I must confess at the outset that I was mentally opposed to your candidature for the Presidency. The reason for my opposition was that you represented the Congress Party. Although I respect several individual leaders of the Congress, including yourself, I am opposed to the Congress as an institution.
The Presidential candidate of course is not supposed to represent any party. But you gave a statement to reaffirm the wrong notion that he does. You said that there should not be cross voting because the voters cannot go against their respective parties.
You seemed to have overlooked the fact that each voter has been assigned different weight depending upon the strength of his constituency. That should have indicated to a seasoned leader such as you that the Presidential candidate does not represent his party but his constituency, which are the people of India. That is why all parties are forbidden to issue a party whip during a presidential poll. Nor am I enthused by the several factors brought into play to achieve the poll result. But now you are the President of India. And you have the capability and the opportunity to serve the nation. That is why I am writing to you.
Amusement and exasperation compete with each other when I read silly comments by seasoned media writers who solemnly quote what the late Jawaharlal Nehru or other icons might have said about what the system should be while the Constitution was drafted. If past great leaders thought that the view they expressed then would remain constitutionally relevant even if it was contradicted later by an explicitly written Constitution, I fear they were being as silly as the commentators who quote them today.
Can it be anybody’s case that a President who scrupulously follows the letter and spirit of what is written in the Constitution can in any way be going against the system? If the founding fathers of our Constitution believed that their commentary during its drafting could override the meaning contained in its final written version, I fear they were being dangerously naïve.
The gulf between the text of the Constitution and the fallacious way it is interpreted is an invitation to chaos and confusion. That is why the late Ram Manohar Lohia used to tell me that if he were made President he would within one month be directly governing the nation, and that he would be doing so constitutionally. He said this of course before the 42nd Amendment to the Constitution had been passed. But even after that Amendment the powers and responsibilities of the President are enormous.
Article 53(1) of the Constitution states that executive power is vested in the President. It may be exercised 'either directly or through officers subordinate' to him. This Article is in no way negated by the 42nd Amendment which compels the President to act in accordance with the advice tendered by the Council of Ministers.
May I also remind you that as pointed out to me by a legal expert, only advice tendered unanimously by the entire Council of Ministers would be binding upon the President? If even one Minister disagrees with the rest of the Cabinet, advice tendered by the cabinet to the President despite the 42nd Amendment will not be binding.
In any event the 42nd Amendment is irrelevant in the case of many duties and occasions when such advice is neither sought by the President nor can it be tendered to him. Thus Article 78 (a) allows the President to order the Prime Minister to periodically brief him about 'all decisions of the affairs of the Union and proposals for legislation'.
It has been reported that former President Zail Singh lamented the fact that communication between him and Prime Minister Rajiv Gandhi had broken down because the latter unlike his mother did not meet him every week. Had President Zail Singh exercised his powers he could have invoked 78 (a) and ordered the Prime Minister to periodically brief him.
I hope, Mr. President, you will order the PM to periodically brief you. Article 78 (c) allows the President to direct the cabinet to consider any issue not discussed by it. Article 86 (1) and (2) allows the President to address either or both Houses of Parliament to advise Members on current policy matters. The President can advise Parliament to give teeth to the unimplemented Article 263 in order to establish a permanent Inter-State Council to settle disputes between States, or between States and the Centre, or between one State and the Centre, as outlined in the Constitution.
Needless to say, only the President with a direct mandate from both MPs and MLAs across the nation would be the appropriate authority to chair this Council. These are but a few of the responsibilities that rightly devolve upon the President.
Then there is of course the matter of all personnel decisions of the government. All appointments, transfers and dismissals of officials are made in the name of the President. If any decision transgresses due law and procedure it is the President’s duty to make sure it does not happen. He is the only public office bearer under oath to preserve and protect the law and Constitution. Obviously, to monitor official postings the President would require an enlarged secretariat. He should order the cabinet to provide him one. If any cabinet member demurs the President should gently remind him of Article 75 (2) by which all Ministers “hold office during the pleasure of the President”. The President can dismiss any disobedient Minister. The President must appoint all Governors to States personally without any advice from the cabinet. The Supreme Court has clearly ruled that Governors cannot be subservient to the central cabinet. Governors in the states are expected to discharge as agents of the President the same responsibility that devolves upon Rashtrpati Bhawan at the centre; namely to ensure that Constitution and all laws are observed by the government.
In short, Mr. President, you have the solemn responsibility to ensure that the Constitution and laws are observed across the nation. For the rest, you are free to offer to the cabinet as well as to Parliament your considered advice on all matters related to the governance of the nation.
What I have suggested might seem to you inappropriate considering our past history. But consider the way that governance is crumbling everywhere and the deep systemic crisis that is confronting the nation. You have to decide whether a change of system by faithfully following our written Constitution is urgently required or not. You may choose to propitiate the past, or you may choose to serve the future. It is your decision.
Many voices may be raised against you for departing from tradition by playing an activist role as President. Ignore these voices. You owe it to the nation and to the dharma of your own office to faithfully follow the letter and spirit of our Constitution. I have drawn attention only to the systemic changes required. I have refrained from referring to the crucial policy initiative which your mandate empowers you to undertake. It would not be appropriate to write about it.
In the unlikely event that you would be interested to know what it might be, you will have to seek a meeting with me. My tone in this letter might appear to you to be too presumptuous. But in the matter of exchanging views and holding opinions I believe that you and I are equal. You may be the President of the great democratic Republic of India. I would like to remind you that I am a citizen of the great democratic Republic of India.
You know who.