Presidential System of Governance – Does India need it?

Recently, the Member of the Parliament Shahi Tharoor argued for the need to change to a presidential system to ensure better functioning democracy. Though such a shift is impossible in the legal sense, it had received support from across the Indian political spectrum over the past decades in Independent India. This is because of the Presidential system’s merits of providing greater accountability and robust democracy due to separation of powers, decentralisation and the use of direct elections.

What is the difference between the democratic systems of the US and India?

Form of government:

US

• The United States has a presidential form of government
• The President remains in power even if his party does not have a majority in the Congress (US’ legislative body).

India

• India follows a Parliamentary form of government.
• The Executive led by the Prime Minister can lose power if its majority cannot be proved in the House of Representatives (Lok Sabha) in the event of a no-confidence motion.
• This can result in the mid-term elections.

Political parties

US

• The US has a two-party political system, in which the voters elect largely only two major parties.
• The country’s two major parties are the Democratic Party and the Republican Party.

India

• Though India too has two major parties at the national level, numerous regional and local parties are also dominating the Indian politics
• Thus, India has a multiparty political system.

Head of the state:

US

• In the US, the head of the state is the President, who is elected by the Electoral College for a four-year term.
• The members of the Electoral College are elected by the citizens.

India

• In India, the President is the constitutional head and the Prime Minister is the elected head of the government.
• The Indian Prime Minister is from the party that had won majority seats in the Lok Sabha via direct election.
• The President is indirectly elected by the Indian Parliament (both Lok Sabha and Rajya Sabha) and the legislative assemblies of each of the states and UTs, both of which consist of the directly elected representatives.

Cabinet members:

US:

• The President appoints the members of the cabinet.
• Except for the Vice President, other members are subject to confirmation by the Senate.
• After confirmation, these members serve under the President who can dismiss them anytime without the Senate’s approval.
• These members need not be Congress members.

India:

• The Union Cabinet consists of the Prime Minister and the cabinet ministers.
• Each cabinet minister must be a member of one of the houses of the parliament.
• These ministers are selected and dismissed by the Prime Minister, who is the head of the cabinet.

Separation of powers:

US:

• The separation of power is well-defined between the executive, the legislature and the judiciary.

India:

• The Central government does not have a strict separation of powers between the executive, legislature and the judiciary
• The executive is a part of the elected legislature.
• The Prime Minister does not have the power to overrule the legislature to make laws.
• The Bill becomes a law when both houses of the legislature passed it and the President (executive) gives his assent.
• The Supreme Court has the power to strike down any law which it may consider to be unconstitutional.

Federalism:

US

• The US’ federal system involves each state having its own constitution.
• The power is shared between the federal government and the state governments.

India

• India has only one constitution for the whole of the country.
• India is a semi-federal or a quasi-federal state that combines the features of both the federal government and the unitary government.

Impeachment of President:

US

• The US president can be impeached for “treason, bribery and other high crimes and misdemeanours”.
• The terms “high crimes” and “misdemeanours” have not been clearly defined.
• However, they broadly mean the abuse of power by a high-level public official.
• Impeachment of the President begins at the House of Representatives, which may or may not approve the impeachment resolution via a simple majority.
• Here, the members act as prosecutors.
• The senators act as the jurors during the second proceedings that take place in the Senate.
• If at least two-thirds of the Senators present found the President to be guilty, he is removed and the Vice President takes his position.

India:

• President of India can be impeached for “violation of the Constitution”
• However, there is no clear definition of this phrase.
• Unlike in the US, the impeachment process can be initiated in either house of the parliament.
• After the house that framed the charges passed the impeachment resolution by a majority of two-thirds of the total membership, it is sent to the other house, which would investigate the charges.
• If the other house also sustains the charges and passes the impeachment resolution, then the President is said to be impeached from the date on which the resolution is passed.

Pardoning Power of the President:

US

• The US President has the constitutional right to pardon or commute sentences related to federal crimes.
• The US Supreme Court held that this power is “granted without limit” and cannot be restricted by the Congress.
• The President is not answerable for his pardon and does not have to provide a reason for issuing one.
• However, this does not include the impeachment verdict by the Congress and the state crimes.

India

• Indian President does not have the unfettered power to grant pardons like that the US President.
• He has to act according to the advice of the Union Cabinet.
• The pardoning power of the President is provided for under Article 72 of the Indian Constitution.
• The President cannot exercise his power of pardon independently of the government.
• The mercy plea is forwarded to the Home Ministry to seek the Cabinet’s advice.
• The MHA should then forward this plea to the concerned state government, whose reply is the basis for the ministry’s advice on behalf of the Council of Ministers.
• Though the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once.
• If the Council of Ministers decides against any change, the President must accept it.

Emergency provisions

US

• The US Constitution, by itself, does not specify when and how a state of emergency may be declared and which rights may be suspended.
• It is believed that the Constitution provides the President with the inherent emergency power by making him the commander in chief of the armed forces or by vesting in him a broad and undefined “executive power”.
• There are several laws dealing with emergencies. Among them is the National Emergencies Act and the Stafford Act
• Aiming to limit the presidential power, Congress passed the National Emergencies Act in 1976.
• Under this Act, the President has complete discretion to issue an emergency declaration by specifying which powers he intends to use, issue public updates if he decides to invoke additional powers and report to the Congress on the government’s emergency-related expenditures every 6 months.
• The state of emergency expires after a year unless the president renews it.
• The Senate and the House of Representatives meet every 6 months while the emergency is in effect to consider a vote on termination of the emergency.
• These protective provisions have failed because 30 states of emergency are still in effect today and the Congress has not met even once since the law has been passed to vote on whether to end them.
• In addition, the National Emergencies Act does not require that the powers invoked relate to the nature of the emergency.
• Even if the national emergency is not declared, laws permit the executive to take extraordinary actions under specified conditions like war and domestic unrest.
• The Stafford Act of 1988 empowers the Federal Emergency Management (FEMA) to assist the state and local governments during “natural catastrophes” and coordinate the nation’s response to them.
• Unlike the emergency declared under the National Emergencies Act, which involves unlocking of extensive powers of the president, the Stafford Act declaration only deals with the FEMA.
• FEMA is an agency within the US Department of Homeland Security.
• Only the President can declare a major disaster under this law.
• The US President Donald Trump recently declared the coronavirus pandemic an emergency by the invoking this law.

India

• Unlike in the US, India has specific provisions related to an emergency under Part 18 of the Constitution from Article 352 to 360.
• The Constitution also provides for the grounds for the declaration of the emergency.
• As per the Constitution, there are three types of emergency:

1. National Emergency: This emergency is due to war, external aggression or armed rebellion.
2. State Emergency or Constitutional Emergency: This may be declared when the constitutional machinery in the state fails.
3. Financial Emergency: This is due to the threat to financial stability or credit of India.

• The President can declare emergency only after receiving a written recommendation from the Cabinet.
• Thus, the emergency can be declared only on the concurrence of the Cabinet and not merely on the advice of the Prime Minister.
• Unlike the US, India had declared the state of emergency only three times, two of which were due to military crisis and another due to “internal disturbance”

What are the arguments in favour of the presidential system in India?

Stability:

• There is lesser concern regarding the stability of the Presidential System, though there is always the possibility of the President harbouring more power at the expense of the legislature.
• In contrast, the Parliamentary systems can take forever to form and may fall at any time. They are infamous for their instability across the globe.
• India tried addressing the issue of instability by passing anti-defection laws. However, this led to the MPs and MLAs becoming mere bondmen to the political party leaders.

More democratic

• The US model is decentralised and the chief executive is elected directly by the people. This enables local expression and real self-governance.
• The Parliamentary system, on the other hand, is inherently unitary, with the Central government controlling the entire country.
• Also, since the parliamentary governments are controlled by the majority, a sectarian government can reduce Parliament debates into a mere formality.
• The presidential system, in contrast, permits all lawmakers to introduce legislation and build a coalition.
• Parliamentary Coalition shares executive power only with the controlling majority. However, the presidential system allows power-sharing with the entire people by virtue of the President’s direct election.
• Impeachment is more effective than a vote of no confidence as the former is a constitutional provision and the latter is left to the daily politics, which is never-ending.

Less vulnerable to dictatorship:

• The possibility of dictatorship in the US model is impossible as the very structure prevents it.
• The reasons include:

1. US states cannot be controlled by the federal government, like that of India
2. Both the governor and the Assembly of each state are directly elected by the people
3. The legislature is truly independent and even if a single party controls the presidency and the congress, the midterm elections every two years address this issue.

• Hence, in America’s more than 200 years of history, no President was able to rule autocratically.
• In India, however, there have been at least two prime ministers who almost behaved like autocrats as the parliamentary system is inherently unitary and power is centralised.

Inclusiveness:

• The US’ political system is more suited for uniting diverse society.
• By design, the parliamentary system creates a majority government – enabling the creation of a sectarian government that appeases either the majority or the minority to gain power.
• The decentralised governance followed in the US addresses the national majoritarian tendencies.
• The division of power curbs the majority’s power over the government.

More governance:

• Due to Indian elected representatives’ overreliance on the legislative majority, they are more focused on politics rather than policy or performance.
• Directly elected chief executive at the Central government, as seen in the US, ensures that there are no shifting stands of coalition support politics.
• The Presidential system provides a fixed tenure in the office for the president. This ensures the stability of the government and enables it to form medium and long term plans.
• This is unlike the parliamentary government, where a new general election can be called in case of the no-confidence motion.
• The Presidential system also enables quick decisive actions. This is especially vital for situations where any delay may be dangerous.
• This system also allows the President to appoint his ministers and other government appointees outside his party. This enables the government to be more expert-oriented.

Individual Ministerial Responsibility:

• The Parliamentary system allows non-performing ministers to shelter under the concept of collective responsibility.
• In the Presidential system, it is easy to make less-effective minister be singled out and be dismissed.
• The dismissal of a minister does not affect other ministers and make the government unstable

Beyond party politics:

• In the parliamentary system, the Prime Minister is forced to view all issues based on party dictates and not in an unbiased way.
• This is unlike in the Presidential system that enables the President to view issues outside the prism of political party affiliations.

What are the arguments against the presidential system of governance?

Disruptive for long-term plans:

• The change of an executive president is accompanied by a large-scale replacement of senior public officials.
• There is a disruption in administrative continuity and stability.

Continued representation of interests impossible:

• Parliamentary democracy provides built-in mechanisms for power-sharing through coalition governments.
• Coalition offers a more effective and continuous representation of a variety of interests.
• This is not possible in the administration by a presidential regime.

Rigid:

• Fixed terms in the presidential system make it more rigid.
• A president can be removed from the office only via the cumbersome process of impeachment.
• The president is the representative of the overall country.
• When his personality is undermined, the whole country is affected.
• Parliamentary system, on the other hand, protects against bad and incompetent heads via no-confidence motion while not affecting the overall reputation of the country due to the existence of a ceremonial head.

Abuse of office:

• The presidential system is vulnerable to abuse of power and at worst, dictatorship
• This is due to the enormous power that exists with the President.

Friction among government offices:

• Separation of powers as seen in the US may cause delays in the execution of government programmes, especially when the executive-legislative relations are not properly managed.
• It also inhibits the smooth functioning of the government, especially if one organ attempts to moderate the activities of the other through the mechanism of checks and balances.

Costly:

• The presidential system is costly to operate.
• The parliamentary system is considered cost-effective because the Prime Minister and other ministers, who constitute the nation’s cabinet, are from the elected members of the parliament.
• On the other hand, the presidential system requires elected members to resign before they can be appointed as ministers.
• The presidential system also puts a lot of public funds at the disposal of the president without being subjected to legislative scrutiny or public audit.
• This creates an opportunity for lack of fiscal discipline or corruption of all forms.

Democratic stalemate:

• If the legislature is dominated by the party opposed to the president’s party, there is a possibility of stalemate in governance because both the President and the legislature would have democratic legitimacy.
• On the other hand, if the president’s party dominates the legislature, there will be a less accountable government.

Less democratic:

• The presidential system enables the President to appoint the outside talent.
• The outside talents brought in by the president are not the elected representatives.
• This deters those outside people from giving independent advice to the chief executive as they owe their appointment not to the people but the President.
• It is also unrealistic to assume that the President will choose his cabinet based mainly by considering the merits.
• It is not democratic to leave the choice of the cabinet to the president.
• The parliamentary system addresses these issues by enabling the bringing of outside talents who are mandated to get elected after assuming the office.

Can India have a presidential system of governance?

• The Indian Constitution provides for a Parliamentary form of governance.
• Therefore, it is necessary to amend the constitution to switch to a presidential form of governance.
• In the 1973 Kesavananda Bharati case, the Supreme Court laid down the basic structure doctrine.
• As per this doctrine, the parliament, while exercising its amending power, cannot change the core/basic features of the Constitution.
• The court did not verify whether India’s parliamentary form of government constitutes the ‘basic feature’ of the Constitution.
• However, in the later decisions, the top court categorically held that a parliamentary system of government constitutes the basic feature of the Constitution and therefore cannot be amended.

What can be the way forward?

• The causes of political malaise in India are wide-ranging and are not limited to a particular form of government.
• In addition, the problems faced by India are not due to the parliamentary system but with the political culture.
• Casteism, communalism and other primordial considerations dominate the elections rather than the informed choices based on the public needs and services.
• Misplaced public priorities and the corruption of the government are the root cause and not the form of the government.
• Instead of switching the form of the government, changes must be made in political culture at the popular level and the political class must undergo a radical transformation.

Practice question for mains:

What can the United States learn from India’s democratic safeguards? (250 words)