“Oh no, that poor chap!”
“Power tends to corrupt, and absolute power corrupts absolutely.”
Political power in a democratic system is branched out- diffused and fragmented with numerous checks, balances, and limitations on powers. While the debate on the necessity of things being this way belongs to an open-ended boiling pot of ideas especially for a young, developing nation, the absence of the ‘Head of State’ from the discourse is almost treated as self-evident without much examination in the Indian way of life.
The President of India as any middle school student knows does not hold any ‘real’ power. He is treated as a mere figurehead, a ceremonial symbol of the government akin to the Queen of England. An Indian President is accorded the highest dignity as Heads of State of other “Presidential’ systems like the United States and yet, in any list of ‘most powerful people in India’, the Indian President trails far behind ministers in his own cabinet, Chief Ministers and popular MPs across the political spectrum, Constitutional Court Judges, industry giants, actors, cricketers, and even top bureaucrats. The reasons for this state of affairs have to be traced historically and examined Constitutionally.
Political power in most democracies is separated primarily between the Legislature and the Executive. The Legislature may then either have a single House (only consisting of direct representatives of the people- termed unicameralism) or be split into two almost equally important Houses (consisting of both, directly elected representatives of people and representatives of states or other nominated members- termed ad bicameralism). Illustratively, in the Indian context, the Indian Parliament is a bicameral body- consisting of the Lower House- The Lok Sabha (People’s assembly) and the Upper House — The Rajya Sabha. Legislative power in India is also divided horizontally as India is arguably a federal country- the states have their own legislative bodies- namely the Vidhan Sabha and sometimes, the Vidhan Parishad. Elections to the Lower Houses are direct- meaning the people vote for the party or the person they prefer representing them while being indirect for the Upper House- meaning a college of representatives elected by the people directly elect members (elections by the elected in a state to represent the state). An analogy may be drawn here with the United States Federal government. Legislative power there is divided between the House of Representatives and The Senate- members of both Houses are elected directly by the people of a delimited constituency for the Lower House and the state for the Upper House post the Seventeenth Amendment in 1913.
However, this analogy has significant limitations. While the legislative House elections in the United States are important, they do not determine who the head of the government would be. The head of the government and the head of state in the US is the same person- The President of the United States. The Presidential elections are a separate election altogether- people across the country have the choice to vote between two major candidates for their President. The winner of the election is a direct representative of the sovereign will of the people. He forms his government- appoints his cabinet (high officials in charge of matters like Foreign Affairs, Defence, etc.) and is a uniquely powerful person. He can, for example, pass executive orders- bypassing the legislative bodies to enact a policy goal he had promised the people, select judges for a lifetime, and simply veto a bill (Bills require a signature by the President to become a law) otherwise perfectly procedurally passed by both the Houses of Legislature. In short, it means that the President and by extension, his government is independent of the Legislative body- meaning that it happens quite often that a President belongs to a Party and the two Legislative Houses have a majority of the opposite party- a government’s stability is not dependent on how many seats its party has in the Legislature. The President is the Chief executive of the government and he is at technical liberty to ignore all members of the Houses for important cabinet positions in government and has full security to function as the executive head without the blessings of the Legislature.
In India however, the President is the Head of State — a chief public representative who has certain duties of his own and is the ceremonial head of the Executive government. Real power and legitimacy, however, lies with the Prime Minister. The Prime Minister is the head of the cabinet ministry- technically elected by the Lower House (Lok Sabha or Legislative Assembly) legislative majority party internally. Thus, the Party winning the Lower House elections has both, powerful legislative powers and an executive government of their choice as the Prime Minister or Chief Minister and the cabinet ministry have to be elected members of the Lower or Upper House. In this regard, the Indian Parliament resembles the British Parliament- the leader of the party in majority in the House of Commons is usually the Prime Minister- representing both, his own constituency and the executive government.
There are fundamental problems with the contrary proposition- a President is not directly chosen by the people, under these circumstances, an overtly powerful President’s office is a betrayal of the people’s mandate in the Indian democracy. Political power must be checked by accountability- while the elected government faces regular elections and is subject to no-confidence motions, an almost perpetually deadlocked Upper House and a wide range of Executive scrutiny by independent institutions like the Comptroller and Auditor General and hefty judicial scrutiny on seemingly its every move, a President is only subject to the very cumbersome process of impeachment- a virtually impossible, unprecedented possibility, and a bare minimum judicial scrutiny provided that he enjoys the support of the people that elect him under Art. 52 of The Constitution namely- all members of Parliament and state legislatures (MPs and MLAs).
The extent of the role of the President has always been a contentious issue since the birth of this great Republic. Pandit Nehru representing a liberal ideology and vision of India, Indian civilization, and governance was India’s first Prime Minister while Dr. Rajendra Prasad- a traditional, robustly independent scholar was its first President. Differences arose particularly on the role of Dr. Prasad in the governance of India- Pandit Nehru strictly ascribed to the view that the President, much like the Queen of England is a figurehead with a limited role as he did not enjoy the direct will of the people and escaped strong accountability and scrutiny on the exercise of his very Constitutionally limited powers. In a way, it was the assertion that the elected Prime Minister and the cabinet ministry as the head of the government have true powers of governance, any recommendation by the government of the day- meaning the party enjoying a majority in the Legislature would be the policy that would mandatorily have to be endorsed by the President irrespective of his personal opinion- much like the role of the monarchy in England- a mere rubber stamp of approval on the true representative of the sovereign people. Dr. Prasad vehemently disagreed and stated that the President must have broader powers and cannot be reduced to a mere procedural afterthought. At its heart were crucially relevant fears. A President has the power to impose a state of National Emergency, she also has the power to dismiss governments if it does not enjoy a majority in Parliament, appoint governors for states at his pleasure and before 1993, even the primary power to select judges for appointment to Constitutional courts that find the government as a party in most cases. It was in Dr. Prasad’s heart that the union government of the day that is, the cabinet headed by the Prime Minister would be intimately involved in decision making but the ultimate decision on these very major issues would lie with the President’s wisdom as a theoretically non-partisan office. In essence, he wanted the President’s office to have the ultimate discretion on determining key executive matters as a union cabinet would generally want more power to accrue to it, and the wall separating the Legislature and the Executive wings of governance would be blurred which would corner the separation of powers principle (a principle cherished and desired in democracies to keep away the evil of concentration of powers- leading to a scope of abuse) to a ‘textbook only’ sphere.
It is simple for even a passive enthusiast of Indian politics to know which idea prevails now. Pandit Nehru’s vision with his personal charisma both within the Congress and among the people of India coupled with strict adherence to the Westminster model of Democracy is the one that, for better or worse thrives in India. The trident idea of public accountability, a directly elected executive to be supplemented by an unelected executive like the bureaucracy, and the presence of intellectual precedence in England find great resonance and is attractive and palatable as a system to a wide range of often conflicting schools of thought. It also finds acceptance since the 1950s by the Constitutional Courts which go on to rule in a string of cases spread across decades that a rigid separation of powers as in the United States between the Executive and Legislature was never expressed in the Constitution and a Westminster model as in England is the only model endorsed by the founders of the Indian Republic.
While court judgments can be overruled by larger benches, the 42nd Amendment of the Constitution containing as many as 59 changes to the original Constitution bought during the peak of the Emergency by the authoritarian Indira Gandhi government, among other extremely draconian and drastic changes, bought in an amendment to the Article that enumerates the powers of the President. While the unamended Article stated that ‘a Council of Ministers with the Prime Minister as its head would aid and advice the President’, the amendment added that the President shall act in accordance with the advice. This mandates the President to act only in accordance with the wishes of the cabinet- this reduces the President- now Constitutionally to a rubber stamp. No attempt has been made by subsequent governments to restore the original wording- showing passive acceptance at worst. Barring a few unfortunate, throughout the decades, the President of India has faithfully discharged his Constitutional duties.
There is very little discretionary power that the President enjoys. A President can send a Bill that has been passed by both Houses of Parliament back to the Houses for reconsideration as she has the power of suspensive veto after providing her wisdom and expressing her desire for amendments. The Parliament may deliberate on them and present a final version to the President for her assent- it is important to note that if no change is made after deliberation, the President has to mandatorily sign the Bill into law. However, the President has the power of pocket veto- namely, she simply does not sign the bill into law or delay her assent on a bill indefinitely. This has happened crucially in 1987 where a Post Office bill gave the government great powers of intercepting private communication. The President killed the bill by sheer inaction. The President can seek information from the Prime Minister regarding the governance of the Union. Crucially, when no political party or coalition of parties enjoy the majority in Lok Sabha, then the President has discretion in inviting the leader of that party or coalition of parties who in her opinion is able to form a stable government- while this has often been the bone of contention in States where the Governors have come under increased scrutiny for inviting party X over party Y, a similar situation thankfully has not arisen in the Union Parliament yet. The President is in charge of a ‘caretaker’ government- meaning the cabinet in its executive function during the Lok Sabha elections for running daily affairs of the country while the month-long elections take place. It is however telling that the President has the power to dismiss a government- that is, if a President finds that a party no longer enjoys majority support in the Lower House of Parliament, it is her constitutional duty to dismiss the government and either await a coalition to replace it or call for fresh elections- a President of a House that does not enjoy a majority is not bound by the aid and advice of the Council of Ministers. This is important as a situation that the United States faced after the 2020 elections- an elected government headed by the President almost did not recognize its own electoral defeat leading to a possibility of erosion of democracy will never happen in the Indian Republic and long may the citizens derive solace and comfort in that.
