Is the President of India a mere Constitutional Head? Is he bound to accept the advice of the Council of Ministers? Discuss.
Discuss the constitutional relationship between President of India and his Council of Ministers. Is the President bound by the advice of the Prime Minister on all matters?
Explain the position of the President of India and compare it with that of the President of America and the British King.
Ans. Position of the President of India.—The Constitutional Theorists have divided the governmental machinery into three parts :
(1) Legislature, which makes laws,
(2) Executive whose duty and power is to see that laws are faithfully obeyed and
(3) Judiciary which interprets the Law and the Constitution. In Parliamentary form of Government, such as in India and United Kingdom, the separation of powers and mutual independence of these organs—Legislative, Executive and Judiciary—is less than in Presidential forms of governments as in U.S.A. The executive head of a parliamentary government is nominal, symbolic or constitutional head and the real executive is the Council of Ministers who are responsible to the Parliament whose members are the representatives of and elected by the citizens. The President of India is thus a constitutional head of the Union of India.
The Constitution of India provides that
(1) there shall be a President of India (Article 52) and that
(2) the executive power of the Union of India shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution [Article 53 (I)].
(3) The Constitution provides for the existence of a Council of Ministers headed by a Prime Minister to aid and advise the President [Article 74 ( I )].
(4) The prime Minister shall be appointed by the President and other ministers of the Council by the President on the advice of the Prime Minister, and
(5) The ministers shall hold office during the pleasure of the President (Article 75). Though a literal interpretation may impress a reader that President of India is the real highest executive who can assume dictatorial power to any extents, yet the world-wide constitutional traditions and concepts of parliamentary system as repeatedly viewed and held by the Supreme Court is that the President and also Governors in India are merely constitutional heads with their position more or less akin to the British Crown. Thus it is clear from the various decisions of the Supreme Court that the President is merely a ceremonial head and the real power lies in the Council of Ministers. !See Ram Jawaya v. State of Punjab, AIR 1955 SC 544; V. N. Rao v. Indira Gandhi, AIR 1971 SC 1002; Samsher Singh v. State of Punjab, AIR 1974 SC 2192; MA, Bishamber Dayal Chandra Mohan v. State of U.R, AIR 1982 SC 331. After the Constitution 42nd Amendment Act, 1976 the amended Article 74 makes it obligatory for the President to act in accordance with the advice given by the Council of Ministers. But a proviso to clause (1) of Article 74 provides 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 such reconsidered advice. This Amendment though vests the actual power in the Council of Ministers but recognises the essential role of the President that he can advise and guide the Government. In view of the following provisions the position of the President is clear: (I) Article 75 (3) says that the Council of Ministers is collectively responsible to the House of the People for the executive functions. How can the Council be made responsible, for an act which is not performed by it but by the President? (2) Article 78 (a) says that it shall be the duty of the Prime Minister to communicate to the President on any matter on which a ‘decision’ has been taken by the Council of Minister. From the above provisions, it follows that the Prime Minister not only gives “advice” to the President but also can take “decision” which is binding on the President. (3) The President is bound by the advice of the Council of Ministers even after the dissolution of the House of the People. Even after the dissolution of the House, the Council of Ministers remains in office and advises the President in exercise of his powers. Any exercise of powers by the President under such circumstances will be unconstitutional in view of Article 74 (1) of the Constitution [U. N. Rao v. Indira Gandhi, AIR 1971 SC 10021.
President of America.—The American President is the real executive chief. He is directly responsible to the people of his country. He is not answerable to the Congress. He is irremovable by the Legislature. He holds his office for a term of four years. During this term of his office, he cannot be compelled to resign even though he becomes wholly incompetent to discharge his executive functions. The Secretaries (like minister in India) of the executive department are appointed by the President of America himself and are responsible to him. Article II, Section 1 of the American Constitution says that the “Executive power shall be vested in a President of the United States of America”. It is obvious that Section I merely “confers” the executive power on the President. The executive powers of the President are not specifically mentioned in the Constitution. However, despite the decision in the Steel Seizure case, (1952) 343 U.S. 57, it has been repeatedly held that this section does give the President power that has never been defined nor can ever be defined since its scope depends largely upon circumstances.
The President can—
(a) issue proclamations of neutrality;
(b) remove executive officials from office;
(c) take emergency actions to protect the country;
(d) make executive agreements with foreign countries, although such powers are not specially granted to him by the Constitution.
King of England.—The King of England is titular head of State. His office is hereditary. He is Supreme Commander of armed forces, head of executive and all laws are passed with his assent. He exercises his functions and prerogative powers on the advice of the Council of Ministers. He appoints Judges, grants pardon and treaties are made in his name. Though the Indian and American President can be removed from office by impeachment in the legislature for breach of law or Constitution, the British Queen (or King) cannot be so dethroned.