Dharma

Indian Constitution: President vs. Prime Minister

by admin Jan 27, 2010 Add comment

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

Response from the Railways on Cleanliness Complaint

by admin Jan 11, 2010 1 Comment

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.

Filthy Indian Railways

by admin Dec 28, 2009 8 Comments

The filthy image of India is something we have yet to overcome, and nothing portrays filthiness like the Indian Railways. An Indian’s perception of what is clean is very different and that could be why things are not very clean here. Before my recent train trips, I was given high hopes by many that the trains I will be traveling on will be very clean. So, I was positive, but all that was shattered the instant I stepped on to an Indian train.

The horrible stench, the filthiness all around, the nasty toilets, and even mice and cockroaches running around. I even had to clean the toilet myself before my family and friends could use it. I was surprised that it was this bad, considering that the railways now contracts out most of the cleaning services. So, I decided to email some railway officials regarding lack of cleanliness and here is the email I sent to Mamata Banerjee, the Minister of Railways:

Dear Minister,

The cleanliness levels on Indian trains is so horrible and embarrassing, that I hope this email will lead to some positive action from your end to clean up the trains and stations all over India.

I was recently traveling by first class chair car to Delhi and the toilet was so nasty and filthy, that I had to clean it myself before I could use it (see attached images). Even though the railways has contracted out cleaning services, the cleanliness levels in the trains and stations have not improved. Someone needs to do something here to set proper standards for cleanliness. Take the new Domestic Terminal in Delhi for example. That’s the kind of cleanliness that’s required in trains and railway stations. With a little attention to detail, proper training and supervision, it can be done without having to rebuild everything.

The train I was on was really really bad, even had mice and cockroaches running around, and the stench was horrible. I had written to the railways Chairman, but no response from him/her. I hope you can take some action here. Looking forward to seeing cleaner trains and railway stations in India soon.

Regards,

Liji Jinaraj

I am sure many of you have experienced far worse, so I have created a Flickr group, “Filthy Indian Railways“, to expose through images the lack of cleanliness on Indian Railways. So, if you have any images which expose the filthiness, do share.

You can also find emails to railway officials here: http://www.indianrailways.gov.in/deptts/telecom/contact1.htm

Power of Public Education

by admin Sep 21, 2009 Add comment

In the past I had a very from-the-outside-looking-in kind of opinion about public education. I used to think that it was all about the quality of education. But, all that changed after I started getting an insiders view of public education in the US through my wife’s experiences as an elementary school teacher.

One of the first things I realized was that public education shapes a nation. It is the most powerful establishment through which future generations are shaped and readied to keep a country striving forward. But the key for any country to be able to achieve this is to make sure that public education is available to each and every child, that there is an established standard and infrastructure for education, and community involvement.

The second thing I noticed was that it’s not about the quality of education. It’s all about every child receiving 12 years of education. More than how good US kids are in math as compared to Indian kids, what matters more is that, as a percentage of population, more US kids are educated than Indian kids. Having most of the young generation going into adulthood with at least a high school education is the best thing public education can offer.

Thirdly, it’s not about being good in certain subjects, it’s about having the freedom to learn and experience everything. Public schools should not only be centers for learning math, science, geography etc. but also where children have the freedom to grow their own personalities, explore their talents, and other avenues of interest and curiosity. It has to be an all rounded education.

Fourth, think local and national. Public education should not ignore the local culture, languages, civics, traditions, history, geography etc. Along with the national agenda, state governments and local communities should have room to introduce local curriculum into the education system. It’s a way for safeguarding local knowledge, languages, culture, and traditions; from being erased by a National agenda.

Finally, the most important of my observations–public education is the ultimate equalizer. One of the key ingredients for Freedom is equality, and public education if done right, can create a level playing field when children finish high school and enter into adulthood. The equating factor is that everyone received the same kind of 12 years of education. They may have other differences based on wealth, religion, race, color, caste, language etc. but when it comes to paving the path to the future through higher education, their professions, businesses, day to day interactions, public services; a nation can be assured of an equality established by public education.

Related:
State of Education – Kerala vs. Karnataka
The Uneducated American

Amartya Sen explores “The Idea of Justice”

by admin Sep 12, 2009 Add comment

This post is inspired¬† (and in a way I am inspired to write again on KarmaDude) by an interview I heard of the revered Dr. Amartya Sen, Nobel Laureate and economist. As articulate and lucid as he is in his conversation and as verbosely profound he is in his writing, Dr Sen never fails to instill a sense of ponderous thought and an almost sub-consciously Socratic experimentation on topics we otherwise hardly think about. One such topic is the idea of what is “just” around us.

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Disposable

by admin Sep 27, 2007 Add comment

Disposable

It’s pretty amazing that our society has reached a point where the effort necessary to extract oil from the ground, ship it a refinery, turn it into plastic, shape it appropriately, truck it to a shore, buy it, and bring it home; is considered less effort than what it takes to just wash the spoon when you’re done with it.
-via TreeHugger

Mass production of disposable products for our convenience is the norm of the times. The more a society progresses the more the usage of disposable products. Look around you, probably 80% of products you use are the disposable kind. So, if we are waiting around for someone to solve environmental issues for us, then it’s not likely to happen. The problem is not someone else but us, unless we change our ways, the problems which have resulted from our desire for conveniences are not going away any time soon.

Each one of us could take a minute, review our dependency on disposable products, and cut back. Something as simple as washing and reusing a spoon can go along way. But remember karma, when we change our ways, it will impact things both in a good and a bad way. So if today we all stop using disposable spoons, then naturally, industries which produce these products will go out of business, people will lose jobs, and there will economic and social impacts. So when people say wash a spoon and reuse it, the impact of that action, in the big picture, is not as simple as it looks.

Another thing I have noticed is we sometimes justify use of disposable products by using recycling as an excuse. Well, when you get a chance, go to a landfill near you, and you will get a good idea of how much recycling actually goes on.

If you want to make a difference, make changes to your dependency on disposable products today, and show others that they can do it too.

Go Green Tip: Storing Paint

by admin Jul 10, 2007 Add comment

Go Green Tip

If stored correctly, leftover paint can last for years. Here are 8 paint storage tips from Earth 911 to extend paint life.

Go Green Tip

by admin May 12, 2007 Add comment

Go Green Tip
Conserver water by switching to powder detergents. Liquid detergents are mostly water (up to 80%).

via National Geographic

Two things I don’t do: worry & get mad

by admin Apr 5, 2006 Add comment

Worry and Get Mad
Every morning I wake up with a smile (except for the first few times I hit my snooze button) and every night I go to bed with a smile. This is regardless of what happens during the hours that I’m awake and independent of what day it is.

Worrying is a complete waste of time. Getting mad is also a big waste of time. I’ve been NOT wasting time for the past 8 years now.

You might argue that worrying and getting mad are natural human tendencies, but they are actually social influences that we’ve grown up with. Things happen all the time. Its the way we respond to them that truly identifies who we are. The more calm you are, the more likely that you will be able to make a rational decision towards anything in your life.

Dharma & True Freedom

by admin Apr 3, 2006 1 Comment

Free as a BirdFreedom, all of us want it, it’s protected once we think we have it, and it’s marketed to others who don’t have it, but are we truly free? What is true freedom? What would it take to achieve true freedom? What are the consequences of true freedom for us? What is the relationship between Dharma and true freedom? These are some of the questions we are going address in this two part series.
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