COMPARATIVE PUBLIC LAW

“American President is a colossal with the feet of clay”. Discuss and analyze the above statement in the context of its Indian counterpart.

SUDHANSHU NEEMA
LL.M. SEM. I ROLL. NO. 41 Symbiosis Law School, Pune +91 88 88 49 30 96 sudhanshuneema@gmail.com

Comparative Public Law

“American President is a colossal with the feet of clay”. Discuss and analyze the above statement in the context of its Indian counterpart (Prime Minister). The framers of the American Constitution offered the world something entirely new: a chief executive whose power came from the people rather than heredity or force.1 However, the Founding Fathers of the United States were much inclined to have a toothless executive and wished the Congress to have more power as it was the real representative of the mandate of the people; James Madison stated that it would "rarely, if ever happen, that the executive constituted, as ours is proposed to be, would have firmness enough to resist the legislature." Among the other delegates to the Philadelphia Convention, only Alexander Hamilton strongly advocated an executive with the power to match the monarchs of Europe.2 The structure of the American Presidency was created with ample distrust of all men in powerful position and thus we see that the American President has been vested with limited constitutional power and most of his powers emanate from Acts of Congress, treaties, usages, precedents and judicial interpretations. Further, the American President also enjoys vast amount of soft-power which comes to him by virtue of his being the office holder. In comparison, as the Constitution of India is much advanced in time and much more elaborative in nature, it clearly demarcates the powers and its limits of the chief executive of the Indian Government i.e. the Prime Minister of India. It should be noted that, the President is the nominal executive of the government and the real exercise of most of the executive powers is done by the Prime Minister of India. Articles 53(1) and Article 74(1) provide the basic framework on the exercise of the executive powers of the Indian Government in the following manner;

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Presidential Powers: An Introduction, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/prespowers.html; accessed 05-Aug-13 3:23 AM 2 Ibid. SUDHANSHU NEEMA 1

Comparative Public Law

The executive powers of the Union shall be vested in the president and shall be exercised either directly or through subordinate officers, in accordance with the Constitution. — Article 53(1) 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. — Article 74(1)

The President of the United States of America is elected for a term of four years by an Electoral College, the election of the American President was an important issue at the Philadelphia Convention; it was decided by the founding fathers that an indirect election would be more appropriate. In due course of time, with the development of dual party system, the election of the American President has acquires an almost direct character. In contrast, the Prime Minister of India is directly elected by the people for a five year term by direct elections, he is, as a general rule, the leader of the majority party in the Lok Sabha. Within the executive branch of the United States government, the president has the supreme executive powers both in terms of management of national affairs as well as in carrying out the day to day working of the federal government. Further, the President can issue executive orders to any branch of the federal government without the approval of the Congress. As per the Budget and Accounting Act of 1921, the President is also empowered to prepare the budget of the government, however it must be approved by the Congress. Similarly, the Constitution of India makes the Prime Minister in charge of day to day management of the Union Government and grants him ample powers in the matters related to national affairs. The Indian Prime Minister does not have the power to issue ordinances, such power can be exercised by the President only; however, in the functioning of the government it is rarely seen that an ordinance
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Comparative Public Law

is issued without the consent of the Prime Minister and often the ordinances are issued at the option of the Prime Minister. The legislative role of the American President is remarkably limited as per the Constitution; he is given veto power only when it comes to law making. In recent times, American Presidents have played much more active role in law making which has evolved from Acts of Congress and the conventions. The American President can either reject a bill or accept it, he does not have power to accept a bill partially. In 1996, in line veto power was given to the American President via the Line Item Veto Act; the said Act was declared unconstitutional by the US Supreme Court in Clinton v. City of New York3 as it violated the Presentment Clause4 of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress. The decision of the Court, was taken by a six-to-three majority. The Prime Minister of India has vast powers of law making, no law in the Indian parliament can be passed without the assent of the Prime Minister. The Prime Minister himself can initiate a legislation, or ask one of his Cabinet minister to commence the legislative process in the Parliament. As he is the leader of the majority party, most of the times, the legislation commenced by the Prime Minister or the Cabinet pass without much opposition. Unlike the American system, the Parliamentarians in India are not at the liberty to cross party lines and vote against the dictate of the party to which they belong, this gives special powers to the Prime Minister of India, being the leader of the majority, he can have a party dictate to say yes to a particular legislation and make it pass. The Veto power is given to the Indian President; which is rarely exercised in the Indian democracy, and the President who exercise it, usually pay a heavy price for it.
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524 U.S. 417 (1998) U.S. Constitution, Article I, Section. 7, Clause 2 SUDHANSHU NEEMA 3

Comparative Public Law

The President of the United States is constitutionally empowered to make important appointment to various federal offices. He appoints the Chief Justice to the Supreme Court and also the head of almost all federal agencies; though not bound, most appointments are made on the advice and recommendation of the Senate. Further, Senatorial Courtesy is strictly observed as a convention when it comes to appointment of officials for a particular state. In comparison, the Prime Minister of India also enjoys vast powers in appointment of the Cabinet ministers, the Cabinet is formed by the Prime Minister himself and the appointments are made by the President, and as per the Constitution of India, the President is bound by the advice of the Prime Minister. Not all important appointments are made by the Prime Minister of India, some of them are made by the President of India and the rest by the Cabinet ministers. Since, the Prime Minister is the head of the Cabinet, he may enjoy ample say in the matters related to appointment to most of the important offices. Article II of the United States Constitution provides the powers of clemency to the President, being a political issue, this power is exercised in accordance with the political climate of the country and the facts and circumstances of each case. The Prime Minister of India enjoys no such power of clemency, and the same is provided only to the President of India. At the same time, it cannot be denied that his opinion would not be taken into consideration by the President while granting clemency. Writing in the 1830s, the French political theorist Alexis de Tocqueville described the American president as possessing, especially in foreign relations, almost royal prerogatives. More than a century later, Harry S. Truman claimed the presidency had become the greatest and most

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Comparative Public Law

important office in the history of the world.5 Under the American Constitution, the President holds the primary responsibility for the relations of the United States with foreign nations. With the help of the Secretary of State, the President manages all contacts and relations with the foreign governments. United States being a global leader in various international issues, the American President has come to hold a really powerful position in world affairs, he also conducts regular meetings with other world leaders. Similar to the American President, the Prime Minister of India also carries out the task of maintaining India’s foreign relations. One should make note of the fact that the Indian Prime Minister holds an important position in foreign relation as a matter of convention and shares this responsibility with the President of India; the Constitution of India remains silent (somewhat shockingly, given its elaborative nature). This tendency of the Constitution of India may be due to an expressed understanding among the framers of the Indian Constitution that India was to participate only passively in foreign affairs and shall remain non-aligned. The President of the United States is also empowered to declare emergency in times of crisis, this power of the President is one of the inherent powers of the Presidency. The emergency power is often used to declare a state of emergency which allows the Federal Emergency Management Agency to override certain administrative and jurisdictional rules. The emergency powers were used by President Lincoln to suspend the writ of habeas corpus in Maryland during the American Civil War. One should note that the exercise of emergency powers is subjected to judicial review; for example President Harry S. Truman was denied emergency powers by the American Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer6 when he attempted to

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DeConde, Alexander, Presidential Power, Encyclopedia of the New American Nation, http://www.americanforeignrelations.com/O-W/Presidential-Power.html; accessed 05-Aug-13 3:27 AM 6 343 U.S. 579 (1952), also referred to as The Steel Seizure Case SUDHANSHU NEEMA 5

Comparative Public Law

nationalize steel mills during the Korean War. In the said case, Justice Robert Jackson outlined tripartite test for determining whether a president is constitutionally exercising his implied powers7;
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. ... 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. ... 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.... 8

The emergency powers under the Constitution of India have been vested with the President of Indian and not with the Prime Minister. However, an emergency can be declared only on the written request of the Cabinet headed by the Prime Minister; further within one month of the declaration of emergency the Parliament must pass a resolution authorizing the same which is valid for 6 months and can be renewed indefinitely. The emergency powers given to the Prime Minister under the originally Constitution were curtailed substantially in the wake of gross abuse

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Presidential Powers: An Introduction, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/prespowers.html; accessed 05-Aug-13 3:23 AM 8 Justice Jackson's Test for the Exercise of Presidential Power (Youngstown 1952), http://law2.umkc.edu/faculty/projects/ftrials/conlaw/jacksontest.html; accessed, 03-Aug-13 12:59 AM SUDHANSHU NEEMA 6

Comparative Public Law

of power by Indira Gandhi9 between the period of 1975 – 1977. The Prime Minister of India, after the 44nd Amendment to the Constitution of India has just an advisory role to play in case of emergency. In the opinion of the author, emergency and executive privilege are the only areas where the power of the Indian Prime Minister is somewhat lesser than that of the American President. The main reason why the American President is referred to as a colossal with the feet of clay is that his power is restrained when it comes to the control of the treasury. The Office of

Management and Budget assists the President in the preparation of the budget although the Congress much approve the budget as per the provisions of the Budget and Accounting Act of 1921.10 The Ac is often credited by political science scholars as playing a key role in creating the institutional presidency.11 Before 1974, the President of the United States of America was able to impound funds from the treasury to implement some of his own policies on the people. This power has been taken away from the President by the Congressional Budget and Impoundment Control Act of 197412 as a Congressional response to large scale use (and abuse) of the said power by President Nixon. On the other hand, the Prime Minister of India has vast amount of powers when it comes to deciding the budget of the government. He can direct the Ministry of Finance to act according to his own view of the budget; he may himself act as the Finance Minister if he so desires. The powers of the Prime Minister are in no way less than any of the American President in practice except in case of emergency and executive privilege not to be prosecuted for any civil

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In her own words, Ms. Gandhi brought the Indian democracy to a grinding halt. Pub.L. 67–13, 42 Stat. 20, enacted June 10, 1921 11 Maltese, John Anthony, The Selling Of Supreme Court Nominees, Johns Hopkins University Press, 1998 pp. 116 – 118 12 Pub.L. 93–344, 88 Stat. 297, 2 U.S.C. S. 601–688
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Comparative Public Law

and criminal offence. In most other matters, the powers of the Indian Prime Minister are somewhat more than that of the President in the United States. As per the Constitution of India, the money bills can be passed only in the Loa Sabha, which is headed by the Prime Minister, this provision gives enormous power and discretion to the Prime Minister in the matters related to finances of the Union Government. Further, the Prime Minister is ex-officio chairman of the Planning Commission of India by convention and this gives him much more authority to dictate in which sectors what percentage of budget would be allotted. In addition to the above, the Prime Minister of India is an actual member of the Parliament and can take part in the proceedings of both the Houses of the Parliament. The American President is external to the Congress and cannot take direct part in the proceedings of the Congress, his power to communicate with the Congress is limited to sending messages and dinner diplomacy. 2382 words excluding footnotes. 2527 words inclusive of footnotes.

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