Presidential election 2017: As protector of Constitution, president's office should be above politics

Legislators from various states and members of both Houses of the Parliament went to vote in the 15th Presidential Election of India to elect India's Fourteenth President on 17 July. The office of the President of India is one that is fundamental to its constitutional way of life but the real functions of the job are seldom understood by the public at large.

India's system works in a similar manner to that of the United Kingdom, however, India doesn't have a monarchy and therefore it's head of state is an elected official who discharges a similar function that the Queen does in the UK. India's presidential system is what makes India a republic. The head of state is not a person who rules by divine right (unlike doctrines that support monarchies) but rules by virtue of having the authority of law to govern. Therefore, unlike the UK the role of the President of India is more clearly defined and the election of a person to that office is also a process that is outlined clearly.

Representational image. Reuters

Representational image. Reuters

The President has the following powers:

I. Power of appointments
The president by being the head of the Union executive (which includes the president, prime minister and council of ministers) has the power to make all appointments concerning the Union. The President appoints the prime minister, the attorney general, judges of the higher judiciary, governors of the state, the comptroller and auditor general, Indian ambassadors and high commissioners. This power to appointment though has to be exercised within the constitutional frameworks that govern how they are to be done. For example, technically under law, the president can appoint any person qualified to be a member of the Parliament as the prime minister. But convention requires that this power only be exercised by appointing the candidate who is most likely to secure a majority in Lok Sabha. Similarly, while appointing the governor, the attorney general and others, the president is confined to the advice of the prime minister and while appointing judges of the higher judiciary, the president has to be guided by the constitutional provisions, law and conventions regarding how judges are to be appointed. Apart from this, the president also summons and dissolves Lok Sabha and can summon or dissolve it at any time on the advice of the prime minister.

II. Defence powers

The president is also the supreme commander of the Indian Armed Forces and has the implicit power to make war and dictate peace. The office also has the ability to take measures necessary to protect India from internal and external forms of aggression while also ensuring a well-staffed and functioning army. In practice, once again this power is exercised by the prime minister and the cabinet in the name of the president. However, members of India's armed forces are answerable to the office of the President of India and not his ministers. Which means if India needs to use nuclear weapons or go to war, the direction cannot come from the defence ministry but must come straight from the president's office. This is important as it allows for a second form of review before the armed forces are deployed and pushes the army out of the control of the government. So, no government can use the army in furtherance of a coup. The primary duty cast on the president — defend and protect the Constitution and the laws — ensures that the office of the president will always be there to ensure the army is a professional organisation rather than a political one.

III. Reserve powers

Ordinarily, all bills require presidential assent and the assent is tendered or rejected on the advice of the prime minister. Further, the president's powers to declare emergency are also limited to the advice of the prime minister. But the president has certain reserve powers, which while not explicitly enumerated, flow from the nature of the office itself. For example, if the president were to be presented with a bill that in the president's view would violate the Constitution, the president may refuse to sign it and send it back to the Parliament for reconsideration. If the Parliament sends it back, then the president is required to sign it. But there can be cases where the president need not send the bill back at all but just refuse to sign it notwithstanding. This is called a 'pocket veto'. Zali Singh employed the pocket veto during the Postal Bill in 1986 by refusing to sign the bill as he felt it would infringe on civil liberties. Even Rajendra Prasad took issue in the initial days of the Indian Republic with Nehru's Hindu Code Bill saying that he would not sign anything that would violate his conscience.

In fact, APJ Abdul Kalam showed the strength of the office during the office of profit controversy by returning the government's first bill and only passing it the second time around. Even the second time his concerns weren't addressed, but Kalam held firm and decided that he was going to lay them bare anyway. This is what the office is about, the office is about having a president who is not a mute spectator to constitutional happenings, but is involved in ensuring that the checks and balances are maintained.

All of this brings us to the method of electing this officer. Ideally, in most democracies it would make sense to put the office of the president to a general public ballot and the candidate would be one chosen by all the people. This is how it works in most other republics. Even the US' system of the electoral college is tied to a popular election in the states. But in India, it is the state assemblies and the Parliament that eventually elect the president.

The argument for the indirect election of the President of India comes from the federal nature of the office. The President of India being the federal head of state is a person that has to be elected via broad national consensus. This means that no one state, merely by virtue of its population, should have the ability to influence the outcome of an election. Unlike Lok Sabha, where it's all about popular mandate, the electoral college creates a system by which there is a balance between the most populous states and the least populous states. This allows for the office in most cases to be placed above politics and there are attempts to form a broad all-party consensus to the office.

In summation, the president is a key player in India’s political destiny. But it's important that the bearer of the office be one who is above politics. The current presidential election is one of the most politically charged in history. How will this affect the tenure of the future president is one that will have to not just be examined by constitutional experts but also political ones.

Published Date: Jul 17, 2017 05:04 pm | Updated Date: Jul 20, 2017 03:22 pm

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