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Why It’s Dangerous To Assume That The President Of India Is Just A Figurehead

Huffington
By Professor  

As India readies to welcome a new President, questions abound about the significance of the changing of the guard. How does India's President affect the functioning of the polity? Is he a mere figure-head, a ceremonial personage meant to "rubber stamp" the decisions of the Prime Minister? Or is there more to the role than meets the eye? This time of transition at Rashtrapati Bhavan once again highlights the importance of these questions, which the nation has been grappling with since its inception.

The conventional narrative has it that in India's parliamentary system of government, the President is relatively insignificant. He is allotted very few powers, to be exercised mostly in unusual circumstances, when the government is going through something of a turbulent time. For example, the President it is said becomes relevant when a PM resigns or refuses to demit office despite losing the confidence of the House or when an election throws up a hung Parliament. During ordinary times, however, in the "day to day administration" of the government, the President must yield to the advice tendered by the PM. However, the practical working of the government has not always conformed to this neatly demarcated narrative.

Doubts about the exact nature of presidential power cropped up shortly after independence, during the drafting of the Constitution. The provision outlining the relationship between the President and PM stated that "There shall be a Council of Ministers [COM] with the PM at the head to aid and advise the President in the exercise of his functions." Dismayed Constituent Assembly members contended that this formulation was rife with ambiguity. Rajendra Prasad for instance pointed out that this provision did not clearly spell out that the President would be "bound" by the aid and advice of the PM and COM.

In response, the principal drafter of the Constitution B.R. Ambedkar, indicated that he believed the language of this provision [which became Article 74 of the Constitution] sufficiently indicated that the President would be bound by the PM's advice. He even went on to suggest in an exchange with Prasad that constitutional language elsewhere established the PM's supremacy over the President. However, the "Instrument of Instructions" he was referring to did not survive the drafting process. Thus Article 74 found a place in the Constitution amidst doubts in the minds of some framers about the power and position of the President relative to the Prime Minister.

Indeed, the issue was far from resolved. Rajendra Prasad and PM Jawaharlal Nehru began to skirmish over the precise nature of presidential power shortly after the completion of the Constitution. Prasad persistently raised uncomfortable questions about the potential powers of the President, which complicated the passage of key legislations championed by Nehru such as the Hindu Code Bill. He pointed out in many exchanges with Nehru that the Constitution never specifically mentioned that the President was bound to accept the aid and advice of the COM headed by the PM.

The thrust and parry between Prasad and Nehru on this issue continued for several years. Prasad did eventually back down and acquiesce to the primacy of the PM, upon the urging of numerous constitutional scholars such as Attorney General MC Setalvad. However, he was never entirely convinced and continued to express his dissatisfaction with the way the President's role had been interpreted, at times publically. During the inauguration of the Indian Law Institute in 1960, for instance, he famously doubted the necessity of conforming to British precedent in the matter of relations between the Crown and PM, which had formed the template for the Indian Constitution's articulation of the role of the President.

One would think that this confusion over the proper scope of the relationship between the President and PM would have been resolved by the 42nd Constitutional Amendment passed in 1976. Language was inserted via this amendment into Article 74 of the Constitution clearly compelling the President to follow the aid and advice of the COM headed by the PM.

However, another controversy flared up between the President and PM shortly afterwards, when the first non-Congress government came to power in 1977 in the aftermath of the Emergency. Then Prime Minister Morarji Desai wanted to dismiss Congress-led state governments which in his eyes had lost the support of the public. However the acting President BD Jatti refused to comply with this directive, as required by Article 74. The Law Minister at the time, Shanti Bhushan, has recounted that it was only after the PM dispatched a sternly worded letter to Jatti that he gave in and a constitutional crisis was averted.

Another dimension of Presidential power came to light in the 1980s in the form of a device known as "pocket-veto." Its emergence highlights the fact that despite a written Constitution specifying the President's role, "grey areas" concerning the scope of his (or her) powers persist. In this case, the India Post Office (Amendment) Bill of 1986 was passed by both Houses and sent to President Giani Zail Singh for assent, as per the Constitution. But Singh, whose relations with PM Rajiv Gandhi had soured considerably by this point, broke with precedent and never gave his assent. He didn't refuse, he simply failed to respond. As a result the controversial Bill, which gave significant powers of mail interception to the government, never became law and it was said that the President had "pocketed" the bill—hence the term pocket veto.

In fact in more recent times also the President has courted controversy by refusing to follow the aid and advice of the PM-led cabinet. According to a recent article published in the magazine Caravan, President Pranab Mukherjee has on several occasions gone against their aid and advice in commuting death sentences. The author of the Caravan article describes this act of defiance by Mukherjee as "unprecedented."

As the nation welcomes the latest occupant of Rashtrapati Bhavan, it must ponder over the continued ambiguity characterising the constitutional set-up regarding the powers and role of the President. Clearly intended to be a figure with great dignity and prestige and on occasion vested with powers to exercise, the precise contours of the President's position have been hard to pin down. This is a post that must be watched closely for the unexpected and often undetected way in which it can influence the direction of national affairs. This is especially so now given the volatility pervading the country over sensitive matters surrounding religion and caste.