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Article 74 of the Constitution, amended in 1976 and 1978, establishes beyond doubt that the President is bound by the advice of the Council of Ministers, writes AG Noorani.

india Updated: Sep 17, 2007 23:51 IST
AG Noorani

The framers of the Constitution drew up an instrument of ‘Instructions to the President’ and one to governors, codifying their rights and duties. Unfortunately, they dropped both. On July 17, 1947, Sardar Patel told the Constituent Assembly that "a Schedule according to (sic.) the traditions of responsible government will be framed and put in”. He explained, “The governor is liable to impeachment and he must know that he acts under a specific responsibility and he will know his duties. Therefore, the Schedule must contain the specific duties that he has to perform. What the conventions are should be specified fully and in detail”.

The incontestable logic eluded those who abandoned the instruments. In 1947, it was decided to provide for elected governors. The cha-nge to nominated ones does not dispense with the need for clarity and accountability, which a code ensures. There was, in any case, no such change in regard to the President.

In October 1948, the Assembly’s Drafting Committee drafted an Instrument of Instruction to the President as Schedule 111-A to the Constitution. The Fourth Schedule instructed Governors. B.R. Ambedkar repeatedly referred to them in the Assembly, on November 4 and December 31, 1948 and May 23, 1949, to reassure the members. However, on October 11, 1949, shortly before the Constitution was adopted, a member of the Drafting Committee, T.T. Krishnamachari, announced that Schedule 111-A would not be moved and the one for governors, already adopted, would be deleted. “It has now been felt that the matter should be left entirely to convention rather than be put into the body of the Constitution as a Schedule, in the shape of Instrument of Instructions… it is felt to be entirely unnecessary and superfluous to give such directions in the Constitution, which really should arise out of conventions that grow from time to time, and the President and governors, in their respective spheres, will be guided by those conventions.”

Ambedkar’s apologia was as unconvincing; namely, that there was no “functionary” to ensure implementation and governors had “hardly any discretion at all”. Experience has proved the wisdom of Patel’s words: “What the conventions are should be specified fully and in detail.” If his advice had been followed, we would have been spared a lot at the Centre and in the states.

We now have some clear conventions and a few grey areas. Article 74 of the Constitution, amended in 1976 and 1978, establishes beyond doubt that the President is bound by the advice of the Council of Ministers. He can call for its reconsideration but is bound by it if “tendered after such reconsideration”.

Ten rules are fairly clear: (1) The President is entitled before according his assent to question Bills, proclamations imposing President’s Rule appointments to public offices, and policies. (2) He is entitled to full compliance with the PM’s “duties” laid down in Article 78 with respect to the furnishing of information to the President. (3) The President has, in Bagehot’s famous words, “the right to be consulted, the right to encourage, the right to warn” tacitly, and the right to criticise in private. (4) He is entitled to express in measured words disquiet or alarm in public at the state of affairs. He has no right to criticise the government in public. One of the greatest constitutional lawyers ever, Sir Arthur Berriedale Keith, said, “The rule that the crown shall not comment on public affairs contrary to the views of the ministry applies strictly to public comment and clearly demands prudence and caution in regard to private observations.” President K.R. Narayanan’s reproachful speech at the banquet in honour of President Bill Clinton on March 21, 2000, was improper. Reportedly, the practice of the MEA vetting the President’s banquet speeches was abandoned when President S.D. Sharma was in office. A President is not entitled to air his personal views publicly on matters of policy contrary to those of the government.

(5) The practice is now firmly established of the President receiving leaders of the Opposition, singly or in delegation, chief ministers as also other critics of the government, to lodge protest against the government’s actions. He offers no comment, but is entitled to seek the PM’s comments on the protests and, if need be, to speak to him. (6) It is as firmly established that the President is not bound by the PM’s advice to dissolve the Lok Sabha but is entitled to exercise his discretion in the light of established rules. (7) The President is entitled in his own discretion to return a Bill to Parliament for its reconsideration but is bound to accord his assent if the Bill is passed again by Parliament. Attorney General M.C. Setalvad’s opinion to the contrary on October 6, 1960, that this power is to be exercised on “the advice of the ministers” was pure ipse dixit. He referred neither to Article III nor to the debate in the Constituent Assembly on May 20, 1949. They belie him.

(8) Likewise, his later opinion on September 24, 1951. Article 86 confers on the President the right to address and send messages to either or both Houses of Parliament. Ordinarily, no sensible President can be debarred from doing so if he thinks that the Union is in peril. (9) The President is entitled to insist that the PM should secure a vote of confidence from the Lok Sabha within a stipulated period, either at the time of his appointment or when a coalition partner withdraws support. This is an Indian innovation. (10) The existence of the power to dismiss a minister or the ministry is not in doubt. There is unanimity on fears of its abuse.

There are three grey areas. One concerns constitutional authorities. If the President can consult the Attorney-General, there is no reason to bar him from meeting the Chief Election Commissioner or the Comptroller and Auditor-General provided that all he does is to seek information. He has no right to advise them. Second, the President’s status as C-in-C of the armed forces is only an adjunct to his office as President. In June 1999, President Narayanan summoned the three service chiefs to discuss the Kargil crisis in the absence of the defence minister. Radhakrishnan’s record on this is not a good precedent. Rajendra Prasad acted properly in 1951 when he asked Defence Minister Baldev Singh and Generals Kulwant Singh, Carriappa and Thorat to brief him on reports of Pakistan’s military moves in Kashmir. He next wrote to the PM, Jawaharlal Nehru, “giving him a gist of my talk”.

But he also summoned the Defence Secretary HM Patel for a briefing. The President has no right to summon civil servants behind the back of the minister. On President Narayanan’s summons, the Chairman and MD of Indian Airlines, Anil Baijal, met him on June 8, 1999, to clarify its plans for financial restructuring. The President had reservations about the caretaker government’s decisions. Ministers can ask civil servants to brief the President.

The Supreme Court ruled in 1993 that "once it is established to the satisfaction of the court that a particular convention exists and is operating, then the convention becomes a part of the ‘constitutional law’ of the land and can be enforced in the like manner”. This fortifies the case for their codification. As the Report of the Republic Advisory Committee set up in 1993 asked, “Is it appropriate, in a democracy, for fundamental elements in that democracy to be left in an uncertain form, understandable only (and then imperfectly) by those trained in law and political science?"

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