Wednesday, July 11, 2007

Does India need an Executive President?

In a provocative article, cartoonist Rajinder Puri (he writes on Constitutional issues also) argues that our Constitution makers in fact envisaged an Executive Presidency. He challenges the first Attorney General of India, M.C.Setalvad's opinion to Prime Minister Jawaharlal Nehru, tendered in the wake of the President Rajendra Prasad's queries, as unsound. A plain reading of Article 74, he suggests, does not strengthen Setalvad's view that the President cannot act without the aid and advice of the Council of Ministers. Any comments?

4 comments:

Dilip said...

Btw, this is not the first time Rajinder Puri has suggested this. According to him, the constitution read literally makes it more like the French than the British system. First of all, if the primary office of Executive Authority had been understood to be the Presidency, Pandit Nehru would have become the President instead. If that had been the case, would Setalvad have given different advice? Of course he would have because that would have meant that the way the system worked is different. He cites Art. 53 to support his contention that the Constitution enjoins the President to act directly but this does not indicate the extent of his direct authority which is where the limitation of Art. 74 (before the 42nd amendment) specifically comes into play. In any case, with the introduction of Art. 74(2), the powers of the president are now really curtailed and this is really of little more than academic interest.

Would it be better to have an executive presidency in place of the current system? In theory at least, it is often argued that such an executive could be less worried about survival and therefore be more conducive to making bold decisions. That also appears to be the inherent assumption that Mr. Puri makes in that a President, not being limited by party interest or fiat or constrained by the limitations of managing an unwieldy coalition, can simply strike out on his own without the need for complex negotiations and resulting compromises. In reality, I think there is a broad assumption here that oversimplifies the manner in which political negotiations are played out in any democratic system. Whether as a PM leading a coalition or a President trying to get legislation passed, negotiations would still be absolutely imperative in a coalition era and remain central to the political process. A President chosen by an electoral college may not have a base of his own or a limited one and cannot function unless he can build alliances with a broad range of groups that matter to decision making. Even such a president would still have to consult with parties at every stage, perhaps ending up accommodating leading members of some of the supporting parties in his cabinet not unlike what happens presently and ensuring their support in the exercise of his authority. Should he try to take ‘bold’ decisions by running roughshod over the sensitivities of those members, he may find his priorities stifled or even overturned in parliament. Even with a fully technocratic cabinet, parties will find a way to extract their pound of flesh under any system. Hence whatever tilt in favor of stability and executive power may come with such a change, political forces are likely, at least in the medium to long run, to find a way to countervail it and restore the system into its original equilibrium. In general, strong leadership cannot be willed by legal maneuvering, it can only come from a broad desire and acceptance of such amongst the masses.

Lastly, he says ‘whether this change is introduced by politicians or compelled by events…’ – is the ‘compelled by events’ an exhortation to the judiciary to ‘reinterpret’ the constitution in favor of a Presidential System? Far fetched as this seems, the author does not seem to realize the gravity of the crisis that would ensue were his wish to come true.

Arun Thiruvengadam said...

I think it would be interesting to track the number of times that people who get dissatisfied with our system of governance, keep bringing up suggestions for a complete overhaul of the system. More recently, people from very different ends of the political spectrum - ranging from Arun Shourie on the right (in his recent book on the problems of the Parliamentary system in India) and V.R. Krishna Iyer on the left (in a spate of recent columns in the Hindu) - have recommended that we adopt a Proportional Representation system. As I have outlined earlier on this blog, I am skeptical about the value of such calls for complete overhaul, since they do not seem to account for the costs of doing so, and also overstate the benefits, while glossing over the problems, of the new systems they endorse.

The suggestion that we should move (or already have) a Presidential system is another feature that keeps cropping up from time to time. Or, perhaps, as Dilip suggests, it is the same people who keep renewing their advocacy after waiting for a few years.

An early scholarly work outlining the case for a Presidential system was made by Justice P.B. Mukharji of the Calcutta High Court in a book published in 1967. Also, the speech made by President Prasad at the opening ceremony of ILI that Puri refers to, did serve to ignite a considerable amount of academic legal scholarship in India on the issue. A lot of this scholarship is interesting, and provides important perspectives such as focusing on the fact that several constitutional provisions use the terms 'function' and 'powers' while addressing the President's role within our system of constitutional governance. This scholarship also reminds us that the President is not a mere figurehead, and does have important roles to play at particular times of constitutional crisis. That is, however, very far from establishing that we have a system of executive Presidency in India, who should be proactive in formulating executive policy, instead of being an important constitutional check on the Legislature and the Executive.

Even someone like A.G. Noorani, who has strongly argued for a more assertive Presidency in India, concedes the following important point:

"Authoritative dicta in the constituent assembly and successive rulings of the Supreme Court established beyond doubt that the provision [referring to Article 74(1) of the Constitution, which Puri relies on to make his case]sought to establish the British Parliamentary system in which the head of state was bound by the advice of his council of ministers subject to recognised exceptions." A.G. Noorani, Constitutional Questions in India: The President, Parliament and the States (OUP India: 2000) at page 265.

To me, the biggest problem with a strong, Executive President is what we have witnessed over the last 7 years under the Presidency of George W. Bush. All the problems that Dilip outines in the second para of his well-argued comment above, can be illustrated through instances from the Bush II Presidency. For a close examination of many such episodes I would recommend going over the archives of the excellent team blog run by Jack Balkin and his colleagues:

http://balkin.blogspot.com/

V.Venkatesan said...

Dear Dilip and Arun,
Thanks for the insightful responses which pointed to many facts which I didn't know earlier.


The question whether Setalvad would have given a different opinion had Nehru opted to become the first President himself is fascinating. I think on this Dilip appears to agree with Puri by suggesting that Nehru did not do so, precisely because he understood where the real powers lie under the Constitution.


Among other pro-reform writers recently, Bimal Jalan's book has also has been discussed in the media, though I have not had an opportunity to read either Shourie or Jalan.

Krishna Iyer, yes, but as I said earlier on this blog, I am reluctant to endorse PR proposals, not because of the cost factor. It may indeed be cost-efficient ultimately, but my reservations are over its predictability, and how it could discourage the kind of surprises that we saw in U.P. elections. The BSP's support base has been disproportionately rewarded, which I think is one of the strengths of the current system. PR may deprive the system of this strength.

On the whole, the discussion is very useful when I intend to write a post on perceptions on President Kalam's eventful tenure.

Srinivasan said...

Dilip has brought forward some interesting points about how even in an 'executive' presidency the same set of problems remain , pertaining to the executive-legislature tussle. Some of the clamour for an executive presidency are rooted in a wistful longing for an American style President.

But those that demand constitutional changes in India, to copy what exists in US tend to ignore the fact that the weight of the President has increased in the modern era, not due to any significant shift in its constitutional set up but owes much to the various modern contraptions - television and radio - that confer a larger national stature to a single person in the White House bully pulpit in contrast to the 545 other minions in the US Congress. The Cold war did introudce some systemic advantages such as increased war powers and most importantly the all volunteer standing army.

Even in a classic parliamentary democracy such as UK, we saw Tony Blair continue on his policy on Iraq without a parliamentary majority supporting him on it. However that majority did not think that in and of itself is sufficient to oust him. In India, the Indo-US Nuclear deal if it is put to vote on the parliament would probably be voted down. But I doubt the Left would withdraw support because of its opposition to the deal alone. So there are some ruses available to PMs to get around and act like executives.

The major difference I believe is how an executive is voted out after elected in the two systems. Presidential impeachment is very constricted in favour of the incumbent, requiring a major criminal offense / impropriety and also 2/3rds majorities. However just one vote margin on a no-confidence motion arising out on a single policy or action can topple the executive. If we wish to impart more stability, we could copy the German system where a vote of no-confidence is always accompanied by a vote of confidence on someone else. To introduce more speciality and focus on administration technocrats can be appointed ministers without requiring them to be members of Parliament, while still being accountable to it. Exceptions to significant posts such as PM, Home Minister and the like can be carved out.