President's prime duties 'Observance and protection'

PROF. BIRENDRA P MISHRA

The Nepalese fiscal year is ending on July 15, 2012. Before it ends, a new budget has to be approved by the President, as there is no legislature to pass it. The caretaker government, which has announced the next election to the new Constituent Assembly on November 22, 2012, wants to declare the annual budget through an ordinance, whereas the opposition parties are opposing it. In between the two claims, President Dr. Rambaran Yadav has to balance his role as per the constitution. In this context, looking at the reinstatement of the then CoAS Katwal, by him in 2009, which had once created controversy, his role has to be viewed in comparison to the role of the Indian President.

During the last six decades of the Indian parliamentary system, there had hardly been any serious constitutional friction between the Prime Minister and the President. Of course, it was Dr. Rajendra Prasad, the first president of India, who had once called for reviewing the power and functions of the Indian President.

President Pratibha Patil, whose five- year term expires on July 25, 2012, agreeing with her esteemed predecessor in one of her interviews held in May last, had asserted,” Five years ago, when I was elected, I had the feeling that the President doesn’t have much to do. I have realized, though, that this is not a rubber –stamp position. “She seemed to follow the comments of the then president K R. Narayanan in a televised interview in 1998, in which he had claimed, “My image of a President before I came here was that of a rubber-stamp president, to be frank. But having come here I find that the image is not quite correct. My image of a President is of a working President, not an executive President, but a working President, and working within the four corners of the constitution.”

Another president R. Venkatraman had visualized much earlier the similarity between the function of a President and an emergency light, which switches on automatically when regular lighting system is off. In other words, when constitutional functionaries fail to act, the president has to act, of course, as per the constitution. Significantly, Article-79 of the Indian Constitution provides for, “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.” This provision clearly provides for a President in Parliament. However, the President has no executive authority. The Indian constitution was adopted with a clear vision of the leaders to have a parliamentary system in which certain provisions were borrowed from different countries to suit the needs of the country, which has multi-lingual, multi-religious and multi –cultural populace.

In Nepal, after the election to the Constituent Assembly (CA), the President, who was the nominee of the Nepali Congress (NC) was elected defeating the CPN-Maoist nominee, although the then CPN-Maoist had 38 per cent of the seats in the CA and the other two major parties, the Nepali Congress and the CPN-UML had suffered unexpectedly. It created some political complexities.

First, the country was not fully prepared to replace the monarchy with a president. Secondly, it was a temporary arrangement to fill up the gap created by the elimination of the monarchy. Thirdly, It was a compulsory arrangement too to meet the immediate need of the country. Fourthly, It came as the Fifth Amendment to the Interim Constitution to facilitate the election of the prime minister.

Lastly, the final provision for a President was awaited, for the new constitution was to be framed by the elected Constituent Assembly, which unfortunately did not happen. It was actually the second most contagious issue, which was related to the very form of the presidency that was the responsible for the failure of the CA.

While bringing the Fifth Amendment to the Interim Constitution, it seems that the concept of providing for a President and a Vice-President was not clearly thought of as different stakeholders had different ideologies, which were opposite to each other. Political parties like the NC were the adherent to the traditional Constitutional Monarchy, while the communists and other parties were for a republican state abolishing the monarchy altogether. In confusion between these two extreme views, the Interim Constitution could not be amended properly.

Moreover, the hangover of the 1990 Constitution, which had not only brought monarchy under the constitution but also made the monarch the custodian of the constitution (27.c), played an important role in providing special status to the President by providing for, “Observance and protection shall be the prime duties of the President”( Art. 36.a).

Perhaps, the provision, which was incorporated in the Interim Constitution keeping in view some person or some extraordinary situation in view, has definitely put the President both within and outside of the constitution. A protector is at times forced to transcend the boundaries for the welfare of the institution or the individual under his protection. Hence, the role of the President has to be judged not by the whims of an individual but by the call of the situation.