Analysis
When will India wake up?
Even Westminster is wobbling!
Indian constitutional experts and politicians have always assumed that the Indian President is a titular head assigned only ceremonial tasks. The founding fathers of our Constitution have generally received high praise. In fact they were confused and inept. India has the world’s longest written constitution. How is it then that the role of the one individual with the widest elective mandate occupying the highest post is based upon assumption? The rot started with BR Ambedkar. He had said that the President’s position was “the same as the King under the English Constitution: a ceremonial device on a seal by which the nation's decisions are made known” At the same time he said that behind the scenes the President's role was also like that of the British sovereign “to advise, encourage and warn Ministers in respect of the recommendations which they made”.
Why could not this role have been explicitly outlined in our written constitution? Did Ambedkar believe that decades after he had departed Indians should heed his remarks and not what was written about the President’s powers in our written constitution? If unwritten conventions must take precedence of explicit written words, why have a written constitution?
In fact this ineptitude led to an early constitutional dispute between Prime Minister Nehru and President Rajendra Prasad. Nehru went by the unwritten assumption that India was to be governed by Westminster conventions that rendered the President akin to the British Sovereign. Prasad as a lawyer went by the constitution’s written word which gave the President real power and discretion. Nehru prevailed and confusion triumphed. The 42nd constitutional amendment introduced during the Emergency sought to curtail the President’s powers even in writing. The 44th constitutional amendment during the succeeding Janata government sought to partially restore the status quo. Regardless of both amendments the President continues to have substantial unused powers that remain written in the constitution.
The other popular argument favouring a titular President arises from the fact that the President is elected indirectly by an electoral college consisting of all the legislators in the country. This is a weak argument. Technically even the US President is elected indirectly. If the Indian Presidential candidate is chosen by newly elected incoming legislators after a general election instead of by sitting legislators would not the election be as direct as that of the American President? The timing of the President’s poll would change, not the process or the college that elects the President.
Today as governance in India continues to crumble will our politicians and jurists take a leaf from their Westminster masters who have inspired them for the past sixty years? In May Britain will hold a referendum to change its constitution. The change seeks fixed-term parliaments, changing the voting system to elect MPs and delimitation of constituencies to reduce the number of MPs. The moving force behind the referendum is Britain’s deputy PM Nick Clegg. He said: “Let's stop all this self-congratulatory hype about the mother of parliaments and get on with improving it.” It is possible that voting in the referendum may eventually rule out change. But at least some British politicians have the guts to demand change.
When will Indian politicians summon similar courage? Or will they wait to see if the Westminster model actually changes? And only then will they scamper for similar change in India? Why cannot the leaders of all the political parties, the prime minister and all the chief ministers discuss how our system needs to change by reinterpreting our written constitution and by introducing minor amendments that do not affect the basic structure of the constitution?
During the recent nationwide bandh I traveled by an auto rickshaw. While criticizing prevalent conditions the driver made an odd remark: “Why don’t they dispense with democracy if it doesn’t work?” I don’t think he was wishing for dictatorship. I think he was simply articulating what more and more ordinary people are beginning to feel. India’s system does not allow for an effective executive that can govern. More power to local governments and more power to the President might solve that. The first is enshrined in the directive principles of our constitution. The second is already available through several explicitly worded Articles of the constitution that are never utilized by the President who is rendered into a dummy by unwritten convention and assumption.
07-Aug-2010
More by :
Dr. Rajinder Puri
Top | Analysis
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Dear Mr. Puri, I would request you to please read Rabindranath's essay "Raiyater Katha" published long ago in my translation in Boloji as The Story of the Raiyat at http://www.boloji.com/society/173.htm. An extract of what is most relevant in the present context is quoted below:
'First let the throne be in place, the crown be made, the scepter be brought in and Manchester be pauperized only then we shall find the time to attend to the problems of the raiyats. In other words, politics will come first and the poeple of the country would come later. This is the reason why, like a tailor making a dress, we are busy fashioning the form of our polity. It is very easy because we do not need any living creature to take the measurements. What we have to do is only to send to the tailor a ready made sample borrowed from abroad where the people of those countries made their dress after a lot of experiments keeping in view their physique and their climate. We know the name of the dress - it has been crammed right from the pages of learned treaties - because in our factories the name of the product comes long before it is actually produce. They are democracy, parliament, the constitutions of Cananda, Australia, South Africa etc, all of which we can imagine with our eyes closed; because we do not have to take the trouble to take measurements from a living human being'
I hope no further comments are necessary |
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Kumud... I am following you too. I will look forward to it. |
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Rabindranath diagnosed the disease and prescribed the remedy long ago but nobody heeded him then and nobody heeds him now. I shall shortly write on that. |
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Kumud, of course all members of the Constituent Assembly were equally responsible for the final document. But Ambedkar was the tallest legal luminary among them. He was the final draftsman. He had studied as a brilliant student in America. He must have known that the American constitution and the presidential system were much more suited to India than the 1935 Act enacted by the British on which the Indian Constitution was based. Speaking to MPs in Parliament House on September 2, 1953, at the fag end of his career, Ambedkar reportedly said: "People keep saying to me: Oh, you are the maker of the Constitution. My answer is, I was a hack. What I was asked to do, I did much against my will... I do not want it (Constitution). It does not suit anybody." Roy, you are right about Ambedkar suffering from bias for being a Dalit. But the moving spirit behind the Constitution was the British and their blind admirers like Pandit Nehru |
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Ambedkar has been both used and misused. He was used for his intelligence. He was misused and "put to a spot" due to his being Dalit. Hence he was heard for what was relevant to the then upper caste politicians and ignored - rather neglected - by the same coetrie of Brahmanical politicians when his ideology, convictions and plans went against them. |
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Ambedkar drafted the Constitution which was passed by the Constituent Assembly. Were the members sleeping?
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