Harry S. Truman, the only leader of the free world to have used the A-bomb, had a sign on his desk in the Oval Office which read “the buck stops here”. There is no such sign either at our Prime Minister’s desk or at the President’s desk. Constitutional Pundits quickly point out that this is due to the fact that it is the Indian Cabinet, and not the Prime Minister individually, that is collectively responsible to the Indian Parliament. They also emphasize that there is hardly anything for which the buck can be passed to the President, leave alone making it stop there.
Article 52 of the Constitution of India states that there shall be a President of India, thus making the office of the President an indispensible functionary in the constitutional scheme and structure of governance in India. On the other hand, Article 74 provides for a Council of Ministers with the Prime Minister as its head to aid and advice the President. The makers of the Constitution envisaged a system under which the President is the constitutional or formal head of the Union who exercises his powers on the aid and advice of his council of ministers. In common parlance, Indian President is considered as occupying an office practically similar to the King under the British Constitution since both are only constitutional or nominal heads. In sharp contrast, the President of the United States of America is the real executive head along with being the constitutional head and exercises the powers vested in him by the Constitution of his own initiative and accord.
An interesting interpretation of Articles 53(1),77(1) and 74(1) was made in JayantilalAmritlalShodhan v. F. N. Rana (AIR 1964 SC 648) to carve out a distinction between the executive functions of the Union and the executive functions of the President. This interpretation implied that the President is to exercise the executive functions and powers of the Union by the advice of the Council of Ministers; however, the President is to exercise the executive functions and powers of the President in his personal capacity without advice of the Council of Ministers.
This innovative interpretation of Articles 53(1), 77(1) and 74(1) along with the distinction between Union’s executive function and the President’s executive function in Jayantilal was struck down by the Supreme Court in Samsher Singh v. State of Punjab (AIR 1974 SC 2192) in 1974. The Supreme Court overruling Jayantilal held that the President exercises the powers and functions conferred on him by or under the Constitution only on the aid and advice of his Council of Ministers. Nothing is left to his discretion and he is not to exercise executive functions personally. The rationale behind this interpretation was that Article 75(3) makes the Council of Ministers and not the President responsible and accountable to the House of the People and it is difficult to imagine that the Constitution makers would want to give discretionary powers to the President knowing he is not answerable to the people through the House of the People.
The Forty-fourth Amendment of the Constitution in 1978 added a proviso to Article 74(1) to the effect that the President may require the Council of Ministers to reconsider advice rendered, but the President shall act in accordance with the advice tendered after such reconsideration. President Zail Singh was the first to use this power, President K. R. Narayanan used it twice and President Abdul Kalam used it once; however only in President Kalam’s case did the Council of Ministers return the file without any changes (V. N.Shukla, 2008: 394). As a Constitutional measure, the President does have the discretionary power to return a file to the Council of Ministers for reconsideration, but if the file is sent back to him the President has to necessarily act on the aid and advice of the Council of Ministers, unless he chooses to resign.
In a parliamentary democracy a voter is not supposed to decide on who the PM will be; voters elect the representatives who decide on who the PM will be. The elections are held for the Members of Parliament and not for the Prime Minister. Voters leave the job of filling the seat of PM to the wisdom of the representatives they vote for. The power centre of the Indian Democracy is the Parliament, which is supposed to decide on who will head the executive branch of the government. Indeed, representatives are not accountable to their respective constituencies in their decision to choose to support a particular PM candidate.
In a Presidential democracy, as opposed to a parliamentary democracy, a voter directly votes for a Presidential nominee. The President therefore has a direct mandate from the people and not from the House of Representatives. In the purest form, when a voter exercises her right to franchise in a parliamentary democracy, she is supposed to take into consideration various characteristics, merit or otherwise, of the particular person who has stood for elections in her ‘constituency’. She is electing the candidate to the House of Representatives and not to the office of leader of her country. The fundamental idea of electing a person to the highest office is beyond the role of a voter in a parliamentary democracy. However, in a Presidential democracy, it is very much the role of a voter to be directly concerned about electing a person to the highest office.
The excitement around nomination of Narendra Modi as BJP’s Prime Ministerial candidate forces us to ask this – are Indian voters more fitted in a Presidential democracy? If a voter is going to exercise her right of electing an MP to the House of Representatives on the basis of the Prime Ministerial candidate and not on characteristics of the candidate standing for election in her constituency, are we not degrading the idea of a Parliamentary democracy? Moreover, if the voters are more interested with the highest office than with the House, should we not be talking about moving towards a Presidential democracy?
Tailpiece: Tales of political battles between the White House and the Congress are fairly well known. Such is the expanse of tensions between these two competing institutions of a Presidential Democracy that it was once remarked that the President has declared “a war on Congress”. In a different time when the Congress had unleashed a legislative agenda to tame the President in public discussions, a senior White House counsellor to the President commented – “I will not let you ‘reduce’ the President to a Prime Minister”.
This post has been authored by Sidhant Chandalia, a third year student at the West Bengal National University of Juridical Sciences and a member of the NUJS Constitutional Law Society.