The ongoing Presidential reference reminds us of Rau’s forgotten choice

The Supreme Court is presently seized of a Presidential reference concerning timelines for the assent of Bills by the President and Governors.

The case has unexpectedly drawn attention back to an office that is considered little more than titular. Yet, constitutional history reminds us that the office of President of India was once envisaged with far greater significance, before being gradually diluted by the Constituent Assembly.

At the centre of this forgotten story lies Sir BN Rau – the Advisor to the Constituent Assembly and one of the principal architects of the Constitution whose contributions remain insufficiently acknowledged – the man who placed the question of the President’s role at the very heart of his drafts.

The Constitution-making process was elaborate and exhaustive, and Rau played a central role from the very outset. As discussed in a previous column, he prepared and circulated a detailed questionnaire, accompanied by explanatory pamphlets, to elicit the views of representatives and experts on the salient features of the Constitution. These materials not only invited suggestions but also explained comparative practices from other jurisdictions, thereby acquainting members with global models and seeking their inputs on the principles to be adopted in India. Pandit Jawaharlal Nehru praised Rau’s effort, noting that the pamphlets were written “very objectively and not with a view to support any particular thesis.”

Among the many items in the questionnaire, Rau described one question as “the most important”: should India adopt a Parliamentary or a Presidential system of government? In his note, he emphasised,

“From the point of view of practical administration this is perhaps the most important question in the framing of the new Constitution.”

The follow-up questions probed the implications of this choice: what form should the Presidency take? Should the President be directly or indirectly elected, and for how long should he hold office? More crucially, should he have powers to act independently of ministers, or be bound to act only on their advice? Rau understood that the answers would shape the very architecture of the Republic.

Subsequently, Rau submitted a ‘Memorandum on the Union Constitution’ for the consideration of the Union Constitution Committee, which was tasked with settling the framework of the Union government.

The Memorandum reveals Rau’s preference for a Westminster-style Parliamentary democracy, but with a relatively stronger President. Part IV, Chapter I on ‘The Union Executive’, highlights that while Rau accepted that the President will largely be a constitutional head, acting on the advice of the Council of Ministers, he recommended that the office should also enjoy independent discretion in certain matters. Importantly, he argued that this discretion should not be confined to the convention of selecting the Prime Minister or dissolving Parliament, but should also extend to the appointment of judges, the protection of minorities and the suppression of widespread disorder.

Rau even contemplated situations where the President’s discretion might conflict with that of the Cabinet. In such cases, he suggested that the President should be able to appeal directly to the legislature or, in extreme circumstances, dissolve the House and appeal to the electorate. To assist in the exercise of these powers, Rau proposed the creation of a Council of State – a body akin to a Privy Council – which would advise the President on matters of national importance whenever he acted independently.

Thus, despite being inspired by the British monarch, Rau’s President was never intended to be a passive figurehead. His draft vested the office with significant discretion and the ability to act without ministerial advice in defined circumstances. It was a design that charted a middle path between the American President and the British Crown, aiming to create an independent balancing authority within the executive.

This vision did not last long. Between May and August 1947, the Union Constitution Committee – chaired by Nehru and comprising Rajendra Prasad, BR Ambedkar, Sir Alladi Krishnaswami Ayyar and Syama Prasad Mookerjee – considered Rau’s draft.

By June 8, its direction was clear: the President would be bound by the aid and advice of the Council of Ministers, his election would be indirect and his discretionary powers sharply curtailed. The minutes of the meeting categorically recorded:

“He (the President) should not have the special responsibilities set out in Clause 15 of the Draft Constitution prepared by the Constitutional Adviser.”

This marked a decisive break from Rau’s design, reflecting the Committee’s conviction that cabinet responsibility was the cornerstone of Parliamentary democracy.

Even as the Assembly tethered the President to the Westminster model, it recognised that certain silences remained. Dr Ambedkar, as Chairman of the Drafting Committee, informed the Assembly that an ‘Instrument of Instructions’ – a constitutional guidebook setting out how the President and Governors ought to exercise their powers – would be incorporated into the Constitution. As I have argued in an earlier column, this proposal was eventually dropped. The Assembly, which elsewhere in the Constitution displayed a strong instinct for detailed codification and design, chose here to trust in unwritten conventions and the wisdom of those who would hold office.

Interestingly, this Instrument of Instruction contained guidance on the reservation of a duly passed Bill by the Governor for Presidential assent, an issue currently being grappled with by the Supreme Court in the ongoing Presidential reference.

This was a remarkable leap of faith. Rather than spelling out what the President could and could not do, the framers relied on the expectation that practices would evolve in the spirit of restraint.

History, however, is not without irony. Rajendra Prasad, who as a member of the Union Constitution Committee had endorsed the decision to dilute the President’s powers, would later come to lament those very constraints. As India’s first President, he openly argued for greater independence of the office, most notably during his disagreements with Nehru over the Hindu Code Bill and in his decision to the inaugurate the reconstructed Somnath Temple. In those moments, Prasad cast himself as a moral counterweight to the Prime Minister – a role more consistent with Rau’s original vision than with the Constitution the Assembly ultimately enacted.

The current reference before the Supreme Court has once again placed the Presidency in the constitutional spotlight. It is a reminder of the forgotten choice made in the Assembly – to reject Rau’s design for a powerful President and to rely instead on conventions. That choice has, for the most part, worked. India’s Parliamentary system has endured, and the President has remained above the rough and tumble of politics. But moments of constitutional uncertainty expose the risks of leaving too much to faith.

Had the Assembly followed its usual instinct for design and codification, the role of the President might today have been clearer, the boundaries more sharply defined and the ambiguities fewer. Rau’s forgotten choice serves as a reminder that even offices thought to be titular can, in times of stress, prove pivotal to the working of the Constitution – and that conventions are a fragile substitute for constitutional clarity.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.