President-elect Ram Nath Kovind with Prime Minister Narendra Modi and senior BJP leader LK Advani in New Delhi, July 16, 2017(PTI)
President-elect Ram Nath Kovind with Prime Minister Narendra Modi and senior BJP leader LK Advani in New Delhi, July 16, 2017(PTI)

Why Ram Nath Kovind does not have to be a rubber stamp of NDA

There is no constitutional provision that obliges the president to act mandatorily on the ‘aid and advice’ of the Union Cabinet
By Faizan Mustafa and Yogesh Pratap Singh
UPDATED ON JUL 24, 2017 04:42 PM IST

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’. In spite of the expression ‘directly’ in Article 53 of the Constitution, India’s President merely ‘reigns and does not rule’.

This was the view of BN Rau, who played a key role in drafting the Constitution. But KM Munshi, a member of the Constituent Assembly (CA), former presidents Rajendra Prasad, Zail Singh and KR Narayanan challenged this interpretation. Munshi asserted that the president “was not only to 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 Cabinet though BR Ambedkar wanted such a provision in the instrument of instructions.

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 judgment, especially when it came to giving assent to Bills and sending massages to Parliament. His reason: Presidents have to act on the advice of the Cabinet only in ‘executive matters’ and not on ‘legislative decisions’.

This view was based on the accurate reading of Articles 86 and 111, which deal with legislative businesses i.e. presidential address to Parliament and assent to the Bills. Understanding, the gravity of the request, Nehru appointed the then Attorney General MC Setalvad, who chose to delight Nehru and recommend that the president is indeed 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 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 depends on traditions and conventions. The queen is above party politics but the Indian president is not since he is nominated by political parties.

The authority and status of the president depends upon the powers he can exercise and the functions he can perform under the Constitution. Unlike the British monarch, the President is not a hereditary head of the State. In fact while the PM is the leader of just one House, the President is the leader of both Houses assemblies. Unlike the British monarch, the Indian president can be impeached. This is because his powers flow from the oath he takes under Article 60 to ‘preserve, protect and defend the Constitution and submit himself to the service and well -being of people of India’.

While ordinarily he has to act on the advice of the Cabinet, the latter does not have the right to give him an advice contrary to the provisions of the Constitution.

If the president has no role to play then why should he be impeached? If the president is responsible for ‘preserving, protecting and defending’ the Constitution, how can he be obliged to sign an illegal Bill? Making the president part of the Parliament (Art.79) 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 PM, which will come into play when no party gets the clear mandate or several leaders stake the claim or the PM loses the confidence motion.

In the Ram Jawaya Kapur And Ors. vs The State Of Punjab case, 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, Cabinet reiterates its original advice.

One hopes that the new president, Ram Nath Kovind, will follow the footsteps of Rajendra Prasad, Zail Singh and KR Narayanan who refused to be a rubber stamp. Through the intelligent use of power of reconsideration of the Cabinet’s advice (like Narayanan did) and the use of pocket veto and right to be informed like Zail Singh, Kovind can fulfil his oath and enhance the stature his office.

Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad.

Yogesh Pratap Singh is deputy registrar (research), Supreme Court.

The views expressed are personal

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