Ironically, this brought into play President Rajendra Prasad who was an inveterate opponent of the Hindu Code and had repeatedly told Nehru that it must not be passed. As it happened, it was on a relatively minor matter that the President fired his first shot. On receiving the draft of his address to Parliament, he wrote to the prime minister to drop the reference in it “to the passing of the Hindu Code Bill in this session”. Nehru firmly refused.

In the previous article (April 17) Prasad’s various objections to the Hindu Code, including his threat to withhold assent to it even if it was passed, have been discussed. Nehru, backed by the opinion of the then Attorney-General, M. C. Setalvad, had made it clear to the President that in discharge of his functions he had to be guided by the “aid and advice” of his council of ministers. The prime minister had also put paid to the President’s desire to send a message to Parliament outlining his “fundamental” objections to the Hindu Code Bill by the simple expedient of threatening to resign himself.

Setalvad, in his autobiography, Story of My Life (1970) has recorded that since the Indian system is modelled on the Westminster parliamentary democracy, his study of the British constitutional conventions and case law established that the position of the Indian president was no different from that of the British monarch. Both must act according to advice of council of ministers “except in the extremely rare situation when the council might not exist”. He also refused to accept President Prasad’s argument that the provisional Parliament, elected on a restricted franchise, had no right to make “such revolutionary changes” as the Hindu Code Bill did. Setalvad asserted that the provisional Parliament was a “continuation of the constituent assembly that had enacted the entire Constitution”. Another eminent jurist, Alladi Krishnaswami Aiyar, was of exactly the same view. And some years later the Supreme Court broadly endorsed their position. 

... contd.