The Last Englishman to Rule India – Prime Ministerial Powers under Nehru

Nehru in the autumn of his long years as Prime Minister remarked to the economist Professor J. K. Galbraith, then serving as President Kennedy's Ambassador to India, that he was the last Englishman to rule over India.Footnote ⁵ One of his latest biographers in a recent article has depicted the Trinity College, Cambridge, man as ‘one of the last great Victorians in the British Empire’ and like Gandhi an ‘Outsider’ operating inside Indian politics.Footnote ⁶ The reasoning behind Nehru's own admission and numerous historians latching on to his affinity with England was only partly social. Unlike Jinnah in his Savile Row suits, Nehru was quick to dispense with any outward sartorial sycophancy of British culture, preferring Indian dress very early in his political career. Intellectually, however, he gleefully drew upon Western thought and reminisced in his autobiography how he was pleasantly imbued at Cambridge with the cerebral cult of Cyrenaicism.Footnote ⁷ Nehru's intimacy with figures such as Albert Einstein, Bertrand Russell, Harold Laski and after independence even Sir Winston ChurchillFootnote ⁸ enhanced his reputation for being thoroughly at home with Western thought and practices.

Occidental theories on government – especially parliamentary government – would be no exception, not unnaturally for a man who as a young Indian schoolboy in London could, unlike any of his privileged English classmates, name the entire 1905 Cabinet of Sir Henry Campbell-Bannerman, which incidentally contained Churchill, an old Harrovian like Nehru, who had become Undersecretary at the Colonial Office.Footnote ⁹ In fact like many members of the British Establishment with whom he fraternised in their drawing rooms Nehru felt ‘uneasy’ about America, and in turn Americans believed that ‘he was disposed to be somewhat contemptuous of them and the relative newness of their history and culture’,Footnote ¹⁰ which may explain why he gained little inspiration from that most famous Republic when creating the institutions for his own one. Though Nehru's rhetoric under British rule was stridently anti-colonial he was later as Prime Minister imbued, instilled and impressed with Westminster institutions, albeit with necessary changes. As W. H. Morris-Jones has explained:

Nehru, whether by boycott or by being a guest at His Majesty's Prisons, had avoided major experience, like most of the Congress hierarchy, of administrative governance. Even the interim government, which was formed in the run-up to 1947, was constitutionally merely a refashioned Viceroy's Executive Council. Nehru, who by fortunate virtue of being Congress President at the time, on the insistence of Gandhi,Footnote ¹² was invited by the Viceroy, Lord Wavell, to become Vice-President of the Council, which meant he was a de facto Prime Minister, though the Council was still formally presided over by the Viceroy. Though responsible to the Viceroy and whilst serving as individual members on the Council, the members decided to act on issues collectively like a Cabinet. Wavell himself agreed regardless of the legal position or previous practice to ‘let the Interim Government function in accordance with the conventions of cabinet government as practiced at Westminster and in independent Dominions like Australia and Canada’,Footnote ¹³ though he did not agree to the ‘unilateral’ demand of the Congress that he put the Viceroy's extraordinary powers in abeyance and become, in his words, a ‘complete cipher’.Footnote ¹⁴ With the departure of Jinnah's appointees to the Council and later with the Partition, Nehru was left with greater freedom to act and function effectively as a Westminster head of the government. The de facto Prime Minister was unanimously elected leader of the Congress Parliamentary Party and became de jure Prime Minister in August 1947.

As in the British system, which India draws natural comparison with, the Prime Minister has peculiar and exceptional powers. By virtue of commanding the confidence of the lower house, the Prime Minister has immense powers, and as in Britain this is especially so over patronage from the Cabinet down. The Indian Prime Minister's powers are arguably greater, since along with traditional judicial and public service appointments the Prime Minister is able, with the sanction of the head of state, to appoint the governors of states, and because of the hegemony of the Congress the Prime Minister also has direct influence on the selection of the chief ministers of states and their cabinets, which is again unlike other federal Westminsters like Canada and Australia. One of the variances between the British Westminster and the Indian Westminster is that the Indian Prime Minister draws power directly by office from the Constitution rather than wholly by convention. Article 75 of the Indian Constitution concerns the Prime Minister and the Cabinet. The Prime Minister's appointment and in turn the selection of the ministers are stipulated with the clause that ‘[t]he Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Prime Minister’. Thus though the ministers are effectively appointed by the Prime Minister, the prevalent Westminster prerogative of the formal discretion of the head of state over the Prime Minister's own appointment has been retained. This is qualified with the emphasis on the prevailing Westminster convention of appointing a Prime Minister who commands the confidence of the elected lower House, which is fairly clearly enunciated in the same article, stating that the ‘Council of Ministers shall be collectively responsible to the House of People’, which also lends stress on the Westminster principle of cabinet collective responsibility.Footnote ¹⁵

However, there was unquestionably ample vagueness and imprecision to show the necessity of following the conventions of cabinet government as practiced at Westminster and the Dominions or New Westminsters when India's Constitution was intentionally silent on such matters of executive governance and power. The framers of the Indian Constitution in the Constituent Assembly reserved elements of abstraction in part to keep flexibility to deal with the unknown that India, fresh from the Partition, and its multiple internal problems faced and also because this was the way it worked in Westminster, where the leaders of the Assembly ‘looked for inspiration and guidance’.Footnote ¹⁶ The first 10 years would demonstrate the difficulties and dilemma of that intentional graft of the Westminster executive's operating culture.

However, with Nehru at the helm, India had in its first Prime Minister a man who strived to create and recreate his Westminster legacy. Nehru's attitude towards his Imperial inheritance was crucial, since his ‘was not a blind imitation, but a nuanced response’, accommodating institutions with ‘Weberian rationality’.Footnote ¹⁷ As Brown has argued, Nehru was ‘fashioned out of the urgent realities of India's political experience’ and may have said like another iconic figure in history, Martin Luther, ‘Here I stand. I can do no other’.Footnote ¹⁸ Morris-Jones has described him as a ‘preacher-teacher’ who by virtue of his unprecedented position socially and politically was able to articulate and formulate India's institutions of state.Footnote ¹⁹

Nehru, by the 1952 general election, held undisputed domination of the Congress across the country and within the Parliament. As Weiner has commented, Nehru's strength was that ‘he was a far more popular leader in the country’ than anyone, including Sardar Patel, despite the deputy Prime Minister's control over the party organisation.Footnote ²⁰ Nehru had to wait for Patel's death in 1950 to complete his command of the Congress and intensify the lack of horizontal accountability of his power. Patel had assisted, with support from other Hindu traditionalists, with the Congress High Command the narrow election of his ally Purushottam Das Tandon to the Congress presidency. Tandon shared Patel's Hindu chauvinistic views, and Nehru very quickly voiced his displeasure of the assumption of the presidency by someone he considered anti-secularist.Footnote ²¹ Nehru was openly dismayed with Tandon, but with Patel alive he could not easily displace him. The victor of the 1951 election to the Congress presidency would have a powerful position, as the country would be entering its first general election within months of the Party vote. With Patel dead Nehru allowed himself to be nominated for the post to assert his political position and by not giving way and threatening his own resignation impelled the incumbent to resign from the post of president. The All India Congress Committee resoundingly elected the Prime Minister to replace Tandon.Footnote ²²

Nehru did what he claimed he never wanted to do – hold the prime ministership and Congress presidency, which he held for three years before handing them over to a malleable successor who in turn was succeeded by Indira Gandhi, his daughter and the heir to the Nehru legacy. Nehru thus ensured to the Congress that his imprimatur was acknowledged and that his indispensability assured along with the indisputability of his ascendance over the Party organisation at the forthcoming elections.Footnote ²³ Nehru never had serious problems with the Party ever again in the 10 years, and even after 1957 the most serious example of discord was much later when he faced his first ever no-confidence motion after the debacle over the war with China in August 1963. The motion was easily defeated, and anyway, as all acknowledged, there was never any serious threat to Nehru as Prime Minister or Congress supremo at any time after Patel's death, since, as Brown has argued, ‘it was unthinkable that any other Congressmen would challenge him’. The three general elections during his 17 years in office – in 1952, 1957 and 1962 – were effectively mandates for Nehru, who for example was so highly involved that he was personally responsible in the selection and vetting of over 4,000 candidates for the 1952 general election. The Congress under his leadership in these elections secured massive majorities in the Lok Sabha of over 70 per cent and got close to 50 per cent of the popular vote.Footnote ²⁴ His power over the Party and popularity in the country was a reminder to any rival within the executive of his secure position.

It was only natural that Nehru and his relationships with institutions and political actors would dominate and permeate the first 10 years of independence. The Cabinet would not, and could not, escape his omnipresence. A study of Cabinet is primarily a study of Nehru who had social, party and institutional power. The Cabinet commanded no effective form of horizontal accountability post 1950. Nehru, as well as being Prime Minister, also took on the portfolio of external affairs and made it his exclusive domain. Interestingly, given India's economic problems and Nehru's personal interest in socialism, the Prime Minister also chaired the powerful Planning Commission that was set up in May 1950 as a body to advise on economic planning and development and had a small initial membership of six from private, political and public fields. Such was the influence of this body which Nehru dominated that it excited the executive institutional jealousy of other organs of the government. In fact it caused the resignation of the first Finance Minister of India, the non-Congressman John Mathai, one of the few independent voices in the Cabinet, just a month after its establishment because he was merely an ordinary member despite being responsible for financial matters to the Union Cabinet and saw the contentious Commission as a threat to the Cabinet's position and his within it. Mathai and others worried that it was becoming a ‘Super-Cabinet’ in regard to economic affairs.Footnote ²⁵ In his June 1950 resignation statement Mathai complained, ‘Cabinet responsibility has definitely weakened since the establishment of the Planning Commission’ with the members being treated like Cabinet ministers; he further stated, ‘[By] having the Prime Minister presiding over such a body, it is difficult to resist the Planning Commission developing into a parallel authority of equal standing with the Cabinet’, which he firmly and naturally opposed.Footnote ²⁶

Nehru survived Mathai's departure with ease and was thus able to effectively dominate economic and foreign affairs during his long years as Prime Minister with unprecedented institutional power for a Westminster-system leader and showed that not even a Finance Minister had real horizontal accountability on him. The Cabinet looked to Nehru for absolute leadership and direction. In fact the Prime Minister, being a pedant for democratic procedure, found this hard to balance against his impatient vision and understanding of what he wanted for India. With the Cabinet, the apex of executive authority in Westminster systems, Nehru had to

The Cabinet had delegated its powers to Nehru. Power was the Prime Minister's, culturally and institutionally. The death of Gandhi and Patel in the early years ended the triumvirate, and India became from the end of 1950 a ‘one-man show’ with Nehru as its ‘thaumaturgic personality’.Footnote ²⁷ It was no accident that no one succeeded Patel as deputy Prime Minister even when Nehru's health was severely debilitated by health scares in his last years.Footnote ²⁸ Gandhi, though never a real threat to Nehru's constitutional position as Prime Minister, was a powerful cultural factor and had the greater popular and messianic leadership that was still obvious in the remaining years of his remarkable life, which ended tragically in January 1948. Before the Mahatma died he transferred his following to Nehru as his chosen heir. For political and executive leadership, however, Nehru, to complete his suzerainty over the state, the Cabinet and the Party, had to wait for the temporal departure of his deputy Prime Minister, the solid Sardar Patel.

Cabinet Duumvirate by Concession 1947–1950 – Nehru and Patel

On 15 August 1947, Nehru handed to Mountbatten, now Governor General of the Dominion of India, an envelope containing a list of the intended members of the first Cabinet, who were to be sworn in a few hours later. It was empty.Footnote ²⁹ The excitement of the day created such an oversight, but only two names counted – Nehru and Patel. These were two very different men. As Michael Brecher has argued, ‘[N]o 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’.Footnote ³⁰ Nehru, the refined patrician and worldly aesthete with lofty attachment to secularism and socialism and an aversion to petty politics, was in Patel countered by a man with dour manner and lowly background but who was thoroughly at home in the orthodox Hindu milieu, by whom he saw represented India and the Congress Party, with which he was so involved at every organisational level. Nehru and Patel tolerated each other politically because they knew India, and the Congress and Gandhi expected them to function well for the good of the country. With the first ministry after independence Nehru wanted to create, and was under pressure to form, a cabinet that widely represented India. The Cabinet contained prominent non-Congressmen like B. R. Ambedkar, S. Chetty, Mathai and S. P. Mookherjee as well as influential Congressmen like Rajendra Prasad and Maulana Azad, and yet ‘it was not the presence of these men which really limited Nehru's supremacy in the Cabinet. It was Sardar Patel's powerful personality that prevented Nehru from having that amount of freedom in the Cabinet which he came to have after 1950 [with Patel's death]’.Footnote ³¹

Patel became deputy Prime Minister naturally and chose the powerful home ministry and states ministry to abet his clout. They functioned in many ways as equals, and many in the Congress had not forgotten that had it not been for Gandhi's intervention in the 1946 Congress presidential elections in Nehru's favour, Patel could have become Prime Minister with his Party support, which Richard Sisson believes reflected ‘the ambiguity that existed with respect to the locus of ultimate political authority’.Footnote ³² As everyone knew, ‘the duumvirate was the decisive fact of Indian politics from Partition until the end of 1950. Though the procedures of cabinet government were followed, Nehru and Patel dominated the proceedings. It was the same in Parliament, the Congress and the country at large’.Footnote ³³ They maintained amorphous spheres of influence, with Patel's fiefdom containing party, organisational and administrative matters, while Nehru was largely ascendant in foreign affairs and constitutional matters. However, all issues mentioned above still required at the very least the acquiescence of the other and acted as a democratic check on the other and a formidable form of horizontal accountability on the Prime Minister. Areas of domestic and economic policy were constantly a ground of contention. As Gopal has argued:

This naturally created tension, rivalry and bickering, which would lead to the threat of political war between the two consuls, within months of taking power from the British, over who was Caesar or at least labelled as such.

The Nehru Version of First among Equals

The heated correspondence between Patel and Nehru between December 1947 and February 1948 demonstrated the larger complications over conventions and lines of power between a Prime Minister and ministers. Patel had long considered since joining the Cabinet that Nehru did not recognise his importance and was becoming increasingly dictatorial, while Nehru believed that as Prime Minister he had seniority over his deputy and had to be respected as such. Matters came to a critical juncture in late December 1947. Nehru and Patel exchanged heated correspondence, which was in the Governor General's knowledge and was usually and conspicuously enclosed to Gandhi as well. Nehru, on 23 December 1947, replying to Patel's criticisms of prime ministerial interference into Patel's domain, reacted by writing, ‘If I am to continue as Prime Minister I cannot have my freedom restricted and I must have a certain liberty of direction’, and with preciousness added that if this were not possible, ‘it is better for me to retire’.Footnote ³⁵ Patel was not to be subdued by such prime ministerial emotions and explained:

Patel ended by dismissing Nehru's resignation threat, since ‘the question of your abdicating your functions does not arise at all’, and provocatively promised in the task of maintaining their relationship to ‘strain every nerve to help you in doing so but you will not, I am sure, want me to continue long as an ineffective colleague’. Patel continued to question the Prime Minister's definition of the conventions surrounding their offices: ‘Under the restrictions [of] ministerial responsibility which you consider legitimate and which . . . would include even another minister's encroachment [alluding to his belief that Nehru used the more malleable ministers to do his interfering], under your direction, on such responsibility, it would be impossible to continue’.Footnote ³⁶

Nehru re-entered the constitutional clash over their definition of convention by writing to Patel on 11 January 1948 suggesting they ‘meet at Gandhiji's place for a further talk on this subject’.Footnote ³⁷ He enclosed a fantastic letter he had written to Gandhi on 6 January that addressed his view on an Indian Prime Minister's role. Nehru, after dealing with ‘relatively minor matter[s]’, 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’. Nehru outlined his brand of prime ministership and argued, ‘[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’. Nehru described the role of a minister, including his own experience as Foreign Minister, but asserted that as Prime Minister he had ‘a special function to perform which covers all the Ministries and departments and indeed every aspect of governmental authority’. Nehru reminded Patel of this especial Westminster characteristic, stating that a Prime Minister has an unique role and power and that ‘this 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’.Footnote ³⁸

After describing a relatively minor topic of contention over Nehru's involvement in an area that Patel deemed his,Footnote ³⁹ Nehru dramatically enquired of the deputy Prime Minister the wider question of power in their executive eyrie:

Such a view could lead to the natural assumption that Nehru viewed himself as a Prime Minister with the power ‘to act when and how he chooses’. Nehru then speculated that Patel may have difficulty with his interpretation and that the ‘best way out 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’ and offered to go himself 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’. However, he believed that ‘the Prime Minister's function as defined above must be appreciated’. After outlining his belief that Patel himself had made decisions in the states ministry ‘without any reference to Cabinet’ he saw that if Patel did not agree with his prime ministerial definition, then the only alternative would be for ‘either me or Sardar Patel to leave the Cabinet’.Footnote ⁴¹

Patel replied the next day and copied Nehru's tactic of addressing his concerns to Gandhi directly. After stating that he and Nehru had through their joint efforts weathered ‘one of the most critical phases in the history of any country or any government’, Patel admitted, ‘[W]e cannot carry this any further’, and acknowledged the ‘strength of feeling and conviction behind the Prime Minister's stand as regards to his own position’. However Patel, without surprise, was quick to critique the head of government's description of his own job; though he tried to understand it ‘on the twin basis of democracy and Cabinet responsibility’, he was still ‘unable to agree with his conception of the Prime Minister's duties and functions.’ Patel vividly continued on the dangers of Nehru translation of prime ministerial power:

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 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.Footnote ⁴³ The 72-year-old Congress veteran concluded by telling his 58-year-old boss that ‘if anybody has to go it should be myself’.Footnote ⁴⁴ Nehru characteristically replied promptly the next day and contended that it was hardly ‘worthwhile my attempting to write another note on the subject. Having indicated our respective viewpoints to some extent, the only remains is for us to discuss this matter with Bapu [Gandhi]’. But Nehru could not resist in thrusting a parry at Patel at the end of his letter: ‘There is no question, of course, of the Prime Minister or anyone else being a dictator’, adding, ‘[S]o far as I know, the position in practice in the United Kingdom is in consonance with what I suggested’. He concluded that they must settle these issues and that ‘as soon as the opportunity arises we shall be able to fix up a meeting with Bapu’.Footnote ⁴⁵ In addition, it is interesting to note that Nehru felt it necessary to admonish Ambedkar, as Law Minister, for speaking publicly against the Congress leadership and their slowness to accommodate the Scheduled Castes. Just four months after his correspondence with Patel, Nehru told Ambedkar, a non-Congress Cabinet minister, that ‘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’.Footnote ⁴⁶ Though this was a strictly correct Westminster interpretation it did little to accommodate the irregular circumstances of the early years of cabinet government.

The meeting with the Mahatma to debate the powers of a Prime Minister of India was never to happen, since just over two weeks later on 30 January 1948 Gandhi, their political guru and arbiter, was felled by a Hindu assassin and waves of grief across the country drowned the immediate divergences within the duumvirate. 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 president, Rajendra Prasad, but, pointedly, never to Nehru who as Prime Minister was ultimately responsible for the selection and removal of all ministers, which was one of the few powers of the Prime Minister constitutionally codified in the 1950 text.Footnote ⁴⁷ After Gandhi's death Patel continued to hinder Nehru's sovereignty of political manoeuvre, but Patel's own death would follow Gandhi's in under two years. V. P. Menon, a seasoned Indian mandarin who played a vital administrative role in the transfer of power and became a leading civil servant working with both Nehru and Patel, assessed the importance of their relationship as a form of horizontal accountability at a critically early stage:

The Indian Governors General – Influence without Power

The last Viceroy of India, Earl Mountbatten of Burma, at the invitation of the Indian Cabinet, became Governor General of India (but not Pakistan as well, which he also wantedFootnote ⁵⁰), outwardly swapping the supreme plenipotentiary powers of a Royal Consul to become a constitutional cipher. However, this was not quite the case. As his official biographer has recorded:

The extraordinary case of India warranted extraordinary uses of viceregal power. Mountbatten was heavily involved in negotiations with the princely states, advocating their admission into the Indian Union. Mountbatten's defence background lent itself to his active role in the security of India such as with the refugee crisis that accompanied Partition and of course the enduring issue of Kashmir. The violence that greeted Partition meant that the Governor General for instance took the initiative of establishing an ‘Emergency Committee’ with himself as chairman with the backing of both Nehru and Patel. This cabinet-authorised committee had ‘powers [that] could hardly have been more sweeping and Mountbatten. . . exercised them with a will’.Footnote ⁵¹ Another extraordinary role for the new Governor General was to chair the crucial Joint Defence Council to settle security issues between India and Pakistan. As the last Viceroy and first Governor General he was also instrumental in the allocation of assets of Imperial India between the two Dominions, which Nehru and Jinnah (now Governor General of Pakistan) believed could be done by no other.Footnote ⁵²

Not unnaturally therefore, given the situation and his experience, Mountbatten ‘had clear ideas about his role as Governor-General, though circumstances frequently forced him – not always unwillingly – to step beyond its limitations’.Footnote ⁵³ Interestingly at the time of independence the British Cabinet and the King feared that there was a danger in South Asia of having ‘a regime of autocratic rule by the Governor-General dissimilar to that in other parts of the British Commonwealth’.Footnote ⁵⁴ As a clue to South Asian conceptions of the potential powers of the King's representative, Jinnah himself became Governor General and not Prime Minister but nonetheless was the centre of undisputed power in Pakistan. When cajoled by Mountbatten that, as Governor General Jinnah, would be restricted and compelled to listen to responsible advice when instead he could have more power as Prime Minister, Jinnah replied, ‘In my position it is I who will give the advice and others will act on it’.Footnote ⁵⁵

The greatest potential for the Governor General to use his powers of making the Prime Minister horizontally accountable to him was through his very intimate and close relationship with Nehru. Though Mountbatten's powers were not as substantial as he later liked to claim, he did to a large degree hold the confidence of Nehru and Patel. Mountbatten appreciated the massive burden on the shoulders of Nehru. Mountbatten from his time as Viceroy was able to utilise his deep knowledge of personnel to influentially advise Nehru and Patel on key military, diplomatic, political (at the central and state levels) and civil service appointments.Footnote ⁵⁶ One of his greatest services to India and its constitutional health was to emphasize to the premier rivals in the Cabinet, Nehru and Patel, the value of working together. As was discussed above, the political relationship between these two dominated India till Patel's death in 1950, and the friction between the two men hampered policy and decisions of the central government.

The tension generated at this time was considerable, and Mountbatten was able, with the authority that no one but Gandhi could have over Nehru, to reprimand his Prime Minister on his dealings with the Cabinet, thus offering a personalized and unique form of horizontal accountability. After discussing Nehru's inability to delegate or include ministers in key decisions such as Kashmir, the cousin of the last Emperor of India told his Prime Minister that ‘apart from differences of outlook, ideology and temperament, needless friction was being caused between the Prime Minister and the Deputy Prime Minister on account of faulty procedure’. Mountbatten continued about the Indian Prime Minister's political high-handedness with a boldness that few others would have attempted, telling Nehru ‘what I had told Gandhi and Sardar Patel about his own shortcomings. I told him that in my opinion not even Mr Churchill, in the heyday of his power, would have dared to ride roughshod over his ministers in the way that Pandit Nehru appeared to be doing’, showing the lack of horizontal accountability in this crucial era.Footnote ⁵⁷ The Governor General was also able to convince the Cabinet to make the unostentatious and security-blasé Nehru move into the grand former residence of the Commander-in-Chief, which became known as Teen Murti House,Footnote ⁵⁸ though the Prime Minister did insist on taking out the air conditioning of his bedroom during a power shortage (and even checked the power bills of the President and some of his ministers).Footnote ⁵⁹

Mountbatten's unprecedented role and influence was one fraught with crisis and constitutional ambiguity. Nehru was able to recognise Mountbatten's role and even asked him to remain in office longer than had previously been agreed.Footnote ⁶⁰ Mountbatten ‘was not indispensable; but he felt himself to be almost so; it was in part this apprehension of impending indispensability that led him to insist on quick retirement’.Footnote ⁶¹ Nehru was generous enough to vocalize his earnest gratitude in a formal Cabinet Resolution in Mountbatten's honour for an Englishman who operated in a time of ‘upheavals and great difficulties. When all those who were concerned with the governance of India, Lord Mountbatten, functioning completely as a constitutional Governor-General, nevertheless helped greatly in lightening the burden and in helping to face and solve the problems that confronted the country. His period of office has been memorable in the history of India and he will be remembered by the people of India with affection as one who cooperated in the great task of building a free India and who applied his great abilities and energy to this end’.Footnote ⁶²

Mountbatten, in keeping entirely with his disposition, could not resist producing a memorandum or ‘political testament’ that he sent to Nehru, Patel and his successor C. RajagopalachariFootnote ⁶³ on the eve of his departure, which contained a ‘ragbag of recommendations, almost all of them sensible and practical, which in their mixture of the significant and the trivial, the strategic and the tactical, are wholly characteristic of the author’. As well as idiosyncratic viceregal edicts on press conferences, holidays for ministers and air conditioning in government buildings, Mountbatten also advised on cabinet reconstruction, economic policy and appointments of ambassadors and governors; he furthermore advised that Nehru should drop the foreign affairs portfolio and was concerned that the new constitution ‘might be taken as a sacred text and thus be unnecessarily rigid’. Whatever else, Mountbatten's stature and experience made the post of Governor General a significant one and not a cipher as in many other Westminster countries.

There was therefore great interest as to who would and should succeed him. Mountbatten's first choice was Patel,Footnote ⁶⁴ which indicates that he wanted a powerful personality at Lutyen's Imperial Palace, perhaps to counter Nehru's political pre-eminence. Interestingly, the man who did get the post and who also had Mountbatten's approval, the prominent Tamil Brahmin and leading Congressman C. Rajagopalachari, hesitated before accepting the post. Rajagopalachari believed that Nehru himself should become the King's representative with Patel as the Prime Minister. To this private and extraordinary idea Rajagopalachari, at the time governor of West Bengal, argued, perhaps with an eye to Jinnah's Pakistan, that Nehru would have ‘greater power’ and that the arrangement would be ‘of great international value [and] more efficient for internal affairs’. Nehru's brittle reply concluded against the suggestion by saying, ‘[I]nternationally it is bad, internally it is also unsuitable. Temperamentally it could not also do’.Footnote ⁶⁵ Rajagopalachari finally acquiesced and became the first and last Indian to be Governor General, an unlikely successor to a long line of proconsuls beginning with Warren Hastings. Outwardly the change from a great grandson of the first Empress of India to a Hindu teetotallerFootnote ⁶⁶ was striking.

However, despite the outward contrast of these two Governors General, both men were seasoned in the ways of India, and more notable still was the confidence they inspired from the key political actors in the Indian executive. Rajagopalachari, a South Indian–trained lawyer and religious scholar with a savouring for Shakespeare, was close to Gandhi not only in looks but also in independence of spirit and action. Nehru had certainly not recommended the appointment of a politically impotent or inept person to occupy the Governor General's throne. Nehru believed Rajagopalachari's ‘presence in Delhi will be a great help to all of us, and especially to me’,Footnote ⁶⁷ and more than just a figurehead he was implored with the plea, ‘We want you here to help us in many ways. The burden on some of us is more than we can carry’.Footnote ⁶⁸

The new Governor General like his predecessor was compelled to wade into areas which in normal circumstances would be considered as impolitic of a traditional Westminster head of state as practiced by the King's representatives in the white Dominions. But these were not normal circumstances, and India was not a traditional Westminster. The threatened secession of the large princely state of Hyderabad from the Indian Union was an example that spurred the Governor General to actions normally unbecoming of his post, though this was working in concert with the Prime Minister and the Cabinet, not as a form of horizontal accountability on those executive actors. As the head of state, Rajagopalachari directly appealed and firmly stressed upon the eccentric and wizened Muslim Nizam, or Prince, of this predominantly Hindu state to join the Union or face the consequences. His Exalted Highness was told that if he would not be in agreement, then the Governor General would ‘force the Government of India to act on their own initiative’. The Nizam's intransigence led to the Governor General summoning the Prime Minister and the deputy Prime Minister to his residence, where it was decided to occupy Hyderabad. As Rajmohan Gandhi has attested, ‘C. R[ajagopachari]'s active role over Hyderabad, exceeding the scope of a constitutional head of state, was a product of the peculiar Nehru–Patel–C.R. relationship. C.R.'s views, and not just his signature, mattered to Jawaharlal and Vallabhbhai’.

Indeed on other occasions the veteran politician would philosophically ponder his role and that ‘to sign assent when he did not agree was not pleasing for C. R.; at times he would enter next to his signature the words “Against conscience”. Neither was it pleasing for Nehru or Patel when the Governor-General requested the Cabinet to reconsider a decision’, which showed symbolic elements of horizontal accountability on the elected executive. These occasions were extremely rare but demonstrated the regard in which he was held by his senior ministers.Footnote ⁶⁹

With the Republic about to be inaugurated in early 1950, Nehru thought that Rajagopalachari should be transformed into the first President of India and that he could therefore continue a close and fruitful relationship with the head of state. However, the relative freedom of selection that is afforded the Prime Minister to directly influence the appointment of a Governor General was not to be repeated with the Republic. Nehru would face not only one of his earliest major rebuffs over an executive appointment but also was to be given a head of state that for the first time truly tested the constitutional relationship between the head of state and the Prime Minister. The tensions, interpretations and emanations of this relationship would permanently shape India's executive practices.

The Prasad Presidency and the Search for Executive Norms

Article 53 of the Republic of India's interminable Constitution proclaims that ‘Executive power of the Union shall be vested in the President either directly or through officers subordinate to him’; while Article 74 complements or mitigates this, depending on your executive vista, by explaining that ‘there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions’, thus hoping to give emphasis to the ‘efficient’ Westminster institutional convention of the Cabinet's binding advice on the head of state without overtly making that legally difficult point clear.Footnote ⁷⁰ Despite the Constitution's prolix nature and unprecedented length, the section dealing with the executive of the Indian Union was relatively brief and lacking in definitive clarity and instead, as an eminent Indian jurist has argued, ‘was wisely left to convention and Constitutional practice’.Footnote ⁷¹ India sought to stipulate in writing Westminster institutional executive conventions but consciously did not add explicit and absolute detail that could confine or clarify the powers and boundaries of the executive and its political components. As Manor has commented, the framers of the Constitution enjoyed the acculturated familiarity and prestige of the British model and believed that their leaders would be like themselves – ‘restrained and responsible’. As such they did not want their government to ‘be hemmed in by detailed rules which might restrict its flexibility. . . . [T]he result is a Constitution which says very little about relations between Presidents and ministers’.Footnote ⁷² India may have been a Republic, but it was still an institutional Westminster mutatis mutandis.

Therefore the executive terms accepted above, although radiating from the Commonwealth's first Republic, were almost as imprecise, misleading and vague as any Westminster constitution on such critical subjects. Dr Rajendra Prasad, the first President, was one of the prominent politicians who initially questioned and then attempted to interpret such constitutional ambiguities. However, with an inevitability that can only result from such constitutional vagaries and flexibility, his decryption of executive power came into conflict with other members of the executive, namely the Prime Minister himself. Prasad had already noted his constitutional concerns when he wrote to the Constituent Assembly's Constitutional Advisor, B. N. Rau, in early 1948 as President of the Constituent Assembly, perhaps already with an eye to grab the powers of the presidency of the Union, that ‘in a country like England where the system has been in vogue for a long time, traditions and conventions have made the working of the Constitution efficient but we need some safeguard in India where we do not have the same traditions to begin with’.Footnote ⁷³ Unlike the regal processes that allow a Dominion Prime Minister to advise the appointment of anyone they wish to the governor generalship, which elegantly evades the nuisance of elections or meddlesome involvement of Parliament, the President of India would require the sanction of electoral legitimacy, albeit through indirect means. The head of the Indian Union would be elected in the first instance by the Constituent Assembly and subsequently by an electoral college composed of the elected members of both houses of Parliament and the elected members of the State Legislative Assemblies.Footnote ⁷⁴

As mentioned above, Nehru wanted Rajagopalachari to become the President, who possibly would have been less trouble for the Prime Minister. Prasad's conservative Hinduism and penchant for making public such views irritated the stridently secular Nehru.Footnote ⁷⁵ However, the Congress and the Constituent Assembly were behind Prasad. Nehru, as generally had been the way, believed he would get his way in by-passing his fellow Congressman Prasad for the presidency. Nehru pressurised Prasad that he

Just over a week later Prasad showed his mettle by informing Patel that ‘there was much feeling among party members [in support of Prasad] and that 85 per cent of members favoured my being President’.Footnote ⁷⁷ Nehru had been prepared to go against such wishes of the AssemblyFootnote ⁷⁸ but had overestimated his capacity to succeed. Rajagopalachari's biographer believes the reason for the Tamil Governor General's disfavour with the Congress and the Assembly was due not only to Rajagopalachari's inability to speak in Hindi and his physical distance from Delhi but also, and especially, because of his antipathy towards the ‘Quit India Movement’ in 1942. Rajagopalachari had instead called for accommodation with the British and the Muslim League during World War II when most of the Congress had favoured active dissent. His unpopular stance on ‘Quit India’ tarnished his credentials in many nationalist eyes when contrasted with the popularised jail terms under the British of Prasad and many others in the Assembly.Footnote ⁷⁹ In contrast with practices in other Westminster-style polities of the time, Prasad, the President of the Constituent Assembly, was unanimously elected by his peers to become the first President of the Republic, much to Nehru's chagrin.

With Prasad's election as the head of state the Prime Minister's wishes were institutionally checked by political accountability that had been absent under the Dominion interregnum. Prasad would have agreed with the analysis of scholars, who argued, some 50 years after he assumed the highest office, that Indian presidency ‘has a residual identity separate from cabinet, parliament, and the civilian and military services – an identity beyond government and opposition, beyond partisanship, as representative of the interests of the nation’.Footnote ⁸⁰ K. M. Munshi, one of Prasad's great sympathisers, argued that the President should not be a mere figurehead but had to be the ‘one strong organ of State’, capable of dealing with crises and excessive prime ministerial power.Footnote ⁸¹ The republican resident at Rashtrapati Bhavan, no longer the residence of the representative of the King-Emperor, had every intention of exercising the full prerogatives available to a Westminster head of state, as well as teasing and trying the unwritten conventions surrounding the powers of his office that had been thought superfluous to bother committing to paper only months before. This potential constitutional danger was noticed before Prasad's inauguration by Jennings, who with validity pointed out the liable dilemma of the Indian situation:

With this in mind, Prasad would hold true to his sworn oath to ‘preserve, protect and defend the Constitution’,Footnote ⁸³ or at least in the way he interpreted it.

The Hindu Code Bill – President versus Prime Minister

Before becoming President, Prasad told his countrymen in the Constituent Assembly that one could assume that

Rau, who had conducted on the Government of India's behalf fact-finding tours of certain Westminster states and other countries to assess constitutional models for India and had concluded in favour of the Cabinet Government, also believed that ‘the relations between the President and the Council of Ministers shall, as far as possible, be the same as between the King and his ministers in England’ and that the President ‘will almost always act on the advice of Ministers’. However, ‘there will be a few matters in respect of which he will have to act in his own discretion. Even in the English Constitution, there are certain matters in respect of which it is a moot question whether the King is bound to act on the advice of the Prime Minister’.Footnote ⁸⁵ As Rau correctly analysed the relationship in the main is one of correct procedure, but there is also potential for personal discretion and thereby friction between executive actors. As one scholar of presidentialism in South Asia has dramatically characterised it, ‘the President and his discretion are all that stand between order and chaos’, since the President is the final check on executive actions.Footnote ⁸⁶ For there to be order and not chaos the executive actors must know and understand the powers and limits of their own office as well as the offices of others within the executive. Prasad noted that in England this understanding came ‘from the diaries of kings or their consultants and Prime Ministers and other documents which were later published and which described the points of dispute’ and recognised the importance of the first office holders in establishing precedents for future office holders.Footnote ⁸⁷

For the Indian Republic these were obviously not available, and ‘the debates of the Constituent Assembly, though useful for the purpose of ascertaining conventions, cannot be considered by themselves a sufficient source’.Footnote ⁸⁸ Prasad was quick to see the presidential permeations all over the state as those of the Crown had been, reading the Constitution literally to mean ‘personal powers in the office of President’. Just as the fascinating correspondence between Patel and Nehru over their powers between late 1947 and early 1948 illustrated the wider difficulties in comprehending the conventions and powers between the Prime Minister and the Cabinet, so would the astonishingly frank exchange of enclosures and letters between Prasad and Nehru in September 1951. Prasad had cool, but largely correct, relations with Nehru, reminding the Prime Minister after less than a year as the tenant of Rashtrapati Bhavan that all important Cabinet decisions must be communicated to him ‘before they are issued to the Press or otherwise published’Footnote ⁸⁹ and advised the Congress Prime Minister that ambassadors and governors should not attend or become delegates at Congress Party sessions.Footnote ⁹⁰ Prasad saw in the presidency a greater policy and constitutional activism than had been contemplated by his Prime Minister, who wanted the more typically quiescent head of state that existed in most Westminster states. As Prasad explained to the deputy Prime Minister:

As a further portent of presidential intentions Prasad forewarns Nehru, addressing him as ‘Prime Minister’, not the informal Jawaharlalji as had previously been the case, that after reviewing a bill for his urgent assent he did not ‘desire to do anything which may create any embarrassment to you or to the Government. But I hope, you will concede that when I am asked to sign a document, I must satisfy myself and not sign blindly’.Footnote ⁹² Just two days shy of being President for a year Prasad produced a memorandum entitled ‘On President's Status vis-à-vis Council of Ministers’. Prasad believed it was his duty and constitutional privilege ‘to influence the Council of Ministers by his advice’. Prasad grasped that as the very first President of India (and in the entire Commonwealth) he could shape the presidency in a way his successors could not.

Prasad would certainly cause a precedent but not quite what he intended, as shall be seen below. Prasad contended that in contrast with his previous statements in the Constituent Assembly, the President was in fact attributed with not insubstantial powers that distinguish the Indian presidency from the conventions surrounding the British parallel:

Interestingly again in view of the debates of the Constituent Assembly, which had negated the idea, the new head of state wanted ‘Rules of Procedure’ which would specify ‘all the details of how the President, the Ministers and the Cabinet are to function in the discharge of their respective duties’ and added the foreboding caveat that he wanted ‘the above instructions to be carried out by my office’.Footnote ⁹³ Prasad obviously did not see the President of India as being a mere figurehead who sycophantically signed bills on command from the Cabinet. He had great expectations for the influence of the President over the governance and direction of the state. The President hoped to share power with his ministers. This contention would meet the opposition of both his Prime Minister and his ministers.

The real crux of constitutional conflict would erupt over Nehru's legislative attempts to reform Hindu personal law concerning marriage, divorce, inheritance, property and women's rights with the Government's Hindu Code Bill at the vanguard of a secular assault to eliminate, in the Prime Minister's mind, the primordial atavisms that divided India. Nehru had long harboured the ambition of modernizing India and saw reform of archaic religious practices which had permeated and manifested into Indian society as his way to succeed.Footnote ⁹⁴ The conservative Hindu President and his inflated interpretation of his powers came into direct opposition with his Prime Minister on the matter, and he intended to use all his official powers to halt the bill. His opposition to the bill was more on policy and personal grounds than from a legal basis, though he chose to present them as a constitutional point. The conflicts between the head of government and the head of state went to the heart of India's Westminster Constitution and ‘were at once substantive, institutional, and personal’.Footnote ⁹⁵ The clash over this bill had been brewing for months but came to the fore in September 1951. Prasad wrote to Nehru on 15 September, noting that he had given ‘public expression to my views’ on the Hindu Code Bill before becoming President, and since it looked like Parliament was set to pass the bill he wanted to let the Cabinet be ‘in possession of my views’ and ‘not be taken by surprise’.Footnote ⁹⁶ Though it is interesting to note that during his campaign to become the first President, Deputy Prime Minister Patel had advised Prasad not to tell Nehru at the time of his position on the Hindu Code ‘lest it prejudice your position’.Footnote ⁹⁷

Enclosing a note for the Cabinet's viewing he cautioned his ministers that he may send a message to Parliament and expressed that his ‘right to examine it [Hindu Code Bill] on its merits when it is passed by Parliament before giving assent to it is there’ and ominously ended by saying that ‘he may take such appropriate action as I may feel called upon to avoid such embarrassment consistently with the dictates of my own conscience’.Footnote ⁹⁸ Replying on the same day, Nehru immediately and formally indicated that he would pass on Prasad's note to the Cabinet and starkly reminded the head of state of the constitutional gravity of the situation:

Nehru was quick to point out to the President that policy was the Government's competence and not the President's and that the Government in Parliament represented the people, despite Prasad arguing that in his opinion the public was against the bill, which the Prime Minister hotly refuted. In a further letter on the same day, Nehru warned the President that the Press seemed to have wind of these top secret emanations, which could cause grave damage if the spat between the two became public, and lectured the Indian head of state that ‘they could only have got this information from Rashtrapati Bhavan’.Footnote ⁹⁹ Interestingly, despite Nehru's hectoring on constitutional protocol and importance of confidentiality, he himself was passing on copies of the letters, of which Prasad was not informed, to at least Rajagopalachari now reincarnated as Home Minister in the Union Cabinet after the death of Patel.Footnote ¹⁰⁰ The President and the Prime Minister did not greatly sympathize with the other's view as the temperature continued to rise.Footnote ¹⁰¹

With a mere three-day break, the constitutional polemics resumed as the President repaired to the Viceroy's old summer residence in Simla, now rechristened as Rashtrapati Niwas. Perhaps the viceregal ghosts of Dufferin and Lansdowne inspired their Indian successor to renew the constitutional battle. Pleasantries were quickly dispensed with as the President responded pluckily to the Prime Minister:

Prasad's reading of ‘well-understood and well-known democratic limitations’ on the powers of the Cabinet and Parliament meant in his mind the ability of the President to question publicly and privately the policies of his ministers who, as the Constitution stated in the British fashion, held ‘office during the pleasure of the President’.Footnote ¹⁰³ Prasad continued and sought to justify his position by reminding the Prime Minister of his rights under the Constitution. Prasad argued that ‘so far as our Constitution is concerned, it confers in unequivocal words on the President the right to address and send messages to Parliament. . .[and] the right to declare either that he assents to a Bill or that he withholds assent therefrom when it has been passed by Parliament and presented to him’. Prasad wanted to imply his right and his serious contemplation of sending a message to Parliament stating his objections to the Bill.

Prasad sought to neutralise this constitutional dilemma by pleading the difference of his own position as the President compared with the British King. The President believed his role went beyond simply defending the constitution. Though he hoped that in most cases there would be no difference in opinion within the executive and that though ‘the President will act in accordance with the conventions of British Constitution’, there will be occasions ‘requiring the President to take an independent line’, which is possible because ‘the President, unlike the King of England, holds his office by virtue of election’. Prasad believed that he further insured his position by reminiscing from his days in the Constituent Assembly that ‘wherever the Constitution wanted that British conventions and practice should be imported and read into our Constitution, it has expressly laid it down. . . . I am, therefore, of the view that the Constitution does not admit of a wholesale importation of all practices and conventions of the British Constitution’.

However, Prasad wished to have the best of all constitutional worlds by stating that ‘the same conventions of the British Constitution which limit the King's powers also limit the powers of the Government and the Parliament to sponsor and force such legislation without consulting the electorate’. This was also a reference to his conviction that the present Parliament was merely a ‘caretaker body’, since general elections by full adult franchise would not happen till 1952 (though an analogous argument could be made of him, as he had been elected by the very limited electorate of the Constituent Assembly and not the semi-direct election of the State Legislatures and Houses of Parliament that a President would normally be elected from). By denying the legitimacy of the present Parliament and righteously claiming that it ‘would not be right to import and insist on some conventions and ignore others’, Prasad made the extraordinary suggestion that ‘the electorate, which is master both of Parliament and the President, should be given a chance to express itself on the merits of the Bill’ by means of a referendum.Footnote ¹⁰⁴

This postulation would have pitted the President and the Cabinet against each other in an executive internecine war over policy and would have brought the young Republic to its knees. The President, thinking he was defending his rights and the Constitution, was in fact eroding the office's prerogatives and discretions by disputing the powers of the Prime Minister, the Cabinet and Parliament. Prasad, though claiming to do so, was not defending the Constitution but was being obstructive and finicky over a bill that pertained to policy and not the mores, Westminster or Indian, of the Constitution.

In the meantime Nehru was swift to enlist the learned opinions of Attorney General M. C. Setalvad and the distinguished jurist Sir Alladi Krishnaswami Aiyar. Aiyar explained robustly on 20 September 1951 that ‘the provisions of the Indian Constitution. . .makes it perfectly clear that the President is in every respect in the position of a constitutional monarch in England or his representative in the Dominions, namely, the Governor-General and that there is no sphere of his functions in respect of which he can act without reference to the advice of his ministers’. Though admitting that the Indian Constitution ‘did not go into details in this regard’ Article 74 was ‘sufficiently clear’ that the President exercises his executive powers with the ‘aid and advice’ of his ministers. Aiyar accurately pointed out that ‘in not stating in detail the incidents of responsible government, our Constitution has followed the example of most Dominion Constitutions’. The Madras-based lawyer further illustrated his point that the President was bound by the advice of his ministers by drawing on the constitutional canons of Asquith, Halsbury, Dicey and Jennings and citing examples from other Westminster states to defend cabinet government against Prasad's arguments.Footnote ¹⁰⁵

The Attorney General, unsurprisingly, produced strong legal arguments to counter the President's views on executive power. After explaining responsible parliamentary government, as Aiyar did, he concluded that the ‘House of People thus controls the Council of Ministers and through it all the executive power of the Union which is nominally vested in the President’. The Cabinet's legal adviser went on to say that ‘the supremacy of the legislature as representing the People would thus appear to be the basic principle of the Constitution’ and realising that he was echoing tenets of British Westminster culture argued, ‘[W]e have in the main adopted the British Parliamentary form of Government with its fundamentals of the supremacy of Parliament and an executive in the form of a Cabinet collectively responsible to Parliament’.

The Attorney General informed his readers that in his mind there was little doubt, despite the phraseology, that the head of state was bound to accept the advice of his ministers and listed similar instances (if not identical constitutional phrases and practices) from the old Dominions (though avoiding any mention of the young South Asian Dominions of Pakistan and Ceylon). The Attorney General cited Section 11 of the British North American Act 1867 which provides that ‘there shall be a Council to aid and advise in the government of Canada’; this similar provision in Section 62 of the Commonwealth of Australia Act 1900 states that ‘there shall be a Federal Executive Council to advise the Governor-General’; and India's very own colonial precedent, Section 9 of the Government of India Act 1935, which provides that ‘there shall be a Council of Ministers. . .to aid and advise the Governor-General in the exercise of this [sic] functions’, these replications for the Attorney General made it ‘clear that our Constitution makers have, in framing Article 74, adopted a phraseology well understood and accepted in British constitutional law and history, as imposing on the constitutional head of the executive the obligation to act solely in accordance with the advice of Ministers responsible to Parliament’. The difference between the British King and the President of India, in the Attorney General's view, was not the same as Prasad's creative observation. In fact they could not be more different:

He went on that if the President did feel that he could not assent the Bill this would create a constitutional crisis, since ‘the refusal to assent would, indeed, be tantamount to dismissal of Ministers’ and would ‘inevitably lead to the resignation of the Council of Ministers who have the confidence of Parliament’.Footnote ¹⁰⁶

Both the Attorney General and Aiyar at no point believed that the President was constitutionally correct. Indeed they were both abundantly clear that Prasad was going against not only the Westminster practice but more importantly the very spirit of their own Constitution. Nehru, now abetted with patent legal and political support, replied to Prasad, and while acknowledging the President's rights to address and send messages to the Parliament and his power to give or withhold assent, he stressed:

Nehru's constitutional diagnosis had differed from Dr Prasad's, and the Hindu Code Bill illustrated a wider potential for executive conflict when executive actors are not cognisant of constitutional norms. The problem in many ways was as Aiyar noted a few weeks later that ‘the President seems to read every Article of the Constitution which the expression “President” occurs as conferring powers upon the President in his individual capacity without reference to the Cabinet’. Aiyar reminded the Cabinet, most of whom had sat with him in senior positions in the Constituent Assembly, that they had expressly wanted flexibility and sought to avoid creating an American-style presidency and that any concession to Prasad on his interpretation of presidential powers would ‘upset the whole constitutional structure envisaged when the Constitution was passed’ and ‘make the President a kind of dictator answerable to no one and will reduce the Indian Constitution to a hybrid type which has its counterpart neither. . .in America nor the Cabinet type of government known to Britain and the Dominions nor to . . . France [under the Fourth Republic]’.

Aiyar understood that India's Constitution framers wanted a head of state that was, like the King, above party politics and the symbol of the nation. Looking at Britain he argued that ‘the Crown will have to be above party politics and if it exercises the power of dissolution or a power of veto without reference to the Ministry, it cannot but bring itself into the vertex of party politics. This consideration will equally apply to the President under the Indian Constitution’. Referring to Article 111, which stipulates the President's right to ‘remit a Bill for reconsideration’, Aiyar states that for a President to directly intervene in policy and active politics would be catastrophic and against the axioms of the office, since the ‘President is not intended to be a revisional or appellate authority over the Cabinet’, and the power vested in the President under Article 111 ‘is as much intended to be exercised on the advice of the Cabinet as any other power. It is not intended to substitute the individual will of the President for the deliberations of Parliament or for the policy underlying a legislation deliberately adopted by the Government’.Footnote ¹⁰⁸

Nehru, now with the strength of such opinion, pushed his measures through, though he split the Bill, and waited for the democratic endorsement of the electorate with elections just months away, as Prasad had intimated, to pass the full legislative provisions. With the Congress elected to power in 1952 for the first time on a universal adult franchise and gaining 364 out of 489 seats, Prasad could no longer deny the Prime Minister's legitimacy of position on the bill. Nehru considered the subsequent passing of the legislation ‘to be the greatest real advance of his career’,Footnote ¹⁰⁹ though the delay caused the resignation of Ambedkar in October 1951, who complained that Nehru was not determined enough to right India's social wrongs, but the loss of the erudite untouchable leader did little real damage to the Prime Minister's power.Footnote ¹¹⁰ Policy aside, the Prime Minister constitutionally had established ascendancy over the presidency and negated any budding horizontal accountability on his powers from Rashtrapati Bhavan. The President lost the prerogative to influence the Prime Minister. Indeed there is evidence that Nehru valued the advice of Dr Sarvepalli Radhakrishnan, the Vice-President and distinguished scholar and diplomat, more, though Prasad still had enough influence with the Congress Party to be re-elected in 1957.Footnote ¹¹¹ Prasad was not a President with authoritarian tendencies. The problem was that he misconstrued the powers given to a Westminster head of state without comprehending the accompanying conventions, or at least comprehended them differently from his ministers and Westminster precedents. Prasad's motives were not to bring down the Government but to block legislation, which in his mind was highly controversial and damaging to the nation. Indeed, as Austin has contended, ‘Prasad's argument had some moral force’. However:

Even after the fracas over the Hindu Code Bill the President was still not convinced that he was incorrect. Though he remained President till 1962, and caused little constitutional trouble for the rest of his tenure, he still was able to taunt the constitutional equilibrium by telling those assembled at a ceremony in November 1960 to open the Indian Law Institute, ‘[T]here is no provision which in so many words lays down that the President shall be bound to act in accordance with the advice of his Council of Ministers’.Footnote ¹¹³ Prasad had lost the constitutional battle and by attacking the Government on insecure constitutional grounds rendered a great disservice to the presidency of India and his successors – especially as a check on the Cabinet. The President of India was now rendered more a dignified part of the ceremony of state than an efficient guardian of the constitution and effective proponent of horizontal accountability on the Prime Minister and the Cabinet. Indeed Mrs Gandhi, perhaps remembering the hindrance that Prasad had caused her father, sought to eradicate this conundrum surrounding presidential duty to acquiesce to the advice of the Cabinet. She attempted to put this convention beyond doubt with the 42nd Amendment to the Constitution in 1976. Article 74 (1) now read:

The presidency proved its submissiveness to the prime ministerial direction by not even attempting to defend the Constitution against Indira Gandhi's Emergency powers that disabled Indian democracy. The Janata Government that followed after Mrs Gandhi's draconian ‘Emergency' period removed almost all of Mrs Gandhi's graffiti from the Constitution, but the 42nd Amendment was left unmolested. Now Presidents were unambiguously obligated to listen to the advice of their ministers. Now there seemed no hurdle to Aiyar's reminder to the Cabinet: ‘In the felicitous language of. . .Bagehot, the King has no alternative to signing his death warrant if the Parliament chooses to pass a measure in that behalf’.Footnote ¹¹⁴ The Indian presidency would be no different.

The entire constitutional period surrounding the first decade on independence had illustrated two fundamental points. Firstly, India's executive contained ambiguity over the powers and perimeters of various key executive actors that was more pronounced than in other Westminster countries because of the lack of precedence within India of the Cabinet government and because of India being the first Westminster republic in the Commonwealth. Secondly this critical era established the enduring axiomatic power of the Prime Minister in India over the rest of the executive, despite there being divergent interpretations from other key members of the executive, and also because Nehru himself did not always know where the line should be drawn between democratic collectivism and prime ministerial ascendance in policy and power.

Nehru now had overwhelmingly delegated democratic power, since he was without real horizontal accountability and was cursed with an inability to seriously delegate himself because of the impatience of his vision. Nehru now became his own check, since by the electoral victory of 1952 he had impressed his interpretations of governance on India and dominated or defeated the executive actors from the President to the Cabinet – and his only rivals for political leadership, Gandhi and especially Patel, had left the political scene permanently. Nehru had become, intentionally or not, first with no equals.