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
No part of this extract published here can be used
in any way anywhere else.
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book GEM OF A NATON
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2011: May 28 : The
Indigo Story; July 8: The Butcher of Amritsar; July 17: A Planter’s Murder
2014: Sep 14 : The
Seven Martyrs; Dec 3 : Early childhood in Jeeradei
2015: Jun 30: Congress
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20: Congress at crossroads
2016: March 15:
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