ON July 22, India elected the 13th president of the republic since the constitution came into force on Jan 26, 1950. He is Pranab Kumar Mukerjee, a veteran who has held high offices in the Union cabinet, most notably as minister of finance, his forte.
But he was also defence minister for a time and visited Pakistan as minister for external affairs. A politician to his fingertips, he is also an efficient administrator. Few of his predecessors could claim the experience he has acquired in the last four decades.
To superficial observers within India and outside, India’s presidency presents the aspect of a well-run institution. Nothing can be farther from the truth. The first two presidents, both men of the highest distinction, came close to abusing the office to amass power for themselves in total subversion of the constitution. In 1987, President Zail Singh was on the verge of sacking Prime Minister Rajiv Gandhi arbitrarily and unconstitutionally. In between there have been ‘rubber-stamp’ presidents who were ever eager to do as they were told by a powerful prime minister, Indira Gandhi.
The text is simple, perhaps misleadingly so. Article 52 says, “There shall be a president of India” while Article 53 provides that “The executive power of the Union shall be vested in the president and shall be exercised by him either directly or through officers subordinate to him in accordance with this constitution” and that “Without prejudice to the generality of the foregoing provision, the supreme command of the defence forces of the Union shall be vested in the president and the exercise thereof shall be regulated by law.” The president is not elected directly but by an electoral college consisting of central and state legislators. The prime minister, however, is responsible to the Lok Sabha, the directly elected lower house of parliament.
One would have thought that this indicated the proper equation. Article 74 provided originally that “There shall be a council of ministers with the prime minister at the head to aid and advise the president”. This was misread with Article 75, which says: “(1) The prime minister shall be appointed by the president and the other ministers shall be appointed by the president on the advice of the prime minister…. (2) The ministers shall hold office during the pleasure of the president.” The misreading lay in the argument that the prime minister’s advice was not declared by the constitution to be binding on the president and, in any case, that he held office “during the pleasure of the president.”
This flew in the face of repeated assertions in the constituent assembly by the chairman of its drafting committee, Dr B.R. Ambedkar, and by Jawaharlal Nehru that the president would occupy the same position as the crown does in Britain. The main objective was declared at the outset by Vallabhbhai Patel on July 15, 1947 that the committees dealing with the Union and state constitutions “came to the conclusion that it would suit the conditions of this country better to adopt the parliamentary system of constitution, the British type of constitution with which we are familiar”. Hence, the use in the texts adopted of language in vogue in British practice for the crown’s powers.
Ambedkar explained on Nov 4, 1948, “Under the draft constitution the president occupies the same position as the king under the English constitution. He is the head of state but not of the executive. He represents the nation but does not rule the nation…. The president of the Indian Union will be generally bound by the advice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice.”
The president of the constituent assembly, Dr Rajendra Prasad, heard all this. But as the first president of India he cited the letter to subvert the entire scheme. He sent a note to Prime Minister Nehru on March 21, 1950, less than two months after he became president, contending that he enjoyed vast discretionary powers. The attorney general, M.C. Setalvad, the best India has had, opined against him. He sent another note in 1951. The AG again opined against him.
As for his successor, Dr S. Radhakrishnan, then-US ambassador Chester Bowles records in his memoir, “On several occasions he expressed to me in a half-joking manner the wish that somehow after Nehru’s death or retirement the whole country could operate under president’s rule for a few months.”
Prasad failed because parliament and the nation supported Nehru completely. Radhakrishnan failed because none supported him. His successor, Dr Zakir Hussain, who died after two years in office, would have emerged as the best India had had if he had but lived for the full term. On his death in 1969 the Congress party split. Indira Gandhi would take no chances. One rubber-stamp president was elected after another. Article 74(1) was amended in 1976 to make it clear that the president “shall, in the exercise of his functions, act in accordance with” the advice of his ministers. In 1978 this was qualified by a proviso which enabled him to ask the council of ministers to “reconsider” its advice, but “the president shall act in accordance with the advice tendered after such reconsideration.”
Elected in 1992, Dr Shankar Dayal Sharma accepted the curbs as proper but wielded the limited discretionary power which belongs to the British crown — to advise, to encourage and to warn. He asserted his independence on Dec 6, 1992, the day the Babri mosque at Ayodhya was demolished, by a statement which raised the president’s stature: “The president, Dr Shankar Dayal Sharma, has strongly deplored vandalism that has caused damage to the masjid in Ayodhya … has requested the prime minister to initiate appropriate expeditious steps to uphold the rule of law.”
He rendered high service in restoring the balance. In 2012, the president is neither a rubber stamp nor a power centre; he is a monitor, a custodian of constitutional values. It only remains to be added that since 1955 the Supreme Court of India has repeatedly cited British conventions and laid down beyond dispute that it is a proper parliamentary system which the constitution of India establishes.
The writer is an author and lawyer based in Mumbai.