The Hindu Business Line : Electing a President — Popular choice vs legislator’s compulsions

Constitutional pundits have often grappled with the problem of people’s representatives acting in a manner contrary to the will of the people. In the context of the Presidential election,
writes of dictates of conscience, rational choice and the independence of members of the legislature.

The term of the President, Mr A. P. J. Abdul Kalam, is coming to a close. After having a philosopher, Dr S. Radhakrishnan, as the second President, the country was fortunate again in being presided over by a space scientist who wanted the country’s youth to dream big. There is a universal perception that, had there been a direct election, Mr Kalam would have won, hands down.

The Irish Constitution provides for election of the President by a direct vote of the people. So is the case with the French Presidency. Germany and the US elect their Presidents through an Electoral College. Articles 54 and 55 of the Indian Constitution provide for indirect election of the President. Jawaharlal Nehru gave the following reasons in the Constituent Assembly why a direct election of the President on adult suffrage was discarded:

The framers of the Constitution wanted to emphasise that power was really vested with the Ministry and the Legislature, and not in the President, as such. “If we had the President elected on adult franchise, and it did not give him any real powers, it might become a little anomalous…

“A tremendous loss of time, energy and money would be involved in a Presidential election on adult suffrage. We have elections to the Federal Parliament. An enormous Presidential election added to this would be a tremendous affair — some of which we might not even be able to carry out. It would be impossible to provide an electoral machinery for an election in which at least 176 millions of people would have to participate.”

It was also visualised that Parliament would generally be dominated by one party, which would form the Ministry. If this group elected the President, inevitably it would choose its own candidate; the President and the Ministry would thus represent exactly the same thing. The framers of the Constitution, therefore, adopted a middle course and asked Members of State Legislatures also to take part in the election.

The Constitution has created two elected Political Offices, one possessing de jure all executive powers, but unable to function effectively and the other de facto, exercising tremendous political power, though leg ally playing the role of an advisor.

The Party Caucus

It is a curious irony of constitutional history that the nation is ruled through a caucus of political parties, one group claiming majority and the other not being able to cobble a similar strength. The Constitution makes no mention of political parties. It is the Representation of Peoples Act that clothes the party system with recognition. Party organisation in competitive liberal democracies initially focused on mobilising electoral support.

Constitutional pundits have often grappled with the problem of people’s representatives acting in a manner contrary to the will of the people. The Swiss Constitution provides for the right of recall. The Lok Sabha Speaker, Mr Somnath Chatterjee, has suggested a similar improvisation in the Constitution. Political parties seek to carry out their mandates through whips issued to their Members of Parliament.

However, the whip can fail when there is a secret ballot. Both the President and the Vice-President are elected by secret ballot. That is probably why parties do not issue a whip to their Members. That leaves the Members of the legislature free to act as per their conscience.

Conscience as Guide

Irish statesman Edmund Burke laid the foundation for British conservative philosophy. Addressing his constituents in Bristol, UK, he made a classic defence of a Member’s independence of judgment and actions. Once elected, the representative is responsible for the interest of the nation and owes it to his constituents to exercise his best judgment freely. Any serious statesman, Burke argued, must have ideas about what sound public policy requires.

He must refuse alliances or leadership incompatible with the principles of enlightened conscience. He should not sacrifice his judgment in favour of the party’s opinion. Government is a matter of reason and judgment, not of inclination. Burke was against a disposition that would run into the perilous extremes of servile compliance or wild popularity. In a peroration, now part of constitutional history, Burke said:

“Authoritative instructions, mandates issued, which the Member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution. Parliament is deliberative Assembly of one Nation with one Interest — that of the whole, where, not local Purposes, not local Prejudices ought to guide, but the General Good, resulting from the general Reason of the whole.”

Rational choice

There is nothing illegal or unconstitutional about voting as per the dictates of the conscience. In the 1950s, the Michigan School of Political Science in the US carried out a survey about the behaviour of party representatives in elections to the American Electoral College. The survey found that questions of party identification tapped a stable underlying orientation, which might be disturbed by current affairs without being permanently upset.

Democrats who voted for the Republican President Eisenhower in 1952 were likely to return to Democratic voting at other times and in other elections.

Critics attacked the Michigan approach to representative preferences in Elections as underrating the rationality of electors’ choices. However, current research reconciles the two approaches and accords a role, both for party identification and for rational choice.

A satirical cartoon in an English daily recently shows a party worker assuring the leader not to worry about the way the party representatives may vote in the Presidential elections since they have no conscience to follow. The 1969 Presidential election was conducted on the basis of voting as per conscience. The last Vice-Presidential election saw cross-voting by 75 Members of Parliament.

Mr Abdul Kalam came from an unlikely background for a President. Hailing from remote Rameswaram, he brought a quiet dignity, decency and decorum to the high office he adorned with such grace. Long after he lays down office, future generations will marvel that India produced such a great scientist-president in an era of moral decadence.

(The author is a former Chief Commissioner of Income-Tax.)