Polity Notes 27

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.