Not quite a free hand

We must not take the office of the President for granted. At least four of them came close to subverting the Constitution, writes AG Noorani.
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Updated on Aug 14, 2007 06:36 PM IST
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Hindustan Times | By AG Noorani

We must not take the office of the President of India for granted. At least four of them came close to subverting the Constitution they had sworn to uphold.

Rajendra Prasad sent a memo to Prime Minister Jawaharlal Nehru on March 21, 1950, trying to reopen the very issues on the President’s powers, which were settled in the Constituent Assembly in his presence. As Granville Austin remarked, “Had his first attempt to ignore constitutional restrictions and to play the part of his own Prime Minister not been foiled, parliamentary government in India would have disappeared before it was two years old.”

On S Radhakrishnan, US Ambassador Chester Bowles records in his memoirs, “On several occasions he expressed to me in a half-joking manner the wish that somehow after Nehru’s death or retirement the whole country could operate under ‘President’s rule’ for a few months. This, he said, would enable him in his role as President to ease some of the cumulating political conflicts and make some of the difficult but necessary decisions before turning the government over to a new Prime Minister and Cabinet”.

On those “several occasions” he was probing for US support. A serving army officer, Major General Niranjan Prasad, who had been removed from the command of 4 Division, was summoned by Radhakrishnan on November 4, 1962, and told, “It was not necessary to be in uniform.” On September 11, 1965, Air Marshal Arjun Singh was called in Bowles’ presence to brief Radhakrishnan on the war. Zakir Hussain, a model President had a brief innings (1967-69).

The less said about the near quarter century (1969-1992) the better. In June 1987, Zail Singh, as President, seriously contemplated dismissing Rajiv Gandhi but prudence overcame ambition. The Indian Presidency really came into its own when Shankar Dayal Sharma became President in 1992. His example was emulated by K.R. Narayanan. Both respected the limitations, acted with dignity and circumspection but did not hesitate to speak up either in private or in a very few grave cases in public, when silence would have been a lapse.

APJ Abdul Kalam did not follow their example. Four transgressions in particular bear recalling because their grave implications have not been appreciated. First, as Vir Sanghvi revealed (The accidental President, HT, June 3, 2006), Abdul Kalam asked Prime Minister A.B. Vajpayee to resign in 2004 “because it would be wrong for the government to continue in office while elections [to the Lok Sabha] were being held”. Despite the Law Minister’s ‘lecture’, the President persisted and “eventually the matter led to a stand-off”. It was not a casual suggestion but a calculated move. “Kalam would not change his views.” At last, he “blinked”.

Vajpayee did a service to Indian democracy by his firmness. What would have been Abdul Kalam’s next step had the PM complied? The kind of set-up which Radhakrishnan described to Bowles — the President ruling India with the aid of the army and the police force, having dissolved the Lok Sabha. He was flouting the text of the Constitution as well as a clear ruling of the Supreme Court. Article 74 (1) says “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice”.

The President cannot hand-pick any one he likes. The ministers must enjoy the confidence of the Lok Sabha; “be collectively responsible” to it (Art. 75 (2)). The Supreme Court ruled in 1971 that the PM can continue in office during the elections for “the President cannot exercise executive powers without the aid and advice of the Council of Ministers with the Prime Minister at the head.” Not once in the entire history of the parliamentary system had any head of State made the suggestions Abdul Kalam did. Whatever led him to assume such confidence?

He had every right to return the Office of Profit Bill to Parliament on May 30, 2006, for its reconsideration. It was re-enacted without amendment whereupon he gave his assent on June 21. But not before a period of suspense in which hints were thrown of a possible veto. Assent was given only after he had extracted an assurance of review by a committee. He had no such right or power. The President is bound to assent to a returned Bill re-enacted by Parliament without ado or demur.

On mercy petitions, Abdul Kalam said in October 2005, “All aspects should be discussed in Parliament and a comprehensive policy laid down.” The clamour for clarity and certitude does not reckon with the complexities of crime and of the power of pardon, subjects of criminal law and constitutional law to which the colossal erudition unfortunately did not extend. No country has “a comprehensive policy” on the subject. In the very nature of things discretion must remain unfettered.

While giving his assent to the Right to Information Act on June 15, 2005, Abdul Kalam wrote a note to the PM, Manmohan Singh, making three points: that communications between the President and the Council of Ministers should not come within its purview, that notings on the files by bureaucrats be excluded, and that only the Centre should frame the Rules under the Act not the states.

The note was pointless. Once a law is enacted, the executive has no power to restrict its application. He did not know that umpteen central laws empower the states to frame rules where duties are devolved on them in our federal polity. Disclosure of notings is covered by the Act.

As for the exchanges with the Council of Ministers, neither Art. 74(2) of the Constitution nor Section 123 of the Evidence Act applies. Art. 74(2) says “the question whether any advice and if so, what, advice was tendered by ministers to the President shall not be inquired into in any court”. But the Supreme Court has ruled that “only the actual advice” is privileged. “The records other than the advice… may be required to be produced” before the court. It ruled also that Section 123 of the Evidence Act does not prevent the courts, when such privilege is claimed, to decide the validity of the claim on a perusal of the documents.

On all the three points, Abdul Kalam’s views on a liberal law were illiberal and based on sheer ignorance. His four major interventions reflect common traits — enormous self-assurance, disregard for the Constitution, the law and the Supreme Court’s rulings and a passion to set his own rules, though nothing in his career had equipped him on these matters. He decided to act as a ‘man of science’ prescribing order and certainty to all.

Our subcontinental polity must have a two-party system was one of his right ideas. Asked whether “the President can play a greater role”, he replied, “Yes, yes. What he thinks he wants to do, he can do.” In fact, he can act only within the established law, conventions and precedents. It is time they are codified.

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Thursday, October 28, 2021