[Letter to President Mr R Venkataraman]

Summary

This two-page letter, dated 5 August 1987, records Minoo Masani’s constitutional advice to R. Venkataraman, then President of India. Masani refers to his recent Statesman columns welcoming Venkataraman’s election and encloses an article arguing that the Constitution as framed by the Constituent Assembly was altered improperly by the 42nd Amendment, which he describes as ultra vires the Constitution.

Masani distinguishes the President’s obligation to follow the amended constitutional text from what he regards as residual presidential discretion. He argues that the 42nd Amendment did not remove the President’s authority to choose or dismiss a Prime Minister, or to accept, refuse, or manage a request for dissolution of the Lok Sabha. In the event of a dissolution request, he proposes seeking the government’s resignation, installing a National Government or caretaker administration as suggested by Rajaji, and holding fresh elections. He also argues that Article 352 requires the President’s own satisfaction before declaring an Emergency, and concludes that Fakhruddin Ali Ahmed’s Emergency proclamation was constitutionally unwarranted.

Key points

• Masani writes to President R. Venkataraman about constitutional powers and recent public commentary on his election.
• He argues that the 42nd Amendment substantially subverted the Constitution’s original terms.
• He maintains that presidential discretion over appointing and dismissing a Prime Minister remained intact.
• He argues that the President could respond to a dissolution request by seeking the government’s resignation and appointing a National Government or caretaker administration before fresh elections.
• He cites the Supreme Court’s judgment in Shamsher Singh as preserving these presidential powers despite the 42nd Amendment.
• He interprets Article 352 as requiring the President’s personal satisfaction before proclaiming an Emergency.
• He states that Dr. Fakhruddin Ali Ahmed erred in signing the Emergency proclamation.