India’s messiest presidential poll is accompanied by a national crisis. No state seems free from corruption, crime or insurgency. The system appears collapsed. This should cause little surprise. The spirit and intent of the Constitution were aborted at birth. A conspiracy of silence attended the murder of our Constitution. The correspondence related to the controversy between India’s first President Dr Rajendra Prasad and Prime Minister Nehru brings this out with startling clarity. Before India’s first general election President Prasad raised relevant questions about his constitutional powers. In a lengthy note dated 21 March 1950 he asked: "Does the Constitution contemplate any situation in which the President has to act independently of the advice of Ministers?"
Attorney-General MC Setelvad responded with a note to the government on 6 October 1950. The note was surprisingly unconvincing coming from one reputed to be a celebrated jurist. Article 53 of the Constitution vested executive powers of the Union in the President who could exercise them directly or through officers subordinate to him. Setelvad relied on Article 74 to curtail the powers of the President. He wrote:
"The words used in Article 74 to the effect that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions has, I think, the effect of enjoining the President to act in the exercise of all his functions with the advice of his Ministers."
So thought Setelvad! Did dummies write India’s longest Constitution if its text required interpretation based on the arbitrary thoughts of an Attorney-General? The framers were no dummies. Three eminent members of the Constituent Assembly, KM Munshi, BN Rau and Santanam were agreed that the President was under no obligation to accept the advice of the Council of Ministers. Ambedkar had said that the President would generally be bound by the advice of his Ministers. Near the end of his career on 2 September 1953 a disillusioned Ambedkar reportedly said:
"People keep saying to me: Oh, you are the maker of the Constitution. My answer is, I was a hack. What I was asked to do, I did much against my will... I do not want it (Constitution). It does not suit anybody."
One can only speculate on what Setelvad’s opinion would have been had Nehru been President instead of Prime Minister. In the same note Setelvad further wrote:
"The Council of Ministers must, therefore, be one which has the confidence of the House of the People. By the Constitution the President has to act in all matters with the aid and advice of the Council of Ministers. The moment the President refuses to accept its aid and advice there will be a breakdown in the Constitutional machinery."
On what was this inference based? Nowhere did Article 74 state that the "President has to act" in accordance with the aid and advice of the Council of Ministers. The view of the President being akin to the British Sovereign arose from Nehru’s woolly mind conditioned by Britain.
If Setelvad’s interpretation was correct why did Indira Gandhi, during the Emergency, introduce in 1976 the 42nd Amendment by which the President was enjoined explicitly to act by the advice of the Council of Ministers? However, even after the 42nd Amendment, thanks to its legal draughtsman Mr Pery-Shastri, an escape clause does remain for the President to exercise his powers. Even now Article 74 states that the President may exercise his powers "directly". This right is necessary. The Prime Minister’s oath of office requires him to abide by the Constitution. But the President’s oath compels him to protect the Constitution.
In contrast to Nehru, to Setelvad, and to Sir Alladi Krishnaswamy Aiyer, whose opinion was also sought, Rajendra Prasad’s observations were logical and relevant. Through his expressed opinions he towered over Nehru and his sycophantic legal advisers. Apart from queries with regard to flaws that could arise--in the event of a powerless President--in the functioning of the judiciary, of the Comptroller and Auditor-General, of the Public Service Commission and of the Election Commission, Dr Rajendra Prasad pointed out the fundamental flaw in the interpretation of the Constitution proffered by Nehru and Setelvad. In a speech delivered while laying the foundation stone of the Indian Law Institute on 28 November 1960, he said:
"It is generally believed (that) like the Sovereign of Great Britain, the President of India is also a constitutional head . . . . The executive power of the Union is vested in the President... the Supreme Command of the Defence Forces is also vested in him . . . . I should like, to be studied and investigated, the extent to which the powers and functions of the President differ from those of the Sovereign of Great Britain...there is no provision in the Constitution which lays down that the President shall be bound to act in accordance with the advice of the Council of Ministers . . . a wider question of much importance is how far we are entitled to invoke and incorporate into our written Constitution by interpretation the conventions of the British Constitution which is an unwritten constitution." (Emphasis added).
This was said at the end of Dr Prasad’s second term. His was a losing battle. The Constitution had already been subverted when Parliament passed the Hindu Code Bill in 1951. President Prasad correctly pointed out that that Parliament had been "constituted for the special purpose of framing the Constitution and then authorized by the Constitution to carry on till elections take place." That an important Bill was passed by Parliament without an electoral mandate exposed the hollow democratic pretensions of the Nehru government.
The political party system has not evolved in India the way it has in UK and USA. In the foreseeable future coalitions comprising dozens of parties will continue to govern India. India needs an executive President. To effect this, electoral changes that do not alter the structure of the Constitution are required. The terms of Parliament, State Assemblies and President need to be fixed and made coterminous. Nominations to them might be phased. Candidates for the presidency would be nominated by the outgoing legislators. The Presidential candidates might then campaign for the legislature candidates. Once elected after such a campaign, the newly elected legislators would elect the President. That would give the President a fully representative mandate. And if the Constitution is read as originally written, India’s parliamentary system would become presidential.
Whether such change is introduced by politicians or is compelled by events, time will tell. What seems clear is that our present system is not working.
(Puri can be reached at firstname.lastname@example.org)