Tag Archives: India

Carole Spary – From parliament to president: Symbolic representation and the candidacy of Meira Kumar

This post first appeared on IAPS Dialogue: The Online Magazine of Institute for Asia-Pacific Studies at the University of Nottingham. Thanks to the Director of IAPS, Professor Katharine Adeney, for allowing the repost here

In late June, a collective of 17 opposition parties led by the Indian National Congress Party (Congress) announced Meira Kumar, the former Speaker of the lower house of the Indian Parliament, as its nominee for the election of the President of India, due on 17 July. Prior to this, the governing party, the Bharatiya Janata Party (BJP), had announced Ram Nath Kovind, the governor of the north Indian state of Bihar as its nominee. Both are positioned as Dalit leaders, where Dalits are the most marginalised group in India’s unequal caste system. If elected on 20 July, Kumar would not be the first woman or Dalit to become President of India – Pratibha Patil (2007-12) and KR Narayanan (1997-2002), respectively, precede her. But she would become the first Dalit woman President.

Symbolic representation in candidate selection is nothing new for Meira Kumar. As the first woman Speaker in India (2009-2014), she provided her party, the Congress, with an important precedent. However, throughout her presidential campaign, she has rejected the emphasis on her and her rival candidate’s Dalit identity, stressing ideological differences with the governing party. Gender has been absent from the debate, except for the media’s labelling of Kumar as ‘Bihar ki beti’ (Bihar’s daughter) due to her place of birth. The unshakeable focus on identity demonstrates tensions inherent in symbolic representation – while it provides candidates and parties with political capital, candidates find it hard to control the message of who and what they claim to represent, with identity taking precedence over ideas.

Symbolic representation in Indian politics: intersecting identities

Kumar’s election as Speaker in 2009 exemplified complex intersections of gender, class, and caste underpinning debates on women’s under-representation in electoral politics in India and elsewhere. The unanimous election of a woman Speaker compensated for the Congress party’s failure to deliver a manifesto promise on parliamentary gender quotas in their previous term (2004-2009). The additional symbolic capital generated by Kumar’s intersecting identities meant she was chosen above other potential women candidates. Congratulatory speeches by MPs in the Lok Sabha professed the importance of her election for women, especially Dalit women. Kumar acknowledged in a press interview that her election as Speaker sent a positive message to women and Dalits. Sometimes overlooked is the fact Kumar was not the first woman to occupy a senior presiding role in India’s national parliament, that too a woman from an underrepresented group in parliament: Muslim MP Najma Heptulla was Deputy Chair of the upper house (Rajya Sabha) for seventeen years. As a more senior constitutional position, however, the first woman Speaker was an important milestone.

MPs were also optimistic she would represent women’s interests better than her predecessors. anticipating the passage of the long-debated legislation on gender quotas in parliament and state assemblies, which was eventually passed in 2010 during Kumar’s term but only by the upper not the lower house, and had not been introduced in the lower house by the end of Kumar’s term in 2014. Some past Speakers, particularly those who were not from among the ‘somatic norm’ of parliament – predominantly Hindu, upper caste, north Indian, and male – were subjected to similar expectations, like the late Speaker P.A. Sangma (1996-1998) whose election was expected to enable visibility of concerns of the North East.  This ‘burden of representation’ for under-represented groups is rarely placed on dominant-group representatives, at least to the same degree. Some argued, and still do, that Kumar’s privileged upbringing as a daughter of senior political leader, Jagjivan Ram, meant her experiences are unrepresentative of the ‘average’ Dalit woman in India. While this is a valid critique in class terms, we need to consider further the possibilities of the ideal ‘authentic’ representative, and why more attention is paid to Kumar’s supposed ‘inauthenticity’ than representatives from other dominant social groups.

Presidential candidacy and representative claim-making

Meira Kumar’s presidential nomination in 2017 means she again finds herself in the midst of a debate about identity and representation. She has tried to shift focus away from her and her rival candidate’s caste identity, reportedly saying that ‘”When an election to the highest office is being held, the Dalit issue is being raised. Earlier, the capabilities, merits and achievements of the two candidates used to be discussed and no one talked about their caste”. Elsewhere she was quoted as saying: ‘”Do we – Ram Nath Kovind and I — have no other qualities?…”’. In so doing, Kumar attempted to control representative claims. Throughout her presidential campaign she stressed support for secular and democratic values such as freedom of speech, contrasting this with the governing party, criticising a climate of fear and rising casteism and communalism and increasing violence against Dalits and Muslims. She publicly appealed to the electoral college to vote with their conscience.

Consequently, this presidential election has been more confrontational than her Speaker election in 2009, or her earlier diplomatic career. As outgoing Speaker in 2014, Kumar published a volume of her speeches linking her diplomatic career with her experience of parliamentary diplomacy, hosting foreign dignitaries and bilateral delegations, and participating in Inter-Parliamentary Union and the Commonwealth Parliamentary Association activities. As Speaker, she claimed she took care to remain above political preferences, and that her speeches were a ‘reflection of a broader outlook’. These experiences provide a good foundation for presidential office. But her principled campaign focus begs the question of how she will manage this confrontation if elected, given conventional relations between the President and Prime Minister.

Gender issues have been notably absent so far in the campaign; if Kumar has discussed gender explicitly, the media have not covered it prominently, except to label her as  ‘Bihar’s daughter’. Perhaps this is because the symbolic dividend of a second woman President is reduced. Perhaps it is because neither the governing or opposition parties can claim a strong track record on gender issues. Perhaps it is because some of the opposition parties supporting her candidacy had vigorously opposed issues such as the gender quota Bill during Kumar’s term as Speaker. Perhaps it is because the current Speaker is an experienced woman parliamentarian from the BJP. Most plausibly, it is because casteism and communalism are the common denominators on which those parties supporting her can agree, even if in the past these have manifested in gendered forms.

The campaign emphasis on democratic values was a public intervention at a much needed time. Whatever the outcome on 20 July, this election demonstrates once again that representative claims by candidates, their supporters and detractors, about who and what they represent, are vigorously contested, and that identity and symbolic representation are likely to play an important role in electoral politics in India in the future. Is symbolic representation enough? No – precedents are welcome but the substantive transformation for marginalised groups needs to follow. Allrepresentatives, not just those perceived to embody more marginalised identities, need to be held accountable for bringing about the change.

Carole Spary is an Assistant Professor in the School of Politics and International Relations and Deputy Director of the Institute of Asia and Pacific Studies at the University of Nottingham. She tweets at @carolespary . For more on Meira Kumar’s election as first female Speaker in 2009, see the author’s published book chapter on first female Speakers co-authored with Faith Armitage and Rachel Johnson (in Rai and Johnson’s edited collection Democracy in Practice, 2014, Palgrave Macmillan). Image credit: CC by Public.Resource.Org/Flickr.

Presidential profile – Rajendra Prasad, former president of India

The Indian Constitution came into effect on 26 January 1950. Later that day, Rajendra Prasad, a distinguished veteran of the Indian National Congress became the first president of the newly created Republic of India. The Constitution’s fate would rest significantly on Prasad’s shoulders. Was he up to the task?

In designing its central institutions of government, India heavily borrowed from the Westminster model. But the highest constitutional office – an elected presidency – wasn’t one of them; it had no modern British lineage.

Designing this new office proved challenging. The Constituent Assembly, a large body of modestly elected persons, agonized over many models and multiple drafts. As the president of the Constituent Assembly, Rajendra Prasad was intimately involved in the deliberations.

The Assembly had three models to choose from: a monarch, a directly-elected president or an indirectly-elected president. Suddenly inventing a monarchy wasn’t feasible. So, the Assembly had to opt for more democratic varieties. In its first round of deliberations, Assembly opted for a directly-elected president. But doubts soon appeared. Would a president backed by a national mandate collide with a prime minister? Better sense prevailed, and the Assembly backed off. An indirectly-elected president it would be.

Type was only one issue. Equally important was the issue of powers: Precisely, what powers should this indirectly-elected president have? With the Westminster model looming large, members agreed that the president, like the British monarch, wouldn’t rule. Prime ministers and their cabinets would. A ceremonial president is what the Assembly, it seems, settled on. Remember: Prasad helped craft that agreement.

Curiously, the Constitution, its precise language, did not reflect that agreement. Instead, it reposed the president with two major roles. Article 53 made the president the repository of executive powers: “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.” Article 74, in the original Constitution, heightened his sense of power: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions.” And Article 79 made the president a constitutive part of Parliament: “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the council of States and the House of the People.” This was in addition to scores of other provisions that seemed to confer specific powers on the president.

Soon after the Constitution came into effect, skirmishes broke out between President Prasad and Prime Minister Jawaharlal Nehru. Prasad no longer felt bound by the “agreement” in the Constituent Assembly. The powers of the president, he said, were those the text of the Constitution dictated. Nehru, on the other hand, read the provisions and the powers they conferred through lens of the agreement in the Assembly. Reading the provisions without any sense of the Westminster system, he said, would undo the delicate balance the Constitution had created.

The battle lines were clearly drawn. Prasad emphasized the text above all else. To him, the text meant how it read. To Nehru, the constitutional text was merely a gloss. Making sense of it required an understanding of India’s gradual adoption of the Westminster system.

This interpretative battle was fought several times, and they were India’s original struggle over constitutional meaning. High on Prime Minister Nehru’s agenda early on was the modernization of Hindu personal law – the law of marriage, divorce, adoption and inheritance of Hindus. Nehru wanted to reform and modernize Hindu customary law. But only Hindu law. Personal laws of Muslims and other religious minorities didn’t figure in his legislative agenda. Prasad objected, both on constitutional and personal grounds. Reforming only Hindu codes would be discriminatory, he said. He made it known that if enacted by the two Houses of Parliament, he would exercise his independent judgment when it came to assent. He also made it clear that he would likely withhold assent – something a British monarch hadn’t done for many centuries.

And then there were land reform Bills that both Houses of Parliament overwhelmingly voted for. But Prasad agonized over them, again on constitutional grounds. Not enough compensation had been provided for, he said, to those whose land had been taken over. Nehru wouldn’t have this. He insisted on a rubber-stamp president, not an independent, political one. With Prasad insisting on real powers, Nehru lined up a battery of legal eagles to make the case for a republican president in name only. And then there were threats, too. Unable to get his way, Nehru on more than one occasion threatened to resign if Prasad stalled his agenda.

Ultimately, the Indian electorate settled the matter. The first general elections in 1952 conferred on Jawaharlal Nehru a massive democratic mandate. Prasad saw the writing on the wall. He backed off. The text, its powers, didn’t matter; it didn’t mean what it said. India, after all, was going to be a Westminster system. (Between 1950 and 1952, president and parliament functioned on the basis of elections last conducted in 1937.)

Rajendra Prasad remained president until 1962. He was first formally (indirectly) elected in 1952, and then again, in 1957. So far, he remains the only person to have served two terms as president. With his reading of presidential powers written off by the Indian electorate, Prasad for most his long term stood relegated to ceremonial functions – in line with Nehru’s original conception of what the presidency was meant to be.

It should, then, come as no surprise that Nehru steadfastly opposed Prasad’s candidature as president. But the latter ultimately prevailed within the Congress party. And that shouldn’t come as a surprise. Like Nehru, Prasad, too, had a long and distinguished record in the Congress party.

Born on 3 December 1884 in the Bengal Presidency of Siwan (present day Bihar), Prasad showed great promise as a student. He graduated with a Masters in Economics from the University of Calcutta in 1907, and later completed his Masters in Law in 1915. He earned a doctorate in law from Allahabad University in 1937.

His association with the Congress party began during his student years in Calcutta (now Kolkata), and he formally became a member of the party in 1911. He became the president of the Indian National Congress in 1934, and again in 1939. He also became a minister in Jawaharlal Nehru’s Interim Government in 1946. In 1962, he was conferred the highest civilian honor in India, the Bharat Ratna. He died on 28 February 1963.

Rajendra Prasad lost out in making the president an independent center of power. But as Indian politics degenerated into the chaos of coalition politics in the 1990s, once again, there were calls for the president to assert his “independence”. With the comfort of a stable single-party rule over, political parties and commentators in India looked to the president to exercise authority and judgment. Perhaps Prasad was right all along – and far too ahead of the times.

Presidential profile – APJ Abdul Kalam, former president of India

Avul Pakir Jainulabdeen Abdul Kalam, commonly known as APJ Abdul Kalam, was sworn in as India’s 11th president on July 25, 2002. A space expert and science administrator by profession, he became the third Muslim (in a predominantly Hindu country) and the first scientist to assume the presidency. He was also the first, and so far, the only person to have stepped into the office without a background in politics.

Presidents in India are indirectly elected by a complex arithmetic of proportional voting. Members of both houses of parliament and all state legislatures are eligible to vote in such elections. Any person aged 35 or more, and eligible to be a member of the lower house of parliament may stand as a candidate. Elections, though, are mostly contested along party lines, and the composition of the electorate and the method of voting mean that the outcomes are often known well in advance.

The center-right Bharatiya Janata Party (“Indian Peoples Party) (BJP) and its National Democratic Alliance, then in power in New Delhi, along with some regional parties nominated Kalam’s candidature on June 10, 2002. A week later, on June 18, 2002, the Congress Party, the principal opposition at the center, also announced its decision to back him. His nomination came months after a state in Western India was rocked by riots along religious lines. Commentators speculated if a Muslim had been nominated to reset India’s (tolerant) image, nationally and beyond.

Kalam, expectedly, won his election by a massive margin, and was sworn in on July 25, 2002. He would remain in office for 5 years.

The Indian presidency, it is often said, is modeled after the British monarchy. At an obvious level, the comparison is misleading. Britain is a monarchy, India is a republic. The president, the head of state, is elected. Indeed, the Indian president is the only nationally, albeit indirectly, elected office under the Constitution. He or she has claim to a degree of constitutional and electoral legitimacy monarchies don’t.

Nonetheless, the Indo-British comparison remains the standard template both in academic and judicial thinking.

Perhaps the most important power of the president is to appoint a prime minister. Ordinarily, this is an easy task. Imported British conventions dictate that the leader of the party with a majority in the lower house of parliament must be invited to form the government. But there are exceptions, and Kalam faced a peculiar challenge two years into his term.

In May 2004, the Congress-led United Progressive Alliance won an upset election victory against the BJP-led National Democratic Alliance. The Congress party elected its leader, the Italian-born Sonia Gandhi, to be the leader of the parliamentary party.

Immediately, protests broke out. Demonstrations and counter demonstrations happened. To many it was a matter of national pride. Adapting from the US Constitution, only naturally born Indian citizens should be prime ministers, they argued. The Indian Constitution, of course, imposes no such limitation.

Kalam had a decision to make. As he weighed his options, some speculated about his reservations in appointing Sonia Gandhi as the prime minister. Ultimately, he didn’t need to decide. Gandhi, enlightened by her “inner voice”, refused the party’s nomination, and instead suggested economist Manmohan Singh as the prime minister. (Singh would hold the prime ministerial reigns for two full terms.) In his account of the presidency, Kalam, for his part, denied claims about his reservations about Sonia Gandhi. He would have appointed the leader of the majority party, whoever that be, he wrote.

President is the head of state, and all decisions are taken in his name. Judicial opinions and academic commentary, once again, interpret the powers of the presidency through a British lens. A president exercises formal powers, it is said; the real powers vest with the council of ministers headed by the prime minister. The latter decides, the president delivers. His discretion is limited, so goes the conventional view.

Presidents may have limited discretion, but they also have endless time in which to decide those matters. And President Kalam demonstrated the enormity of the passive powers of his office. He did so while dealing with mercy petitions of convicts on death row. Ordinarily, mercy petitions are decided by the council of ministers, and passed on to the president for approval.

Kalam, strongly opposed to the death penalty, simply sat on the petitions. He did nothing about them. Of the 21 petitions forwarded to him during his term in office, he sat on all but one.

Occasionally, his inaction attracted controversy, but Kalam remained steadfast. An unequal application of the death penalty (almost all death row convicts were impoverished citizens), he said, was a violation of the Constitution.

Occasionally, his action attracted controversy, too. In India, the central government may dismiss state governments under certain circumstances, impose president’s rule, or dissolve the legislature and initiate new elections. The decision to dismiss a state government is taken by the council of minister but must be approved by the president. In 2005, Kalam signed off on a controversial dismissal by the UPA government, something, he later regretted. He should have studied the matter further, he said, instead of hurrying it. (The dismissal was challenged in the supreme court, and eventually overturned.)

Kalam’s most challenging moment arrived in 2006 after both houses of parliament enacted a self-serving piece of legislation. It retroactively removed disqualifications many members of parliament suffered by holding “offices of profit” – something the Constitution bars. Kalam agonized over the Bill at his desk. He found it unprincipled and hasty. He formally returned the Bill to the two houses asking them to reconsider – the first and only time a president in India has done so. The houses didn’t reconsider; they simply reenacted it. Once again, it landed before Kalam. Unwilling to precipitate a constitutional crisis, he eventually gave his assent. In his autobiography, he called this the “toughest” decision of his presidency.

As he neared the end of his term, questions arose about re-nominating him to the presidency. An organic groundswell of support appeared both in print and electronic media. Newspapers carried large numbers of op-eds and letters to editors expressing support for Kalam. Online petitions swelled with support. For a man who never stood for direct elections, Kalam was a home run; he would have swept away any opposition in a direct contest.

The NDA, his original proposer, extended its support. The Sonia Gandhi-led Congress Party, though, refused. We may never know why.

Fali Nariman, India’s preeminent jurist voiced what millions of Indians felt when he wrote of Kalam’s departure: “We will miss him — that unconventional figure who became India’s First Citizen in July 2002. Never pompous, not even ‘presidential’, he walked into the Palace at Raisina Hill with few worldly goods — he now leaves with even fewer … We could have asked him to stay: but we didn’t … Of him it can be said, as Winston Churchill once said about his departed king: ‘He nothing common did, or mean, upon that memorable scene.’ Memorable scenes are rarely re-enacted, but they are always remembered.” (Fail Nariman, “We’ll miss you, Dr Kalam”, Indian Express, July 23, 2007)

From his first days in office, Kalam was massively popular. Old and young, across political lines, identified with him, and endearingly referred to him as the “people’s president”. His simplicity, his infectious, if inchoate, optimism was his strength. India’s only bachelor president, and in his 70s, he was widely popular with students, and often interacted with them.

A lifelong teacher, poet, and the author of many books, Kalam maintained associations with several universities in India and elsewhere after his presidency. Perhaps fittingly, he died (of a heart attack) while lecturing to a group of students at the Indian Institute of Management, Shillong. He lived in the classroom and died there, too.

At least the for the foreseeable future, APJ Abdul Kalam will remain India’s most endearing apolitical politician.

No End in Sight: The Endless Cycle of Mercy Petitions in India

The power to pardon is a common one; most heads of state enjoy it. Article 72 of the Indian Constitution confers it on the president: “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence: (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death”. Governors enjoys similar powers at the state level under Article 162: “The Governor of a State shall have the power to grant pardons … [to] person convicted of any offence against any law relating to a matter to which the executive power of the State extends”.

This power to grant pardons has endured several controversies in India. Broadly speaking, they fall in three different categories. Some issues had to do with the “what” question. What is the scope of this power: what does it mean to “pardon”, “remit”, “commute” and so on? Some controversies have had to do with the “when” question: When are presidents and governors qualified to pardon? Can they do so while appeals are pending? Can the same person benefit from these powers more than once? Lastly, a large number of controversies have to do with the “how” question: How should presidents and governors exercise their power to pardon? Is a hearing necessary? What factors should they take into account? Should they be consistent in their decisions to grant or reject pardons? For how long can they hold on to pardon files? Are there time limits on the exercise of this power? At the core of these questions, is the common tension between limited and unlimited power. The power to grant pardons is a constitutional one: it is derived from the constitution. But is it limited? Are their constitutional constraints regarding the manner in which the power may be exercised? India’s Supreme Court has greatly vacillated on these questions. The jurisprudence of pardon in India isn’t in a happy state.

In this blog post, I shall briefly canvas the “what” question. But my focus here is one of jurisdiction, not the meaning of the specific powers enumerated in the two provisions. Presidents and governors, broadly speaking, enjoy similar kinds of powers: Both may grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute sentences. But they do so over different matters, or so it seems. The president’s jurisdiction extends to punishments and sentences awarded under federal laws. The governor’s jurisdiction is limited to those awarded under state laws. In practice, the division isn’t as neat. In India it is common to charge persons simultaneously under laws passed by Parliament and the state legislature. If found guilty, they may be convicted under both types of laws. Their sentences almost always run concurrently. As a result, persons may serve sentences for having violated both central and state laws. In such instances, both the president and governor, it seems, are qualified to consider petitions under Articles 72 and 162. What if a governor pardons a convict while the president rejects her petition? The power of the president and the governor to pardon are plenary in nature: Both are provided for in the Constitution. They do not stand in a hierarchy. As such, one cannot – does not – give way to the other.

The difficulty regarding the scope of the two provisions is further accentuated by the reference to death sentences in Article 72. The provision confers “in all cases where the sentence is a sentence of death” the power on the president to suspend, remit or commute it. Death penalty is legal in India, and both federal and state legislation may prescribe it for various offences. Because state legislation may also prescribe the death penalty, governors under Article 162 retain the power to deal with such sentences in appropriate cases. But this creates an uneasy situation. How may one reconcile Articles 72 and 162? One way is to read Article 72 exclusively. It says that the president has the power to commute death sentences “in all cases”. Perhaps it means what it says: the president will deal with all cases of the death penalty.

There are two problems with this: one has to do with interpretation; and the other with practice. The problem of interpretation is an obvious one. Conferring exclusivity to the president on death penalty matters implies that Article 162 doesn’t mean what it says. Governors under this view wouldn’t enjoy the authority to deal with death penalty matters even if the sentences are pursuant to laws enacted by state legislatures. The second problem has to do with practice. Since 1950, governors have routinely exercised their authority under Article 162 to commute death sentences. The “exclusive” interpretation was never taken seriously. Consequently, presidents and governors have in many instances dealt with the same mercy petitions.

Usually, convicts take a serial approach. They petition the governor first. If they succeed, the matter ends. If they fail, they approach the president. The constitution doesn’t specify the number of times convicts may approach the governor or president for mercy. The conventional understanding is that they may do so more than once, provided “new matters” that deserve to be considered. New revelations, even hearsay ones, delay etc have been treated as new issues that make a fresh mercy petition worthy. A farcical script was recently played out in India. Yakub Memon was convicted and sentenced to death for this role in the serial blasts that rocked Mumbai (Bombay) in early 1993. This sentence was upheld the High Court and the Supreme Court. As the day of execution neared, a flurry of petitions were filed with the president and the governor. Soon after the governor rejected it, a new one was filed with the president. The governor’s rejection was deemed to be a “near circumstance” for approaching the president. Soon after the president rejected it, Memon’s lawyers approached the Supreme Court arguing that his petition was wrongly rejected. The court dismissed the matter. This was again used as a new ground and a new mercy petition was filed before the governor. The circle was repeated. On 28 July 2015, judges of the Supreme Court woke up to hear a final challenge against the rejection of this latest mercy petition by the president at 2.30 AM. Couple of hours later that morning, he was finally executed. An exasperated Court asked: should there be limits to the number of times a person may petition the governor or president, and seek a review of those executive decisions?

The constitution doesn’t lay down any limits. Perhaps the challenge lies in the provision itself. What is achieved by allowing the same convict to approach both the governor and the president on the same matter is not immediately clear. An exclusive reading of Article 72 would take away the governor jurisdiction to deal with death penalty cases. One cause of delay will be removed instantly. Presidents would have the sole authority to review these petitions. But that still leaves open the question of numbers: how many times is it acceptable to approach the president on the same matter? Till conventions grow, or some guidelines are judicially pronounced, the circus of mercy petitions is likely to continue.

Presidential Ordinances in India: An Analysis

India has a parliamentary democracy. Ordinarily, laws are enacted by Parliament. But India’s Constitution also provides for an exception; namely, Article 123. It says that the President may promulgate ‘ordinances’ if at least one House of Parliament is not in session and ‘he is satisfied that circumstances exist which render it necessary for him to take immediate action’.

Five things about this exception are worth noting. In keeping with India’s Westminster credentials, the power to promulgate ordinances is exercised by the Council of Ministers; the latter decide if ordinances are necessary. Presidents formally promulgate them. They enjoy some discretion, the precise scope of which still remains unclear. Second, ordinances may be promulgated ‘except when both Houses of Parliament are in session’. That is, it may be done even if either the Lower House or the Upper House of Parliament is still in session. Third, ordinances are limited to circumstances when it is necessary to take ‘immediate action’. They are predicated on some form of legislative urgency and, unlike parliamentary legislation, require additional justifications. They cannot be promulgated merely because the Council of Ministers so desire. Fourth, and most importantly, ordinances are like parliamentary legislation; they have the ‘same force and effect’. They are not rules, orders, by-laws or delegated legislation of some kind. Rather, they are legislation proper. Consequently, there are no substantive limitations. Presidents are competent to do through ordinances all those things Parliament may achieve through Acts. Fifth, ordinances are not permanent. Unless converted into Acts through the usual legislative procedure, they ‘ceases to operate’ six weeks from the day parliamentary sessions resume.

This vesting of original legislative power on the executive is perhaps anomalous, but not necessarily radical. Under Article 123, Parliament, after all, retains final authority. It may approve ordinances or reject them. But that is a mistaken view. After nearly 65 years of use and abuse, interpretations and amendments, Article 123 stands transformed. It effectively functions like a second, or an alternative Parliament in India.

Take the first two conditions, i.e. the conditions that must be satisfied before Presidents may take recourse to ordinances. At least one House of Parliament should not be in session. But who decides whether Parliament is in session, or should be in session? India’s Supreme Court has taken the view that parliamentary calendar is outside the scope of judicial review. Minsters along with the Speaker and the Opposition must decide when and how frequently Parliament should convene. If both Houses are in session, can the Government simply prorogue one House to make an ordinance possible? The Supreme Court has said yes. Consequently, the executive is the sole judge of when the Houses of Parliament are in session, or when they should be in session. The Court will not review this matter. The second condition has attracted a similar fate. Presidents must be satisfied that ‘immediate action’ is necessary.  In 1970, the Supreme Court held that Governments are the sole judge of ‘necessity’; the courts will not get into this question. In other words, when a President on the advice of Ministers concludes that an ordinance is necessary, legally speaking, that is the end of the matter. He or she may promulgate an ordinance for any reason whatsoever, and that is valid. The two pre-conditions, therefore, are not really conditions in any meaningful sense of the term.

What happens when Parliament resumes? An ordinance may become an Act of Parliament. That is the best case scenario for the Ministers. But it may also be voted down. Ministers are also authorised to withdraw ordinances before they are voted in Parliament. Finally, ordinances may lapse; they may ‘cease to operate’ because Parliament takes no action on a given ordinance. Now say that an ordinance is presented before Parliament and it is voted down. Can the executive re-promulgate the same ordinance? In 1987, the Supreme Court answered in the affirmative. While re-promulgation is generally invalid, it may be constitutional under certain – mostly unspecified – circumstances. That judgment effectively makes a Parliamentary vote on ordinances redundant. Irrespective of whether Parliament wants that law or not, the executive can keep the ordinance in force simply by re-promulgating it.

Finally, what happens if Ministers stop re-promulgating a failed ordinance, and allow it to lapse? Like I mentioned earlier, it ‘ceases to operate’. But what does that mean? Imagine a situation where an ordinance was in effect for, say, six months. During that period many actions would have been taken under the ordinance. What happens to all those actions? Do they also ‘cease to operate’? In 1964, the Supreme Court said no; the actions do not get wiped out. All actions initiated or completed during the time an ordinance is validly in force remain permanently valid. What this means is that even if an ordinance fails, it can produce permanent legal effects. Consider an ordinance that repeals an Act, and then ‘ceases to operate’. If the Supreme Court is correct, it implies that the repeal by the Ministers shall become permanent. That is, by any definition, a radical outcome.

Taken together, these decisions imply that the President, acting on the advice of the Council of Ministers, may promulgate ordinances at any time for any reason. More importantly, such ordinances can produce permanent changes in the law even if they fail. Article 123, as a result, has morphed into a second Parliament, and more importantly, renders India’s ‘normal’ Parliament nearly redundant. Compared to the ‘cumbersome’ method of making laws through Parliament, ordinances are easier and quicker; they require neither debates nor votes. It should therefore come as little surprise that 11 ordinances have been promulgated on average every year since 1950. Article 123 is a handy legislative tool for the President, and has been abused more than it has been properly used.

India – A Figurehead President?

In May 2014 Narendra Modi’s National Democratic Alliance won a crushing victory in the world’s biggest election held yet. Modi, whose Bharatiya Janata Party (BJP) dominates the Alliance, was given an awesome mandate winning 336 of the 543 seats available in the popularly elected Lok Sabha. This massive majority, well over the amount needed to govern alone, gave India for the first time in thirty years a Prime Minister untroubled and unhindered by needing coalition concessions or managing disparate parties within a wafer thin majority.

In 1976 the British politician Lord Hailsham famously spoke of the Elected Dictatorship perception where the Government of the day through its party dominance of Parliament could rule almost unencumbered until the next election. All other institutions, so this argument goes, could not or would not stymie the will of the Executive. Not long before Hailsham’s grim prognostication India under Indira Gandhi had its own very real Elected Dictatorship when the country from 1975-77 was ruled through a State of Emergency. Freedom of speech, the right to assembly, Opposition protests and other key components of democracy were suspended and arbitrary arrests, executive abuse, controversial policies and opposition and media detainment ran amok.

Actually, though, Mrs Gandhi herself did not proclaim this extraordinary period in modern Indian politics, which was done to protect her position. The proclamation was made by the President of the Indian Republic, Fakhruddin Ali Ahmed, under Article 352 of the Emergency Sections of the Indian Constitution. This was proclaimed without the Cabinet or parliament’s approval on 25 June 1975. It enabled Mrs Gandhi, who had engineered his election, to rule India by decree on grounds of national emergency and internal disturbance. The actions from that period still resonate around India.

The Indian presidency, elected by the national and regional legislatures, was meant to mirror constitutionally the position of the British sovereign. However, the Indian presidency has key powers, which differentiate it from comparable presidencies. These distinctions are most especially found under Part XVIII – the Emergency sections. Article 352 is described above, but more prevalent has been the so-called ‘President’s Rule’ of Article 356, which enables the Union Cabinet through the President to take full and direct control over any state in the republic. Originally envisaged by constitutional framers like B.N. Rau and B.R. Ambedkar as being powers to be used in only the last resort ‘President’s Rule’ has in fact been used well over 100 times since 1950 – often on dubious and partisan grounds, rather than the breakdown in constitutional machinery that the constitution makers presumed.

The current President of India since July 2012 is veteran Congress politician Pranab Mukherjee who has over four decades of high level political experience including holding the Finance, Defence and External Affairs portfolios at the Union level. He is a loyalist to the Gandhi-Nehru family and approaching his eightieth year has little left to prove.

With many of the great institutions of state dominated by Modi supporters, especially in the wake of the massive May 2014 victory the President, who is formally tasked to ‘preserve, protect and defend’ the Indian constitution remains one important bastion that will resist the Modi advance. With controversial legislation, minority fears, weakened Opposition (so weak in fact that Congress has with its allies just 70 seats in the Lok Sabha) and concerns overs a revived elected dictatorship, the Indian President, with his substantial formal powers, may yet frustrate the Government as India’s gets used to a unique era of cohabitation.

Indian Presidents can either ensure Government power over the state like President Ali in 1975 or they can do the opposite. At the very least President Mukherjee from the splendour of Lutyen’s palace Rashtrapati Bhavan will be fully aware of the powers and responsibilities of his office and will not be a rubber stamp.