiv Gandhi duly accepting the advice of seniors in the Cabinet.
He dissolves the Lok Sabha under Article 85 (2) (b) on the advice of the
Council of Ministers that may have lost the majority support in Lok Sabha or
against whom a vote of no-confidence may have been passed. He dismisses
ministers under Article 75 (2) in case the Council of Ministers loses the
confidence of the House but refuses to resign.
Under the Parliamentary democracy
of India, the President is the head of the Union while the Prime Minister is
the head of the Government. Article 53 vests the executive power of the union
in the President. It clearly means that though the executive powers are
exercised by the Prime Minister and his/her respective council of Ministers
they are subject to approval of the President. The President, therefore,
exercises powers “directly or through offices subordinate to him in accordance
with the Constitution.” He has the most important responsibility of “upholding
the sovereignty and integrity of India.” The president, according to the
Constitutional framers, is not a titular head of the Government without any
powers to exercise, much less a rubber stamp, simply putting his signature and
stamp wherever the Prime Minister desires.
It is also clear that nothing therein makes ministerial advice binding on
the President. Articles 78 makes it mandatory for the Prime Minister to
“communicate to the President all decisions of the Council of Ministers
relating to the administration of the affairs of the Union and proposals for
legislation.” The Prime Minster has to
furnish information on these matters whenever sought. Article 77 (3) authorises
the President to “make rules for the more convenient transaction of the
business of the Government of India, and for allocating among Ministers of the
said business.” The President has, therefore, discretion to exercise executive
power vested in him directly. The Council of Ministers performs an advisory
role; he is free to accept or reject any advice tendered to him. The President enjoys discretionary powers
relating to the choice of the Prime Minister, the dismissal of a Government
when it has lost its majority in the House but refuses to quit office; and
dissolution of the House when an appeal to the country for a fresh mandate is
found necessary. All these provisions, when considered together, bring forth
the idea of the Constitutional framers that the President is a real but not
formal head of the Union.
The President under Article 111 has
absolute Veto power. When a bill is presented to President for his assent, he
may give his assent, may withhold his assent, or may return the bill. The
objective of veto power is to prevent hasty and ill-considered legislation and
to prevent a legislation which may be un-constitutional.
Article 53 (1) read with Article 75
would clearly mean that the real executive power is to be exercised by both the
organs jointly. This is in line with the British convention that “King in
Parliament is the Sovereign.” But while it is obligatory on the British Monarch
to accept the advice of the Cabinet, it is not so in the case of the President
of India, since it is expressly provided by Article 75 (2) that the Minsters
hold office during the pleasure of the President. It is further stated in
Article 74 (2) that “The question whether any, and if so what, advice was
tendered by Minsters to the President shall not be inquired into in any court.”
It clearly means that the President is empowered to act on his own in certain
circumstances. BN Rao says about this particular provision that, “it follows
that even if in any particular instance the President acts otherwise than on a
Ministerial advice; the validity of the Act cannot be challenged in a Court of
Law on that ground” (Indian Constitution
in the Making).
Our first President Dr Rajendra
Prasad had repeatedly said that he did not find a provision laying it down in
so many terms that the President of the Union was bound to accept and act upon
the advice of the Ministers. Stressing the need to clarify the President’s
function of giving assent to legislation independently, Dr Rajendra Prasad
said: “He may under certain circumstances return a Bill for further
consideration by the legislature concerned and suggest amendments.” He stated
with regard to the Hindu Code Bill: “My right is to examine it on its merits
when it is passed by Parliament before giving assent to it there. But if I find
that any action of mine at a later stage is likely to cause embarrassment to
the Government I may take such appropriate action as I may feel called upon to
avoid such embarrassment consistently with the dictates of my own conscience.”
(Constitutional Documents-Munshi Papers,
Vol. I, pp.578-582).
The President holds his office by
virtue of his election for a limited period of time and is liable for
impeachment for his acts in violation of the Constitution unlike the Monarch of
England who, in course of time, has lost all his/her powers to the Parliament.
The King of England cannot play a vital role in resolving conflicts between the
States and the Centre, and between the States themselves. In matters of State
legislation, the President has to act independently, for otherwise, the Union
Ministry may impose its will on the state by recommending withholding
President’s assent to the Bills passed by any State Legislature, particularly
when the party in power in the State is different from the party in power at
the Centre. If in such matters the President has to be bound by the decision of
the Union Cabinet awkward situations may arise leading to administrative
impasse.
What our Constitutional fathers
wanted would be that the President should act like the King of England in
ordinary times and like the President of the United States of America in
certain circumstances which may call for his direct action. While comparing the
President of India with the British monarch, Dr Rajendra Prasad says: “I am of
the view that the Constitution does not admit of a wholesale importation of all
practices and conventions of the British Constitution.” Dr KM Munshi rightly
says: “In adopting the relevant provisions the Constituent Assembly did not understand
that they were creating a powerless President. Several members of the
Constituent Assembly thought that the President was being given too much power.
The assurance given by Dr BR Ambedkar and Sir Alladi Krishnaswamy Iyer that he
had no such power, were their personal opinions. It was not the unanimous
opinion of the house” (The President of
India under the Indian Constitution, Second Edition, 1967, p 9).
There cannot be responsibility
without power. The President has got the responsibility of safeguarding the
nation, defend, preserve and protect the Constitution and ensure smooth and
harmonious functioning of the various organs of the Government, viz., the
Legislature, the Executive and the Judiciary which are united to one another
through the President. Such a high dignitary, representing the entire nation,
cannot be made powerless over the functioning of the entire Government, much
less a mere figurehead simply remaining a silent spectator of the political
games of the elected public representatives, leaving the nation to its fate and
spending a comfortable life in the luxurious habitat of the Raisina House or Presidential
palace (Rashtrapati Bhavan).
According to KM Munshi, “The
Constituent Assembly chose neither the British Parliamentary Cabinet form of
Government, nor the American Presidential form but a composite form in which
the Parliamentary form of Executive and a President with power and authority
were to function within the framework of the express provisions of the a
written Constitution.” He further
states: “The provisions were the outcome of a definite decision that the President
should be an independent organ of the State representing the whole union and
exercising independent powers.”
More than sixty seven years of
experience of the working of the Constitution proved beyond doubt that India
needs a powerful President to defend the Constitution and the people from the
political vagaries and executive tyranny. In a country like India with a
federal structure of Government, where there are no well-established
conventions and practices, a reserve power above the Union Cabinet, who is not
bound by party affiliations and obligations of favouritism, is a must. A
powerful President is an assurance of safety to the Nation and a symbol of
defence of the fundamental law of the land.
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