President Acting Independently Under the Constitution

The general intention of the framers was to project the image of the President but ultimately they failed precisely to spell out in the text of the const. The position, in terms of the actual provisions of the const, is that the President is under obligation to be guided by the intentions of the framers, and the aid and advice of his council of ministers; but in certain cases, the President may use his own discretion to reach to a conclusion. The provisions of the const in this regard are themselves in conflict.

Whether the President has to act in accordance with the ministry’s advice or has some discretionary power in him is often debated. Taken literally, the phrase ‘aid and advice’ seems to suggest that the ministers have to function as the President’s advisors, and that it is for the latter to make decisions. This is also supported by the view that ‘aid and advice’ is a term of art, which has become a part of the idiom of parliamentary democracy.

Can the President act independently under the Indian Constitution? Yes, and no.

Through this research paper, the researcher aims to answer this question while highlighting some of the powers of the President. Some exceptional cases where the President can act solely on his individual judgment have been described, however, in practice, the President always consults an authority even in these cases. The researcher aims to establish the relationship between the President and his council of ministers by proving the necessity and the very essence of the existence of the council of ministers. However, the researcher in no way agrees to the notion of the institution of the President being of merely “rubber stamp” value.

Some Exceptional circumstances when the President can act independently under the Constitution.

Article 74 [1] expressly uses the word “shall”, thereby making the existence, and hence the aid and advise of the Council of Ministers to a large extent essential. Though literally the word indicates an absolute imperative, it was pointed out by the Supreme Court [2] that there are still a few cases wherein the President of India can use his own discretion, and is not bound to act in accordance with the advice rendered by his council of ministers.

Choice of Prime minister

Article 75 (1) of the Constitution vests the power to appoint the Prime Minister of India in the President. There has to be a Prime Minister in office at any given point of time. In England, it is settled that though the crown has to act as a constitutional ruler, only on the advice of his council of ministers, through the Prime Minister, there are certain exceptional circumstances wherein the advice of the Prime Minister is not available, and, therefore, the crown is entitled to act in the exercise of his own judgment [3] . In case the Prime Minister dies, or resigns, consequently dissolving the council of ministers, a new Prime Minister has to be appointed. In such a case, therefore, the word ‘shall’ in article 74(1) cannot be construed as imperative.

The position would be same where a council of ministers is unseated by a vote of no confidence and it resigns, but there is no possibility of forming an alternative government, commanding confidence of the majority in the house of people. [4] It has been held by some courts [5] that in such a situation, the President may select some member of the house who, in his estimation is more likely to command a majority in the house, and ask him to from a council of ministers, and that even if the latter fails to secure a vote of confidence or otherwise establish his command over the majority, he may be asked to continue with his council of ministers until another house is elected after dissolution. [6]

Thus, it is very clearly seen that the appointment of the Prime Minister definitely involves the President’s own individual judgment, and that in such a case, the President can act independently under the Indian constitution.

Power of dissolution

Article 85(2)(b) [7] empowers the President to dissolve the house of people at any time, prior to the expiry of its usual term provided in article 83(2) [8] .

A prime minister in office can suggest the dissolution of the house to the President. The President can ask the council to re consider, but he cannot refuse to oblige the Prime Minister. Since the advice of the Prime Minister is available, he must be obliged. However, the President is bound to the extent of definitely acting on the advice of the prime minister. He can put forward the proposition of dissolution in the house, to see whether the house agrees that there should be dissolution or the house agrees that the affairs should be carried on with some other leader without dissolution [9] . If the President finds that the feeling was that there was no other alternative except dissolution, he would as a constitutional President undoubtedly accept the advice of the pm to dissolve the house. [10]

The first time the power of dissolution was exercised after the 42nd amendment was on January 19, 1997 [11] , when the President dissolved the Lok Sabha over one year before the expiry of its term, which had been extended during emergency after it normal term had expired in March, 1976 [12] .

The advice of the pm stemmed from the reactions in the country to the arrest of political leaders under the emergency.

The President can refuse the prime minister’s plea of dissolution, mostly on grounds of supposed perils to democracy, though this does not usually happen as the pm is more extensively involved with the politics of the State, and therefore knows what is most needed at a given point of time.

Necessity under the constitution to act in accordance with the advice of some other authority.

In many cases, the opinion and judgment of the President is required, although the President is not bound by the advice of his council of ministers in these cases. However, he is bound by the advice of some other authority. For instance, article 103(2) [13] of the constitution uses the word shall. Hence binding the President to act in accordance with the advice of the election commission. The ‘shall’ in this article overrides the ‘shall’ in article 74 [14] , and this is an exception engrafted in the constitution itself.

In the matter of determination of the age of a high court judge, under article 217(3) [15] , the constitution says that the President must consult the Chief Justice of India. Nothing in the provision binds the President by the chief justice’s advice. However, in Samsher Singh v. State of Punjab [16] , Justice Iyer, was of the opposite view. He believed that the last word in such a sensitive matter must belong to the chief justice of India. [17]

Therefore, it can be seen that the President doesn’t always have to act under the guidance of his council of ministers as the constitution itself prescribes certain other authorities to be consulted by the President in particular cases.

The President’s power to pardon

An act of mercy, forgiveness, clemency can be said to be an act of pardon. A number of factors including the age of the accused, the amount of time spent in jail as an under-trial, circumstances in which the crime was committed, his present physical condition, etc. guide the President while considering the plea for pardon which may be granted only when the President is objectively satisfied.

Article 72 [18] empowers the President to allow pardon. The power of pardon exists to prevent injustice, whether from unjust, harsh laws, or from judgments which result in injustice. Hence, such a power has been vested in an authority other than the judiciary.

The power to commute (death sentence to life imprisonment), power to remit punishment, and power to reprieve (delaying the execution of the sentence) are all included within the power to pardon.

Empowerment under article 72 has been reviewed in two landmark judgments, Maru Ram v. Union of India [19] , and Kehar Singh v. Union of India [20] .

In the former, the court observed that there may be several occasions to grant pardon, but the rarest of rare cases where consideration is driven by irrationality, irrelevance, malice or discrimination, the court shall examine the exercise.

In the latter judgment, the plea for pardon by Indira Gandhi’s assassin was rejected while upholding the principle that pardon is not a private act of mercy from an official possessing the power to do so. It falls within the constitutional scheme, and must be granted only if public welfare will be better served by commuting the sentence previously fixed.

The power to grant pardon is the sole discretion of the President, though not official, but in this case too, the President has to consult his council of ministers. The President must do what is best for national interest, and he must not hurt the sentiments of the public by any action taken by him, and therefore, he does seek ministerial advice before allowing pardon to any accused.

Proclamation of emergency and failure of constitutional machinery in a state

It has been argued that if such a drastic power as the suspension of a constitutional government in a state is wielded by the President on the advice of his council, it would undermine the federal nature of the constitution of India, particularly where the government of the state is manned by a party other than that to which the union ministry belongs. [21]

However, State of Rajasthan v. Union of India [22] , upholds a contrary view by silencing this contention by the importation of ‘shall’ in article 74(1). [23]

Proclamation of Presidential rule under article 352 [24] or article 356 [25] can be made if the President is satisfied as to the existence of a threat to national security (for proclamation under article 352); or there is reasonable cause to believe that the constitutional machinery in the state has failed (for proclamation under article 356). The question is whether this ‘satisfaction’ of the President is sufficient and justifiable. This satisfaction must be an objective one, based on the reports and evidences submitted to the President. Even in case of an emergency, the advice of the prime minister is always available, and therefore, acting solely on individual discretion shall be considered unlawful on the part of the President. There is enough precedent and law to argue both sides of the case, however, the prevalent position binds the President by ministerial advice.

Considering all the above “exceptional” cases, one can deduce that the President can act independently under the constitution in certain cases as per the law. The issue is, does he? In effect, the President never takes any decision without consulting his council, except of course, the appointment of the Prime Minister. However, the President always seeks guidance and advice from some authority or the other. The truth is that to govern a country of over one billion people, single handedly, and without the direction of any other able body, is quite an impossible task to achieve.

But, if, subject to a few exceptional cases, the President of India is bound to act only in accordance with the advice received from the council of ministers, question naturally arises what would then be the justification of having a President over the head of the council of ministers?

The justification to this is the same as in England. [26] The 42nd amendment has made it clear that the President under the Indian constitution shall be the same as that of a constitutional ruler such as the monarch in England.

The governmental powers which as a matter of legal form are vested in the queen are n practice exercised according to the laws, customs and conventions of the convention and they are either exercised either by the queen on the advice of her ministers or by her ministers in her name. [27]

conclusion

In an elaborately written constitution, there is explicit provision making the ministerial advice binding upon the President. “In the absence of written provisions to the contrary, the President could not and shall not, act, except on the advice of his ministers.” [28]

In the presence of a categorical provision, it is difficult to agree, that the Ministerial advice is not binding on the President in all matters and situations. Political expediency may also necessitate acceptance of ministerial advice. It is argued that acceptance of the advice of the council of ministers is the essence of parliamentary democracy. This holds good in the British parliamentary democracy. But the form of government prescribed for India is not a purely parliamentary one, nor is it a system exactly patterned on the British model. Hence, the argument of automatic acceptance of ministerial advice may not hold good in the context of the Indian conditions and provisions of the constitution. This is undoubtedly, a highly optimistic expectation. Dr. Ambedkar and Dr. Rajendra Prasad incessantly debated on the connotation of the word ‘shall’ during the Constituent Assembly debates. While Dr. Rajendra Prasad was hesitant about the bindingness of the word ‘shall’, Dr. Ambedkar insisted that every President of India must act upon the advice on some body of ministers. [29]

Such an important question was ultimately left entirely to be regulated by conventions. The relationship between the President and his council of ministers and their roles in their respective spheres of activity were left to be regulated by constitutional conventions.