New Delhi, 18 May 2007

Presidential Poll

SAY NO TO A SECOND TERM

By Poonam I Kaushish

Should the ‘People’s President’ Kalam get a second term? A question that has turned into a political hot potato. Both the UPA and NDA are sharply divided. The BJP still favours him as a consensus candidate. But the Congress makes no bones that it wants a Congress nominee in place of Kalam, whom it considers a ‘persona non grata’, post the Office of Profit Bill controversy and the embarrassment it caused to Sonia Gandhi. While the Left continues to hold its Presidential cards close to its chest, RJD’s Lalu is ambivalent towards a Congress nominee. The BJP also hoots for Vice President Bhairon Singh Shekhawat in case of a contest. Both the Samajwadi Party and Janata Dals still bet on Kalam. However, all eyes are now on made-in-India Mayawati Memsahib, following her historic triumph in UP. Which card will she play---Brahmin or Thakur? To put a stronger punch into her transition from Bahujan Samaj to Sarvajan politics. Or will she, too, opt for Kalam? Anything and any combination is possible today in India’s bizarre politics dominated by brazen opportunism and reckless pursuit of power.

Constitutional experts and thinking people hope that India will get a President of whom the country can be truly proud. They also hope that the convention of one term for the President will continue and that there won’t be a second term for Kalam. No, they are not opposed to Kalam personally. Barring a few unfortunate occurrences, he has conducted himself admirably. But they are rightly opposed in principle to a second term for the President, as it could encourage the incumbent during his first term to join hands with the Government of the day for mutual aggrandizement and compromise India’s best long- term interest. Contrary to popular belief, a President is vastly empowered under the Constitution to prevent the Government of the day from playing havoc with the country. Alas, even persons who should know better continue to take a simplistic view of the President’s power. Many erroneously view him as no more than a rubber stamp, except when he has to choose from among rival claimants a person who, in his opinion, could provide a stable Government.

Confusion continues because of the failure of free India to do what its first President, Dr. Rajendra Prasad recommended way back in November 1960. He wanted legal experts to make a scientific study of the powers and functions of the President and spell them out so as to leave no scope for any abuse. Dr. Prasad conceded that the Indian Constitution was based largely on the British Constitution. But he also pointed out that there were certain obvious differences. “The British Constitution”, he said, “is a unitary Constitution in which Parliament is supreme…Our Constitution is a federal constitution in which the powers and functions of the Union Parliament and the State Legislatures are clearly defined…” Again, “the Head of the State is an elected President who holds office for a term and can be removed for misconduct in accordance with the procedure laid down in the Constitution.”

In fact, Dr. Prasad, who had earlier presided over the Constituent Assembly, took up the issue of the President’s powers with Nehru first in 1950 soon after moving into Rashtrapati Bhavan. Nehru referred these points to the then Attorney-General, M.C. Setalvad, and the latter’s opinion is of no less interest today. Setalvad held that the President was essentially titular like the British monarch and was bound by the advice of his Council of Ministers. Like the crown, the President could exercise “the right to be consulted, the right to warn and the right to encourage.” Setalvad was also of the opinion that the President could dismiss a ministry and order fresh elections. The power to hold elections on his own discretion was not in accordance with the letter of the law. However, it could be exercised as a reserve power if the President felt strongly that Parliament did not reflect the political balance in the country. (Nine State Assemblies were dissolved in 1977 by the Janata Government following the Lok Sabha poll earlier that year in exercise of this power).

Much has happened since the first President put forward his views. In 1974, the Supreme Court made it clear in the Shamsher Singh case that the President was bound to act in accordance with the advice of his Council of Ministers. Two years later, Mrs. Gandhi got the Constitution amended so as to end all nagging doubts on the issue---doubts which eventually led to the great Congress split of 1969.  The Constitution 42^nd Amendment provided: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice.” Subsequently, the Constitution 44^th Amendment has clarified that the President is not tied hand and foot and that he can “require the Council of Ministers to reconsider such advice either generally or otherwise.” But this power is not unlimited. The amendment, introduced by the Janata Government, provides that the “President shall act in accordance with the advice tendered after such re-consideration.”

Several other points of controversy have been resolved and healthy conventions built over the years in regard to the office of the President. Rajen Babu, as Dr. Prasad was popularly known, was of the view, for instance, that the President as the Supreme Commander of the Defence Forces could send for the Service Chiefs and ask for information about defence matters. Setalvad, however, opined that the President could not send for the Service Chiefs. Instead, he could send for the Defence Minister and ask him to make inquiries.  At one stage, Rajen Babu strongly complained to Nehru that he often read of the appointments of Ambassadors and Governors in the Press and was officially informed only afterwards. This had its effect and an order was passed by the Cabinet stipulating that all the papers relating to top-level appointments be submitted to him before orders were issued. But a lot more remains to be done now that various meanings are being read into the Constitution and the President is generally expected to function impartially, objectively and independently vis a vis the Government.

Most experts are inclined to agree with Rajen Babu that the President has certain reserve, discretionary powers which flow from the oath of his office which is as follows: “I will faithfully execute the office of President and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.” The President also enjoys certain powers on three other counts. First, the President, like the British crown, can “exercise the right to be consulted, the right to warn and the right to encourage.” Second, the President has under Article 86 of the Constitution the right to “address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members”. He has also the right to “send messages to either House of Parliament whether with respect to a Bill then pending in Parliament or otherwise.” The House to which any message is so sent shall consider it with “all convenient despatch”. Third, the President has the power under Article 143 to consult the Supreme Court on any question of law or fact that may have arisen or was likely to arise.

The President has one other power which, has seldom been exercised. This is the power to question and the right to information, which incidentally gives Parliament its unrivalled authority over the Executive and makes the daily question-hour sacrosanct. Nehru called on Rajen Babu once a week to keep him informed. The President is thus empowered to uphold the Constitution and so also established conventions by asking questions---or by delaying the signing of any proclamation or other papers till the authorities satisfy him fully.  The President could put pertinent questions to the Centre before signing any document and demand full satisfaction. There is no time limit for him.

Thus, the President is not required to be a rubber stamp by the Constitution. He could be wholly Constitutional and yet act impartially, objectively and independently.  Among other things, he could always exercise his judgment and ask for any decision to be reconsidered by the Government Constitutionally, he could even go to Parliament and also seek the opinion of the Supreme Court on any issue of basic importance. All in all, the President enjoys vast powers. Remember, he is required to preserve, protect and defend the Constitution to the best of his ability and not that of his Council of Ministers. He can serve the country faithfully only so long as he functions independently and impartially in the best national interest. Temptation of a second term could jeopardize his independence and the national interest. Clearly, it is time to say a loud no to a second term for the President---by convention or by law..---INFA

(Copyright, India News and Feature Alliance)