विभूतिमूर्ति

Work in Progress:10

GEM OF A NATION

A Political biography of

Dr Rajendra Prasad

By Dr BSM Murty

[The following extract from Part VI, Chap 4 of the book discusses the controversies that had arisen regarding Dr Rajendra Prasad’s concern over the definition of presidential powers vis-à-vis the government as laid down in the newly adopted Constitution of India and his reluctance regarding the hasty passage of the Hindu Code Bill which was later, after the first General Election in 1952, passed in phases during 1954-56.]

Limits of presidency

It was rather appropriate that Dr Prasad who had presided all along over the making of the Indian constitution should at the very outset of his interim presidency try earnestly to delineate the limits and conventions within which the constitutional head of a newly emergent vast democratic country like India, recently emancipated from the centuries-old shackles of imperial colonialism, might usefully function. The Indian constitution was an amalgam of principles derived mainly from the Government of India Act 1935, buttressed liberally with maxims and precepts derived from constitutions of UK, USA,Australia, etc. But its cornerstone was the asymmetrical equation between the British monarch as the head of the state in a parliamentary system of democracy, though on a hereditary principle, and the Indian President, also as head of the state, yet always elected by a complex system of electoral college of people’s pre-elected representatives, a position absolutely non-hereditary and tenured for a maximum of two consecutive terms. The presidential hierarchy in the Indian constitution also subsumed a parallel structure of governors for the states (or ‘units’ as they were conceived) with similar functions and obligations, yet in this respect of its federal ramifications, the Indian President’s position differed radically from that of either the British monarch or the USA President.

It was basically a tenuous structure with a delicately balanced interrelationship between the president as the de jure executive head on the one hand and the prime minister, on the other, serving as the de facto chief executive at the head of the council of ministers ‘responsible to parliament’. The president’s role as envisaged in the constitution was of a constitutional head who, in Ambedkar’s words, ‘occupies the same position as the King under the English Constitution’. And even though all executive power is vested in the president by the constitution, the president is only ‘the head of the State’ who ‘represents the nation but does not rule the nation’. “India’s parliamentary form of government”, writes Bipin Chandra, “bears the closest resemblance to the British system, with the difference of course that India has no hereditary monarchy but an elected President as its symbolic head of state.”  It was surely an incongruous concept pitting an elected ‘head of state’   (elected on an electoral college scheme) against a hereditary British monarch, sharing power with a prime minister, the de facto helmsman.

But in the Indian constitution it was at best an anomalous relationship. In an ideal situation where the president and the prime minister could be in concord on a given issue, it could work very satisfactorily. But as Bipin Chandra has shown,in several instances with later presidents – Neelam Sanjiv Reddy, Venkataraman, K.R. Narayanan and Zail Singh – if the president preferred using independent discretion the political fallout could be very problematic. For instance, in a later scenario, there was an ugly face-off between Zail Singh and Rajiv Gandhi when, after the Bofors scandal in 1987, the President almost came to the point of ‘dismissing Rajiv Gandhi as prime minister’. He had earlier written to the Prime Minister ‘that he was not being kept informed of important developments and this was preventing him from performing his constitutional duty of ensuring that the government was being run in accordance with the letter and spirit of the constitution’. Such situations had arisen even in Dr Prasad’s interim presidency, but rather than force a precipitation, he would always opt for a conciliatory course in national interest

The powers and functions of the President vis-à-vis the Prime Minister had always lain in a grey area in the constitution. Even in his closing speech after the adoption of the Constitution, on 26 November, 1949, Dr Prasad had appositely raised this issue. At one point in that long speech he said:

We considered whether we should adopt the American model or the British model where we have a hereditary king who is the fountain of all honour and power, but who does not actually enjoy any power. All the power rests in the Legislature to which the Ministers are responsible. We have had to reconcile the position of an elected President with an elected Legislature and in doing so, we have adopted more or less the position of the British Monarch for the President. This may or may not be satisfactory. [Emphasis added]

Again, soon after being sworn in as interim President, on 21 March, 1950, Dr Prasad sent a detailed note outlining specific points regarding the ‘presidential powers’ issue to Prime Minister Nehru. It was quite befitting for him, now that he was occupying that highest position, to have a clear idea about his rights and obligations. The note highlighted five main areas of ambiguity about presidential action. One: ‘Does the Constitution contemplate any situation in which the President has to act independently of the advice of his ministers?’  Two: ‘What is the defined sphere within which the President can take independent action regarding appointments, disposition, etc in case of the Armed Forces?’ Three: Similarly, ‘what would be the limits of presidential action on similar issues in the case of the Judiciary, the Election Commission’, and so on. Four: As presidential assent is required both in the case of ‘Bills passed by Parliament’ as well as ‘Bills passed by a State Legislature’, but in the latter case, ‘if the party in power in the State is different from that in the Union Parliament’ and the Union Ministry advises withholding assent to a State Bill, would the President still not be able to exercise independent discretion in the matter? And Five: ‘can the President directly contact any of the Secretaries either for information or advice in any particular matter…for understanding the implications of any particular policy or decision?’

Nehru, according to Walter Crocker, had himself  ‘lured Prasad into writing’ a ‘memorandum on the President’s powers’ which he had promptly referred to M.C. Setalvad, the Attorney General of India, for an expert opinion. Dr Prasad’s queries were answered, more than six months later on 6 October, by Setalvad in an extensive note covering several pages dealing with all the specifics point by point. The core question, however, remained the equation made between a hereditary British monarch and an elected President, the former representing a traditional conservative feudal hereditary arrangement that was apparently anachronistic and antagonistic to a truly democratic principle, whereas the latter inevitably represented a vibrant, popular, necessarily radical and federal democratic system newly obtained after decades-long struggle against such a monarchical and imperial dispensation. Indeed, that is what had led to the making of the great federal constitution the Americans had given themselves after gaining independence from Britain, again due to the vastness and diversity of their sprawling nation. The high point of the American constitution was its total obliteration of the monarchical concept. But the Indian constitution, in some way, amounted to adopting an archaic, outmoded system even after defying and negating it all along during the entire freedom movement. Also, as against a patently unitary system of government in Britain, the Indian constitution was overtly designed as a federal system and the role of the President had to be defined in accordance with its basic federal principle in keeping with India’s geo-political diversity.

Setalvad’s legal rejoinder merely underlined the ambiguities in the constitutional provisions vis-à-vis the President instead of clarifying them. He asserted that ‘the position of the President in our Constitution would appear to be very similar to that of the King in the British Constitution’ with the difference that in the latter case ‘the present position of the King has been reached as a result of a long evolutionary process’. The snag lay in the fact that the Indian Constitution   ‘seem[s] to have embodied in the functions conferred on the President the result achieved in the United Kingdom historically and through the growth of conventions’[emphases added]. The rejoinder did, of course, envisage a two-way consultative process between the President and the Ministry on contentious issues of state policy, but the final decision to prevail would be of the Ministry as representing the people’s direct mandate. There were a number of tangled points that needed to be resolved. For instance: What was the justification in equating two intrinsically contrary concepts – a monarchical system working on heredity and historical conventions and a newly evolving fully sovereign republican polity working on the principle of elective democracy with its own conventions still to be established? Again, if the Prime Minster represented the majority of a political party or a political alliance in the parliament, the President, too, represented the people of the country as a whole, comprising of different political parties ruling in some of the states, through an electoral college proportional representation system. A mechanism should have been envisaged which could always bring to an equilibrium or resolution policy actions between these two highest positions of power. Instead, and for no good reason, the President’s position was made undefined and nebulous on the pretext of borrowing the inapposite British monarchical concept to a newly evolving democratic system that had all along been fundamentally opposed to it. As Dr Prasad had aptly remarked:  “This may or not be satisfactory”.

Commenting on Setalvad’s rejoinder, K.M. Munshi, a distinguished member of the Constitution Drafting Committee, had observed:

…it appears to me that Rajendra Prasad’s contentions were not adequately answered…the position of the President of India and that of the monarch of England cannot be analogous. Even supposing they were similar, the reserve powers of the British monarch have to be conceded to the President of India. And if some of these reserve powers are conferred on the President by the Constitution, then it becomes difficult to see how he becomes incapable of exercising such powers except on the advice of his ministers.

Dr Prasad’s urgent concern for getting the powers and functions of the President adequately defined was quite justified in view of the momentous policy decisions that were to be taken during his interim presidency when the foundations for a new federal democratic republic were to be firmly laid down. Especially because, unlike the long-existing historical conventions of the British monarchy, new conventions had to be put in place for a democratic polity soon to be elected on full adult suffrage basis, and President Prasad was keen to play a constructive role in the establishment of healthy and far-sighted conventions. Unfortunately, what was sincerely intended by Dr Prasad to be in the best interest of sound governance and salutary political conduct was misconstrued by Nehru as an unwelcome encroachment into his power zone. The conflict intensified particularly in 1951, during the passage of the controversial Hindu Code Bill, which had been hanging fire for more than a decade.

Nehru, with Ambedkar in tow, seemed to be in some hurry to get the Bill passed even though public opinion as well as the majority view in the parliament was opposed to its far-reaching myriad social ramifications. Nehru was rather disingenuous when he wrote in his fortnightly missive on 4 October, 1951, to the then provincial CMs that ‘a considerable majority in Parliament desired the passage of this Bill with minor alterations’, adding that the ‘majority was helpless before a determined minority’. This may have been intended as a loading of the dice to cajole political consensus in the provincial legislatures. Though the position, on the contrary, was just the reverse; large numbers of MPs and public figures had been frequently meeting Dr Prasad to convey the popular opposition to the passage of the Bill. This, of course, had brought the issue of the President’s assent to an unpopular Bill into critical focus. The vital question, never finally resolved throughout the decade-long presidential tenure of Dr Prasad, remained whether the President had independence of discretion in the constitutional exercise of his power over an issue of such extreme social significance at that point of time. Besides, Dr Prasad had a very valid tactical reasoning behind his reluctance against the haste: the first countrywide general elections on adult suffrage were just about to happen. In his wisdom he only wanted to go slow about the Bill; just as in the case of the power transfer, Gandhi, Azad and, perhaps, he himself, had preferred a less hurried approach to obviate partition.

President Prasad’s earnestness in getting the presidential powers cogently defined was being easily misconstrued by his opponents, including Nehru, as his keenness to acquire more power than he was entitled to constitutionally. Though Prasad only wanted the nebulous presidential power zone to be clearly outlined for future for controversy-free and effective functioning of a head of the state who was envisaged as presiding over the destiny of a federal democratic polity. His anxiety was to lay down for his successors salutary conventions that would smoothen rather than roughen the presidential course of action. In a letter to Patel in August, 1950, he expressed his anxiety in these words:

I have, since coming to this office, been trying to feel my way as to how things are to develop. This is the first appointment and is a sort of interim appointment under the Constitution. Many things will develop in course of time by convention. A reference to the Constitution itself shows that there are at least 121 Articles in it, apart from the Schedules, in which the President is mentioned as having to do something or other. There is no doubt that in most of these matters he has to act according to the advice of the Ministers concerned, but I believe the Constitution contemplates that it is open to him to advise Ministers not on matters of detail but generally on matters of policy,…

Hindu Code Bill

The President did believe that on most issues the preferred option was open-minded discussion and reconciliation, but there could be issues, obviously, like the Hindu Code Bill, where deeper and more complex matters with serious public concerns and constitutional ramifications were involved. For instance, in a note written around this time, he expressed his exasperation over the Prime Minister’s statement in the Parliament that the passing of the Hindu Code Bill had been made ‘a matter of confidence’ by the Government. According to Prasad, the decision was ‘most unwise…unjust and undemocratic’. Elaborating his point of view, he wrote:

It cannot be denied that the Hindu Code Bill is a most controversial measure dealing with the personal law of the Hindus and seeks to introduce fundamental changes into it. The present assembly as elected to frame the Constitution of the country and although it has been functioning also as the Central Legislature for doing essential things, it has no authority from the electorate to undertake such fundamental and controversial legislation. The proposals contained in the Bill have never been placed before the electorate.

There was even a faint hint in his note that the government seemed to be in haste to pass the Bill taking advantage of its recently earned popularity, even though it did not have a proper mandate for such revolutionary legislation at this stage.  Also according to the President, perhaps, there might be an apprehension that after the general elections the Bill ‘is not likely to be passed by Parliament which will come into existence under the Constitution on the basis of adult franchise’. Hence, he felt that it would be ‘immoral and undemocratic to foist this measure on the Hindu community’. The larger issue of a possible presidential intervention had, therefore, to be seen in this perspective. Another possible sinister angle to the controversy was putting the uniform civil code on the back-burner and rushing through the Hindu Code Bill to appease the minority communities in the run-up to the first general elections. As the issue was of great social import likely to adversely impact the vast Hindu community in the coming general elections, the President was quite sagacious in suggesting moderation in content and speed in passing such a far-reaching revolutionary Bill.

The government was already in the election mode with Sukumar Sen appointed as the first Chief Election Commissioner in March, 1950. In April, Parliament had passed the Representation of the People Act. Work on preparation of electoral rolls was already under completion. It was the first ever adult suffrage election in India, concurrently for the Parliament and provincial legislatures, with around 176 million voters expected to cast their votes into 2 million ballot boxes at 224,000 polling booths scattered across the country! And the elections were scheduled to be held within a few months’ time. It was a gigantic electoral exercise with a newly functioning administrative machinery furiously grappling with the stupendous challenge. At such a critical time, with a full-fledged Parliament in the offing, the hurry to push through a momentous Bill of such sensitivity was singularly inappropriate in the President’s opinion.

Prasad’s opposition to the Bill was based purely on constitutional points. The Bill was sought to be rushed through a legislature that had not been elected on full adult suffrage as envisaged in the newly drawn Constitution. It was still the same Constituent Assembly transitionally functioning as a parliament that could at best be regarded as the launching pad for the implementation of the Constitution it had generated during the three years of its existence. Major legislation under the new Constitution should only have been enacted after a legitimate parliament had been constituted in accordance with it. Secondly, since the Bill was likely to revolutionize the fundamental structure of the majority Hindu society, it could, in all fairness, seek a full mandate in a general election that was almost in process. Thirdly, the Bill itself had several legal implications that needed to be disentangled before its hurried enactment. Even as a lawyer and constitutional expert, Dr Prasad, was in a far better position to explicate the vital implications of the Bill than all those who wanted to force it through the transitional legislature.The exchange of letters that took place between Nehru and Prasad in this context in the latter half of November, 1951, with the elections almost knocking at the door, had a stridency that was rather edgy.

In a letter written to Nehru on 15 November, with an attached detailed note on the wide-ranging implications of the Bill about to be passed by the Parliament, Prasad spelt out 10 points. In them he reiterated his view that the existing Parliament lacked full mandate for such revolutionary legislation; that such ‘hurried legislation’ was also highly discriminatory against the majority Hindu community;that its stipulations on marriage, monogamy and divorce would ‘force revolutionary changes in the existing structure of Hindu society’ inevitably creating ‘conflicts and dissensions resulting in litigation’; that it would cause a sudden rupture in the age-old joint family system that may have humongous implications, and so forth. According to Prasad, who understood the full intricacies of Hindu law better than anyone else, it was based on traditional social customs that change themselves in their own time. ‘Abrogation of custom [he said] as a source of law for Hindus will have the effect of petrifying that law’ which will create interminable legal tangles if brought about in haste. At the end of that long note, he said:

I propose to watch the progress of the measures in Parliament from day to day and if I feel at at any stage that I should inform the Parliament also of my viewpoint, I may send to it a message when I consider it appropriate to do so. My right to examine it on its merit when it is passed by Parliament before giving assent to it is there. But if I find that any action of mine at a later stage is likely to cause embarrassment to the Government, I may take such appropriate action as I may feel called upon to avoid such embarrassment consistently with the dictates of my own conscience.

In speaking about ‘the dictates of his conscience’ he was unambiguously referring to his high moral judgment which, as head of the state and the custodian of the people’s mandate, he had a right to exercise in the best interest of society and the nation. It must be asserted, in all fairness to him, that Prasad, more than any other of his political colleagues, had never had his personal political stakes where people’s or national interest was involved.

A peeved Nehru sent his reply the same day and an exchange of letters followed through the week. In his reply Nehru tried to counter most of the points raised in Prasad’s letter even though agreeing that the ‘legal and constitutional questions you raise are important’. He referred, in particular, to Prasad’s observations in the last paragraph wherein he had mentioned that ‘it may be necessary for [him] to inform Parliament of [his] viewpoint’ and asserted his‘right to examine the Bill on its merits when it is passed by Parliament before giving [his] assent to it’. Such a step, argued Nehru,‘might involve a conflict between the President on the one hand and the Government and Parliament on the other’. At the same time, Nehru continued,

They would inevitably raise the question of the President’s authority and powers to challenge the decision of Government and of Parliament…in our view, the President has no power or authority to go against the will of Parliament in regard to a Bill that has been well considered by it and passed. The whole conception of constitutional government is against any exercise by the President of any such authority.

It was obvious that the Hindu Code Bill had thus become a test case for re-defining the ‘President’s authority and powers’, and Nehru had a cut and dried approach to this vital constitutional issue.

Three days later, Prasad sent a long letter again to Nehru which needs to be quoted at some length to fully understand Prasad’s logical exposition of the whole issue. He wrote:

It seems you are of opinion that I have no right to inform Parliament of my viewpoint on a Bill pending before it or to examine it on its merits when it is passed by Parliament before giving my assent to it and my insistence might involve a conflict between the President on the one hand and the Government and the Parliament on the other. No such conflict need arise if the Government and Parliament recognize well-understood and well-known democratic limitations on their power also, particularly having regard to the fact that the present Parliament has been constituted for a specific purpose and has been authorized to function as a care-taker body pending the formation of the Parliament envisaged in the Constitution as a result of general elections on the basis of adult franchise. So far as our Constitution is concerned, it confers in unequivocal words on the President the right to address and send messages to Parliament, whether with respect to a Bill then pending in Parliament or otherwise. Similarly it also confers on him in unequivocal terms the right to declare either that he assents to a Bill or that he withholds assent therefrom when it has been passed by Parliament and presented to him. He is also authorized to return the Bill to Parliament, if it is not a Money Bill, with a message requesting reconsideration of the Bill or of any specified provisions thereof….

Occasions [might arise] requiring the President to take an independent line of his own cannot be altogether and entirely ruled out. This is so because the President, unlike the King of England, holds his office by virtue of election for a limited period of time and is liable to impeachment if he acts in violation of the Constitution and because our Constitution is a Federal Constitution strictly limiting the powers and functions of the Union and the States, and conflict regarding legislation reserved for the consideration of the President between the State Government and Legislature on the one hand and the Union Ministry on the other cannot be altogether ruled out….

I am, therefore, of the view that the Constitution does not admit of a wholesale importation of all practices and conventions of the British Constitution. I may point out, however, that the same conventions of the British Constitution which limit the King’s powers also limit the powers of the Government and the Parliament to sponsor and force such legislation without consulting the electorate, and that is so even when, unlike our Parliament, the British Parliament is a wholly soverign legislature and has no kind of limitations on its powers, and no conflict can arise between the Parliament and any other authority. It would not be right to import and insist on some conventions and ignore others….

I have not asked for anything more than that the electorate, which is the master both of the Parliament and the President,  should be given a chance to express itself on the merits of the Bill. I do not see that, in asking for that, I am doing anything against the Constitution or against well-known democratic principles. Indeed, it might be said that it is the Government and Parliament who are acting in this matter against democratic principles….

I may assure you that I am the last person to create any conflict and will be prepared to go to the furthest extent to avoid it, if I can do it consistently with my conscience and my views about the Constitution….

Ordinarily, in case of such conflict of views, when the electorate has not been consulted and there is differnce between the Government and the Prsident regarding the views of the electorate on the point at issue, a reference to the electorate is the democratic solution, and for that purpose even dissolution of Parliament may be rsorted to. In the present case the question of dissolution does not arise, as general elections are going to be held and completed withi the next four months or so all over the country and have already commenced in one State at least.

To this well-argued long letter Nehru sent his reply three days later conceding the President’s right ‘to address and send messages to Parliament’, as also his prerogative to ‘either give or withhold his assent’, or even to ‘return the Bill for reconsideration to Parliament’, but with the caveat that the President could do all this, ‘under our Constitution’, only ‘with the aid and advice of the Ministers’. And he further added: “Any action in these fields by the President without the concurrence of his Ministers would be foreign to the entire scheme of our Constitution and indeed render it unworkable”.  Reminding Prasad of the opinion solicited earlier from the constitutional experts on the issue of Presidential powers, Nehru wrote: “Sometime ago in another context this question was considered by some of usand we were advised that this was the correct view”.

Apparently, Nehru’s logic was flawed partly in view of Prasad’s contention that ‘the present Parliament [had] been constituted for a specific purpose’ functioning ‘as a care-taker body’ till ‘the formation of the Parliament envisaged in the Constitution’after the general elections ‘on the basis of adult franchise’. Also, Nehru’s argument was based on two erroneous suppositions, as Prasad had very clearly shown in his letter.  First, that the Indian President’s position was not strictly analogous to the British monarch’s, and second, that the IndianConstitution differed significantly from the British in being basically Federal and not Unitary. Prasad had also highlighted the fact that ‘a wholesale importation of all practices and conventions of the British Constitution’ did not suit the radically different character of the Indian polity where new indigenous conventions were still to be evolved. Besides, as he also pointed out: “It would not be right to import and insist on some conventions and ignore others”.

Seen in hindsight, the difference between their perspectives on presidential powers was quintessentially a difference between neo-colonial and anti-colonial mindsets. Nehru apparently viewed the whole issue of the Indian President’s powers strictly within the parameters of the British Constitution, equating them totally with those of the British monarch, conveniently ignoring the other qualifying aspects of the issue as pointed out in Prasad’s letters. For a fully sovereign democratic republic newly emerging out of a dominion stranglehold, Prasad’s interpretation of the presidential powers was definitely more broadly democratic and judicious. Prasad’s contention was more relevant to indigenous conventions to be established in the short term for the evolution of a truly vibrant democracy. And it needs to be emphasized that President Prasad had no personal stakes in the matter; he only wanted to achieve a judicious power equilibrium between the directly elected Parliament and the indirectly elected President.

Ultimately, the pace of passage of the Hindu Code Bill in the Parliament was stymied and reasonably slowed down.When initially the Bill was defeated, a disgruntled Ambedkar, the then Law Minister who was piloting the Bill, resigned in protest. After the elections, however, Nehru agreed to split the Bill into four separate Bills that were introduced gradually in Parliament,  debated for four years, and finally passed as Hindu Code Bill in 1956. And in this way, President Prasad’s main contention of its being passed by a properly mandated parliament only after being endorsed by the national electorate was thus fully vindicated. It also proved his point that a presidential moderation of a major government policy was often more likely to be in the best interest of democracy and the nation.

©Dr BSM Murty

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