Quest for a guardian

As the country awaits the election of the 15th President of India, the curiosity amongst the citizens regarding the powers and functions of the President have also resurfaced. Article 52 of the Constitution of India states that there shall be a President of India. The President of India is the highest Constitutional functionary in the system of governance in the country and is the supreme commander of the armed forces. He is described as the "titular" head of the Government but, under Article 53 of the Constitution, the entire executive power of the Union is exercised in his name. The president holds his/her office for a period of five years from the date of entering the office.

The President is not elected by the people directly, but by the people's representatives throughout the country. Article 54 of the Constitution provides the mode of election of the President. The Electoral College includes the elected members of both the Houses of Parliament, and elected members of the State Legislative Assemblies. The nominated members in the State legislature's and the Rajya Sabha do not have a vote in the election of the President.

The President has the power to appoint Constitutional functionaries including the Prime Minister, ministers of the Union Government, Chief Justice of India, Attorney General of India, Comptroller and Auditor General of India, Governors of States, Chief Election Commissioner, other election commissioners and administrators of Union Territories and other constitutional positions. Furthermore, for any bill to get the sanction of law, it has to receive the assent of the President.

Article 74 of the Constitution provides that the President is bound by the aid and advice of the council of ministers headed by the Prime Minister, however, the President can send any proposal of the Government back to it if the President thinks that some reconsideration should be made in the interest of the country and people. The said power can be exercised by the President only once and he shall be bound by the advice rendered by the government on the second occasion, even if the same proposal is sent back to the President, unchanged. This safeguard was introduced by the Janata Party-led government through the 44th Amendment of the Constitution of India in 1976, in the aftermath of talks that the then President of India, Fakrhuddin Ali Ahmed, was not inclined to impose emergency on June 26, 1975, on the recommendation of the then PM Indira Gandhi, but there being no provision for sending back the proposal to the Government for reconsideration even once, the then President was constrained to sign the proclamation of emergency. Another safeguard that was introduced by this amendment was that the advice of council of ministers has to be communicated to the president in writing by the prime minister and it has to be said that it is the unanimous opinion of the cabinet, and if there is a dissent that is also to be communicated to the President of India.

The President acts as a torchbearer, friend, counsellor, and guide of the Government, and assumes immense powers at the time of Constitutional crisis. It may be pertinent to point out that the power of the President depends on how active the President is and how much power he exercises as given by the Constitution of India. It must be noted, however, that the exercise of power does not mean confrontation with the government, or stalling the process of governance which is the legitimate right of a democratically elected government in a republic like India, where the Government is responsible and accountable to its people through the Parliament.

The president is a functionary who works for every citizen of India, is looked upon with great hope to lead the country and is expected to be a neutral person protecting and preserving the Constitution. If we see the past presidencies, APJ Abdul Kalam was one such president who initially was a nominee of the BJP-led NDA, but was elected unanimously by both the major coalitions, i.e., the UPA and the NDA, and all other parties supported him except the communist parties' block. Kalam served as President with both the coalitions, i.e., Shri Atal Bihar Vajpayee-led NDA (2002-2004), and Manmohan Singh-led UPA (2004-2007), where he could exercise the role of a neutral president, acting whenever it was necessary within the Constitutional framework and tried to perform the role of protector and guardian of the Constitution. Kalam never intervened in the government policies in a routine manner unless he was fully convinced that it was necessary to do so as the head of the state to preserve, protect and defend the Constitution, which made him a role model for most Indians.

One of the most important powers of the President under Article 111 of the Constitution is to give assent to a bill passed by the Parliament, however, the President need not act on the advice of the council of ministers but can take an independent view in respect of the bill. The President when presented with the bill has three choices, (a) Sign the bill, (b) Refuse to sign it and (c) exercise his right to send the bill back to the Parliament for reconsideration. In the last of the enlisted powers, the President gets an opportunity to examine the legality and propriety of a bill, whether the bill passed is in national interest or whether it is for the welfare of the common people or not. This power, however, is exercised very rarely by the Presidents, though it should be exercised more often whenever it is necessary to caution the Government and the Parliament to pass legislations which are in the interest of the country, and not for any political or extraneous reasons. The Parliament passed in 2006, Prevention of Disqualification [Amendment Bill] popularly known as the "Office of Profit bill" which came to President Kalam for approval, he discussed it with the legal experts and personally felt that the manner in which exemptions were given was arbitrary, and after obtaining legal opinion he returned the bill to the Parliament for reconsideration which is a rare example in the history of governance. He wrote in his message to the Parliament, "while having the highest regards for the sagacity and mature wisdom of my fellow parliamentarians and with due deference to the parliament, I would like the Parliament to reconsider the proposed bill". However, the UPA Government chose to send the bill back to him without any amends, as the bill was again passed by both houses of the Parliament, the President then had no other choice except to approve the bill. However, President Kalam's returning the bill made a big impact and a lot of developments took place subsequently which made the bill more balanced functionally.

Therefore, the Constitutional position of the President of India is very important and the President has got abundant powers to preserve, protect and defend the Constitution. The President can keep the government of the day under check and can be instrumental in guiding the government to observe Constitutional morality and to ensure separation of powers between legislature, judiciary and executive.

It is in the interest of a large democracy like India that an independent authority is elected as the head of the state, which keeps a balance in governance between the Centre and the state as per the Constitutional scheme. We are all set for electing the 15th President of India, and the ruling coalition, much like 2002 when APJ Abdul Kalam was elected as the President, should try to evolve a consensus for the post of President so that the incumbent can work in the best interest of the country without being seen as a representative of a political party or group of political parties. The country needs a president who exercises his Constitutional powers and does not sit as a mere spectator exercising ceremonial duties and functions, as it is crucial that the President acts as a guide, and neutral umpire to preserve, protect and defend the Constitution of India.

SM Khan is Press Secretary to the 11th President of India and Shahryar Khan is an Advocate at Delhi High Court. Views expressed are personal