The President under the Constitution

By Dr Chaganti Nagaraja Rao

Dr Chaganti Nagaraja Rao
India became a Republic on January 26, 1950. The first President Dr Babu Rajendra Prasad who held office for more than two terms tried to assert that the President could act independently even disregarding the advice of the Council of Ministers. When Nehru decided to press for the passage of the Hindu Code in the interim Parliament of 1950-51 to enact a measure of far-reaching importance, Rajendra Prasad boldly and rightly thwarted the move and wanted a mandate from the electorate. It is often heard that Rajendra Prasad rather endured than enjoyed his tenure as President to avoid an open controversy in the interest of the country.
Dr Sarvepalli Radhakrishnan, the second President of India took a detached and yet a deep and comprehensive look at the political panorama of the country. The relations between Radhakrishnan and Nehru were most cordial but differences cropped between them on certain matters. It was marked by critical events when the country went through the agonizing ordeals of the death of two Prime Ministers, two wars and two droughts. When the Chinese attacked the North-Eastern Frontiers, he didn’t hesitate to attribute the retreat of India in the Indo-China war of 1962 to our credulity and negligence. Radhakrishnan played a stabilising role through all these turmoils.
The experience of the Prime Minsters with the first two Presidents led the PMs to choose their own comrades so that the PM’s will would prevail and conflicts between the two heads of the country could be avoided. That was how Dr Fakhruddin Ali Ahmad became the President.  He proved that the President was nothing more than a rubber stamp, simply obeying the dictates of the Prime Minster. He did not hesitate a second to sign the bill to impose emergency in July 1975 without considering its pros and cons.
His successor Dr Neelam Sanjiva Reddy, who was elected unopposed, however, asserted that the President could act on his own as and when the situation warranted. His tenure witnessed internal and internecine quarrels in the ruling Janata party that led to the change of Prime Minster, when he played a decisive role and installed Chaudhary Charan Singh as Prime Minister in July 1979. When Charan Singh recommended the dissolution of the Lok Sabha and order of fresh elections even without facing the Parliament at least once, Sanjiva Reddy dissolved the Lok Sabha on his advice, a hasty decision which met with severe criticism from all over the country.
Gyani Zail Singh’s tenure faced a critical problem. Prime Minister Indira Gandhi was assassinated on October 31, 1984 and her successor incumbent was to be appointed. He took the advice of seniors in the party and appointed Rajiv Gandhi, the son of Indira Gandhi as Prime Minister and the succession was smooth. President Zail Singh had come very close to taking up cudgels against the then Prime Minister Rajiv Gandhi and was prepared even to threaten to dismiss him. He asserted his independent position by refusing to give his assent to the Postal Bill. Similarly R Venkataraman returned to the Government the Bill seeking to give pension to Members of Parliament even with just a year of term. 
Dr Shankar Dayal Sharma (1992-97), KR Narayanan (1997-2002), Dr APJ Abdul Kalam and Mrs. Pratibha Patil maintained normal relations with the Prime Ministers of their times. Pranab Mukherjee maintained the dignity of office.
In view of the importance of the style of working in the highest office of the land since its inception, it would be of interest to study the role the President has to play under the Constitution.
Questions relating to the relationship between the Prime Ministers and the Presidents have been a subject of controversy right from the election of the first President. There were differences between certain Presidents and Prime Ministers on certain crucial issues. The fundamental question is whether the President can act independent of the decision of the Council of Minsters or is bound by its advice. According to an article by President VV Giri in The Illustrated Weekly of India (during 1981), the President is a moral authority and defender of the Constitution of India. As such he should not turn into a rubber stamp without independent powers.   
The provisions which deal with the status, powers and functions of the President of India are contained in Articles 52, 53, 60, 74, 75 and 78.
Article 52 of the Constitution says that there shall be a President of India. It is an office of the highest honour and dignity. According to Article 53 (1), “The executive power of the Union shall be vested in the President of India and shall be exercised by him either directly or through offices subordinate to him in accordance with this Constitution.” The expression “either directly” empowers the President to act on his own. As pointed out by Durga Das Basu, “There is no provision in our Constitution making it obligatory upon the President to act only in accordance with the advice tendered by the Council of Ministers.” (Commentary on the Constitution of India, 5th Edition, Volume I, p 32). All executive action of the Government of India is taken in his name. The supreme command of the Defence Forces is vested in him and is to be exercised in accordance with law, as specified in Articles 53 and 57. As per Article 75 the President appoints the Prime Minister and on his advice the other Ministers. The Council of Ministers holds office during the pleasure of the President. 
According to Article 74 (1), “There shall be a Council of Minsters with the Prime Minster as the head to aid and advise the President in the exercise of his functions.” This clearly means that the Council of Minsters (including the Prime Minster) can only assist the President in discharging his duties, but cannot forcibly impose their will on him, reducing him to the status of a subordinate to the Union Cabinet. Charles Henry Alexeandrowicz says: “The provisions of Chapter I of Part V of the Constitution relating to the Executive convey prima facie the impression that the President of India, the head of the state, is also the real head of the Executive and the Ministry is only there to aid and to advise him in the exercise of his functions” (Constitutional Development in India, page 127). Durga Das Basu expresses a similar view when he says, “So far as the text of our Constitution itself is concerned, there is no mandatory provision to compel the President to act according to the advice of the Minsters, and there is no corresponding English rule, requiring the President to act only under the counter-signature of a Minister.”
President of India is an integral part of the Parliament. He summons the two Houses of the Parliament to meet. He prorogues their meetings and is empowered to dissolve the Lok Sabha (Art. 85). All Bills passed by the Parliament must receive President’s assent in order to become laws. The President can promulgate Ordinances, on being satisfied about the need for immediate action when both Houses of Parliament are not in session (Art. 123) which has the effect of temporary legislation. The President is empowered to summon the joint session of both Houses of Parliament in case of final disagreement between them on a Bill.
The President under Article 354 may restrict or prohibit the distribution of revenues. The President may suspend the enforcement of Fundamental Rights under Article 359, when a Proclamation of Emergency is in operation. In the case of failure of Constitutional machinery in any State he is empowered to impose President Rule in that state.
The comparison between the English monarch and the President of India should be understood correctly. In England, monarchy was sold to Democracy through centuries, and conventions carry on the whole governmental functioning. The King of England has no role to play in the governmental activities unlike the President of India. The British monarch being a hereditary ruler cannot possess the same powers as the Constitutional Head of India, who is duly elected by the directly elected representatives of the people. An even distribution of powers between the President and the Prime Minister to ensure smooth working of the Constitution might be the idea of the framers of the Constitution.
The powers of the Prime Minster of England have grown gradually over the centuries and those of the monarch were reduced by an equal degree. But in India such is not the case. The President, under the Constitution of India, forever remains the Supreme Authority as and when the situation calls for. But by a false interpretation of the meaning and significance of the provisions relating to the Union Executive, in the course of the working of our Constitution, our politicians devalued the highest office of the land to the extent that it has become only an office of economic superfluity without any significance attached to it, which poor India cannot afford.
The Constitutional framers have not incorporated any express provision requiring the President to act only in accordance with the advice of the Council of Ministers in all cases and circumstances. The expression ‘aid’ in the Constitution only means “to help the President by way of suggestions and providing the required material in taking a decision.” But this can neither add to the rights of the Council of Minsters nor affect the position of the President.
What contributed to the declining powers of the President during the last few decades or so is a set of circumstances combined with the import of English conventions into Indian Governmental activities. But conventions grow out of people’s political sentiments and over several years of experience of the working of the Constitution and they operate in areas not covered by any law validly made but conventions cannot be imported from one political system into another political system.
Article 74 (1) confers the constitutional right on the Council of Ministers to advise the President and the same article imposes a constitutional duty on the President to consider the advice and give due weight to such advice. But the President being a single individual, cannot pay attention to each and every detail of the day-to-day administration. It has, therefore, become a practice to leave all such matters to the Council of Minsters without President’s interference. But this practice cannot, however, alter his position as and when the need for his direct action arises. Further, Article 74 (1) clearly means that the functions of the Council of Ministers are of advisory nature only. Under the provisions of the Constitution, the President is not bound to accept each and every piece of advice tendered by the Union Cabinet unless he is personally satisfied, and he can reject any advice if it is in violation of any provision of the Constitution.
Although Article 74 (1) requires the President to act with the aid and advice of the Council of Ministers in the discharge of all his functions, there are certain areas where the President may still have to use his own judgement and wisdom. He appoints the Prime Minster under Article 75 (1) in a situation where no single party or coalition commands the clear support of the majority of the members of the Lok Sabha. Appointment of a Prime Minister of his choice in case of sudden death of the incumbents is the exclusive power of the President. Dr S Radhakrishnan appointed Gulzari Lal Nanda, the senior most member, both times when the office fell vacant after the death of Jawaharlal Nehru and Lal Bahadur Shastri till the new incumbent was elected. After Indira Gandhi’s assassination President Gyani Zail Singh appointed Rajiv Gandhi duly accepting the advice of seniors in the Cabinet.  
He dissolves the Lok Sabha  under Article 85 (2) (b) on the advice of the Council of Ministers that may have lost the majority support in Lok Sabha or against whom a vote of no-confidence may have been passed. He dismisses ministers under Article 75 (2) in case the Council of Ministers loses the confidence of the House but refuses to resign.    
Under the Parliamentary democracy of India, the President is the head of the Union while the Prime Minister is the head of the Government. Article 53 vests the executive power of the union in the President. It clearly means that though the executive powers are exercised by the Prime Minister and his/her respective council of Ministers they are subject to approval of the President. The President, therefore, exercises powers “directly or through offices subordinate to him in accordance with the Constitution.” He has the most important responsibility of “upholding the sovereignty and integrity of India.” The president, according to the Constitutional framers, is not a titular head of the Government without any powers to exercise, much less a rubber stamp, simply putting his signature and stamp wherever the Prime Minister desires.  It is also clear that nothing therein makes ministerial advice binding on the President. Articles 78 makes it mandatory for the Prime Minister 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 Minster has to furnish information on these matters whenever sought. Article 77 (3) authorises the President to “make rules for the more convenient transaction of the business of the Government of India, and for allocating among Ministers of the said business.” The President has, therefore, discretion to exercise executive power vested in him directly. The Council of Ministers performs an advisory role; he is free to accept or reject any advice tendered to him.  The President enjoys discretionary powers relating to the choice of the Prime Minister, the dismissal of a Government when it has lost its majority in the House but refuses to quit office; and dissolution of the House when an appeal to the country for a fresh mandate is found necessary. All these provisions, when considered together, bring forth the idea of the Constitutional framers that the President is a real but not formal head of the Union.  
The President under Article 111 has absolute Veto power. When a bill is presented to President for his assent, he may give his assent, may withhold his assent, or may return the bill. The objective of veto power is to prevent hasty and ill-considered legislation and to prevent a legislation which may be un-constitutional. 
Article 53 (1) read with Article 75 would clearly mean that the real executive power is to be exercised by both the organs jointly. This is in line with the British convention that “King in Parliament is the Sovereign.” But while it is obligatory on the British Monarch to accept the advice of the Cabinet, it is not so in the case of the President of India, since it is expressly provided by Article 75 (2) that the Minsters hold office during the pleasure of the President. It is further stated in Article 74 (2) that “The question whether any, and if so what, advice was tendered by Minsters to the President shall not be inquired into in any court.” It clearly means that the President is empowered to act on his own in certain circumstances. BN Rao says about this particular provision that, “it follows that even if in any particular instance the President acts otherwise than on a Ministerial advice; the validity of the Act cannot be challenged in a Court of Law on that ground” (Indian Constitution in the Making).
Our first President Dr Rajendra Prasad had repeatedly said that he did not find a provision laying it down in so many terms that the President of the Union was bound to accept and act upon the advice of the Ministers. Stressing the need to clarify the President’s function of giving assent to legislation independently, Dr Rajendra Prasad said: “He may under certain circumstances return a Bill for further consideration by the legislature concerned and suggest amendments.” He stated with regard to the Hindu Code Bill: “My right is to examine it on its merits when it is passed by Parliament before giving assent to it there. But if I find that any action of mine at a later stage is likely to cause embarrassment to the Government I may take such appropriate action as I may feel called upon to avoid such embarrassment consistently with the dictates of my own conscience.” (Constitutional Documents-Munshi Papers, Vol. I, pp.578-582).
The President holds his office by virtue of his election for a limited period of time and is liable for impeachment for his acts in violation of the Constitution unlike the Monarch of England who, in course of time, has lost all his/her powers to the Parliament. The King of England cannot play a vital role in resolving conflicts between the States and the Centre, and between the States themselves. In matters of State legislation, the President has to act independently, for otherwise, the Union Ministry may impose its will on the state by recommending withholding President’s assent to the Bills passed by any State Legislature, particularly when the party in power in the State is different from the party in power at the Centre. If in such matters the President has to be bound by the decision of the Union Cabinet awkward situations may arise leading to administrative impasse.    
What our Constitutional fathers wanted would be that the President should act like the King of England in ordinary times and like the President of the United States of America in certain circumstances which may call for his direct action. While comparing the President of India with the British monarch, Dr Rajendra Prasad says: “I am of the view that the Constitution does not admit of a wholesale importation of all practices and conventions of the British Constitution.” Dr KM Munshi rightly says: “In adopting the relevant provisions the Constituent Assembly did not understand that they were creating a powerless President. Several members of the Constituent Assembly thought that the President was being given too much power. The assurance given by Dr BR Ambedkar and Sir Alladi Krishnaswamy Iyer that he had no such power, were their personal opinions. It was not the unanimous opinion of the house” (The President of India under the Indian Constitution, Second Edition, 1967, p 9).
There cannot be responsibility without power. The President has got the responsibility of safeguarding the nation, defend, preserve and protect the Constitution and ensure smooth and harmonious functioning of the various organs of the Government, viz., the Legislature, the Executive and the Judiciary which are united to one another through the President. Such a high dignitary, representing the entire nation, cannot be made powerless over the functioning of the entire Government, much less a mere figurehead simply remaining a silent spectator of the political games of the elected public representatives, leaving the nation to its fate and spending a comfortable life in the luxurious habitat of the Raisina House or Presidential palace (Rashtrapati Bhavan).
According to KM Munshi, “The Constituent Assembly chose neither the British Parliamentary Cabinet form of Government, nor the American Presidential form but a composite form in which the Parliamentary form of Executive and a President with power and authority were to function within the framework of the express provisions of the a written Constitution.”  He further states: “The provisions were the outcome of a definite decision that the President should be an independent organ of the State representing the whole union and exercising independent powers.”
More than sixty seven years of experience of the working of the Constitution proved beyond doubt that India needs a powerful President to defend the Constitution and the people from the political vagaries and executive tyranny. In a country like India with a federal structure of Government, where there are no well-established conventions and practices, a reserve power above the Union Cabinet, who is not bound by party affiliations and obligations of favouritism, is a must. A powerful President is an assurance of safety to the Nation and a symbol of defence of the fundamental law of the land.

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