President holds a unique position. But it is not free of constitutional dilemmas - Hindustan Times
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President holds a unique position. But it is not free of constitutional dilemmas

ByKK Paul
Jul 13, 2022 08:53 PM IST

The President swears to preserve, protect and defend the Constitution and the law, while others bear true faith and allegiance to the Constitution.

The 15th President of India will be sworn in on July 25. The President’s powers and functions are in Article 74 of the Constitution. In its original form, this article stated, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.” Though straightforward, this sentence caused misunderstandings, and two amendments. Rajendra Prasad, when he was president of the Constituent Assembly (CA), wrote to the constitutional adviser, BN Rau, that “he did not find any provision in the draft Constitution laying down in so many terms that the President was bound to act upon the advice of his ministers.” He also had exchanges with BR Ambedkar, Jawaharlal Nehru, and Vallabhbhai Patel. But then attorney general MC Setalvad and Alladi Krishnaswami, member of the CA, resolved the issue, albeit temporarily. After S Radhakrishnan became the President, the issue became dormant. But not for long.

The President’s powers and functions are in Article 74 of the Constitution. (Rahul Singh) PREMIUM
The President’s powers and functions are in Article 74 of the Constitution. (Rahul Singh)

While contesting the 1967 presidential election against Zakir Hussain, former chief justice Subba Rao claimed he would not be bound by the advice of the Council of Ministers. Though he lost, his campaign left a profound impact. In 1976, in the 42nd amendment, Article 74 was also changed, to say: “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 wording was not a happy one. Ironically, this provision was only applied when several Congress governments were dismissed by the Janata Party government in 1977. President BD Jatti, who had been officiating after the demise of President FA Ahmed, dithered but finally came around. In 1978, the situation was redeemed when Article 74 was amended (44th Amendment) again to add a proviso, which says: “Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with such advice, tendered after such reconsideration.” This provision saved the Kalyan Singh ministry in Uttar Pradesh as President KR Narayanan returned the dismissal proposal to the United Front government for reconsideration in 1997. However, the proposal never came back, and Singh survived. On the other hand, President APJ Kalam approved President’s Rule in Bihar, without recourse to reconsideration, in 2005. Later, it was declared unconstitutional by the Supreme Court.

Uttarakhand was a unique case: President’s Rule was imposed in the state in 2016 without any recommendation from the governor (this writer was the incumbent). In the Constitution, there is a provision for President’s Rule upon a report by the governor or “otherwise”. The Centre took this recourse in Uttarakhand. In another unusual first, President’s Rule was suspended for a few hours to revive the assembly temporarily for a floor test, conducted not by the speaker or his deputy, but by a judicial officer. In The Presidential Years, President Pranab Mukherjee explained he did not send the file back for reconsideration as he had a detailed discussion with then finance minister, Arun Jaitley, and principal secretary to the PM, Nripendra Misra, on the issue. He further mentions that he could have still sent the file back, but it would have only made headlines.

The Presidential Oath is in Article 60 of the Constitution. The oath for the President and the governors is almost similar, but all other forms of oath are different. The President swears to preserve, protect and defend the Constitution and the law, while others bear true faith and allegiance to the Constitution. As is evident, preserving, protecting, and defending the Constitution are indicative of proactive expectation. The difference in the meaning of the two oaths and their phraseology is enormous. The specifics and contours of Article 74 have undergone significant changes since 1950, but the original format of the oath continues. The format of the presidential oath is more suited to his role as in the original Article 74. When this matter was discussed in the CA, Irish and US models were considered. The terms preserve, protect, and defend the Constitution are specific to the US presidential oath and adopted here, even though there is a presidential form of democracy in the US. Be as it may, in its present form, the oath signifies the President occupies the highest and a unique position in our Constitution.

KK Paul is a former Delhi Police commissioner, member of the UPSC and a former governor of Uttarakhand and four Northeastern states

The views expressed are personal

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