[Reader-list] The People's President and all that

[Shivam Vij]

I've been of the opinion that the selling of Kalam as a middle class icon
has been one of the biggest PR tricks of our times. Please do read the
article below by AG Noorani.
best
shivam



Not quite a free hand

AG Noorani, Hindustan Times
August 13, 2007

First Published: 23:37 IST(13/8/2007)
Last Updated: 00:18 IST(14/8/2007)
http://hindustantimes.com/StoryPage/StoryPage.aspx?id=1ffb3552-e07d-4e7f-a0f3-acaba7b00c51&&Headline=Not+quite+a+free+hand

We must not take the office of the President of India for granted. At least
four of them came close to subverting the Constitution they had sworn to
uphold.

Rajendra Prasad sent a memo to Prime Minister Jawaharlal Nehru on March 21,
1950, trying to reopen the very issues on the President's powers, which were
settled in the Constituent Assembly in his presence. As Granville Austin
remarked, "Had his first attempt to ignore constitutional restrictions and
to play the part of his own Prime Minister not been foiled, parliamentary
government in India would have disappeared before it was two years old."

Kalam reconfirmed why we need to codify presidential powersOn S
Radhakrishnan, US Ambassador Chester Bowles  records in his memoirs, "On
several occasions he expressed to me in a half-joking manner the wish that
somehow after Nehru's death or retirement the whole country could operate
under 'President's rule' for a few months. This, he said, would enable him
in his role as President to ease some of the cumulating political conflicts
and make some of the difficult but necessary decisions before turning the
government over to a new Prime Minister and Cabinet".

On those "several occasions" he was probing for US support. A serving army
officer, Major General Niranjan Prasad, who had been removed from the
command of 4 Division, was summoned by Radhakrishnan on November 4, 1962,
and told, "It was not necessary to be in uniform." On September 11, 1965,
Air Marshal Arjun Singh was called in Bowles' presence to brief
Radhakrishnan on the war. Zakir Hussain, a model President had a brief
innings (1967-69).

The less said about the near quarter century (1969-1992) the better. In June
1987, Zail Singh, as President,  seriously contemplated dismissing Rajiv
Gandhi but prudence overcame ambition. The Indian Presidency really came
into its own when Shankar Dayal Sharma became President in 1992. His example
was emulated by K.R. Narayanan. Both respected the limitations, acted with
dignity and circumspection but did not hesitate to speak up either in
private or in a very few grave cases in public, when silence would have been
a lapse.

APJ Abdul Kalam did not follow their example. Four transgressions in
particular bear recalling because their grave implications have not been
appreciated. First, as Vir Sanghvi revealed (The accidental President, HT,
June 3, 2006), Abdul Kalam asked Prime Minister A.B. Vajpayee to resign in
2004 "because it would be wrong for the government to continue in office
while elections [to the Lok Sabha] were being held". Despite the Law
Minister's 'lecture', the President persisted and "eventually the matter led
to a stand-off". It was not a casual suggestion but a calculated move.
"Kalam would not change his views." At last, he "blinked".

Vajpayee did a service to Indian democracy by his firmness. What would have
been Abdul Kalam's next step had the PM complied? The kind of set-up which
Radhakrishnan described to Bowles — the President ruling India with the aid
of the army and the police force, having dissolved the Lok Sabha. He was
flouting the text of the Constitution as well as a clear ruling of the
Supreme Court. Article 74 (1) says "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 such
advice".

The President cannot hand-pick any one he likes. The ministers must enjoy
the confidence of the Lok Sabha; "be collectively responsible" to it (Art.
75 (2)). The Supreme Court ruled in 1971 that the PM can continue in office
during the elections for "the President cannot exercise executive powers
without the aid and advice of the Council of Ministers with the Prime
Minister at the head." Not once in the entire history of the parliamentary
system had any head of State made the suggestions Abdul Kalam did. Whatever
led him to assume such confidence?

He had every right to return the Office of Profit Bill to Parliament on May
30, 2006, for its reconsideration.  It was re-enacted without amendment
whereupon he gave his assent on June 21. But not before a period of suspense
in which hints were thrown of a possible veto. Assent was given only after
he had extracted an assurance of review by a committee. He had no such right
or power. The President is bound to assent to a returned Bill re-enacted by
Parliament without ado or demur.

On mercy petitions, Abdul Kalam said in October 2005, "All aspects should be
discussed in Parliament and a comprehensive policy laid down." The clamour
for clarity and certitude does not reckon with the complexities of crime and
of the power of pardon, subjects of criminal law and constitutional law to
which the colossal erudition unfortunately did not extend. No country has "a
comprehensive policy" on the subject. In the very nature of things
discretion must remain unfettered.

While giving his assent to the Right to Information Act on June 15, 2005,
Abdul Kalam wrote a note to the PM, Manmohan Singh, making three points:
that communications between the President and the Council of Ministers
should not come within its purview, that notings on the files by bureaucrats
be excluded, and that only the Centre should frame the Rules under the Act
not the states.

The note was pointless. Once a law is enacted, the executive has no power to
restrict its application. He did not know that umpteen central laws empower
the states to frame rules where duties are devolved on them in our federal
polity. Disclosure of notings is covered by the Act.

As for the exchanges with the Council of Ministers, neither Art. 74(2) of
the Constitution nor Section 123 of the Evidence Act applies. Art. 74(2)
says "the question whether any advice and if so, what, advice was tendered
by ministers to the President shall not be inquired into in any court". But
the Supreme Court has ruled that "only the actual advice" is privileged.
"The records other than the advice… may be required to be produced" before
the court. It ruled also that Section 123 of the Evidence Act does not
prevent the courts, when such privilege is claimed, to decide the validity
of the claim on a perusal of the documents.

On all the three points, Abdul Kalam's views on a liberal law were illiberal
and based on sheer ignorance. His four major interventions reflect common
traits — enormous self-assurance, disregard for the Constitution, the law
and the Supreme Court's rulings and a passion to set his own rules, though
nothing in his career had equipped him on these matters. He decided to act
as a 'man of science' prescribing order and certainty to all.

Our subcontinental polity must have a two-party system was one of his right
ideas. Asked whether "the President can play a greater role", he replied,
"Yes, yes. What he thinks he wants to do, he can do." In fact, he can act
only within the established law, conventions and precedents. It is time they
are codified.

(c) Copyright 2007 Hindustan Times