With each passing day public opinion is growing that India’s political system is not delivering results. An increasing number of commentators are demanding a review of the system with several seeking a presidential form of government. There is misconception that to introduce the presidential system a new Constitution would be required. I have consistently maintained that the existing Constitution delivers a presidential system of governance. It was circumvented from day one by misinterpreting it largely because of Pandit Jawaharlal Nehru’s bias for the British Westminster system and his woolly headed approach.
The question arises: if indeed our Constitution is presidential, how did the Supreme Court (SC) allow its distortion go unchallenged? That brings us to a question that sorely troubles this writer. By what logic and esoteric knowledge do rulings of the SC openly flout the written and explicit provisions of our Constitution? I am sure that the SC is right in what it does. But many people unlettered in legalese would like to know the rationale behind such rulings. We laymen can only understand the written text of the Constitution which is clear enough. We fail to understand how the learned Judges of the SC can ignore the meaning of the written text to superimpose their own views. There are two examples of this happening that immediately come to mind.
Article 53 (1) of the Constitution states:
“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.”
There is no ambiguity in this text. The 42nd Amendment was introduced during the Emergency after 1975 by which the President was compelled to abide by the advice given by the Council of Ministers. However the mindset behind this amendment had already been revealed by the judgment of the Supreme Court in the Shamsher Singh versus the State of Punjab case in 1974.
In that case Shamsher Singh’s counsel had claimed that the powers explicitly vested in the President and Governors by the Constitution cannot be overruled by ministers. This is how SC responded: “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…” The SC went on to state that if the President acted on his own, 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.”
In other words the SC clearly upheld the erroneous view of Nehru that the President is a titular head. But on what authority did SC arrive at this conclusion? Was there anything in the Constitution for the Judges to state this when the ruling was made? The absurdity of the SC comment on the President’s electoral mandate becomes all the more glaring when it is considered that the Prime Minister has a considerably smaller mandate than the President. The PM is elected by only the MPs of Lok Sabha while the President is elected by MPs of both Houses in parliament as well as the elected legislators of all the States of the Union. The electorate of both offices consists of elected representatives of the people. So will the SC kindly explain by what mysterious logic did it decide that the President is a titular head?
The other example that immediately comes to mind is even more glaring. With regard to caste based reservations Article 15 (1) of the Constitution states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Further on, Article 16 (4) of the Constitution states: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State.”
In the Indira Sawhney Case the SC ruled: “If the real object is to discover and locate backwardness and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.” Even allowing for the discretion given to the State by Article 16 (4) in supporting a backward class, how does the SC ruling in the Indira Sawhney case remain compatible with Article 15 (1) if the Constitution which explicitly debars caste and other criteria for reservation? Does the Constitution allow a government to override its explicit provisions provided it is motivated by what the SC described as its “real object”? Who will decide if the “real object” is indeed real or the result of political partisanship?
India is going through perilous times when its very system is being questioned. The demand for a new Constitution should be firmly resisted given the political chaos its creation could entail. That makes it all the more imperative for the existing truly presidential Constitution to be correctly interpreted in order to allow for a smooth change of system. That makes it even more imperative that the SC review its own flawed judgments of the past that perpetuated the distorted interpretation of our Constitution. If previous SC rulings were constitutionally valid, the Judges should kindly enlighten us about why that was so.