Dr. Rajendra Prasad with the members of the Central Cabinet taken out at a Government house in New Delhi in January 1950.
| Photo Credit: The Hindu Archives
The Supreme Court, in its Tamil Nadu Governor judgment, recalled how an infant India watched with trepidation as its first President claimed to have power to exert his discretion and withhold assent to Bills even against the aid and advice of the Council of Ministers.
A Bench of Justices J.B. Pardiwala and R. Mahadevan recounted when Dr. Rajendra Prasad expressed reservations about the Hindu Code Bill, which proposed considerable reforms in the Hindu personal law, introduced in 1951. The President had sought to assert his independent authority to withhold assent to the legislation.
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The Jawhaharlal Nehru government had referred the issue to the first Attorney General of India, MC Setalvad, for an opinion.
“Mr. Setalvad clarified that the role of the President under the Indian Constitution was analogous to that of the British monarch and he was expected to serve as a constitutional figurehead. The Attorney General opined that the President does not possess the authority to act contrary to the advice of the Council of Ministers,” Justice Pardiwala narrated in his judgment pronounced on April 8 but published late on March 11.
The judge however said the opinion of the Attorney General was, with respect and magnanimity, “accepted” by the President and the ensuing controversy between the Prime Minister and the President was laid to rest.
However, Mr. Setalvad’s autobiography ‘My Life – Law and Other Small Things’ suggested that his opinion had rankled President Prasad, an “orthodox Hindu”.
“The views of Dr. Rajendra Prasad as to the powers of the President persisted and to the surprise of Nehru and myself, he raised the question in his speech when laying down the foundation stone of the building of the Indian Law Institute in November 1960,” Mr. Setalvad wrote in his memoir.
Mr. Setalvad quoted President Prasad “pointing out” in his speech that “there is no provision in the Constitution which in so many lays down that the President shall be bound to act in accordance with the advice of his Ministers”.
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The President, the book said, observed that the “Indian President, who was elected and liable to impeachment could not be compared with the British king. Dr. Prasad, who gave his speech in the presence of Mr. Nehru and Mr. Setalvad, had emphasised “the fact that “our conditions and problems were not at par with the British”. The President had also raised questions of why India’s written Constitution must incorporate the conventions of the British “unwritten” Constitution.
Mr. Setalvad said the President’s speech had created a “considerable stir in Parliamentary and other circles”. Nevertheless, the country’s first top law officer said his opinion has stood the test of time.
Published – April 12, 2025 03:24 pm IST