DEBTORU CHATTERJEE is a senior civil servant working with the Government of India. Rarely, civil servants find the time and the inclination to research and write on contemporary issues, let alone those which are extremely controversial. Therefore, when Chatterjee decided to research the subject of discretion of the President under the Indian Constitution, and write a book on it, both the academic world and a newspaper reader seeking insights beyond the headlines, stood to benefit from it. The book, published by the OUP, is available here and here.
In this interview with LiveLaw, Chatterjee answers questions which a reader of his book has, keeping in mind the historical background, and the contemporary issues concerning the role of the President or the Governor under the Indian Constitution.
LL: Thanks for writing this most insightful book on a facet of Indian Constitution, on which there has been no sufficient light earlier. To begin with, could you tell us what explains your interest in the subject, and your inspiration to write this book, although you have been a civil servant throughout?
DC : The origin of my book lies in the crisis of a hung parliament. The President’s role immediately becomes obvious, as we have not adopted the German solution of casting the duty of electing a Prime Minister on the Bundestag (Lower House). Another inspiration was Justice Krishna Iyer’s brief description of the President’s discretionary powers (which he carefully qualified), in the Shamsher Singh case. The basic aim of my book is to settle and not raise a controversy about the President’s powers, which have seen a lot of irresponsible speculation. Even stalwarts like Munshi and Tope erred, in my humble view, in investing the President with powers he did not possess.
LL: The President’s primary area of discretion is in the choice of the Prime Minister, when an incumbent loses majority support in the Lok Sabha or a general election leads to an uncertain mandate. Your book shows that you are in support of a caretaker Government, till the parties reach a workable compromise among themselves on who should head a Government. But our Constitution is silent on the powers and responsibilities of a caretaker Prime Minister.
DC: Exactly. But the Court has stepped in to fill that void. Kindly recall that in Madan Murari Verma vs Choudhary Charan Singh, the Court very carefully defined the duties of a caretaker Council of Ministers , which was to carry on a day to day administration and not tender advice that belonged to the province only of a Council of Ministers responsible to the House of People. Venkatraman’s memoirs gives a graphic description of a caretaker ministry actually at work, and what it could do and could not. If I recollect correctly, Churchill held the caretakership for months after the end of the war and before the swearing in of Atlee. I don’t think that constitutional silence is an insuperable objection to the device of a caretakership till the forging of a stable coalition.
LL: Taking the analogy to the States which frequently experience situations when the chief ministers lose their majority support in the assembly, is President’s rule a valid option or should the Government, which does not seem to enjoy the confidence of the assembly, be asked to continue in power till alternative arrangements are made as in the Centre?
DC: The Sarkaria Commission stiffly recommends that a governor ought not to recommend President’s rule without exploring the possibility of an alternative government, where the ruling ministry had lost the majority. However, a governor cannot go on examining that possibility ad infinitum and thus give an indefinite lease of life to a caretaker ministry. One would have to go by the specifics of each case. On the issue of imposition of President’s rule in Nagaland on 7th August 1988, the Supreme Court ruled that the governor should have allowed Vamuzo to test his claim on the house floor after the incumbent Chief Minister Hokishe Sema lost his majority, instead of recommending President’s rule. But the governor was equally right in citing the collateral reason of the insurgency behind his recommendation for President’s rule, thereby disallowing Vamuzo’s claim. That is why my approach is historical and dispassionate and not didactical. Rigidities ought to be avoided as two situations may never be alike. But I definitely do not approve of caretakership as an alternative to President’s Rule.
LL: What are your thoughts on the proposal to have One India, One Election, that is, simultaneous polls to the Lok Sabha and state assemblies. If the caretaker Government can continue in the interim till the next elections are due, will it not militate against the principle of representative democracy and democratic accountability to a legislature?
DC: One India one election is a far-sighted proposal, promoting a national outlook among citizens, apart from halving electoral expenses. The possibility of caretakerships can be obviated by considering some of the measures suggested by the NCRWC to reduce the multiplicity of parties.
LL: You refer to the situation when the former President R.Venkataraman disagreed with the suggestion of the then Congress President, Rajiv Gandhi in 1991, that his party could review its withdrawal of support to the minority Chandra Shekhar Government, because MPs were reluctant to face the elections within 15 months of the last election. Would you say that the then President’s advice to Rajiv Gandhi to either form a coalition or think of a merger and nothing short of that would convince him, was sensible, given the circumstances? Was the discretion correctly exercised by the President then? Surely, if Government could be formed with outside support once, it could be formed again, if they sort out their differences?
DC: My book is not intended to pass value judgements on the exercise of discretion by the Presidents of India, but to dispassionately record, as a historian, the instances of that exercise. In that I beg leave to differ from the approach of foreign constitutional moralists like Austin (who have intemperately and, in my humble view, wrongly criticised President Reddy on the constitutional crisis of 1979 without any refutation, I am sorry to note, by Indian scholars).
LL: In 2004, the then President, A.P.J.Abdul Kalam, accepted the advice of the then Prime Minister, Atal Behari Vajpayee to prematurely dissolve the Lok Sabha, six months ahead of the date, when its normal term would expire. Although Vajpayee had enjoyed majority, President Kalam consulted legal experts to decide whether such a recommendation would be binding on him. Kalam, of course, accepted the PM’s advice, and dissolved the Lok Sabha prematurely. But the question whether the President is always bound to accept such advice from a Prime Minister, who enjoys majority support in the Lok Sabha, remains. What if a Prime Minister recommends dissolution mid-term without any valid reason, but keeping in view his prospects of getting another term in view? Can an incumbent Prime Minister play havoc with periodical elections, simply because he has the majority mandate? In your view, following the British precedent, the President is bound to accept such advice from the Prime Minister, because if the Prime Minister resigns, then the President would have no option, but to dissolve, as the next minority Government, which he may instal would also make similar recommendation. But it misses the point that a Prime Minister, with a majority mandate, and still insisting on dissolution without any reason (as Vajpayee did in 2004), may change his view, if the President asks him to reconsider his recommendation.
DC: No, I disagree that a majoritarian Prime Minister has no right to advise mid-term polls. He has every right to call for pre-mature elections. Recall that the Khaki elections of 1918 were called prematurely by a British government when it was confident of victory. This is the settled convention both in England and in India, and a President thwarting a majority- commanding Prime Minister’s recommendation of premature election would be acting unconstitutionally. The President would then become open to the charge of favouring the Opposition.
LL: According to you, President Sanjiva Reddy’s non-invitation to Jagjivan Ram after the fall of Charan Singh Government in 1979, President Shankar Dayal Sharma’s invitation to Atal Behari Vajapyee in 1996, before the Congress could finalise its support to the Deve Gowda Government, were both instances when the Presidents exercised their discretion wisely. Is there any instance which shows that President’s exercise of his discretion in the choice of the Prime Minister was flawed?
DC: As I mentioned earlier, my work dispassionately records various historical instances of the exercise of discretion by Indian President. It does not seek to pass value judgements on that exercise. In the cases of President Sanjiva Reddy and President Shankar Dayal Sharma, I have pointed out the flaws in the arguments of their critics, based on facts and legal precedents.
LL: You have referred to one instance of the President, relying on his discretion, seeking the Supreme Court’s opinion under Article 143 of the Constitution in the Kerala Education Bill matter, on the basis of the Attorney General’s view. Did the then Government not make an issue of this?
DC: In the final instance, the advice of the cabinet would prevail, except in the unlikely event of that advice subverting parliamentary democracy itself. Nehru also had several issues with President Prasad and the latter conceded to the former, except on one issue in which Nehru made some concession.
LL: Should not the President have an advisory committee of experts, to advise him on issues which require exercise of his discretion?
DC: I don’t think so. That would be to foist an extra-constitutional body on the President. Presidential discretion is very sparingly exercised, mostly during constitutional crises, and there cannot be an advisory committee of experts interposing between the President and his cabinet. The cabinet is the sole, constitutionally recognised, advisory body for the President (except for the Election Commission in a few specific matters). In matters where the President has, perforce, to exercise his discretion such as in the choice of a Prime Minister in a hung popular house, he may informally consult anybody. But that cannot be formalised and institutionalised through a committee of experts.
LL: Some Presidents had chosen to sit on the mercy pleas of death row convicts, if in their view, the recommendation of the Government to reject them was unjustified. Is it within the area of their discretion to do so?
DC: I do not think so. Delay in disposal of mercy petitions would lead to alteration of the sentences themselves according to the Supreme Court. Hence Presidents ought to abide by the recommendations of the government on mercy petitions where the evidence remains unchanged. President Pranab Mukherjee set a right precedent in quickly disposing off pending mercy petitions. Nothing can be more important than national security.
LL: In the recent judgment holding the Arunachal Pradesh Governor’s action in advancing the state assembly’s session by one month unconstitutional, the Supreme Court has held that Article 163(2) does not mean what it states expressly, that is, the Governor alone can decide whether a matter requires exercise of his discretion. In particular, the Constitution bench has held that the ousting of judicial review in this provision is inconsistent with the general scheme of the Constitution. By not making a similar provision with regard to the exercise of discretion by the President, did the framers suggest that the area of discretion of the Governor is more than that of the President?
DC: As would be clear from any text book on the Indian Constitution, the governor can act without ministerial advice in (a) reporting to the President under article 356; (b) keeping the Union informed about whether the state was complying with Union directives issued from time to time; (c) reserving a bill for the consideration of the President under article 200. Then there is the discharge of ‘special responsibility’ by the governor, in which, subject to the directions of the President, he has to ‘act in his discretion’. We also have article 239(2) and para 9(2) of the 6th schedule. These are constitutional imperatives which are unique to the governor.
LL: In terms of the Constitution, the President has the power to ask the Council of Ministers to reconsider its advice once, (Proviso to Article 74(1)) and can also return a Bill for reconsideration by Parliament once under Article 111. But the President does so in his discretion. While you have dealt with instances of the President seeking reconsideration of advice tendered by a Cabinet, one finds that Article 111 is not discussed in the book. The only instance of resort to Article 111 was when President Abdul Kalam returned the Bill on Office of Profit, which sought include more offices to the existing list, to protect the incumbents from disqualification as legislators or MPs, on the ground of conflict of interest. Do you think the Presidents should resort to exercise of discretion under these provisions, when justified, more often, to make the Governments and Parliament accountable?
DC: I do not think that the device of ‘reconsideration’ should be used frequently as that would set up an anarchical prerogative of obstruction of the cabinet. It should be used judiciously and sparingly. Cabinets are ultimately accountable to the parliament and not to the president. That is the difference between a parliamentary and presidential form of government.
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.