| Occasionally noticed
The author is professor of philosophy, law and governance, Jawaharlal Nehru University, New Delhi
The growing assertiveness of non-elected bodies like the judiciary and the election commission in the maintenance of democratic values is proving the truism that power often flows to those who choose to exercise it. Although the Constitution is often ambiguous and indeterminate in defining institutional functions, institutions often can convert the statutory authority vested in them into real power by their own actions. With the ascendancy of A.P.J. Abdul Kalam to the presidency, there is new speculation on how the presidentís office might come to be redefined.
All the early indications, Kalamís visit to Gujarat, his returning the ordinances on amending the Representation of the Peopleís Act back to the government for clarification, and his aborted attempt to directly address Parliament on matters of policy, suggest that Kalam is going to be a visibly active president. Within the scope of the constitutional provisions, he could still carve out an enlarged role for the president, even if he would, all things considered, be wise not to overstep the constitutional boundaries of his office.
It is something of a myth that presidents, other than in times of crisis, are relatively inconsequential. This myth is in part because of the fact that most presidents since Rajendra Prasad have been relatively restrained in their public behaviour, and in part because of the fact that much of the exercise of their authority has not been very public. The relationship between Rajendra Prasad and Jawaharlal Nehru was often contentious, to the point where Rajendra Prasad frequently and openly speculated on asserting his authority and acting against the advice of the council of ministers on numerous occasions.
K.R. Narayanan was assertive at least in the matter of appointments. Giani Zail Singh, who might otherwise have seemed a very pliant president, asserted his authority considerably, when he thought constitutional values were at stake. In a notorious incident, he refused to sign what came to be known as the Postal Bill, which gave the government vast authority to intercept, detain or destroy any postal article on the grounds that it posed a threat to national security or public safety.
Zail Singh refused to sign the bill, even though it had been passed by both houses of Parliament, on the grounds that it seriously undermined what Zail Singh in his memoirs describes as the Constitutionís ďfundamental freedoms.Ē He even refused to return the bill to Parliament for reconsideration. A bill duly passed by Parliament sat unsigned for almost three years, till his successor, R. Venkataraman, after considerable delay returned it to Parliament for reconsideration. The constitutional issue of a presidentís powers is not fully settled and a president bent on disregarding conventions of restraint can reopen the question.
An assertive president can potentially generate a constitutional crisis by simply refusing to sign bills, even if passed by Parliament. In the Postal Bill case, a crisis was avoided simply because the government did not press its claims. On the other hand, the president got away with it because there was a widespread public perception that the bill was draconian and an affront to our liberties.
In an era when elected governments might be tempted to contravene the provisions of the Constitution and the directives of the judiciary, any president will face the following dilemma. On the one hand, presidents who are constantly interposing themselves as the guardian of constitutional values, even in the face of legislative and executive opposition, risk undermining the democratic allo- cation of powers in our system. On the other hand, when governments brazenly make a trollop of fundamental constitutional values, presidents not registering any objections threaten to undermine the integrity of the system as a whole as well.
This potential dilemma can be avoided only if governments, for the most part, swear genuine allegiance to constitutional values and if presidents reciprocate by exercising restraint. But we might be entering once again a political era where governments may shamelessly assault our public institutions and fundamental freedoms. When governments subvert constitutional values on principle, the president will face a hard choice between complicity and abdication on the one hand, and a formal breach of constitutional forms on the other.
The presidency is, in the coming years, bound to acquire a greater role. A fragmented political system will inevitably give the president more opportunities to exercise discretion. But Parliament has also become almost dysfunctional. One measure of this is the fact that the number of ordinances that presidents have been issuing has been steadily increasing during the Nineties to exponential proportions.
The presidential power to issue ordinances is arguably being misused considerably. What the Constitution envisaged as a power to be used only in extraordinary circumstances and subject to some strict conditions, has now become a routine instrument for governance that allows governments to bypass legislatures. Governments have frequently disregarded Supreme Court judgments insisting that this power be used judiciously.
The increase in the number of ordinances suggests that the potential for conflict between the president and the executive is also increasing considerably. And if someone like Zail Singh could sit on a bill approved by Parliament, a president with a keen fidelity to the substantive values of the Constitution might be even more tempted to position himself as more than a figurehead by scrutinizing ordinances. How successful and justified a president will be in this role depends upon the issues on which he chooses to assert himself. But conflicts between the president and the executive over ordinances seem unavoidable. And it might be healthy for democracy if the promulgation of ordinances once again became rare.
Kalam is unusual amongst recent presidents in being both very media-savvy and also in having a distinctive common touch. He has the enviable gift of being a political creature who can project himself as being apolitical. There is no doubt that he is more at home in the public gaze among the bustle of citizens than most politicians are. The corruption of our political system has also enhanced his authority. His astonishing popularity suggests that he is the figure on which many are projecting whatever little idealism they have left. And his personal demeanour suggests that he relishes projecting himself as possessing the empathetic shoulder capable of bearing the burden of the nationís woes.
Under such circumstances the temptation to stretch his authority and power will be great indeed. It is too soon to pass a verdict on whether Dr Kalam will use his authority to safeguard basic moral and constitutional values, or whether he is going to eventually precipitate a constitutional crisis, as he almost did by his insistence that he be allowed to address Parliament directly. But there is little doubt that the constitutional dysfunction of our executive and legislature has created the conditions for a more visible and assertive president.
On the evidence of his actions so far, from his insisting on retaining his own administrative team to asking the government to reconsider the recent RPA ordinance, Kalam seems to have the personality that will not be shy of taking advantage of these conditions. So long as he does not overstep the proprieties of our constitutional system, activism in the cause of our liberties may not be a bad thing. Indeed, signs are that it may become unavoidable. But one hopes that in the process of asserting his authority there is one designation he does not take too literally: that of Commander-in-Chief.