Powers of the President of India – originally intended and what it is now?
As the word in general and our country in particular, passes through a phase where democratic values are being threatened before a surge in majoritarian hyper-nationalism, debates are on how to reverse the trend and restore Constitutional democracy. A persistent trait has been bypassing Constitutional norms and institutions under the garb of various rules to enforce tyrannical whims for meeting populist promises and not the harder issues facing the populace’s well-being. The book ‘Role of the President of India’ by Professor Balkrishna, an eminent political studies professor and the then Press Attaché of the first President of India Dr Rajendra Prasad, writes on the challenges faced by the President to understand the powers of the President of India in a newly minted constitution and the balancing act as a moral authority and the constitutional authority.
In India, our founding fathers birthed this republic in the crucible of the most destructive war (Word War 2), which the last such far-right surge had caused. Seeing the tyrannies of both imperialism (which they fought and ousted) and fascism (that triggered the war and the Holocaust), they realized to hedge against its resurgence and put in place checks and balances, which each organ of the government wields over the other. A particular feature has been creating the post of the President, which was reportedly to secretly guard against authoritarianism pervading the political executive, which would try to circumvent the Constitution, by entrusting it an outwardly ceremonial function.
However, over the years, for a host of political reasons, the ceremonial roles came to acquire precedence and became a permanent feature, with the office being often typecast as “titular”, one that always defers to the political executive, in popular narratives. But the book by Professor Balkrishna dispels that myth. With accurate references to Constitutional provisions, the book also reveals the invaluable forgotten power the President holds in safeguarding the Constitution that could be helpful in today’s times. But most importantly, the book answers how the President came about to becoming a mere political appointee. It was because of the interpretation of the word “advice” in Article 74 of the Constitution – where the “Council of Ministers aid and advise” the President – as legally binding, by successive governments, senior lawyers and jurists, with the view perpetuated over the decades.
An unfinished work that was completed by the author’s son, apparently on his expressed instruction. The book refers to instances in history where the President was coerced into signing off on the political executive’s roughshod whims. Prophetically, similar situations, albeit under a different political party, have played out today too.
A case in point are the emergency powers under Article 356, where the union government can dismiss a state government and impose the President’s Rule, in an exigent situation of a runaway state administration’s functioning flouting even the fundamental Constitutional norms. Examining whether the President was bound by such an advice of the Prime Minister, his Council and the state Governor, the author says “the President was not necessarily bound to act in accordance with that advice but had to satisfy himself that the said advice of the Prime Minister was not out of malice towards the Party in power in that state.”
This was made possible by the “tacit adoption of the doctrine of advice of the Council of Ministers”, which led to democratically elected Communist government in Kerala being dismissed in the 1950s. “Second was how President Fakruddin Ali Ahmed was coerced by Indira Gandhi to sign the emergency in 1975. After that in the 1980s, Gandhi used it to dismiss the Janata Party governments in the states, when the Congress had stormed back to power at the Center,” the author adds. Only last year, the state government of Jammu & Kashmir being dissolved in August 2019 this way.
As proof that the President was never meant to ultimately be a rubber stamp, the author simply points out that the Constituent Assembly would never have inserted the expression “withhold his assent” with regards to the President’s powers to approve a law, if he was never meant to have any powers to veto it. “They would have also inserted a provision where his veto could be overridden. Also, if the President was always supposed to act in accordance with the advice of the Council of Ministers, then there was no reason whatever to provide for his impeachment under Article 61 of the Constitution,” it said.
Victorious parties at the center have to meet the President to prove their majority before forming the government, as a part of a laid down procedure. But, the President “also has the power to dismiss the PM. But such an extreme situation has not yet arisen and would happen too in extreme circumstances where the PM, who commands a majority in the LS and political support in the whole country, needs to be removed from office,” the author says.
Possibly the most pertinent observation in the book is the attempt to dispel notions of likening the Indian President’s post to the monarchy in England. While both, apart from being broadly ceremonial heads, are greatly different in the nations’ surrounding histories and social milieus. “The King or Queen of England comes to occupy the office of the monarchy in accordance with the principle of heredity…Also, once the king or queen falls out with the cabinet, he or she has to abdicate the throne,” says Professor Balkrishna in the book. In India, the President has a fixed five year tenure.
Multiple instances of the ruling political dispensation’s arbitrary ways qualified as situations where the President could have exercised these powers. But the fact that his candidature as per law is the prerogative of the ruling party, which uses its brute majority to get him elected and then perpetuates the falsified interpretation of the “advice” as being binding, preventing his challenge, is an indication of the grim times we are in.
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