PRESIDENT PLAYS A CRUCIAL ROLE IN AN ERA OF COALITIONS
Hectic parleys are on in the capital to decide who’s going to be die next president once A P J Abdul Kalam steps down. But in Congress’s haste to push a party loyalist, one question seems to be forgotten: What is the role of the president?
Two views have been expressed about the president’s position. The firm view in that as a constitutional head of government his position corresponds to that of the British king or queen who reigns but does not rule. Like the British monarch, the president is under an obligation to act on the advice of his council of ministers. The contrary view is that the president swears to preserve, protect and defend the Constitution, and under Article 61 he can be impeached for violation of the Constitution. Therefore, he is not bound by an advice which attracts any provision of the Constitution. Moreover, his oath is unique which enjoins an extra duty on him apart from defending the Constitution shall devote me to the service and well-being of the people of India”. One can’t gloss over the fact that no other constitutional functionary is administered such an oath.
How far the president will be bound by the advice of the council of ministers was discussed in the Constituent Assembly when Rajendra Prasad asked: “Is there any real difficulty in providing somewhere that the President will be bound by the advice of the ministers?” B R Ambedkar then, 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 can conclude that the president is not bound by the advice of his ministers. Later, as president of India, Prasad in a famous lecture at the Indian Law Institute suggested a national debate on the role of the president since India was a federation in which the parties in power at the Centre and in the states could be different.
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 then attorney-general, MotHal Setalvad, and eminent lawyer, Alladi Krishnaswamy Ayyar; that he could not.
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 is why under Article 361 neither the president nor a governor can sue or be wed in respect of arty 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 personally” but acts on recommendations. However, the court drew a distinction between the governor and president. 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 for the president.
The Forty-second Amendment also made 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 state is “a nodding automaton”, as Ivor Jennings put it, or “a glorified cipher?” The Supreme Court answered this question also in Shamsher Singh: “Far from it… The President of 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” 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 president has a role even if he is sometimes described as a figurehead and a rubber stamp. But even a rubber stamp has its uses otherwise it would have exhausted its utility. In an era of coalition governments; at the Centre, the president’s role is crucial. Article 75 of the Constitution empowers him to appoint the prime minister, and this is the only; provision where he is not to act on the aid and advice of the council of ministers.
But does it mean that he can appoint anyone as PM? Article 75(3) makes it clear that the “Council of Ministers shall be collectively, responsible to the House of the People”. The two provisions are apparently conflicting since the PM and other ministers appointed by the president, who remain in the office at his pleasurc, shall be responsible to the Lok Sabha. To reconcile it, one has to go back to the Preamble which says, “We, the People of India, having; solemnly resolved to constitute India into a Sovereign, Secular, Socialist Democratic; Republic”. The use of the word, “democratic”, means that the people will is supreme.
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 the country must have a president who could dismiss the PM. The Congress has unsurprisingly ignored this advice.