President of India is not all a glorified cipher. He represents the majesty of the State, is at the apex, through only symbolically and has rapport with the people and the parties. Comment [ 1982, U.P.J.S ]

1. President of India is not all a glorified cipher. He represents the majesty of the State, is at the apex, through only symbolically and has rapport with the people and the parties. Comment [ 1982, U.P.J.S ]

INTRODUCTION .

General

The recent years political happening reveals that, the coalition politics has come to stay in India, attempting to replace the one party dominance that had been so prominent till the year 1977. The multiparty system has resulted in break-down of one party rule at the centre which has been in existence for thirty years. The increase in number of regional parties based on regional culture, religion and language has fragmented our national politics which in turn has caused loss to the national parties.

In the General Elections held in 1977, the people of India had not given clear verdict to any of the single political party. The governments were formed by the support of the other parties or with the combination of many parties at the centre. It is true that Indian experience of coalition politics since 1977 onwards does not give rise to optimism.

However, there is a vast difference between the situation in Europe and India. The political parties in Europe are mostly on ideology basis, though one does come across a small number of regional or ethnic identities. The ideology based parties function within a framework of agreed consensus on national interests and goals, though they may differ on their approaches to achieve them. In India, there are large numbers of parties which are based on identity and not on ideology alone. These parties are divided into those

arising out regionalist, linguistic identities and caste identities. Since they are not ideology based, especially on an overall national basis, their parties focus is on maximizing the gains and influences of their parties and leadership, and relentlessly pursues its own interests.

Experience of the coalition governments at the centre in 1977, 1989 and 1996 and in 1998 General Elections has not been encouraging. P''our governments at the centre had been ousted from power in a span or three years since 1996. Thrice in three years we have gone to the polls. Despite three General Elections held during the period from 1996 to 1999, the Indian voters did not elect a Parliament which could ensure stable governance. Each time, the outcome was a fractured verdict and tlie government elected was incapable of withstanding political upheaveals and rendered unableness to govern for a full term of five \'ears.

These coalition governments were the result of a group or ind)\iduals or political parties. Indian society which is plural in ctiaracter and traditional in beha\ior is divided into caste, race, religion and language. It has found its manifestation in the General Election and the outcome is a coalition government.

Coalition formations are a familiar phenomenon in the Western countries. Coalition governments have an impressive record all over the world today and they seem to have come to stay as an integral part of the Parliamentar)' system.^ Germany is a shining example of successive successful coalition governments. Holland, Belgium and some of Scandinavian countries have also demonstrated how coalition governments can function successfully. Italy is a classic case where se\eral political parties getting together and forming coalition government from time to time, and performing with reasonable success. Switzerland is another good example.

All these countries are much different from India from the point of view of complexity of problems such as regional, linguistic and sociocultural. Yet they have not been striving for single party governments with too frequent elections aiming at the creation of such governments. In fact coalition governments seem to offer a new solution for countries like India in the days to come for both stability and wider acceptability of governments.

Elections have become a great financial burden on our country. It was estimated by the Election Commission during the 2009 General Elections that the Election Commission has spent nearly ?1,120 crore on the entire poll process. In addition to this expenditure, there is a lot of unaccounted money spent by candidates on their campaigns. However, elections are necessary for Indian democracy. Having more elections in this milieu is not going to improve accountability or governance, though the elections are a means to enforce accountability. However, the need of accountability is not only once in five years at election time, but in all the months in between. This has to be achieved by the rule of law not by even more elections. Indian democracy needs accountability not stability. Stability without accountability represents a kernel of autocracy, even if covered by the husk of elections.

Everytime, Indian voters' verdict had reflected their choice in coalition government, especially in last four General Elections which were held in 1996, 1998, 1999 and 2009. The results of these elections had painted a picture of fractured Parliament. The constitutional crisis was created whenever it was facing a situation of Hung Parliament.

Nothing was said or implied in the Constitution which could be interpreted as giving unfettered discretion to the President in this regard. Thus, the Constituent Assembly failed to provide a definitive conclusion on the method to be adopted by the President for appointment of the Prime Minister of India in the situation when no single part\' or alliance is able to provide majority in the House, no settled norms were provided to the President and he was left to depend on conventions \\hich are yet to develop in India.

According to Dr. B.R. Ambedkar, the President has no discretionary functions at all. All that he will have are certain prerogatives, but not functions, one prerogative is the appointment of the Prime Minister and other is the dissolution of Parliament. With regard to the Prime Minister, it is not possible to avoid vesting the discretion in the President. The only other way is to require that it is the House which shall in the first instance choose its leader and then, on the choice being made by a motion or a resolution, the President would proceed to appoint the Prime-Minister.-

In either case the purpose is to test the confidence of Parliament in the new Prime Minister. The confidence could be reflected before assuming office, through a resolution as pointed out above or after assuming office through a no-confidence motion. Dr. Ambedkar in this regard thus stated:

"One way is as good as the other and it is, therefore felt desirable to leave this matter in the discretion of the President with regard to the dissolution of the House, again there is no definite opinion so far as the British constitutional lawyers are concerned. There is a view held that the President or the King must accept the advice of the Prime Minister for a dissolution if he finds that the House has become recalcitrant or that the House does not represent the wishes of the people. There is also the other view that notwithstanding the advice of the Prime Minister and his Cabinet, the President, if he thinks that the House has ceased to represent the wishes of the people, can suo-moto and of his own accord dissolve the House. These are purely prerogatives and they do not come within the administration of the country."'

Till recent years. Presidents have generally accepted that they have few powers and no active role in government.s They had, perhaps, little choice as until the 1990's we have had Prime Ministers who led parties with large majorities in the Lok Sabha. Circumstances have changed since 1990's when we have had weak coalition governments. In the resulting uncertainty. Presidents have been playing an active role in selecting who or which party is to head the next government. This is, it should be said at once, one field where the President must, out of necessity-, act on his own as there is no Council of Ministers which can advise him. His role becomes vital when many MPs are independents, or belong to small parties, which can be persuaded to support any party' leader who offers them ministerial posts or other inducements.

No President can easily assess which party wall end up as obtainmg majority support; so the President has generally followed the safe course of first inviting the largest single party. This can lead, at times, to absurd consequences as when the President invited the BJP to dci so in 1996; as several MPs, constituting the majority had then declared that they would not support the BJP government. This was the unedifving spectacle of a very short lived first Vajpayee government.

The practice of inviting the leader of the largest single party to have the first chance, whilst sanctified by convention, and having the ad\'antage of atleast forming an easy-to-understand and easy to follow rule has some most unattractive features.^ It not only might result in a ven- short-lived government, but it almost encourages Prime Minister to "6uj/" support by promising office to unworthy and undeserving MPs.

It is worth considering if, instead, the President should insist on the leader of the majority party first securing a vote of confidence, and then, inviting him to form a government. The fickleness of our MPs continues even after a government is in office. So, when the AIADMK Part) withdrew support from the second Vajpayee government, it was doubtful whether Sh. Atal Bihari Vajpayee still enjoyed the support of a majoritv' of the Lok Sabha.

The President took an unusual course; he directed that Sh. Atal Bihari Vajpayee should secure a vote of confidence. Surely the proper !:ourse of action was for the President to have done nothing and waited to see, if a resolution expressing no confidence would have passed. "The twelfth Lok Sabha withdrew its thrust in the Council of Ministers on 1/^ April, 1999 when the motion that this House expresses it confidence in the council of ministers" was defeated on the floor by the narrowest margin of just a single vote with 269 members voting in favour of the confidence motion moved by Sh. Atal Bihari Vajpayee and 270 against it.7 This was the fifth time when Lok Sabha was dissolved without completion of its full tenure and had been a shortest Lok Sabha in Indian history.

The situation becomes worse during the long hiatus between the dissolution of the Lok Sabha and the meeting of the next one, a hiatus inevitable due to the sheer complexity of organizing elections in so vast a country. During this period, the government, it is said, is a "care taker" government. No such concept is known to the Constitution of India. During this period, the President is said to have insisted on a number of decisions which is impossible to justify such actions on the part of an indirectly elected President.

Justice V.R. Krishna Iyer has made a comment on the role of the President that: "The President in India is not at all a glorified cipher. He represents the majesty of the State, at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if he only uses, what Bagehot described, as the right to be consulted, to warn and encourage."

Shamsher Singh & Anr vs State Of Punjab on 23 August, 1974

In Blackstone's commentaries on the Laws of England, said Dicey, students might read that the Constitution concentrated all executive power in the hands of the King. The language of this passage', he remarked, is impressive...... It has but one fault : the statements it contains are the direct opposite of the truth".' The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encourage'. Indeed, Art. 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors. i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power (1) AIR 1971 SC 1551.

Similarly, the President is entrusted with powers and duties covering a wide range by the Articles of the Constitution. Indeed, he is the Supreme Commander of the Armed Forces (Art 53(2)), appoints Judges of the Supreme Court and the High Courts and determines the latter's age when dispute arises, has power to refer questions for the Advisory opinion of the Supreme Court.(Art 143) and has power to hold that Government of a State cannot be carried in accordance with the Constitution (Art. 356). The Auditor-General, the Attorney General, the Governors and the entire army of public servants hold office during the pleasure of the President. Bills cannot become law, even if passed by Parliament, without the assent of the President. Recognizing and derecognising rulers of former native States of India is a power vested in the President. The extraordinary powers of legislation by Ordinances, dispensing with enquiries against public servants before dismissal, declaration of emergency and imposition of President's rule by proclamation upon States. are vast powers of profound significance. Indeed, even the power of summoning and proroguing and dissolving the House of the People and returning Bills passed by the Parliament belongs to him. If only we expand the ratio of Sardarilal (2) and Jayantilal (12) to every function which the various Articles of the Constitution confer on the President or the Governor, Parliamentary democracy will become a dope and national elections a numerical exercise in expensive futility. We will be compelled to hold that there are two parallel authorities exercising powers of governance of the country, as in the dyarchy days, except that Whitehall is substituted by Rashtrapati Bhavan and Raj Bhawan. The Cabinet will shrink at Union and State levels in political and administrative authority and,, having solemn regard to the gamut of his powers and responsibilities, the Head of State will be a reincarnation of Her Majesty's Secretary of State for India, untroubled by even the British Parliament-a little taller in power than the American President, Such a distortion, by interpretation, it appears to us, would virtually amount to a subversion of the structure, substance and vitality of our Republic, particularly when we remember that Governors are but appointed functionaries and the President himself is elected on a limited indirect basis. As we have already indicated the overwhelming catena of authorities of this Court have established over the decades that the cabinet form.-of Government and the Parliamentary system have been adopted in India and the contrary concept must be rejected as incredibly allergic to our political genius, constitutional creed and culture.

Before we conclude on this part of the case we remind ourselves that so long as the Constitution shall endure-no one can say how long, each generation being almost a separate nation this Court must exist with it, deciding in the peaceful forms of forensic proceeding, the delicate and dangerous controversies inter alia, between sub-soverei- gnties and citizens. And the pronouncements of this summit tribunal being law under Art. 141, it binds until reinterpreted differently and competently. But as Judges we have solemnly to remind ourselves of the words of the historian of the U. S. Supreme Court, Mr. Charles Warren: