(p.199) Appendix A: A Constitutional Outline of the Presidency (1950–87)
(p.199) Appendix A: A Constitutional Outline of the Presidency (1950–87)
The following narratives are based primarily on the memoirs of two presidents and the biography of a third by his son together with a few general works on the Constitution such as those of Granville Austin. Quotations are largely drawn from the memoirs and the biographies, but references outside of these have been included in the notes.
The conflicts between President Prasad and Prime Minister Jawaharlal Nehru were more substantive than personal, although Austin1 has imputed Nehru’s preference for C. Rajagopalachari as the first president (Mishra 1978: 156).2 The competition between Prasad and Rajagopalachari was reported in the newspaper Blitz.3 The prime minister reportedly fell in line only because his party preferred Prasad. Similarly, he wanted Vice President Sarvepalli Radhakrishnan as president in 1957, possibly because Prasad had informed Nehru of his decision to retire a couple of years before the end of his presidency. By 1957 Prasad, however, had changed his mind and Nehru ran into the opposition of Maulana Abul Kalam Azad and other Congress leaders over his desire to elevate Radhakrishnan. On 31 March 1957, the Congress parliamentary board approved Prasad as its party candidate and Radhakrishnan was constrained to agree to a second term as vice (p.200) president to delay his joining ‘a line of extinct volcanoes in Madras’ (Gopal 1989: 292).
It has been speculated that Nehru considered Prasad too conservative: Nehru could not understand Prasad’s astrological objections to the date of 26 January for the inauguration of the Constitution;4 he also disliked Prasad’s eagerness to inaugurate the rebuilt Somnath temple in Gujarat (Nehru wrote to the Gujarat chief minister that the unveiling of the temple with official pomp militated against the secularism of the Constitution). Prasad, in turn, accused Nehru of invidiously trampling over the religious freedom of Hindus through the Hindu Code Bill. Despite these clashes, Nehru was too much of a democrat to overlook his constitutional obligations: he religiously briefed Prasad every week and sometimes more often, he kept up a comprehensive correspondence with Prasad, and he often took advice from the president though its exact nature remains unknown. This did not apparently lessen President Prasad’s grouse that he was not consulted on several matters.
The conflict largely stemmed from Prasad’s refusal to equate the Indian president with his British counterpart. As we have seen in Chapter 1, the president had complained to the constituent assembly’s constitutional advisor B.N. Rau that the Constitution had not laid down in so many words that the president was bound by ministerial advice. We have also seen how within a few weeks of becoming the president, Prasad essayed a litany of queries in a paper titled Questions relating to the powers of the President under the Constitution of India:5 Could there be a situation within a Constitution requiring the president to act independently of his ministers? Did the president enjoy substantive administrative powers as head of the armed forces? Could the president influence the activities of several functionaries he formally appointed? Attorney General M.C. Setalvad affirmed the constitutional position, stating that the president’s refusal to abide by cabinet advice would trigger a constitutional breakdown (Prasad 1992a: 157).6 It is interesting to note that Prasad had also asked if the president could, on his own, return a reserved bill to a state legislature through the governor, appending his own suggestions to it. It is a measure of the cabinet’s broadmindedness that it too sought Setalvad’s advice in February 1950 on the president’s powers in assenting to state legislation. Perhaps, the inspiration for this was Governor Asaf Ali’s query to Nehru whether governors were bound by ministerial advice where it breached the Constitution.
(p.201) Despite Setalvad’s opinion, Prasad wrote to deputy prime minister, Vallabhbhai Patel (Sardar Patel), in August 1950 expressing his right to advise ministers not only on matters of detail, but also on matters of policy (Dam 2013: 203);7 as a version of Walter Begehot’s dictum of a constitutional sovereign’s right to advice, encourage and warn, Prasad’s stand was perhaps unexceptional; his departure from the beaten path was in his demand that a senior officer be posted to the president’s office to advise him on those matters that warranted a presidential discussion with ministers. Prasad also wrote to Patel that he interpreted the Constitution as directing the comptroller and auditor general of accounts and the chief election commissioner to report directly to the president who in turn was to submit their reports to the Parliament (Prasad 1990: 64–6).
We have also dealt with the Prasad–Nehru correspondence over the Hindu Code Bill in Chapter 7 of this volume. Nehru, in his reply, was forced to state that the president had no power or authority to go against the will of Parliament. Simultaneously, Nehru had consulted both Setalvad and Alladi Krishnaswami Ayyar in Madras (now Chennai). Ayyar (cited in Austin 2003: 23–4) pointed out that the president seemed to be seeing in every article of the Constitution where the word ‘President’ occurred, the conferring of powers exclusively on the president; Prasad was fastened to this interpretation as the words ‘council of ministers’ also did not appear in the article. The correct constitutional position, Ayyar claimed, was that Art. 74(1) which required the president to act in all matters with the aid and advice of his council of ministers was ‘all pervasive’. (This view too is erroneous because the president is required to act exclusively on the advice of the Election Commission in certain matters.) The views of Ayyar and Setalvad were shared by Nehru with his cabinet to which he added his own opinion that the president’s indirect election made no difference to his powers in comparison with those of the the British constitutional monarch. Despite these views, the fact remains that the orthodox resistance to the Hindu Code Bill—first voiced by President Prasad—ensured that the bill could not get enacted till six years later. Law Minister B.R. Ambedkar resigned from the cabinet over Nehru’s failure to intimidate President Prasad over the bill. Nehru’s Minister of Transport N. Gopalaswami Ayyanger advised Nehru to hold up the bill until after the general elections.
(p.202) This, as we have seen, was exactly what President Prasad had been arguing for as he felt that the issue was fundamental enough to require an electoral affirmation; moreover, even Setalvad had conceded that the president had a discretion in dissolving the parliament either on the prime minister’s advice or on his view that there was a patent ‘disharmony between the policy of the ministry and public opinion’.
The Congress leaders had always had a socialist predilection and Nehru had imbibed Harold Laski’s view (1933: 267; 1935: 299) that political equality could never be real unless accompanied by economic quality. Consequently, when various Congress chief ministers like G.B. Pant and Morarji Desai took up legislation to abolish the zamindari (landlord) estates, there was no basic difference between Prasad, Nehru, and Patel for the opinion that zamindari system had to go. Indeed, Rajendra Prasad had himself led Gandhi’s followers in their struggles for peasants’ rights in the 1920s; and in the constituent assembly, he had avowed principles calling for abolition of ‘distinction and exploitation’. But, even while Sardar Patel’s own ministry was working on the intricacies of draft zamindari abolition bills—particularly the issue of compensation—the zamindars themselves were busy seeking support for their cause in Patna, Lucknow, and New Delhi.
The maharaja of Chhota Nagpur hoped that Bihar chief minister, Shrikrishna Sinha, would commiserate with the plight of the zamindars; and not contented only with pleading before Patel, the affected Bihar zamindars turned their steps towards President Prasad, a fellow Bihari (Austin 2003: 75). They complained to him that the provincial government was bent upon extinguishing their rights without the compensation it had promised. The maharaja of Darbhanga, the biggest of the landlords, assured Prasad that they did not oppose the abolition but only wanted a just remuneration. Prasad at this stage, however, kept to his constitutional principles. He told those importuning him that, being a constitutional president, he had to act on ministerial advice. Prasad kept the cabinet in the loop about these delegations approaching him with their pleas.
But while Prasad, Nehru, and Patel agreed on policy, they differed in detail: disagreement cropped up over the amount of compensation to be paid. Nehru—all along for the peasant—was willing to concede the landlords only an unavoidable minimum; Prasad, at the other extreme, leaned towards a generous compensation (Austin 2003: 76–7); and (p.203) Patel seemed somewhere in between. Article 31 of the Constitution’s fundamental rights seemed to have been influenced more by its Left-leaning framers: it provided for compensation but left out words like ‘just compensation’ that would have invited judicial interference. K.M. Munshi had hoped that since the article required expropriation to be based on explicit principles, the courts would not ‘substitute their own sense of fairness’ or ‘judge the adequacy of compensation’.
Nevertheless, on 5 June 1950, the Patna High Court struck down8 the Bihar Amendment of Estates and Tenures Act of 1949 as unconstitutional. President Prasad had certified it after Setalvad’s advice that there could be no legal objections to it. Chief Justices James Grieg Shearer and J.J. Das, however, ruled that it contravened Art. 19(1) of the Constitution (it listed, inter alia, the rights to acquire, hold, and dispose of property) coupled with Art. 31, clauses (2) and (6). As it offended Art. 19 and imposed restrictions on the powers of all stakeholders in dealing with property (which could not be held to be reasonable or in the public interest), it was unconstitutional.
When the Bihar Assembly passed the Land Reforms Act of 1950, the zamindars bore down on President Prasad not to give his assent to it (such state bills required the assent of the president). First, Prasad rebuffed the landlords by asserting his constitutional position; then he questioned whether the president was not required to be satisfied that the bill answered the requirements of fairness and equity before excluding the jurisdiction of the court (Austin 2003: 83). The cabinet mulled over this presidential question for many days and ultimately opined on 25 August 1950 that in its view, the compensation was fair. They indicated that the president ought to sign the bill.
Prasad, who had obtained information from Patna through his own channels in the meantime, next raised his doubts on the wording of the bill in a letter he wrote to Nehru on 8 September. Seeing the president’s note, Patel asked Nehru to allow the law and home ministries to deliberate on the president’s contentions. He advised against a blunt response from the cabinet to the president’s queries. Prasad had also asked the attorney general’s opinion (this incidentally showed that a president could seek the views of the attorney general independently of his cabinet, which the author has used in this book to argue for a wider option before the president). Prasad (1992b: 77) asserted to Nehru that, ‘when I am asked to sign a document, I must satisfy myself (p.204) and not sign blindly’.9 Perhaps, the president had been peeved over his being brought into the picture too late in the day. Nehru, however, was unwilling to concede the sensitivities involved and informed Patel that the president’s note could not be circulated among the ministries as he had advised; the president was required, both from a practical and constitutional standpoint, to give his assent; Nehru was believed to have even threatened to resign if the president continued to prevaricate, even though Patel had deplored such a step. Faced with a veritable ultimatum, President Prasad ultimately assented to the bill on 11 September.
The Patna High Court followed up these difficulties created by a recalcitrant president by finally striking down the act itself to which the president had voiced so much opposition. It held that the varying rates of compensation for different categories of zamindars violated Art. 14 (right to equality).10 Moreover, even if the court could not examine the compensation issues in view of it being forbidden to do so under Art. 31(2), it could strike down the act as it had made no provision for raising cash to pay compensation as such. These were precisely the issues that President Prasad had flagged in his opposition to the bill.
The above episode was not the end to President Prasad’s chapter of opposition to his cabinet.
The Patna High Court’s invalidation of the Bihar Act hustled the work of the cabinet committee on Constitution set up to draft its first amendment. The genesis of this amendment lay in the rejection by the courts of three pieces of state legislation to curb the freedom of speech. In Bihar, the government sought curbs on a political pamphlet on the grounds of incitement to an offence. In East Punjab, an English language weekly was pre-censored in order to maintain public safety and order.11 The Patna High Court struck down the action of the Bihar government; Justice Sarjoo Prasad went to the extent of saying that a person could incite murder or a cognizable offence through the press or by words under his fundamental right to freedom of speech and expression as it was currently defined.
The East Punjab Public Safety Act of 1950 was similarly held invalid as pre-censorship interfered with the liberty of the press. But the biggest stimulus to the first amendment came from the Madras government: In 1949, it had declared the communist parties of Tamil Nadu, Andhra Pradesh, Kerala, and Karnataka as unlawful organizations; it followed up by banning Crossroads, a Communist publication. Romesh Thapar, (p.205) its publisher, challenged the Madras government’s action in the high court for infringement of his right to freedom of expression; from it, he appealed to the Supreme Court under Art. 32 of the Constitution. The Supreme Court held the Madras Maintenance of Public Safety Act of 1949 was ‘ultra vires’ the Constitution. It pointed out the existing inadequacy in the qualifying clause 2 of Art. 19, holding that: ‘Unless a law restricting the freedom of speech and expression is directed solely against undermining the security of the state or the over-throw of it, such law cannot fall within the reservation of clause 2 of Article 19.’12 The judgment registered in Home Minister Vallabhbhai Patel’s (Sardar Patel) mind as the one that ‘knocked the bottom out of most of our penal laws for the control and regulation of the press’.13
Thus, amendment to Art. 19 was set in train. Part of the initiative came from Law Minister B.R. Ambedkar who felt that, given the above judgments, the Constitution’s provisions relating to law and order required amendment. To this, Nehru added the need to amend the part of the Constitution that would facilitate zamindari abolition. He had been stung by the Patna High Court’s invalidation of the Bihar Act. These two different courses of action triggered by judgments on widely different issues were mingled into the first amendment process. We shall briefly consider the deliberations in the Constitution Amendment Committee and then Prasad’s observations on its draft.
The process of amending Art. 19 commenced with a note on the positions of the US and India on the right to free speech. It was suggested that the qualification of reasonableness be removed from the other freedoms of assembly, association, etc.; currently this qualification existed only for other freedoms but not for that of free speech that could invite the judiciary to read ‘reasonableness’ into it as well. Another suggestion was that the government should reword Art. 19(2) to restrict speech and expression for security of the state, public order, decency, and morality in place of slander, defamation, contempt of the court, morality, and state security that were the current qualifiers.
Ambedkar, however, opposed the first suggestion to remove the qualification of reasonableness as he felt that the Supreme Court would then import the ‘mischievous’ doctrine of ‘due process’ into Art. 19. He suggested placing reasonable restrictions on speech relating to liberal, slander, and state security. The home ministry recommended incorporation of public order and incitement to offence among the exceptions (p.206) to the right to freedom of expression; it also wished to drop the restrictive words ‘to over-throw’ the state in favour of a wider ambit, ‘in the interest of the security of the state’. Despite the law ministry strongly urging the retention of the word ‘reasonable’ in all clauses of Art. 19 and even adding it to the restrictions on freedom of expression, it was overridden by the committee members. They argued that deletion of reasonableness from the other freedoms which already existed, might provoke a political storm; hence it could be retained for those clauses; its addition to the clause on freedom of speech was, however, clearly unnecessary. The press, which got wind of the discussions, was critical that while restrictions on other freedoms had to be reasonable, this was not required for restriction on the freedom of speech; curbs on free speech did not have to be ‘reasonable’. It inveighed against the attempts to hem the freedom of speech with ambiguous qualifications like ‘danger to national security’, ‘friendly relation with foreign states’, ‘public order’, etc. (Austin 2003: 45).
On this part of the draft, President Prasad (1992b: 275) commented on 30 April 1951 that after reading the Supreme Court’s decisions he felt that ‘no case’ for amending the fundamental rights had been made out. The amendments were warranted only if it was difficult to read the impugned law into the framework of the Constitution. He criticized the suggested deletion of the words ‘tends to overthrow the state’ in relation to freedom of speech which he felt ought to be retained as a measure of abundant caution.
We now come to the second strand of the above amendment process which relates to property. Nehru suggested to the cabinet committee on Constitution that was already proceeding with the draft amendment to Art. 19, that Art. 31(2) should be amended to enable the government to prescribe different principles for compensating different classes of acquired property; the amendment should also ensure protection of existing laws to enable the government’s resumption of land, from judicial mauling. He suggested that a government’s ‘police-power’ article be inserted in the Constitution, to which Arts 14 and 31 could be made subservient. He suggested divesting the Supreme Court of an absolute power to determine limitations on the fundamental rights as that might condemn the executive to an interminable process of constitutional amendments. In reply, Ambedkar suggested a redraft of Art. 31 that would save people from being deprived of their property except by (p.207) authority of law and for a public purpose. While no property could be taken without compensation, a law that did not provide for it but had already been assented to by the President could not be invalidated.
Next, came a suggestion from the advocate general of Madras that a separate schedule should be created in the Constitution to include all those acts, assented to by the president, that were to be protected from invalidation on any grounds, including that of compensation. That was the genesis of the Ninth Schedule whereby, in the words of Justice Gajendragadkar, a device was created to ‘protect the Constitution from itself’!14 The cabinet committee also asserted that the main aim was to protect the existing and future zamindari abolition acts from judicial interference; hence, Art. 31 could continue to exist to confer compensation for acquired property other than zamindari and jagirdari. The limited purpose of saving zamindari abolition acts could be achieved by a new article, Art. 31(A), that said that nothing in the fundamental rights could invalidate laws for acquiring estates or rights in them.
We have already noted President Prasad’s objections to the cabinet committee’s comments on Art. 19. We now take up his comments on the part of the report dealing with property. In the beginning itself, he described it as regrettable that the fundamental rights which were sacrosanct and a veritable holy of holies of the Constitution15 were the very first being targeted; the current Parliament was a ‘provisional one’ and a constitutional amendment could only be effected by a two-house Parliament of which the lower one was elected by universal suffrage; hence, in his view, the amendment could be invalidated in absence of the procedure prescribed by Art. 368 of the Constitution; and as the house was about to conclude its session, there was little chance of an adequate discussion on the amendment.
On the issue of inserting Art. 31(A), the president counselled restraint; while the Bihar Act had been struck down by the Patna High Court, he observed that the Nagpur High Court had upheld another state’s bill on the same issue; this indicated that there was nothing wrong with the Constitution; it was the provisions of the particular law that were wrong. Therefore, it was necessary to change that law and not the Constitution. The president felt that the Supreme Court’s imminent verdict on the Bihar Act needed to be considered before rushing through the amendment. The president doubted whether the amendment would not raise more problems than it would solve (p.208) (Prasad 1992b: 277). Nehru, however, rebutted these propositions in the open Parliament. He said that the Parliament which had drafted the Constitution was competent to amend it. The bill eventually passed at 228:20, but Nehru had reckoned without Prasad.
The president again raised the issue of his powers during the interval between the bill’s passage and its arrival before him for assent. He wrote to Alladi Krishnaswamy Ayyar on the issues he had more than once flagged before: whether the Parliament could amend the Constitution when it did not have the two houses required by Art. 368 for amendment; whether he could assent to the bill exercising his power of removing difficulties mentioned in Art. 392; whether an amendment of fundamental rights was not unconstitutional as Art. 13(2) forbade the parliament making a ‘law’ to modify them; assuming that the amendment was, therefore, unconstitutional whether the president was still obliged to assent to it when he knew it to be ‘ultra vires’ and had sworn to protect the Constitution (Prasad 1992b: 69). Ayyar’s response was not known, but if given, was likely to have been on the same lines as his previous reply to the president’s similar queries. The president eventually signed the amendment on 18 June.
President Prasad could not win his debates with Nehru except perhaps on the Hindu Code Bill; but he had a pyrrhic victory of sorts when the Bihar Land Reforms Act, to the consent of which he had offered considerable resistance, was struck down by the Supreme Court in 1952. The majority of a five-judge constitution bench held the act invalid even after it had been placed in the Ninth Schedule by the First Amendment. It came to this decision by appealing to an entry in the concurrent list that envisioned compensation on principles that Bihar had not followed.
The country’s very first invocation of President’s rule in a state too did not pass without criticism from Prasad. In 1951, Nehru expressed his unhappiness to Punjab Chief Minister Gopichand Bhargava for the unseemly fights between his government and the party. The chief minister failed to keep a lid on the Hindu–Sikh divide and the behaviour of a Sikh minister, Gyani Kartar Singh. The Congress parliamentary board ordered Chief Minister Bhargava to form his ministry according to its wishes; Nehru is believed to have threatened to resign to bring the chief minister to heel. Bhargava defied both until the board ordered him to resign. The chief minister complied four days (p.209) later, but carried a letter to Delhi from the governor recommending President’s rule in the state.
President Prasad found the situation distasteful with which even Nehru seemed to agree. Prasad wrote to Nehru (cited in Nehru 1996: 301), ‘I intensely dislike suspending the normal working of the constitution in Punjab and assuming to myself the functions of the State government.’ He reasoned that there was no emergency in the state; the chief minister had resigned not because he had lost the confidence of the legislature but that of a ‘non-constitutional body’ like the Congress parliamentary board. The president decried this attempt to ‘interfere with the normal working of the constitution by producing an artificial emergency’ and ended with the ‘feeling … that we have created a very bad and very wrong precedent … [and] acted against the spirit of the constitution, although the action may be justified as being in strict accordance with its letter’ (Prasad 1992b: 73). Nehru tried to mollify Prasad by pointing out that there was no other course of action. The ministry, he complained, was losing touch with the public and the communal situation was passing beyond control. The central government was quick to revoke the proclamation of the President’s rule of 17 April 1952 when a Congress majority led by Bhim Sen Sachar was returned to power.
India’s first speaker, G.V. Mavalankar, was the third colossus in the trinity comprising Prasad and Nehru. In November 1950, Mavalankar disagreed with the Nehru government’s penchant for resorting to ordinances in place of introducing bills in Parliament. He was particularly unhappy about 21 ordinances being promulgated in 1950 which gave an impression that Parliament was being ignored (Lok Sabha Secretariat 2015: ii). Nehru’s response was that there could be no quarrel that ordinances would be invoked only in urgent situations; but he found parliamentary procedure often too slow and that it held up legislation. Nehru’s ordinances did reduce to 10 in 1951 and did not exceed 9 thereafter. On 28 July 1954, President Prasad wrote to the prime minister that he had heard an ordinance was on its way for his signature. He, however, thought that since the matter had been pending with the minister for over a year, there could be no reason why it could not wait for another four weeks till the commencement of Parliament (Austin 2003: 31).
Another issue to attract the president’s attention was the appointment of high court judges. In 1953, Governor K.M. Munshi exchanged letters (p.210) with Uttar Pradesh Chief Minister Govind Ballabh Pant about candidates for the high court. They discussed the suitability of Indian Civil Services officers for judicial appointment, Munshi’s views about district judges acquitting violent offenders to pre-empt the high court reversing their verdict, and so forth. Munshi’s action raised the issue of the governor’s ‘discretion’; President Prasad stoked it by observing that a governor had to ‘express his own individual opinion when he is consulted about the appointment of a judge of the state High Court as required by Article 217,’16 and not merely follow the chief minister’s advice perfunctorily.
Prasad clearly understood that the proposal of a high court appointment originated with the chief justice of the concerned court; from there it went to the state government and thereafter to the governor. The governor was to make his own recommendation on the basis of that of the high court and the state government. This was to go to the chief justice of India, then to the home minister and prime minister before finally coming ‘to me’. What Prasad was trying to emphasize was that the whole process was so designed that none of the high functionaries could claim his exclusive imprimatur on the selection process. President Prasad also emphasized that the correspondence between the chief minister and the governor was to be in writing and copies of that correspondence alongwith the chief minister views were to be forwarded ‘to authorities at this end’ for due consideration of all views. The subtext of the President’s advisory was clear: no single authority could claim finality in deciding the appointment of a high court judge.
We have already referred to Prasad’s address at the Indian Law Institute in 1960, where he raked up for the last time the question of a president’s powers. He thought it ‘undesirable to treat ourselves as strictly bound by the interpretations which have been given from time to time to expressions in England’. Press reactions varied from the favourable (Times of India and Hindustan Times)17 to the hostile (the CPI weekly New Age)18. Prime Minister Nehru, however, refused to give much weight to the president’s views and he in fact doubted that the president himself was serious about what he spoke as he had ‘always acted as a constitutional Head’.
While Radhakrishnan was not obsessed with his powers, like his illustrious predecessor, circumstances in his tenure were to conspire (p.211) in their far greater exercise than before.19 In his very first disposal of a mercy petition, he suggested the abolition of capital punishment. Nehru concurred in this sentiment and the home minister undertook a round of consultations with state governments. The president and the prime minister failed to convince; but Radhakrishnan seldom rejected a mercy petition during his entire tenure. His next initiative was to transfer the viceroy’s erstwhile residence in Shimla to the ministry of education that eventually came to house the Institute of Advanced Studies. Radhakrishnan followed this up by instituting twice-a-week public meetings to entertain petitions and grievances. The complaints were channelized to the appropriate ministry for action with a request for feedbacks.
Radhakrishnan’s accessibility as vice president had foreshadowed this measure; yet his newly inaugurated practice at the presidential palace was looked askance as a slight to an elected government; but Nehru was not paranoid. He in fact welcomed it as a gesture of openness and democracy. Radhakrishnan’s successors, however, discontinued this practice. When on 1 July 1962 Radhakrishnan landed at Kolkata, Chief Minister Bidhan Chandra Roy expired; and Radhakrishnan became a constitutional tutor to the governor, Padmaja Naidu (Gopal 1989: 329). He directed her to administer the chief minister’s oath of office to the most senior cabinet member and directed the latter to summon a legislature party meeting to select their new leader. Radhakrishnan was thus the progenitor of a correct procedure in filling a sudden vacancy in a head of government’s post, of which nothing had been said in the Constitution. Radhakrishnan also showed his bias and affection towards Indira Gandhi by nominating her to the Court of Delhi University.
These idyllic beginnings were forever transformed by the Chinese aggression from September 1962. While the first exchanges of fire had taken place even before Nehru’s October visit to Sri Lanka, Nehru had seemed undisturbed, seeking the president’s advice as late as 16 October on whether he should agree to be a sponsor of the Bertrand Russell Peace Foundation (Gopal 1989: 312). Four days later, the Chinese Army had penetrated deep into both, Ladakh and the North East Frontier Agency; Radhakrishnan’s rapid grasp of the whirl of events soon left him in no doubt about Defence Minister Krishna Menon’s lack of ability; he, however, directed Menon to bring the three chiefs of staff to explain the situation on ground ‘zero’ to a conference of governors then underway (p.212) in Delhi. At one stroke, thus Radhakrishnan exercised the president’s powers of direct contact with service chiefs about which Prasad had only sought opinion.
By 23 October, the president suggested to Nehru the removal of Menon from defence (1989: 313). The prime minister tried to argue that Menon was the only minister who knew something about defence; but the president dismissed it with the quip that whatever be Menon’s ability, he did not inspire the country’s confidence. Menon, for his part, did nothing to dispel the president’s unflattering impression about him. He seemed to exult in India’s reverses, according to Radhakrishnan’s biographer, and betook himself to Bombay (now Mumbai) for irrelevant engagements while Tawang lay under siege (1989: 313). It was president Radhakrishnan alone who commanded confidence in critical quarters; it was to him that the American ambassador, John Kenneth Galbraith, turned with the offer of military assistance (1989: 313).
Lieutenant General B.M. Kaul, the chief of general staff and corps commander facing the attack, too had spoken to the president of his troops’ military needs on 28 October. Radhakrishnan, therefore, questioned Menon’s view that military assistance was not required. Nehru tried to satisfy the president by enumerating a list of the required equipment that was being prepared; he, however, also tried to convince Menon that the need for assistance should be grasped. By 28 October, Nehru was communicating to the president that ‘we failed’, which was an indirect admission of the truth of the president’s assessment of Menon.
The nation’s strong misgivings about Menon, eventually well articulated by the president (1989: 313–15), resulted in the prime minister assuming charge of the ministry of defence himself on 31 October; but he retained Menon as a cabinet minister in-charge of defence production. Radhakrishnan wanted Menon out of the ministry altogether, but found Nehru still standing up for him. Menon’s gloating over the fact that he was still in the cabinet and ‘sitting in the Defence Ministry’ did, however, take the presidential gloves off finally. Radhakrishnan wrote to Nehru about Menon’s continued indiscretions, ‘Whatever the facts may be, it is unnecessary to state them in this blunt manner.’ Nehru tried to explain them away but both the president and public opinion itself continued to pursue him. The Opposition parties were baying for Menon’s blood; and the chorus of disapproval was joined (p.213) by all Congress chief ministers except Bakshi Ghulam Mohammed of Kashmir and Pratap Singh Kairon of Punjab. Finally, Indira Gandhi herself pleaded with Radhakrishnan to save ‘her father from himself’.
Then followed a famous episode: On 7 November, Nehru saw the president with a letter from Menon in which he claimed innocence but offered to resign. Radhakrishnan counselled the prime minister to advise the president to accept the resignation. Returning from the interview, Nehru informed his Congress Parliamentary Party that he was accepting Menon’s resignation; then he wrote the following letter to the president (1989: 315):
I enclose copies of two letters I have received from Shri Krishna Menon offering his resignation from government. I have already shown you these letters.
I propose to write to him accepting his resignation after I learnt your wishes in the matter. These wishes have been conveyed to him orally by you already. But I would be grateful if you kindly repeat them in writing.
By this, Nehru was clearly leaving the final decision to the president, perhaps hoping that the president would not commit himself. The president was, however, tactful enough to throw the ball back into prime minister’s court; having virtually forced Nehru’s hand, he now wrote as if to suggest that the decision had been Nehru’s with which he now agreed, He wrote (1989: 315), ‘As you said, in the circumstances, for the sake of national unity we have to accept Shri Krishna Menon’s resignation with regret. On hearing from you, a formal announcement will issue from the Rashtrapati Bhawan.’
After dislodging Menon, President Radhakrishnan continued to add heft to his role as a supreme commander of the armed forces. On a trip to the battlefront, he met formation commanders in forward areas, and addressed troops retreating under fire of the advancing Chinese. Seeing the evident lack of training and paucity of clothes and equipment, the president publicly lamented the ‘credulity and negligence’ of the government that had resulted in the current mess (1989: 316). Radhakrishnan’s outspokenness might have been helped by Nehru’s broadmindedness who acknowledged in Radhakrishnan ‘a great teacher from whom all of us have learnt much and will continue to learn’.
(p.214) The continued advance of the Chinese troops (who, the army men had assured Radhakrishnan, had been stopped) brought anxieties to the military command and a replacement of the army chief, in which the president became personally involved. He took the initiative in drumming up international support, telling visiting American senators of Chinese duplicity (1989: 316); if India failed, he warned, so would all Asia and hence, the US should do all it could to help India. When asked to respond to a rumour that Lieutenant General Kaul had been taken a prisoner by the Chinese, Radhakrishnan replied, ‘it is, unfortunately, untrue’. While Nehru requested US president, John F. Kennedy, for air cover, Radhakrishnan impressed his American interlocutors with the need for protection of cities, supply points, and other vital centres. He harangued an American delegation on the consequences of India’s defeat, even after the invaders had declared ceasefire on 21 November.
It was not that Radhakrishnan’s frankness in criticizing the government, while both he and the prime minister struggled with the crisis, did not afford a handle to the government’s detractors: Swatantra Party leader Rajagopalachari (cited in Gopal 1989: 318) mischievously suggested that the Constitution be amended to provide for the prime minister and his cabinet acting on the advice of the president, instead of the president acting on the advice of the prime minister! More serious was an attempt by the communists—bristling at Menon’s departure which Radhakrishnan had orchestrated—to sow discord between the president and the prime minister; even though he was personally close to Radhakrishnan, Bhupesh Gupta, a leading communist, protested to Nehru about the president interfering with policy (Gopal 1989: 317). Nehru did not deign to reply, but when a Congressman tried to voice similar misgivings, he was warned against vilifying the president.
The foreign press too picked up some of these inconsequential straws in the wind: it speculated that with a looming crisis and a declining prime minister, Radhakrishnan was likely to continue to influence decisions. The refrain ran, ‘Behind the gentle philosopher there stands, one suspects, a figure of political acumen and personal force’ (1989: 318) Such reports gained traction following rumours that in Rajagopalachari’s talks with Radhakrishnan and important Congressmen, the former had discovered opposition to Nehru’s policies. A confidential report of this was sent by Nehru to Radhakrishnan himself, who, in turn, showed it to Rajagopalachari; Rajagopalachari completely disavowed his role.
(p.215) Nehru encouraged Radhakrishnan to go abroad to raise India’s image and enunciate its foreign policy. While sticking to the broad contours of India’s non-alignment, Radhakrishnan was not one to read only from prepared texts. In Tehran, he spoke of the need for the Shah regime to move towards democracy if he wished to avoid revolution. He reportedly backed up this public address with a private homily to the Shah: ‘I say Shah you need a little more democracy here.’ Nehru marvelled that ‘President Radhakrishnan could say as much and got away with it’ (1989: 318–19). Then followed the highly successful trip to the US, where he spoke at the World Food Congress adding strength to the US’s ongoing relations with India (1989: 320). He, however, refused to be drawn into a discussion on Menon’s resignation which President Kennedy broached, and scotched the White House occupant’s thoughts whether Radhakrishnan could become the prime minister. Radhakrishnan wrung from President Kennedy a commitment from the US to India to assist India against China; the joint communiqué of their freewheeling talks envisaged a mutual defensive agreement, including training equipment and radar facilities for India, to dissuade a future Chinese attack. Kennedy agreed with Radhakrishnan’s approach that American aid should be geared to helping India stand on her own military feet.
Kennedy was less forthcoming on Pakistan, though Radhakrishnan assured him that both the countries would continue to seek a solution. He encouraged Kennedy’s aspirations of a nuclear test ban, and the latter in fact took the very first steps towards it while Radhakrishnan was still in the US. The American press read a lot into Radhakrishnan’s visit: The Washington Post described him as ‘a man to watch who was feeling his way towards a more meaningful role and the exercise of what was fast becoming a veto power without collision with the Prime Minister’ (1989: 322). It openly acknowledged Radhakrishnan’s large influence on Nehru; the New York Times vented a more extreme scenario in which ‘the center of gravity has begun to shift to the President with his residual control in time of emergency over the military and bureaucracy’ (quoted in Gopal 1989: 322). These newspaper comments might have impacted the influence Radhakrishnan cast on policymakers in Washington, and his trip was taken seriously enough by both Pakistan and China to evoke their criticism of it. But in India, the Left-wingers enunciated a conspiracy against Nehru by the New York Times; and Rajagopalachari praised the same newspaper for its shrewd observations.
(p.216) Communist criticism of Radhakrishnan’s speeches abroad greeted a returning president: ‘They are not consistent’, the communists alleged regarding India’s traditions. Nehru did not like the communists’ resolution, though he settled for the muted response of an informal answer to a formal reply. Nehru rushed to Radhakrishnan’s defence telling the Congress parliamentary party: ‘First of all, our President is well aware, as far as I know—and I know him fairly well—of our foreign policy, apart from the fact that he knows what should or should not be said on such occasions and in foreign countries.’ In the Lok Sabha and Rajya Sabha, Nehru expressed his support for Radhakrishnan’s speeches that had contributed to the ‘outstanding success of his visits’ (Gopal 1989: 327). The impression created, however, forced Radhakrishnan to explain that, while in the US and Britain, he had repeatedly cited Nehru’s leadership; and he assured a Swatantra Party delegation of his desire to play only a supportive role, perhaps in answer to Rajagopalachari’s repeated jibes. Nehru, too, tried to answer Radhakrishnan’s critics on the president’s foreign visits by himself suggesting another trip to Nepal. Radhakrishnan duly went, lectured the king on democracy and, as his biographer’s claims, helped improve India’s relations with a ‘paranoic king’ (1989: 327).
Jaundiced observers of the president–prime minister relations, however, were not to be fobbed off so easily. In 1963, they tried to make much of Radhakrishnan’s humorous, casual remarks that after Nehru, a president might take temporary charge of the government, set policy and administration back on the rails, and then make way for a democratically selected prime minister. Nehru of course paid scant attention to Delhi’s rumour mills.
The hands-on approach of the president in the Chinese conflict continued during the clash with Pakistan that began in the second half of 1965. At first, the president preached an understanding with China and Pakistan, to prevent escalation of the conflict. President Ayub Khan of Pakistan, however, put paid to these efforts of the Indian president by sending 3,000 guerillas into Kashmir. The Indian army retaliated, with Radhakrishnan’s approval, who conceded in a broadcast in Srinagar that attack could also be the best form of defence.
Seeking to mediate a ceasefire, UN Secretary General U. Thant met Radhakrishnan on 11 September to convey Pakistan Foreign Minister Zulfikar Bhutto’s greetings to him. Radhakrishnan, whose initial (p.217) appeasing tone had been welcomed by Sheikh Abdullah, Jaiprakash Narayan, and the communists, remained implacable on Pakistan’s demand for a plebiscite in Kashmir. The president, however, advised Prime Minister Lal Bahadur Shastri to accept a UN-sponsored ceasefire (Gopal 1989: 340).20 The president probably reasoned that, with Indian troops on Pakistani soil, peace negotiations at this stage would only redound to India’s advantage. Another reason for Radhakrishnan favouring the UN resolution was that it called for an end to infiltration into Kashmir which was thus an indirect admission of Pakistan having been the aggressor in the first place.
The international aspects of the conflict revolved around the president. Radhakrishnan informed the Soviet envoy to India, Ivan Benediktov that his government would accept mediation by the Soviet Union if the secretary general’s efforts failed; in the meantime, the Russians could do well to discourage Indonesia’s military aid to Pakistan. The US Ambassador to India, Chester Bowles, was, on the other hand, asked by the president to prevail upon Turkey and Iran to cut back their strategic supplies to Pakistan (1989: 340). At the same time, the president made no bones about his wish for an early ceasefire even as Indian tanks sped into Pakistani territory.
The president’s broadcast to the nation held out a fig leaf. He remained, however, in close contact with the service chiefs. His involvement and accessibility can be inferred from the fact that when the military commanders complained to him regarding the lack of intelligence about the enemy, Radhakrishnan immediately sought and obtained a detailed report from the government on the issue. The president’s roving eye was quick to detect discordant elements at a time of national unity; he advised the government to prevent the self-immolation of a Sikh leader, Sant Fateh Singh, on a local issue (1989: 341).
The diplomatic maneouvres culminating in the Tashkent Declaration pivoted around the president. The Soviet ambassador first passed a message to Radhakrishnan from Chairman of the Presidium of the Supreme Soviet Anastas Mikoyan and Soviet Premier Alexei Kosygin that the US was needling the Soviet Union to persuade India to agree to a plebiscite or even independence for Kashmir; hence, the Soviet leaders thought it would be best for the prime ministers of India and Pakistan to shrug off the UN sponsorship. Radhakrishnan acted as a conduit in passing this Soviet message to the Indian prime minister who was even (p.218) contemplating India’s walking out of the UN. The Soviet ambassador again met Radhakrishnan to tell him that the US was egging Ayub to demand an arbitration commission comprising the president of the ICJ, the Secretary General of the UN, and the president of the World Bank, in the negotiations at Tashkent (1989: 343).
Another foray into foreign affairs (though less successful than his visits abroad), was Radhakrishnan’s support of an India-sponsored agreement over Vietnam. He had been encouraged in this by Mikoyan during his brief stopover at Moscow. He broached the idea of policing of boundaries by an Afro-Asian force to the high commissioner of Tanzania (1989: 337). The ministry of external affairs initially supported it;21 it may have found the embarrassment it could cause to China much to its taste. The US was favourable to the idea and so was U. Thant. Although the Indian prime minister was initially keen to know whether the US would support Radhakrishnan’s proposal (to which he received a positive response), Shastri’s earnestness died away.
Indira Gandhi, as the prime minister, however, proved a more willing student (August to October 1966) of the president’s foreign policy initiatives. The latter had sounded out both the Soviet ambassador and the American vice president about reviving the Geneva conference to oversee de-induction of US troops and the inauguration of a united Vietnam under Ho Chi Minh. The president now proposed that Gandhi should reawaken the idea in a meeting with President Johnson and that India would take the initiative in the matter. The president would like to have had a gentle pressure exerted on the American president to stop bombing North Vietnam, in a behind-the-scenes meeting. The prime minister, probably missing the subtext of Radhakrishnan’s message, went public with her appeal to the US; but she at least followed the president’s direction (Thakur 1984: 243).
Rakhakrishnan’s boldness in foreign policy was again displayed when, in a broadcast on the eve of Independence Day of 1966, he urged efforts to put India’s relations with Pakistan and China back on track. It was only a week before that the foreign minister had negated the idea of a resumption of talks with China. Much of Radhakrishnan’s authority in foreign affairs flowed from the fact that foreign governments continued to look upon him as the main point of reference. Radhakrishnan’s tumultuous success in the Soviet Union, which powerfully helped the Indo-Soviet agreement on military assistance, included, it is true, a large (p.219) measure of personal rapport between the president and Soviet Premier Nikita Khrushchev;22 but that the Indian president stood above Soviet party-politics became evident when Khrushchev was deposed a month after Radhakrishnan’s visit: The Soviet diplomatic establishment directed one of their senior envoys to meet and clarify to the Indian president that Radhakrishnan’s work had not been undone by the change of a Soviet leader.
Perhaps Radhakrishnan’s most significant role was in the selection of the prime ministers upon Nehru’s death; and the episodes merit some detail as being illustrative of a president’s powers when an incumbent prime minister dies in harness. Radhakrishnan’s clear-headedness in such matters had already been heralded by his masterly direction of events on Chief Minister B.C. Roy’s death while in office. When, on 23 May 1964, the president was informed of Prime Minister Nehru’s ill health, Radhakrishnan had to consider his course of action in the event of a prime ministerial vacancy. The Constitution did not provide for an executive without a prime minister. Radhakrishnan decided to speak to Lal Bahadur Shastri as being the best qualified to succeed Nehru. He rightly presumed that in giving Shastri the charge of external affairs as well as atomic energy which Nehru had hitherto held, the prime minister had sent a signal; now Radhakrishnan sounded out to Shastri who agreed to step into the prime minister’s office if such a need arose.
This was a long-term decision, however; immediately on learning of Nehru’s demise, he went to the prime minister’s house and informed Gulzarilal Nanda, the senior most member of the cabinet, that he would swear him in as prime minister in the afternoon. Subsequently, the cabinet secretary informed the president that the very same morning, the cabinet had decided to nominate Nanda as prime minister following Nehru’s incapacity. Gopal (1989: 330) writes, ‘But Radhakrishnan had already informed Nanda of his own decision to the same effect after Nehru’s death.’
When Nanda was sworn in, Radhakrishnan told him that his incumbency would last only until the election of a new leader by his party. Upon the president’s directions, the transient nature of the current arrangements was explained to the media. President Radhakrishnan of course stayed away from the succession struggle between Shastri and Morarji Desai but he was quick to shoot down Nanda’s desire to have the elections postponed by two months. Shastri, on being (p.220) elected, requested the president to intercede with Desai to join his cabinet which Radhakrishnan refused to do; but when Shastri suggested Krishna Menon’s return to the ministry, the president put his foot down informally, though firmly enough to dissuade the prime minister. It was a reenactment in a different time and age of Queen Victoria’s dislike of Palmerston!
A more interventionist role was in store for the president when Lal Bahadur Shastri himself expired in Tashkent on 11 January 1966. As on the previous occasion, the president sent for Nanda, the most senior cabinet minister, who was told again, like on the previous occasion that he was the prime minister only until the Congress parliamentary party elected a new leader (1989: 344). On the same day, Gandhi met the president with the news that Nanda had contacted her to know whether she had decided to throw her hat into the ring. According to Gopal (1989), Radhakrishnan confided to her that he would help her and advised her to remain non-committal in the meantime.
Of the four contestants, the president regarded Nanda as unequal to the post and Desai as too hardened in his views; he had not been impressed by Y.B. Chavan’s record in Delhi and, although no unabashed admirer of Indira Gandhi, had appreciated her footwork during the language agitation. Besides, she carried the halo of a world leader’s daughter—factors that impelled Radhakrishnan to help her step by step. Fending off Krishna Menon’s attempts to canvas for Nanda, he was happy to learn of Congress president Kumarasami Kamaraj’s tilt towards Gandhi. So he quietly warned Gandhi of Menon’s likely perfidy and counselled her to court Kamaraj’s support (1989: 346).
It was upon a signal from the president that Gandhi finally declared her candidature when it became known that events were swinging in favour of Nanda or a possible contest between him and Desai. The crucial help that Gandhi received was from Kamaraj; and Kamaraj, in turn, had proffered that support in deference to Radhakrishnan. Gopal (1989: 346) quotes, ‘You told me that she was the best … the most broadminded person … and I worked on those lines’. When, on 15 January, eight Congress chief ministers declared their support for Gandhi, she gratefully acknowledged Radhakrishnan’s role.
Radhakrishnan’s actions in internal crises never showed better than during the language agitation. When on 26 January 1965, Hindi was (p.221) declared the official language of the Union, the president at first suggested to Prime Minister Shastri that he should give an ‘unambiguous’ assurance that English would continue as an associate official language as long as the non-Hindi-speaking citizens desired it. When Shastri prevaricated, two members of his government, both from South India, resigned. Shastri duly approached the president with their resignations. Radhakrishnan did not accept them, and, instead, sent back the prime minister with the advice to appease the concerns of the South. When, however, Shastri came back with the excuse that the cabinet was unwilling to commit itself, Radhakrishnan rebuked him for his ‘pro-Hindi’ leanings, while Indira Gandhi was alone making a solitary effort amidst the riot-hit areas of the South. ‘You will lead the country to ruin and disintegration’, the president’s biographer reports Radhakrishnan as telling the prime minister (Jai 2001a: 124).
Radhakrishnan kept up an undercurrent of criticism of the government for doing too little and too late during the language agitation. After the prime minister, it was Home Minister Nanda’s turn to face the president’s shafts. Thereafter, in a complete reversal of the so-called British tradition of the ‘speech from the throne’ being written by the cabinet, Radhakrishnan forced Shastri to include a paragraph that the president had himself drafted in the president’s address to Parliament, reiterating Nehru’s earlier assurances on the official language and even calling upon the Parliament to petrify it in a new law.23 The temper of the agitation cooled immediately.
It was not that Radhakrishnan remained didactic and admonitory only during a crisis. His tone remained critical even in the government’s day-to-day affairs. All of this was possible because of Radhakrishnan’s unassailable position as the tallest Indian statesman of the day, to whom the mightiest could turn for comfort and help. The nation’s leaders made a beeline for his bedroom to profit from his counsel. Shastri and Indira Gandhi, whom the former had made his information and broadcasting ministers, fought between themselves before the president who gently mediated their quarrels without descending into party strife (Mishra 2002: 22).24 Sheikh Abdullah sent messages from his incarceration to Radhakrishnan who duly passed them on to Shastri; Sant Fateh Singh was admonished not to cause discomfiture to the government while it was locked in a war with Pakistan. Rajagopalachari pestered the president over censorship of some of his articles under the (p.222) Defence of India Act; Radhakrishnan interceded with the home minister to withdraw the censorship (Gopal 1989: 342).
The president’s forthrightness would occasionally take the shape of reprimands. When Vice President Zakir Hussain wrote to Radhakrishnan about the government’s goof-up of a rich private endowment for Urdu poetry, the president wrote to the prime minister that ‘by such bungling we are losing goodwill and financial support for worthwhile projects’ (1989: 332). He asked the prime minister to enquire into the mess and sort things out even at this hour. Even when Gandhi took over as the prime minister, Radhakrishnan continued to receive deputations from the Nagas25 and grievances of state governments against the centre, on occasion advising the prime minister what ought to be done. Reacting to Fateh Singh’s requests, the president egged on the prime minister to come to a settlement till she agreed to divide Punjab. He prevailed upon the prime minister to respect the parliamentary convention of her father’s time in not nominating as members of the Rajya Sabha those who had failed to secure seats through elections.
The president also acted as a veritable mediator between Gandhi and Kamaraj when the former devalued the rupee in 1966 which Kamaraj disliked. At the prime minister’s request, Radhakrishnan asked Kamaraj to appreciate Indira Gandhi’s difficulties (some of which were at least owing to the US’s arm-twisting) (1989: 350); the president suggested to Gandhi that she should patch up with Kamaraj by offering him the deputy prime ministership; she duly offered him the home minister’s post, ‘as you advised, I did it’ (1989:350). And the president comforted the prime minister when she was criticized by both her party and her opponents over her gingerly first steps in foreign policy.
Radhakrishnan’s critical tone was not confined to his remarks in government files and discussions behind closed doors; it spilled into the public domain. Even during Shastri’s regime his speeches across the country had been often quite severe. He did not soften even after Indira Gandhi’s assumption of power as he regarded her as his pupil to be trained in the art of governance. He criticized the unruly behaviour of some legislators as that would cast a negative influence on the youth of the country; he admonished political parties to select candidates with impeccable credentials, implying that they did not come up to his standard. He pilloried the mishandling of the country’s economic conditions that condemned it to a perpetual dependence on foreign countries (p.223) for its food. This external dependence, he rued, was causing India to lose its willpower, and hence its self-esteem. Condemning the prevalent environment of violence throughout the country as a ‘discourtesy to the human spirit’, in one address in March 1966, he trained his arrows at the dishonesty and corruption rife in the country (1989: 349).
On the eve of Independence Day of 1966, Radhakrishnan spoke freely of the downslide in various spheres (1989: 351). He repeated his distaste for agitations, bemoaned the poor quality of legislators, and even pulled up the Gandhi government in not showing zest against corruption. He did not find action taken against anti-socials adequate enough and doubted the wisdom of imposing austerity on the humble while the high and mighty continued to wallow in pomp. The president was at his sarcastic best when the home minister, unable to control unrest over cow slaughtering in Delhi, resigned. The president likened the situation to that of the Greek chorus that helplessly awaited an expected cataclysm to overtake it.
Although Mohammed Hidayatullah presided over the highest office of the land for only 35 days, the constitutional expert in him found errors of the government that he pointed out and rectified. In 1969, a money bill just before its introduction in the Lok Sabha was presented to the president (Hidayatullah 1981: 238). Under Art. 117 of the Constitution, such a bill cannot be introduced in the lower house of Parliament without the recommendation of the president, even though that recommendation is a formality. This bill, however, even before its introduction in the Lok Sabha, already bore the words ‘I assent to the Bill’, under which the president was required to sign. Actually the president is required to assent to the bill only after it has been passed by both houses and presented to him along with the certificate of two secretaries that the required conditions had been fulfilled. The government quickly acknowledged the faux pas and the president signed his recommendation after it had been corrected.
President Hidayatullah records in his memoirs another small but significant incident that showed his mastery of the Indian Constitution. When Hidayatullah signed as ‘President’, Law Secretary R.S. Gae objected that he should have signed as the ‘Chief Justice (p.224) of India performing the functions of the President of India’ (1981: 239). Hidayatullah disagreed, quoting the instance of John Tyler who succeeded General W.H. Harrison as acting president of the US who refused to call himself an ‘acting president’. President Hidayatullah found the suggestion ridiculous: if the president had been succeeded by the most senior judge of the Supreme Court instead of chief justice (owing to the absence of the latter) this piece of advice would have required him to declare himself as ‘The senior-most Judge of the Supreme Court available in the absence of Chief Justice of India, performing the functions of the President of India’ (1981: 239). The Constitution, as President Hidayatullah rightly pointed out, says that there shall be a president of India, which could not, obviously, be substituted by any other appellation.
The behaviour of another acting president of India, Basapa Danappa Jatti bordered on the opposite spectrum of constitutional propriety. We have already referred in the book to his reluctance to proclaim president’s rule in several Congress ruled states on the advice of the Janata party that had been swept to power in the 1977 general election. The principal reason behind this move seemed to have been the desire of the Janata party to ensure an election to the office of president that was in accordance with its wishes. This would not, however, have been easy as the presidential electorate comprised the elected members of all state legislatures, including those held by the Congress.
At first, Home Minister Charan Singh requested the Congress chief ministers to advise their governors to dissolve the state assemblies and hold fresh elections; he asked them to volunteer what he could otherwise force on them. The ostensible reasons that were advanced were that the ‘people’ looked askance on these governments continuing in power when their party had already been defeated in the general election; and that constitutional experts were of the view that where a legislature did not any longer reflect the wishes of the electorate, it was necessary to appeal to the ‘political sovereign’ through a fresh election26 (the terminology in the letter had clearly an Ansonian ring about it and is an instance of a reference being made to British constitutional theory by Indian politicians).
(p.225) The assemblies targeted by this move, however, filed suits against the central government under Art. 131 of the Constitution. The Supreme Court pronounced in favour of the centre. Since the chief ministers did not comply, the president issued a proclamation under Art. 356 dissolving the state legislative assemblies, after the Supreme Court had delivered its verdict. The role of the president in the whole affair was revealed in the last para of the Supreme Court’s judgment27 where Justice Goswami writes:
I part with the records with a cold shudder. The Chief Justice was good enough to tell us that the acting President saw him during the time we were considering judgment after having already announced the order that there was mention of the pending matter during the conversation. I have given this relation the most anxious thought and even the strongest judicial restraint which a judge would prefer to exercise, leaves me [with] no option but to place this on record hoping that the majesty.of the High Office of the President, who should be beyond the high watermark of any controversy, suffers not in future.
President V.V. Giri’s down-to-earth nature showed in the suppression of black marketing and arrest of traffickers in Andhra Pradesh under his direct supervision, even when he was holding the highest office of the land. But he also raised his constitutional hackles over the supersession of judges in 1973. On 24 April, the political affairs committee of the cabinet decided to appoint A.N. Ray as the new chief justice of India in supersession of Justices J.M. Shelat, K.S. Hedge, and A.N. Grover who were next in order of succession to retiring Chief Justice S.M. Sikri. Prime Minister Indira Gandhi, however, ran into opposition from Giri over the supersession. The president professed reluctance to sign the appointment papers of A.N. Ray that were presented to him on 25 April 1973. The president was not only doubtful of Ray’s ‘suitability’ for the post but also mindful of the protests that the supersession would undoubtedly engender.
To placate the outrage of the public, he suggested the appointment of judges Shelat—the most senior judge after Chief Justice Sikri, who was to retire after two months. This would give the government two months’ breathing space in which to prepare the public for the (p.226) supersession of Justice Hedge, who stood next after Shelat in seniority. Seeing the president demur, the prime minister called in Law Minister H.R. Gokhale who interceded with the president that no Constitution of the world mandated the appointment of only the most senior judge as the chief justice. He also pointed out to the president that Art. 124 of the Constitution spoke about consultation with the chief justice of India on the appointment of ‘a Judge other than the Chief Justice’; it in no way prescribed that in the appointment of the chief justice himself, the outgoing incumbent of the post was required to be consulted.
The president was not convinced probably because consultation with a retiring chief justice about his successor had become a convention even though not prescribed by the Constitution; and he advised a reconsideration of the appointment. The political affairs committee met again the same afternoon and tendered its reconsidered opinion which was the same as the first. The president then signed Ray’s appointment. He also wished to send replies to the resignation letters of the four judges—Sikri, Shelat, Hegde, and Grover—which had been tendered to him, regretting the turn of events. Giri was, however, prevailed upon by the law minister and the home secretary to desist from this communication of the president’s personal regrets to the resigning judges.28
Neelam Sanjiva Reddy
This section analyses President Reddy’s eventful tenure29 from two angles—his role in the constitutional crisis of 1979 and as a constitutional check on the acts and omissions of the governments that worked in his tenure. The section analyses his second role first before examining the events of 1979 in minute detail.
Neelam Sanjiva Reddy revived Radhakrishnan’s critical note somewhat, though it is doubtful whether Radhakrishnan would have at all agreed to some of the actions that Reddy ultimately assented to with reluctance. In a December 1978 speech in Madras, President Reddy (1989: 16) pointed out that C. Rajagopalachari (at whose birth centenary event, the president was making the speech) had kept his sons and daughters away from his public life. This speech was not liked by Prime Minister Morarji Desai, who felt that these remarks of the president were directed at him; Desai’s son’s activities while his father was the prime minister had attracted public attention. When accosted by the (p.227) prime minister, however, President Reddy stuck to his position that private relationships ought not to impinge on public responsibilities. He reminded Morarji that he had drawn the latter’s attention to the contacts of some of his close relations that had not redounded to the prime minister’s credit. Mixed with this was some of the president’s plainspeak about a shortfall in government’s performance and Morarji’s own reluctance to abide by the advice given by him.
President Reddy recalled how he had advised Desai against the appointment of V. Shankar as his principal secretary. Shankar had built up extensive business interests over a decade after he had retired from government service and the public was bound to, therefore, view the appointment with disfavour. Although Shankar had disavowed all his business connections after his reappointment, his visits to Iran, and forays into the activities of various ministries had not helped settle apprehensions (1989: 17–18).
The Shah of Iran’s special interest in a certain band of businessmen during his visit to India had also raised eyebrows (1989: 18). When this was followed by the prime minister’s son Kanti Desai’s visit to Iran, there was much press speculation about the goings-on. But when Morarji Desai himself planned a stopover in Tehran during his visit to the US, the president bluntly conveyed his ‘unhappiness over these Iranian connections’ (1989: 18). The president could not understand why the Shah of Iran was not being invited to New Delhi if he was so eager to discuss the Afghan issue with India. Reddy could see no reason for an Indian prime minister undertaking two visits to Iran on the heels of his son Kanti Desai’s and his secretary, V. Shankar’s sojourns in the same capital. The President was clear that it did not behove a prime minister to cheapen India’s standing by these visits.
In July 1977, the prime minister wrote a letter to Vengala Rao, Chief Minister of Andhra Pradesh, supporting the raja of Challapalli in his claims to exempt some of his lands from the Land Ceiling Act. Desai was rapped on the knuckles by the president for overstepping his brief; but the prime minister persisted with the request before Rao’s successor, Chenna Reddy. When the president insisted on seeing Desai’s correspondence over the issue, the prime minister prevaricated; but when the chief minister of Andhra Pradesh himself tabled the correspondence in the state legislative assembly, Morarji Desai sent the letters for Reddy’s perusal (1989: 19).
(p.228) The president had another duel with the prime minister over his son’s activities. The chief minister of Andhra Pradesh reported to Reddy that the prime minister’s son had requested him to tender a mining lease to a certain person in return for a ‘suitable’ contribution by the latter. When President Reddy confronted the prime minister with this incident, Morarji Desai replied that Rao might have been lying. President Reddy writes, ‘I must say that I lost my temper so much so that I asked him with some acerbity if, in his view, Kanti was the only truthful person’ (1989: 19). The president records that the prime minister, however, rang him up after the meeting to confirm that what the president had said was correct. This became another occasion for the president to remind the prime minister that his son’s business associations were speedily becoming an embarrassment not only to the prime minister himself but also to his government (1989: 19).
The president also objected to Desai’s decision to declare India’s renouncement of all nuclear tests, at a special session of the Disarmament Conference (1989: 19–20).30 However, Desai was not to be deflected from his stand, informing the president that he had discussed the issue in Parliament.
During the spring of 1980 the lieutenant governor of Delhi reported to the president that administration of the union territory in conformity with the Delhi Administration Act of 1966 was impossible. He, therefore, recommended the dissolution of the Delhi Metropolitan Council and suspension of a part of the Delhi Administration Act. He charged the executive council with incompetence and subversion of the provisions of the act. More importantly, he advanced the by now dubious reason that the Lok Sabha elections of January 1980 having returned the opposition to power in the Delhi Metropolitan Area showed that the executive council no longer commanded the confidence of the people. The Janata government was being hoist with its own petard! The president realized that this last reason was the main one for the recommendation, as the legislative assemblies of the states ruled by Janata Party had already been dissolved after Indira Gandhi’s return to power, the only exception being the Delhi Metropolitan Council (1989: 101). At this juncture, President Reddy did not oppose the dissolution of the Delhi Metropolitan Council for a period of six months from 21 March 1980.
On the lapse of six months, in September 1980, the lieutenant governor sought an extension of President’s rule by another six months (p.229) till 19 March 1981. The reason quoted was that the administration was busy with the decennial census, revision of electoral rolls, and various measures that were halfway through. A third extension took place from March to September 1981; the lieutenant governor’s excuse this time was that Delhi was prone to floods during September and October and communal disturbances were feared in the Hindu and Muslim festivals of October and November.
The president’s patience had frayed by this time: festivals and floods in Delhi were annual occurrences and were, therefore, obviously flimsy grounds to justify the continuation of President’s rule. The president, however, found even the grounds advanced for the previous extension untenable: as the administration was aware that the decennial census was slated for February–March 1981, it could have arranged for elections either before or after that event; neither could the plea of revision of electoral rolls hold water as this was a continuous process (1989: 102). The president, however, decided to agree to the lieutenant governor’s latest recommendation as the press has reported that the home ministry was planning early elections for Delhi. In approving the extension, however, the president made sure to convey his hope that the home ministry intended to hold elections at an early date as reported by the press; ‘the President trusts that it will be done before the expiry of the period of the order now to be issued’, so ran the presidential message to the home ministry (1989: 103).
President Reddy records his astonishment when, despite these warnings, the lieutenant governor again proposed a fresh extension of President’s rule from March 1982 for six months; the excuses, which the president found specious, were the rigorous revision of electoral rolls then underway, the administrative problems arising from big migration into new resettlement colonies in and around Delhi, and the administrative reforms then in full swing that could apparently brook no interruption. The president wistfully records that he had no choice but to accept the government’s decision. He rued that he had been taken in by the false assurance of an early election in Delhi that had been artfully put out in the press to quell public resentment (1989: 103).
The president, however, was more successful in asserting his rights as head of the state in the matter of foreign visits which the government sometimes tried to change without keeping him in the loop. When in June 1981, President Reddy received an invitation from the queen of (p.230) England (which was routed through the ministry of external affairs) for the marriage of the heir to the British throne, Prince Charles, he decided to accept the invitation. The president soon received soundings, however, that Prime Minister Indira Gandhi and her family too were planning to visit London for the wedding. The president found it odd that the government had not discussed the invitation extended to the president by his British counterpart; he, therefore, ordered his secretary to make the arrangements with the government for the presidential visit to Britain.
But coming to know of this, Foreign Minister P.V. Narasimha Rao met the president to persuade him to drop his visit for the wedding. President Reddy, however, stuck to his position that as head of state he could not turn down the invitation extended by another head of state for so poignant an occasion; he observed that the prime minister, on the other hand, could surely have no serious discussions even on the sidelines of such a glittering social occasion; but despite this if the prime minister also wished to attend the wedding, he found no reasons to object but he would, under no circumstances, put off his own visit (1989: 57–8).
When the minister countered that both the president and prime minister being out of the country would not be proper, the president made it plain to him that his decision to go to London stood unaltered; the government should accordingly make arrangements for the presidential trip. The president also conveyed his misgivings over the prime minister not discussing the issue personally with the president if she felt so strongly about his visit. Instead, the government had lain fallow and woken up to the matter when it was too late. The president made no bones that what had irritated him was not the prospect of his having to forego a brief trip to London (which he had earlier visited several times), but the cavalier manner in which a state invitation to the president had been treated (in dismissing the pretext of both the president and prime minister being absent from the country, Reddy alludes to the governor general and prime minister of Australia also participating in the royal wedding together at London). The president had his way and attended the wedding of Prince Charles (1989: 58–9).
This was not the end of the matter, however; President Reddy recalls in his memories that on his return from London, ‘tendentious’ reports came in the press that the presidential visit had cost the government (p.231) Rs 50 lakh (at the then rupee value); and that the Indian president had been barely noticed by the British press (1989: 59). The president took umbrage at this, suspecting it to be an ‘inspired report’ in view of the opposition earlier voiced to his visit. He thought he had indulged in no extravaganza whatsoever (having taken minimal staff and put up in the Indian high commission instead of in a hotel), and felt that refutation was called for.
Moreover, the mention of his visit in the English dailies (some of which carried his photographs as well) disproved the allegation that the British media had ignored the president’s visit. The president, therefore, saw to it that the ministry of external affairs, which was responsible for president’s foreign tours, released a press note to state the factual position. Prodded by the presidential office, the foreign office spokesman had to issue a press brief, describing earlier press reports of expenditure incurred in the president’s visit as ‘grossly exaggerated’ (1989: 59).
An Indian president is always in an advantageous position in the asymmetrical situation of a caretaker ministry confronting an elected president; the advantage increases even more when the caretaker ministry does not command the confidence of the lower house. Such a situation persisted for nearly five months from August to December 1979, when the Lok Sabha had been dissolved and Charan Singh led a caretaker ministry. During this period, President Reddy was zealous to ensure that Charan Singh did not stray away from routine administration into policymaking or in taking major decisions. Thus, he shredded Singh’s idea of reserving jobs in government service for backward classes. Although the prime minister could have flaunted a constitutional provision that allowed the government to take such a step, Reddy was clear that he would not allow a caretaker prime minister to do so without an express mandate from the people (1989: 44–5). The issue was, however, apparently dropped before the president could have got an opportunity to flag it down formally.
Charan Singh next toyed with the idea of reforming electoral laws for state funding of elections. He suggested to the president an ordinance for the measure even after the Election Commission had notified the elections and nominations had also been filed. The president refused. Charan Singh tried to argue that his government was spending more on other projects than this particular electoral reform cost, but failed to persuade the president. Reddy was firm that the issue was not the cost (p.232) of the measure, but the principle of a caretaker government desisting from major policy initiatives. He therefore had to issue a veiled threat to the government not to persist with the proposal that required a publicly mandated regular ministry to consider. Similarly, President Reddy stymied a long term foreign commercial contract on the same ground of absence of jurisdiction (1989: 45).
President Reddy laid down a precedent of sorts in refusing to sign judicial appointments during the interregnum. In the last week of December 1979, his assent was sought to the appointment of some high court judges. The president’s reasoning was that a new ministry would be in office within three weeks, and hence the appointments were best left to the new cabinet. The caretaker ministry was advised against a step that would arouse criticism, which Charan Singh had to accept (1989: 46).
Reddy was less successful in preventing the promulgation of president’s rule in Assam and Delhi after the new government of Indira Gandhi had taken office. But he did try to put spokes in the wheel. He recalls in his memoirs that when he was on a trip to Assam in October 1981 (then under President’s rule) a group of Assamese legislators of the Left Democratic Alliance (LDA) met him; they informed the president that the alliance commanded a majority and so could form a government. They apprehended that despite their claim the governor might instal a minority Congress ministry in office. The erstwhile Congress (I) chief minister, Taimur, on the other hand, too presented a memorandum to the president claiming her right to form a ministry (on the revocation of President’s rule, as the leader of the largest party in the assembly). The president, at this juncture, told his interlocutors that it was for the governor to judge the veracity of the claims and whether present circumstances warranted revocation of President’s rule in the first place.
President’s rule was eventually revoked on 13 January 1982 and a Congress (I) ministry under Keshab Chandra Gogoi was sworn in. In protest of this, LDA leaders led by two former chief ministers of Assam, Sarat Chandra Sinha and Gopal Barbora met the president with the complaint that the governor of Assam had slurred over the alliance’s claim of a majority of 63 in a house of 119 and that he had called to office a Congress chief minister who did not command a majority in the assembly.
(p.233) The president thereupon ordered the correspondence between the governor and Sinha to be forwarded to the prime minister’s office. The president’s secretariat also included the following observations dictated by the president for the prime minister, which Reddy reproduced in his memoirs (1989: 98–9):
The President considers that it serves no purpose to go into the allegations made in the memorandum, but that it is right and proper that the legislative assembly should be summoned as early as possible so that the question whether the Ministry that has been installed in office has a majority in the House may be settled without any delay. Moreover, the budget for the coming year has soon to be presented, and it is necessary that the demands for grants and the appropriation bill may be passed before the end of March. Both constitutional propriety and the dispatch of government business would seem to indicate the need for an early meeting of the legislature by the end of this month or early next month at the latest.
Thus, we had a president urging an early meeting of the legislature to actually perform a floor test of the ministry’s strength, which the governor should have ensured in the first place. The home ministry duly informed the president that the Legislative Assembly of Assam had been called on 17 March.
On that very day the Congress ministry resigned without even attending the assembly. The governor then sent a report to the president suggesting dissolution of the Assembly and a fresh spell of President’s rule. The governor tried to justify this step by talking of the supposedly ‘shifting’ loyalties of legislators which made it difficult to determine the strength of any party or combination of parties; and that given the current complexion of the assembly, no stable ministry could be assured.
The president recalls that when the central government accepted the recommendation of the Governor of Assam for re-imposition of President’s rule, he was not impressed. President Reddy (1989: 99) writes,
It seemed to me that it was a mistake not to have given the Left and Democratic Alliance, an opportunity to form a ministry after the Gogoi cabinet had resigned. Its claim that it had a majority in the legislature ought to have been put to test by asking its leader to form a government. It should have been left to the legislature to demonstrate the validity or the hollowness of the claim.
(p.234) The president was clear that the government should have recommended President’s rule only if the alliance had been unable to prove its majority. He was forthright that in denying that opportunity, the governor’s action had been perverse. The president however, failed to stand up to these views and signed the proclamation ‘with much reluctance’ on 18 March. It must be said, however, that he voiced his protests with the prime minister over the decision. Reddy did rub it in that the Congress (I) had, on two occasions, been allowed to form a government despite no convincing proof of majority, while the claims of the opposition had been trashed on the implausible conjecture that party loyalties were evanescent. The president felt it was better to convey verbally what he thought of the governor’s ‘double standards’ than to send back for reconsideration a decision that was likely to remain unaltered (1989: 100).
The second controversy erupted over the president’s proposed visit to Indonesia and Sri Lanka in August 1981. The trip to Sri Lanka was to follow on the heels of the Indonesian visit; but in June 1981, the prime minister advised President Reddy to postpone his Sri Lankan tour. The reason Gandhi gave was that about the same time as the president’s sojourn in Sri Lanka, she would be away in Nairobi at an International Conference on Alternative Sources of Energy. She felt that both the president and prime minister should not be out of the country at the same time. President Reddy replied that he was not aware of any convention requiring the presence of either of these two functionaries at all times; it would, however, be a breach of protocol to cancel the visit slated much in advance after due consultation with the host country. Moreover, the president could always fly back from Sri Lanka which was less than an hour’s flight from India, if circumstances so warranted.
The prime minister then came up with the more important reason for the government’s reservations over the president’s visit: A Member of Parliament from Tamil Nadu had advised against a presidential visit to Sri Lanka at a time when anti-Tamil riots had occurred in that country. Although the president rubbished this slant on events, he found the prime minister unwilling to agree to the president’s visit. President Reddy decided to concede the prime minister’s argument but then informed her that if he could not visit Sri Lanka, he would not undertake the trip to Indonesia either (1989: 61). He argued with the prime minister that since the visits to both countries had been decided (p.235) at about the same time, cancellation of one while going ahead with the other would be seen as a slight to Sri Lanka. The government had to agree to President Reddy’s decision to cancel both the visits.
Although Reddy had been forced to draw the battle on this issue, he makes it clear in his memoir that it rankled with him. When the president of Sri Lanka, Jayawardene, met him at the wedding of Prince Charles in July 1981, he showed his unhappiness about the cancellation of Reddy’s visit. While advancing the excuse that both the president and the prime minister could not have been away from the country at the same time, President Reddy promised Jayawardene to visit Sri Lanka at the earliest. The prime minister, however, ‘embarrassed’ the president by stating in Srinagar that the presidential visit to Sri Lanka had been cancelled owing to anti-Tamil riots in the island. This reason filtered through to President Jayawardene even though Reddy had quoted a different reason and the latter had to stick to his original explanation. When a secretary in the ministry of external affairs went to Sri Lanka however, he quoted the president’s explanation and not the prime minister’s as the reason for the cancellation of the president’s visit (1989: 62).
The president soon had an opportunity to assert himself, when, during August–October 1981, the ministry of external affairs advised that the president should visit Nepal (whose king was complaining of lack of reciprocity to his Indian visits). The president advised the ministry to draft a comprehensive programme of visits not only to Nepal but also to Sri Lanka and Indonesia (which had been scrapped earlier). Probably realizing that the president would not visit Nepal as requested if Sri Lanka and Indonesia were not added to the itinerary, the foreign office complied; the president duly visited Indonesia and Nepal in December 1981 and Sri Lanka in February 1982 (1989: 62).
President Reddy was equally firm in thwarting attempts to monitor his public functions or the speeches he made in them. In August 1981 he had accepted an invitation by an entity called the Citizen Council to attend the Sardar Patel Memorial Lecture on National Integration to commemorate Vallabhbhai Patel. The council comprised luminaries like Dharam Vira, a former cabinet secretary and Governor of West Bengal, and Kanwar Lal Gupta, a BJP member, among others. Just before the function, however, a senior top government official rang up the president’s principal secretary conveying that there was disquiet in government circles over the president’s proposed attendance at a (p.236) function hosted, among others, by a political functionary. The principal secretary replied that the president had accepted the invitation over two months ago and the inclusion of a political functionary in the commemoration of one of India’s tallest sons could not be a reason for the president to turn down the invitation (1989: 88).
The principal secretary, however, was then accosted on the same subject by a cabinet minister to whom the same explanation had to be offered. Reddy (1989: 88) writes, ‘If anyone had thought that I could be prevailed upon to cancel an engagement, it was a mistake.’ The President discounts any role of the prime minister in this petty issue and attributes it to her underlings over-reaching themselves in a bid to prove their loyalty.
Having thus staved off attempts to deflect him from this public engagement, President Reddy delivered a speech on the occasion that resonated somewhat with the speeches of the Prasad and Radhakrishnan eras. Reddy proudly records that it was reported in extenso in the national dailies and drew comments (just as President Prasad’s speech at the Law Institute had attracted press attention 21 years ago) (1989: 89–90). In his speech, Reddy observed that since his topic was national integration, he would dwell on the issue of centre–state relations. He referred to the widely felt impression that although much responsibility had been cast on the state government relating to development and social service, a matching allocation of resources had not been made.
The centre, he lamented, had arrogated increasing responsibility to itself both in matters of administration and development which ran contrary to the avowed professions of decentralization. He berated the centre for this tendency when its tools of implementation were not different or superior to those of the federating states; neither could the centre claim a monopoly of wisdom, expertise, or greater impartiality than the states. The president expressed fears that the promethean central outreach might provoke a backlash from the states in the shape of increasing demands for autonomy or freedom. To prevent a break-up, Reddy therefore called for a relook at the centre–state relations of the last three decades. It was not without reason that the critical note in the speech was viewed with some misgivings by the government of the day.
Continuing in an allegorical vein, the president observed that the Independence that had ‘come down to our country has got stuck up at New Delhi’ like the Ganges in the matted locks of Lord Shiva (a mighty (p.237) deity in the Hindu pantheon); and just as the great Indian god had to unloosen his locks to allow the Ganges to reach ‘virgin soil’, so was it necessary to devolve power to the states from New Delhi.
President Reddy’s detractors felt that his raking up the issue of decentralization was inappropriate as the Government of India had been struggling with an agitation in Assam over the influx of foreigners on the one hand, and an increasingly high-pitched demand for Khalisthan on the other. There was also some criticism of the president’s plea for greater autonomy at the commemoration function of a stalwart who had contributed so outstandingly to the cause of national integration. The president, however, felt that national integration was not necessarily weakened by the grant of greater latitude to the states.
In the context of the perceived concentration of power at the centre against which the president had flagged his objections, he was equally critical of the tendency of chief ministers to be foisted on states by the ruling party at the centre instead of being democratically elected by the party legislators of the particular state. He decried this practice, which could not be hidden behind the subsequent formality of an election after New Delhi’s choice had already been made. President Reddy pilloried the practice of choosing such ‘nominated Chief Ministers’ in a public speech, to the consternation of some in party circles (1989: 94).
We now take up in some detail the constitutional crisis in 1979 in which, for the very first time, the president was called upon to play a seminal role.31 Although we have dealt with this issue elsewhere in this book, a detailed account of events would again be in order. It flags the crucial role of an Indian president when a ministry loses its majority in a fractured parliament that cannot throw up a credible alternative.
The general election of 1977 brought the Janata Party to power in New Delhi, but it also returned Morarji Desai, Jagjivan Ram, and Charan Singh, all of whom wished to become the party leader and prime minister. Morarji Desai was duly ensconced with the aid of Jayprakash Narayan (freedom fighter and founding father of the Janata Party) and J.B. Kripalani (a Gandhian freedom fighter), particularly the former whose unparalleled halo brooked no dispute (1989: 23). Elected unopposed as the Janata Parliamentary Party leader, Desai was sworn in as prime minister; Jagjivan Ram initially threw a wrench in the works by refusing to join the cabinet with his followers until Narayan persuaded him by a personal request. These teething problems foreboded (p.238) the subsequent resignations of Charan Singh, and Raj Narayan and indicated that the Janata experiment would be eventually derailed by personal ambition (1989: 24).
On 11 July 1979, leader of the Opposition Y.B. Chavan moved a no-confidence resolution against the Morarji Desai government. Initially, the president thought that the ministry would be able to sail through this challenge as the party commanded an absolute majority in the Lok Sabha. He had, however, reckoned without the fault lines that had appeared in the Janata monolith, as legislators defected to Raj Narayan in batches; even a cabinet minister. George Fernandez, who had stood out in his support to the government during the debate on the no-confidence motion on 12 July, deserted the government two days later.
On 15 July, Desai met the president with two letters; the prime minister wrote in the first letter that at the time of moving of the no-confidence motion four days ago, the Janata Party had commanded an absolute majority in the Lok Sabha; now four days later, however, ‘this was no longer the case’ even though the Janata Party continued to be largest single party in the Lok Sabha. In the circumstances, the prime minister thought it fit to resign along with his council of ministers. In his second letter, however, Desai claimed his right as the leader of the ‘still largest single party in the Lok Sabha’ to be ‘entrusted with the task of forming a new Government’ by soliciting the support of other parties and groups in the house (1989: 25).
The president countered that if the prime minister, given a fresh lease of life, was so confident of securing majority support then he saw no reason for him to resign in the first place. The president rightly saw in the device of resignation a ploy to wriggle around the no confidence motion (which would lapse with the prime minister’s resignation). Reddy, therefore, while accepting Desai’s resignation and asking him to continue as a caretaker prime minister until the formation of a new government, refused to accept his second request (1989: 25).
The president then decided to invite the leader of the Opposition to try and form a government. He was impelled to this act by his understanding of the situation that a majority of the house would have supported the motion of ‘no confidence’ tabled by the leader of the Opposition; it was, after all, clear from Desai’s resignation that he did not believe that his party commanded sufficient numbers to defeat the motion. The president, therefore, wrote on 18 July to Y.B. Chavan, (p.239) casting on him the moral duty as leader of the Opposition, who had moved the motion of no confidence (that in fact, precipitated the fall of the Morarji Desai government), to ‘explore the possibility’ of an alternative ministry to succeed the present caretaker one. In the letter, the president also advised Chavan that in trying to form a government, he could consider inducting legislators with a national outlook (1989: 26–7).
The president affirmed that by inviting the leader of the Opposition, he was following conventions (this has already been expostulated by Jennings in his monumental Cabinet Government ). But in speaking of Chavan’s ‘moral duty’ to take on the responsibility of forming an alternative to the government he had brought down, the reader may be reminded of Disraeli’s speech (as discussed in an earlier chapter of the volume) strenuously opposing the existence of such an obligation.
The president reports that at about that time, some ministers in the government suggested to Morarji Desai that he resign his prime ministership to Jagjivan Ram; they opined that this would arrest the defections that were happening by the day while Desai held the reins; it might even help win back some of the defectors. The president, however, notes that since this was an internal party matter, it was not his brief as a president to suggest how the government could control dissensions within its ranks (1989: 27).
Chavan reported failure to the president on 22 July in forming a government of an alliance of parties. He, however, informed the president that their efforts had resulted in the emergence of a new combination of parties and groups that, in his view, would offer a stable government. He hoped that the president would consider the claims of this new combination (1989: 28).
Charan Singh then wrote to the president that he was willing to form a ‘viable government’, supported by the Janata(S), Congress, a group led by Bahuguna and a bunch of socialists. He also claimed the support of left groups, the Akali Dal party and the AIADMK. Since his ministry would not include RSS and Jana Sangh elements, he reported, the Congress would support him without qualms (1989: 28). In another letter to the president, Charan Singh appended a letter of Y.B. Chavan professing the Congress party’s support to him in furtherance of a decision of its working committee. Confronted with the rival claims of Morarji Desai as leader of the single largest party in (p.240) the Lok Sabha and of Charan Singh as leader of the nascent Janata(S) that also touted the written support of Congress (S) and the Bahuguna group, President Reddy decided to call upon both claimants to prove their following. He accordingly wrote to them on 23 July, asking both for a written list of supporting legislators to be tendered in two days’ time (1989: 29).
According to the president’s memoirs, a leader of the Congress (I) tried to force the issue by writing to the president that according to British constitutional lore, it was the duty of the Opposition that brought down a government, either to step into the latter’s shoes or ‘advise the Queen as to an alternative’. Since the leader of the Opposition had already signified the name of Charan Singh as that alternative, the president was duty-bound to appoint him prime minister without further ado. He warned against a fresh appointment of Morarji Desai as that would amount to reappointing a prime minister who had veritably lost the confidence of the house. President Reddy, however, strenuously guarded this encroachment upon his discretionary power to check the veracity of the claims of a candidate, even though the latter was supported by the leader of the Opposition. The president asserted his right to be satisfied about the support flaunted by a candidate without reference to the views of the leader of the Opposition (1989: 29).
Meanwhile, the leader of the Congress (I) also informed the president of his party’s support to Charan Singh. On 24 July, Desai rang up the president requesting extension of the deadline of 25 July, by a day. Reddy told him that he would grant the relaxation if Charan Singh too wanted the same thing; but as the latter did not seek it, he had to decline Desai’s request. The president makes a special mention of this issue as he recounts that it was alleged that he had reneged on a promise to Desai to allow him an extension of time. The promise had been made only on a specific condition that had not been fulfilled (1989: 30).
On 25 July, Raj Narayan handed over a list of Charan Singh’s supporters to the president’s office to be followed by a list of Desai’s supporters duly submitted by the prime minister’s private secretary. Soon after Charan Singh wrote a letter to the president observing that the list tendered by Morarji Desai lacked ‘supporting evidence’, and, now that both lists had been already submitted, Desai could not be given an opportunity to submit that evidence. He warned of repercussions if this (p.241) evenhandedness was not maintained—an issue on which apparently Narayan had also spoken to the president (1989: 30–1).
On 26 July, Desai in turn sent the president a letter observing that the Communist Party of India had denied unconditional support to any government of (or supported by) the JD(S) and the Congress; it had explicitly decided to remain an opposition party, its support to the government (or denial of the same) being issue-specific. Second, the Congress (I) had only proffered ‘ad hoc’ support to Charan Singh, again by reference to the pros and cons of each issue. Moreover, Charan Singh could not claim the en bloc support of the Congress as its Kerala members had opposed any truck with him. Lastly, the Akali Dal’s support too could not be presumed as it had decided to remain neutral (1989: 31).
Even during the unfolding of the above events, some members of the parliament complained to President Reddy that their names had been unwarrantedly included in the list of Desai when they actually meant to support Charan Singh. On the other hand, five Congress party MPs wrote to the president declaring their support for Morarji Desai defying their party’s whip. H.V. Kamath and a few others, on the other hand, tried to reason with the president that as Charan Singh’s support depended on disparate groups that obeyed no common programme, a stable government was unlikely; therefore, the Janata Party was more deserving of a chance at government—with 219 members wedded to a shared programme, Desai’s group was more closely knit and relied much less on outside support than Charan Singh’s. Madhu Limaye too sowed doubts on the authenticity of Charan Singh’s list by claiming to the president on 26 July that some members who had deserted Desai had since returned to his fold. Limaye did feel chagrined about the crossing and re-crossing of the floor by several parliamentarians, making it difficult for the president to slot their actual positions; but he urged the president for a quick decision (1989: 31–2).
To help the president reach a decision, Raj Narayan suggested that each of the prime ministerial claimants be allowed to inspect the list prepared by the other. Obtaining the concurrence of Desai and Singh, the president accordingly allowed the exchange of lists, compared them and struck out names common to both. Helped by his secretariat, the president concluded that Charan Singh had a majority of 24 listed legislators (1989: 32).
(p.242) At this stage, an interesting suggestion was made to the president that he could send a message to the Lok Sabha, asking it to decide on its own the leader that enjoyed a majority in it (1989: 32). Anticipating exactly a same provision enacted in the UK for one of its ‘subordinate’ parliaments, the step, if taken, would have been a daring innovation. (We have already commended this measure in our concluding survey in this book). For the president, however, to have then acted on this inspired idea would have required a prior amendment of the existing procedures in the conduct of business of the Lok Sabha. There was obviously nothing of the sort in the lower house’s Rules of Business at the time that this step was suggested to the president. Moreover, as President Reddy rightly observes, it would have raised confusion in whether the choice of a prime minister by the members of parliament was then to be restricted only to Charan Singh and Desai or could also include whoever else wanted to throw his hat into the ring. Although the president would perhaps have gone down in constitutional history as a daring innovator who had wrought by a single-line directive a device that nearly 20 years later the older constitutional wisdom of Great Britain was to adopt, he did not seize the chance, perhaps as he feared the ‘complications’ (1989: 33).
In his memoirs, the president also answers critics of his decision to require the lists of supporters of both the claimants. It was alleged that in doing so he had gone back on a principle he had himself espoused as a speaker of the Lok Sabha. (Austin too adopts this criticism, among others, of the president’s actions in his book, Working a Democratic Constitution, 2003.) The president states, however, that his suggestion, as a speaker, had been made at a time when the stability of quite a few state governments remained under endemic threat from defections.
In that backdrop, Reddy had flagged his opposition to a governor arrogating to himself the right to decide whether a chief minister commanded a majority in the responsible house or not. He had told the 33rd Emergent Conference of Presiding Officers in April 1968 that the opinion tendered by members even in writing to the governor about their support to a chief minister was irrelevant; it was within the province of only the assembly to settle this issue (1989: 33). President Reddy, however, saw a clear difference in a context in which a chief minister was already in office, and the current one in which there was no permanent holder of that office after the prime minister had resigned.
(p.243) In a situation where an incumbent chief minister was faced with a demand for his removal on a charge of absence of majority, the president was of the firm opinion that the governor, as a constitutional head, could not take upon himself the responsibility of subjectively deciding whether there was merit in the gauntlet thrown down to the chief minister. This, in his view, was a matter for the assembly to decide. There could thus be no analogy with the current impasse in which a resigning prime minister had reclaimed a right to form a new government as leader of the largest single party while the leader of the Opposition had signified his support to a rival. The president understood that it was his constitutional obligation to set up a government by examining alternatives—a responsibility that could be delegated to no one else (1989: 34).
The president also referred to the fact that some persons did not take kindly to his remark that in acting in the manner which he had, he had followed the ‘dictates of his conscience’. He should have followed the dictates of the Constitution, they felt. The president clarifies that this language meant that he had tried to take an impartial decision ungoverned by subjective feelings (1989: 34).
As Charan Singh could at least show more support on paper than Desai, the president invited him to form a government on 26 July. He also hoped that, in accordance with convention, the prime minister would seek a vote of confidence in the Lok Sabha, latest by the third week of August 1979. When, on 28 July, Charan Singh was sworn in as prime minister however, the ceremony was, ominously enough attended by none of the Congress party members except Chavan. Although several ministers were sworn in a day later, the prime minister was constrained to expand his ministry subsequently. As advised by the cabinet, on 6 August, the president ordered the convening of both houses of Parliament for 20 August.
President Reddy recollects that his calling for an early meeting of the Lok Sabha provoked the comment that the president was in fact making only a conditional offer of government to Charan Singh, which was allegedly constitutionally improper (1989: 35). This was, he asserted, a clear misreading of the president’s intention which was to seek a demonstration of the ministry’s possession of a majority—then obviously in doubt (1989: 36). Such a situation would not have arisen if the party forming the government had had a clear and indubitable majority in (p.244) the responsible house; in that happy event, a president requiring the ministry to prove its majority would have been obviously redundant.32
Meanwhile, the Congress (I), which had earlier professed support to the Charan Singh government decided to withdraw it on the very first day of the Lok Sabha session. Fearing that he had lost his majority, Charan Singh submitted his resignation to the president on 20 August and also advised him to organize ‘a fresh mandate from the people’ (1989: 36).
This development immediately returned the focus to the president’s office. Reddy was inundated with visits and letters from MPs, constitutional experts, journalists, and leaders to advise him on his next move. The president at that stage had clearly the option to dissolve the Lok Sabha and order fresh elections (for which the mandatory prime ministerial advice already existed). The alternative before him was to launch another experiment in government formation this time by Jagjivan Ram who had replaced Morarji Desai as leader of the Janata party and also doubled as leader of the Opposition.
Jagjivan Ram lost no time in writing to the president on 20 August itself that he commanded majority support in the Lok Sabha, could therefore form a stable government, and should therefore be invited to constitute one. He further tried to make holes in the argument that Charan Singh’s advice to the president to dissolve Parliament and call elections was legally tenable (even if not binding, as we have seen). Ram argued that Charan Singh had never commanded a proven majority in the Lok Sabha, which was why he had been asked to demonstrate it but had failed; his advice could not therefore even be entitled to the weight of a prime minister who commanded a majority, and was thus fit to be rejected (1989: 37).
In his contentions, Jagjivan Ram was supported by the president of the Janata Party, Chandra Shekhar, Morarji Desai’s cabinet minister Mohan Dharia, and some other Janata Party leaders. Ram also found support in Mavalankar, an independent Lok Sabha member and some Congress party members who had earlier rebelled against their party’s decision to support Charan Singh. They argued that Jagjivan Ram was at that moment the leader of the largest single party in the Lok Sabha (with over 200 hundred members) and also wore the hat of the leader of the Opposition; hence if Chavan as leader of the Opposition commanding, only 75 members could be invited to form a government (p.245) after Morarji Desai had resigned, there was clearly a greater claim to that post of Jagjivan Ram (1989: 38). Krishna Kant with 102 members of the Lok Sabha also wrote to the president to give traction to Ram’s claims. Members of the Parliamentary Forum for Scheduled Castes and Scheduled Tribes too chipped in with the argument that an invitation to Jagjivan Ram would go down extremely well with the Scheduled Castes and other backward classes.
Meanwhile, although the Congress (I) had in fact offered conditional support to Jagjivan Ram, it also pitched in with the demand for dissolution of the Lok Sabha. The president therefore presumed that it had decided against supporting Jagjivan Ram, perhaps owing to differences with him over the conditions for that support. To leave no doubt that Congress (I) professed no support for Ram, President Reddy asked Congress (I) leaders to put down their suggestions in black and white (1989: 38).
On the same fateful day of 20 August, the law minister of Charan Singh’s government reported to the president that of 532 Lok Sabha members, a majority of 291 favoured dissolution. So did the Janata(S) with 97 members, Congress (S) with 75 members, Congress (I) with 73 members, the CPI(M) with 22 members, and AIADMK with 17 members. Again on that very day, the general secretary of the CPI(M) communicated to the president their party resolution calling for dissolution of the Lok Sabha followed by fresh polls. The general secretary of the CPI(M) followed suit. On 22 August, the leader of the Congress (I) also wrote to the president, advising the dissolution of the Lok Sabha. As leader of the Janata(S), Prime Minister Charan Singh had himself advised it; and as the cabinet that had suggested the President to hold fresh elections included Congress (S) members, the support of that party to dissolution could be logically inferred. The same argument applied to AIADMK which was represented in Charan Singh’s dissolution-advising cabinet. Although photocopies bearing the signatures of some members of parliament opposing dissolution were also received by the president, he concluded from the above evidence that a majority of the current Lok Sabha favoured its end (1989: 38–9).
In examining Ram’s claim, the president states that he took account of the fact that his party included only a little in excess of 200 out of 538 members. The Congress (I), Janata(S), and Congress (S) were unequivocally opposed to him. The two communist parties, the (p.246) AIADMK, and the Muslim League had either pitched for dissolution of the house or opposed Ram’s elevation. The president, therefore, concluded that like his immediate predecessors, Jagjivan Ram would not be able to muster a majority. The president also factored in the Janata Party’s inability under Morarji Desai to cobble a majority; there was little likelihood, in his view, of that same party now achieving a majority simply by changing its leader (1989: 40).
The argument, however, remained that since Chavan had been asked, as leader of the Opposition, to try to form a government, even-handedness demanded that the current leader of the Opposition be given an opportunity as well. The president, however, argued that this demand for equity could be stretched ad infinitum for every successive leader of the Opposition demanding his right to make a try because his predecessor had been given a chance. Reddy felt that the line needed to be drawn somewhere (1989: 40).
On 22 August, learning of the president’s intention, the cabinet secretary, secretary to the prime minister, the secretary to the president, and some senior officers called on the president over drafts for the dissolution of the Lok Sabha. But, according to the president, even as they were at work, Jagjivan Ram and Chandra Shekhar, representing the Janata Party, called on the president, on the latter’s request. The president clarified in his memoirs that the reason was to confer with them about the ‘political situation as I saw it’. He records that, during the conversation, both these leaders again articulated Ram’s request for a chance to form a ministry.
On the president asking whether Ram commanded the support of any other party besides his own, the latter answered that all parties had broken up. He offered to tender a fresh list of his supporters after he had been formally sent for. Reddy, however, reminded him in effect that this would be like putting the cart before the horse, ‘that was not the method I had earlier adopted’ (1989: 42). The president told these visitors that all the big parties save Janata had communicated in writing to the president of their desire for dissolution and a fresh poll. At the end of the quarter-of-an-hour interview, Chandra Shekhar proposed to return and meet the president again.
The president accepts that he said that ‘there was no hurry and that he was always welcome’. By this, the president writes, he wished to convey the meaning that there was no need for Chandra Shekhar to make (p.247) any hurried call on the president who would always be available for him. He never meant to say that he was not in a hurry to decide on his next course of action. Mindful of the charge subsequently made that the president had played fast and loose (in dangling future possibilities before Ram while actually preparing the papers for dissolution of the Lok Sabha), Reddy rues that his words were misunderstood. He reiterates that he could not have thought of an alternative to dissolution when, on his express orders, a group of senior officers were already working on the notification dissolving the lower house (1989: 42). On the same afternoon of 22 August, the president dissolved the Lok Sabha under Art. 85 of the Constitution.
Giani Zail Singh
Giani Zail Singh’s first act of discretion33 was in delaying the signing of an ordinance to empower officials to declare disturbed areas in Punjab. Under it, the district officers could call in the army to assist civil authorities in maintenance of law and order, bypassing the need to route the request through the president. When the president eventually promulgated the ordinance, the governor of Punjab declared the whole state a disturbed area (Singh 1997: 172).
It has been alleged that Prime Minister Gandhi did not keep the president posted of her intention to send troops into the Golden Temple complex at Amritsar to flush out militants who had taken sanctuary in it. This, however, seems to be less than true: Zail Singh himself recollects in his memoirs that at the end of May 1984, Indira Gandhi had sounded out the president that she had been advised to send the police into the temple complex to take out the militants; and, although she did not much like the idea, there seemed to be no alternative course before her. The president, however, immediately advised her to drop the plan as entry of the police into a sacred edifice would arouse passions; the president instead suggested the adoption of more discreet methods to weed out the militants (1997: 177–8).
Immediately, after the launching of Operation Blue Star on 5 June 1984—the very day on which the martyrdom of Guru Arjun Dev is celebrated in a large congregation at the Golden Temple itself—the same was confirmed to the president when he sought it. Prime Minister Indira Gandhi herself met the president to assure him that the army (p.248) had been instructed to preserve inviolate the Darbar Saheb (the sanctum sanctorum of the Golden Temple). The president, however, bewailed to the prime minister that the security agencies had done nothing all along when arms were being steadily stockpiled in the Golden Temple; he demanded to know why the government had not arrested Sant Jarnail Singh Bhindranwale who had ensconced himself in the Akal Takht at the head of the militants. The president, according to his memoirs, observed that no police officer had been held accountable for allowing the extremists to carry arms into the Golden Temple for two years; now innocent pilgrims were being caught in the crossfire of an incident precipitated by the ‘dereliction of duty’ of those very security forces, he added facetiously (1997: 179).
When the prime minister reasoned that, had the government given prior warning (which she truthfully admitted it had not), a greater crowd would have gathered causing more casualties; the president, however, disagreed. He said that the government could have ordered a curfew even in villages to keep the pilgrims away from the Golden Temple while the operation was in progress (1997: 178); meanwhile, the radio and television could have been used to update the public about the hoarding of arms and ammunitions inside the temple by terrorists who had profaned the place by their subversive activities. The president felt that these methods would have better kept public opinion on the side of the government. The president also pointed out the mistake in choosing for action a day when the temple complex was likely to be choc-a-bloc with pilgrims converging there to observe the anniversary of Guru Arjun Dev’s martyrdom—a point that the prime minister seemed to have conceded. Prior warnings over loud speakers, the president admonished, would have not only saved many innocent pilgrims, but even induced some militants to surrender.
Soon after Operation Blue Star, the president, himself a practicing and devout Sikh, came under pressure including even from some in the Congress party to resign as the President of India (1997: 183). Singh recalls in his memoirs that a number of Sikh organizations and individuals at home and abroad came up with such promptings. The president, however, records that such a move, even if approved by his community, would have damaged the cohesiveness of India’s political and social fabric. As he rightly notes, he had taken an oath as the president of all Indians and not merely that of Sikhs alone. More farsightedly, (p.249) his resignation as the supreme commander of the Indian armed forces might have engendered a sense of guilt in the over 160,000 Sikhs in the army and 150,000 of them in the navy and air force, and several times that number in the para-military forces and civil services; this guilt and divided loyalty might even have degenerated into something worse (1997: 185). The president feared that a consequent rebellion in the armed forces might even have encouraged cross-border attacks from India’s western neighbour; and the people of Punjab, subjected to the travails of Operation Blue Star, might have ‘remained indifferent’.
Meanwhile, the prime minister saw in the president, the personage best suited to rebuild bridges with the Sikh community; and thus we have a novel instance of a head of state playing a mediatory role between communities instead of merely between the government and the Opposition, as is far more common.The president, accompanied by the governor, the army commander, and senior officials reached Amritsar. He conferred with the high priests in the Darshani Deodhi (the covered entrance passage), who asked the president for their return to the Akal Takht; the President told them that the Takht could be transferred to them only after the Akhand Path (continuous reading of the Holy Scripture) organized by Baba Santa Singh, the Nihang Chief, in the Takht, had ended; in the meantime, he suggested that the high priests themselves participate in the Path (1997: 193).
The president then proceeded to the Akal Takht in which he expressed his pain over the series of events that resulted in the entry of the armed forces into the Golden Temple. Defending the government, he was candid in blaming the terrorists for turning a holy complex into an arsenal; he suggested that, now that ‘the damage had been done, the services offered by the Government for repairs should be accepted without rancour’ (quoted in Jai 2001b: 82). The president was also critical of Sikh leaders in general but particularly also of the Shiromani Gurudwara Prabhandak Committee (SGPC) for the widening chasm between the Sikhs and the larger Hindu community in India; they had made little effort to explain the noble principles of the Sikh religion to their Hindu brethren. Instead, they had succeeded in giving it a political identity and a bunch of ‘flags, banners, and slogans’. The SGPC had been so skewered in its priorities that when ‘people opposed the Sikhs, they believed they were opposing a political party’ (Jai 2001b: 82).
(p.250) Next, followed a major peroration from the president on 17 June 1984 that clearly bore the stamp of his own thoughts. In his broadcast, the president again vented his dismay over the series of incidents that culminated in the entry of the armed forces to the Golden Temple. The president rued that several Gurudwaras dotting the Punjab countryside—not merely the Golden Temple and the Akal Takht—had passed into the hands of militants because the elected management committees of the gurudwaras had become infructuous or ineffective. The appeals of these committees had fallen on the deaf ears of the terrorists. In the same breath, the president stated that he ‘could not absolve those in control of the Punjab Administration’ of their responsibility in the matter (cited in Parkash 1984: 186). The situation continued to deteriorate because of their laxity and carelessness.
The president strongly condemned the ‘unconscionable’ butchery of both Hindus and Sikhs by the terrorists, which even included the revered Jathedar of the Akal Takht, Giani Pratap Singh; a renowned scholar had been murdered because he had frowned upon the abuse of a holy shrine by the terrorists (cited in Parkash 1984: 186).
Thus, Giani Zail Singh used his fortuitous position as head of the state to mend a tear in the country’s fabric; no other constitutional functionary could have performed so delicate a task with greater authority and balance. Singh’s post gave him that halo of impartiality so necessary to win credibility between contending parties. While President Radhakrishnan stood at the battlefront during the Chinese attack, Zail Singh was in the Golden Temple complex even before the shooting had stopped. Radhakrishnan perhaps helped prevent a defeat from becoming a disaster by forcing changes in the top; Zail Singh talked two communities out of an irreparable breach by pointing out the faults of both sides. In 1984, even a governmental effort at reconciliation would have looked partisan and thus failed; it was the president who gave that effort a vestige of credibility and thus helped it to at least partially succeed.
If the president was called by the force of circumstances to play a political role, his tenure also saw some significant constitutional interventions. When the president learnt on his flight back from Mauritius about the assassination of Indira Gandhi, he recalls that he called for a copy of the Constitution. President Singh (1997: 204) writes, ‘My first thought about Mrs. Gandhi’s successor was riveted on Rajiv Gandhi…. I (p.251) wanted a Prime Minister who should be connected to the largest political party, who should be honest and clean. I felt Rajiv Gandhi possessed these qualities, as he was considered to be simple, straight forward and spotless.’ The president of course concedes that another course before him would have been to send for the most senior minister in Gandhi’s cabinet. From the time of Radhakrishnan, this had been the practice that had been recognized and followed. Even our brief examination of British precedents does not suggest an alternative to this line of action before the British sovereign. (Readers would recall a former British attorney general contemplating the appointment of the most senior member of the British cabinet as the interim prime minister in the unfortunate event of the Brighton bomb blast attaining its objective.)
The president, however, records in his memoirs that he had zeroed in on Rajiv Gandhi; some writers have suggested that he could have adopted the more correct procedure of sending for the most senior cabinet member and left it to the Parliamentary Board of the Congress party to elect the prime minister. The president read his power of appointment of the prime minister literally: he took Rajiv Gandhi with him from the All India Institute of Medical Sciences to the Rashtrapati Bhavan, informing the vice president of his intention. Similarly, union ministers Pranab Mukherjee and P.V. Narasimha Rao were informed by the president himself of his decision. ‘Both of them gladly agreed that my decision was correct’ (Singh 1997: 205). The departure from convention was, however, entirely the decision of the president. It was an instance of the exercise of a discretion that would perhaps be unthinkable for the British constitutional sovereign.
We may briefly advert to the president exercising what we may call a ‘pocket veto’ on the Indian Post Office (Amendment) Bill of 1986. The bill had been passed in the Lok Sabha in which a mere 20 members had been present. Article 100(3) stipulates that the quorum of the house of Parliament must be one-tenth of the total number of members of the house, unless Parliament legislates otherwise. Article 100(4) directs the chairman or speaker to adjourn the house or suspend its meeting in the absence of a quorum. There was thus a case of the bill not having been passed in accordance with the Constitution. The president also objected to the ‘sweeping’ nature of the bill, which he felt was in accord neither with Law Commission’s 38th Report nor the Supreme Court’s interpretation of Art. 19 of the Constitution. The president also flagged (p.252) his objection to the absence of a classification of the articles to be censored; the provisions were so general that even books, journals, periodicals, and money orders could have been intercepted (1997: 276–7).
The president’s dispute with the prime minister about the import of Art. 78 of the Constitution is too well known to merit a revisit. It would also be tangential to the objective of this monograph which is to bring out the extent of discretionary power of the president, not the limitation on a power which is more like a right and is enshrined in the Constitution. On this subject only one observation is apposite: both the protagonists, the president and the prime minister, referred to the observations of Attorney General Setalvad in justifying their respective positions. It might, therefore, be inaccurate to paint one party as having scant regard for the Constitution and its conventions.
The above short narrative of the presidency till the beginning of President Venkataraman’s tenure clearly suggests that it would be historically inaccurate to describe the Indian president as a cipher. In the same period, the British sovereign exercised her discretion in the choice of a prime minister on two rare occasions; those two occasions were antecedent to the adoption of a procedure for election of the British prime minister by the Conservative party. In India on the contrary, even after the adoption of a procedure to elect the prime minister by the parliamentary board, we had an instance of an Indian president completely by-passing the method in appointing a prime minister that he wanted. Radhakrishnan attained the same objective by subtler means.
The queen has not been reported to have ever gone public with her criticism of her government; that has to remain a matter of speculation even in the most transparent democracies of the world. Any historical account of the Indian presidency would, on the other hand, be dotted with public speeches in which the president took on the role of a teacher mentoring his government. More prolific during the time of Prasad and Radhakrishnan, this has been a recurring chapter in the presidential lexicon. K.R. Narayanan could be quite trenchant; President Mukherjee’s praise for India’s constitutional watchdogs, including the comptroller and auditor general of India, was aimed at tongues that had of late become critical of such bulwarks of the Constitution.
(p.253) No British sovereign can imagine facing situations precipitated by an interim government presiding for months over day-to-day administration while multi-phased elections were conducted. Nor would they be called upon, unlike the Indian president, to hold the ring as it was where that interim administration would be tempted at every turn to transgress its restricted brief. We have seen numerous instances of the Indian president nudging a straying government back to its path on such occasions, be it on the matter of vital appointments or the inking of a major financial deal.
The cabinet is only one source of advice for the Indian president; in several important matters, it is replaced by the Election Commission of India during the polls. A whole gamut of issues is brought before the Election Commission ranging from disqualification of candidates to administrative decisions of the interim cabinet considered beyond its charter. The Election Commission does not replace the president, however; it merely replaces the cabinet in tendering vital advice to the president.
At least in administrative matters, such as whether the caretaker cabinet could or could not take a certain decision or make a particular appointment, such advice cannot be binding on the president. It remains optional and a matter for his discretion, unaffected by whatever the views of the Election Commission. The final umpire for an interim government’s administrative decisions is the president and not the Election Commission of India. Such a scenario would be totally alien to a British electoral scene. The acts, which an interim cabinet can or cannot perform is not an issue in the UK; in India it has been the subject of a court’s verdict.
The British sovereign plays a mediatory role between the government and the Opposition; this is subtly underlined by the reference to the current Opposition as ‘Her Majesty’s Opposition’. In India, on the other hand, the history of its constitutional development is replete with appeals to the president by opposition parties to often act as an arbiter in its disputes, sometimes even with the governor. All constitutional points and acts of omission or commission by a governor are as often as not taken to the president. One can only recount the role of President Narayanan in the recall of the governor of Tamil Nadu after the opposition had turned to him with their grievance. The president’s room for manoeuvre does of course increase when a prime minister is weakened (p.254) by the absence of a stable majority with him. But the ‘mediatory role’ of a constitutional head in the British sense has a wider meaning in Indian politics.
(2.) Nehru wrote:
[W]e felt that the safest and best course from a number of points of view was to allow present arrangements to continue, mutatis mutandis. That is that Rajaji might continue as President. That would involve the least change and the state machine would continue functioning as before.… Also in a way to push out Rajaji at this stage would be almost a condemnation of his work. That would be most unfortunate.
See also Austin (2003: 19).
(3.) The Blitz wrote: ‘Even before constitution-making is complete, informal private canvassing has already begun among the Constituent Assembly members regarding the choice of the provisional president of India.’ See Lal (208: 260).
(4.) Nehru wrote in response to Prasad objecting to 26 January as the date for inaugurating the Constitution: ‘I am afraid I have no faith in astrology and certainly I should not like to fix up national programmes in accordance with the dictates of astrologers’. See Minor (1987: 103).
(7.) The president further wrote, ‘A reference to the constitution itself shows that there are at least 121 Articles in it apart from the schedules in which the President is mentioned as having to do something or other.’
(8.) Sir Kameshwar Singh v. Province of Bihar, AIR 1951 Pat 246.
(10.) Kameshwar Singh (Darbhanga) and Ors v. The State of Bihar, AIR 1951 Patna 91ff.
(11.) Cited in Priya Parameswaran Pillai v. Union of India and Ors, WP(C) 774/2015.
(12.) Romesh Thappar v. The State of Madras, AIR 1950 SC 124: (1950) SCR 594.
(14.) The Illustrated Weekly of India, 1987, vol. 108, nos 14–26, p. 35.
(17.) Dated 1 December and 2 Dewcember 1960 respectively.
(18.) Dated 4 December 1960.
(20.) Lal Bahadur Shastri had taken over as Prime Minister on 9 June 1964.
(21.) On 9 August 1965, the foreign ministry stated:
The proposal envisaged the termination of aerial bombing of north Vietnam and cessation of fighting in South Vietnam. The purpose of an Afro-Asian force would be to police the cease-fire not only along the border and sea coast of South Vietnam but also at suitable points in the interior. It was also intended that the present division of Vietnam would be maintained only so long as the people of the areas desired it. In that regard the proposal, it was hoped, would facilitate the unification of Vietnam.
See Thakur (1984: 242–3).
(26.) This takes us to the issue of whether a dissolution can be forced, as Charan Singh tried to force it on the nine Congress governments. On this subject of dissolution, Forsey defines the problem as one in which the crown is forced to dissolve the popular house either by dismissing a cabinet that had failed to give the desired advice and substituting it with another cabinet willing to do so; or by forcing the cabinet to advice dissolution by threatening to dismiss it for non-compliance. Forsey finds Anson’s support of forced dissolution whenever the Crown had reason to believe that the ‘House of Commons and the majority of the electorate are at variance’ too ‘sweeping’. It could be cumbersome for the crown to find out whether that variance at all existed; by-elections results could not be an accurate indicator. He also quotes the views of Laski, Marriot, Jennings, Greaves, and J.H. Morgan that a forced dissolution by the Crown in September 1913 would have been portentous for it; if the Liberals had won, the king would have had to recall those whom he had turned out of office, much to his embarrassment. But the counter to this argument was that the Liberals could have had no grounds for complaint as, (p.256) prior to their dismissal, they could not have claimed a public ‘mandate’ for Home Rule.
The king’s insistence on a clear pronouncement by the electorate before such a ‘revolutionary’ change would, in Forsey’s view, have been fully justified. He also criticizes Jennings, Lowell, and Laski for ignoring ‘the question of whether forced dissolution might be proper if a revolutionary measure were passed under the Parliament Act without a popular mandate’. Forsey points out the elasticity of the word ‘revolutionary’: he wonders whether it was to be treated as restricted to political conditions or extended to economic changes such as socialization of banks or the industry, and abolition of co-operatives and trade unions. What might seem revolutionary to one man would be dismissed as a logical development by another. The one way out of this difficulty was to check whether the government had a clear mandate for the issue in question. There could be no assumptions; in voting for a certain political party an elector was required to be in no doubt that he was voting for, say the abolition of trade unions. In 1913, according to Forsey, there had been no such causal connection between a victory for the Liberals and the establishment of Home Rule in Ireland. For example, it would have been a breach of faith for a party voted in on the subject of an issue of foreign policy to have sneaked in a domestic measure unconnected with the issue for which it had alone received a mandate. The other extreme of a party elected on the basis of several issues being required to undergo a fresh mandate on each and every issue was equally abhorrent to Forsey. Finally he flagged the point that in our first-past-the-post system it was always possible for an electoral minority to return a big majority to the legislature, thus making even a convincing electoral victory an inaccurate indicator of the majority opinion of the electorate. Forsey further quotes Keith’s view that an attempt to ‘destroy’ the constitution by, for instance, prolonging the life of parliament merely to perpetuate a particular party, had to be preceded by a dissolution, which could be a forced one, if necessary. See Forsey (1943: 122–4).
(27.) State of Rajasthan and Ors v. Union of India and Ors, (1977) 3 SCC 592: AIR 1977 SC 1361: (1978) 1 SCR 1.
(30.) A special session of the World Disarmament Conference under the aegis of the United Nations General Assembly was held in London in December 1977.
(32.) Controversy continued to dog the issue of whether a President can ask a newly formed government to prove its majority on the floor of the house. (p.257) When President K.R. Narayanan asked the Vajpayee government to seek the confidence of the Lok Sabha, which it lost by one vote, Vajpayee contended that the president had forced him to do so ‘under pressure’ from the opposition parties. He alleges that the opposition almost forced the president by threatening to block the budget; the former prime minister reports that the president conveyed these anxieties to the Prime Minister. Instead of resorting to indirect pressure through the President, Vajpayee felt that they should have themselves brought a motion of No Confidence in the House (see Jai 2001b: 277). Matters have not been helped by former President Venkataraman backing Vajpayee’s views against the action of President Narayanan. The Economic Times (12 April 1999 issue) reported Venkataraman’s endorsement of Vajpayee’s stand that it was not incumbent on his government to seek a confidence vote on the withdrawal of support by one of his coalition partners. It was for the Opposition to establish its claim that on the withdrawal of that support, the government had lost its majority in the house, by bringing a no confidence motion. President Venkataraman would be seen to be making a clear distinction between a president asking a newly installed ministry to prove its majority and asking an already functional ministry to seek a fresh trust vote on the withdrawal of support by one of its partners. The former act according to him is a matter of convention; for the latter, he finds no justification. The author would be inclined to depict the latter exercise as another instance of presidential discretion, subtle but significant.
It is also to be noted that there are rarely any instances in Great Britain and elsewhere in the Commonwealth of the constitutional head asking a newly appointed prime minister to prove his majority in the house; this has been entirely left to the discretion of the house. In India, however, it has become almost de rigeur for a prime minister to be asked to seek a trust vote in a hung parliament within a few weeks of his assumption of office. This is another instance of Indian conventions straying from their British origins.