President Independently Exercise

Should The President Independently Exercise Any Power?

Article 52 of the Constitution of India states that: “There shall be a President of India.” Subsequent to this is Article 53(1) which vests the executive power of the Union in the President.

The real executive power, however, is exercised by the Council of Ministers, headed by the Prime Minister. This is inferred from Article 74 which provides that “there shall be a council of ministers… to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice.”

Article 74(2) provides that the advice tendered by the Ministers cannot be inquired into by a court. Does this mean that there is no way to check whether the President actually pays heed to the advice? The answer to this has been laid down in SR Bommai v Union of India, where the court says that though article 74(2) bars the court from looking into the actual advice, inquiry may be made into the material of the advice tendered to the Council of Ministers in order to ensure whether the President has acted in accordance with it. Thus, Article 74(2) can't be viewed as providing the President discretion.

Scope Of The Project

Before proceeding with this project, I would like to define its scope. The question: “Shall the President independently exercise any power?” shall be answered only with respect to the President of India. Examples may be taken from Constitutions of other nations to illustrate an argument, however all such arguments shall be made to ascertain the position of the Indian President only and they shall not apply to other countries. This is because some of the arguments depend on our constitutional history, which is particular to our nation.

Summary Of Arguments

My view on the question is that no, the President of India should not act independently. The reasons for taking such a stand are the following:

1. Ours is a Parliamentary form of government. The role of the President in such a model is that of a titular head only.

2. In a republican government, the legislature by design is considered supreme. As a corollary to this, the executive should be subjected to the control of the legislature. The Indian Constitution renders the Council of Ministers responsible to the Parliament. Thus, it is the Council that holds the actual executive power.

3. A system where the Prime Minister and Council are in power ensures a higher degree of accountability as opposed to one where the President is in control.

4. The Constitution provides few situations where the President is required to exercise discretion.

5. A country cannot have two heads. It is only expedient in the interest of democracy that the actual power is given to the Prime Minister and his Council.

In A Parliamentary Government, The Prime Minister Is Meant To Be The Executive Head

India has a Parliamentary form of government which is based largely on the British Westminister model. In such a model, the supreme power rests on the Council of Ministers headed by the Prime Minister, while the British monarch is merely a titular head. The legislature is not completely separated from the executive as the Council is common to the latter and the former.

The position of the President of India is analogous to that of the British monarch. They are both titular heads and their power is limited. The actual executive head is the Prime Minister with the Council of Ministers under him.

These features of Parliamentary form are manifest in the Constitution, particularly in Part V. Thus it is the Constitution that provides that the President shall not exercise powers independently. It provides a particular framework for the working of the country, and its provisions clearly contemplate a system where the President's actions are subject to the deliberation of the Council of Ministers.

The fact that the Constitution provides that the President is not to exercise discretion may be seen from the following argument as well.

It is known that the position of a Governor vis-à-vis a state is similar to that of the President vis-à-vis the Union. However, the Constitution does create a difference between their powers. Article 163 provides that the Governor must act on the aid and advice of the Council of Ministers of the state with the Chief Minister at the head, except where the Constitution requires him to act in his discretion. It also provides that even when a question comes up as to whether a matter is within the discretion of the Governor or not, the Governor's decision and actions cannot be questioned. Article 74, on the other hand, makes no provision for the discretion of the President.

The wordings of these Articles make clear the intention of the Constitution. Although it is not ascertained as to why there is this distinction between the powers of the President and the Governor, it is clear that the omission of a provision for discretion of the President is deliberate. Why else would it not be provided in Article 74 but in Article 163 while the rest of the words are almost identical?

With these two arguments, I submit that the Constitution creates no room for discretion of the President.

In A Republican Government, The Legislature Is To Be Supreme. So The Executive Must Be Subordinate To The Legislature.

This Is Possible Only If The Council Is The Actual Executive

James Madison in The Federalist said: ‘In republican government, the legislative authority necessarily predominates'. As a corollary to this, the executive should be subjected to the control of the legislature.

India is a democratic republic where the legislature is elected by the people either directly or indirectly. The Council of Ministers, which actually holds the executive power, remains in force only as long as it enjoys majority in the Parliament. This is called the principal of Collective Responsibility and is enshrined in the Constitution. Once the Council loses the confidence of the majority, it is expected to resign as one entity.

Because in a republican government the executive is subject to the control of the legislature, it flows logically that the main seat of executive power should be the Council of Ministers. With this mechanism, there is hardly any room for the President. If the Council is the holder of executive powers, the legislature can impose checks on the executive. This is inherent in the design of the Constitution. Due to this, the policies of the executive have to be in tandem with those of the legislature. In India, because the ultimate sovereign are the people, and the people elect the legislature, it is only logical that the executive is subject to the confidence of the legislature and hence the people.

Further, the President is elected indirectly by the elected members of the Parliament. In a democracy, it bears more logic if the directly elected representatives hold more power than an unelected representative whose actions cannot be checked.

A System Where The Prime Minister And Council Are The Seat Of Executive Power Ensures Higher Accountability

Stemming from the previous argument is the fact that a government where the Prime Minister and the Council hold executive power ensures a certain level of accountability as opposed to one where the President is in control.

Because the Council remains in power as long as it has the support of the legislature, it is ensured that they cannot govern according to their will. This keeps the executive branch in check and makes sure its actions are in consonance with that of the legislature. This renders the Council, and hence the government, accountable to someone, and reduces the possibility of a tyrannous government.

As opposed to this, in a Presidential form of government or where all executive power rests in hands of the President and there is hardly any way to impose checks on him/her. He may be held accountable only during the period of the elections, but not during his tenure. This increases the chances of a totalitarian state and may lead to a severe compromise on democracy. Accountability is also compromised in such a government.

The Indian Constitution hardly provides for any mechanism to check the functions of the President, other than impeachment. If he is allowed to exercise powers independently, there would be no way to ensure his compliance with the policies of government or the laws of the nation. There would be a possibility of the country being governed according to the whims of one individual, and there may not be a mechanism to check that. What we may end up with, could be a form of dictatorial government.

A government where a President wields most of the power may, on the other hand, guarantee stability because he/she would remain in authority for their entire tenure if not impeached. In a Parliamentary form, dissatisfaction with the government could lead to a vote of ‘no confidence' against the Council by the Union Legislature, irrespective of tenure of the Council.

Can any division of power satisfy both these requirements of stability and accountability at the same time in a country like India? The answer would be no. The Preamble declares ‘the people of India' to be the ultimate sovereign. As a corollary to this, the executive must be held responsible to the people. This is done by empowering the legislature, the members of which are the direct representatives of the people, with the power to dissolve the executive. This very mechanism ensures accountability of the government to the people, at the cost of stability. If it is done away with to provide the latter, it would compromise on the former, which happens to be a core feature of our Constitution.

The Constitution Hardly Envisages Any Situations Where The President Is Required To Exercise Discretion

There are a few circumstances in which the President of India is required to exercise his discretion. These have been laid down in the Constitution and in many cases. However, these are situations where there is no other alternative but for the President to exercise discretion.

For example, he can appoint the Prime Minister in his discretion. But this is only because there is no existing Prime Minister and Council who would have advised him otherwise. This may be evidenced by the fact that the very wording of Article 75(1) states that the President shall appoint the Prime Minister, but the appointment of the other ministers should be done by the President on the advice of the Prime Minister.

All the rest of the President's powers, where it is possible for him to invoke the advice of the Prime Minister, have to be exercised with the aid of such advice. Even if the Constitutional provisions do not provide for this, cases have laid down the position on the various powers.

For instance, in Article 53(2), the powers of the President as the supreme commander of the Defence Forces of the Union is subject to ‘law'. Law in this article would mean an Act of Parliament. So the power of command over the defence forces given to the President is subject to the directions of the Parliament.

In Maru Ram v Union of India, it was laid down particularly that even though Article 72 and 161 provided that the President and Governor, respectively, had the power to grant pardon to certain classes of convicts, this could not be done against the wishes of the Council and the Prime Minister. It also affirmed the position of the Supreme Court in Samsher Singh v State of Punjab wherein the court, after much deliberation in the two previous cases of Ram Jawaya Kapur v State of Punjab and Jayantilal Amritlal Shodhan v FN Rana, finally settled the law on the matter stating that the President of India was only a constitutional head, and other than a few exceptional circumstances, could not exercise his functions without the aid and advice of the Council of Ministers.

The President also has power to issue ordinances when the Parliament is not in session. But this too has to happen with the advice of the Cabinet.

In Samsher Singh v State of Punjab, Justice Krishna Iyer gave a separate concurring opinion wherein he declared the law on this point by categorically enumerating the powers of the President that he could exercise in his discretion, without the advice of the Council of Ministers. These are:

“(a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House;

(b) the dismissal of a Government which has lost its majority in the House but refuses to quit office;

(c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step.”

He further clarifies that even in these cases, the action must be guided by the fundamental principles of democracy, in furtherance of which there would be an obligation to make an appeal to the House or the country.

A Country Cannot Have Two Executive Heads. It Is Only Logical That In A Democracy, The Choice Is Made In Favour Of The Prime Minister

This final argument is an ancillary one. To preserve the interests of a country, it must not have more than one executive head, that is, the actual executive power must not be vested in multiple places. In case such a government was to exist, the result would be constant conflicts between these two heads. There may be disagreement between them regarding certain policies or decisions. This would lead the entire country into a perpetual state of confusion. Further, any sort of decision would be preceded by a long period of deliberation wherein these heads would seek to arrive at a compromise. This may pose hindrances when the country is in a situation where it is necessary that decisions be taken promptly. This may also lead to a huge backlog of issues that need to be addressed, creating, in turn, a stand still in the running of the country.

To avoid such a scenario, it is necessary that the actual decision making power be vested in one place. In India, this could have been vested in the President or the Prime Minister.

Considering that India is a Parliamentary democracy, logically it seems proper that the supreme authority should be the head of the Parliament, as it is in Britain whose Westminister system is what the Indian Parliamentary system is based on.

Also, being a democracy, it seems to be more in the interest of the nation that the actual executive power be vested in a representative of the people. Since both these requirements are fulfilled by the Prime Minister and neither by the President, it is expedient in the interests of the country and the Constitution that the supreme executive power be vested in the Prime Minister.

Conclusion

In this project report, I have argued why the President of India should not independently exercise any powers. As opposed to a Presidential form of government, like the United States of America, where the seat of executive power is the President himself, in a Parliamentary form of government, the legislature is supreme. To maintain this allocation of powers, the executive is subjected to checks and controls of the legislature. In the Indian Constitution this is manifested in the form of collective responsibility of the Prime Minister and the Council to the Parliament. This system is designed so that the policy-making of the executive is in consonance with the acts of the legislature.

If the President of India were to be allowed to exercise power independently, this very purpose would be defeated. There would be no method to check the actions of the President, which could lead the country into a period of tyranny.

Further, in India, the President is not directly elected, as in the United States. This proves that the Indian President is not expected to have independent powers in the way the American President is.

With these arguments, I justify my position on the question. It is hoped that arguments have been successful in illuminating the reasons for such a conclusion.

Bibliography

Primary Sources

Statutes

1. Constitution of India, 1950

Judgments

1. Jayantilal Amritlal Shodhan v FN Rana AIR 1964 SC 648

2. Maru Ram v Union of India AIR 1980 SC 2147

3. Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549

4. Samsher Singh v State of Punjab AIR 1974 SC 2192

5. SR Bommai v Union of India AIR 1994 SC 1918

Secondary Sources

Daintith, Terence; Page, Alan; The Executive in the Constitution; Oxford University Press; (New York, 1999)

Hamilton, Alexander; Jay, John; Madison, James; The Federalist; The Modern Library Publishers; (New York, 2000)

Hansaria, BL; Does India need a new Constitution?; Eastern Law House; (Calcutta, 1998)

Jain, MP; Outlines of Indian Legal History; Wadhwa and Company; (Nagpur, 2005, 5th ed)

Patnaik, Raghunath; Powers of the President and Governors in India; Deep and Deep Publications; (New Delhi, 1996)

Shukla, VN; The Constitution of India; 11th ed; Eastern Book Company; (Lucknow, 2008)