The two Houses of Parliament enact legislation in India. But, like in the United States, these Bills do not become law until the President assents. Article 111 in India’s Constitution provides for assent generally: “When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom”. The subsequent proviso moderates this discretion: The President may return the Bill “as soon as possible” to the Houses with a message to reconsider it. However, if the Houses enact the Bill with or without amendments and present it to the President for assent, “the President shall not withhold assent therefrom”. The proviso also has a further exception: The President cannot return Money Bills for reconsideration. The power to veto legislation is an important one. In presidential systems, it is often the subject of intense political and academic debate. In contrast, the provision has hardly attracted attention in India; it is one of India’s forgotten powers.
Article 111 is not without significance. The President has at least two options. He or she may assent to a Bill; ordinarily it is the least controversial option. Or the President may return the Bill to the Houses seeking reconsideration. This is undoubtedly more controversial. It is, after all, a public statement that the President disagrees with the preferences of the two Houses. Depending on the circumstances, such a return may take censorial overtones against the government. But when should the President undertake such an exercise? Article 111 sets no definite time line. The provision merely commands the President to “declare either that he assents to the Bill, or that he withholds assent therefrom”. If the President evinces interest in returning the Bill, the proviso nudges him or her to do so “as soon as possible”. These amorphous words clearly make “delay” an option. Similarly, a returned Bill does not enjoy the protection of a specific time line. The proviso merely says that if both Houses re-enact the Bill with or without amendments, the President “shall not withhold assent therefrom”. But more crucially, is a third option possible? May the President sit on a Bill indefinitely? Unlike the American provision on assent (Article 1 § 7), there is no assent by implication in India. For a Bill to become an Act, the Indian President must affirmatively assent. That naturally raises the tantalizing possibility of “death” – not just delay – by presidential inaction: May a President kill a Bill by doing nothing? Even this cursory reading of Article 111 demonstrates its invasive potential. And surely this makes its “forgotten” stature all the more puzzling.
The amnesia has a long history. It began in the Constituent Assembly itself. Unlike many other provisions of the Constitution, Article 111 in its draft form commanded little comment or criticism. Members barely noticed it. In fact, the original draft of the provision was even more skewed in favour of the President. The proviso was differently worded: “Provided that the President may, not later than six weeks after the presentation to him of a Bill for assent return the Bill … to the House with a message requesting that they will reconsider the Bill or any specific provision thereof, and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and the Houses shall reconsider the Bill accordingly”. This proviso offered a specific time line within which to return a Bill. However, it said nothing about the fate of returned Bills. In the Constituent Assembly, two changes were made. First, the specific period of “six weeks” was substituted with the more amorphous “as soon as possible”. B. R. Ambedkar, one of the principal architects of the Constitution, shepherded this amendment. Second, and more importantly, the proviso was elongated to explain the fate of Bills reconsidered by the two Houses and thereafter returned to the President. L. N. Mishra proposed that the following words be added: “if the Bill is passed again by the House with or without amendment and presented to the President, the President shall not withhold assent therefrom”. Without these words, the proviso, he argued, was “incomplete and inconclusive”. The Constituent Assembly agreed, and voted it in. With two amendments and no further discussions, members, it seems, forgetfully voted Article 111 into the Constitution.
The provision, though, did not remain forgotten for long. Sharp disagreements erupted over constitutional provisions even before the ink had dried on the newly inaugurated Constitution. Ironically, Article 111 was in the centre of that political storm. In July 1950, Rajendra Prasad, India’s first President, wrote to Jawaharlal Nehru, India’s first Prime Minister, questioning elements of the Bihar Zamindari Abolition Bill (a proposed law on land redistribution) and signalling his reluctance to sign it. He was concerned about the inadequacy of compensation for those whose lands effectively stood nationalised. Nehru’s Cabinet pondered over the matter, and decided that the compensation scheme provided for in the Bill was fair. Prasad persisted. He wrote to Nehru again asking that it be delayed so that the relevant ministries could reconsider his “strong convictions” on the matter. But when Nehru threatened to resign, he gave in. He assented to the Bill along with a comment noting his disagreement. But the second – and more protracted – battle came in September 1951 when Nehru sought to reform Hindu family law by legislation. Prasad immediately made his objections to the Bill known, suggesting to Nehru that he reserved the “right to examine on its merits” and take measures “consistent with the dictates of [his] conscience”. Alarmed by the likelihood of presidential obstruction to a set of reforms dear to him, the Prime Minister wrote to the President arguing that the latter had no “authority to go against the will of Parliament”. Clearly, Nehru read Article 111 as a “routine” provision; the President was to rubber-stamp his assent on Bills without applying his mind. And he lined up a battery of lawyers to make the same point on his behalf. Eventually Prasad gave in. Nehru’s overwhelming victory in 1952 (in India’s first general elections) meant that the President could no longer press his personal objections; Nehru had the people on his side. A little noticed provision in the Constituent Assembly effectively became the source of India’s first major constitutional controversy.
But once Prasad folded, the provision too, it seems, folded with him. It would take almost 40 years before Article 111 would be the source of controversy. It was 1987. The two Houses of Parliament enacted the Mail Interception Bill which among other things gave the executive extensive powers to intercept personal communication. President Zail Singh was unimpressed. The provisions of the Bill, he felt, violated the right to privacy. He sat on it. On two occasions, he informally suggested certain changes to it. When nothing came of those efforts, he simply sat on the matter indefinitely. The President killed the Bill by sheer inaction. Article 111 reared its head again; and the possibilities of that provision were on full constitutional display.
The most recent controversy involving Article 111 came in 2006. It had to do with the Office of Profit Bill, 2006. The two Houses of Parliament hurriedly enacted a self-serving piece of legislation that protected members from disqualification with retrospective effect. Unsurprisingly, when it reached President A. P. J. Kalam, he took his time. He consulted with constitutional experts and wrote back to the two Houses, suggesting that the Bill be reconsidered. This was the first time a Bill was vetoed and formally returned. The Manmohan Singh Government, however, chose not to pay heed to those suggestions. The same Bill was re-enacted and sent back to the President. This too was new. Naturally, never before was a President confronted with a “returned” Bill. Did President Kalam have the authority to simply sit on the returned Bill indefinitely à la Zail Singh? The answer remains unclear. After more than a fortnight of tantalizing suspense, Kalam relented. He made – what he later described as – the “toughest” decision of his presidential term and signed the Bill into law.
These three controversies attest to the potentials of Article 111. Under right circumstances, it may be the source of great unease for a government. And yet, remarkably little has been said about it in scholarly literature. It remains poorly read and poorly understood – in fact almost forgotten. The amnesia though hasn’t served India well. This must change. There is much to be gained by engaging the President on debates on parliamentary legislation; Article 111 needs to be resurrected. In my next posts, I shall turn to the existing analyses (the little that exists anyway), explore their inadequacies and offer an alternative reading – one that enlivens the provision and renders the President relevant to the project of parliamentary lawmaking.