The other week, I was introducing my Civics class to the Indian Parliamentary system. Everyone understood the idea of a bicameral legislature. They understood the role of the Prime Minister and his/her cabinet. But when we came to the President, there was general bemusement. One young boy said, “So, basically, the President is powerless, right?” He said disparagingly and I felt the spirits of all previous Presidents of India – dead and alive – flinch in unison. Dr Rajendra Prasad, our very first President of India, himself, struggled with coming to terms with the limited role of the President in the Indian polity.

Dr Rajendra Prasad was a well-respected lawyer, journalist, scholar, freedom fighter and member of the Constituent Assembly. Born in 1884 to a modest Kayastha family in Bihar, he had trained as a lawyer. In his thirties, he was recruited by Gandhi to work in the campaign to support indigo peasants in Bihar. Over time, he rose through the ranks of the party to become President of the Indian National Congress.

Upon Independence, Rajendra Prasad and Nehru became an odd couple at the top of the new Indian government. Rajendra Prasad was a traditional Hindu and had spent much of his career campaigning for Hindi to be the official national language. He also suggested that all other Indian languages shift to the Devanagari script as nearly all Indian languages found their root in Sanskrit. He had grown up in a middle-class Indian family and had his early schooling in a traditional elementary school before moving to Patna and Calcutta to pursue higher education. In other words, Rajendra Prasad was more son of the soil than Eton and Cambridge educated Nehru. His upbringing and life experience coloured his perspective and philosophy on the role of the government just as much as Nehru’s Western education, privileged upbringing and life experience had influenced Nehru’s world view on the same subjects.

Naturally, Prasad and Nehru did not see eye to eye on things. Rajendra Prasad wanted Republic Day (26 January 1950) to be rescheduled because it was not an auspicious day. The rational and scientifically inclined Nehru was mortified at the suggestion. Their biggest differences were centred around each man’s understanding of secularism. To Prasad, the traditional Hindu, a secular government’s role was to allow each individual to enjoy the freedom to practice his/her religion without state interference. To Nehru, the secular government’s role was like a benevolent father figure who protected all communities, especially minorities, and who tried to repair inequities within communities.

These differences led to a small constitutional crisis when they faced off over the Hindu Code Bill. While everyone agreed Indian society had issues concerning women’s rights and caste discrimination, they all had different opinions on how these inequities should be addressed. Nehru, Prasad and other members of the Constituent Assembly had wanted to create a Uniform Civil Code, but practical issues of how to address minority concerns and preserve cultural identities of various religious groups crippled the process. In the end, Nehru narrowed his focus on the Hindu personal laws.

At the time of Independence, nearly 80% of India considered themselves Hindu and yet it was hard to pinpoint what being Hindu really meant. Nehru intended for the Hindu Code Bill to unite this diverse religious community. With Ambedkar, he saw an urgent need for reform and standardisation of personal laws concerning marriage, divorce, adoption, and inheritance. Being a Hindu himself, he thought himself more entitled to reform Hindu personal laws than address the similar issues concerning the Muslim and Christian communities in India.

Rajendra Prasad, ever the traditional Hindu, was vocally opposed to government interference in Hindu personal laws. He wrote his objections in various long and detailed notes to Nehru. While both Prasad and Nehru were secular, Prasad felt that the government should support all religions equally but should not interfere with any single communities’ laws and practices. If Nehru did want to reform Hindu society, then why not extend that reform to all communities within India through a Unified Civil Code? Why single out Hindu society?

His other objection was that the Constituent Assembly that would have passed the Hindu Code Bill into law, had been elected to write the Constitution. They were not there to reform a religious community’s social problems. If Nehru and Ambedkar wanted to do this the right way, senior members of traditional Hindu communities should be included in the process. (Of course, Nehru and Ambedkar could not do that because it would have led nowhere. Traditional Hindus were against several proposed laws including a Hindu woman’s right to inherit her father’s property, or preventing Hindu men from having more than one wife) Nehru had no qualms about being utterly undemocratic about the process because he felt the ends justified the means in this case. And so, they engaged in a wonderfully polite but serious struggle for power. Rajendra Prasad felt that as President he was duty-bound to do something. And as first President, he was going to have to figure out just what a President could do when he disagreed with the Government.

When he realised Nehru was not going to change his mind, Rajendra Prasad threatened to send the bill back to Parliament and take actions “with the dictates of [his] own conscience” as he wrote to Nehru. Nehru was alarmed. He wrote back telling Rajendra Prasad that his actions would raise uncomfortable questions about the “President’s authority and powers to challenge the decisions of the Government and the Parliament” – uncomfortable questions whose answers might disappoint the President.

As they went back and forth, debating whether a President had the right to interfere in the work of the legislature, Prasad and Nehru asked the Attorney General to share his opinion. India’s first Attorney General, M.C. Setalvad referred to Article 74 in the Constitution that stated that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”. Based on his optimistic interpretation of the Article, Rajendra Prasad felt that he had the right to stop legislation even without referring to the Council of Ministers. But Setalvad pointed out that the role of the President was equivalent to the role of the King or Queen in Britain. They were just figureheads and “the President was bound to act in accordance with the aid and advice tendered to him by the Council of Ministers.” In short, Rajendra Prasad could not act independently and block the Hindu Code Bill because he lacked the support of the Council of Ministers. The President soon realised he only had the power to express his objections but not actually do anything about them.

And so, after his futile attempts to exercise some power, Rajendra Prasad receded into the background, signing the dotted line when needed, and playing the role of dignified state elder, figurehead and rubber stamp. In 1977 and ‘ 79, Amendments 42 and 44 clarified that the President could only act on the aid and advice of the Council of Ministers and that the President can send the advice back for reconsideration only once. If the Council of Ministers sends the same advice back again, then the President was obliged to accept it.

It turned out that my student was right. Presidents in India do not have very much power when it comes to legislation. Of course, throughout our short history post Independence, Presidents have tried to push and expand their power and ability to affect change when they felt they needed to with varying degrees of success.

Two years before leaving office, Rajendra Prasad gave a speech at the inauguration of the Indian Law College where he said “It is generally believed (that) like the Sovereign of Great Britain, the President of India is also a constitutional head… I should like, to be studied and investigated, the extent to which the powers and functions of the President differ from those of the Sovereign of Great Britain…” This exhortation to the students came before Indira Gandhi pushed for Amendments 42 and 44 that strictly defined the powers and functions of the President. Rajendra Prasad, who died in 1964, was spared seeing the final nail in the coffin of Presidential power and independence. But, Rajendra Prasad set an example for future Presidents to act according to their conscience, push back against the Government and honour their oath “to protect, preserve and defend the Constitution” and for that, in addition to all his contributions as a founding father of the nation, he is remembered and honoured by history.

Resources:

About Rajendra Prasad:

1. Rajendra Prasad on Wikipedia
2. Eminent Parliamentarian Series: Rajendra Prasad (A Collection of essays on Rajendra Prasad)

About Nehru vs Rajendra Prasad and Hindu Code Bill and Article 74:

1. Kaun Banayega Rashtrapati, by Ramchandra Guha in the Indian Express Archives
2. Clash between President Dr Prasad and PM Nehru over Hindu Code Bill most serious, by Prabhu Chawla in India Today (1987)
3. Disagreement between Rajendra Prasad and Nehru over Hindu code bills, India Today
4. Letters to the Editor: Difference between Nehru and Rajendra Prasad, Anandabazaar (Translate to English)
5. Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance? by Reba Som, Modern Asian Studies (on Jstor)
6. Why We Need An Executive President, Rajinder Puri in The Outlook
7. Whether the aid and advice theory has any relevance in the Constitution of India? by Mahitha Reddy in Judicere
8. Mr Badal’s Blunder in Uday India