Opinion - News Analysis   

The President has no red cards

Harish Khare

He has no mandate to set himself as a constitutional referee.

Senior BJP leaders Atal Bihari Vajpayee and L.K. Advani address the media in the forecourt of Rashtrapati Bhavan on Monday. — Photo: S. Subramanium

ON MONDAY, the National Democratic Alliance leaders once again trooped up Raisina Hill to present one more memorandum to President A.P.J. Abdul Kalam. Once again the President granted the NDA leaders an audience. It is not known whether he asked these leaders why they had, earlier, disrupted Parliament on the opening day of the monsoon session.

This is not the first time the NDA leaders have deemed it necessary to march to Rashtrapati Bhavan, registering their opposition to this or that alleged infraction of the United Progressive Alliance Government. They have made a habit of it. Each such "march" is converted into a media event, with the magnificent Rashtrapati Bhavan providing the background to a partisan exercise. This is part of the larger strategy the BJP leadership seems to have decided upon of trying to involve constitutional functionaries — the Supreme Court, the high courts, the Election Commission, and the President — in wanting to score a partisan point against the ruling alliance.

On Monday, the NDA leaders proposed to the President that he 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 re-pass the proposed law. Given that the President has already used his (doubtful) discretion under Article 111 and has sent the Bill back for reconsideration, and that the Union Cabinet has already decided to have the Bill passed again, the NDA demand carries with it a suggestion that the President can do without the aid and advice of the Council of Ministers.

Not just content with this untenable proposition, the NDA leaders appeared bent on goading the President to by-pass the Council of Ministers. "In case the Government contend that the President can only seek advisory opinion on the aid and advice of the Council of Ministers, the question itself can be referred to the Supreme Court as to whether in the face of a patent illegality the President can seek the advisory opinion of the Supreme Court on his own."

This is a suggestion fraught with dangerous implications. The NDA suggestion is contrary to the stipulation of Article 74(1) as well as against the very concept of parliamentary system of government. Except in a very limited and defined area, the President has no discretionary powers to be exercised independent of the Council of Ministers. Constitutional experts are divided whether President Kalam's invocation of Article 111, without the benefit of advice of the Council of Ministers, was a correct reading of the Constitution.

The constitutional scheme of things cannot be understood in a manner as to suggest that the President can reserve for himself the right to send back for reconsideration laws passed by Parliament. In other words, the President has no mandate to set himself as a constitutional referee who would issue yellow and red cards to errant functionaries, the Council of Ministers and the two Houses of Parliament.

This is precisely the position the BJP rightly insisted upon on a number of occasions during its six years in power at the Centre. Even during Atal Bihari Vajpayee's 13-day prime ministerial innings, the BJP insisted on the primacy of the Council of Ministers (vis-à-vis President Shanker Dayal Sharma) knowing fully well that the government was about to be voted out.

Now the BJP leadership is pretending as if the President can and should act independently of the Council of Ministers. While it is open to the BJP's critics to argue that the party was never fully committed to constitutional democracy, President Kalam can be faulted for providing — if not indulging — the NDA crowd with opportunities for dragging Rashtrapati Bhavan into partisan politics, not always of the most redeeming kind.

In the coalition era, almost all constitutional offices are prone to take advantage of the political uncertainties, and seek to expand the scope of their power and authority at the expense of the executive. The higher judiciary is the prime example of this over-reach. Often this kind of activism is sought to be justified as a healthy caveat, necessary to produce the requisite checks and balances.

The net result has been paralysis in governance. It would be an unhappy day for the republic if an impression gains ground that the President is available to the Opposition for partisan purposes.

The President can be a source of sage advice and wise counsel to the Prime Minister, but he cannot allow himself to be goaded into thinking of Rashtrapati Bhavan as a rival centre of power.

The Zail Singh temptation needs to be firmly resisted.

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