Wednesday, 2 July 2014

Position of the President (Prior to the 42°’ constitutional Amendment Act, 1976)

Jyoti Mishra

According to Article 53(1) of the Constitution the executive power of the union shall be exercised by him (i.e. president) either direly or through officers subordinates to him in accordance with the Constitution. Article 74(2) of the Constitution says that the question whether any and if so, what advice was tendered by the Ministers to the President shall not be inquird into in any Court. Article 75(1) of the constitution says that the Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Prime Minister. The Minister shall hold office during the pleasure of the president.1           
In S.F. Gupta & v. President of India and others,2 (commonly known as the Judges Transfer case) the Apex Court ruled that though the advice given by the Council of Ministers to the President cannot be inquired into by, the Court but the materials on the basis of which such advice is given are not secret and can be scrutinized by the Courts of law.
A purely literal and legalistic interpretation of these Articles convey the impression that the President, if he so desires could become a dictator. Article 53 (1) of the Constitution leaves a clean scope for the President, if he chooses to become a real ruler and not to remain mere nominal head of the union. It is true that there shall be a Council of Ministers with a prime minister as head to aid and advice the President in the exercise of his executive powers, but prior to the constitution 42nd Amendment Act, 1976 there was no clear provision in the Constitution that the President was bound by the ministerial advice.
Allen Gladhill expressed the view that the Constitution could under certain circumstances make the President a dictator.3
He can easily manage to seize all executive powers by dissolving the parliament and declaring State emergency thereby suspending fundamental rights envisaged in part III of the Constitution of India, 1950. As a Supreme Commander of the Armed Forces, the President can use military to suppress the evil forces. Even, without violating the constitution, an ambitious president can become the real ruler of India.4
According to Dr. J.N. Pandey5 this literal interpretation is, however, not in tune with the spirit of the Constitution. No. sane president would like to be so ambitious as depicted by Allen Gladhill. None can dispute the fact that the form of Government adopted by the constitution is a parliamentary one. It is the essence of the Parliamentary form of the Government that the real executive powers should be exercised by the Council of Ministers responsible to the Lok Sabha. The President cannot exercise his powers, without the aid and advice of the Council of 4iinisters. That is the existence of a Council of Ministers is obligatory. Even, when the Lok Sabha is dissolved the Council of Ministers remain in office to aid and advice President. However, explaining the position of the President in the Constituent Assembly Dr. B.R. Ambedkar said under the Draft Constitution the president occupies the same position as the king under the English Constitution. He is the Head of the State but not of the Head of the Executive. He represents the nation but he does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nations decisions are made known. He will be generally bound by the advice of the ministers. He can do nothing contrary to their advice nor can do anything without their advice.6
On the same point the President of the constituent Assembly. Dr. Rajendra Prasad expressed a similar view in the following words- Although, there is no specific provision of the Constitution itself making it binding on the President to accept the advice of his ministers, it is hoped that the convention under which in England the king always acted on the advice of his ministers, would be established in this country also and the President would become constitutional president in all matters.
The Supreme Court of India has consistently taken the view that the position of the President and the Governors under the Indian Constitution is similar to the position of the crown in Great Britain under the British Parliamentary system.
The Supreme Court of India in Ram Jawaya v. State of Punjab7, Observed- Under Article 53(1) of Constitution the executive power of the Union is vested in the President but under Article 74(1) there has to be a Council of ministers with the Prime Minister at the Head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional Head of the executive and the real executive powers are vested in the Ministers or the cabinet In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of ministers consisting as it does, of the members, of the legislature is like the British cabinet a hyphen which joins, a buckle which fastens with legislative part of the State to the executive part. The cabinet enjoying, as it does a majority in the legislature, concentrates in itself the virtual control of both legislative and executive functions...
The Supreme Court of India in U.N. Rao v. Indira Gandhi held that even after the dissolution of the Lok Sabha the Council of Ministers does not cease to hold office. Article 74(1) of the Constitution is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. Any exercise of executive power without such aid and advice will be unconstitutional in view of Article 75(1) of the constitution The facts of the present case were as follows:
After the dissolution of the Lok Sabha the Prime Minister Smt. Indira Gandhi8 and her Council of Ministers continued to hold office. The appellant by a writ of Quo warranto. prayed for declaration that Prime Ministers had no constitutional authority to hold office and to function as Prime Minister. He raised contention that as soon as the House of the people was dissolved under Article 83(2) of the Constitution, the Council of Ministers, i.e., the Prime Minister and other ministers ceased to hold office, According to the appelant this follows from the wordings of Article 75(3) of the Constitution which provides, the Council of Ministers shall be collectively responsible to he house of the people. How can the council of ministers be responsible the House of the people when it is not in existence i.e. if dissolved under Article 83(2) of the constitution. The Supreme Court held that the provisions of Article 7 5(3) of the Constitution which envisage the doctrine of ministerial responsibility has to be harmoniously construed with the provisions of Article 74(1) and 75(2). Thus, construed Article 75(3) applies only when the house of the people does not stand dissolved or prorogued. It cannot, therefore, be said that on the dissolution of the House of people, the Prime Minister and other ministers must resign or be dismissed by the President.
The Supreme Court in Shamsher Singh v. State of Punjab9 held that the President and the Governors are only “constitutional or formal head”. They exercise their powers and functions under the constitution only with the aid and advice of the Council of Ministers, “save in spheres where the Governor is required to exercise his functions in his discretion”. Where ever the constitution requires the satisfaction of the President or the Governor, the satisfaction is the satisfaction of the Council of Ministers. The Supreme Court said: Our constitution embodies generally the parliamentary or cabinet system of Government on the British model, both for the Union and the States. It is a fundamental principle of English constitutional law that ministers must accept responsibility for every executive act. In England the sovereign never acts on his own responsibility, the power of sovereign is constituted by the practical rule that the crown must find advisors to bear responsibility for his action. Those advisors must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our constitution also.
The Supreme Court overruled the judgment delivered in the case of Sardari Lal v. Union of India’10 in which it was held that: Where the President or the Governor as the case may be if satisfied makes an order under Article 311(1) proviso (C) the satisfaction of the President or Governor is his personal satisfaction.
1. The Council of Ministers is responsible to the Lok Sabha. If the President ignores the advice of the ministers enjoying the confidence of a parliament he/she may resign and create a constitutional crisis. It is obligatory on the president to have always Council of Ministers. If the same person gains majority and forms a ministry it would be difficult for the President to work with the ministry.
2. If the President dismisses any ministry having majority support of the Lok Sabha, they may bring impeachment motion against the President. This power of impeachment serves as a deterrent against the President assuming real power.11
3. The power of taxation, legislation and appropriation of funds from consolidated funds can be exercised only be parliament’s authorisation.
4. The working of the Constitution since 1950 has established that the President is a nominal Head and the real executive poser vests in the Council of Ministers.
Position of the President- (After the 42nd Constitution Amendment Act, 1976)- It is to be noted that this amendment removes all doubts about the position of the President under the Indian Constitution. It has amended Article 74 of the Constitution which makes it clear that the President shall be bound by the advice of the Council of Ministers. It says: There shall be a Council of Ministers with the Prime Ministers at the head to aid and advice the President, who shall in the exercise of his functions act in accordance with such advice. In view of the Constitution 42nd Amendment the President could not play even the role of an advisor or a guide.
By 44th constitution Amendment Act, 1978 the following proviso was added in Clause (1) of Article 74. Provided that the president may require the Council of the Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. This constitutional amendment is intended to prevent the recurrence of the situation which arose in the year 1975 when the President had to sign the Emergency proclamation only on the advice of the then Prime Minister, without consulting her Council of Ministers.
It is submitted that it would have never been the intention of the framers of the constitution to make the President a puppet. Though, they were clear that the president would be a Constitutional Head, but they never intended that he/she would be passive spectator. In view of the oath which the President takes under the constitution, to preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of India, the President is duty bound to advise, to guide and exert his influence on the decisions taken by the Prime Minister. Indeed, this is the real spirit of the constitution and it is hoped that the holders of the highest office would always abide by it.
The 44th Constitution Amendment Act, 1978 recognises this limited essential role of the President under the Indian constitution. But, the weak position of the President of India does not mean that his office is superfluous. The President is the symbol of the Indian National Unity. He plays a vital role in the working of the Government. Being impartial and above party politics, President exerts or is likely to exert his influence in the decisions of the Prime Minister. The influence of the President however will depend on his/her sterling character, magnetic personality and selfless devotion to the nation. In this context Prof. M.P.Jam12 observes as follows: It is the Council of Ministers which will prevail and not the President. The President’s role at best may be advisory, he may act as the guide, philosopher &friend to the ministers, but can not assume to himself/herself the role of their master, a role which is assigned to the Prime Minister.
1.Ailicle 75(2) of the Constitution of India 1950.
2.S.P. Gupta & others v. Presidenf India & other. AIR 1982 Sc 149.
3.The Republic of India, 197
4.The constituent Assembly Debates-Vol-VII p.33.
5.Dr. J.N. Pandey, The Constitutional Law of India, 47th Edn. 2010
6.The Constituent Assembly Debates Vol. VII p. 508
7.AIR 1955 Sc 519: See also T.K.N. Rajgopal V. T.M. Karunanidhi, 8.A1R1970 SC1351
9.AIR 1971 SC 1002.
10.AIR 1974 SC 2192.
11.AIR 1971 SC 1547
12.Allen Gladhill-Republic of India, Commonweal Series p.100
13.M.P. Jam, Indian Constitutional Law, 3rd Ed., 1978 94
Smt. Jyoti Mishra
Research Scholar, Political Science,
Ram Manohar Lohia Vishwavidyalay, Faizabad (U.P.)