By voicing his concern over the legislators’ ordinance, Pranab Mukherjee has demonstrated noteworthy and subtle use of the presidential differential in echoing public opinion
Rahul Gandhi’s remarks on the draft ordinance that could have protected convicted legislators have drawn understandable attention. But, in the process, a major flank of the event has got obscured. President Pranab Mukherjee’s “reservations” on the proposed enactment, and the impact of those on the now-aborted manoeuvre deserve no less notice. Rather more, for they go beyond the particular measure to the role and relevance of the nation’s Presidency.
Fine-tooth combing will be done on whether the Prime Minister himself had been fully convinced about the move, whether the full cabinet meeting with the United Progressive Alliance chairperson attending had been acquainted with all the pitfalls of the move or not, whether it was the Bharatiya Janata Party (BJP)’s opposition, the Congress Party’s own serious doubts about the public response to the measure, Rahul Gandhi’s public statement, or President Mukherjee’s undisguised displeasure that finally led to the withdrawal. These enquiries will be of interest, no doubt, but of post-facto academic interest.
Looking beyond the field
What is most important to take away from the sequence is the lesson that it holds on what may be called the Presidential Differential.
By the intent, language and scheme of the provisions of the Constitution of India, as well as by all subsequent pronouncements on the subject, the President is bound by the aid and advice of the government of the day. This, in other words, means that if the Prime Minister has made a proposal that requires the President to approve it, the President’s approval is a desideratum, a mere formality. This, in a parliamentary democracy, is how it should be. But why does the Constitution require certain measures to be approved by the Head of State? For the reason that while the stamp of his approval is made of signet-rubber, the ink-pad on which it must press before the stamping, is the application of a non-partisan mind placed, consciously, at the finial of our Constitution’s architecture. The President is where he is for the reason that, placed above partisan interests, on a perch that helps him see the horizon beyond the field, he can provide the differential coefficient between the distant scene and the immediate, the far-effect rather than the instant, the climate rather than the weather, the year and the decade beyond the morrow. Where the government of the day, and the Opposition as well, are enmeshed in the species of an issue, he must see the genus. Where politics acts and reacts as political intelligence would, the President acts and reacts as political wisdom would.
In a conversation that President K.R. Narayanan had with N. Ram, on Doordarshan and All India Radio on August 14, 1998, the senior journalist asked him to give his view on the role in “the Indian scheme of things” of a President. “My image of a President,” KRN said, “before I came here, and before I had any hope of coming here, was that of a rubber-stamp President, to be frank.”
And then he went on to say, “But having come here, I find that the image is not quite correct.”
What was “not quite correct” in the rubber-stamp image? In President Narayanan’s words, “…working within the four corners of the Constitution…gives very little direct power or influence to him to interfere in matters or affect the course of events, but there is a subtle influence of the office of the President on the executive…and on the public as a whole.” He said the President can play that subtle role “only if he is, his ideas and his nature of functioning are seen by the public in tune with their standards.” Mr. Ram asked if President Narayanan saw himself as “a citizen President.” The President did not disagree and added that a citizen president’s advice to the executive would be “received with grace, it would be sometimes accepted, if it is known that the public opinion is on the side of the kind of advice the President is giving.”
The Presidential Differential is, therefore, about the President hearing the differential tones in a situation, in a proposal, in a suggested promulgation, in a way in which he can extract the true tone that can be heard when many other tones are being sounded together in varying frequencies and velocities. President Narayanan then went on to say: “The President has the power to return a matter but…though this freedom is allowed to the President…to be successful, he should be in tune with the people…”
President Mukherjee’s role in the matter of what has come to be seen as the “Convicted Legislators’ Protection Ordinance” or CLEPO, comes within the category of illustrious uses of the Presidential Differential. But it is important to note that, behind his sagacious use of it, is the fact that public opinion was in tune with him. It is, really, no person, party, parties, or limbs of the Constitution, but the scorn of the people of India that has saved us from an enactment that was wholly unethical and ill-advised, and would have deepened public cynicism about politics in our country.
(Gopalkrishna Gandhi is a former Governor of West Bengal.)