All the President’s powers

As currents draw on the greatest democratic exercise the world has witnessed, the focus shifts to a rather diminutive man with a tall standing…the President of the Republic. Satta and poll pandits foretell that my labour is wasted and May 16 will be a no-brainer for Pranab Babu. For whatever is worth, here is the Da Vinci Code version of the Rashtrapati.

England has an unwritten Constitution where customs, conventions and traditions have played an important role. The right of the Monarch (as noted by famous jurist Walter Bagehot) to “be consulted, to advise and to warn” is one such example. When the Government of India Act was enacted in 1935 and when we did a “cut and paste” to make this our constitutional structure in 1949, in essence, we tried to put into words centuries of unwritten norms. The Rashtrapati replaced the Sovereign and Article 75 simply gives him the right to appoint a Prime Minister (PM). On the advice of the PM, he then appoints his “Council of Ministers” (CoM). It is implicit that the PM would enjoy the confidence of the House of the People as Article 75(3) states that the CoM “shall be collectively responsible” to such House.

Article 74 requires the President to act as per the “advice” of the CoM. (The bitter experience of President Fakhruddin Ali Ahmed and the Emergency spurred the Janata Government to insert by the 44th amendment, the right to seek reconsideration, but a second time the President would have no choice but to fall in line). But what about, if before all this the CoM is in place? Jurists have attempted to examine this “constitutional silence” and past Presidents have wracked their heads over it.

For example, Neelam Sanjeeva Reddy chose to call Charan Singh to form a government though Morarji Desai continued to claim majority status, yet R Venkataraman chose to call defeated Rajiv Gandhi to form the ministry though VP Singh was the uncrowned king of the 1989 elections. With the experience of the National Front in memory, Shankar Dayal Sharma insisted that the Vajpayee government of 1996 secure a “vote of confidence” though there was no constitutional precedent and usually a “no-confidence motion” was the recognised method of dislodging a majority government. As it was the coalition era, this became a norm.

Truth be told, the Indian Constitution has many a surprise for the curious student. Few may be aware that the term “political party” made its maiden appearance only in 1985 when Rajiv Gandhi introduced the Tenth Schedule on political defections. The chapter on the appointment of PM made no mention of political parties, letters of support, confidence motions, etc. The President is left with complete discretion to decide who enjoys the confidence of the House of the People. In 1991, we discovered that this “confidence” was enjoyed by a Rajya Sabha member who vindicated himself by securing a thumping entry via Nandyal to the Lower House. In 1996, this confidence was vested in a “farmer” who was a member of neither house but a beneficiary of Jyoti Basu’s “historic blunder”.  Since 2004, the Guwahati-based Sikh member of the Rajya Sabha has the confidence of the Lower House.

In my disjointed narrative, I have no doubt you have figured out my rather simple point — the Constitution leaves it all to the President. Jurists such as PB Mukherji have decades ago red flagged the “cipher” or (as one incumbent aptly put it) “shoe polisher” status that our President had been reduced to. Why an elaborate oath of the President to “protect, preserve and defend the Constitution” included in the Constitution’s main body (Article 60), when oaths for other offices stood relegated to the Third Schedule? Why such an elaborate system for election of a man who is only to be a ceremonial salute taker? 
While the apex court in Sahib Ram Jawaya Kapur case (1955) sealed the lid early on by bluntly stating that the President was bound by CoM’s advice, the republicans point out that Article 74 which makes the President act as per the Cabinet advice is in Part V, Chapter 1, dealing with “executive powers”. They argue the President has independent constitutional powers in respect of which the Constitution does not circumscribe his discretion. For example, in the appointment of a Prime Minister, in dissolving the Lower House, in seeking advice of the Attorney General, in giving assent to a legislation and in exercise of his mercy jurisdiction. The fact of the matter is that in most of these matters, the Presidents over the years, have yielded their powers. However, there have been cases when Presidents have held their ground. Rajendra Prasad sparred with Nehru over the Hindu Code Bill. Zail Singh saved the nation from the Postal Bill by using his “pocket veto” (simply sitting over it). Kalam also had returned the Office of Profit Bill and had expressed reservations about the imposition of President’s Rule in Bihar. Most recently, if new leaks are to be believed, Rahul Gandhi’s ambitious five-pack anti corruption ordinances were grounded by Pranab Mukherjee’s sharing with ministers his views on legislating through ordinances.
If conspiracy theorists are to be believed, President Kalam had expressed his views in 2004 about a foreigner taking over the nation’s reins. This has been denied by the dramatis personae. Be that as it may, what I have been trying to express in a longwinded way, is that our founding fathers have evolved a special role for the President and it is for the holder to mould and shape his office. Did we know how powerful the CEC could be before TN Seshan or the CAG before Vinod Rai?

Coming back to May 16, in the event of a hung Parliament, instead of palace intrigues, horse-trading, letters of support, the President could resort to Article 86 and send a message to the Lok Sabha asking the House itself to nominate a Prime Minister. Time has also come to look at constitutional amendments relating to fixed terms for Parliament and a no-confidence motion to be compulsorily coupled with a confidence motion in another PM with a rider that both motions should pass. 

India can ill afford any more instability and distraction from its task of nation building. The President as the custodian of the Constitution must ensure that this summer’s democratic exercise does not go in vain. 

The writer is an advocate practising in the Supreme Court and the Delhi High Court