Sunday, May 06, 2007

President's second term: The Myth of conventions

In his well-argued piece in The Hindu, Mr.Harish Khare elaborates that there has been a convention to deny a second term to the President, and that this ought to apply to the incumbent President, A.P.J.Abdul Kalam, whose term expires in July. With due respect to Mr.Khare, I feel he is mixing up a precedent with a convention. This precedent was set and followed subsequently because of extraneous factors, and not because of any inherent merit in restricting a President to a single term. Mere precedents do not make a convention. For precedents to qualify as a convention, two more questions need to be asked. They are, as Sir Ivor Jennings says, did the actors in the precedents believe that they were bound by a rule; and whether there is a good reason for the rule. A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it.

According to Mr.Khare’s own analysis, no incumbent President believed that there was a binding convention not to seek a second term. Even political parties had no consistent belief – if the BJP’s position is taken as an example. If his description of how the no-second term precedent came to be established is any guide, it clearly shows that Radhakrishnan was denied a second term only because of intra-party dynamics within the Congress, and not because of an informal agreement among all political players that it was desirable to restrict each President to a single term. Again, Fakruddin Ali Ahmed succeeded V.V.Giri, not because a second term to Giri was undesirable due to some reason, or that the Congress took a principled position on this, which was endorsed by all opposition parties. Successively, incumbent Presidents were denied a second term by political parties, not because of any inherent agreement among them, but because it did not suit the dominant political formation. A second term for K.R.Narayanan would have suited the Left and the Congress, but not the BJP. Therefore, the BJP used the argument of convention as a ruse to deny him a second term. A second term for A.P.J.Abdul Kalam appears to suit the BJP, probably because, he appears to be a lesser risk than any other candidate of the UPA-Left alliance.
The convention of no second term to any President is a myth, because there is no shared belief among the political parties that they are bound by this rule, and secondly, there appears to be no good reason for the so-called convention. There is a whole-string of precedents after Rajendra Prasad’s second term, but without good reason. Mr.Khare’s inability to cite a good reason for the convention, appears to be a gap in his otherwise, well-researched article.
Whether President Kalam deserves a second term or not must be based on his performance in his first term, and not because there exists this so-called convention.
Update: I found from Granville Austin's The Indian Constitution: Cornerstone of a Nation, the following which may be of interest: The Drafting Committee adopted a provision designed to limit presidential power by preventing the head of state from serving more than two terms in office. This article was taken word for word by B.N.Rau, the eminent member from the Irish Constitution. The C.Assembly adopted this provision in December 1948 without substantial debate. Yet in a version of the Draft Constitution printed on October 28 1949, the restriction of presidential terms to two had been omitted from the Constitution. The number of terms a President could serve was presumably a matter that could be left to convention. Austin calls this as an unpublicized change in the Constitution, which was apparently not debated by the Assembly and it would have been easily forgotten had it not been that fears subsequently arose that convention or conscience might not be enough to cause an incumbent President to relinquish his office. What, in fact was the convention? Austin says no one had made it clear; it appears that the subject had not been discussed.
Contrary to the general impression, Rajendra Prasad, in fact, held three terms: from January 24, 1950 to 1952, when he was elected President under the normal working of the Constitution. In 1950, he was elected President of India by the Constituent Assembly. He declined to step down in favour of Radhakrishnan, Vice-President as expected by Nehru in 1957. By 1960, the question was whether Prasad would seek a third term (that is fourth term, if one includes the pre-1952 term). Bhupesh Gupta, a Communist MP moved an amendment to the Constitution in April 1961 restricting a President to two terms, an effort that came to naught. Later Prasad himself cleared the air in the autumn of the year by announcing that he would not run. Austin alludes that the fear was that Prasad might violate an incipient convention, that is, not seeking reelection beyond two full terms (if one excludes the pre-1952 tenure). Thus, it appears, we can say there was a convention that a President should not seek reelection beyond two successive terms.
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