When a chief justice became president

After hearing his pleas, the Supreme Court issued a warrant for the zamindar to be produced before it. However, when the court bailiff went to serve the orders, he was physically prevented by the collector of Midnapore, acting on the orders of the Governor-General Warren Hastings. What followed next was a series of curious actions by both the Supreme Court and Supreme Council. The court proceeded to issue an order seizing all the assets of the zamindar but when the bailiff went to carry out these actions, the army commander at Midnapore, Colonel Ahmuty, arrested the officers of the court and detained them. Meanwhile, Kashinath, the merchant, filed a lawsuit against the Governor-General and all the members of his Council but army officials prevented service of these writs, too. Enraged, the Supreme Court arrested the attorney general in the case and committed him to prison without bail.

A clash of this kind was not due to personal egos. Lord Elijah Impey, the Chief Justice, and Hastings were said to be the thickest of friends. Rather, what took place was a conflict of institutions. Both the Supreme Council and the Supreme Court were jostling with each other because their jurisdictions were not clearly delineated.

Indeed, for a long time, the executive head in our country continued to possess judicial powers. In ancient India, too, judicial functions were sine qua non to the responsibilities of the king. A good king was considered to be one who is also a “just” king.

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Today, of course, such conflicts are unthinkable thanks to the clear separation of powers spelt out in our Constitution. Although the functions of legislature, executive and judiciary are clearly divided, they are at the same time also joined together through the institution of the president. The three wings of the state are like the three lions united together in the national emblem that symbolises our country and our President.

Justice NV Ramana sworn in as the Chief Justice of the Supreme Court of India at Rashtrapati Bhavan on April 24, 2021 (Source: Rashtrapati Bhavan Archive)

The President, on the one hand, is the head of the executive as all actions of the government are performed in his name. He is also part of Parliament, and at the same time, he is also the sole authority for appointing as well as dismissing the chief justice and judges of the Supreme Court and high courts.

The relationship of the President of India with the judiciary is a special one. It starts right from the time he enters office when the oath of office is administered by the Chief Justice of India. The form of the oaths of the President and the Chief Justice of India are similar. Under article 60, the primary duty of the president is to preserve, protect and defend the Constitution and the laws of India. The Chief Justice of India likewise takes oath to “uphold the Constitution and the laws”.

The President, whenever he desires, can seek the opinion of the Supreme Court under article 143 of the Constitution in questions of law and matters of public importance. Till date, this provision has been used 12 times by various presidents — Rajendra Prasad referred to the Delhi Laws Act, 1912, for advice of the Supreme Court in 1951. However, the opinion of the Supreme Court is not binding on the president, and, also, the Supreme Court is also not bound to give its opinion in all cases. On January 7, 1993, president Shankar Dayal Sharma had made a presidential reference seeking the Supreme Court’s opinion on a question “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid in the area on which the structure stood?” By its majority decision of October 24, 1994, it refused to answer on the ground that the question was opposed to secularism and favoured one religious community.

The relationship between the president and the judiciary is also a personal one. Out of the 14 presidents so far, there have been four who were practising lawyers. Our first president Rajendra Prasad practised at Bhagalpur in Bihar, VV Giri in Madras High court, R Venkatraman in Madras high court and the Supreme Court and the current President Ram Nath Kovind was practising law, both in the Delhi High Court as well as the Supreme Court.

There has also been a unique instance when a serving chief justice of India has become a president, albeit an acting one. When President Zakir Hussain died on May 3, 1969, vice-president Giri took over as the acting president. However, Giri was also contesting the consequent presidential elections and, hence, had to resign from both his offices. The next in line was the chief justice, and so Justice Mohammad Hidayatullah became the president for 35 days from July 20 to August 24, 1969. Interestingly, during this period he even hosted US President Richard Nixon!

President Kovind holds a rare distinction of having served in all wings of the state. He has been a member of Parliament, a practising lawyer and a central government standing counsel. But all presidents, irrespective of their backgrounds, have had one thing in common — they have all been the bridge to connect the judiciary with the other organs of the state.

(Praveen Siddharth is private secretary to the President of India)