THE AMBIGUITY REGARDING THE PRESIDENTIAL POWERS

THE AMBIGUITY REGARDING THE PRESIDENTIAL POWERS 

Author:Dhairya Choudhary
 3rd YEAR (B.A LLB),
National University of study and Research in law, Ranchi.




    INTRODUCTION:


    I consider that it is the duty of all right-thinking people to keep the presidency above the party politics and controversy.” -RAJIV GANDHI.

    After spending 200 years under captivity, the golden bird finally came out of the cage and shone like a blazing star, flying free. After years of hardship India was finally accorded as a democratic nation, independent on the eve of 15th August, 1947. The thesis of parliamentary democracy along with universal suffrage seemed as an exciting motion. Even after the Britisher’s left, we adopted and adapted institutions which had been established during their era. A case in this reference is the office of Indian President, the president position in India resembles the king or queen in England, and however framers molded it so it can fit in the context of parliamentary democracy. In this research paper we will inquire into the arguments considering Indian president analogous to that of the monarch in England. The way in which the president can exercise his powers is obscure and needs an articulation by the Indian constitution. The vagueness regarding to the functioning of power by president has led to many disputes, however such disputes were stabilized by considering the propositions that the Indian president resembles to that of the monarch in England. The issue regarding the presidential power was earlier raised by president Dr. Rajendra Prasad, as there were sharp confrontations between him and the PM Jawaharlal Nehru over the powers of their respective offices as Dr. Prasad, who has read the constitution literally attributing the president greater authority that that of nearly powerless head of the state.[1] There were many theories regarding the authority and power of president according to the Indian constitution. These theories proposed that president is not the real executive head but can exercise ‘real’ powers in certain cases as provided by Indian constitution. The president after being called as the head of the state does not acquire the deciding, directing and determining factor.

    The vagueness regarding the presidential power arose because while the constitution was being framed, the intention of the framers was not clear. Dr. Rajendra Prasad has raised the issue before the constitutional assembly, constitutional advisor, B.N Rao while the constitution was being drafted that he did not find in the draft constitution a provision laying it down in so many terms that the president would be bound to act upon the advice of council of ministers[2].

    President of India is like that of the 12th man in the sport known as cricket, as he works comfortably in a position designated for him for the team. A good team knows that before embarking for a big game, they should check whether the 12th player is alright or not. Because in case a player got injured, the 12th man will be required to replace him. The 12th man however cannot acquire the absolute powers of the replaced player and has to play according to the will of the team similarly resembling the 12th man, the Indian president does not acquire the power to work according to his will completely and has to function according to the consent of council of ministers. The president ensures the consistency in working of his team. The issue of when president should act according to the aid and advice of ministers and when not is raised here.[3]President of India is considered as a constitutional ruler and executive head, despite being considered as head of the state, the real powers are being exercised by the ministers belonging to the majority in parliament. All the action were taken in the name of president but he is not the deciding, deriving and determining factor.[4] Maybe it is article 74 of Indian constitution of why Indian president is being considered as a “rubber stamp”, because of this binding provision the president has no choice but to accept the advice of the council of ministers. President passes ordinances, he can kick out any minister from the council and can perform many more functions but acting according to the advice of council of ministers. The issue here is that the Indian constitution does not specify exactly when the president is obligated to give a decision[5].The vagueness regarding the Article 74 of Indian constitution has given rise to many political controversies, which were settled down by proposing different views and ideas. One belief consider president to be analogous to that of the monarch in England. Such vagueness has to be cleared out in order to prevent the future controversies.

    HISTORICAL EVENTS AND CONTROVERSIES REGARDING PRESIDENTIAL POWERS.


    The issue was raised by our first president Dr. Rajendra Prasad. The conflicts between Jawaharlal Nehru and Rajendra Prasad went through the heart of India’s Westminster model of constitution. However, the official relationship among them was sound. On many occasions Nehru leaned on Rajendra Prasad for his advice on many important and significant matters. But many times, his suggestions and advice were left unconsidered. Rajendra Prasad came to think that ‘even his advice was not sought on many matter’s[6], recalled a cabinet minister of that time. Few incidents describe this issue clearly.

    BIHAR ZAMINDARI ABOLITION BILL, 1951.


    When the bill was introduced in the year 1951 by the congress government, with Jawaharlal Nehru as the prime minister and Rajendra Prasad was in a position of president, when the bill was presented before him for his assent, he was reluctant in giving assent to this bill cause of presence of certain questioning elements in it. Thus he wrote a letter to Nehru apparently questioning and criticizing the Bihar Zamindari Abolition Bill, 1951. Prasad has also discussed the issue with Krishnaswamy Ayyar raising the question of whether he as a president is bound to sign that bill, to which Ayyar replied that ‘he must sign’.

     HINDU CODE BILL, 1951.


    The same issue flared again in 1951, this time the Hindu Code Bill was being questioned. This bill comprised of the Hindu personal law- divorce, marriage, institution, succession, inheritance of property and rights and freedoms of women which were to be ‘secularized’ that is were made to be a part of Uniform Civil Code felled for in Directive principles and state policy. Questioning the elements present in the bill, Prasad wrote a letter to Nehru that the bill is discriminatory and is confined to the Hindu Law only and does not include Muslim Law. Prasad was also concerned about the ‘revolutionary changes’ that the bill would have brought about.[7] These were the elements which Prasad questioned and proposed for not giving his assent as he thought was appropriate. Nehru responded, as this was a matter of constitutional importance, he described the bill as very moderate and said the speaker had ruled parliament competent to pass it. Nehru said that Prasad has no authority to go against the will of parliament in regard to bill that has been well considered by it and passed, otherwise the question would arise whether the parliament has supreme legislative authority or not. Article 74(1) of Indian Constitution, the president is required to act in all the matters with the aid and advice of council of ministers. However Ayyar has considered the president position analogous to that of constitutional monarch in England and there is no sphere of function in respect of which he can act without reference to advice of minister cause if the president is allowed to do so the governor of state also break loose from their conventions containing th
    eirs powers.
    [8] According to Nehru views on president position, the president is analogous to that of Monarch in England, and the provision of indirect election in India makes no differences in his powers compared to those of hereditary monarch in Britain. According to Nehru going against the advice of council of minister will lead to breakdown of Indian constitutional machinery and such action must inevitably leads to the resignation of council of ministers and such act would raise the question of constitutional supremacy, asking whether parliament is supreme legislative authority or not.

    A CLASH BETWEEN ARTICLE.74 AND ARTICLE.141 OF INDIAN CONSTITUTION:


    In recent context, the question arises when President Pranab Mukherjee rejected the union advice on death row convicts convicted of killing of 34 upper class people in Bihar in 1992. He commutes the death sentence of four convicts by setting aside union home ministry recommendation. On the eve of New Year, President gave a new lease of life to Krishna Modi, Nanhe Modi, Bir Kuer Paswan and Dharmendra Singh by shifting their death penalty to life imprisonment. As under Article 72 of the Indian constitution[9],the president has powers to grant pardon, and suspend, remit or commute a sentence of death penalty. However, the president cannot exercise these powers on his own, and has to act on the advice of council of ministers. This has made clear in the Indian constitution. This was done by him by going against the recommendation made by Home Ministry that the mercy petition of all four should be rejected. On April 13, 2002 the Supreme Court confirmed the death sentence of these 4 convicts with a majority judgement of 2:1 and shah with a dissenting opinion against such a award. This act done by president on his own discretion has raised an engrossing and unexcelled constitutional issue. As according to Article 74(1) of Indian Constitution, there shall be a council of minister with Prime Minister as its head to aid and advice the president who shall in the exercise of his functions act in accordance with such advice. A provision to this sub clause directs the president may require council of minister to reconsider such advice, either generally or otherwise and president shall act in accordance with such advice tendered after such consideration. By commutation of death sentence in Bara massacre he appears to consider the use of provision as unnecessary and consider himself bound to follow the law laid down by Supreme Court rather than following the recommendation made by council of ministers. In a case Shatrughan Chauhan v. Union of India[10], delivered on 21st January, 2014, it was held that – according to Article.141 of the Indian constitution[11], that the law declared by Supreme court shall be binding on everybody within the territory of India equally it should be binding on the Indian government as well as the president. Hence it is concluded that if a recommendation of a government is little too thick with the law declared by the apex court, the Indian president should follow the law as declared by the Supreme Court. Similar issue was raised in 1980, in a case Maru Ram v. Union of India[12], where it was held by a five judge’s bench that while deciding the mercy petitions, the president is bound to follow the advice and recommendation made by the council of ministers according to Article 74 of Indian constitution. However, in that case the question of inconsistency of recommendation of union council with that of law declared by Supreme Court was not raised. Therefore, it should be concluded that president would be right if he believed that this case is not relevant while deciding the Shatrughan case.

    PRESIDENT PRANAB MUKHERJEE CONTROVERSY OVER THE ENEMY PROPERTY ACT 2016:


     In his five-year tenure, President Pranab Mukherjee engaged two different governments with equal ease. As the guardian of the constitution, he has acted as an advisor to both the governments, ensuring that the decisions made were in keeping with constitutional propriety. When he disagreed, he had spoken his mind without overstepping the constitutional boundaries of his post. In year 2016, the question was raised by the president on the Centre’s move to push ordinances one after the other to allow a department to continue to hold sway over Enemy Properties in India. The law provides that all properties belonging to person who had left the country and gone to Pakistan or China- the two countries that has waged war against the India- were by definition of ‘Enemy Properties’ and had to be taken by government, the custodian for enemy property
    in India is Indian governmental department. President has been speaking on the issue of ordinances since the presidential order of imposing center’s rule in Uttarakhand in year 2016 had been quashed by the Uttarakhand High court. Pranab Mukherjee has faced criticism from a section of Congress who argued that the ordinance has to be passed without adequate deliberations.

    GIANI ZAIL SINGH CONTROVERSY:


     The day was 28th of March, 1987, around 12:15 p.m., when a serious meeting was going on between Prime Minister Rajiv Gandhi and then President Zail Singh at the study room of Rashtrapati Bhawan ground floor. The meeting turned out to be a marathon one it lasted around 130 minutes. It was a significant moment when the two functionaries had ever met for such a long period and covered such a wide range of subjects, regarding their personal relationship to that of external threats. The seriousness and urgency were evident from the fact that the both of them had to miss their lunch. The meeting was conferred around the important question that –
    “Whether president has the right to be informed on all issues of national importance?”

    Rajiv insisted that it was for the government to decide, what in information was to be made available to the President. However, Zail Singh asserted that government could not deny the president information on any subject, if the president has asked for it. As according to Article 78(a) of Indian constitution: “It shall be the duty of the prime minister to communicate to the President all the decisions of the council of ministers relating to the administration. Article 78(b) of Indian constitution[13]: “It shall be the duty of the prime minister to furnish such information relating to the administration of the Union and the proposals for the legislation as the President may call for.”

    THE CONTROVERSY OF 1986:


     The bill presented before president was Postal Bill, in 1986. President was Giani Zail Singh. The ‘pocket veto’ was used by him on the issue. According to Article 123[14] which stipulates that an ordinance which lapses within six weeks of convening of parliament, can be promulgated by the president only if he is “satisfied that circumstances do exist which render it necessary for him to take action immediately.”

    In this case the Indian Postal Bill of 1986 was passed by both the houses of parliament and then was sent to President Giani Zail Singh for his assent to it, as per constitution procedure. The relationship of Singh was not good with the Prime Minister Rajiv Gandhi by this point as a result of sour relationship; President has never given his assent on that bill. Zail Singh did not refuse to give his assent but simply failed to respond. As a result of this controversial bill which gave significant powers of the mall interpretation to the government, never became law and it was said that the President has “pocketed” the bill, hence the term “pocket veto” came into view. It was during his tenure for the first time in Indian constitution history, contact between head of government and head of state has been kept to the minimum and the President has not been consulted even on important matters. In the process, the rift between Prime Minister Rajiv Gandhi and Giani Zail Singh has become the most debated and intriguing public issue.

    WHETHER THE TERM ‘PLEASURE OF PRESIDENT” INDICATES THE ‘PLEASURE OF COUNCIL OF MINISTERS’


    The doctrine of pleasure owes its origin to the common law. The rule in England was that a civil servant can hold his office during the pleasure of the crown an
    d services will be determined at any time the crown wishes. It has its origin in the Latin phrase 
    durante laene placito, which means that a tenure of the office of the civil servant except where it is otherwise provided by the statute, can be terminated at any time without cause assigned[15].The doctrine of pleasure is standing on two footings: a. The king’s high prerogative. b. Public policy. The former is exercised by the king, however latter can be appointed by any authority thus appointed. In India the doctrine of pleasure has been borrowed from the common law, according to which the servant of the crown holds office during the pleasure of the crown and he can be dismissed from the services at pleasure except where tenure has been provided by the statute. The sum up that can be inferred is that the common law rule concerning the holding of offices by public servants during the pleasure of crown only has not been adopted by the Indian administration in its absolute and entirely form with all its rigorous implications. In Indian context this common law rule is controlled by the fundamental rights guaranteed by the Indian constitution and its use is restricted by Article 309 and Article 311. At the same time the word ‘pleasure’ has been used because the intention of our constitutional framers of the constitution to lay down clearly in the constitution that the relationship between state and government is not contractual and they cannot claim any privilege by way of right.

    CONCLUSION:


    You will often hear the following line while describing the President of India: “Oh that guy? He’s the Government’s rubber stamp only!” as discussed above the question was first raised by President Rajendra Prasad before the prime minister Nehru in the year 1951, asking him the extent to which, the matters on which and the limitations of presidential powers, and above all the question that whether the president is bound to act on the advice of council of ministers. The President of India is the formal head of the legislature, executive and judiciary of India and is also the commander-in-chief of the Indian Armed Forces. That sounds super powerful, but there is a strange catch here. The President can exercise his powers directly, but he is benevolent enough not to do so. Instead, in practice, he hands over his executive powers to the elected government. More specifically, the Council of Ministers headed by the Prime Minister. Whenever a decision is taken by the Government, it requires the assent of the President. Even all bills passed by the Parliament require the assent of the big man/woman. However, president signifies as that of elder man in the house which looks after the people. Perhaps article 74 of the Constitution is the reason why the often-used “rubber stamp” comment is made about the President. It says: Because of this binding provision in the Constitution, the President of India has no choice but to accept the advice of the council of ministers.

    REFERENCES:


    1. Austin Granville, The Indian Constitution: Cornerstone of a Nation (25th ed.,2015).
    2. Valentino Larcinese, Leonzio Rizzo, and Cecilia Testa, “Allocating the U.S. Federal Budget to the States: The Impact of the President,” The Journal of Politics 68, no. 2 (May 2006): 447-456.
    3. Khemant, Stuti. “Partisan Politics and Intergovernmental Transfers in India.” Policy Research Public Paper, (April 2003).
    4. G. Austin, Working a Democratic Constitution: A History of the Indian Experience (January 2012).
    5. www.scconline.com.

    [1] Granville Austin, Working a democratic constitution, ch.1, P.20.
    [2] Ibid.
    [3] Austin Granville, The Indian Constitution: Cornerstone of a Nation.
    [4] Ramesh K. Arora, Indian Public Administration: institution and issues.
    [5] Meghnad S, (2017), Is the president a rubber stamp? Not quite!
    [6] K.Santhanam, Oral History Transcript, pp.17 NMML.
    [7] History of Parliament, Vol.2, P.46, 18th September, 1951.
    [8] Austin, Cornerstone. P.141.
    [9] The Constitution of India,1950. Art.72. It states that- 72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
    [10] (2014) 3 SCC 1.
    [11] The Constitution of India,1950. Art.141
    [12] (1981) 1 SCC 107.
    [13] The Constitution of India,1950. Art.78. It states that- It shall be the duty of the Prime Minister
    (a) to communicate to the President all decisions of the council of Ministers relating to the administration of the affairs of the union and proposals for legislation;
    (b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
    Article 123.
    [14] The Constitution of India,1950.

    [15] State of Bihar v. Abdul Majid, A.I.R(1954), S.C.,24.

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