With the presidential election in the news, a critical look at the institution and its relevance in a parliamentary system.
Among my earliest memories, I recall watching Zail Singh's swearing-in ceremony on television. The event's solemnity and splendour were evident despite the flickering images of our black-and-white Dyanora set. I stood transfixed as Zail Singh took his oath and exchanged seats with Sanjiva Reddy. We had a new president, I was told, and the armed forces, a commander-in-chief. Since then, I've never missed this carefully choreographed ritual. What's remarkable is that the event has been staged without interruption since 1950.
With liveried attendants and mounted bodyguards for props, the Raj is re-imagined and re-enacted at Rashtrapati Bhavan every day. Amid this dazzling display, the presidency is a monarchical symbol of the modern Indian state's power and glory. On that high office, the constitution endows a bewildering array of powers, duties, and responsibilities. Yet, as every school child is taught, it is the prime minister who is really in charge of the government. Commentators have attacked this peculiar arrangement as a mindless imitation of the British parliamentary model. They argue that it causes political instability and dysfunction.
Why parliamentary system
Such criticism is neither recent nor novel. In fact, the suitability of the “Westminster” arrangement has been relentlessly questioned ever since it was adopted six decades ago. If only we had followed the American presidential system, it is lamented, we would not be saddled with hung parliaments or compulsions of coalition dharma. As the political scientist, Paul Brass notes, the demand for an executive presidency is itself a long political tradition in India. Ironically, this demand has been voiced not just as a response to fractious coalition politics. In fact, it was at the height of Indira Gandhi's dominance, when she enjoyed an absolute majority in the Lok Sabha, that her supporters proposed radical structural changes to the constitution.
So why did our founders establish a parliamentary system? Did they blindly copy the prevailing British model without seriously considering other alternatives? Fortunately, for us, they were not as complacent as it may seem on this question. Just as the American Constitutional Convention of 1787 detested the oppressive English monarchy, our Constitutional Assembly was deeply concerned about concentrating political power in a single office. With no shortage of despotic regimes wherever they turned, Assembly members wanted desperately to avoid paving the way for a future dictator.
In a November 1948 speech, Ambedkar described our founders' dilemma with trademark eloquence. An ideal executive, he argued, must be both stable as well as responsible to the people who elected it. There was no political system in vogue that satisfied both objectives equally. The American and Swiss presidencies offered greater stability, while British cabinet governments seemed more accountable to the people. The Assembly ultimately settled for accountability over stability by establishing a structure, which more closely resembled the latter than the former. As Justice Krishna Iyer colourfully put it: “Not the Potomac, but the Thames, fertilises the flow of the Yamuna.”
Thus, even while the president is India's head of state, she or he can exercise executive powers only upon the cabinet's aid and advice. Moreover, since all ministers must be elected to either house of parliament they are like “a hyphen, which joins, a buckle,” fastening the legislature to the executive. In crafting this arrangement, the Assembly diluted the separation-of-powers principle, which requires strict segregation among the three branches so they may check and balance each other.
Ironically, it was our first president who wanted to renegotiate this arrangement. Writing to Nehru, Prasad pointed to the fact that the Constitution literally endowed him with many powers. Surely, he could not act as a rubber stamp in exercising these powers even if he had to heed the cabinet's guidance. At Nehru's urgings, Attorney General MC Setalvad and Alladi Krishnaswamy Ayyar, a leading constitutional lawyer, rejected Prasad's hyper-textual reading of the constitution. They reasoned that, in a parliamentary system, the president could not act independently of the cabinet. This position was later codified through a constitutional amendment, which renders cabinet advice binding on the president. No subsequent occupant of Raisina Hill has seriously challenged this position, and the Constitution Review Commission awkwardly sidestepped this issue in 2000.
If the cabinet decides everything, what, if any, independent duties does the president have aside from ceremonial functions and a somewhat demanding travel schedule?
First, the president appoints prime ministers and decides when to dissolve the Lok Sabha. This prerogative is especially critical since no single party has secured an outright parliamentary majority since 1989. When exercising this prerogative, the president need not always rely on cabinet advice.
Second, the president must sign all parliamentary bills and key constitutional documents in order for them to have legal force. If the president has concerns about a bill, she or he may ask parliament to reconsider it. APJ Abdul Kalam was the first president to do so when he returned the office-of-profit bill. Unwilling to budge, parliament reaffirmed the law forcing Kalam to eventually sign it. Another option would have simply been to keep the bill pending, as Venkataraman did with the much-criticised Indian Postal Bill. By contrast, Fakhruddin Ali Ahmed readily and unquestioningly approved the emergency proclamation in June 1975 despite being aware that the cabinet had not discussed it.
Third, the president can be an influential sounding board for the cabinet on various constitutional and legal matters. As the Supreme Court has emphasised, the president has the “right” to be consulted by ministers as well as to “warn and encourage” them about major decisions, even if ultimately bound by their advice. And as Venkataraman revealed in his memoirs, he frequently volunteered his opinions on foreign and economic policy matters to the four prime ministers who served with him. Moreover, just as the president may return a bill unsigned, the president can formally request the cabinet to reconsider its advice on a matter. This is precisely what K.R. Narayanan did when returning the Vajpayee cabinet's recommendation to impose central rule in Bihar.
No partisan motives
To discharge these important constitutional duties, Nehru and other Assembly members believed that the president must not be a “political person.” Yet, it's unlikely they intended to disqualify anyone with a political background. They only wanted future presidents to act without partisan motives. Indeed, it is probably essential for every future every presidential candidate to have some experience in governance, public policy, and constitutional law, given the increasing number of issues that require presidential attention.
After a long debate, the Constituent Assembly restricted voting in presidential elections to members of parliament and state legislatures. It would be illogical, Nehru reasoned, to subject a directly elected president to the cabinet's demands. At the same time, the Assembly stipulated that every MP or MLA's presidential ballot be weighted by population. Thus, every citizen, even if otherwise ineligible or unwilling to vote, is indirectly involved in the presidential election. This makes the president the only nationally elected public official in India.
It is for this reason that Krishna Iyer challenged Venkataraman to a series of presidential debates. Perhaps, that proposal should be revived for the forthcoming contest. If a single “consensus” candidate emerges, she or he should still conduct town-hall conversations about critical issues facing the nation. And, for their part, ordinary citizens can demonstrate a deeper engagement with the presidential election process. We can no longer afford to outsource this decision to political bosses and power brokers. After all, each of us does actually “count” in electing the next president.