President: window in the wall between ruler, ruled

India’s first President tried very hard to influence India’s first Prime Minister, but did not succeed either to ‘‘turn his course’’, or ‘‘trouble his mind’’! He had complained about this to Minoo Masani: he told Masani that Panditji did not allow him to exercise the powers which he though he had under the Constitution. Years later, Masani shrewdly observed that Rajendra Babu did not have the force of Nehru’s personality, gave in too readily, and yet went on grumbling (as he gave in) saying: ‘‘this is not the way we framed the Constitution.’’ Masani also said: ‘‘when people say what is wrong with this Constitution, I say nothing is wrong, what is wrong is us, we have destroyed the Constitution because people in Delhi love power too much to tolerate either a strong President or a strong State’’!

Minoo Masani was a member of India’s Constituent Assembly of which Dr Rajendra Prasad was President, but his views about a ‘‘strong President’’ do not find support in the Constitution they together helped to frame. At the same time, the Constitution of 1950 did not envisage a mere cipher or figure-head as President.

The office of India’s Head of State is an elected one. The Constitution of India of 1950 provided (in article 74) that ‘‘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’’. That is all. Like the Monarch in England, the President of India was expected to act not on his own but on the advice of his Council of Ministers—since they alone were collectively responsible to the Lok Sabha, its members being directly elected by the people. The rest was wisely left to convention and constitutional practice.

But we never know when to count our blessings. During the emergency imposed from 25 June, 1975, when many members of Parliament belonging to Opposition parties were placed under detention, the Government of the day rushed through Parliament the Constitution (Forty-second) Amendment Act, 1976. One of its provisions substituted a new clause for article 74(1). It read: ‘‘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.’’

What was previously left to constitutional convention was incorporated as a mandate in the written text. Those who drafted this provision did not harken to the warning of Walter Bagehot—that same wise chronicler of a bygone age—who had written that when ‘‘you have a select committee on the Head of State, its charm is gone; its mystery is its life; we must not let in daylight upon magic.’’

Certain features of constitutional law are best left to conventions. But after the 1976 amendment, the role of the President was confined to that of a titular functionary; he had to act according to the wishes of his Ministers. When the Janata Government came to power after the March, 1977. Elections, they moved a Constitutional amendment in 1978, adding a proviso to the substituted provision that had been introduced in 1976. It read: ‘‘Provided that the President may require the Council of Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration’’.

Since 1978, the President has, on some occasions, in fact required his Council of Ministers to reconsider advice tendered to him, to the enduring benefit of the public weal. In March 1996, for instance, President Shanker Dayal Sharma returned the Representation of the People Ordinance, 1996 (aimed at shortening the period of the poll campaign from three weeks to two weeks) and the Constitution (Scheduled Caste) Amendment Ordinance, 1996 (intended to extend reservations to a large number of Dalit Christians) on the ground that promulgation of such Ordinances on the eve of elections would not pass the test of ‘‘constitutional propriety’’. The Government wisely acquiesced to the President’s view.

I am one who believes that the President of today (and of tomorrow) can, and must, play a more meaningful role in the governance of this great country. The times urgently demand it, and the Constitution does not (within limits) prohibit it.

The President provides the window (perhaps the only window or opening) in that wall of separation that divides those in governance from the rest of the populace. Even after the Constitutional Amendment obliging him to act in accordance with the reconsidered advice given by his Council of Ministers, there is no prescription as to the time when he should so act. Time runs in the President’s favour; and the astute President Giani Zail Singh used this to great advantage.

When the Indian Post Office Amendment Bill, 1986 was submitted to him for assent, there was much criticism of its provisions, particularly the one which permitted an interception of all communications through the mail by the Government of the day. Although the Bill was passed by both Houses, Gianiji paused. He did not assent and reportedly stated before demitting office that he hoped that his successor would not clear it.

As a consequence, the public outcry against the Bill gathered greater momentum, and the Bill lay unsigned on President Venkatraman’s desk who, having expressed his own displeasure at the Bill, returned it to the Rajya Sabha. The Bill was tabled again in the Rajya Sabha on 12 March 1990, where it still remains, a pending Bill!

All of which illustrates how a Head of State can successfully ‘choke-off’ unpopular legislation by just doing nothing—by a calculated process of deliberate inaction, an unpopular and regressive measure can be successfully prevented from becoming enacted law!

The British Constitution is not written. But it recognises that the Monarch on rare but important occasions is entitled to intervene in public affairs in a way that may be decisive. The President of India, as its First Citizen, has the constitutional right, and correspondingly the duty, to interpose in public affairs of great moment, giving of his wisdom—privately, never publicly; quietly, never with fanfare. An elected President notionally represents the collective will of the people and he can use it and must use it to temper the occasional excesses of its elected representatives.

In October 1997, the incumbent President of India returned the unanimous recommendation of his Ministers that President’s Rule should be imposed in the State of Uttar Pradesh, requesting the Cabinet to reconsider its recommendation. It was reconsidered and the Government headed by Shri I. K. Gujral, decided not to press its prior recommendation.

On those very rare occasions, when Parliament or the Government chooses to do something which the President of India believes to be unconstitutional or even morally wrong or improper, it is his function, right and duty to intervene and to make known his views. An illustrative instant in point would be an excessive prolongation (by a proposed constitutional amendment) of the life of an existing Parliament which would keep in office a Government whose normal term has run out, and which is anxious to avoid elections.

But, then how must a President as a constitutional Head of State, do this? Many years ago, a former Chief Justice of Pakistan provided the answer. He was asked by his country’s President (during that country’s initial experiment with democracy) whether he could constitutionally refuse to give his assent to a Bill passed by the National Assembly (Pakistan’s first Constitutional after Independence was like ours—fashioned on the Westminster model). Chief Justice Munir’s answer went something like this: If you think it is a matter of the gravest importance, and you cannot in all conscience accept the measure presented to you, you can, and you must (if you are true to your oath) refuse assent—but having refused assent you must then resign; the system must go on; people will know why you resigned, and will sort things out with their Government.

Pearly words of wisdom: they show how important, and how potentially effective, is the great office of the President in a parliamentary democracy.

(Fifty Years of Indian Parliament, edited by G C Malhotra and distributed by Metropolitan Book Co. Pvt Ltd , Rs 1,500)