Smooth transition

THE role of the President, which could have been the focus of intense public interest, was in some measure taken beyond the reach of controversy by the particular pattern of parliamentary arithmetic that emerged from the general elections. Whatever possibility there was for an agglutination of the non-BJP forces in the newly constituted Lok Sabha, dissipated on account of their inability to establish a combined numerical advantage of a substantial magnitude over the common enemy. Such a numerical advantage could have served as the solvent for the repellent antagonism that keeps the Congress(I) and several of the United Front coalition partners in mutual isolation and perhaps provided the basis for a competing bid to form a Ministry. This would have compelled the President to pore over precedent and convention with his customary diligence. And in a context where convention is itself in process of evolution, the President was being advised by diverse authorities to adopt an assertive role for himself in the process of Ministry formation.

This would have required the President to examine the viability of a coalition arrangement, its underpinnings in the realm of policy, and the durability of such a regime. It would have meant stepping beyond the conventional understanding and adopting an activist interpretation of the duties and responsibilities of a constitutional head of state. Any summary decision would invite a charge of partisanship which a head of state can ill afford. President Shankar Dayal Sharma's error in 1996 was to invite Atal Behari Vajpayee to form a Government, although it did not have the remotest prospect of attracting the requisite parliamentary support.

BUT then, does this mean that a President necessarily would need to undertake a political calculation of how acceptable particular parties are to others and how successful any prospective ruling party would be in recruiting the backing it requires to survive in office?

No constitutional expert has quite gone so far. There has been an opinion that the President should go by written communications of intent by the various political parties. Beyond this, however, opinions diverge. One stream of thinking holds that it would not be appropriate for the head of state to quiz the parties on how durable their support would be for a ruling arrangement and what the conditionalities would be. Another opinion insists that it would be entirely in order for the President to ask the partners in a ruling coalition to work out a minimum programme of governance and to check it for authenticity and veracity. And in the mould of presidential activism, certain experts have even asked for the illegitimising of the procedure of external support that is India's unique contribution to the lexicon of parliamentary practice. External support, they have argued, is a recipe for power without responsibility. Parties that support a ruling arrangement must also partake of it in a full spirit of accountability.

Evidently, the tasks and duties that have lately been conceived of are not reconcilable with the doctrine of presidential powers under the Indian Constitution. Intrusion into the realm of politics, laying down the rules and norms of political association - these are not deemed appropriate functions for any kind of a constitutional head of state. That the current flux and turbulence in Indian politics should bring forth a demand for an interventionist President is a comment on certain observers' loss of faith in the party system. But those who have taken the broader view have concluded that this is a form of escapism - that the remedy for the chronic instability that has of late afflicted the Indian polity must be sought in and through the party system and not through a new doctrine of presidential powers. The road may be more arduous, but it is likely to produce a more durable solution than any kind of quick recourse to a presidential fiat.

The debate over the President's role has, however, been put to rest by actual events. The BJP and its allies have established a numerical preponderance within the Lok Sabha that makes their claims to form a Ministry virtually irresistible. Ironically, the arguments that were crafted to make it more difficult for the opponents of the BJP to work out a suitable basis for agreement are now in a process of rebound. Many of the BJP's electoral allies are developing qualms about participation in a Ministry led by that party. Most of them have made no secret of their intention to secure action on their own rather sectarian agendas as the price of their participation in a BJP-led government. If there is no accompanying social commentary cautioning the President against accepting the professions of loyalty put forward by the BJP's partners without thorough scrutiny, it is perhaps just as well. The arena to test these is not the presidential mansion, but the floor of the Lok Sabha and finally the popular franchise.

THE debate on the role of the President in the appointment of a government came as a part of ongoing controversy over Governor Romesh Bhandari's constitutional coup in Uttar Pradesh last month. In first urging a particular course of action on Bhandari and then nudging the Central Government towards recalling the recalcitrant Governor, President K.R. Narayanan earned plaudits and censure in seemingly equal measure. Nobody questioned the President's right to be heard and to offer advice to other constitutional functionaries in particular situations. But there was great consternation over the leak of the President's communication to the press and the intrusive media scrutiny of the underlying issues.

When the controversy threatened to engulf the office of the head of state, Rashtrapati Bhavan put out a strongly worded disclaimer, urging those who thought that the President's communication had been leaked from his office, to check their "facts and sources". That had the immediate result of restraining the political posturing that had begun to assume frenzied proportions.

In finally accepting the Government's alibi that it could not take any punitive action against an errant Governor, the President stayed within his constitutionally defined functions. The politically surcharged demand, that the Governor held office at the "pleasure" of the President and could hence be recalled through an exercise of his "inherent powers", enjoyed a certain credibility in the context of the widespread public distaste for Bhandari's action. But it was not a position that was very firmly grounded in law or constitutional propriety. The doctrine of "pleasure", though it employs a quaint and archaic form of expression, does not vest the presidency with any inherent powers. It is in fact, merely a way of expressing the reality that though the President has the moral authority to advise, counsel and even urge a certain course of action, the recommendations of the Council of Ministers constitute his only basis for action.