In the year of India’s Azadi Ka Amrit Mahotsav, the election of Droupadi Murmu of the Santhal tribe to the highest office of the Indian Republic is not only a manifestation of women’s empowerment but also of social and political justice, the two preambular promises of the Constitution of India. While she took oath to “preserve, protect and defend the Constitution”, an important pledge to herself will be to ensure that her elevation does not remain only a piece of symbolism.
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” (ignore the gender presumption, if you please). Despite the expression “directly” in Article 53 of the Constitution, India’s President merely “reigns, and does not rule”. This was the view of B N Rau, who played a key role in drafting the Constitution. But K M Munshi, a member of the Constituent Assembly, and former Presidents Rajendra Prasad, Zail Singh and K R Narayanan challenged this interpretation. Munshi asserted that the President “was not only the highest dignitary of the realm, but the embodiment of the unity of the country. His principal role was to prevent a parliamentary government from becoming a parliamentary anarchy”.
There is no constitutional provision that obliges the President to act on the “aid and advice” of the Union Cabinet, though B R Ambedkar wanted such a provision in the ‘instrument of instructions’, or its constitutional manifestation as the Directive Principles of State Policy. After the Constitution came into operation, Rajendra Prasad, in a note to Prime Minister Jawaharlal Nehru, expressed the desire to act solely on his own judgement, especially when it came to giving assent to Bills and sending messages to Parliament. His reason was that Presidents have to act on the advice of the Union Cabinet only in ‘executive matters’ and not on ‘legislative decisions’.
This view was based on an accurate reading of Articles 86 and 111, which deal with legislative business, i.e., the presidential address to Parliament, and assent to Bills. Understanding the gravity of the request, Nehru appointed the then Attorney General M C Setalvad to study the matter and advise him. Setalvad recommended that the President is indeed meant to be a rubber stamp. The disagreement came up again in 1960, when Prasad reasserted his position at the inauguration of the Indian Law Institute.
While the true position of the President is somewhat similar to that of the British Monarch, there are differences. The allegiance owed by the British to their Monarch is derived from history, and her authority rests on traditions and conventions. The Queen is above party politics, but the Indian President is not since s/he is nominated by political parties.
The authority and status of the President depends on the powers s/he can exercise and the functions s/he can perform under the Constitution. Unlike the British Monarch, the President is not a hereditary Head of State. In fact, while the Prime Minister is the leader of just one House, the President is the leader of both Houses of Parliament. While the British Monarch can do no wrong, the Indian President can be impeached for violation of the Constitution. This is because her/his powers flow from the oath s/he takes under Article 60 to “preserve, protect and defend the Constitution” and submit herself/himself to the “service and well-being of the people of India”. While ordinarily s/he has to act on the advice of the Cabinet, the latter does not have the right to give her/him any advice contrary to the provisions of the Constitution.
If the President has no role to play, then why should s/he be liable to be impeached? If the President is responsible for “preserving, protecting and defending” the Constitution, how can s/he be obliged to sign any Bill that is not in consonance with the Constitution?
Article 79 of the Constitution states, “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People”. Making the President part of Parliament was essentially to integrate an effective inter-organ control device to check the powers of a strong Parliament. The President also has discretion in appointing and dismissing the Prime Minister, which will come into play when no party gets the clear mandate, or several leaders stake claim, or the Prime Minister loses a confidence motion.
In Ram Jawaya Kapur and ors. v. The State of Punjab, the court observed: “In the Indian Constitution, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature, is like the British Cabinet, a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” True, the President has no choice if after reconsideration, the Cabinet reiterates its original advice.
The tribal communities of India are facing a major threat of weakening of the Fifth and Sixth Schedules under Article 244 of the Constitution which provide them self-governance in specified tribal majority areas in nine states. Similarly, there is a threat to the Forest Conservation Act, 1980, the Mines and Minerals Act, 1957, and the Panchayats Act, 1996. Let’s hope that the new President will assiduously uphold, without fear or favour, the basic values and guiding ideals of the Constitution. She must follow in the tracks of Rajendra Prasad, Zail Singh and K R Narayanan, who refused to be rubber stamps. Through the intelligent use of the power to seek reconsideration of the Cabinet’s advice (as Narayanan did) and the use of her ‘pocket veto’ and right to be informed, as Zail Singh did, President Murmu can fulfil her oath and enhance the stature of her office.
(The writer is Professor of Law and Registrar, NLU Odisha)