When tyranny permeates hot summer wind, India requires an activist, not a conformist President

It’s clear that in our constitutional scheme of things, the principal preserver, protector and defender of the Constitution is the President, not the chief justice of the Supreme Court and much less the prime minister.

Written by Manish Tewari | New Delhi | Published:May 30, 2017 8:55 am
President of India, Pranab Mukherjee, Constitution, The President is constitutionally mandated and empowered to be the first responder in case there is an assault or even an insult to the Constitutional fabric. File/Express Photo by Tashi Tobgyal

The President of India occupies a peculiar position in the Indian Constitution. On paper he is vested with a lot of authority, but in reality he is supposed to be a mere rubber stamp who endorses and thus legitimises every decision of the executive, however illegitimate it may be. Unlike the Governor, who has the powers to recommend the dismissal of a state government, the President doesn’t have the same authority qua the Union government.

Article 53 of the Constitution vests in the President the executive power of the Union as also the Supreme Command of the Defence Forces. The phraseology of the Article, however, puts the Presidency seemingly on a tight leash as exemplified by the construct of the second proviso of this Article that states, “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.”

In fact the President may well ask the question: What is this law which circumscribes the untrammelled exercise of the Supreme Command of the Indian Defence establishment?

Article 74 (1) of the Constitution, which further titularises the Presidency, goes into the nub of this power conundrum: 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, the President shall act in accordance with the advice tendered after such reconsideration.

Thus the rites of passage of the emasculation of the Presidency seem to be truly consecrated in concrete.

However, a crucially important distinction is contained in the subtle wording of Article 60, which details the Oath or Affirmation that must be sworn by the President before s/he enters office. This includes the key phrase, “… (I) will to the best of my ability preserve, protect and defend the Constitution and the law…”

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This is what sets the Presidency apart. All other constitutional functionaries, including the Vice President, the Prime Minister and even the Chief Justice and/or the Comptroller and Auditor General of India swear an oath that obliges them to “bear true faith and allegiance to the Constitution of India as by law established”.

It’s clear that in our constitutional scheme of things, the principal preserver, protector and defender of the Constitution is the President, not the chief justice of the Supreme Court and much less the prime minister. The President is constitutionally mandated and empowered to be the first responder in case there is an assault or even an insult to the Constitutional fabric. It therefore automatically flows from the above that the Presidency can well go beyond the boundaries of both Article 53 (2) and 74 (1) if it envisages that a constitutional transgression is being perpetrated.

Therein lies the opportunity for the parliamentary Opposition to find a candidate who is well versed in these constitutional subtleties, and not diffident about using these constitutional prerogatives if push comes to shove.

That’s why the chosen one must spend the campaign period, say from June 16 to July 16, travelling across the country and articulating and expounding upon his perception of the role and responsibility of the Presidency, as propounded by the founding fathers in the Constitution and succinctly encapsulated in it’s Preamble.

The reason why this Presidential bulwark is more important than ever before is because the current NDA/BJP government does not believe in either the founding vision of India, fundamental freedoms guaranteed by Part III of the Constitution and other constitutional guarantees, including the rule of law essential for the basic functioning of any civilized nation.

The last three years bears eloquent testimony to the repeated, brutal and sustained assaults on the freedom to think, express, eat, wear clothes of your choice or even enjoy the liberty of India’s public spaces. The conception of a public space that catalyzes original and creative thinking, celebrates dissent and respects an alternative view point, howsoever virulent it may be, is anathema to this government.

Public lynchings in the name of the cow and the new Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, notified by the government on its third anniversary, are all designed not to protect bulls, bullocks, cows, buffaloes, steers, heifers, calves and camels, but to emphasize the otherness of people.

In an atmosphere of fear and trepidation when tyranny permeates the hot summer winds, India does not require a conformist President, it requires an activist one. It does not require a copybook President, it requires a President whose only book is the Constitution of India. Copybooks were unable to prevent the unconstitutional overthrow of democratically elected governments in Arunachal Pradesh and Uttrakhand run by Opposition parties, neither protect the subversion of the democratic mandate in Goa and Manipur, nor push back on the orchestrated and calibrated attempt to disband the Republic of India and create a theocratic oligarchy.

That is why the Opposition cannot and must not agree to a President by consensus. A consensus is always a subscription to conformism. A contest, on the other hand, would allow the joint opposition the opportunity to once again lay before the people the Constitutional vision of India, in sharp relief to the paranoid jingoism of majoritarianism that we have today.

It would also unroll the philosophical stencil for the 2019 General Elections.

As for candidates the Opposition should look at, beyond political players, are people who have experience in defending the Constitution. These include retired chief justices like Manepalli Narayana Rao Venkatachaliah, Tirath Singh Thakur, Justices AP Shah and Santosh Hegde, the eminent jurist Fali Nariman or the gentleman who is a personal witness to the evolution of India, Dr Karan Singh. The litmus test of such a candidate must be “who” can push the Constitutional envelope beyond the current pale to protect and defend it.

Manish Tewari is a lawyer and a former minister in the UPA government. He also serves as a Distinguished Senior Fellow with the Atlantic Council based in Washington DC.
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