By Bhanu Dhamija

Our parliamentary system is a perversity: Shashi Tharoor

South India’s leading daily The Hindu recently published three short articles on the question ‘Do we need a presidential system?’  Shashi Tharoor presented forceful arguments in favor of switching India to that form of government. Raju Ramachandran, a senior advocate at India’s Supreme Court, and Upendra Baxi, former vice-chancellor of Delhi University, were both against.

Ramachandran has the standard refrain, that the presidential system is “surrender to the authority of one individual.” Even as he admits the legislature under that system has independent power, he argues, wrongfully, that a strong president could control it. It’s ironic that Ramachandran finds the existing system more suitable where the legislature is under the total control of a prime minister.

His other argument, that adopting the presidential system changes the basic structure of India’s Constitution and is therefore not possible, is also fallacious.  As Arun Shourie, MP and former cabinet minister, showed in his 2007 book (The Parliamentary System: What We Have Made of It, What We Can Make of It), “parliamentary system” is not a part of the basic structure; it’s the “separation of powers.” (See Kesavananda vs State of Kerala, 1973.)  There is no better system of ensuring separation of powers than the presidential system.

Upendra Baxi wants to “reform thoroughly” India’s existing system, rather than switch. Some of his arguments against the presidential form are the same as above. But he adds two more: a) there are many presidential systems to consider; and b) India’s current system has worked for 70 years, why change now.

The presidential system was invented by the founders of the United States in 1787.  It was created for the express purpose of developing a better form of government than the British parliamentary system. Many countries have adopted its various features, but the original American model is the one to emulate.  It has been tested and proven for 240 years.

There is one other point both Baxi and Ramachandran have raised: whether India is ready to switch even the state governments to the presidential form. Independent state governments is a hallmark and a necessary condition of the U.S. presidential system. That is what makes the whole system work, and that is the main reason it delivers better governance on the ground.

Clearly, neither Baxi nor Ramachandran have done their basic research in understanding the presidential form of government.  It is unfortunate for India’s future that the media is equally uninformed. Why India Needs the Presidential System (HarperCollins, 2015) would be a good place to start.

_____________________________

 

Here are the three articles mentioned above…

Changing to a presidential system is the best way of ensuring a democracy that works

Presidential System Shashi Tharoor i
Shashi Tharoor,
Congress MP, author, and former UN official

Our parliamentary system is a perversity only the British could have devised: to vote for a legislature in order to form the executive. It has created a unique breed of legislator, largely unqualified to legislate, who has sought election only in order to wield executive power. There is no genuine separation of powers: the legislature cannot truly hold the executive accountable since the government wields the majority in the House. The parliamentary system does not permit the existence of a legislature distinct from the executive, applying its collective mind freely to the nation’s laws.

For 25 years till 2014, our system has also produced coalition governments which have been obliged to focus more on politics than on policy or performance. It has forced governments to concentrate less on governing than on staying in office, and obliged them to cater to the lowest common denominator of their coalitions, since withdrawal of support can bring governments down. The parliamentary system has distorted the voting preferences of an electorate that knows which individuals it wants but not necessarily which parties or policies. Voters who want to see, say, Narendra Modi as Prime Minister or Mamata Banerjee as Chief Minister, have to vote for an MP they may not care for, merely because he belongs to Mr. Modi’s or Ms. Banerjee’s party.

Failures in the system

India’s many challenges require political arrangements that permit decisive action, whereas ours increasingly promote drift and indecision. We must have a system of government whose leaders can focus on governance rather than on staying in power.

A system of directly elected chief executives at all levels – panchayat chiefs, town mayors, Chief Ministers (or Governors) and a national President – elected for a fixed term of office, invulnerable to the whims of the legislature, and with clearly defined authority in their respective domains – would permit India to deal more efficiently with its critical economic and social challenges.

Cabinet posts would not be limited to those who are electable rather than those who are able. At the end of a fixed period of time — say the same five years we currently accord to our Lok Sabha — the public would be able to judge the individual on performance in improving the lives of Indians, rather than on political skill at keeping a government in office.

The fear that an elected President could become a Caesar is ill-founded since the President’s power would be balanced by directly elected chief executives in the States. In any case, the Emergency demonstrated that even a parliamentary system can be distorted to permit autocratic rule. Dictatorship is not the result of a particular type of governmental system.

Direct accountability

Indeed, the President would have to work with Parliament to get his budget through or to pass specific Bills. India’s fragmented polity, with dozens of political parties in the fray, makes a U.S.-style two-party gridlock in Parliament impossible. An Indian presidency, instead of facing a monolithic opposition, would have the opportunity to build issue-based coalitions on different issues, mobilising different temporary alliances of different smaller parties from one policy to the next – the opposite of the dictatorial steamroller some fear a presidential system could produce.

Any politician with aspirations to rule India as President will have to win the support of people beyond his or her home turf; he or she will have to reach out to different groups, interests, and minorities. And since the directly elected President will not have coalition partners to blame for his or her inaction, a presidential term will have to be justified in terms of results, and accountability will be direct and personal.

Democracy, as I have long argued, is vital for India’s survival: we are right to be proud of it. But few Indians are proud of the kind of politics our democracy has inflicted upon us. With the needs and challenges of one-sixth of humanity before our leaders, we must have a democracy that delivers progress to our people. Changing to a presidential system is the best way of ensuring a democracy that works. It is time for a change.

______________________________________

 

The surrender to the authority of one individual, as in the presidential system, is dangerous for democracy

Presidential System Raju Ramachandran i
Raju Ramachandran,
senior advocate at the Supreme Court of India

This debate is academic. A switchover to the presidential system is not possible under our present constitutional scheme because of the ‘basic structure’ doctrine propounded by the Supreme Court in 1973 which has been accepted by the political class without reservation, except for an abortive attempt during the Emergency by Indira Gandhi’s government to have it overturned. The Constituent Assembly had made an informed choice after considering both the British model and the American model and after Dr. B.R. Ambedkar had drawn up a balance sheet of their merits and demerits. To alter the informed choice made by the Constituent Assembly would violate the ‘basic structure’ of the Constitution. I must clarify that I have been a critic of the ‘basic structure’ doctrine.

Abuse of power worries

A presidential system centralises power in one individual unlike the parliamentary system, where the Prime Minister is the first among equals. The surrender to the authority of one individual, as in the presidential system, is dangerous for democracy. The over-centralisation of power in one individual is something we have to guard against. Those who argue in favour of a presidential system often state that the safeguards and checks are in place: that a powerful President can be stalled by a powerful legislature. But if the legislature is dominated by the same party to which the President belongs, a charismatic President or a “strong President” may prevent any move from the legislature. On the other hand, if the legislature is dominated by a party opposed to the President’s party and decides to checkmate him, it could lead to a stalemate in governance because both the President and the legislature would have democratic legitimacy.

A diverse country like India cannot function without consensus-building. This “winner takes it all” approach, which is a necessary consequence of the presidential system, is likely to lead to a situation where the views of an individual can ride roughshod over the interests of different segments.

What about the States?

The other argument, that it is easier to bring talent to governance in a presidential system, is specious. You can get ‘outside’ talent in a parliamentary system too. Right from C.D. Deshmukh to T.A. Pai to Manmohan Singh to M.G.K. Menon to Raja Ramanna, talent has been coming into the parliamentary system with the added safeguard of democratic accountability, because the ‘outsiders’ have to get elected after assuming office. On the other hand, bringing ‘outside’ talent in a presidential system without people being democratically elected would deter people from giving independent advice to the chief executive because they owe their appointment to him/her.

Those who speak in favour of a presidential system have only the Centre in mind. They have not thought of the logical consequence, which is that we will have to move simultaneously to a “gubernatorial” form in the States. A switch at the Centre will also require a change in the States. Are we ready for that?

_____________________________________

 

 

Rather than change the system, why not reform thoroughly and cleanse the electoral processes?

Presidential System Upendra Baxi i
Upendra Baxi,
legal scholar and the former vice-chancellor of Delhi University

I think the debate has a life cycle of its own. It has been brought up and discussed whenever there has been a super-majority government. From Jawaharlal Nehru to Indira Gandhi to the present, the presidential system has been debated extensively around two aspects: is it desirable, and second, is it feasible?

To tackle the second aspect first, unless the Supreme Court changes its mind, any such amendment would violate the ‘basic structure’ of the Constitution as was decided with, and since, the Kesavnanda Bharti case. There is no way to get around this unless the Supreme Court now takes a wholly different view.

Different models

On the desirability aspect, which presidential system are we talking about when we pit the American presidential system against the Westminster model? In the American system, the President appoints his officers; they have limited tenure and their offices are confirmed by the Senate (Upper House). Then, we have the Latin American model, where some Constitutions give Presidents a term often amounting to a life tenure like in Cuba. There are plenty of models to choose from and there are arguments against each. So, which system is being argued for when the votaries of change seek a shift to the presidential system?

Our Rajya Sabha cannot be compared to the U.S. Senate where each state has its own Constitution and has the power to change it. The relationship between the states and the federal government is extraordinary; as is the status of their courts and the manner of appointment of judges. I do not think people have thought about it. Merely stating that a change to the presidential system is needed does not mean much. The Indian debate currently is not focussed on the kind of presidential system envisaged. What is the term we are seeking for the President? Should he/she be re-elected? If so, for how many terms? Then, who decides the change? Parliament? All this requires a massive amendment to the ‘basic structure’ of the Constitution. The Supreme Court has spelt its view on the ‘basic structure’ of the Constitution.

Giving an opinion is one thing. A judgment is a more carefully considered conclusion. Those who support the presidential system should do their homework when they argue against the parliamentary system. There is also the matter of separation of powers. In the U.S., the President, who is also the Supreme Commander, has the power to veto the Congress. Does India need this? The manner of removing the U.S. President through impeachment is a very complex process. There is also the possibility of aggregating more powers to the President.

One could argue that the parliamentary system too runs a similar risk. I do not think it has been thought over. It is not on the table yet.

Reform the process

On the other hand, there are ideas going around about reforming the electoral processes to make democracy more robust. From limiting expenditure of political parties and deciding the ceiling on the expenditure, to holding simultaneous elections, declaring the results for a combination of booths instead of constituencies — I think it is advisable to debate this and ensure that the gaping loopholes in the electoral processes are speedily plugged.

The present parliamentary system has been tried and tested for nearly 70 years. Rather than change the system, why not reform thoroughly and cleanse the electoral processes?

 

These articles were first published in The Hindu on 24 March 2017.

Advertisements