Many views have been expressed with regard to the role of the President under the Indian Constitution. He is the Head of the State and the Supreme Commander of the Armed forces. These are a few functions where he acts independently of the aid and advice of the Council of Ministers. For most of his functions he is bound by the aid and advice of the Council of Ministers.
There is however an unstated function that the President has. He is vested with an undefined and unstated moral authority.
It is only a President who has the stature of a statesman commanding public respect that he can exercise this moral authority. For commanding that stature the President must be perceived to be fair and a constitutionalist.
If media reports are to be believed, the Government’s decision to promulgate a certain set of ordinances under Article 123 was scuttled by a reluctant President Shri Pranab Mukherjee. There are good reasons to believe that the media reports are correct. The President, Shri Mukherjee is amongst the most experienced Parliamentarians. He had a long innings as a Minister. His memory for precedents and propriety has been unparalleled.
Article 123 deals with the promulgation of ordinances. There are two conditions precedent prescribed in the Constitution for issuing an ordinance.
Firstly both Houses of Parliament must not be in session and secondly ‘circumstances exist which render it necessary for him (the President) to take immediate action.’
Surely, the desire of Shri Rahul Gandhi to push a certain law so that he can claim to be a part of the anti-corruption crusade is not a circumstance which calls for immediate legislation enactment through the ordinance route. The grim prospects of the ruling party in the forthcoming elections may be a cause for concern for its Party leaders. This is however an irrelevant consideration when it relates to the ordinance promulgating power. Why were these bills not approved earlier? Why can’t they wait for the June session of the Parliament? These are relevant questions which the President is entitled to ask.
Could the President defy the advice of the council of Ministers? No, he could not. But he could raise important queries. He could have sent back the ordinances for reconsideration. He could have consulted experts and heard contrarian opinions from within the political spectrum. A President could have used this Constitutional and Moral authority to enforce the Constitution. In the present case the latter was more effective than the first one. All this would have raised doubts about the Constitutional fairness of the government, an impression which an already weak government could ill afford. The Constitutionalist as the President can set a great precedent for the future.