Essay: The Indian President is the Constitutional Head of the State

Taken as a whole, and on their face value, the Presidential powers are formidable indeed. There is hardly any other Constitution which gives such a long and detailed list of powers to its Chief Executive. The question, however, is how far all or any of these powers will be really exercised by him.

On the answer to this question will depend the real position of the President in the governmental system established by the Constitution, rather than what may appear from a literal reading of the constitutional provisions? It is here that we have to turn to the nature as well as the working of the Government of India.

It has already been pointed out that the form of government which the Constitution aims to establish is modeled on the British Parliamentary or Cabinet system and not the Presidential type of the United States. Under the British system, the monarch (the King or the Queen) is only a ceremonial head of the State.

The tremendous powers, technically ascribed to him, he does not possess. They belong to a convenient myth or “working hypothesis” called the Crown. Almost all the powers which theoretically belong to the Crown are in reality exercised by the Cabinet.

The position under the Indian “(institution too is the same, that the President of India is only the Constitutional Head of the State who is a necessary adjunct of Cabinet Government, his position and powers being more or less the e as those of the British monarch.

This question was discussed at length in the Constituent Assembly at different times and every me the point that was stressed most was the constitutional character of the Head of the State, “traducing the Draft Constitution, Ambedkar said:

“In the Draft Constitution there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of this functionary reminds one of the Presidents of the United States. But beyond identity of names there is nothing in common between the form of government prevalent in America and the form of government proposed under the Draft Constitution.

The two are fundamentally different. Under the Presidential system of America, the President is the Head of the Executive. The administration is vested in him. 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 executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device or a seal by which the nation’s decisions are made known.”

Participating in the discussion towards the end of the deliberations in the Constituent Assembly, resident Prasad said:

“We have had to reconcile the position of an elected President with an elected legislature, and in doing so, we have adopted, more or less, the position of the British monarch for the President. His position is that of a constitutional President. Then we come to the Ministers.

They are, of course, responsible to the legislature and tender advice to the President who is bound to act according to that advice. Although there are no specific provisions, so far as I know, in the Constitution it self 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 acts always on the advice of his Ministers will be established in this country also and the President, not so much on account of the written word in the Constitution, but as a result of this very healthy convention, will become a constitutional President in all matters.”

With this background in view one may examine the constitutional provisions that deal with the relationship of the President with the Council of Ministers in order to see how far these claims are justified. Articles 74, 75 and 78 are important in this connection. They provided:

(1) There shall 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 Forty-second Amendment of the Constitution (1976) modified this provision to the effect that in the exercise of his functions, the President “shall act in accordance with such advice”. The Forty-fourth Amendment (1978) however, seeks to add the following Proviso to Article 74(1): Provided that the President may require the Council of Ministers to reconsider such advise, either generally or otherwise, and the President shall act in accordance with the advice tendered after; such recommendation.

(2) No court of law has power to enquire as to whether any advice was given by the Ministers and if so, what it was.

(3) The Prime Minister shall be appointed by the President and on the advice of the Prime Minister; the President will appoint other Ministers.

(4) The Ministers shall hold office during the pleasure of the President.

(5) The Council of Ministers shall be collectively responsible to the House of the People.

(6) It shall be the duty of the Prime Minister (a) to communicate to the President all decisions of the Council of Ministers; (b) to furnish such information relating to the administration of the Union and proposals for legislation as the President calls for; and (c) to submit for the consideration of the Council if the President so desires, any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

These provisions, taken as a whole, fairly establish the claim of Ambedkar and his colleague^ that the authors of the Constitution wanted to adopt the British pattern of Cabinet government. At the same time, it is also clear that they did not want to use expressions which would take away the flexibility that is the heart and soul of the British system.

The difficulty of the Drafting Committee was to State precisely in a written Constitution certain well-established constitutional conventions that regulate the relationship between the King and the Cabinet in Britain. This is why, while certain provisions convey their meaning in unmistakable terms, there are others that are not equally clear.

Thus, it is quite clear that, for the exercise of his functions, there must be a Council of Ministers with the Prime Minister at the head to aid and advice the President. But does this mean that the President is always bound by the advice of the Council? Ambedkar answered it in the positive.

“The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice, nor can he do anything without their advice.” The following proviso of Article 74(1) is particularly significant.

According to those who supported Ambedkar, “It is the Prime Minister’s business, with the support of the Ministers, to rule the country and the President may be permitted now and then to aid and advise the Council of Ministers. Therefore, we should look at the substance and not at the mere phraseology which is the result of conventions.”

“Provided 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.”

Discussing the significance of this proviso, the Law Minister who piloted the Amendment Bill in Parliament said: “This proviso seeks to make explicit what was implicit before the Forty-second Amendment was passed.”

In a Parliamentary system of government, the executive is responsible to the legislature. As such the Council of Ministers hold their offices not as a grace of the President (or literally during his pleasure) but because of the confidence of Parliament which they enjoy.

They go out of office not because the President has lost confidence in them, but because they have lost the confidence of Parliament to which they are jointly and directly responsible. There can be no conflict between the will of Parliament, the representative of the electorate, and that of the President.

If at all there arises such a conflict, the will of Parliament ought to prevail. That is why the Constitution vests in Parliament the power to impeach the President. Therefore, so long as the Council of Ministers has the confidence of Parliament, the President is literally bound by their advice and, in reality; it is the President who is cast in the role of an adviser.

This view about the position of the President vis-a-vis the Council of Ministers is shared also by the Supreme Court which expressed its opinion in the following language:

“In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is 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 the 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; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”

The experience of the first twenty-nine years also clearly indicates, that the President is, in reality, only the constitutional head of the State. On the eve of the 1951-52 General Elections in India, President Rajendra Prasad sent a message to Parliament explaining his views on the Hindu Code Bill which was then under its consideration.

In that message he said that personally he was opposed to the passing of the Bill but if adopted by Parliament, he would give his assent to it, however reluctant that might be. During the first twenty-seven years the country has had six General Elections each followed by a reconstitution of the Council of Ministers.

During this period there were also major political and economic development programmes. The States Reorganisation Act, 1956, has brought about a complete redrawing of the political map of India. There were over forty constitutional amendments some of which were of a far-reaching character. In all these cases, the decisions were of the Ministry (the Cabinet) and there was never a question of the “President exercising executive powers and the Ministers only advising him”.

Fortunately for India, there was during this period a stable government, one that always enjoyed the confidence of Parliament.

The situation, however, underwent a drastic change in July 1979 when the then ruling Janata Party collapsed and there was no political party with a clear majority in the Lok Sabha. That gave the President an opportunity, for the first time, to use his discretion and appoint a Prime Minister of his choice.

But the Prime Minister so appointed could not win the confidence of Parliament and subsequently the Lok Sabha was dissolved by the President and new elections ordered. The elections to the Lok Sabha in 1980, fortunately, produced a large majority for one of the contesting parties, paving the way for a stable government.

Between 1985 and 1991 there were a few occasions when the President did not act in accordance with the advice of the Council of Ministers. For example President Zail Singh did not sign the Postal Bill although it was passed by both Houses of Parliament and submitted to him for his signature.

There were serious differences between the Chandra Sekhar Ministry and President Venkataraman during the time when that Ministry was functioning as a caretaker government in 1991. In 1996 President Shankar Dayal Sharma declined to promulgate two Ordinances which were proposed by the Government on the eve of the General Elections of 1996.

These related to the introduction of job reservations for Dalit Christians and shortening of the campaign period for the Lok Sabha poll. However, these were only exceptions which make the constitutional character of the President’s office abundantly clear.

In 1997 President K.R. Narayanan sent back to the cabinet headed by I.K. Gujral the proposal to declare constitutional emergency in Uttar Pradesh and dismiss the Kalyan Singh Ministry as advised by the Governor of the State.

The President was against the dismissal. Although the cabinet could reiterate its decision and present the proposal again to the President for his approval in which case, the President was bound to sign it. But the cabinet in this case accepted the President’s advice and did not proceed further in the matter.

Again, in 1998, the President sent back the proposal of the Vajpayee Government to declare constitutional emergency and dismiss the Rabri Devi Government of Bihar as advised by the Governor of the State.

In 2006 President Abdul Kalam sent back the Office of Profit Bill that was passed by Parliament and sent to him for his assent. The President’s message to Parliament was to reconsider the Bill with a view to effecting certain changes which he had suggested in his message.

He had given his reasons in support of his suggestions. The Parliament, however, after considering the views of the President, passed the Bill again without any changes and sent it for the assent of the President which he did.

These are, however, only exceptions which make the constitutional character of the President’s office abundantly clear.