Indian Constitution: President vs. Prime Minister

It all began while staring at a wordle of The Constitution of India. Something was not right. Words I was looking for like: Prime Minister and Chief Minister; did not stand out. Instead words like: Act, Amendment, President, Governor, State, Parliament, Union stood out. Where I was expecting a Parliamentary System of Constitution, with words like Prime Minister & Chief Ministers everywhere, something else seemed to exist.

I had to know why. So, I decided to do a little word count test, to see how many times “President” & “Governor” appeared in the Constitution as compared to the occurrences of “Prime Minister” and “Chief Minister”. Here are the numbers:

President: 598 | Prime Minister: 15
Governor: 376 | Chief Minister: 20

This was really shocking to me, since India is mostly run by a Prime Minister & the Chief Ministers, and yet the constitution seemed to be a road map for the President and Governors to follow. This didn’t quiet gel with reality and so being illiterate in the matters of the Constitution, I decided to learn more about the Constitution of India. It was mainly out of a curiosity to see if, as per the numbers, it really is a President & Governor centric constitution, as opposed to being a Prime Minister & Chief Minister centric one.

I was able to download a current version of the Constitution with all the Amendments from Ministry of Law website. Being someone for whom, up to this point, the Constitution of India was simply the Preamble, Fundamental Rights, & Fundamental Duties; it was a shocker to be staring at a massive 915 page Constitution with 395 articles.

A complex document for anyone; I soon found myself diving into something that raised a lot more questions than had the answers I was looking for. One question lead to another, and soon an unraveling of the story of the Constitution of India started taking place.

“A bit from here and a bit from there-it is a Pandora’s Box.”
– Maulana Hasrat Mohani on the Draft Constitution of India submitted by Dr. Ambedkar.

The President vs. The Prime Minster

On 4th Nov, 1948, when Dr. Ambedkar presented the Draft Constitution (315Articles and 8 Schedules), which was drafted by the Drafting Committee that he headed; the vision of the new Constitution of India he defined was clearly a Parliamentary system with the twist of a ceremonial President at the top.

“The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system. The two are fundamentally different.”
– Dr. Ambedkar

“Under the Presidential system of America, the President is the Chief head of the Executive. The administration is vested in him. Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.”
– Dr. Ambedkar

“The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do any thing without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament.”

But what does the Constitution say?
The Constitution adopted on January 26th, 1950 had the following to say about the relationship between the President, Prime Minister & Council of Ministers:

Council of Ministers
Article 74
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Very simple and precise: the role of the Council of Ministers with Prime Minister as head is to aid and advise the President. Nothing here says that the President is bound by the advise, which is contrary to what Dr. Ambedkar had mentioned in his speech. This seems like a very obvious contradiction, which from the Constitution point of view, makes the President more powerful than the Council of Ministers.

Did someone notice this?
On 23rd May 1949, during the debates over an Amendment to Article 102 in the draft Constitution, Dr. Rajendra Prasad, the President of the Constituent Assembly, did notice. Here is the debate which ensued with Dr. Ambedkar:

The Honourable Dr. B. R. Ambedkar : I am very grateful to you for reminding me about this. The point is that amendment is unnecessary, because the President could not act and will not act except on the advice of Ministers.

Mr. President: Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers?

The Honourable Dr. B. R. Ambedkar : I am sure that there is a provision, and the provision is that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions.

Mr. President: Since we are having this written Constitution, we must have that clearly put somewhere.

The Honourable Dr. B. R. Ambedkar : Though I cannot point it out just how, I am sure there is a provision. I think there is provision that the President will be bound to accept the advice of the Ministers. In fact, he cannot act without the advice of his Ministers.

Some Honourable Members:– Article 61 (1).

Mr. President: It only lays down the duty of the Ministers, but it does not lay down the duty of the President to act in accordance with the advice given by the Ministers. It does not lay down that the president to accept the advice. Is there any other provision in the Constitution? We would not be able even to impeach him. because he will not be acting in violation of the Constitution if there is no provision.

The Honourable Dr. B. R. Ambedkar : May I draw your attention to article 61, which deals with the exercise of the President’s functions. He cannot exercise any of his functions, unless he has got the advice, ‘in the exercise of functions.’ It is not merely to ‘aid and advise’. “In the next exercise of his functions” those are the most important words.

Mr. President: I have my doubts if this word could bind the President. It only lays down that there shall be a Council of ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. It does not say that the President will be bound to accept that advice.

The Honourable Dr. B. R. Ambedkar : If he does not accept the advice of the existing ministry, he shall have to find some other body of ministers to advice him. he will never be able to act independently of ministers.

Mr. President: Is there any real difficulty in providing somewhere that the President will be bound by the advice of the ministers?

The Honourable Dr. B. R. Ambedkar : We are doing that. If I may say so, there is a provision in the Instrument of Instructions.

Mr. President: I have considered that also.

The Honourable Dr. B. R. Ambedkar : Paragraph 3 reads: In all matters within the scope of the executive power of the Union, the President shall, in the exercise of the powers conferred upon him, be guided by the advice of his ministers. We propose to make some amendment to that.

Mr. President: You want to change that. As it is, it lays down that the President will be guided by the ministers in the exercise of executive powers of the Union and not in its legislative power.

The Honourable Dr. B. R. Ambedkar : Article 61 follows almost literally various other constitutions and the Presidents have always understood that that language means that they must accept the advice. If there is any difficulty, it will certainly be remedied by suitable amendment.

….

The Honourable Dr. B. R. Ambedkar : Our President is quite different from the President of the United States.

As you can see from the debate, Dr. Rajendra Prasad (President) clearly sees the flaw, and asserts that the Constitution should clearly state that the President is bound by the advise of the Council of Ministers. But, Dr. Ambedkar is adamant that the current wording is sufficient, and Presidents will assume it to mean that they have to take the advise from the Ministers.

As it is clear from Article 74 of the 1950 adopted Constitution, Dr. Ambedkar never made a change to the constitution to clarify that the President is bound by the advise of the Council of Ministers.

So, did this issue come up again?
Dr. Rajendra Prasad went on to become the first President of India, a unanimous decision, as he was the only nominee for President. On 26th November 1949, in his final speech to the Constituent Assembly, before authenticating the Constitution, this is what he had to say:

Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice. Although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and, the president, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a Constitutional President in all matters.

This clear flaw in the Constitution of India must have been lurking in his mind, for him to have brought it up again. But, as the first President of India, he kept his word of acting in accordance with the advise of the Ministers, thus establishing the precedence for future Presidents of India to follow.

Is this flaw still there in the Constitution?
No, 26 years later, during the emergency, when Indira Gandhi the then Prime Minister of India, really needed the power, probably realized that the Constitution did not give the Prime Minister enough power to trump the President. The 42nd Amendment of 1976, changed Article 74, thus binding the President of India to the advise of the Ministers. Here is what the current Article 74 Section 1 states:

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Six words which took away an unknown power Presidents of India enjoyed up till the 42nd Amendment of 1976.

Did the story end here?
No, the 42nd Amendment was a contraversial one, which passed during an emergency curtailed a lot of powers. Under Morarji Desai, the next Prime Minister of India, the 44th Amendment of 1978 was passed, to take care of the butchering of the Constitution by the 42nd Amendment. The powerlessness of the President in being bounded by the Ministers advise was realized, and a second paragraph was added to give the President one chance at having the Ministers reconsider the advise:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

Here ends for now; the story of the Constitution of India and the power struggle between the President and his Council of Ministers. Has it reached perfection? I don’t know, but one thing is sure, the story will not end here.

References:
– Constitution of India – 1950, Current
– Article 74
– 42nd Amendment, 1976
– 44th Amendment, 1978
– Constituent Assembly Debates: Vol 8 Page 6, Vol 11 Page 12

Soothsayers of the Indian Constitution – Part I

Tomorrow is the Republic Day of India, the day (26th Jan, 1950) when the Constitution of India was adopted and India became a Republic. Recently, I have been going over the Constitution of India and the debates that took place in the Constituent Assembly, to learn more about our Constitution and the story behind it.

Among the many debates and speeches of the Constituent Assembly, there exists tremendous amounts of information in which lay the story behind our Constitution. But, what caught my attention, were the predictions of the future made by some of the members.

Here are a few such predictions from the speeches made by Mahavir Tyagi–an independence fighter and famous parliamentarian from Uttar Pradesh, and Frank Anthony–a prominent leader of the Anglo-Indian community in India. By 25th Nov, 1949, when these speeches were made, the draft constitution was pretty much finalized and so these speeches had no value other than for being on the record.

Nature of the Constitution:

Frank Anthony: It has been said that this Constitution has received a mixed reception. It is inevitable that its reception should have been mixed because, inevitably, it is a mixed constitution. It is composite in character.

Professional Politicians:

Mahavir Tyagi: Although I have every respect and praise for this Constitution, yet there is one thing which I am most afraid of, and it is that this Constitution is tendenalous to create a class – a class that democracy has created everywhere – of professional politicians.’ All democracies are run by professional politicians’ and I am afraid that is the main cause of their failures, because such people begin to live on democracies. It becomes with them a profession, the Statecraft’, becomes their only source of living. That is the bane of democracy and I want to make the future generations aware of this. It creates professional politicians’ – those whose earning depend on politics, with the result that they cut themselves adrift from all creative professions. If this democracy is also to be run by such persons who will have nothing else to fall back upon, and who live on Ministries or on the memberships of the Parliament, then this democracy is doomed, I am sure.

On Education Being Left to the States

Frank Anthony: My own conviction is that a few years will be sufficient to make the leaders of the country realise the great blunder that we have committed in allowing education to remain entirely in the provincial sphere. You will see balkanisation of the country will take place so quickly, because through this powerful lever which you have left in the hands of the provinces they will split this country up into linguistic enclaves, seal one from the other, so that the idea of a common nationality will recede more and more into the background. I feel very strongly about this. I do not know how the damage that is going to be done can be undone, unless some radical steps are taken in the not distant future.

Political Professionals

Mahavir Tyagi: Such is the danger. I therefore want the coming generations not to play into the hands of persons who are professional politicians’. This Constitution should rather be run by political professionals’ – persons who have their own professions to live upon, but who come here to run the State voluntarily or on small pays because along with their own personal professions they had an interest in politics and had a will to serve the country. This is how I would like this picture to work.

Police:

Frank Anthony: But, let us be honest. What kind of reputation or lack of reputation do the police administrations in many of the provinces enjoy? What does the man in the street think of the police regimes in many of the provinces? I know what he thinks you know what he thinks. The police have fallen into disrepute in many of the provinces. They are not regarded as guardians of law and order but as agencies of corruption and oppression.

On Nation Building:

Frank Anthony: While the Prime Minister keeps on asking us to let first things come first, we have fallen into the unfortunate habit of making last things come first. What should be the first priority in any administration? What are the most urgent nation-building activities on which we should concentrate? Surely, health and education. But, today, ask your average provincial Government what it is doing in these matters. It pleads poverty on the one hand in the matter of the most urgent nation-building subjects which should have received top priority, and on the other hand chases these idealistic chimeras. We are throwing away crores and crores of Rupees.

State of the Villager

Mahavir Tyagi: But the picture from the villagers’ point of view is dull and dead. I cannot give argument to convince the villager that from 26th January 1950 his lot will be better. Nor is there anything tangible through which he can better understand this Constitution; because we give the villager nothing but the vote, which we will take from him after two years. That is the only thing we give him. So, I submit that it is only when those who till the soil are enabled to run this Constitution that they would appreciate it to be their charter of rights and freedom. Otherwise the Constitution is dull.

A Leader Must Emerge

Mahavir Tyagi: There must be a leader. I hope our Indian earth is not so sterile that it will not give birth to a leader who will whisper life into this mould of the Constitution so that it could speak. It would speak if only we had the courage of our conviction, and I tell you that the chanting of a Maha Mantr is necessary, and I am sorry that there is no one in India today who can whisper that Maha Mantr which could make the whole of our Nation dance about this little book.

A Message to Future Generations

Mahavir Tyagi: And may I hint what it is? I know at this stage the House cannot accept anything, but future generations may. Only one thing will make this Constitution attractive. If the whole of this Constitution were provided with one supreme provision or safeguard, then I think the whole thing will be all right. It is this : if we could add a proviso to it as follows :

“Notwithstanding anything contained in this Constitution, no citizen of India shall draw for his personal use either from the public exchequer or from private enterprise a pay, profit or allowance which exceeds the earnings of an average wage earner.”

If that were there the whole of India will at once come round this Constitution. So long as this is not there, India will not appreciate it because this Constitution will only safeguard the bread of those whose hands are full of bread and not of those whose hands are empty.

The complete speeches by Mahavir Tyagi & Frank Anthony can be found in the Constituent Assembly Proceedings of 25th Nov, 1949

Power Struggle in the Indian Constitution

The Constitution of India has many contradictions, attempts to diminish the power of the President and freedoms of the people. Here is a funny example introduced in the FORTY-SECOND AMENDMENT ACT, 1976 during the emergency when Indira Gandhi was Prime Minister:

Section (3) of Article 77 in the Constitution of India reads:

(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.

The 42nd Amendment then added section (4) to Article 77 – Conduct of Government Business:

(4) No court or other authority shall be entitled to require the production of any rules made under clause (3) for the more convenient transaction of the business of the Government of India.

Which I thought was funny, because it basically says if by section (3) the President wishes to make any rule to improve the conduct of government business, then as per section (4) no one is required to implement that rule!

Luckily for us, after the emergency, when Morarji Desai was Prime Minister; section (4), an attempt by a Prime Minister to diminish the power of a President, was removed (see 57) from the constitution in the FORTY-FOURTH AMENDMENT ACT, 1978

Response from the Railways on Cleanliness Complaint

This is a follow up to me earlier post on the state of cleanliness on Indian Railways. I had filed a grievance with http://pgportal.gov.in regarding this matter and here is the response I received:

My Complaint:

The state of cleanliness on Indian trains is horrible. Even though the railway contracts out cleaning services, the level of cleanliness on the trains is way worse than expected. On my last trip in First Class Chair car, the toilets were so nasty and filthy, that I had to clean the toilet my self before I could use it. Plus you had the added bonus of seeing mice and cockroaches.

Please look into the matter of cleanliness, and set some kind of standards which cleaning services have to meet for trains and railway stations in India.

Response from: Shri Sunil Kumar
Adviser (PG) & CPIO
Ministry of Railways
Tel : +91 11 23386203
email : edpg@rb.railnet.gov.in

Dear Sir,

while cleaning of stations and coaches are not upto the expectations of the public, it is to advise you that efforts are made on cleaning aspect to come to the growing expectations of the travelling public. In this connection, general public have also a responsibility to help the Railways to maintain cleanliness at highest level. Of course it is not upto the mark but efforts are also made to fulfil the growing expectations.

Thanks.

Definitely a response which gives you some hope, but the positive outcome of this is that they now know and the government website for filing public grievances works and works really well. I hope more of you can take advantage of this platform to let the Indian Government know of your ideas and concerns.