A Presidential System for India?
Chapter Thirty-Nine
Syllabus topic 3, "Parliamentary and Presidential Democracy."
Pages 169 to 172 of 676
In one line
The question has been raised in India at intervals since 1947, and the answer turns on what a country with India's diversity needs from a government and on whether the basic structure doctrine would permit the change at all.
In the wording a student can write in an exam: the case for a presidential executive in India rests on stability, on the separation of expertise from electoral politics and on decisiveness; the case against rests on the risk of deadlock, on the loss of daily accountability, and on the accommodation of diversity that a parliamentary system provides, and the change would in any event face the basic structure doctrine.
The Constituent Assembly's choice
The Assembly considered the American model and rejected it, and its reasons are the starting point for any answer.
Dr Ambedkar put the choice as one between more stability and more responsibility. A presidential executive is stable, because it is assured of office for a fixed term, and less responsible, because it cannot be called to account day by day. A parliamentary executive is less stable and more responsible, because it must face the legislature every day it sits and can be removed at any time.
He said the Assembly had preferred more responsibility to more stability, and gave two reasons. First, that a country as diverse as India needed a government that could be changed without a crisis. Second, that daily accountability, by questions, motions and debates, was worth more in a country with a new democracy than the assurance of a fixed term.
The case made since
Stability. Between 1989 and 1999 India had six governments. A fixed term would have removed that.
Expertise. A presidential executive can appoint ministers who are not politicians. In India a minister must be a member of a House within six months under article 75(5), which confines the choice to elected politicians and members of the Rajya Sabha.
Decisiveness. A President with a fixed term need not manage a coalition.
The separation of the head of State. India has two offices, one with legitimacy and no power and one with power and less direct legitimacy, and a presidential system merges them.
The case against
Deadlock. India has a bicameral Parliament in which the Rajya Sabha is elected by State Assemblies on a staggered cycle. A President of one party facing a Rajya Sabha of another would produce exactly the American problem, and India has no override procedure comparable to the two thirds vote in Article I section 7.
Loss of accountability. Question hour, the no confidence motion and the daily presence of ministers in the House are the mechanisms by which the Indian executive answers, and none of them survives the change.
A Presidential System for India?
Federal accommodation. A parliamentary system lets regional parties enter government through coalition. A single national election for a single office does not, and in a country where several States have their own party systems that is a serious objection.
Personalisation. The Emergency of 1975 to 1977 was carried out through a parliamentary system with a dominant Prime Minister. A system that concentrates the executive in one person elected nationally increases rather than reduces that risk.
Stability was answered differently. India's response to the instability of the 1990s was the Tenth Schedule and, after 2003, the Ninety First Amendment limiting the size of councils of ministers and tightening the defection rules. The problem was addressed without changing the system.
The constitutional obstacle
Any change of this kind would require amendments to articles 53, 74 and 75 at least, and probably to articles 79 to 88 and to the whole scheme of Part V.
That raises the basic structure doctrine. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, the Supreme Court held that article 368 confers no power to alter the basic structure. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, and in S.R. Bommai v. Union of India, (1994) 3 SCC 1, democracy and the republican and democratic form of government were treated as basic features.
Whether a shift from a parliamentary to a presidential executive would destroy a basic feature is genuinely arguable. Both are democratic forms, so the change is not obviously the abolition of democracy. But the Assembly's own choice was between responsibility and stability, and an argument that responsible government is part of the basic structure is available and has never been tested.
A complete answer says that the question is undecided and identifies why: no such amendment has been attempted, so there is no case on it.
A worked example
Suppose the change were made. Trace one consequence.
Before. A minister answers a question in the Lok Sabha on Tuesday, faces a calling attention motion on Wednesday, and if the House is dissatisfied enough the government faces a motion of no confidence that requires a simple majority.
After. The minister is not a member of the House and does not attend. The legislature's tools are the appropriation, the confirmation of appointments if the new constitution provided for one, investigation by committees, and impeachment on a specified ground. None of them operates weekly.
That is the trade Ambedkar described, stated in the concrete: daily answering is exchanged for a fixed term.
The cases
Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was heard by thirteen judges over sixty eight days and concerned the extent of the amending power under article 368, in the context of the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments.
A Presidential System for India?
Held, by seven to six. Article 368 does not confer power to alter the basic structure or framework of the Constitution. Parliament may amend any provision, including Part III, but not so as to destroy the essential features.
Why it matters here. It is the reason the question "should India adopt a presidential system?" is not purely a question of policy. Some answers to it are outside the amending power.
Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian executive in terms that a change to a presidential system would falsify.
Held, by Mukherjea CJ. The President is a formal or constitutional head of the executive, and the real executive power vests in the Council of Ministers responsible to the legislature.
Why it matters here. It states what would have to be removed, and it is the passage to quote when identifying which features are at stake.
Distinctions
| Present Indian system | Proposed presidential system | |
|---|---|---|
| Head of State and government | Two offices, arts.52 and 75 | One |
| Executive tenure | Confidence, art.75(3) | Fixed term |
| Ministers | Members of a House, art.75(5) | Not members |
| Daily accountability | Questions, motions, no confidence | Committees and appropriation |
| Deadlock device | Joint sitting, art.108 | None, unless one were designed |
| Coalition entry for regional parties | Available | Not available |
| Amendment required | Articles 53, 74, 75 and much of Part V |
What beginners get wrong
"India already has a President, so the change is small." The change is not the office but article 74(1). Removing binding advice would transform the whole of Part V.
"A presidential system means direct election." It means a separately elected executive holding a fixed term and not sitting in the legislature. Direct election is the usual method and not the definition.
"The Constituent Assembly did not consider it." It did, and rejected it for stated reasons that remain the best summary of the argument.
Limits and criticism
The debate is often conducted without the text. Any serious proposal must say what happens to articles 53, 74, 75, 79 to 88, 108 and 356.
Comparative evidence is mixed. Presidential systems are stable in some countries and produce deadlock or personal rule in others, and the difference tracks the party system rather than the constitution.
The problem it is offered to solve has changed. The instability of the 1990s prompted the argument; single-party majorities since 2014 have made stability less pressing and accountability more so.
Quick revision
- The Constituent Assembly chose responsibility over stability; Ambedkar stated the choice in those terms.
- For: stability, expertise outside politics, decisiveness, and merging the two offices.
- Against: deadlock without any override device, loss of daily accountability, loss of coalition entry for regional parties, and personalisation.
- India answered the instability of the 1990s with the Tenth Schedule and the Ninety First Amendment, not with a change of system.
- The change would need amendments to articles 53, 74 and 75 and much of Part V.
- Kesavananda Bharati, (1973) 4 SCC 225: no power to destroy the basic structure; democracy is a basic feature.
- The question whether responsible government is itself a basic feature has never been decided.
A Presidential System for India?
Test yourself
1. What reasons did the Constituent Assembly give for choosing a parliamentary executive? That the choice was between more stability and more responsibility, and that a new democracy in a diverse country needed responsibility more. A parliamentary executive answers daily, by questions, motions and debates, and can be removed at any time by a simple majority; a presidential executive is assured of its term and answerable only periodically.
2. Give three arguments for and three against a presidential system for India. For: stability, since India had six governments between 1989 and 1999; the ability to appoint ministers who are not politicians, which article 75(5) prevents; and decisiveness free of coalition management. Against: deadlock, since India has no override procedure comparable to the American two thirds vote; the loss of daily accountability; and the loss of the route by which regional parties enter national government through coalition.
3. What is the constitutional obstacle to the change? The basic structure doctrine. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, holds that article 368 confers no power to destroy the basic structure, and democracy and the republican and democratic form of government have been treated as basic features. Whether responsible government is itself a basic feature is arguable and undecided, because no such amendment has been attempted.
4. Why is the argument less pressing now than in the 1990s? Because the problem it was offered to solve has receded. The case rested on instability, and India answered that with the Tenth Schedule and the Ninety First Amendment rather than with a change of system; single-party majorities since 2014 have made stability the less urgent concern, and accountability the more urgent one, which is the side of the trade the parliamentary system is better at.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.