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A case of presidential overreach

If the Indian presidency is not quite a decorative or ceremonial post, it is supposed to be a far cry from an executive office — it must not be allowed to be activist and set the terms for substantive policy-making, let alone be permitted to intrude into the parliamentary domain or, for that matter, into the executive sphere where the Cabinet is all powerful. The intent of the Constituent Assembly, the provisions of the Constitution, and democratic practice evolved over nearly six decades make this absolutely clear. By and large, heads of state in India have conducted themselves within the strict confines the supreme law and the theory of parliamentary government have laid down for them. When the Rashtrapati pits his constitutional and political wits against key decisions made by the Cabinet, not to mention Parliament, it certainly goes against the spirit of the Constitution and parliamentary government. The situation might have been otherwise had India's first President, Rajendra Prasad, prevailed with his point of view in the early 1950s; on certain occasions, notably during the controversy over the Hindu Code Bill, he "attributed to his office enormously greater powers than those given by the Constitution," to quote the scholar Granville Austin. But fortunately, it is now well settled that the position of the Indian President is analogous to that of the British constitutional monarch.

This is a time of overreach of roles by constitutional authorities, the Election Commission in particular. President A.P.J. Abdul Kalam's action of returning the Office of Profit Bill, duly passed by Parliament in the recent Budget session, for reconsideration by both Houses suggests he has now caught the contagion. Technically, he is within his rights, since Article 111 allows the President to return a non-money Bill once — but only once — to Parliament, recommending amendments if necessary. But substantively and contextually, his action amounts to throwing a spanner in the politics of the country. It is not that the President's thinking about the desirability of evolving "generic and comprehensive criteria" that are "just, fair and reasonable" and can be applied in a "clear and transparent manner" is without substantive merit. Indeed, this newspaper editorially took strong objection to the way Parliament was adjourned to enable the promulgation of a self-protective ordinance on the office of profit issue; and then criticised the Bill for "offending democratic sensibilities" by merely listing the specific offices held by sitting members and exempting them from disqualification without looking at broad categories that might qualify for reasonable exemption or advancing any general principle. However, the question the President has raised about the "soundness and propriety of law" of the retrospective nature of the Bill's exemptions and his suggestion that there can be India-wide application of the generic and comprehensive criteria (thus treading on the toes of the Legislative Assemblies of States and Union Territories) are questionable, if not unsound. The real objection to President Kalam's activism in returning the Bill to Parliament for reconsideration must be that, in the Indian constitutional scheme, it is decidedly not the business of the head of state to judge the constitutional-philosophical merit of legislation or to `guide' Parliament in its legislative business — whether it be the Hindu Code Bill of 1951 or the Office of Profit Bill of 2006. However high-minded the action might seem, through his ill-advised overreach President Kalam seems to have played into the hands of the main opposition party whose official spokesman has demanded that the Election Commission should now decide all pending complaints against MPs on the office of profit issue within a week! It is a piquant situation to which the Government and Parliament must come up with a mature and decisive response.

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