Tag Archives: Rajendra Prasad

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 Assent in India

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.