However politically malafide the government’s motives related to the crisis created by the Gujarat Governor’s appointment of the Lokayukta might be, one great good has emerged from it. Legal experts have been compelled to mull over the precise powers of Governors and by implication of the President. A commentary by a legal correspondent in a national daily recalls the arguments advanced in the Supreme Court (SC) case of Shamsher Singh versus the Punjab government (1974) which has had a crucial bearing on this question. The SC ruled that the President was bound by the advice tendered by the council of ministers. The SC had in a ruling described the President of India as a “titular head”. I have consistently questioned this flawed ruling that has no basis in our explicit and written Constitution.

The counsel for Shamsher Singh had argued that wherever the Constitution had explicitly vested powers in the President and the Governors, they could not be overseen or overruled by the ministers. The SC reacted by the following observation:

“How ambitious and subversive such an interpretation can be to parliamentary (and popular) authority unfolds itself when we survey the wide range of vital powers so enunciated in the Constitution. Indeed, a whole host of such Articles exist in the Constitution, most of them very vital for the daily running of the administration and embracing executive, emergency and legislative powers either of a routine or momentous nature.”

If the President acted on his own then the Judges said,

parliamentary democracy “will become a dope and national elections a numerical exercise in expensive futility… we will be compelled to hold that there are parallel authorities exercising powers of governance, as in the diarchy days, except that Whitehall is substituted by Rashtrapati Bhawan and Raj Bhawan. The cabinet will shrink in political and administrative authority…remember …the President himself is elected on a limited indirect basis.” 

The sheer arbitrariness and ineptitude of this ruling is shocking. Why could not SC consider that all the powers vested in the President actually conferred responsibility to the office? As for the “limited” mandate of the President it is considerably wider than that held by any PM. The PM is elected by the Lok Sabha, not by the people directly. The President is elected by both Houses of Parliament and by all the State Assemblies in the nation. By a minor amendment that does not violate the basic structure of the Constitution the President can be elected not by sitting legislators but by incoming incumbents in order that the voters automatically have a say in electing the President. All that would be required is to make the terms of President and legislatures co-terminus. The proposal to give fixed terms to legislatures was seriously considered by Parliament earlier. The voters would know whom the legislators they elect would nominate as their respective President. The President’s election would be for all practical purpose direct.

It is astounding how jurists continue to betray their pathetic unthinking sycophancy to Britain and to Pandit Nehru who unreasonably and whimsically overruled the far more cogent and logical arguments advanced by President Rajendra Prasad regarding the President’s powers. If the interpretation of the Constitution were to rely on the baseless assumptions of the SC, why was it written at all? Were the framers of the Constitution morons who wrote the world’s longest Constitution only to have it rubbished by conventions that found no mention in its written text? Have the worthy SC Judges cared to delve into why during a debate in the Rajya Sabha the late BR Ambedkar on September 2 1953 said that the Constitution could be burnt? He told the House:

"We have inherited the idea that the Governor must have no power at all, that he must be a rubber stamp. If a minister… puts up a proposal before the Governor, he has to ditto it. That is the kind of conception about democracy which we have developed in this country…my friends tell me that I have made the Constitution. But I am quite prepared to say that I shall be the first person to burn it out. I do not want it. It does not suit anybody...."

Ambedkar was a brilliant student who studied law in America. The similarity between America and India in size and diversity must have been uppermost in his mind while he drafted the Constitution. Would not the distortion of a Presidential system by converting it into the Westminster model by Pandit Nehru have disgusted him? The SC’s glib and hollow reasoning in the Shamsher Singh versus Punjab case merely reinforced the distortion. Members of the elite should renounce intellectual dishonesty and moral cowardice and start interpreting correctly the Indian Constitution as written, and not as wrongly practiced for the past six decades.

The SC is advised to review its erroneous judgments of the past that distorted the provisions of the Constitution. If that is done India’s First Republic will survive. The system would change but the Constitution would remain intact. Otherwise there is serious possibility that the distortion and the decline of the system would continue unabated to compel the framing of a new Constitution leading to the emergence of India’s Second Republic. That could possibly entail a drastic and painful interruption in democratic governance.