Wednesday, August 1, 2007

Rediscover the Presidency’s limits statecraft

Rediscover the Presidency’s limits statecraft

Harish Khare


Like all institutions, the Presidency too has become a victim of lopsided expectations and an overdose of partisanship. Pratibha Patil has an opportunity to help rediscover the limits of her office.


President Pratibha Patil recently found herself granting an audience to a delegation of Bharatiya Janata Party MLAs from Goa. Under the Constitution of India, the President has no locus standi in the matter; the onus is solely on the Governor to ensure constitutional wholesomeness. In any case, there is now sufficient clarity that the question of whether a Chief Minister enjoys or has ceased to enjoy a legislative majority can only be decided on the floor of the Assembly & #8212; not in the Raj Bhavan, and, certainly not in Rashtrapati Bhavan.

Ms. Patil was probably advised to indulge the BJP delegation lest the party should accuse her of being partisan. What was worse was that the BJP delegation kept the President waiting for an hour; and then demanded, according to BJP president Rajnath Singh who led the delegation, that she should “direct” the Governor to allow the BJP leader in the Assembly, Manohar Parrikar, to form the government. As if this was not enough, the delegation taunted her “to carry forward the legacy of the high office you hold.”

What exactly is this “legacy”? An obvious reference to — and a preference for — her predecessor A.P.J. Abdul Kalam’s presidency, especially in the post-May 2004 years. Ever since it lost power at the Centre, the National Democratic Alliance leadership has sought continuously to embroil the President as a referee in its unending political disputes and disagreements with the Manmohan Singh government. In the process, the BJP has been ready to graft a much bigger and more activist role for the President than envisaged in the Constitution. It is not clear if Mr. Kalam ever saw through the BJP’s game plan.

In July 2006, BJP leaders led by Atal Bihari Vajpayee trooped up Raisina Hill to demand that President Kalam should seek, under Article 143, the Supreme Court’s opinion on the Office of Profit Bill before signing it should the two Houses of Parliament approve the proposed legislation a second time. President Kalam, let it be recalled, had already used his discretion under Article 111 to send the bill back for reconsideration. The BJP leaders even sought to instigate the President to seek the Supreme Court’s opinion without the advice of the Prime Minister.

President Kalam himself appeared to subscribe to a view of the presidency closer to that of the BJP than the one prescribed in the Constitution. Two days before he demitted office, he was asked by India Today whether he thought R 20;the President can play a greater role?” His reply: “yes, yes. What he thinks, he wants to do, he can do. If he thinks big, he can do it. The post doesn’t restrict the person at all. If the President has vision, he can propagate it and nobody can prevent that. In fact, the nation will welcome it. I addressed the media, both print and television, so many times directly and the Government did not say anything.”

This perspective fits neatly into Mr. Kalam’s self-image as the people’s President, carrying with it the posture that a constitutional functionary derives his legitimacy and authority directly from the people, even if he is elected by the undesirable political class. No serious student of the Indian Constitution can feel comfortable with the notion of a President yielding to populist temptation in the mistaken notion of enjoying the backing of ‘public opinion.’

In the recently concluded presidential election, the sub-text of the BJP campaign on behalf of the “independent” Bhairon Singh Shekhwat was that once elected to Rashtrapati Bhavan he would have the mandate to become a rival power centre. The party was introducing the notion of an over-reaching activist President. By contrast, it chose to dub Ms. Patil as a “rubber-stamp.” Given her runaway victory, it must be presumed that this notion of “President-as-counterweight” stands rejected. The message must go down and be accepted with good grace that the President is not at all obliged to get involved in disputes involving political parties and is certainly under no obligation to help the opposition pull its chestnuts out of the fire.

A new innings at Rashtrapati Bhavan seems to be a good time to try to roll back the presidency to its institutional confines. A President can raise the polity’s tone and tenor to a higher moral level. A President can, at times, become the guardian of constitutional wholesomeness, but only if he or she has a genuinely honest and impartial profile.

Admittedly, each President ends up defining the office by his or her behaviour and record. Since each incumbent brings to Rashtrapati Bhavan a new personal style and energy, the resultant presidential persona is necessarily different. It would, for instance, be unrealistic for Ms. Patil to try to replicate the style and mannerisms of her predecessor. She would not help herself if she were to allow herself to be railroaded into imitating the presumed “openness” or “simplicity” of the Kalam years.

Yet the Presidency is not a personal project but an institutional arrangement, which needs to find its vibrancy and sustenance within the four walls of the Constitution. The Presidency has evolved over the years in response to the exigencies of the national situation. It may be that there are many occasions when the political arrangement produces a strong Prime Minister, backed by a clear and stable majority in the Lok Sabha, and the President finds his or her elbow-room considerably reduced.

On the other hand, a weak Prime Minister would open himself to suggestions and advice from Rashtrapati Bhavan. But this relationship must always remain circumscribed by the basic constitutional architecture.

A President cannot have policy views parallel to those of the Prime Minister and the Council of Ministers. A Prime Minister is presumed to be the only one with a mandate from the people. Other institutions — especially the judiciary — are there to ensure that the mandate is worked out in conformity with the Constitution. For instance, President K.R. Narayanan could not allow himself to take a view different than that of the Vajpayee government when it decided to stage Pokhran II.

The problem is that increasingly those who occupy political and public office are finding it too difficult to summon the requisite discipline and restraint to operate within the institutional boundaries. There is an outbreak of middle class sentiments against elected political leaders, and there is an itch to demand that the elected governments be reined in — by the judiciary, the Central Vigilance Commission, the Comptroller and Auditor General of India, the Election Commission, the President, and so on.

What becomes deeply problematic is that bitterly divided political leaders take one view of a constitutional institution when they happen to be in power and quite a different view when they are out of office. If, for instance, the Election Commission is being tough in West Bengal, it is lauded for its impartiality. If it is being tough in Gujarat, then the country is reminded that it is presided over by a James Michael Lyngdoh! The Presidency as an institution is also subjected to such partisan pressures.

It needs to be argued that constitutional equanimity cannot be achieved by instigating various institutions to move beyond their boundaries and arrogate to themselves the role of speed-breaker or arbitrator. Rather, our political culture should encourage those who preside over constitutional and public offices to learn to operate within institutional limits. This is a painful learning experience, especially in a society whose ethos is predicated on an inegalitarian social order and a hierarchical family authority structure.

It is no wonder that even after six decades of Independence, we have not developed a political culture that puts a premium on institutional behaviour; instead, all political parties and leaders are comfortable with arbitrary and opportunistic definitions of norms and values. This culture promotes neither responsibility nor reasonableness in the polity.

Playing the blame-game produces neither political wisdom nor constitutional sagacity. President Patil has the opportunity to start the process of re-discovering institutional boundaries.

© Copyright 2000 - 2006 The Hindu

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THE HINDU

http://www.thehindu.com/2007/08/01/stories/2007080151131200.htm


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