JOIN USEvery party in power wants ‘a nodding automaton’ as president but, while in the Opposition, it wants an activist president.Immediately after getting elected as President of India and again after taking oath of the office, Pranab Mukherjee said that he would preserve, protect and defend the constitution.
The question arises why did he say so when the president is bound by his oath to ‘preserve, protect and defend’ the constitution? He also made a slight departure from the precedent by raising policy issues like poverty, corruption, education and the ‘fourth world war’ by which he meant the war against hunger after the cold war. All this has raised question whether Mukherjee will redefine the presidency.
It is after a long gap that an active politician has occupied the Rashtrapati Bhavan. Gaini Zail Singh was the last active politician who was handpicked directly from the Union cabinet in the wake of terrorism in the Punjab. Mukherjee was not only an active politician, he was the government’s troubleshooter and virtually running the government. Thus, he was in the thick of politics. Now, all of a sudden, he is expected to be above politics.
Though the president is expected to remain non-political, how much heat the presidential election can generate became evident in 1969 when Indira Gandhi, in order to humble her ‘Syndicate’ bosses, pitted V V Giri against Congress’ official candidate N Sanjiva Reddy and advocated a ‘conscience vote’. Giri’s victory marked her first major triumph within the Congress party which got split. In 1977, Sanjiva Reddy became the natural choice for the post when the Janata Party government took over as he had been denied this opportunity in 1969.
His relationship with prime minister Morarji Desai was also marked by extreme pungency as revealed in bitter correspondence between the two. Reddy sought explanations from Desai about the visit of his son Kanti Desai to Tehran and his role in the prime minister’s personal affairs.
During the tenure of Zail Singh the relationship between the president and the prime minister hit a new low with the rumour afloat that the president had aired his views publicly that he enjoyed even the power to dismiss the prime minister triggering a bitter national debate. Zail Singh’s successor R Venkatraman restored sanity to office. He defined president’s role as an ‘emergency light’ which automatically goes off as soon as the normal government takes charge.
So, the question arises as to what is the role of the president? How far the president will be bound by the advice of the council of ministers was discussed in the Constituent Assembly also when its president, Dr Rajendra Prasad put this problem categorically: “Is there any real difficulty in providing somewhere that the president will be bound by the advice of the ministers?” Dr Ambedkar clarified: “We are doing that. If I may say so, there is a provision in the Instrument of Instruction.” Since no such Instrument of Instruction was incorporated in the constitution one may rationally conclude that the president was not bound by the advice of his ministers.
Power of the President
Later as the President of India Rajendra Prasad, in his famous lecture at the Indian Law Institute, suggested a national debate on the power of the president since India was basically a federation in which the parties in power at the Centre and in the states may be different. But subsequent developments finally clinched the matter in favour of the council of ministers.
When Prasad wanted to know whether he could use his discretion on the Hindu Code Bill he was firmly advised by the Attorney General, Motilal Setalvad and the eminent lawyer, Alladi Krishnaswamy Ayyar, that he could not. In fact, Dr Prasad also wrote to prime minister Nehru in September 1951 asking whether he could exercise his judgment. Nehru wrote back stating emphatically: “The whole conception of constitutional government is against any exercise by the president of any such authority.”
The Shamsher Singh case finally established that the president is the constitutional head and obliged to act on the advice of his council of ministers.
That’s why under Article 361 neither the president nor a governor can sue or be sued in respect of any action notwithstanding the fact that all executive action is taken in the name of the president or of the governor because “neither the president nor the governor exercises the executive function individually or personally” but he/she acts on recommendations. The court drew a distinction between the governor and president, and though it conceded some discretionary powers to the governor under Article 163, it categorically ruled that Article 74 does not refer to any such discretionary power on the president.
The Forty-Second Amendment also made it explicit what was implicit in Article 74 that the president shall act in accordance with the advice tendered by the council of ministers. Does it mean that the head of the State is ‘a nodding automaton’ as Ivor Jennings put it or ‘a glorified cipher?’
The Supreme Court answered this question also in Shamsher Singh case: “Far from it…The President in India is not a glorified cipher…but actually vested with a pervasive and persuasive role.” Justice Krishna Iyer elucidated that the president represented ‘the majesty of the state,’ and enjoys a rapport with the people and parties. So he might ‘chasten and correct’ the government. The Forty-Fourth Amendment further clarified the president’s role by adding a proviso to Article 74 that the president could return any recommendation once for reconsideration.
The problem is that every party, while in power, wants ‘a nodding automaton’ as the president but, while in the Opposition, wants an activist president. Minoo Masani once told Indira Gandhi that he wanted a president who could dismiss the prime minister.
It is to be seen how Pranab Mukherjee treats his new assignment.