Essay on the Actual Position of the President of India



The scope and extent of President's powers has always been a matter of debate among politicians, academics, lawyers and jurists since the commencement of the constitution.

It is beyond doubt that even Dr. B. R. Ambedkar, the Chairman of the drafting committee, was not clear about the position of the President. In one place, he said that the place of President of India in administration is that of a ceremonial device and he occupies the same position as the King under the English Constitution.

He further explained that the President is the figurehead and that he could not act and will not act except on the advice of his Council of Ministers. At another stage he expressed that like the English King our President will have not only three rights (right to advise, to warn and to be consulted) but also the prerogative powers of appointing the Prime Minster and the power of dissolution of the House.

Jawaharlal Nehru, in the course of the debate unfurled his mind that the office of the President should not be a mere figurehead. He believed that while President should not be given any real power his position however should be one of great authority and dignity.

Discussion in the Constituent Assembly and the Provisions in the Constitution reveal the desire of the members of the Constituent Assembly that the President should not be the creature of the Parliament nor the nominee of the party in power at the centre nor a figure-head but an independent organ of the State representing the whole union and exercising independent powers.

There are two different views about the position of the Indian President in our constitutional system, which are opposed to each other.

The first view is - since the form of Government contemplated by the constitution is on the model of British Parliamentary system, the President is a constitutional head like the British monarch. The second view is that the President has large and substantial powers, which he can exercise in his direction.

This view is also supported by Supreme Court decisions. The founding fathers of the Constitution of India also supported the view.

The original Article 74(1) of the Constitution stipulated that 'there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions.

The Constitution Forty-Second Amendment Act, 1976 - substituted this article '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.

However, the Forty Fourth Amendment Act, 1978 has ended the ambiguity of the constitutional text concerning the powers of the President in relation to those of the Council of Ministers. The following proviso was added to the revised clause (1) of Article

'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 the advice tendered after such reconsideration.

The President can have discretionary power in the matter only 'when the party system fails to throw up an obvious choice in the leader of the majority party' as after the fall of the Janata Party government headed by Morarji Desai in 1979 and in government formations since the loss of Congress predominance in 1989.

Dr. Rajendra Prasad, the first President of India, differed strongly with Pt. Nehru over the question of President's powers and also questioned the tendency to equate the President's position with that of the British monarch.

He argued that in Britain the monarch can do no wrong (as he/she acts always on the advice of ministers), whereas in India, the President is both elective and impeachable. Besides, he pleaded that 'our conditions and problems are not on a par with the British'. He also suggested an investigation study of the President's powers and functions by experts.

The first real clash between Dr. Prasad and Pt. Nehru came towards the end of 1951 over the Hindu Code Bill, when he clearly expressed the opinion that it should not be passed without having been circulated for public opinion. It was because of his strong opposition, the Government decided to postpone the consideration of the bill till the first general elections.

Dr. Rajendra Prasad, in note to the first Prime Minister, Jawaharlal Nehru, on 18th September 1951 conveyed his desire to exercise his own discretion in assenting to bills, sending messages to Parliament, and returning Bills for Parliament's reconsideration.

This view of President's power was firmly opposed by Nehru. Dr. Prasad never acted upon his intention, but raised the issue again in the context of non- comparability of president's power to that of the British Crown. In view of the above, he wished it to be investigated as a matter of academic debate.

On the other hand, President Fakruddin AN Ahmed signed the Emergency document at the middle of the night even before it was ratified by the Council of Ministers and the Cabinet.

In 1987, Giani Zail Singh made use for the first time since Independence of the President's power to withhold his assent to a bill passed by the Parliament - the Indian Post Office (amendment) Bill, authorizing the Post Office to open private mail for intelligence purposes.

The question of President's powers assumed further importance when the President addressed a letter to Prime Minister Shri Rajiv Gandhi, that he was not being kept informed about state affairs under Article 78 of the constitution of India and thus created a controversy.

In the midst of media reports and speculation that the Prime Minister was neither calling on the President nor did the Home Ministry oblige him by supplying a copy of the Thakkar Commission Report on Indira Gandhi's assassination despite repeated requests, Rajiv Gandhi claimed in the Parliament that he was regularly meeting the President and briefing him on all important affairs of the State. A letter purportedly written by the President contradicting it leaked out to the press.

It raised a furore in the Rajya Sabhha, but the Vice President R. Venkatraman acting as the Chairman of the upper chamber, 'ruled out any discussion on the subject upholding the principle of confidentiality of communication between the President and the Prime Minster.

The problem subsequently became more complicated with the revelations of alleged payment of 'kickbacks' to Indian contacts by the German firm HDW in the supply of SSK submarines and to the Indian ministers and bureaucrats in the supply of Howitzer guns by the Swidish firm Bofors to the Indian army.

The question arose in this regard whether the president could dismiss the Prime Minister (the leader of the majority party in the Lok Sabha) on that ground. The constitutional reality has been that the President can function effectively only if he has the confidence of the Prime Minister and not vice versa.

Thus the President has no authority to dismiss a Prime Minister enjoying a majority in the Lok 'Sabha. President R. Venkataraman also said:

In my view, the Constitution of India did not envisage the President as an appellate authority over the government but only as a symbol of state with defined powers.'

The President can, however, have discretionary power (in the matter only) when a Prime Minister has evidently lost majority in the House. On July 15, 1979 the Prime Minister Morarji Desai resigned (after the split of Janata Party - the Majority party in the Lok Sabha) without facing the vote of no confidence but without resigning his leadership of the Janata Party.

The President Sanjiva Reddy established precedents for the exercise of discretion by not only rejecting Morarji Desai request to form a new government after his initial resignation, by ignoring the claim of Shri Jagjivan Ram - the new leader of the Janata Party to form an alternative government but also dissolving the Lok Sabha on the advice of the acting Prime Minister Chaudhary Charan Singh.

Similarly the 1989 general elections of the Lok Sabha provided an opportunity to the President, to play an important role in the appointment of the Prime Minister, though to a limited extent. At that time no party obtained a clear majority in the Lok Sabha. President R. Venkataraman first invited Congress (I), which was the largest single party in the Lok Sabha, to form the government. When Congress (I) refused to form the Ministry, he gave opportunity to V.P Singh (Dec. 1989), leader of the National Front (with the support of the BJP and Left from outside) to form a government.

But this government did not last for long. BJP withdrew its support on Oct. 23, 1990 from the National Front Government and demanded its dismissal by the President. But the President exercised his discretion and gave an opportunity to V.P. Singh to prove his majority on the floor of the House on Nov. 7, 1990. When V.P. Singh failed to prove his majority, the President decided to explore the possibilities of forming an alternative government and invited first Rajiv Gandhi and then Chandra Shekhar to form the government.

The President was of the considered opinion that it would not be in the national interest to plunge the country into a general election at that time (a view shared by many political parties and by the public) and that every effort should be made to provide the country with a reasonably stable government. The President, therefore, invited Chandra Shekhar to form the government and prove his majority in the Lok Sabha on or before Nov. 30 1990.

Chandra Shekhar was also a minority Prime Minister who founded the government with the outside support of the Congress in the Lok Sabha. Soon, differences arose between the Prime Minister and the Congress leader Rajiv Gandhi and the former resigned from his office in March 1991. The President followed the advice of the Prime Minister to dissolve the House with a call for new elections.

The 1996 experiment was no different. In 11th general elections, when no single party could get majority, Atal Behari Vajpayee, the leader of the BJP was appointed as Prime Minister on May 16, 1996. But he had to resign on May 28, as his minority government could not prove majority in the Lok Sabha.

This episode heralded the birth of United Front Government. The United Front was a post-poll alliance of (13 parties) largely regional formations and it banked on Congress support from outside. Both the Prime Ministers of the United Front - Deve Gowda and I.K. Gujral had to resign after the withdrawal of Congress support. Government headed by Atal Behari Vajpayee too is born out of frantic arithmetic, both pre-poll and post-poll.

Constitutional experts talked about "Activist President", while making a mention about former President K.R. Narayanan. During his tenure, he rejected the bill sent by the Vajpayee cabinet to impose Governor's Rule in Bihar.

Using his powers, he requested the Government to reconsider the bill again and the Government realising its mistake did not proceed with the option again averting constitutional crisis. But according to the Constitution, if the bill is sent again to the President, he has no option but to sign the document.

Thus, two precedents have been established with regard to this crucial and necessary exercise of Presidential power.

(1) The President may appoint a Prime Minister from a minority party, but may also require him to seek a vote of confidence;

(2) the President may follow the advice of an outgoing Prime Minister in a House without a clear majority and call for new elections. So far, no precedent has arisen regarding his power to dismiss the Prime Minister.