17. Polity Notes 27

Elaborate Notes

The President of India: Upholding Constitutionalism

The office of the President of India, as envisioned by the framers of the Constitution, serves as the head of the state and a symbol of the nation’s unity, integrity, and solidarity. While largely a nominal executive bound by the aid and advice of the Council of Ministers (Article 74), the President also acts as the ultimate guardian of the Constitution. The history of the Indian Presidency, particularly since the 1980s, reveals a dynamic evolution of this role, with various occupants using their discretionary and moral authority to uphold constitutional principles, especially during periods of political instability and executive overreach.

• Giani Zail Singh (1982-1987): The Assertion of Presidential Discretion

  • Context: The tenure of President Zail Singh was marked by a deteriorating relationship with Prime Minister Rajiv Gandhi, particularly following the Bofors scandal and other political crises. This friction brought the President’s discretionary powers into sharp focus.
  • The Indian Post Office (Amendment) Bill, 1986: The government passed this controversial bill, which granted it wide-ranging powers to intercept postal articles on grounds of public safety or emergency. It faced widespread criticism for infringing upon the right to privacy.
  • Use of Pocket Veto: President Zail Singh, exercising his power under Article 111, neither gave assent nor returned the bill for reconsideration. By simply withholding assent indefinitely, he effectively used the ‘pocket veto’. This was a significant assertion of presidential authority against a government enjoying a brute majority in the Lok Sabha. The bill consequently lapsed.
  • Threat of Dismissal of PM: Amidst the Bofors scandal fallout in 1987, there were intense speculations, as noted by political analysts like Inder Malhotra in “Dynasties of India and Beyond” (1989), that President Zail Singh was contemplating dismissing the Prime Minister using his ‘pleasure’ under Article 75(2). Although the power was never invoked, the public discourse around it highlighted the potential of the President’s office as a constitutional check, even if its use remains a debated constitutional gray area.

• R. Venkataraman (1987-1992): The Architect of Conventions in Coalition Politics

  • Context: President Venkataraman’s term coincided with the beginning of the coalition era and significant political flux, including the 1989 and 1991 general elections that resulted in hung parliaments.
  • Convention for Hung Parliaments: In 1989, when no single party secured a majority, President Venkataraman established a crucial precedent. He first invited the leader of the single largest party, Rajiv Gandhi of the Congress, to form the government. Upon his refusal, he invited V. P. Singh, leader of the second-largest party (Janata Dal) who demonstrated majority support. This established the “single largest party” principle as the primary consideration, a convention that guided his successors. In his autobiography, “My Presidential Years” (1994), he detailed the rationale behind his decisions, emphasizing the need for stability and constitutional propriety.
  • Concept of a ‘National Government’: Facing severe crises in 1990-91—the Mandal Commission agitation, rising communal tensions, and a severe economic crisis—President Venkataraman proposed the formation of a ‘National Government’ comprising all major political parties to steer the country. Though the idea was not accepted by political parties, it showcased his role as a statesman seeking national consensus during a period of deep division.
  • The President as an ‘Emergency Lamp’: Venkataraman famously described his office as “like an emergency lamp. It comes on automatically when there is a crisis and goes off automatically when the crisis passes.” This metaphor perfectly encapsulates the idea of a ‘constitutional President’ who remains a nominal head in normal times but becomes an active guardian of the Constitution during political crises.
  • Returning the MPs’ Salary Bill: In 1991, he returned a bill seeking to increase the salaries and allowances of Members of Parliament for reconsideration, citing the ongoing economic crisis. He used his suspensive veto, arguing that it was improper for MPs to raise their own salaries when the country was facing severe financial austerity.

• Shankar Dayal Sharma (1992-1997): Navigating Political Instability

  • Context: His presidency continued through a period of coalition governments and political realignments, including the aftermath of the Babri Masjid demolition in December 1992.
  • Adherence to Convention: Following the 1996 Lok Sabha elections, which again produced a hung verdict, President Sharma adhered to the Venkataraman precedent. He invited Atal Bihari Vajpayee, leader of the BJP, the single largest party, to form the government. When the Vajpayee government failed to prove its majority on the floor of the House after 13 days, new coalitions led by H. D. Deve Gowda and subsequently I. K. Gujral were sworn in. This period reinforced the President’s crucial, non-partisan role in government formation.

• K. R. Narayanan (1997-2002): The ‘Activist’ and ‘Conscience-Keeper’ President

  • Context: Known for his intellectual rigor and constitutional propriety, President Narayanan earned the moniker of a “working President” or an “activist President.”
  • Refining the Convention on Government Formation: In 1998, breaking from the “single largest party” convention, President Narayanan introduced a new practice. He insisted that a party or coalition staking a claim to form the government must furnish letters of support from allied parties to prove its majority before being invited. This was to prevent the instability witnessed in 1996 and ensure the formation of a viable government.
  • Use of Suspensive Veto on President’s Rule:
    • Uttar Pradesh (1997): The United Front government recommended imposing President’s Rule (Article 356) in Uttar Pradesh to dismiss the Kalyan Singh government. President Narayanan returned the recommendation for reconsideration, stating in his communication to the government that the imposition of President’s Rule would be a “constitutional impropriety” as there was no “breakdown of constitutional machinery” as established by the landmark S. R. Bommai v. Union of India (1994) case. The government respected his view and withdrew the recommendation.
    • Bihar (1999): The NDA government led by A. B. Vajpayee recommended the dismissal of the Rabri Devi government in Bihar on grounds of a collapse in law and order. President Narayanan again returned the file for reconsideration, questioning the adequacy of the grounds. However, when the cabinet reiterated its advice, he was constitutionally bound (by the 44th Amendment Act, 1978) to give his assent, and President’s Rule was imposed. This highlighted both the power and the limits of the President’s suspensive veto.
  • Moral Suasion: Following the Gujarat riots in 2002, President Narayanan publicly expressed his deep anguish and is known to have communicated his concerns to the Prime Minister, urging for swift action to protect minorities, thereby using the moral authority of his office.

• A. P. J. Abdul Kalam (2002-2007): The ‘People’s President’

  • Context: Though seen as an apolitical figure, President Kalam faced several constitutional challenges.
  • Office of Profit Bill, 2006: The Parliament passed a bill to exempt several posts from the definition of ‘Office of Profit’ with retrospective effect, aimed at protecting several MPs from disqualification. President Kalam returned the bill for reconsideration, raising concerns about the propriety of a retrospective exemption and the lack of a clear and uniform criterion for defining an office of profit. Although the Parliament repassed the bill without changes and he was obliged to give his assent, his action triggered a significant public and legal debate on the issue.
  • Dissolution of Bihar Assembly, 2005: Based on the recommendation of the Union Cabinet and the report of Governor Buta Singh, President Kalam, who was in Moscow at the time, signed the proclamation dissolving the Bihar Assembly under Article 356. The assembly was in suspended animation after a fractured electoral verdict. The Supreme Court, in Rameshwar Prasad & Ors v. Union of India (2006), later declared the dissolution unconstitutional and a “brazen and outrageous” act. While the court did not directly castigate the President, it was a moment of constitutional difficulty. President Kalam later expressed his reservations about the decision in his book “Turning Points: A Journey Through Challenges” (2012).

• Pranab Mukherjee (2012-2017): The Constitutional Expert in the Chair

  • Context: A veteran politician and constitutional expert, President Mukherjee’s tenure was marked by a firm stance on legislative propriety, particularly concerning ordinances.
  • Ordinance on Convicted Lawmakers (2013): The UPA government sought to promulgate an ordinance to negate the Supreme Court’s verdict in Lily Thomas v. Union of India (2013), which had struck down a provision in the Representation of the People Act that allowed convicted MPs/MLAs to retain their seats. President Mukherjee reportedly expressed strong reservations about using the ordinance route to overturn a judicial verdict on a matter of electoral reform and public integrity. The ordinance was eventually withdrawn by the government itself amidst public and political opposition.
  • Re-promulgation of Land Acquisition Ordinance (2014-15): The NDA government, lacking a majority in the Rajya Sabha, took the ordinance route to amend the Land Acquisition Act of 2013. The ordinance was re-promulgated three times. When the government sought to promulgate it for the fourth time, President Mukherjee is said to have cautioned the government against the practice, emphasizing that ordinances are for emergencies and not a substitute for parliamentary debate and legislation. His stance was in line with the Supreme Court’s judgment in the D. C. Wadhwa v. State of Bihar (1987) case, which had deprecated the re-promulgation of ordinances as a “fraud on the Constitution”. The government eventually let the ordinance lapse.

Prelims Pointers

• Constitutional Provisions: Articles 52 to 78 in Part V of the Constitution deal with the Union Executive.
• Article 52: There shall be a President of India.
• Article 74: The President shall act on the aid and advice of the Council of Ministers headed by the Prime Minister. The President may require the Council of Ministers to reconsider such advice.
• Article 75: The Prime Minister shall be appointed by the President, and other Ministers shall be appointed by the President on the advice of the Prime Minister. Ministers hold office during the pleasure of the President.
• Article 111: Deals with the President’s assent to Bills (Absolute Veto, Suspensive Veto, Pocket Veto).
• Article 123: Grants the President the power to promulgate Ordinances during the recess of Parliament.
• Article 356: Power of the President to impose President’s Rule in a state on the grounds of failure of constitutional machinery.
• Electoral College for President:
  1. Elected members of both Houses of Parliament (Lok Sabha and Rajya Sabha).
  2. Elected members of the Legislative Assemblies of the states.
  3. Elected members of the Legislative Assemblies of the Union Territories of Delhi and Puducherry (as per the 70th Amendment Act, 1992).
• Who does not participate in the election:
  • Nominated members of Lok Sabha and Rajya Sabha.
  • Members of State Legislative Councils.
  • Nominated members of State Legislative Assemblies.
• Impeachment of the President (Article 61):
  • Ground for impeachment: ‘Violation of the Constitution’ (not defined in the Constitution).
  • The process can be initiated by either House of Parliament.
  • Charges must be signed by at least 1/4th of the members of the House.
  • A 14-day notice must be given to the President.
  • The resolution must be passed by a majority of not less than 2/3rd of the total membership of the House.
  • The other House investigates the charges.
  • Nominated members of Parliament CAN participate in the impeachment process.
  • Elected members of state legislative assemblies do NOT participate.
• Veto Powers:
  • Pocket Veto: President Giani Zail Singh used it on the Indian Post Office (Amendment) Bill, 1986.
  • Suspensive Veto: President K. R. Narayanan used it on the recommendation for President’s rule in UP (1997) and Bihar (1999). President A.P.J. Abdul Kalam used it on the Office of Profit Bill (2006).
• Key Supreme Court Cases:
  • R. C. Cooper v. Union of India (1970): Presidential satisfaction for promulgating an ordinance is subject to judicial review on grounds of mala fide.
  • D. C. Wadhwa v. State of Bihar (1987): The Supreme Court held that the re-promulgation of ordinances is a “fraud on the Constitution” and subverts the democratic process.
  • S. R. Bommai v. Union of India (1994): Laid down guidelines for the imposition of Article 356. The proclamation is subject to judicial review.
  • Lily Thomas v. Union of India (2013): Struck down Section 8(4) of the RPA, leading to the immediate disqualification of convicted lawmakers.

Mains Insights

1. The Evolving Role of the President: From a ‘Rubber Stamp’ to a ‘Conscience Keeper’

• Initial Perception: In the initial decades, dominated by single-party majority governments, the President’s office was often perceived as a mere ‘rubber stamp’ or a ceremonial post, as seen during the tenures of Presidents like Fakhruddin Ali Ahmed who signed the Emergency proclamation in 1975.
• The Shift with Coalition Politics: The era of coalition governments, starting from the late 1980s, fundamentally transformed this role. The absence of clear mandates forced Presidents like R. Venkataraman, S. D. Sharma, and K. R. Narayanan to exercise their situational discretion in appointing Prime Ministers, leading to the establishment of important constitutional conventions.
• Assertiveness and Constitutionalism: Presidents like K.R. Narayanan and Pranab Mukherjee demonstrated that the President could act as a ‘conscience-keeper’ of the Constitution. By questioning the executive’s decisions on matters like the imposition of Article 356 and the re-promulgation of ordinances, they reinforced the principles of federalism, democracy, and separation of powers. This assertiveness is not extra-constitutional but is rooted in their oath to “preserve, protect and defend the Constitution”.

2. Discretionary Powers of the President: A Source of Strength and Controversy

• Situational Discretion: The President’s key discretionary powers are situational, not explicitly listed in the Constitution. These include:
  • Appointing a Prime Minister when no party has a clear majority.
  • Dismissing the Council of Ministers when it cannot prove the confidence of the Lok Sabha.
  • Dissolving the Lok Sabha if the Council of Ministers has lost its majority.
• Debate on ‘Pleasure’ of the President: The extent of the President’s pleasure under Article 75 is a debated topic. While the pleasure is generally exercised on the advice of the Prime Minister, the hypothetical situation contemplated by President Zail Singh in 1987 raises the question of whether a President can dismiss a PM who has lost the moral authority to govern but retains a majority through questionable means. Constitutional experts like Subhash C. Kashyap argue that such a power, if it exists, must be used in the rarest of rare cases.
• Veto Power as a Check: The use of pocket and suspensive vetoes has proven to be an effective tool to check hasty or ill-considered legislation from the executive, forcing public debate and reconsideration, as seen in the cases of the Postal Bill and the Office of Profit Bill.

3. The Ordinance Raj: A Challenge to Parliamentary Democracy

• Cause-Effect Relationship: The frequent use of the ordinance-making power under Article 123 is often a consequence of a government’s inability to secure a majority in the Rajya Sabha or its desire to bypass legislative scrutiny on contentious issues.
• Constitutional Concern: While Article 123 is intended as an emergency provision, its routine use undermines the legislative function of the Parliament. The re-promulgation of ordinances, as severely criticized in the D. C. Wadhwa case, is seen as a “fraud on the Constitution” because it bypasses the legislature, which is the primary law-making body in a democracy.
• Role of the President: President Pranab Mukherjee’s refusal to allow indefinite re-promulgation of the Land Acquisition ordinance underscores the President’s role as a gatekeeper against the misuse of this executive power. It reinforces the judiciary’s stance and upholds the spirit of parliamentary democracy.

Previous Year Questions

Prelims

1. With reference to the election of the President of India, consider the following statements: (UPSC Prelims 2023)

   1. The members nominated to either House of the Parliament or the Legislative Assemblies of States are also eligible to be included in the Electoral College.
   2. Higher the number of elective Assembly seats, higher is the value of the vote of each MLA of that State.
   3. The value of the vote of each MLA of Madhya Pradesh is greater than that of Kerala.
   4. The value of the vote of each MLA of Puducherry is higher than that of Arunachal Pradesh because the ratio of the total population to the total number of elective seats in Puducherry is greater as compared to Arunachal Pradesh.

   Which of the statements given above is/are correct? (a) 1 and 2 only (b) 3 and 4 only (c) 1, 2 and 3 only (d) None

   Answer: (d) All statements are incorrect. Nominated members are not part of the Electoral College. The value of an MLA’s vote depends on the ratio of the state’s population to the number of elected MLAs, not just the number of seats. The value of an MLA’s vote from Madhya Pradesh (131) is less than that of Kerala (152). The value of an MLA’s vote from Puducherry (16) is higher than that of Arunachal Pradesh (8), but the reasoning provided in the statement is a complex calculation that may not be precisely accurate in its simplified form. However, the first two statements are definitively wrong. Thus, ‘None’ is the most appropriate answer based on elimination.

2. Consider the following statements: (UPSC Prelims 2022)

   1. The Constitution of India classifies the ministers into four ranks viz. Cabinet Minister, Minister of State with Independent Charge, Minister of State and Deputy Minister.
   2. The total number of ministers in the Union Government, including the Prime Minister, shall not exceed 15 percent of the total number of members in the Lok Sabha.

   Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

   Answer: (b) The Constitution does not classify ministers into ranks; this is a convention. Statement 2 is correct as per the 91st Amendment Act, 2003, which added Article 75(1A).

3. If the President of India were to resign, the Vice-President is to act as President for what period? (UPSC Prelims 2021 - Indirect/Related) (a) For the remaining term of the President. (b) For a maximum period of one year. (c) For a maximum period of six months. (d) Until a new President is elected.

   Answer: (c) The Vice-President can act as President for a maximum period of six months, within which a new President must be elected to fill the vacancy (Article 62(2)).

4. The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its: (UPSC Prelims 2019) (a) advisory jurisdiction (b) appellate jurisdiction (c) original jurisdiction (d) writ jurisdiction

   Answer: (c) Disputes between the Government of India and one or more states fall under the original jurisdiction of the Supreme Court as per Article 131. This is relevant to the President’s role in Centre-State relations, such as the imposition of Article 356.

5. Which one of the following suggested that the Governor should be an eminent person from outside the State and should be a detached figure without intense political links or should not have taken part in politics in the recent past? (UPSC Prelims 2019) (a) First Administrative Reforms Commission (1966) (b) Rajamannar Committee (1969) (c) Sarkaria Commission (1983) (d) National Commission to Review the Working of the Constitution (2000)

   Answer: (c) The Sarkaria Commission on Centre-State relations made this recommendation. This is relevant as the President acts on the reports of Governors, especially concerning Article 356.

Mains

1. Discuss the role of the Vice-President of India as the Chairman of the Rajya Sabha. (UPSC Mains GS-II 2022)

   Answer Framework:

   • Introduction: Briefly introduce the constitutional position of the Vice-President under Article 63 and their dual role as Vice-President and ex-officio Chairman of the Rajya Sabha under Article 64.
   • Role as Chairman of Rajya Sabha:
     • Presiding Officer: Detail the primary function of presiding over the sessions of the House, maintaining order and decorum.
     • Procedural Powers: Explain their powers in interpreting the rules of procedure, admitting questions and motions, and conducting voting. Mention the casting vote power in case of a tie.
     • Guardian of Privileges: Describe the role in protecting the privileges of the members and the House.
     • Administrative Head: Explain their role as the administrative head of the Rajya Sabha Secretariat.
     • Non-Partisan Role: Emphasize the need for impartiality in conducting the proceedings, giving fair opportunities to all members, including the opposition.
   • Distinction from Speaker: Briefly compare the role with the Speaker of Lok Sabha (e.g., Speaker presides over joint sittings, certifies Money Bills).
   • Conclusion: Conclude by highlighting the significance of the Chairman’s role in upholding the traditions of parliamentary democracy and ensuring the effective functioning of the Council of States, which represents the federal character of India.

2. “The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular state is being questioned by various States. However, the power of States to withhold consent to the CBI is not absolute.” Explain with special reference to the federal character of India. (UPSC Mains GS-II 2021)

   Answer Framework: (While not directly on the President, this question deals with federalism, a principle the President is sworn to uphold, especially in the context of Article 356).

   • Introduction: Explain that law and order is a state subject, and CBI, under the Delhi Special Police Establishment Act, 1946, requires general consent from the state government to operate within its jurisdiction.
   • States Withholding Consent: Discuss the recent trend of several states withdrawing general consent, citing misuse of the agency by the Centre for political purposes, thereby straining Centre-State relations.
   • Power is Not Absolute: Explain the exceptions where CBI can investigate without state consent:
     • Supreme Court/High Court Orders: The constitutional courts can order a CBI probe anywhere in the country to ensure justice, and state consent is not required in such cases.
     • Investigation of Central Government Employees: CBI can investigate central government employees within a state.
   • Federal Character: Analyze how this issue reflects the friction in India’s quasi-federal structure. The states’ power to withhold consent protects their autonomy, while the judiciary’s power to order a CBI probe acts as a check to ensure that justice is not subverted by state-level influences.
   • Conclusion: Conclude by suggesting the need for a balanced approach, perhaps through a federal law governing CBI, to ensure its autonomy and effectiveness while respecting the federal rights of states.

3. To what extent, in your opinion, has the decentralisation of power in India changed the governance landscape at the grassroots? (UPSC Mains GS-II 2022)

   Answer Framework: (Relates to the broader theme of constitutional governance which the President oversees).

   • Introduction: Introduce the 73rd and 74th Constitutional Amendment Acts as revolutionary steps towards decentralizing power and establishing the third tier of governance.
   • Positive Changes in Governance Landscape:
     • Political Empowerment: Mention increased political participation, especially of women and marginalized communities, due to reservations.
     • Democratic Deepening: Explain how local self-governments have become nurseries of democracy.
     • Responsive Governance: Discuss how local issues are better addressed by local leaders.
     • Effective Implementation: Cite examples of successful implementation of schemes like MGNREGA through Panchayati Raj Institutions (PRIs).
   • Challenges and Limitations:
     • The 3 Fs: Discuss the lack of Functions, Funds, and Functionaries. State governments have been reluctant to devolve adequate powers.
     • Bureaucratic Hurdles: Mention the interference of state bureaucracy and MLAs in the functioning of PRIs.
     • Capacity Building: Point out the lack of training and capacity building for elected representatives at the local level.
   • Conclusion: Conclude that while decentralization has significantly altered the governance landscape by empowering the grassroots, its full potential is yet to be realized due to structural and functional challenges that require urgent reforms.

4. Critically examine the procedures through which the Presidents of India and France are elected. (UPSC Mains GS-II 2022)

   Answer Framework:

   • Introduction: State that both India and France are republics with elected presidents, but their roles and election procedures differ significantly, reflecting their parliamentary and semi-presidential systems, respectively.
   • Election of the President of India:
     • System: Indirect election.
     • Electorate: Electoral College comprising elected MPs and MLAs.
     • Voting Method: Proportional Representation by means of a Single Transferable Vote (STV).
     • Rationale: To make the President a representative of the Union and the States, while avoiding the political expense and potential rivalry with the PM that a direct election would entail.
     • Critique: Indirect nature is sometimes criticized as being less democratic. The STV system is complex.
   • Election of the President of France:
     • System: Direct election by universal adult suffrage.
     • Voting Method: Two-round system. A candidate needs an absolute majority (>50%) in the first round to win. If no one achieves this, a second round is held between the top two candidates.
     • Rationale: The French President holds significant executive power in their semi-presidential system, so a direct mandate from the people is essential for legitimacy.
     • Critique: The two-round system can lead to strategic voting and may not always produce a consensus candidate.
   • Comparative Analysis & Conclusion: Conclude by summarizing that the Indian system is designed for a nominal head of state in a parliamentary system, ensuring federal representation, whereas the French system is designed to provide a strong, direct mandate to a powerful executive president. Each procedure is suited to its own constitutional framework.

5. Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. (UPSC Mains GS-II 2021)

   Answer Framework: (Directly analogous to the President’s ordinance power at the Centre).

   • Introduction: Introduce the Governor’s legislative power to promulgate ordinances under Article 213, which mirrors the President’s power under Article 123.
   • Essential Conditions for Exercise:
     • Recess of Legislature: The State Legislature (either House, if bicameral) must not be in session.
     • Satisfaction of Governor: The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. This satisfaction is justiciable on grounds of mala fide (as per the R.C. Cooper case).
     • On Advice of CoM: The power is exercised on the aid and advice of the state Council of Ministers.
     • Legislative Competence: The ordinance can only be on subjects in the State List and Concurrent List.
   • Legality of Re-promulgation:
     • Constitutional Provision: The Constitution is silent on re-promulgation.
     • Judicial Pronouncements:
       • D.C. Wadhwa v. State of Bihar (1987): The Supreme Court condemned the re-promulgation of ordinances in Bihar as a “subversion of the democratic process” and a “fraud on the Constitution.” It held that exceptional power of ordinance-making cannot be used as a substitute for the legislative power of the state legislature.
       • Krishna Kumar Singh v. State of Bihar (2017): The Supreme Court reiterated that re-promulgation is unconstitutional and held that the failure to place an ordinance before the legislature is a serious constitutional infraction.
   • Conclusion: Conclude that while ordinance-making is a necessary tool for exigent situations, its re-promulgation without legislative approval is illegal and undermines the principle of separation of powers and the supremacy of the legislature in law-making.