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No, Mr President

None | ByAG Noorani
Jul 25, 2006 12:17 AM IST

The constitutional issue that has arisen with Parliament re-enacting the OoP Bill, without amendment, must be discussed fully now. Will the President be free to withhold assent once again? asks AG Noorani.

The constitutional issue that has arisen with Parliament re-enacting the Office of Profit Bill, without amendment, must be discussed fully now. Will President Abdul Kalam be free to withhold assent once again? The answer can only be emphatically in the negative. He has no option but to accord his assent. A refusal would be grossly unconstitutional. Nor can he sit on the Bill and exercise what is called ‘the pocket veto’. President Zail Singh’s action on the Postal Bill is a warning to heed, not an example to emulate.

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Conventions are formed by a series of actions accepted by all, e.g., the President or Governor’s stipulation to a new ministry to seek a vote of confidence from the House. As Lord Esher, an authority on precedents and adviser to two kings said, “Precedent, like analogy, is rarely conclusive.” On this Jernings aptly remarked, “Precedents create a rule because they have been recognised as creating a rule. It is sometimes enough to show that a rule has received general acceptance.”

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However, no convention, still less a solitary precedent, can override the clear text of the Constitution, especially if the perpetrator of the precedent himself admitted to its unconstitutionality. Zail Singh received the Postal Bill on December 22, 1986. He was to demit office on July 25, 1987. He raised queries, but was not satisfied with the answers.  Read this confession in his memoirs: “There were two options before me — either to give assent to the Bill as sent to me or to return it with a message to Parliament. I did not exercise either of them. In case I returned the Bill, Parliament was bound to reconsider it and, if it was passed by both Houses again, I could not withhold assent. Till then no Bill had ever been returned by the President under Article III of the Constitution. I could have set a new precedent. But my intention was not merely to carry out an exercise. I wanted to give a chance to the government to peep into their hearts...” (p.278)

He thus explicitly admits that Article III gave him only two options and he took neither. Granville Austin’s comment is sound: “This was the first ‘pocket veto’, a thing not envisaged in the Constitution.”  On January 6, 1990, Prime Minister V.P. Singh advised President R Venkataraman to return the Bill to Parliament for reconsidering the offending clause. “I immediately acceded to the advice,” R. Venkataraman records in his memoirs.

The fundamental on which the constitutional edifice rests was enunciated at the outset by Sardar Patel at a joint meeting of the Union and Provincial Constitution Committees of the Constituent Assembly on July 21, 1947. India had opted for “the parliamentary system of Constitution, the British type of Constitution”. The Chairman of the Assembly’s Drafting Committee, B.R. Ambedkar, said on November 4, 1948, while introducing the draft Constitution in the Assembly: “Under the draft Constitution, the President occupies the same position as the King under the English Constitution.”

The Supreme Court has repeatedly endorsed this as the law and also affirmed the relevance of British conventions of the parliamentary system in the interpretation of the written text. The founding fathers often cited them in the Assembly. The changes they made in the draft on the President’s assent deny him any veto power, pocket or other. Article 91 of the draft provided that when a Bill is passed by both Houses of Parliament, it shall be presented to the President and he “shall declare either that he assents to the Bill or that he withholds assent therefrom.  Provided that the President may, not later than six weeks after the presentation to him of a Bill for assent, return the Bill, if it is not a money Bill, to the Houses with a message requesting that they will reconsider the Bill or any specified provision thereof, and, in particular, will consider the desirability of introducing any such amendment as he may recommend in his message, and the Houses shall reconsider the Bill accordingly.”

In October 1948, the drafting committee removed the six weeks’ limit and substituted for it the words “as soon as possible”. They are stronger than the words “as soon as may be” used in Art. 22(5) a propos the furnishing of grounds of detention to detenues.

For some strange reason, Jayaprakash Narayan’s detailed and informed comments on the draft have been neglected. He suggested that if the Bill is passed again by Parliament, with or without amendment, “the President shall not withhold assent therefrom”. The drafting committee amended Art. 91 accordingly. Both amendments were adopted by the Constituent Assembly on May 20, 1949. In an able speech, P.S. Deshmukh expressed the general view.  The intention was that “when a Bill is presented for a second time, it shall be incumbent upon him, i.e. the President, to give his assent and he shall not have the option to withhold assent”. Neither did Ambedkar contest this nor did he find it necessary to reply to the debate. There was no disagreement on the point at all; only unanimity. 

That is how Art. 91 of the draft became Art. III of the Constitution. It has a counterpart in Art. 209 in respect of Governors’ assent to state Bills. Federalism would be destroyed if these central appointees can refuse assent to Bills re-enacted by the states’ legislatures. Art III rests on a national consensus.

In Britain, Queen Anne’s refusal of assent to a Bill in 1707 remains the last instance of its kind. The Home Rule Bill almost led to a civil war and some advised King George V to refuse assent. Prime Minister Asquith sent him a powerful memorandum in September 1913, which authorities cite as a classic: “We have now a well-established tradition of 200 years that, in the last resort, the occupant of the throne accepts and acts upon the advice of his ministers ... It follows that the rights and duties of a constitutional monarch in this country in regard to legislation are confined within determined and strictly circumscribed limits ... In the end, the sovereign always acts upon the advice that ministers, after full deliberation and (if need be) reconsideration, feel it their duty to offer.  They give that advice well knowing that they can, and probably will, be called to account for it by Parliament.” It is these principles which Art.III embodies.

Authorities on British constitutional law use an identical word to characterise refusal of the royal assent. It would be ‘unconstitutional’. Such an act by any President of India would be worse. Wilful violation of a carefully drawn text would be a constitutional crime.

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