Essay on the Constitutional Position of the President of India

The supreme command of the defense forces of the Union is vested in the President but the exercise of the supreme command is to be regulated by law. The executive power of the Union is vested in the President. Yet he is intended to stand in relation to the Union administration substantially in the same position as does the king under the English Constitution. He is nominal or constitutional head of the Government. His position is not like that the President of the United States of America who is the real executive head and exercise the powers vested in him under the constitution on his own initiative and responsibility. In the context of the legislative execu­tive relations established by the provisions of the Constitution, the presidential form of government as prevailing is America is ruled out and it is parliamentary type of government that is provided by the constitution of India.

In estimating the constitutional position of the President of India the relevant provisions are Article 53, 74, and 75. Art. 53 vests the executive power of the Union in the President, but lie is required to exercise his powers in accordance with the constitution. Article 74 provides that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions. Art 75(iii) Jays down that the Council of Ministers shall be collectively res­ponsible to the House of the People. There is no provision in the constitution which makes the President answerable to the legislature.

There was no doubt in the minds of the framers of the Consti­tution that they were setting up a parliamentary form of Govern­ment after the model of Great Britain. Dr. Ambedkar categorically stated in the Constituent Assembly "the President is merely a nominal figure head" that "he has no discrimination and no powers of administration at all" and that the President of India occupies the same position as the King of England. He was the head of the State but not of the executive. He represented the nation bus; did not rule the nation. He was the symbol of the nation, His place in the administration was that of a ceremonial device on a seal by which the decisions of the nation were to made known.

Similar observations were made by Dr. Rajendra Prasad in the Constituent Assembly. According to him the position of the Indian President was that of constitutional head. Although there were no specific provisions in the constitution itself making it binding on the President to accept advice of his ministers, for hoped that a conven­tion will be established in the country that the President will always act upon the advice of his ministers and thereby become constitu­tional head.

The view of the late M.C. Setalvad, former Attorney-General of India, was that the position of the President of India was like the King of England and the Governor General in a Dominion. He could advise the ministers and influence their decisions but other­wise he was to act according to their advice.

Prime Minister Jawaharlal Nehru explained the position of the President in these words "We have not given our President any real power but we have made his position one of great authority and dignity."

The executive power is vested in the President; he is only a formal or constitutional head of the Executive. The real power is vested in the Council of Ministers on whose aid and advice the President acts in the exercise of his functions. The Executive has the primary responsibility for the formulation of Governmental policy and its transmission into law. It is responsible for all its action to the legislature whose confidence it must retain. The basis of this responsibility is embodied in Article 75(iii).

He can do nothing contrary to their advice nor can he do any­thing without their advice. The President's role as a figure head is reflected in his indirect election. If he were to be elected by adult franchise, then it might have been anomalous not to give him any real powers and it was feared that he might emerge as a centre of power in his own right. Since the power was really to reside in the Ministry and in the Legislature and not in President, it was thought adequate to have him elected directly,

A question may be asked that if the framers of the constitu­tion were so definite in their minds regarding the constitutional status of the President, then why did they not categorically mention in any provision in the constitution that the President would be bound by ministerial advice? The Drafting Committee did examine this question but dropped the idea of putting any such provision as it thought it better to leave the matter to conventions. Such a provi­sion could not have been enforced legally and the remedy could only have been political and that remedy exists even now. The rela­tionship of the President with the Cabinet is based on the system of responsible government functioning in England, where the system of parliamentary government based on conventions has been working for long if could be expected that a similar system would also work reasonably well in India.

Nor does the matter rest entirely on conventions. There are a few safeguards woven into the fabric of the constitution itself because of which somewhat critical situations may arise if the Presi­dent ever ignores ministerial advice. The Council is responsible to the Lok Sabha and this principle necessarily leads to the gravita­tion of effective power into the hands of ministers. If the President ever takes it into his head to override the Ministry on any matter, it may resign 'en bloc' and thus create a constitutional crisis. It is obligatory on the President to always have a Council of Ministers and so it follows that when a Ministry resigns, the President must at once seek to have an alternative Ministry which may be capable of commanding the confidence of the Mouse and justifying to Parlia­ment, arid securing its approval of, the presidential action in refusing the advice of the previous Ministry.

The President may find this very difficult in a situation where the previous Ministry enjoying the confidence of the House had to resign due to his own conduct, as the majority of the members, who supported the previ­ous Ministry, would still refuse to support any other Ministry. Parliament has supreme power of legislation, taxation and appropria­tion of funds. President's ordinance-making power is meant for use only for a short duration and is subject to ultimate Parliamentary control. The President cannot carry on the administration of the country without the co-operation of parliament as no more than six months could elapse between two parliamentary sessions. The President's power to declare an emergency is also subject to the approval of two Houses of Parliament. All these constitutional provisions lead inevitably to one result, that there should be in office a Ministry which is in a position to secure parliamentary approval, sanction and finance for its policies and programme.

The President may be impeached if he seeks to disregard the Yule of parliamentary government by ignoring the underlying basic conven­tions, as the phrase violation of Constitutions' in the constitutional provision relating to Presidential impeachment is flexible, enough to include not only the formal provisions of the Constitution, hut also the conventions operating there under. In fact, in the Constituent Assembly, this was made very clear. This, therefore should serve as a sanction to make the President observe the convention of action on the advice of the Council of Ministers. On the other hand, the Activist theory of the President has many sags for the President himself and for the constitution. If the President vetoes a Bill passed by the two Houses, he will be setting himself against the majority in Parliament.

He will thus become controversial and 'partisan' and be drawn into the vortex of political and public controversy and public criticism which will do irreparable damage to the dignity, prestige neutrality of the President's office. An activist President is going to force sooner or later a show-down with the cabinet. He will himself become partisan and a bone of contention in the country. There is no way to hold the President responsible ex­cept the extreme step of impeachment. What would happen to the theory of collective responsibility of the Ministers, specifically stated in the constitution, with an activist President. Will the ministers defend the actions of the President in Parliament or criticize the same as having been taken against their advice. Such a situation is bound to injure the parliamentary system irreparably.

Lastly, the working of the Constitution since 1950 conclusi­vely establishes that the President is a figure-head while the Council of Ministers wields the real executive power. There has not been a single case when the President might have vetoed a bill passed by the two Houses or refused to accept ministerial advice on any point. Nehru, the first Prime Minister of India, made the position clear repeatedly by asserting that the responsibility for any policy was entirely that of the government which was responsible to Parlia­ment, which in turn was responsible to the people and that the President was a constitutional head who did not oppose or come in the way of anything. The Supreme Court has also expressed the view that our Constitution has adopted the English system of a parliamentary executive, that the President has been made a formal or constitutional head of the executive and that the real executive powers are vested in the Ministers or the cabinet.

It may however be noted that the controversy regarding the President's position has erupted a few times in the past but each time it has ended in confirming the position that the President is constitutional and not an effective head of the state. Within a year of the Constitution coming into operation, President Rajendra Prasad in 1951 in a note to Prime Minister Nehru expressed the desire to act solely on his own judgments, independently of the Council of Ministers in the matter of giving assent to the Bills and sending messages to Parliament. This view was based on a literal reading of Articles 111 and 86, ignoring the underlying conventions. Nehru consulted Attorney General Setalvad and Ayyara member of the Drafting committee of the Constituent Assembly, and they both expressed the view that the President had no discretion in this matter and that it would be constitutionally improper for him not to seek, or not to be guided by the advice of his Ministers, as Art. 74 was all pervasive in character and the Council of Ministers was to aid and advice the President in all his functions. The matter was not, however, precipitated as President Prasad relented and did not force his views.

The controversy started again in 1960. On November 28, 1960 while laying the foundation stone of the Indian Law Institute build­ing, President Prasad in his speech said that it was generally believed that like the Sovereign of Great Britain, the President of India was also a constitutional head and had to act according to the advice of his Council of Ministers. He also posed the wider question as to how far the conventions of the unwritten British constitution could be invoked and incorporated into the written Indian Constitu­tion by interpretation. This speech raised a spate of speculation in the country or the question of President's relationship with his Council of Ministers. The matter was, however, set at rest by Nehru declaring at a Press Conference on December 15, 1960, that the President's remarks were only 'casual' and that politically and constitutionally, the President's position conformed to that of the British crown and that the President was a constitutional head and had always acted as such.

For the third time a similar controversy was raised in 1967. As a result of the Fourth General Elections held in March 1967, the Congress monopoly of power in the States was broken as in some State non-Congress governments took office. When the ques­tion of electing a new President arose in May, 1967 the parties opposed to the Congress set-up their candidate as against the Con­gress candidate, and one of the arguments that was put forth by these parties was that the President was not merely a figure-head but that he had a constructive and meaningful role to play in the affairs of the country, especially, that he should act as a sort of mediator between the Centre and States.

This controversy has been raising its head time and again with Zakir Husain, Sanjiva Reddi and Gyani Zail Singh trying to assert their position and reacting sharply to the bondage of Council of Ministers.

The Forty-second Amendment of the Constitution in 1976 removed all doubts about the position of the President under the Indian Constitution. Art. 74 as amended categorically provided that "there shall be a council of Ministers with the Prime Minister at the head to aid and advise the President who shall is exercise of his functions, act in accordance with such advice/' Under this Amendment, the President could not play the role of even an advi­ser or a guide.

A further Amendment of Art. 74 was made by Forty-fourth Amendment of the Constitution in 1978, The clause that the Presi­dent shall act in accordance with the advice of the Council of Ministers with the Prime Minister at the head was not changed but a proviso was added to the effect that "the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration." The result is that the Presi­dent has to act on the advice of the Ministers but he can ask them to reconsider their advice and if after reconsideration, the Ministers decided to act against the advice of the President they can do so under the" law. When the emergency was declared in 1975, the President did so on the advice of Prime Minister Indira Gandhi who had not consulted her Cabinet colleagues before advising the Presi­dent to declare the Emergency.

It will, however, be wrong to suppose that the President is a complete non-entity or an absolutely ineffective symbol. It has already been seen that in exceptional and abnormal situations he may have a marginal discretion in some matters, as for example, dissolution of the Lok Sabha, dismissal of Council of Ministers, appointment of the Prime Minister etc. in days of crisis, any of these matter may assume a great importance and his decision may have a profound impact on the country's destiny. In addition, he is empowered to be informed about the Country's affairs. The Prime Minister is obligated to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation.

The Prime Minister is also under a duty to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for. As the nominal head of the Union Executive, he has at least the right to be informed and to call for any information that he may desire. The President may require the Prime Minister to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister alone without consulting the Council of Ministers. This provision in effect is designed to enforce the principle of collective responsibility among the Ministers. In all these matters, obviously, the President acts on his own responsibility without ministerial advice. But, above all, the President can exercise a persuasive influence on the Ministers and help them by his advice and experience. Like the British Sovereign, the role of the President is "to advice, encourage and warn Ministers in respect of the recommendations which they make."

The influence of the President however, depends on his personality, and a man of character and ability can really exert a potent influence on the affairs of the governments. The President can make his influence felt by his advice, help and persuasion by using his knowledge, experience and disinterestedness to arrive at sound decisions on matters affecting the well-being of the people and not by his dictating any particular course of action to his ministers. In the ultimate analysis, however, it is the Council of Ministers which will prevail and not the Presi­dent. The President's role may at best be advisory; he may act as the guide, philosopher and friend to the Ministers, but cannot assume to himself the role of their master- a role which is assigned to the Prime Minister. The intention of the makers of the Constitu­tion was that the President should be a centre from which a benefi­cent influence should radiate over the whole administration. It was clearly not their intention that he should be the focus of any power.