7 Perceiving and Building Institutions

Dr. Manisha M.

Perceiving and Building Institutions
{Nehru-Patel debate on PM-Minister-Cabinet interaction  Dr. Rajendra Prasad-Nehru debate on President-PM interaction
Patel on all-India Services}

Abstract

“The attainment of independence on 15 August 1947 marked the beginning of a new era for India. The country commenced its long journey towards self-reliance and self sufficiency against all odds, based on certain democratic and libertarian values, which hitherto developed societies also considered difficult, if not impossible, to achieve.1 The stage for this new journey was set with the adoption of the constitution on 26th of January, 1950. The founding fathers of the Indian Constitution adopted a liberal democratic setup with a parliamentary system of government, where the executive was a part of the legislature and responsible to it and the head of the state- the President was indirectly elected.With the commencement of the Constitution, India’s newly founded institutions had new operators who had few precedents and little experience. The precedents that were set in the subsequent years defined the powers of political institutions. Jawaharlal Nehru as Prime Minister, and other leading political figures, such as Vallabhbhai Patel as deputy Prime Minister, Rajendra Prasad as President, often had conflicting opinions about the functions of institutions and their role within it. These views shaped the functioning of the institutions in the years to come. In particular, the debates between Nehru and Prasad on the role of the President and Nehru and Patel on the role of the Council of Ministers and the need for All India Services significantly determined the nature of these institutions and defined the limits of their power.”

Introduction

Constituent Assembly of India: Choosing between Alternatives

The Constituent Assembly’s decision to adopt a parliamentary form of government was the result of over two and half years of deliberation from the first meeting of the Congress Expert Committee in July 1946. The adoption of a parliamentary system of government was however, never in doubt during the formulation of the Indian constitution, though several important interventions were made in favour of alternative forms of democracy by eminent personalities like Prof. K.T Shah, Prof. Shibanlal Saxena and members of Muslim League.

The major alternatives that were available at the time and were discussed within the Assembly were those of a traditional parliamentary structure, with which the ruling elite was already familiar, American Presidentialism, governmental systems of Continental Europe, and a non- traditional structure, that had not been tried anywhere in the world.

On 17 March 1947, a circular was issued by B. N. Rau, the constitutional adviser to the Assembly, to elicit the opinion of the members of Constituent Assembly, in the light of which the constitution would be drafted. The questions in the circular and the options supplied therein are also indicative of the system that the members of the Constituent Assembly were contemplating.Very few members responded to the Questionnaire. B. N. Rau then submitted an independent memorandum and a detailed draft which consisted of modified provisions of the British and American Constitutions and the Government of India Act of 1935.

Of the various systems of governments considered by the Assembly, the indigenous system was debated at some length both within and outside it. This system found the most articulate expression in the philosophy of Mahatma Gandhi who had envisaged a system founded on self -sufficient self-regulated village republics, based on political and economic decentralization. Gandhi’s ultimate ideal was of a stateless society.  However, recognizing the need for a state that performs political functions, he conceded to the establishment of a non violent state, based on the ideal that the state that governs the least, governs the best. Gandhian followers like S.N. Agarwal drafted a Gandhian Constitution for Free India, which is indicative of Gandhian ideas.

During the debates on the ‘Objectives Resolution’ in the Constituent Assembly, there was neither any criticism of the omission of the Panchayat form of government, nor  any mention of the subject. Members of the Constituent Assembly spoke of democracy, socialism, and the responsibilities of the legislature, but not of the necessity for an Indian form of government.7 The Congress Expert Committee, which was constituted on 8 July 1946, with Nehru as its Chairman to prepare the material for the Constituent Assembly, worked within the framework of the Cabinet Mission plan, ignored the Gandhian approach, considering only institutions of parliamentary government.8The Union and Provincial Constitution Committee, which was entrusted with the task of discussing the salient principles on which the Constitutions of the Union and the Provinces were to be based, too did not consider a Gandhian type of constitution. When the report of the two committees were discussed in the Constituent Assembly in July and August 1947, only a few members like Ramnarayan Singh noted the absence of the Panchayats and suggested correctives.

It was only when the draft Constitution was issued that the members noted the omission. Dr. Rajendra Prasad noted “I like the idea of making the constitution begin with the village and go up the center”. Firmly, but kindly, B.N.Rau, the adviser to the Government of India, indicted the general popularity of the parliamentary system, where the lower house was directly elected. According to him:-

It may not be easy to work the panchayat idea into the draft Constitution at the present stage. The articles 67(5) (a) and 149 (10) of the Draft Constitution embody the decision already taken by the Constituent Assembly, provide for direct election to the lower house, both at the center and in the units. These decisions will have to be reversed if the elections are to be indirect, as required by the panchayat plan. Whether this will be practicable, I do not know. In all principal federations and Unions of the world, the lower house is elected but direct elections. Even the Upper House or the Senate of the United States of America, which was originally indirectly elected, is now (since 1913) directly elected.

Later, when amendments to the draft constitutions were discussed, members favoured developments of Panchayats as institutions of local self-government. At the end of the debate, the members of the Constituent Assembly were almost unanimous that the road to social revolution lay through a democratic government elected on the basis of universal adult suffrage. The essential logic that carried the day was – he fate of over 40 million people could not be entrusted to a system that was yet to be tested.

The members of the Union Constitution Committee also discussed the viability of a presidential form of government. Professor K. T. Shah, Ramnarayan Singh and Sibanlal Saxena, and members of the Constituent Assembly, supported a presidential system. Singh observed that the

…Parliamentary system of government has failed in the west and it will create hell in the country. I have a bitter experience of its working in the provinces. In the presidential system of government it is easy to find one honest president, but it is not so easy to find an army of honest ministers, deputy ministers and parliamentary secretaries and so on.

Prof K.T. Shah extolled the virtues of a presidential form of government. He said that:-

.…the sooner we get rid of the combination of executive, judiciary and legislature in some supreme Cabinet, in some supreme authority, the better for us it would be…the division between the Executive and the Legislature…..has worked for over a hundred and fifty years in America, quite satisfactorily, where the Legislature and the Executive are kept wholly apart.

Sibanlal Saxena was of the opinion that the conditions essential for the establishment of a parliamentary form of government did not exist in India. The parliamentary system had been a success in Great Britain due to the political and cultural homogeneity of the country, loyalty to the king and respect of the constitution, something which was engrained in the people. The plurality and diversity of India encouraged fissiparous tendencies. Moreover, respect for constitutionalism was yet to take roots in the country. Hence, he felt the presidential system was more suitable for India. The strength of the current in favour of a presidential form of government can be assessed from the statement of Sir B.N.Rau:-

At some of the earlier sessions of the Constituent Assembly, when the main principles of the new Constitution were being laid down, there was a fairly strong current of feeling in favour of the American Presidential system, and this found expression in the earlier decision of the Assembly, not only as the mode of elections of the head of the Federation and of the head of the states, but also to some extent, as to the relationships between the heads of the state and their ministers. This current is now weakening, but may nevertheless leave some traces in their final version of the constitution.

Yet another system that the Constituent Assembly considered was the Swiss form of government. The members of the Muslim League strongly supported a Swiss type of executive where the ministers are elected individually by the legislature.16 On the 17 July, Aziz Ahmed (Muslim League) moved an amendment to this effect supported by Ibrahim Sahab Bahadur and Begaum Aziz Rasul. Kazi Syed Karimuddin, Mahboob Ali Baig Sahib Bahadur and Chaudhury Khaliquazaman (all Muslim League) spoke in favour of the amendment.17 The Muslim League believed that such a system, would protect the interests of the minorities, ensure them a proportionate representation in the executive and provide stability.

The framers of the Indian constitution also had the option of adopting the Russian system. Though never mentioned during the debates in Constituent Assembly, many scholars like
M.N. Roy had advocated a modified form Soviet democracy christened Radical Democracy. However, the subordination of individual interest to the interest of  the society did not sufficiently appeal to the Indian elite. Moreover, while the USSR had made great strides under the stewardship of Vladimir Lenin, the insurmountable power of the Communist party of the Soviet Union created doubts about the security of individual liberty. Added to this the Congress was largely financed and led by the educated bourgeoisie, and the emergent capitalist class was opposed to the total elimination of private property and state control.

Thus, while many alternatives were considered during the debates in the Constituent Assembly, it was parliamentary democracy that found greatest support. There appeared to be a broad convergence amongst the political elite with regard to its adoption despite some debate on the issue mainly, prior to the constitution of the Constituent Assembly.

Causes For the Adoption of a Parliamentary System

It becomes imperative to assess the reasons for the adoption of a parliamentary system in view of the tremendous support that it enjoyed within the Constituent Assembly.

Firstly, the members of the Constituent Assembly wanted to maintain continuity rather than experiment with a new system of governance. K. N. Katju and Sardar Patel, prominent members of the Constituent Assembly, opined that India under British rule had followed British parliamentary institutions for 150 years, and these had become a model. The British ministers were responsible to the House of Commons and this was the essence of the British parliamentary system. To depart from this principle was almost unthinkable.20

The Indian political leadership, too, had a long relatively successful experience with representative government as introduced by the British during the colonial period. They were associated with local self-government since the late nineteenth century. The Indian Council Act of 1909 and the Government India Acts of 1919 and 1935 had resulted in the establishment of partially responsible executive and a gradually expanding legislature. Indians played a significant role in both the executive and legislative departments of the government, at the provincial as well as the central level. Although not many had participated in the running of the government, but those who did were men of considerable influence and repute. Thus, when faced with a final choice they felt that the Constituent Assembly should not turn its back on a hundred year old tradition of British –type parliamentary institutions in India.

Furthermore, the spread of modern western education and exposure to western culture made educated Indians firm believers in liberal democracy. The successful working of the parliamentary system in the home country (Great Britain) impressed the framers of the constitution. As K.M. Munshi, a member of the Constituent Assembly, opined, the character of the British Constitution has enabled the British government to tide over the many difficulties it has faced during the last 150 years. Between the two models, the British and American, he said, the British model has been approved by everyone including the American constitutional experts as really better fitted for modern conditions. Others such as Sardar Vallahbahi Patel were also of a similar view.

The Constituent Assembly members felt that a parliamentary form of government would provide for day to day responsibility of the executive to the legislature, which the principle of separation of powers on which the American system was based, may result in constant conflict between the two. According to K. Sanathanam, the executive and the legislature would be at logger heads with each other. In addition to this, the members had greater confidence in principle of collective responsibility and group leadership, than on a single president.

The emphasis laid on stability also went in favour of a parliamentary system. In such a system, where the accountability of the government to the people is indirect, i.e., through the legislature, which in turn, is exposed to the discipline of the party system. The citizens can sanction the government by changing the composition of the parliament, which would force a change in the Cabinet. Such a system of double accountability (to the legislature and to the party) made parliamentary democracy more accountable on the one hand and less susceptible to the vagaries of public opinion on the other. Last but not the least, the Constituent Assembly was in favour of direct election rather than indirect elections for the head of the government, as in the United States of America.

In a parliamentary system, the accountability of the executive to the electorate is routed not just through the legislature but also through the bureaucracy, which is responsible for the execution of governmental policies and programmes. This gave a position of pre eminence to the Civil Services. Given the fact that the task of the actual framing of the Constitution was carried out by a group of prominent legal experts and civil servants, (Alladi Krisnaswami Aiyyangar, N. Gopalaswami Aiyyangar, B. N. Rau, Dr. B. Shiva Rao were all civil servants),it is possible that they favoured the adoption of parliamentary democracy on this count as well.

The office of the President

Although the Constituent Assembly approved a parliamentary system of government, it was not an exact replica of the British system. The constitution makers modified the Westminster system to suit the peculiar requirements of the country. It may be pointed out that in the post partition period, the need for a stable system of government that would ensure unity of the country dominated the thinking of the Constitution makers. It is in this context that the constitutional provisions need to be understood.

The Cabinter form of government consisting of elected representatives, who also constituted the executive, individually and collectively responsible to the legislature was modified to accommodate an indirectly elected President, who was to be the Constitutional head of the state. Article 53 of the Constitution lays down:

The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution

The term of the President was to be of five years and he could be removed by an impeachment proceeding brought against him by the Parliament. There was also to be an elected Council of Ministers (CoM) headed by the PM, collectively responsible to the popularly elected lower House of the Parliament, namely the Lok sabha to aid and advice the President in the exercise of his functions  as provided in Article 74

There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration

The President was the Commander- in chief of the armed forces, had powers of veto and could dissolve the lower house of the parliament. However, it was understood that the President could act only on the advice of the CoM who were responsible to the parliament. In this scheme of things, the President was to be the nominal head and the Prime Minister the real head.

The framers of the Constituent Assembly deliberately refrained from precise detailing of the relative powers to be shared between the President and the ministers. Although there was no significant debate in the Constituent Assembly with regard to the exact role of the President, It was left to conventions. The members of the Constituent assembly expected the Indian President to act as a friend philosopher and guide of the government, a role similar to that of British crown. The minimalist wording of the constitution and the widespread view that the President must act on ministerial advice was done to keep the government flexible, quick and more effective.

During the debates on the report of the UCC in the Constituent Assembly, Nehru explained the “ministerial character of the executive” when he clarified that the President had no real power, though he enjoyed a ‘position of great authority and dignity’. Members made suggestions to increase his dignity by recommending that he declare his financial assets, be non party man, and so on.The Presidents role as a figurehead was also reflected in his indirect election, unlike that of the CoM who were to directly elected. The idea of his direct election was only referred to in passing as the UCC had no doubt on the position of the President. Some member, including K.M. Munshi suggested the direct election of the President by an electoral college specially constituted for the purpose. Members of the Muslim League also favored the direct election of the President and indirect election of the CoM for a variety of reason, the most important being their desire to protect the interest of a minority group.

Despite such implicit understanding on the role of the President, doubts regarding the exact area of power of the President emerged soon oafter the commencement of the Constitution

The Nehru- Prasad Interaction on the Role of the President

In 1951, when Dr. Rajendra Prasad became the first President of India and Jawaharlal Nehru the first Prime Minister; the first major incongruity between the Prime Minister and the President occurred. On 18th July, 1951, Rajendra Prasasd sent a note to the Prime Minister, Jawaharlal Nehru, in which he expressed his desire to act solely on his own judgment, independent of the advice of the Council of Ministers while sending messages to the Parliament, giving assents to Bills and returning the bills for reconsideration. This difference of opinion was over the Hindu Code Bill, which had been introduced in the Provisional Parliament. The Hindu Code Bill would have invalidated a large section of Hindu personal law relating to marriage, divorce, inheritance, etc. Rajendra Prasad contented that the Provisional Parliament, which was not directly elected by the people of the country did not have the mandate to make such major enactments. As Austin Granville points out, Prasad’s opinion on the Hindu Code Bill has some “moral force”

Rajendra Prasad arguments in support his views were as follows

• The position of the President in India is not similar to that of the Monarch in Great Britain
• The constitution did not lay down any limitations to the powers of the President
• The constitution does not refer any limitations on the powers of the President through conventions. Article 105 of the Constitution, which explicitly mentions that parliamentary privileges of MP’s are similar to those of British Parliament, the constitution made no mention of such conventional limitations in case of the President. Hence, British precedents were not pertinent in case of the powers of the Head of the state.
• He further referred to Article 254 of the constitution.

President Rajendra Prasad threatened to resign if the government went ahead to pass the Bill and subsequently there was serious discourse regarding the powers of the President as a fall out of this dispute.

The Presidents note raised fundamental issues of serious concern, which as A.K. Aiyyar pointed out “if conceded would upset the whole constitutional structure” ased on Cabinet responsibility, envisaged at the time of framing of the constitution. It had the potential to make the President extremely powerful and an independent centre of authority above the CoM.

Nehru, referred the note to A.K. Ayyar, a member of the Constituent Assembly and M.C. Setalvad, the then Attorney General of India, both of whom were eminent legal luminaries for advice. The attorney General replied that by virtue of Art 74(1), the President is required to act in all matters on the advice of the Council of Ministers”. He pointed out that under the Indian constitution, sovereignty resides people of India and since the people elect the Parliament from which the CoM is drawn, the ultimate authority resides with the CoM.

Aiyyar’s refutations of Prasad’s argument were substantial and point to point, firm and substantial on the issues raised by Rajendra Prasad. He pointed out that

• The Presidents position in India was “analogous to that of a “constitutional Monarch in Britain”… and there is no sphere of function in respect of which he can act without reference to the advice of his ministers. Further, he categorically pointed out that it would be “unconstitutional on the part of the President not to seek or not to be guided by the advice of his ministers.
• Art 105 was included to avoid the enumeration and therefore repetition of privates of MP’s.
• Article 254 did not confer any special powers on the president. The President was not to ‘set’ himself as an umpire between states and the Union government.
• President could not withhold his assent on any bill because he had no revisional or appellate authority over the cabinet.

Aiyyar was of the opinion that the President was reading ‘every article of the constitution, which referred to the President as an article that vested powers on the President in his personal or individual capacity’. It also appeared that the President read article 53 of the constitution independent of the other articles of the constitution, which suggested that the President under normal circumstances is bound by the advice of the CoM. It was these provisions that undermined the functions and powers of the President of India vis-a vis those of the Monarch of Great Britain. He underscored and over emphasized on the fact that it was merely conventional and not constitutionally stipulated that the President be bound to act in accordance with the advice of the Council of Ministers.

Faced with these firm rebuttals both from the attorney general and A.K. Aiyyar, the President retreated. Meanwhile, the Hindu Code Bill too had been shelved and the imminent constitutional crisis that loomed over the nation was averted. However, Rajendra Prasad it appears that Dr Prasad’s doubts about the exact role of the President still persisted.

A second major dispute with regard to the powers of the President took place in 1960s during his second term in office. In a speech to India Law institute in November, 1960 once again raised questions relating to the limits of presidential powers and areas of presidential discreation. Excerpts of his sppech are given below:

“Our Constitution is a comparatively new Constitution. It is based largely on the British Constitution. As such it has history if not an ancestry which may well go back to centuries. It is being worked, I venture presume, successfully to the satisfaction of all concerned….the constitution is largely founded on the British Constitution. There are certain differences which are obvious. The British Constitution is a unitary Constitution in which the parliament is supreme, having no other authority sharing its power except as such may be delegated. Our Constitution is a federal constitution in which the powers and functions of the Union Parliament and State Legislatures are clearly defined and one has no power or right to encroach upon the rights and powers reserved to the other. The Head of the state in the British Constitution is a Monarch and the Crown descends according to the rules of heredity. In India the Head of the State is an elected President who holds office for a term and can be removed for misconduct in accordance with the procedure laid down in the Constitution. It is generally believed that like the Sovereign of Great Britain the President of India is also a constitutional head and has to act according to the advice of the Council of ministers. The executive powers of the Union are vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the constitution…… The question which I should like and the matters in respect of which, if any, the powers and functions of the President differ from those of the Sovereign of Great Britain. Further, it may also be considered, if the procedure by which the President is elected and is liable to be removed or impeached introduces any differences, constitutionally speaking, between the President and British Monarch. ..….In this connection it may be pointed out that there are no provisions in the Constitution which in so many words lays down the advice of the Council of Ministers. The relationship between the President and Council of Ministers is laid down in Articles 74 and 75….. The questions which has to be investigated is how far these and other provisions go towards making the functions and powers of the President identical to those of the Monarch of Great Britain….. a wider question of much import is how far we are entitled to invoke and incorporate in our written constitution by interpretation the conventions of British Constitution which is an written constitution..… this is necessary in view of the fact that our conditions and problems are not at par with the British and it may not be desirable for us to treat ourselves as strictly bound by interpretations, which have been given from time to time to expression in England. We have got used to relying on precedents of England to such an extent that it seems almost sacrilegious to have a different interpretation even if our conditions and circumstances might seem to require different interpretation….”

Rajendra Prasad in his speech raised four issues that were related to the boundaries of Presidential powers:

1. Could the Indian constitution incorporate the British Constitutional Conventions with regard to the position of the President, given the fact that the British Constitution was itself unwritten?
2. The constitution of India does not explicitly lay down that the President is bound to act according to the advice of the Council of Ministers
3. The Position of the President was substantially different from that of the British Monarch, on account of the elected nature of Presidents office
4. Indian problems and conditions were different from the British, hence they demand unique solutions

It appears from his speech that in the estimation of the President, the President being the impartial and final executive head had to have authority to deal with emergent circumstances, particularly at the national level. This was particularly important in view of the federal nature of India, where there was clear cut distinction between the powers of the centre and the states. The President in Prasad’s, it would appear from the interpretation Dr Prasad’s speech, as an umpire especially in case of such a conflict. He conceptualized the office of president as that of an ‘authority in case of a crisis’. Nor could India imitate the British system in view of the divergent nature of British and Indian polity. Nor could the office of the President in India, who was an elected head be equated with that of the hereditary British monarchy.

Nehru’s threat to resign from the office led Prasad to backtrack second time round. Prasads intention in raising these issues were many. In the first place, Prasad realized the regality by the ceremonial nature of Presidents office once he occupied it. He therefore intended to vest the office of the President with some authority and continuity, especially in case of a conflict between the centre and the sates or in case of a crisis. Further he believed that the

Indian constitution could not be based solely on British conventions, due to the difference between the two. Apart from the substantive issues that led to differences between the President and the Prime Minister, James Manor also identifies several other factors that affected the relations28 between Nehru and Prasad during this period:

• Elements of personal incompatibility: Nehru was a modernist and Prasad was a cultural traditionalist, therefore the out look of Nehru was substantially different
  from that of Prasad.
• Nehru wanted C. Rajagopachari to occupy the office of the President. However, the Congress Parliamentary party chooses to nominate Rajendra Prasad to the office of the President. Nehru was annoyed by his inability to secure Presidency for C. Rajagopalachari.
• Nehru disapproved Prasad’s suggestion of changing date of Republic day and inclusion of Hindu rituals in Presidential installation ceremony. This brings to light the different outlook of Nehru, who was a modernist and Prasad who was culturally trational.
• Prasad’s feeling of powerlessness in the office of the President

it may be pointed out that India during this period of time had a stable government under the leadership of the congress party. The opposition forces were rather weak. Nehru’s position within the Congress was unchallenged. Under the circumstances, there was little room for the Presidential indiscretion> hence, none of these controversies erupted into constitutional crisis. Moreover apart from instances, the relationship between the President and the Prime Minsiter were cordial. Nehru met the President regularly. He briefed him about the decisions of the Cabinet. The controversies did not mull all criticisms of the government by the President. Occasional public statements by Prasad criticizing the government were tolerated and even accepted. The period therefore witnessed and the development of a tradition of Presidents offering mild and implicit criticisms by the President against the government and comments on plausible non-conformity by the President to the Prime Minister.

Prasad’s attempt to question the position of the President helped in defining the powers of the President with clarity. It established beyond doubt that the notion of Cabinet supremacy within the executive and charted the course of ascendency of the Prime Minister as the real/sole centre of power. The challenges to the office of the Prime Minister, if there were any were quelled set the course for the office of the President- that of a nominal head.

Patel – Nehru Interaction on PM-Cabinet

Despite its enormous length and great detail, the Indian constitution did not amplify the role of the executive and the relationship of the different executive organs, namely, the President, the Prime Minister, the Council of Ministers and the Cabinet to each other. While the relationship between the President and the Prime Minister became serious matter in Nehru- Prasad’s interaction, the relations between the Cabinet and the Council of Ministers an area of disagreement between Nehru and Sardar Patel.

In the post 1947 period, Nehru tried to create a Cabinet that represented the entire country. His Cabinet therefore gave representation to prominent non-Congressmen like B. R. Ambedkar, S. Chetty, George Mathai, S. P. Mookherjee, as well as  influential Congressmen like Rajendra Prasad and Maulana Azad. However, very few of them had a political base and most functioned as adviser of the Prime Minister than his equals. Vallabhai Patel, popularly known as Sardar Patel, who became deputy Prime Minister and chose the powerful home ministry and states ministry limited the powers of the Prime Minister 29and denied him the amount of freedom in the Cabinet that he desired. In many ways Nehru and Patel functioned as equals.

The interaction between Nehru and Patel were on account of

1. Differences in Personality of Nehru and Patel. As Michael Brecher has argued, ‘No two leaders of any Asian nationalist movement in the twentieth century differed more than the duumvirs of the new India –in background, education, temperament, ideology, sources of power, qualities and defects of leadership’.
2. Difference in outlook: Nehru, was the refined patrician with attached to the modern ideas of secularism and socialism. Sardar Patel was thoroughly at home in the orthodox Hindu milieu. He was an organizational man and had tremendous support within the Congress Party, with which he was so involved at every level. What bound them together were their nationalist spirit, their spirit of nationalism and their respect for Gandhi.
3. Policy Difference: The differences between Nehru and Patel were mainly over India’s foreign policy and integration of states. Following the incursion of Pakistan into Indian Territory and the ceasefire, Nehru hesitated to support the annexation of Hyderabad fearing communal reappraisal. However, Patel went ahead with the annexation of Hyderabad. Nehru and Patel also clashed over India’s Kashmir policy and Patel cautioned Nehru over closeness to communist China. He was opposed to Chinese annexation of Tibet and wanted suitable support for the Tibetans, which Nehru opposed.
4. Assertion of Independence : Patel’s decisions, of acting on his own (without consulting him or the Cabinet offended Nehru
5. Feeling of Interference: As the Deputy Prime Minister and Home Minister resisted Nehru’s interference in matters of Home ministry. He desisted Nehru’s attempts to sideline the home ministry officials.
6. Their interpretation of the Powers of the Prime Minister: while Nehru felt that the Prime Ministers position being the pre eminent one, he should be allowed to function and act unhindered. Patel resisted such interpretation and argued that such unbridled power may result in Prime Minister becoming a dictator.
7. Cabinet Powers: Patel felt that the members of the Cabinet were independent within their respective Ministries. Nehru felt that such independence my jeoprardise the entire conception of collective responsibility

It may be pointed out that but for Gandhi’s intervention in the 1946 Congress presidential elections in Nehru’s favour, Patel could have become Prime Minister with his Party support. However, the altercations between Nehru and Patel indicated the constitutional ambiguities in the relationship between a Prime Minister and ministers. As Nehru stated that any differences between Patel and himself ‘essentially relates to the functions of the Prime Minister. It is something much more than a personal issue and it should be considered, therefore as a question of principle, whoever the Prime Minister might be’ These differences brought out the underlying tension between the Prime Minister and the Cabinet and respective are of authority. The absence of well established precedents and lack of experience added to this problem.

Nehru Patel Inter Action : Analysis

At the root of the controversy were the varying interpretations of the powers of the Prime Minister. According the Nehru, the Prime Minister in India, as in Britain, occupied a pre eminent position. He was the first amongst the equals, the lynch pin of the Cabinet. To deny him these powers was “monstrous”. He had the power ‘to act when and how he chooses’

Nehru outlined his brand of prime minister-ship in his letter to Patel

… ‘[I]n the type of democratic set-up we have adopted, the Prime Minister is supposed to play an outstanding role. This, I think, is important (again apart from personal factors) as otherwise there will be no cohesion in the Cabinet and the Government and disruptive tendencies will be at work’…. He (Prime Minister) had ‘a special function to perform which covers all the Ministries and departments and indeed every aspect of governmental authority’… ‘(Prime Ministers) function cannot be easily defined and the proper discharge of it depends a great deal on the spirit of cooperation animating all the parties concerned’.

Nehru enquired

Is the Prime Minister entitled to take such a step and who is to be the judge of this? If the Prime Minister cannot even take this step and is not himself to be the judge of what is proper and what is not in such matters, then he cannot function properly or fulfil his functions. Indeed he does not function at all as the Prime Minister should. The mere fact that he is Prime Minister presumably leads to the conclusion that he is capable judging aright and carrying out the policy laid down. If he is not capable of this, then he should cease to be Prime Minister. Indeed, this means abdication of his functions and cannot in future function with any effectiveness. . . . If this view is correct, then the Prime Minister should have full freedom to act when and how he chooses.

Apprehending that Patel may have difficulty with his interpretation and he suggested.

…‘best way out of these difficulties would be for some rearrangement in the Cabinet to be made which would cast the responsibility on one person more than anyone else’

He offered to resign as Prime Minister  but added that

….there can be little doubt that if either of us goes out at the present juncture it would create a sensation both nationally and internationally, and the consequences may not be good’. 

Patel conceded that in the Cabinet system of government that india had adopted the Prime Minister’s position was is certainly a pre-eminent one. He was the first among equals. However, he added that the Prime Minister did not have “overriding powers over his colleagues; if he had any, a Cabinet and Cabinet responsibility would be superfluous.”

Patel resisted Nehru’s interpretation of an all powerful role of the Prime Minster. In his reply to Nehru, he stated he was he disagreed with his “conception of the Prime Minister’s duties and functions and argued that accepting Nehru’s interpretation of the powers of the Prime Minister would raise the Prime Minister to the position of a virtual dictator”. This he believed would be “wholly opposed to democratic and cabinet system of government.”

Interestingly, four months in early 1949, nearly four months after the exchanges between Patel and Nehru over the powers of the Prime Minister and his relation with the Cabinet Nehru admonished B.R Ambedkar, as Law Minister, for speaking publicly against the Congress leadership for their slowness to accommodate the Scheduled Castes. He said

‘if ministers feel and speak in this way there is no Cabinet responsibility left. The Prime Minister might as well shut up shop’, reminding him that he was part of ‘essentially a Congress Cabinet’.

Patel and Nehru differed on the role of the ministers too. While Nehru contented that the Prime Minister must at all times be aware and in agreement with the decisions of the Cabinet, Patel’s conception of Cabinet relied on the argument that ministers had the ‘entire responsibility’ of implementing Cabinet decisions in their own ministry and that ‘the Prime Minister should influence only by way of consultation’, not by edict. Patel believed that his version ‘in accord with the UK practice’ showed the Indian leaders’ attachment to Westminster operational culture as if from one of the white Dominions.

In the four years that Patel was a Cabinet minister he threatened to resign at least four times; interestingly he tendered his resignation to Gandhi thrice and once to the then Party resident, Rajendra Prasad, but, pointedly, never to Nehru who as Prime Minister was ultimately responsible. Both sought to resolve their different interpretations of the executive offices by referring to their political mentor, Mahatma Gandhi. The death of Patel in 1948 brought to an end Patel’s challenge to Nehru. The powers of the Prime Minister, following Patel’s death was unchallenged, though, the party and occasionally, the president and the cabinet occasionally offered mild criticisms to the office of the prime minister.

Patel on the All India Services

The administrative structure of India in the post independence period was not very different from the previous ones. Independent India accepted the ‘steel framework’ of the ICS based on weberian conception of rationality and hierarchy, notwithstanding the adoption of a democratic system of governance. The new IAS was for all practical purposes, ‘the continuation of the old one with the difference that it was to function in a parliamentary system of government’42. This seemed incongruous with the general political sentiments which had strongly criticized the British system of administration consisting of ICS and IPS for carrying out imperial policies and was the most critical and visible interface between the British rulers and its Indian subjects.

Nehru’s  Crit ique  of ICS 

One of the strongest critiques of the Civil services was the Jawaharlal Nehru. In fact Nehru categorically pointed out in late 1930s that the IVS would have to dismantled before India could create a new political order. He believed that the spirit of authoritarianism an arbitrariness that pervaded the civil services was inconsistent with democracy and freedom.

Nehru’s critique of the ICS was based on five main arguments

• It’s rigidity and exclusivity, so much so that it constituted in Nehru’s words “a caste by itself”.

• Its hierarchical nature that established its supremacy.

• A  myth  of  its  paramount  importance  and  indispensability  that  aroused  “fierce indignation’ that had been nurtured and protected

• Its paternalistic attitude towards the masses of people in India

• Use of negative discretionary powers reinforcing the dependency of the people on the administration

Continuity over Change

Despite such criticism the reasons for adopting All India civil services with almost no modification from colonial period was guided by foremost by utilitarian logic. The founding fathers of the constitution preferred continuity to change. As Nehru observed, “Despite its hierarchical nature the administration that the Congress had challenged and vilified during the freedom struggle appeared the only available instrument capable of re- establishing civility in day to day life. While other models of administration had existed the nationalist leadership did not have any experience of working with it. They therefore felt that it was practical to adopt the existing administrative mechanism with least changes in the interest of continuity and stability. The administrative tradition established by the British made the adoption of ICS the most obvious and natural choice.

Further, notwithstanding the paternalistic attitude of Colonial administration, it was respected for its competency and expertise by the nationalist leadership. Nehru also had tremendous faith in the “human element’ within the administration. 44 Moreover, it was believed that the context in which the administration functioned had changed in the post independence period. Hence, the instrumental nature of bureaucracy was not applicable in the post independence period. It was hoped by the nationalist leadership that the administration would respond to the changing socio-political condition, and Nehru believed it would be transformed into a vehicle of community service” It would be forced to respond to the principle of the new Indian state, that of “ethical good governance”

The communally tense situation in the post partition period also created sentiments in favour of All India services. The communal situation was tackled most effectively by the colonial administrative machinery, which created a sense of its indispensability and created sentiments in favor of maintaining the existing bureaucratic machinery. The government needed a system that could effectively enforce law and order and could be relied on.

Patel ’s  Argument

But it was Vallbhbhai Patel emerged as the strongest supporter of ICS and its steel frame work. It was his forceful argument in favor of the All India services with high morale, protected from all forms of political interference that led to the inclusion of Article 311 of the Indian constitution. It was patels arguments and insistence that resulted in constitutional guarantees for the All India Civil Services. It is therefore interesting to look into Patel’s views on administration.

Patel believed that due to its long association with public administration, officers belonging of All India Services were most equipped to deal with the new and complex tasks that newly independent India was facing.

Patel’s strongest argument in favor of the continuation of civil services was its utility in maintaining uniform administrative mechanism through out the country. In the interest of unity, Patel believed the existence of an All India services was not only inevitable but most desirable. He pointed out that the ICS were not only they were

“useful instruments, they will also serve as a liaison between provinces and the government of India and introduce certain amount of brashness and vigour in the administration both of the centre and the provinces.”

He believed that the existence of an all India civil services was fundamental to the unity of the country. During the debates in the constituent assembly, Patel went to the extent of stating categorically,

“you will not have a united India if you do not have a good all india service…. If you remove them, I see nothing but a picture of chaos all over the country.

Patel made strong pleas to the constituent assembly for continuing the existing administrative machinery. While trying to convince one of the members of the Constituent Assembly to the need for an All India service Patel said “if the services people are giving you full value of their services and more, then try to learn to appreciate them.”

Patel’s concern for strong administrative machinery, which was time tested and efficient won the day and colonial administration continued almost unchanged in the post independence period.

Conclusin

Each of the interactions discussed above, significantly contributed to the process of institution building in India. They defined the contours of political institutions and cleared any doubts that might have existed regarding the nature and powers of these institutions at the time of constitution building. The importance of these debates needs to be understood in the context of the fact that not much debate had taken place in the Constituent Assembly with regard to the exact nature of executive and the limitations of their powers. These controversies clarified the position of the President and the Prime Minister by unequivocally clarifying that within the executive, the Cabinet is all powerful and within the Cabinet the Prime Minister is first amongst the Equally, though he/she may not always be unchallenged. To that extent, these debates strengthened the Constitution by establishing firm precedents.

Reference:

• Amrit Bazar Patrika (Calcutta), 29 March , 1967.
• Constituent Assembly Debates Vol: VII (Government of India New Delhi, 1949).
• Constituent Assembly Debates, Vol. IV, no. 6 (Government of India New Delhi, 1950) in http//www.parliamentofindia.nic.in/ls/debates/vol4p2a.html.
• Constituent Assembly Debates, ( Government of India, New Delhi, 1949) vol. IV, no. 6, pp. 704-705.
• Dr. Janak Raj Jai, Presidents of India: 1950- 2000, Regency Publications, New Delhi, 2000.
• Rajendra Prasad quoted in Janak Raj Jai, Presidents of India: 1950- 2000, Regency Publications, New Delhi, 2000.
• James Manor, “The Prime Minister and the President”, in James Manor (ed) Nehru to the Nineties; The Changing Office of the Prime Minister of India , New Delhi, Viking, 1994.
• H. Kumarsingam The Indian Version of First among Equals –Executive Power during the First Decade of Independence, Cambridghe Journal of Politics, First published online 23 December 2009, http://journals.cambridge.org.
• Michael Brecher, Nehru – A Political Biography, Abridged edn (Oxford University Press, London:1961).
• R. J. Venkateswaran, Cabinet Government in India (George Allen & Unwin, London,1967), p.55-56 Also see On the formation of the first ministry, see also Gangal, Prime Minister and
  the Cabinet in India.
• Richard Sisson, ‘Prime Ministerial Power and the Selection of Ministers in India:Three Decades of Change’, International Political Science Review, Vol. 2, No. 2 (1981),pp. 140–141.
• Selected Works of Jawaharlal Nehru, Second Series, Vol. 5, pp. 471–472.
• Selected Works of Jawaharlal Nehru, Second Series, Vol. 5, p. 473.
• Note to Mahatma Gandhi, 6 January 1948, Selected Works of Jawaharlal Nehru, Second Series, Vol. 5, pp. 474–475.
• Selected Works of Jawaharlal Nehru, Second Series, Vol. 5.
• Patel to Nehru and Patel’s Note to Mahatma Gandhi, 12 January 1948, in Sardar Patel’s Correspondence 1945–50, Vol. VI, pp. 21–22.
• Nehru to Ambedkar, 27 April and 30 April 1948, Selected Works of JawaharlalNehru, Second Series, Vol. 6, pp. 373–374, 377–379.
• Patel to Nehru and Patel’s Note to Mahatma Gandhi, 12 January 1948, in Sardar Patel’s Correspondence 1945–50, Vol. VI, p. 22.
• Bidyut Chakraborty, Jawaharlal Nehru and Administrative Reconstruction in India: A Mere Limitation of the Past or Creative Initiative, Journal of South Asian Studies, Vol, 29, no. 1, April, 2006, p.90.
• Jawaharlal Nehru, the Discovery of India, OUP, New Delhi, 1989.
• Jawaharlal Nehru, ‘Challenges in Administration’, Selected Works of Jawaharlal Nehru, vol.25, p.254.
• Judith Brown, Nehru: A Political Life, OUP, New Delhi.
• Gyan Prakash, Another Reason: Science and Imagination of Modern India, Princeton, 1999.
• Constituent Assembly Debates Vol. X, 10th October, 1949.