Below is the full text of a speech by the Senior Advocate of the Indian Supreme Court Fali S Nariman during the release of the book ‘The Role of the President’ by Professor Balakrishna in Mumbai on 25th September 2015.
An Appreciation of Professor Balkrishna’s Treatise
I am delighted that Commodore Arun Kumar, son of the scholarly Professor Balakrishna, has published his father’s treatise on the Role of the President of India. So little has been said (and written) about the role of India’s PRESIDENT that every new piece published is a welcome addition to the Head of State’s functions under the Constitution, about which so little is said in the Constitution itself.
We of the older generation were brought up to believe that the Constitutional position of India’s President was similar to that of England’s sovereign. But India’s first President, the only one to be elected for a second term, refused to accept this. The Constitutional position of England’s sovereign, had been described in eloquent prose more than a hundred and fifty years ago by a great political journalist of his time, Walter Bagehot:
“To state the matter shortly, the Sovereign has, under a constitutional monarchy, three rights – the right to be consulted, the right to encourage, and the right to warn. And a king of great sense and sagacity would want no others. He would find that his having no other would enable him to use these with singular effect. He would say to his (First) Minister: ‘The responsibility of these measures is upon you. Whatever you think best must be done. Whatever you think best shall have my full and effectual support. But you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. I do not oppose, it is my duty not to oppose; but observe that I warn’. Supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his Minister. He might not always turn his course, but he would always trouble his mind.”[1]
Dr. Rajender Prasad, India’s First President, tried very hard to influence Panditji, India’s first Prime Minister, but did not succeed either to “turn his course”, or “trouble his mind”! He then complained about this to his friend Mr. Minoo Masani. He told Masani that Panditji did not allow him to exercise the powers which he thought 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 shaking his head, and 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. And yet, I am now convinced that the Constitution of 1950 did not, and does not, envisage a mere cipher or figure-head as President. And this is because of the silences in our Constitution about the powers and functions of the President – what Professor Balkrishna eloquently describes as ‘reserved powers’ of the President, which (according to Professor Balkrishna) ‘come into operation only when and if he (the President) is faced with a situation in which he shall be violating his oath if he were to act in accordance with the aid and advice tendered to him by the Union Council of Ministers.’
The President, as we all know, is a Constitutional functionary – having no political power. In order to emphasise that the President as a Constitutional Head cannot over ride his Council of Ministers a proviso had been added in 1978 to Article 74(1) in the Constitution – by a Constitutional Amendment (the 44th Amendment) – it said that despite the fact that the President was mandated to act in accordance with the advice of his Council of Ministers, he could require his Council of Ministers to reconsider such advice either generally or otherwise; but that when such advice had been reconsidered and again tendered to the President he was compelled (constitutionally) to act in accordance with that advice.
At the time when the Tenth Lok Sabha had, all but in name, been dissolved, the then Government of Prime Minister Narsimha Rao placed two draft Ordinances before President Shankar Dayal Sharma for promulgation – namely, one for shortening the period of poll campaigns from three weeks to two weeks, and the other to extend reservations in public employment or (quotas) to Dalit Christians. Relying on the proviso to Article 74(1) of the Constitution President Sharma sent back the draft Ordinances to the Government – with a Note dated March 19, 1996 which read:
“I would like to inform you that independent of the relative intrinsic merits of the Ordinances proposed, promulgating these Ordinances would appear to be inappropriate and contrary to the canons of Constitutional propriety in view of circumstances existing at this particular juncture.”
And since nothing a Prime Minister or President says or does in our country remains a secret(!), the contents of President Sharma’s communication to the Prime Minister soon became known. And the wisdom and sagacity of a President (even though a constitutional Head of State) often trumps the political compulsions of an elected government. That is how a constitutional democracy functions, and must function. The Government of the day dropped these Ordinances and did not press for their promulgation: fearful as always, of those opening words in the Constitution We the People.
A Second instance that I recall occurred during the Presidentship of President K. R. Narayanan when Mr. Gujral was Prime Minister. The Council of Ministers headed by Mr. Gujral sent to the President for promulgation a Proclamation under Article 356 of the Constitution – for the introduction of President’s Rule in Bihar. Acting under the proviso to Article 74(1) President Narayanan returned the Proclamation for a reconsideration by the Cabinet – giving as he always did, elaborate reasons for his view. Again, this became widely known and the Union Government under Mr. Gujral wisely refrained from reaffirming it and sending it back to the President; if it had, the public (“We the People”) would have been against the Government: in politics, discretion is often the better part of valour!
I believe that 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. His role is, as Professor Balkrishna writes:
“….. as the ballast of the Ship of State which keeps it on an even keel without in any way hampering the working of the Master of the ship of State.”
Even after the Constitutional Amendment making it obligatory for the President to act in accordance with the re-considered advice given by his Council of Ministers (Article 74), 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 Post Office Bill 1987 was submitted to him for his assent, there was much public 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 of Parliament, Gianiji paused: he harkened to public opinion. He could sense the public outrage, and he responded to it by not giving his assent. – a bold but calculated move. Before demitting office he wrote on the files that he hoped that his successor would not clear the Bill![2] As a consequence, the public outcry against the Bill gathered greater momentum, and the Bill lay unsigned even on the desk of successor President Venkataraman; the latter, having expressed his own displeasure at the Bill, returned it to the Prime Minister of the day (Mr. V. P. Singh) in January 1990; the Bill was then tabled again in the Rajya Sabha: where it still remains, officially and only in name a ‘pending Bill’ – in actuality, a Parliamentary relic![3]
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! And this – by exploiting one of the deliberate silences in the Constitution as to when a Bill passed by both Houses of Parliament should be assented to by the President. No one suggested that Gianiji had defied Parliament, no one moved for his impeachment: the obvious reason of course was that the President had the firm backing of public opinion.!
The British Constitution is not written. But it recognises that the British Monarch on rare but important occasions is entitled to intervene in public affairs in a way that may be decisive. As the constitutional historian of England, Walter Bagehot, used to say “the greatest wisdom of a constitutional King would show itself in well – considered inaction”. Another constitutional pandit suggested that the monarch (a Constitutional Head of State) could legitimately, if extraordinarily, intervene even in the legislative process – as for instance if a Government Bill is designed to achieve a permanent subversion of the democratic basis of the constitution, it could be vetoed: by the monarch. [4]
Gianiji was un-tutored about what went on in Westminster, but he had astute political horse-sense: he could sense that the people were behind him when he delayed (and then withheld) assent to the Post Office Bill. And in politics nothing succeeds like success!
I myself was witness to an exhibition of constitutional statesmanship by our beloved late President A.P.J. Abdul Kalam. On 25.2.2005, he delivered the customary address to both Houses of Parliament to herald-in a new session. As you know the Constitution provides for a Presidential address at the commencement of each session. It does not say who is to prepare it – but this is decided by convention. Since the President acts only on the advice of his Council of Ministers, the address is prepared by the government of the day. But on the morning of 25th February, 2005 President Kalam made a departure – he had with him the full text of the written speech prepared by the Government – which he read. But to begin with he also read a poem in Tamil, (a poem composed not by the Government of the day but by himself the previous nightJ It was called – “Where are We”?
Where are we?
Where are we now, dear friends,
In the Maha Sabha that shapes our history,
The call of heart beats of Indian people,
People ask us, people ask us;
Oh! Parliamentarians, the sculptors of Mother India,
Lead us unto light, enrich our lives.
your righteous toil is our guiding light,
If you work hard, we all can prosper.”
Like King, so the people,
Nurture great thoughts, rise up in actions,
May righteous methods be your guide;
May you all prosper ever with Almighty’s grace.
It was a criticism of Parliamentarians and their erstwhile manner of functioning – firmly, but politely expressed in verse.! It was meant as a gentle exhortation from the people’s President to the country’s representatives not to walk out of Legislative Chambers, but to work hard and do their job: and since the President could not alter the text of his address to both Houses of Parliament, he devised the expedient of saying (what he had to say) in verse – and it was well received!: an instance of an enlightened Head of State taking advantage of one of the great silences in the Constitution – to slightly amend a Constitutional convention – and exhort the people’s representatives to perform their task as Parliamentarians with honesty of purpose and with dedication. No one could fault him on expressing the sentiments of the vast majority of India’s thinking millions.
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 – he can use it (and I believe he must use it) to temper the occasional excesses of its elected representatives.
I am of the view that 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 express his views publicly: an illustrative instance 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, express his disapproval? It was (believe me) a former Chief Justice of Pakistan who provided the answer – many many years ago! 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 constitution 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 President in a parliamentary democracy: but they also show that the words of the Constitution though important are never decisive: because the silences in our constitutional law speak louder than words.
[1] The English Constitution by Walter Bagehot (republished in 1991 by the Fontana Press – p.113)
[2] Memoirs of Giani Zail Singh: The Seventh President of India – Har-Anand Publications Pvt. Ltd., New Delhi 1997 page 279.
[3] See Working a Democratic Constitution by Granville Austin (1999) Oxford University Press P=513-514.
[4] Rodney Brazier: Constitutional Practice (1994) 2nd Edition pages-189-192