Not since the election of VV Giri has a presidential poll aroused excitement comparable to that being witnessed today. Giri’s election was part of a power struggle which led eventually to the Congress split in 1969. No such political angle is perceptible in the coming presidential poll. Then why the excitement? Is it because of a subconscious realization in the public that no credible political authority exists in present-day India? So much media coverage and public participation for selecting the best candidate by those who cannot even vote for the President is, to say the least, odd. And so much attention devoted to a post which by common consent is almost purely ceremonial is even odder. Perhaps the public has realized vaguely that the present political system has failed to deliver. It hopes desperately that in some way or other a good President will bring about desired change. Well, a President could become the instrument of desired change, but only if the traditional view of his role is revised -- even within the constraints of our Constitution.
India has perhaps the world’s longest and most frequently amended Constitution. Is this huge written tract by itself inadequate for correctly understanding its intent? If not, on what basis is it glibly assumed that the President is akin to the British sovereign? Last week, a distinguished jurist quoted Walter Bagehot’s observations about the British Crown to draw conclusions about our President’s role. But the British sovereign is hereditary. Our President is elected by the widest mandate of any office in the nation. The British constitution is unwritten. India has an explicit and written Constitution. For a layman, it is puzzling how all jurists tend to assume, as incontrovertible truth, similarity between the British sovereign and the Indian President. If this irrational rigidity were abandoned the President might conceivably assume a meaningful role, well within the parameters of our too frequently amended Constitution.
Article 74 (1) of the Constitution states: "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 this advice." Therefore, insofar as the cabinet advises the President to act on subjects that come within its purview, the President is bound by that advice. But does that imply that all subjects come under the cabinet’s purview, and that no subjects exist on which the President might act independently?
It is an accepted principle of natural justice that an interested party in a dispute cannot be the judge. In a multi-party system, the union government most often is an interested party in affairs related to states. How, then, can the central cabinet be expected to take an impartial stand on events occurring in states in which the ruling party has a vested interest? Recall the scandalous decision of the union government led by BJP during the Gujarat riots, and by the Congress when the Bihar assembly was dissolved.
The Supreme Court ruled in the Samsher Singh case (1974) that the cabinet’s "aid and advice" tendered to the President shall be binding. But in the Dr Raghulal Tilak case (1979) it ruled that in no manner was the Governor "subordinate or subservient" to the union government. These two rulings contradict each other. If both are to be believed the Governor is a sovereign entity accountable to none. When two rulings contradict each other the latter ruling prevails. Clearly, then, the Governor must be accountable to the President who appoints him. In the event the latter should have discretion to appoint the Governor of his choice to ensure that law and Constitution are maintained in the governance of the state. Only then would centre-state relations remain free of partisan central interference.
The President would act thereby not as the starter or the accelerator of the state machine but as its brake. He would check executive transgression of the Constitution and the law. This, precisely, is what the oath of office undertaken by the President and the Governors enjoins on them to do. That centre-state relations have not evolved as the Constitution’s founding fathers must have envisioned becomes clear from Parliament’s failure, despite five intervening decades, to establish the Inter-State Council laid down in Article 263 of the Constitution. The Constitution has not specified the composition and structure of this body. The Council is intended to address all issues of dispute between the centre and a state, or between the centre and states, or between states. Logically, if the Inter-State Council were established, the President, as one elected by parliament and all the state legislatures, would have the most credible mandate to preside over its deliberations. Representing the union cabinet of a minority coalition government, any Prime Minister, who may not even be elected to the Lok Sabha, would hardly be appropriate to preside over subjects discussed by the Inter-State Council.
The principle of natural justice that precludes an interested party acting as the judge in any dispute can be extended with advantage to improve governance and give the President added responsibility. Two fields come immediately to mind in which the President would have a natural role. First, the CBI could be made into an autonomous constitutional body to enable it to deal effectively with political corruption. Today, the CBI is rendered toothless because it cannot undertake investigation or prosecution of any public servant without clearance from the very executive that needs to be probed. If, as a constitutional body, the CBI were made accountable to the President, the political influence that presently paralyses it would disappear.
Secondly, tension between parliament and the judiciary would disappear if judges were appointed, and judicial functioning monitored, by a self-operating autonomous Judicial Commission. This commission too might best be accountable to the President, who by the nature of his mandate is most likely to be above partisanship.
One deliberately refrains from drawing attention to the powers of the President conferred by the Constitution that allow him to address one or both Houses of Parliament whenever he chooses to. This can be interpreted as his power to intervene in a parliamentary debate on a subject of national importance. One also refrains from recalling that the Constitution allows the President to advise the cabinet to address any subject arousing his concern. That could create an interventionist President, unacceptable to the political class, even though these powers are Constitutional. However, even if the President’s role, as outlined above, is limited to acting as a check against executive excess, it should improve our crumbling governance dramatically.
(Puri can be reached at firstname.lastname@example.org)