The Presidential System: The Indian Debate

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THE PRESIDENTIAL SYSTEM

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THE PRESIDENTIAL SYSTEM The Indian Debate

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Under the a• ,spices of the

Centre for Polley Research

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SAGE Publicetions New Delhi Newbury Park London

Copyright© Centre for Policy Research, 1989

All righ~ reserved. No pan of this book may be reproduced or utilised in any form or by any means, eleotronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without penniMion in writing from the publisher.

First published in 1989 by

snare Publiadom India Pvt Lid 32 M Block Market; Greater Kailash I New Delhi 110048

Snare Publk:ntfon• Inc 2111 West Hillc1est Drive Newbury Park, California 91320

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Published by fejeshwar Singh for -Sage Publications India Pvt. Ud., phott>typeset by Royal Photo Typesets, Madras and printed at Chaman Offset Printers, Delhi.

, • • , of Cc-aaric11 c.tahlalaa-ln-Publlcadon Daaa Noorani, Abdul Gafoor Abdul Majeed, 193~ The presidential system: the Indian debate/AG. Noorani. p. an. Bibliography: p. 1. Presidents-India. 2. Executive power-India. 3. India-Politics and govemment-1947-1. Title. JQ240.N66 1989 89-31723 354.5403'1~20

ISBN 0-80~ 9610-1 (U.S. t:P,,-·) 81-7036-152 4 (Iodta hbk.)

0-8039 9611-X{U.S.pbk,) 81-7036-153-2 (lncliapbk.)

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Contents Forcwonl Ackn~wlaigemen1S 1 Introduction 2 ~tablishing the Parliamentary System 3 Second Thoughts 4 ..The Parliamentary System 5 The Presidential System: The American Model 6 The Presidential System: The French Model 7 Eval•1ating the Systems 8 India's Party 'System' 9 Revitalise the Parliamentary System Appendices I A Fresh Look at Our Constitution: Some S•aggPStions II For a Directly Elected President III Vasaot Sathe's Letters to RajivGandhi IV Address by Vasant Sathe at the Press Club of Calcutta V Joint Statement by a Group of Intellectuals

Select References ladex

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Foreword. The issue of the cabinet versus the presidential system has been disa1ssed at great length in India especially in the last decade or so. The inspired public debate ha.~ shown a certain pattern of political behaviour. But apart from such motivations are there any genuine reasons around which such a reconsideration would be worthwhile? Does the presidential form respond better to the political, administrative and other issues before the state? If this is so, why should the nation not examine the merits of a different system rath~r than the present cabinet form of government? In particular, is the cabinet system less democratic or conversely is the presidential S)'Stem more representative and responsive? Also, in the present Indian context, does the federal polity get better attended by the preside11tial system than the cabinet system? Are there overwhelming advantages in one system as against the otl1er? After forty years of independence and almost four decades since the Indiai1 Constitution was framed, such a review is indeed warran1ed~ · It is with these consideratior..c, that the Centre for Policy Research (hereafter CPR) commissioned the present study by the constitutional lawyer Mr AG. Noorani. Mr NCX>rani examines the various legal and political issues involved and comes to his own conclt1sion that a change in the system is neither warranted on the basis of the experience nor is it desirable. However, the CPR's objective is to present the analysis and views expressed in the current study for wider debate. It is only appropriate for a great and complex nation such as India to periodically review its political institutions: whether they serve the basic objectives of the Indian polity and whether they have become wholly or partly obsolete. And to the extent they have become obsolete, whether a systemic change would be use~I. After all, if the cabinet system is a democratic one, so is the presidential one. Hence, the more important question is not whether any change in the cabinet system would by itself be undemocratic; rather the question is wbether an alternative system '\\'Ould meet the needs of India 111ore appropriatel)'', especially in n1eeting the 11eeds of an ever-

THE PRESIDENTIAL S'\'STEM

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growing · plural and federal polity where there is an increasing demand for transfer of power to the grassroots of the nation. Mr Noorani argues that the cabinet system is better equipped to deal with the problems of the current Indian political requirement'i than a change would. Many would, perhaps, agree and son1e might not. Both need to reconsider their position in the context of the present study.

Centre for PoliCJ' Research Neu)De/hi April 1989

V.A. PAI PANANDIKER

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Acknowledgements This brief study of the respective merits of the parliamentary and presidential systems owes a lot to the participants at a seminar on the subject held on 25 March 1987 under the auspices of the Centre for Policy Research, New Delhi. Some others ha,,e also contributed. My thanks are due particularly to Dr VA Pai Panandiker, Direaor of the Centre for Policy Research, who not only asked me to undertake the study but maintained a steady interest till its completion. Prof Bhabani Sen Gupta devoted valuable time in perusing the manuscript. His suggestions were extremely useful. Funhermore, I must thank Mr NA Ramachandran for the pains he took to see the manuscript through the press. Responsibility for the flaws and inadequacies are exclusivel)' mine.

A.G. NOORANI

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1 Introduction

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Introduction

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Indian constitutional thought before independence was influenced by two models of democratic nvP1rnn:1i · t, namely, the parliamentary system existing in Britain and . presidential system of the United States. The im}'.Yd(.t of the British model was immediate and direct; every instalment of constitutional reform WdS regarded as a step towards the establishment of a democratic and responsible government as it functioned in Britain. At. the same time the American model had its own attractions. Indian constirutional lawyers were familiar with the judgements of the U.S. Supreme Court as well as with authoritative commentaries on the U.S. Constitution. 'Ibe re'\·olt of the thirteen colonies against the British, the pro~itions inherent in the Declaration -Of Independence, the federal polity for a vast country of rich diversities, and the Bill of Rights were regarded as examples worthy of e111olation. The founding fathers of the Indian Constitution opted for the parliamentary system. However, inspired by the experience of difficulties in its working, second thoughts, na~rally enough, centred on the model which was not accepted. Even in the respective countries of their origin people have pleaded for a change by adopting the other model though the American system has received less approbation. But, as an American writer has remarked, 'Perhaps only a psychoanalyst could explain America's peculiar nostalgia for the obsolescent political institutions of the mother country., Among the 'adolescents,' he cited Woodrow Wilson who wrote his famous work Co,igressional Government ac; a graduate student. Senator ~tes Kefauver was another noted advocate of the British system. On the other hand, the Royal Commission· on the Constitulion (1969-73) noted in its Report critisism of the parliamentary form of government and made suggestions for its radical reform. A decade and a half after.the Indian Constitution came into force a powerful plea for the presidential system was made at the All India Congress Committee (hereafter AICC) by R Venkataraman, then minister of industries in the Madras government. On 19 November 1966.the India International Centre hosted a seminar on the 'parliamentary £5'. presidential system· of government' in which eminent academics and publicists participated. The collapse of the Samyukta Vidhayak Da1 (hereafter S.V.D.) regimes after the 1967 general election and the consequent fears of a similar occurrence at the centre prompted a former Chief Justice of India, B.P. Sinha, to s11ggest that the remedy for 'the present chaos in India' was a new Constitution. 'In the interests of safeguarding our

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THE PREsIDENTIAL SYSTEM

democracy we must change, without delay, to the American type of presidential system where the executive head .is not dependent on the vagaries of the legislators who cannot .topple the government by defecting from one party co another.' Similar considerations led the noted industrialist, J.RD. Tata, to advocate a 'presidential system of federal government in which a chief executive at the centre and executive governors in the states are elected for a ten:n of }'ears in which they are irremovabl~ and free to govern·through cabinets of experts appointed by them and who may, but need not, include professional politicians.' In 1970 B.K Nehru wrote an artiE:le entitled 'Is it Sunset for Democracy?' Answering the question iri the negative he suggested the establishment of 'the presidential or qi iast-presidential system' at the centre as well as in the states. The proposal acquired malodour because of an anonymous paper which was circulated during the emergency-not without whispers of official inspiration. The fact that, un1ike previous suggestions, it scoffed at any curbs on presidential power did not help to win adherents to the scheme. The pap,er was entitled 'A Fresh Look at Our Constitution: Some Suggestions' (Appendix I). Six years later, AR Antulay ac~owl~dged his authorship of the paper in an interview with Darryl D'lvtonte whith was published in the Indian F.xpress on 26 and 28January 1981:

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Q. Let us now tum 'to the presidential system. Wasn't the cyclostyled document that you drafted clandestinely circu-lated at the Chandigarh session of the AICC in 1975 and not 1976, as you have claimed in a recent interview? Why did you not claim authorship of that document? A. I think you are right. It was not meant for circulation. It was meant as food for thought for some people not the Prime Minister. Someone laid his hands on it and it fell into the hands of the Opposition. Q. It is claimed that the nore was drafted at the request of Shri Rajni Patel who wanted to float such an idea at the time? A. You cannot say that it was done at the instance of Shri Rajni Patel alone. But it is true that he did mention this to me a couple of times. He also thought that the present system didn't suit our country.

On sheer merit the paper is unworthy of consideration because, unlike the proposals made by B.K. Nehru, NA Palkhivala and some

Introduction

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others, .its aim was not to find a democratic solution to the constitutional problems but to provide a blueprint for the aggrandisement of power. It proposed a President who would be directly elected by the people and who 'should, in the sche111e of things, enjoy more authority and powers than even the U.'S. President.' The legislature 'will not be too independent of the executive'. The President would nominate and preside over the superior council of the judiciary. The fundamental rights were to be non-enforceable. The federal structure wac, to be dismantled by making the President and the council, rather than the Supreme Court, the authority to interpret the Constitution, and also by stipulating that a resolution of Parliament could ·resolve centre state disputes and would be binding on all concerned, including the Supreme Court. Thus, both democratic and federal structures were to be dismantled. NA Palkhivala returned to the theme in 1979 after the emergency. AR Antulay and Chenna Reddy did so shortly after Mrs Indira Gandhi's return to power in January 1980. Four years later Vasant Sathe dilated at length on the subject. In November 1986 the proposal received an encouraging response from Ramakrishna Hedge, chief minister of Karnataka, and inJanuary 1987 from the BharatiyaJanata Party (hereafter BJP) president, LK. Advani. . A salutary feature of the discussion which hac; ensued since is that there is a genuine desire on the part of all to evaluate the various suggestions on their merits. The distrust generated by the anonymous paper circulated during the emergency beclouded issues. That distrust is now gone. Instead there is a readiness to consider and to study . suggestions for constitutional reforms on their merit in the context of the prevailing conditions in the same manner in which the founding fathers considered various proposals in the light of the circumstances as they existed nearly four decades ago.

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Establishing the Parliamentary System

Establisbbig the Parllamenla,y 5).vem

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In the yery first volume of Qon.stttuttori Precedents, published for the use of members in September 1946 by B.N. Rau, the constitutional adviser to the Constituent Assembly, the paper on 'Democratic-Executives' analysed both systems, the parliamentary and the presidential. On 17 March 1947 B.N. Rau issued a questionnaire to the members of the central and provincial legislatures. It sought, lnter alla, their· views on the nature of the executive at the centre. Query 12 was, 'What should be the nature and type of the Union executive? Should it be of the British type (parliamentary) or the American type (non-parliamentary) or the Swiss type (mixed) or any other type?' A.note appended to the query pointed out that 'from the point of view of practical administration this is perhaps the most important question in the framing of the new Constitution.' It proceeded briefly to analyse the various forms of executives (B. Shiva Rao, Vol.II, 1969:437-38). The replies were overwhelmingly in favour of the parliamentary system. On 7 June 1947 a joint meeting of the Union Constitution Committee and the Provincial Constitution Committee, headed by Jawaharlal Nehru and Sardar Patel respecpvely, decided that India shoulq have 'the parliamentary system of Constitution, the ~ritish type of Constitution, with which we are familiar' and this Sardar Patel reponed to the Constituent Assembly on 15 July 1947 (Constituent Assembly pebates [hereafter CAD.]; ''ol. IV: 578. For the minutes of die joint meeting see Shiva Rao, 1969: 555-56). It is important to .note that in keeping with this decision the Union ' Constitution Committee decided that the President. should· not be eleaed directly by the people but by an electoral college consisting-of the legislators. . Nehru explained the decision to the A4isembly on 21 July 1947 (CAD., Vol. IV: 713-14): Sir, I suggest that we should begin with Pan IV, Chapter I. 1. The Head of tlte Federation shall be the President (Rasbtrapatt) to be elected a4i provided below. 2. The eleaion shall be by an electorc1l college consisting of: (a) the members of both Houses of P'c1rliament of the Fede.ration, and (b) the members of the legislatures of all the unit~ r where a legislature is bicameral, the members of the Lower House thereat

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In order to secure uniformity in the scale of representation of the units the votes of the Unit legislatures shall be weighted in proportion to the population of units concerned·. Explanation: A unit means a province or Indian state which returns in its own individual right members to the federal Parliament in Indian states which are grouped together for the purpose of returning representatives to the Council of States. A unit means the group so formed and the legislature of the unit means the legislatures of all the states in that group. 3. The election of the President shall be by secret ballot and on the system of proportional representation by means of the single transferable vote. 4. Subject to the above provisions, elections for the office of President shall be regulated by an Act of the federal Parliament. Now Sir, one thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is a system where there is ministerial responsibility or whether it is the presidential system as it prevails in the United States of America; many members possibly at first sight might ·object to this indirect election and may prefer an election ·by adult suffrage. We have given anxious thought to this matter and we came to the very definite conclusion that it would not be desirable, first because ""Ne want to emphasise the ministerial character of the government, that power really resided in the ministry and in the legislature and not in the President as such. At the same time we did not want to make the President just a mere figurehead like the French President. We did not give him any real power but we have made his position one of great authority_and dignity. You will notice from this Draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did not give him ·any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result. I do think that while there are virtues in the American system, tl1ere are also great defects in that system. I am not concerned with the United States of America. I am concerned with Jndia at present and I am quite convinced in my mind that if we

F.stablisbhig the Parliamentary System

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try to adopt that here, we shall prevent the de\·elopment of any ministerial form of government and we shall wa~te tremendous amount of time and energy. It is said that the Ameriau1 presidential election helps the forging of unity of the country by concentrating the mind of the entire country on the presidential election and on the conduct of those elections. One man becomes the symbol of the country. Here also he will be a symbol of the country; but _I think that having that type of election for our President would be a_bad thing for us. Some people suggested, why have even thi" rather c.-omplicated system of election which we have suggested? Why not the centrcll legislature by it~lf elect the President?~ will be much simpler, of course, but there is the danger that it will be putting the thing very much on the other side, of having it on too narrow a basis. The central legislature may, and probably will be dominated by one party or group which will form the ministry. If that gro_u p elects·the President, inevitably they will tend to choose a person of their own party. He will then be even more a dummy than otherwise. The President and the ministry will represent exactly the same thing. It is possible that even othetwise the President may represent the same group or party or ideas. But we have taken a middle course and asked all the members of all the legislatures all over India, in all the units to become voters. It is just likely that they will be choosing a party man. Always that is possible of course. Anyway, we may rule out electing the President by the central legislature as being on too narrow a basis. The Constituent Assembly deliberated on the matter for the second time when this pertinent provision of the Draft Constitution was discussed. Introducing the Draft on 4 November 1948, B.R Ambedkar explained (CAD., Vol. VII: 32-33): In the Draft Constitution, there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this functionary reminds one of the President of the United States. But beyond the identity of names there is nothing in common between the forms ofgovernment prevalent in America and the form of government proposed under the Draft Constitution. The American form of government is called the presidential system of government. What the Draft

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Q>nstitution proposes is the parliamentary system. The two are fundamentally different. . Under the presidential system of America, the President is the chief head of the executive. The administration is vested in him. Under the Draft Q>nstitution the President occupies the same position as the King under the English Q>nstitution. He is the Head of State but not of the e:xecutive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known. Under the American Q>nstitution the President has under him secretaries in charge of different departments. In like manner the President of tile Indian Union will have under him ministers in charge of different departments of administration. Here again there is a fundamental difference between the two. The President of the United States is not bound to accept any ac:Jyice tendered to him by any of his secretaries. The President of the Indian Union will be generally bound by the ~dvice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President ·of the United States can dismiss any secretary at any time. The President of the Indian Union has no power to do so, so long as his ministers command a majority in Parliament. The presidential system ofAmerica is based upon the separation of the executive and the legislature, so that the President and his secretaries cannot be members of the Q>ngress. The Draft Q>nstitution does not recognise this doctrine. The ~inisters under the Indian Union are members of Parliament. ·Only mei11bers of Parliament can become ministers. Ministers have the same rights as other members of Parliament, riamely, that they can sit in Parliament, take part in debates and vote in its proceedings. Both systems of government are, of course, dei11ocratic and the choice benveen the two is not very easy. A democratic executive must satisfy two conditions: (a) it must be a stable executive; (b) it must be a responsible executive. Unfortunately it has not been pMible so far to devise a system which can ensure both in equal degree. You can have a system which can·give you more stability but less responsibility or you can ·have a system which can give you more responsibility but less stability. The American and the SwiM systems give more

EWlblisbbig the Parliamentary System

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stability but less responsibility. The British system on the other hand gives you more responsibility but less stability. The reason for this is obvious. The American executive is a non-parliamentary executive which means that it is not dependent for its existence upon a majority in the C.O~, while the British system is a parliamentary executive which means that it is dependent upon a majority in Parliament. Being a non-parliamentary executive, the Congt;ess of the United States cannot dism!M the executive. A parliamentary government must resign the moment it loses the confidence of a majority of the members of -Parliament. Looking at it from the point of view of·responsibility,1a non-parliamentary executive being independent of Parliament tends io be I~ responsible to the legislature, while a parliamentary ' -executive being mpre dependent upon a majority in Parliament beoomes more responsible. The parliamentary systeni differs from a non-parliamentary system in as much a~ the former is more responsible than the latter but they also differ as to the time and agency for aMeSSment of their responsibility. Under the non-parliamentary system, such as the one that exists in the U.SA, assessment of the responsibility of the executive is periodic. It takes place once in two years. It is done by the electorate. In England, where the parliamentary system prevails; ~ment of the responsibility of the executive is both daily and periodic. The daily aMeSSment is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions, and debates on addresses. Periodic asseMment is done by the electorate at the time of the election which may take place every five years or earlier. The daily assessment of responsibility which is not available under the American system is, it is felt, far more effeaive than the pericxlic assesmtent and far more_ne~ry in a country like India. The Draft Constitution, in recommending the parliamentary system of executive, has preferred more responsibility to more 'stability. In the Constituent Assembly Ramnarayan Singh, Shibban lal S1xena, and K.T. Shah were strong advoeates· of the presidential system (CAD., Vol. Vll: 249-50, 284, and 969). K.M. Munshi and Sir AJ1adt Krishnaswamy Ayyar defended the parliamentary system on behalf m the Asset11bly,s Drafting Committee. On 10 ~mber 1948 K.M. ·

Munshi said (CAD., Vol. VII: 984-85):

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THE PREsIDENTIAL SYSTEM

Mr Vice-President Sir, the previous speakers have already drawn attention to the fact that amendments moved by my honourable friend Prof Shah not only to this article but to subsequent articles, create a fundamental change in the whole structure of the Constitution which this House has e~\isaged for the last year and a quarter. At. the earlier stage of the Union Constitution Committ~, it was decided, I think possibly with one or two diS5ident voices, that our central government should be ~ on the English model and that the American model or rather the model of the United States of America was to be rejected for two valid reasons. The two issues that have been before me House and the several Committees were these: What would make for the strongest executive consistently with a democratic constitutional structure, and d1e second issue is, which is the form of executive whi~h is suited to the conditions of this country. I fail to see how from any of these points of view, the amendments of my honourable friend can find fa\·our with this House. · Already reference has been made to an amendment moved by my honourable friend and lost in this House about the separation of powers. It must not be forgotten tha.t the American Constitution was made long ago in the eighteenth century. The makers were then guided by Montaigue's interpretation of the British Constitution that there was a separation of powers in England. They thought that they were translating Montaigue's analysis into a constitutional structure. The powers that were given to the President in the Constitution of America were based on what is now held on all accounts to be a misreading of the British Constitution in the eightee11th century. As already pointed out by my honourable friend Dr Ambedkar even in America they have found it impossible to maintain the principle of separation of powers~We know that the Constitution i11 America is not working as well as the British Constitution for the simple reason that the chief executive in the country is separated from the legislatl:}re. The strongest government arid the most elastic executive have been found to be in England and that is because the ex~tive powers vest in the cabinet supponed by a majority in the Lower House which has financial powers under the Constitution. As a result, it is the rule of the majority in the legislature; for it suppons its leaders in the cabinet, which

Fslablisbhig the · Parliamentary System

advises the Head of State, namely, the King or the President. The King or the President is thus placed above the pany: He is made a symbol of the impartial dignity of the Constitution. The government in England in consequence is found strong and elastic under all circumstances. The power of the cabinet in England tcxlay is no v.ilit less than the powers enjoyed by the President of the United States of America. By reason of.the fact that the Prime Minister and the whole cabinet are members of the legislature, the cQnflia between the authority wielding the executive power and the legislature is reduced to minimum; really there is none at all because, at every moment of time, the cabinet subsists only .provided it ~es with it the support of the majority in the Parliament It 1$ that character of the British Constitution which has enabled the British government to tide over the many difficulties which it has had to face during the last 150 years. Therefore, betweer, the two executives, one on the American mcxiel and the other on the British model, there can be no question of preferer1ce. The British model has been approved by everyone including leaclir1g American constitutional expens as really better fitted for modem conditions. Apan from that, the second is.5ue which the House has to consider is, what is the best form suited to Indian conditions. We must not forget a very important fact that during the la~t 100 years Indian public life has largely drawn upon the trdditions of British constitutional law. Most of us, and during the last several generations before us, public men in l11dia have looked up to the British model as the best. For the last thirty or forty years, son1e kind of responsibility has been introduced in the governance of this country. Our constitutional traditions have become parliamentary and we now have all our provinces functioning more or les.5 on the British model. As a matter of fact, today the Dominion government of India is functioning as a full-flepged parliamentary government. After this experience why should we go back upon the tradition that has been built for over 100 years, and try a novel experiment which was, as I said, framed 150 years ago and which has been found wanting even in America? I, therefore, submit that from this point of view the ·w hole scheme put forward by the various amendments of Prof Shah has not been accepted by the House so far, has not yielded the best possible result else\Yhere and is agaimt the tradition which has been

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built up in India. Therefore, I submit, Sir, that the amendment should be rejected. The Supreme Court has considered the constitutional position of the President more than once. In the last major case Samsber Singh vs. State ofPunjab (1974) 2 Supreme Court Cases 83l;AIR 1974 S.C. 2192, a special bench of seven judges recalled that 'this Court has consis. tently taken the view that the powers of the President and the powers of the governor are similar to the powers of the·Crown under the British parliamentary system. The President is the formal or constitutional head of the executive. The real executive powers are v,ested in the ministers of the cabinet' (per CJ. Ray at p. 842). · In a concurring judgement, Krishna Iyer and JJ. Bhagwati stressed that 'the. President of India is not at all a glorified cipher' but has a 'pervasive and persuasive role'. They also mentioned some of the 'well-known exceptional situations' where he can act on•his own discretion, for example, the dissolution of the Lok Sabha. In this context it bears mention that the framers of the Constitution envisaged the formulation of an Instrument of Instructions in a Schedule embodying the conventions of responsible government. There vvas to be one for the guidance of the President and another for the governors (B. Shiva Rao, Vol. IV, 1969: 84 86). Only at the last stages were both Instruments dropped(CAD., Vol. VIII: 21>-16 and Vol. X: 11+-16).

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Second Thoughts

Second 1boughts

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As it happened, K.M. Munshi was among the first to change his opinion

a decade and a half after the enactment of the Constitution. In a monograph entitled The President uruier the Indian Constitution (1985) he candidly stated the reason: During the framing of the Constitution we all dreamt that we would make a success of parliamentary democracy and the British cabinet system. It must be confessed that this experiment has failed. If I had to make a choice again, I would vote for the presidential form of government so that, whene\ er the politicia.'lS fail the country, there is at least one strong organ of the State capable of tiding over the crisis. 1

R Venkataraman's letter to the AICC on 27 May 1965 and his draft resolution both deserve to be reproduced in full herein (Parliamentary vs. Presidential System of Government, India International Centre, New Delhi, 1967: 60-62): The internal stability of our country is weakening day by day especially whe11 the external dangers are mounting all around us. The defe'dt of the Congress ministry in Kerala by the defection of the Congressmen themselves, the resignation of a group of Congressmen from Mysore, the growth of 'dissidentism' in a large number of legislature parties and the existence of groupism in the ministries, parties and the Congress organisation, coupled with the absence of developed and disciplined opposition parties capable of providing an alternative government, and the growing fissiparous tendencies, each organising a mushroom political party, have caused grave doubts in the minds of many thinkers both within the Congress and outside regarding the future of our parliamentary democracy. The primary aim of any Constitution is to ensure stability of the administration in a form best suited to the genius of its people. The parliamentary system of government has secured it in the United Kingdom and some Commonwealth countries because of certain pre-conditions that exist in those· places. Homogeneity of the people and a national outlook are the strong foundations dn which parliamentary democracy stands. Besides, there is no multiplicity of parties in those countries, while in ours, instead of the number of political parties getting

THE PRESIDEN11AL

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reduced over the pa~t fifteen years of our Republic, they are growing like mushrooms making it difficult for any single party to secure a majority in the legislature. I think that Kerala is not an exception or isolated situation, but the true picture of the shape of things to come in other states sooner or later. The prospect of a similar sitlaation arising in the Lok Sabha will cause every patriotic citizen of our country to shiver. The hope that in,a multi-party system dependence on one or more groups •will become necessary to form a government seems to encourage the formation of smaller groups in legislatures. Those groups expect that they will be able to hold the balance of power and obtain bargaining strength. The parliamentary system presupposes the election of members on the ba~is of party programmes, so that the programme which is endorsed by the majority of the people may be implemented by itc; sponsors. It will be idle to feign that such conditions exist among us today. Most members are chosen for their personal affiliations rather than on their party affiliations and this renders their loyalty to the party superficial. It is clear that a government which hac; to depend on the vagaries of such shifting loyalties is bound to be weak, ineffective or worse. With the grave threat of aggression on our borders, it behoves us to give unto ourselves an executive which will be stable and not depend on the vagaries of groups and dissidents. Such an executive must derive itc; strength and authority from the people of the country and should not be removable except on the expiry of the term or by impeachment. The presidential system offers the best solution to the chaotic spectrum of splinter parties projected in our national kaleidoscope. Perhaps, if it becomes clear that an executive once elected cannot be dislodged, the tendency to form groups and dissidents ~ong legislators may also disappear. In a presidential system, the choice of colleagues is not made from the members of the legislature of his party and the sad spectacle of party members forming several permutations and combinations for ousting the party chief will .be eliminated. . Besides, the President will have a wider field for the choice of colleagues and will be able to bring a measure of expertise to the admiaistration.

I

Second Tbougbts

Again a provision in the Constitution that legislatures once elected cannot be dissolved before the expiry of their term will give greater freedom to the members to freely criticise and vote down the proposals of the executive which they cannot do in a parliamentary system except on pain of the dismissal of the ministry and dissolution of the House. I do not want to stray into an academic discussion of the merits of the two systems, as much may be said for both sides. But the question before us is whether in the present political condition of our country we can rely on the parliamentary system to give us a stable executive. Our experience belies any such expectation. In my view, the structure of the executive may be altered to a presidential system with minimum changes in the Constitution. Toe President may be elected as at present or directly by ~dult franchise and may hold office for five years. The President may be authorised to appoint his ministers who should not be members of the legislature but should have the right of audience in the Houses of the legislature. The legislature should be elected for a term of five years and should not be liable to dissolution except on the expiry of the term. Similar provisions may apply mutatis mutandis to the election of governors and the constitution of ministries in the states. Except for some consequential provisions for meeting the exigencies of differences between the executive and the legislature, no further amendments to the Constitution will be necessary.

DRAFr

REsoLUTION

Considering the increasing instability and weakness in administration caused by the growth of dissidents and groupism in the legislature parties in the country. Considering the tendency towards multiplicity of parties springing up like mushrooms incapable of giving the country an alternative and stable government. Considering the grave dangers to the territorial integrity of India from the threats of aggression from our neighbours, and

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32

THE PRESIOENTIAI. SYSTEM

Realising the imperative need for stable governments both at the centre and in the states. The All India Congress Committee resolves that the Congress Working Committee be requested to constitute a committee to examine and report before the next annual session of the Indian National-Congress: Whetner the present cabinet form of government at the centre and the states may be replaced by an executive direaly elected by the people for a fuced term of years; and if so, to recommend consequential changes in the Constitution of India as appropriate. The proceedings of the seminar organised by the IIC are most instructive. The discussion was led by Max Beloff. He stated that the President has greater freedom in 'making the right type of talent available to government at the centre' but the parliamentary system is a 'method of bringing forward and training a recognisable political elite.' The President has to bargain with the Congress. The Prime Minister 'has the legislature virtually at his command.' Susan. Rudolph argued that 'Mr Venkataramao's proposal strives for stability, while possibly sacrificing the effectiveness which the executive now has with its majority in the legislature.' Another point she made was regarding an irremovable term executive. I wonder whether, if you get foced term executives in the states that are under an obligation to jolly along legislators to paM their programmes, they would not be under considerable • obligation to get the members in the cabinets from the various factional groups who can then assure that the programme will perhaps go through in the legislature. So the legislature and the executive are obviou~ly closely tied·together.

•

The Direaor of the IIC, D.L Mazumdar, emphasised three consideratiollS-Stability1 a proper relationship between the legislatµre and the executive; and the competence of the executive in regard to its essential tasks. On each count he preferred the presidential system. Norman D. Palmer argued that much depended on 'the role of parties in the political system.' He added that 'this is one of the great unanS\Vered questions here in India, in the seose that it appears that no party, with the exception of perhaps one or two of the relatively

Second

Tbou/Jbts

33

small and more extreme political parties, is a well organL~ party or is functioning very well.' The party system is a4i relevant a~ the constitutional relationship between the legislature and the executive. . S. Paul, lecturer in polidal science at a Delhi college, contributed a paper on the suitability of the parliamentary system for India. He argued that 'when democracy is not deeply rooted in the soil of the country and the soul of the population, the presidential system may be a source of potential danger rather than of potential gain. It will be a standing temptation for a triumphant demagogue, a President or· a governor, to run amuck.' 1be seminar's prC>Ceedings were dominated by advocates of the parliamentary system. We must now turn to the writings of the advocates of the presidential system. They reveal a consistency in the reasons for change. B.K. Nehru urged three considerations in an ani(~le puhlishe