Position of President

7/25/2019 Position of President

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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 administrationsubstantially in the same position as does the king under the English Constitution. e is nominal

or constitutional head of the !overnment. is position is not like that the President of the United

"tates of #merica who is the real executive head and exercise the powers vested in him under theconstitution on his own initiative and responsibility. $n the context of the legislative executive

relations established by the provisions of the Constitution% the presidential form of government

as prevailing is #merica is ruled out and it is parliamentary type of government that is providedby the constitution of $ndia.

$n estimating the constitutional position of the President of $ndia the relevant provisions are

#rticle &'% ()% and (&. #rt. &' vests the executive power of the Union in the President% but lie is

re*uired to exercise his powers in accordance with the constitution. #rticle () provides that thereshall be a Council of +inisters to aid and advise the President in the exercise of his functions.

#rt (&,iii- ays down that the Council of +inisters shall be collectively responsible to the ouse

of the People. There is no provision in the constitution which makes the President answerable tothe legislature.

There was no doubt in the minds of the framers of the Constitution that they were setting up a

parliamentary form of !overnment after the model of !reat /ritain. 0r. #mbedkar categorically

stated in the Constituent #ssembly 1the President is merely a nominal figure head1 that 1he hasno discrimination and no powers of administration at all1 and that the President of $ndia occupies

the same position as the 2ing of England. e was the head of the "tate but not of the executive.

e represented the nation bus3 did not rule the nation. e was the symbol of the nation% is place

in the administration was that of a ceremonial device on a seal by which the decisions of thenation were to made known.

"imilar observations were made by 0r. 4a5endra Prasad in the Constituent #ssembly. #ccording

to him the position of the $ndian President was that of constitutional head. #lthough there wereno 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 +.C. "etalvad% former #ttorney6!eneral of $ndia% was that the position of

the President of $ndia was like the 2ing of England and the !overnor !eneral in a 0ominion. e

could advise the ministers and influence their decisions but otherwise he was to act according to

their advice.

Prime +inister awaharlal 7ehru explained the position of the President in these words 18e

have not given our President any real power but we have made his position one of great authority

and dignity.1

The executive power is vested in the President3 he is only a formal or constitutional head of theExecutive. The real power is vested in the Council of +inisters on whose aid and advice the


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President acts in the exercise of his functions. The Executive has the primary responsibility for

the formulation of !overnmental policy and its transmission into law. $t is responsible for all its

action to the legislature whose confidence it must retain. The basis of this responsibility isembodied in #rticle (&,iii-.

e can do nothing contrary to their advice nor can he do anything without their advice. ThePresident9s role as a figure head is reflected in his indirect election. $f he were to be elected by

adult franchise% then it might have been anomalous not to give him any real powers and it wasfeared that he might emerge as a centre of power in his own right. "ince the power was really to

reside in the +inistry and in the :egislature and not in President% it was thought ade*uate to have

him elected directly%

# *uestion 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

0rafting Committee did examine this *uestion but dropped the idea of putting any such provision

as it thought it better to leave the matter to conventions. "uch a provision could not have beenenforced 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 responsiblegovernment 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 $ndia.

7or does the matter rest entirely on conventions. There are a few safeguards woven into thefabric 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 :ok "abha and this

principle necessarily leads to the gravitation of effective power into the hands of ministers. $f the

President ever takes it into his head to override the +inistry on any matter% it may resign 9en bloc9and thus create a constitutional crisis. $t is obligatory on the President to always have a Council

of +inisters and so it follows that when a +inistry resigns% the President must at once seek tohave an alternative +inistry which may be capable of commanding the confidence of the +ouse

and 5ustifying to Parliament% arid securing its approval of% the presidential action in refusing the

advice of the previous +inistry.

The President may find this very difficult in a situation where the previous +inistry en5oying theconfidence of the ouse had to resign due to his own conduct% as the ma5ority of the members%

who supported the previous +inistry% would still refuse to support any other +inistry. Parliament

has supreme power of legislation% taxation and appropriation of funds. President9s ordinance6

making power is meant for use only for a short duration and is sub5ect to ultimate Parliamentarycontrol. The President cannot carry on the administration of the country without the co6operation

of parliament as no more than six months could elapse between two parliamentary sessions. The

President9s power to declare an emergency is also sub5ect to the approval of two ouses ofParliament. #ll these constitutional provisions lead inevitably to one result% that there should be

in office a +inistry which is in a position to secure parliamentary approval% sanction and finance

for its policies and programme.


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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 Constitutions9 in the

constitutional provision relating to Presidential impeachment is flexible% enough to include notonly the formal provisions of the Constitution% hut also the conventions operating there under. $n

fact% in the Constituent #ssembly% 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+inisters. ?&> in a note to Prime +inister 7ehru expressed

the desire to act solely on his own 5udgments% independently of the Council of +inisters in thematter of giving assent to the /ills and sending messages to Parliament. This view was based on

a literal reading of #rticles >>> and AB% ignoring the underlying conventions. 7ehru consulted

#ttorney !eneral "etalvad and #yyara member of the 0rafting committee of the Constituent#ssembly% 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 +inisters% as #rt. () was all pervasive in character and the Council of +inisters

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.


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The controversy started again in >?B@. ?B@ while laying the foundation stone

of the $ndian :aw $nstitute building% President Prasad in his speech said that it was generally

believed that like the "overeign of !reat /ritain% the President of $ndia was also a constitutionalhead and had to act according to the advice of his Council of +inisters. e also posed the wider

*uestion as to how far the conventions of the unwritten /ritish constitution could be invoked and

incorporated into the written $ndian Constitution by interpretation. This speech raised a spate ofspeculation in the country or the *uestion of President9s relationship with his Council of

+inisters. The matter was% however% set at rest by 7ehru declaring at a Press Conference on

0ecember >&% >?B@% that the President9s remarks were only 9casual9 and that politically andconstitutionally% the President9s position conformed to that of the /ritish crown and that the

President was a constitutional head and had always acted as such.

Dor the third time a similar controversy was raised in >?B(. #s a result of the Dourth !eneral

Elections held in +arch >?B(% the Congress monopoly of power in the "tates was broken as insome "tate non6Congress governments took office. 8hen the *uestion of electing a new

President arose in +ay% >?B( the parties opposed to the Congress set6up their candidate as

against the Congress candidate% and one of the arguments that was put forth by these parties wasthat the President was not merely a figure6head 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 "tates.

This controversy has been raising its head time and again with akir usain% "an5iva 4eddi and!yani ail "ingh trying to assert their position and reacting sharply to the bondage of Council of

+inisters.

The Dorty6second #mendment of the Constitution in >?(B removed all doubts about the position

of the President under the $ndian Constitution. #rt. () as amended categorically provided that

1there shall be a council of +inisters with the Prime +inister at the head to aid and advise thePresident who shall is exercise of his functions% act in accordance with such adviceF9 Under this

#mendment% the President could not play the role of even an adviser or a guide.

# further #mendment of #rt. () was made by Dorty6fourth #mendment of the Constitution in>?(A% The clause that the President shall act in accordance with the advice of the Council of

+inisters with the Prime +inister at the head was not changed but a proviso was added to the

effect that 1the President may re*uire the Council of +inisters to reconsider such advice% eithergenerally or otherwise% and the President shall act in accordance with the advice tendered after

such reconsideration.1 The result is that the President has to act on the advice of the +inisters but

he can ask them to reconsider their advice and if after reconsideration% the +inisters decided to

act against the advice of the President they can do so under the1 law. 8hen the emergency wasdeclared in >?(&% the President did so on the advice of Prime +inister $ndira !andhi who had not

consulted her Cabinet colleagues before advising the President to declare the Emergency.

$t will% however% be wrong to suppose that the President is a complete non6entity or an absolutelyineffective symbol. $t 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 :ok "abha%

dismissal of Council of +inisters% appointment of the Prime +inister etc. in days of crisis% any of


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these matter may assume a great importance and his decision may have a profound impact on the

country9s destiny. $n addition% he is empowered to be informed about the Country9s affairs. The

Prime +inister is obligated to communicate to the President all decisions of the Council of+inisters relating to the administration of the affairs of the Union and proposals for legislation.

The Prime +inister is also under a duty to furnish such information relating to the administrationof the affairs of the Union and proposals for legislation as the President may call for. #s the

nominal head of the Union Executive% he has at least the right to be informed and to call for anyinformation that he may desire. The President may re*uire the Prime +inister to submit for the

consideration of the Council of +inisters any matter on which a decision has been taken by a

+inister alone without consulting the Council of +inisters. This provision in effect is designedto enforce the principle of collective responsibility among the +inisters. $n all these matters%

obviously% the President acts on his own responsibility without ministerial advice. /ut% above all%

the President can exercise a persuasive influence on the +inisters and help them by his adviceand experience. :ike the /ritish "overeign% the role of the President is 1to advice% encourage and

warn +inisters in respect of the recommendations which they make.1

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 canmake 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 well6being of the

people and not by his dictating any particular course of action to his ministers. $n the ultimateanalysis% however% it is the Council of +inisters which will prevail and not the President. The

President9s role may at best be advisory3 he may act as the guide% philosopher and friend to the

+inisters% but cannot assume to himself the role of their master6 a role which is assigned to the

Prime +inister. The intention of the makers of the Constitution was that the President should bea centre from which a beneficent influence should radiate over the whole administration. $t was

clearly not their intention that he should be the focus of any power.

Documents

Position of President