Status Of The President Under The Constitution


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Status Of The President Under The Constitution

  1. 1. STATUS OF PRESIDENT UNDER CONSTITUTION: PROBLEMS AND PERSPECTIVES ♣ Subodh S. Patil INTRODUCTION The ‘President’ means the head of the executive of the state. This concept is not new to India. In ancient times there was a King who was the head of the state and all executive actions were taken in the name of that King. In present Indian state system, the President is the head of the nation/state and all the executive actions are taken in the name of the President. There are only two express vesting clauses in the Indian Constitution which expressly vest the powers on some authority, Article 53 and Article 154. This paper is concerned about Article 53 which deals with the executive powers of the Union Government. The President is also the head of military staff of the nation, the supreme command of the defense forces also vests in the President. He also possesses some independent powers under the Constitutional machinery, but he can not exercise those because of the wrong interpretation of his office and powers and functions. This paper is an honest attempt to bring the truth forward. MEANING OF THE TERM ‘PRESIDENT’ President is a title held by many leaders of organizations, universities and countries. President is one who presides, who sits in leadership. This term is derived from the Latin term ‘Prae’ i.e. before, and ‘Sedere’ i.e. to sit. Originally the term was used and referred to the presiding officer of a ceremony or a meeting, but today it most commonly refereed to an official with executive powers.1 ♣ Author is Advocate, Supreme Court of India, Delhi. 1
  2. 2. HISTORY OF PRESIDENT The word President was first became popular in United Sates of America. There are several republican countries, but in 1789 America created a post of President as the head of state and it popularized afterwards. Further in 1848 first European President in France and first South African President in Liberia came into existence. In 1912 first Asian President in China took place and now the situation is that, majority of countries have their own President.2 FORMS OF GOVERNMENTAL SYSTEM There are two forms of governmental system 1. Presidential form 2. Parliamentary form In the states where the presidential form is prevailed, the President is the whole and sole in that state. The office of President is very powerful. U.S. is the most convenient example of this kind of governmental system. It is also an indirect voting. President is elected by the Electoral College; these electors are chosen by the voters. Another system is parliamentary system. In this kind of system, powers are vested in parliament which is directly elected by voters. It is said that, the Parliament is the most powerful institution in this form and the President is only a nominal head of the government. Though all powers of the government are vested in the President, but he exercises those powers through council of ministers, appointed by him, headed by Prime-minister. And he has to act upon the aid and advice of the council of ministers. 1 2Id 2
  3. 3. The controversies regarding the role of the President under Indian constitution are discussed herein after. Though the President is a ceremonial head of the country, he possesses some kind of powers without aid and advice of the council of ministers that is to say he can exercise those powers independently? PROVISIONS RELATING TO STATUS OF PRESIDENT UNDER INDIAN CONSTITUTION As the President is the executive head of the state he is conferred with various powers, functions and duties. He also possesses some immunity. The most controversial question is that, can the President act according to his own mind? Who is superior, council of ministers or the President? What is the status of President of India? All these questions I am going to discuss in this project work. First I will discuss what are the powers and functions of President of India under constitution. I will discuss some major provisions regarding the President. I have tried to focus on these provisions in a different way. So, let’s make out what are those provisions. President of India and his election Art.52 states that, there shall be a President of India. He is an elected person who in general holds the office for five years. Method of election of President is different from that of other members of Parliament. The framers of Indian constitution were a little puzzled whether to take up direct or indirect mode of voting to elect the President. There was a division of opinion amongst themselves, some wanted to go with direct voting, and some were in favor of indirect voting, finally indirect form was selected. Though the President is elected indirectly, but still he is the only President who represents whole of the country. Because he is elected by Electoral College, the detailed procedure is given under Art.55. Further Art.58 3
  4. 4. lays down the qualifications for President of India that, he should be a citizen of India, he should be qualified for election of member of house of people, he must not hold any office of profit etc. President of India and his functions Art 53 is very clear in its language, that all the executive powers vest in the President and he may delegate or transfer his function to any officer subordinate to him. Under Art.75 (1) the President is required to appoint a Prime-minister and on the advice of Prime-minister he has to appoint the other ministers in the ministry. Under Art.125 (2) the President is supposed to appoint the Chief Justice of India and other Judges of Supreme Court of India. But while appointing the Chief Justice He must consult with other Judges and while appointing other Judges he may consult the Judges of the other Court as he may think fit. Under Art.76 the President shall appoint a person as Attorney General of India who shall represent Government of India in any court. While appointing the person on this post he should consider the minimum qualification required for that. Under Art.155 President appoints governors of various states who hold office during his pleasure. Art. 77(3) say that, the President shall make the rules for more convenience in governance and for allocation of said work among ministers themselves. So, this is the function of President to make rules of convenience. Under Art. 324 the President appoints election commissioner. All above are the functions which the president has to perform. All above are functions, so the President can delegate it to any officer sub- ordinate to him as per the meaning of Art.53. President of India and his powers President as being the executive head of the Government enjoys powers also, he is the head of military staff i.e. supreme command of army, navy and air force lies 4
  5. 5. in the President3, but this is a controversial issue that can he exercise these powers without aid and advice of cabinet or not. In Samsher Singh vs state of Punjab 4 the Supreme Court held that, the Governor and President are only the formal heads of the state, and when they require satisfaction, required by the Constitution, it is not their personal satisfaction but the satisfaction of the council of ministers on whose aid and advice they exercise powers and functions. Thus, judiciary has consistently held that, the President in practice has no powers at all. Further in Ram Jawaya Kapur vs state of Punjab5, the Supreme Court held that, under Art.53 (1) executive powers of the Union are vested in the President but, under Art.75 there is a council of ministers with Prime-minister at the head to aid and advice the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and real executive powers are vested in the council of ministers. I will discuss this issue latter on. First let’s see what the powers of the President are. Power to give assent to bills Under Constitution the President has to give assent to the bills passed by the Parliament.6 There is a huge debate on this article that whether it is power or function of President. But according to me, this is a power which latter becomes a function. Because the language of Art.111 is clear, we can say from the language of the article that, there are three options for President when a bill is presented before him for assent, as- 1. either to give the assent, or 2. to withhold the assent, or 3. to return the bill to the Parliament for reconsideration and he can also suggest modifications in that, but after sending it back, it is up to the Parliament to consider his suggestions or not. 3 Art.53 Indian Constitution. 4 1974 INDLAW SC 127 5 1955 INDLAW SC 16 6 Art.111 Indian Constitution. 5
  6. 6. At second time advice is binding. I would like to focus on the second condition I mentioned above. Can he withhold the assent and if yes then what will be the consequences? Art.111 in first paragraph says about giving or withholding the assent to bill and proviso to article talks about the situation where he returns the bill to Parliament for reconsideration. Superficially reading we will say that there are only two options for the President either to give assent or return it to Parliament. But after analyzing it we can say that, he has three options as I mentioned above. This article is silent on the issue of withholding the assent from the bill in its second paragraph. If the bill is unconstitutional then he should not give the assent. Following are some bills which can not be presented in the Parliament except prior assent of President- a) formation of a new state , alteration of boundaries or names of any state or union territory, b) a money bill, c) bill involving expenditure from consolidated fund, d) bill affecting any tax in which any state or states are involved. He has also power to give the assent to the amending bill. Power to promulgate ordinances Under Indian Constitution the President has power to issue ordinances.7 It is an enabling provision and has only a short term effect. The object of inserting this article is to enable the President to promulgate the ordinances when any urgent situation is arisen. This is provided to avoid any unforeseen event when the Parliament is not in session. This provision only applies then, when there is no any existing law on that matter or there is a law but it does not cover the situation arisen. In A.K.Roy vs Union of India8, it was held by the Supreme Court that, the power to issue an ordinance is a legislative power. An ordinance issued by the President 7 Art.123 Indian Constitution. 8 1981 INDLAW SC 381 6
  7. 7. partakes fully of the legislative character and is made in exercise of executive power. While in R.C.Cooper vs Union of India9 the Supreme Court said that, the ordinance is promulgated in the name of President and in a constitutional sense on his satisfaction; it is in the truth promulgated on the advice of the council of ministers and on their satisfaction. But Art.123 does not talk any thing about council of ministers. Power of Pardons The President has power to grant pardons10. It is again an issue of controversy. According to some people the power of President to grant pardon is exercised on the aid and advice of the concerned minister i.e. on the advice of home minister, because Are.74 provides for it. But according to me there is no such restriction on the exercise of the power of the President. He can act on his own discretion. That I will discuss in the next chapter. But for now, the Supreme Court in Keher Singh vs Union of India, said that, pardoning power is an act which is done under Constitutional scheme, it further said that, it should be compared with the American President who acts on his own and not with the crown in United Kingdom, where it acts on the ministerial advice11. Power to dissolve the House of People and dismissal of Prime minister and other ministers The constitution of India empowers the President of India to dissolve the house of people.12 This provision is imported from Britain where the king is bound by the advice of the Prime-minister to dissolve the House of Commons. It implies that, if the President of India wants to dissolve the house of people, he has to take the advice of the Prime-minister. In England the Prime-minister approaches the 9 1970 INDLAW SC 575 10 Art.74 of Indian Constitution. 11 1988 INDLAW SC 47 12 Art.85(2)(b)of Indian Constitution. 7
  8. 8. crown to dissolve the house only when he looses the majority in the house. But can the Indian President do so on his own is the question. Art.85 does not require the aid and advice of the Prime-minister to dissolve the house. It is often read with Art.74. But what in the case, where the Prime-minister has no majority in the house and he does not give advice to dissolve the house. So, in following four cases the advice of the Prime-minister is not required for dissolution of the house- a) when the Prime-minister looses his majority in the house, b) when he is unable to prove his majority, c) when the vote of no-confidence is passed against him, d) when he is not facing the Parliament, but the Parliament has a proof that the ruling party has no majority in the house.13 Under these circumstances the President can dissolve the house. But before going to dissolution, he should find out any alternative ministry if possible. Dr.Ambedkar in constitutional Assembly debate said that-“The President of India shall test the feelings of the house whether the house agrees that, there should be dissolution or whether house agrees that, affairs should be carried on with some other leader without dissolution.”14 Further, art 75(2) provides that, the ministers hold office during the pleasure of the President. So, it is clear that the President can dismiss the minister at his will. Moreover, the court also Dinesh Chandra vs Choudhari Charan Singh15, held that, to argue pleasure could be interpreted in Art.75(2) to mean the President can dismiss any minister at any time, at his will. Further, the Supreme Court in S.P.Anand vs H.D.Devegowda, held that, it could then be said that, since ministers also include Prime-minister, the President can dismiss Prime-minister at his will. Power to consult with Supreme Court 13 Prof. M. P. Jain, Indian Constitutional Law, 5thEdition, (Wadhwa Publications, Nagpur, 2005), p.387. 14 Ibid, pg.399. 15 AIR1980 Del 114. 8
  9. 9. Another power given to the President of India is to consult with the Supreme Court.16 He can exercise this power in relation to any matter which of public importance or which according to him is of public importance. He may refer that matter to the Supreme Court and the Court may give its opinion regarding that matter. This provision is inserted to enable the President to seek the opinion of the interpreter of the Constitution regarding the validity of any act of the Government and the aid or advice tendered to him by them. Power of President, in failure on the part of state, to ensure compliance with the directions of the Union The core Art.256 is that, affirmative state action to insure compliance with the directions issued by Union suo motu. If the State Government failed to comply with that or follow the directions, then according to Art.365 the President has power to take appropriate action. It shall be lawful for him to assume that, the state government has failed to perform its duty and it is not doing its business according to the provisions of this constitution, he can take appropriate action. Power of President to proclaim emergency If on the report of the governor or otherwise the President is satisfied that, the state government can not be carried on in accordance with the provisions of this constitution, he may issue a proclamation and assume himself all or any powers of governor or all or any functions of the state government or any other authority of the state. It is an enabling provision which empowers him to proclaim emergency in state, when it is not carried on in accordance with the provisions of constitution. He has the duty to look that state government is observing the provisions of the constitution.17 And when he finds that, it is not doing such, and then his duty comes up to restore the situation in the state. The provision is enough clear on this point. Similarly, if the nation meets any threat of war, external aggression or any armed 16 Art.143 Indian Constitution. 17 Art.356 Indian Constitution. 9
  10. 10. rebellion, i.e. if there is any grave danger to security of India from any of above reasons, he may declare emergency by issuing proclamation,18in whole or any part of India. This is also clear from the language of the Article that, it can be done on the satisfaction of the President. Further, he has also power to declare financial emergency,19 which can be done on the satisfaction of the President, which brings changes in the financial relations of the state and center. All these Articles are clear on the point that President has the power to proclaim emergency. To provide safeguard and prevent its abuse the provision of approval of the Parliament within one or two months has been made. It does not say that, to proclaim emergency aid and advice of the council of ministers is necessary. PRESIDENT OF INDIA AND HIS DUTIES Similarly as the President has powers and functions he also has many duties like, he has to administer union territories.20 He is also responsible to provide peace, progress and good governance to them.21 He is entrusted with the duty to establish the financial commission and to lay down every recommendation of the commission along with the explanatory memorandum before each house of the Parliament.22The President has the duty to appoint the commission to investigate the conditions of the backward classes.23 Under Art.338, 339,341,342 the President has to appoint various commissions. 18 Art.352 Indian Constitution. 19 Art.360 Indian Constitution. 20 Art.239 Indian Constitution. 21 Art.240 Indian Constitution. 22 Art281 Indian Constitution. 23 Art.340 Indian Constitution. 10
  11. 11. PRESIDENT OF INDIA AND HIS RIGHTS Immunities to the President Wide immunities are given to the President under Indian constitution.24Those are as, the actions taken in good faith, in exercise of powers or performance of functions, by the President can not be challenged in any court of law on any ground. Further, it is provided that, he is not liable for any criminal proceedings in existing matters or in future matter during he holds the office of the President. He can not be imprisoned or arrested on any ground during his tenure. No writ of Quo Warranto can be issued against him. No civil suit can be instituted against him in any court either in personal capacity or in official capacity. However prior giving the sufficient notice civil suit can be instituted. In other words we can say that, all these are safe guards provided to the President against any action taken in good faith and make him to perform his duties and function smoothly and exercise his powers in a manner as is expected from him. Thus, this immunity is available only in the cases where President’s action is Constitutional. Right of President to get information from Prime-minister The Prime-minister of India is under a duty to provide and furnish the information and communicate with the President all the decisions which are taken by the council of ministers regarding the administration of affairs of the Union government and the proposed legislations, which the council of ministers intends to bring in the Parliament. The President has a right to call for any information relating to the administration of the affairs of the Union government and any proposed legislation.25 There was an interesting incidence happened in the Indian history on this issue. Former President of India Dr. Giani Zail Singh was about to dismiss the government of Mr.Rajiv Gandhi because of the reason that the Prime-minister of that government had failed to give the information to the President. In this case the 24 Art.361 Indian Constitution. 25 Art.78(a),(b),(c) Indian Constitution. 11
  12. 12. Prime-minister was guilty of the breach of duty and President’s right to get information was also violated. PRESIDENT OF INDIA AND SOME OTHER IMPORTANT PROVISIONS Oath or affirmation by the President Art.60 of the constitution puts a condition on the President to take oath or affirmation. It says that, every person who is elected as President or a person acting as President has to take an oath before he enters the office of the President. Unless he takes oath he is not eligible to enter the office and act as President. He has to take the oath in the Presence of the chief Justice of India or in his absence before the senior most Judge of the Supreme Court available at that time. He takes the oath to preserve, protect and defend the Constitution to the best of his ability. Further he also takes the oath to devote himself to the service and well being of the people of India. This oath taken by the President is similar to that of king in ancient India. We have seen that, the king in the ancient India had to undergo an oath ceremony i.e. coronation i.e. “Pattabhisheka.” We have seen this in our introductory chapter. He was like the present Indian President the head of state and all executive powers were vested in him. He was also bound by “DHARMA”. So, the oath ceremony of the President of India is equivalent to that of ancient Indian king’s oath ceremony i.e. “Pattabhisheka”. Aid and advice to the President by council of ministers Indian Constitution provides for the council of ministers which shall aid and advice the President. It says that, the President shall act in accordance with the aid and advice of the council of ministers in performing his functions. Further it is stated that the President can ask the cabinet to reconsider the aid or advice given by it. But after reconsideration whether any change is made or not, it is binding on the President to follow it, because the word ‘shall’ is used in the Article. In article 74(2) it 12
  13. 13. is provided that, the manner and the nature of advice of Council of Ministers, which is tendered by it to the President, shall not be called in question. In short, the council of ministers has been given immunity under this provision. Art. 74(1) is substituted by 42nd Amendment Act, 1976 and Proviso to the Art. is inserted by 44th Amendment Act, 1978. By this provision, all the powers of the President which he would have otherwise exercised independently, made dependent. And for many a times it was held that, the President cannot exercise these powers on his own by virtue of Art.74 (1). He is bound to act in accordance with the aid and advice of the council of ministers. IMPEACHMENT The President can only be impeached on one ground i.e. when he acts unconstitutionally. The Procedure for it is also very difficult.26 Two third majorities of both houses of total membership of Parliament are required to impeach him. Investigation is also conducted. Fourteen days notice is also given to him it is a feature of Indian Constitution which is unique in nature. It shows that the President can not act unconstitutionally and arbitrary. This is a check on the powers of the President by the legislature. So, it can be said that, he can exercise the powers independently but not outside the Constitution, if he does that, he can be removed but, it is not easy to remove him. STATUS OF INDIAN PRESIDENT AS COMPARED TO SOME OTHER PRESIDENT OF THE WORLD In this topic we are going to discuss and compare the Indian President’s status with President of America, France, Sri Lanka and the Crown of England. 26 Art.61 Indian Constitution. 13
  14. 14. President of America In America there is a Presidential form of government. All executive powers are vested in him.27 He is directly elected from the people on the party ticket. If once he is elected, he stays for four years in the office, but he can not hold the office more than eight years. He is free to appoint the secretaries of different departments; he can remove them at any time without consulting any one, on his own. In America all three organs of the government are separated from each other i.e. executive, legislature and judiciary. It means that, member of one of the institution can not the member of another institution. Their works are also divided. They enjoy their powers in their own spheres. It does not mean that, they enjoy it without restrictions, the legislature can bring indirect pressure on the executive through its power to levy taxes, to make appropriation of governmental expenses, to enact legislations, to investigate executive works and polices through its committees and the senates power to confirm treaties and appointments. But it does not mean that the President of America has no powers or has less powers. He can withhold his assent from a bill passed by the legislature, but however, it becomes law at the expiry of tenth day from the date of exercising veto, if the President does not communicate his decision. In America the President has no power to dissolve the legislature i.e. the congress.28 Constitution of America provides for two years fixed term for it. Before that, the President can not dissolve it; he is powerless in that matter. So, if the legislature passes a bill and sent for Presidential assent and if the President returns it back for reconsideration using the veto, the legislature has a power to pass it by 2/3 majority in both houses and it becomes law. President can do nothing in it. However the judiciary can interfere in it if it is unconstitutional. 27 Art. II sec.1 American Constitution. 28 Art. I American Constitution. 14
  15. 15. Further, the President of America has no ordinance making powers. He can not perform any legislative functions. Those functions are given to the legislature and the President can only use those powers which are either conferred by the Constitution or any law. President’s i.e. executives and the legislatures powers are limited in nature and does not extend beyond that. E.g. Foreign affairs, security etc. that is to say the legislature can make laws regarding to those matters only and the President can exercise powers in relation to those matters only. If the President signs a treaty with another country or all the treaties concluded by him need 2/3 majority of senate to become operative.29 President of France In the fifth republic of France, a new constitution of France was framed. Under following of the some of the provisions which deal with the President of France. French constitution imposes a duty upon the President to observe that, the constitution is respected by all the persons in the country. He has to arbitrate between various governmental authorities as well as in the continuance of the state. He is the guarantor of the national independence, integrity of territories and community agreements and treaties.30 As the result of Amendment in 1962, he is directly elected from the people of France. He is the authorized person who appoints the premier,31 but he has no power to dismiss him. On the advice of premier he appoints other members of the government and can terminate their functions. He can terminate the functions of the government on the resignation of the premier, but can not dismiss government twice a year, during emergency also. The tenure of the President is of seven years, he also presides over the cabinet, makes appointments of civil and military posts, appoints and receives ambassadors. He also enjoys special powers over defense and foreign affairs. He is 29 Art. II, sec.2 American Constitution. 30 Art.5 French Constitution. 31 Art.8 French Constitution. 15
  16. 16. not responsible to parliament. He can submit bills on certain issues to a referendum.32 When the integrity of territory, independence of the nation or fulfillment of International commitments are threatened, the President can declare emergency, but for this purpose he shall consult with the premier and The Constitutional council.33 One restriction is imposed that, he can not dismiss the National Assembly during emergency. In France there are two centers of powers, premier and the President. Both are free to constitute their Inter-ministerial council. They can discuss certain topics with the council. It means that, two discussions on the same topics. This Constitution is unclear on the point on implications of Art.20 and 21 where Parliament has empowered in certain matters and Art.5. It establishes dual executive system. This constitution is open to different interpretations. “To fuse two ultimately incompatible nations; on the one hand the separation of power with a strong head of state[which smacked of Presidentialism] and on the other the principle of governmental responsibility to Parliament[which implied the parliamentary regime]”, the President rules with as well as over premier.34 Though this constitution does not empower the President to dismiss the premier, yet there are many Presidents who dismissed the premiers. President of Sri Lanka Sri Lanka is purely a Presidential form of Government. President is the whole and sole of the nation. The President of Sri Lanka is the head of state as well as the executive. The Sri Lankan President is directly elected from the people.35 The term of office of the President is six years. According Constitution of Sri Lanka, the President is directly responsible for the Parliament, but he can not be removed by 32Art.11 French Constitution. 33Art.16 French Constitution. 34 A.G. Noorani, Presidential System Indian Debate, 1stEdition, (Sage Publications, New Delhi, 1989), p.64. 35 Art.30 Sri Lankan Constitution. 16
  17. 17. the Parliament.36 Only the way by which he can be removed is by the way of impeachment which can be saved before the Supreme Court. He is the head of cabinet and is collectively responsible to Parliament. He has the liberty to appoint a person as Prime-minister, he can appoint any person as he thinks fit to that post, but the person should be a Member of Parliament.37 He has the power to assign the work to the members of the cabinet, thus he enjoys greater powers over the cabinet. The President on his own satisfaction can dissolve the house at any time. Thus, Sri Lanka is a purely Presidential form of Government. It will not be the exaggeration to say that, the President of Sri Lanka is the Constitutional democratic monarch. Crown in England The Crown is royal post in England; it is not an elected one. It is a hereditary rotation in nature. It is retained by royal family. The crown in England is the head of executive with all executive powers vested in it. It enjoys prerogative which are inherent powers and powers conferred under any statute made by parliament. But at present it enjoys no inherent powers. It has power to appoint all high administrative and executive officers. It also appoints Judges, Bishops, officers of army, navy and air force. It directs them to work of administration. The crown has the function to look after the enforcement of all national laws. It conducts Country’s foreign relations; it has supreme command over all armed forces. It has power to give pardons. It has power to conclude treaties without consulting parliament. Hence we can say that it is the ultimate executive authority and has extensive executive powers. From the above discussion we could say that, the crown has the supreme command over the state, which in fact, not true. Because all the powers which are conferred on the crown are exercised by its ministers of the cabinet. The crown is only a nominal head of the government and the real powers are exercised by the ministers. Each minister is allotted with his function. They are only the one who 36 Art.42 Sri Lankan Constitution. 37 Art.44 Sri Lankan Constitution. 17
  18. 18. observes that, laws are followed or not, they conclude the International treaties. If there is a war the issue of war is decided by them. The fund granted by the parliament is spent by them only. The ministers give the advice to the crown, even the power to give the pardons is exercised by the real minister under the name of the crown. The high officials of the royal household are also appointed with prior consent of monastery. So, it can be said that, in taking any decision the role is played by the minister and not by crown, its role is merely formal. It is only a titular head of the country. So far as legislative matter are concerned crown prorogues the session of British parliament, dissolves the House of Commons, assents the bill. So far as the prorogation is concerned, it is the function of crown. About dissolution, he can not dissolve the House of Commons without aid and advice of the Prime-minister and in case of assents to bill, for last more than two hundred years there is no case of rejection of the bill by the British crown,38 because it is not answerable to the parliament, so no question of veto arises. In Judicial matters, all justices in England are delivered in the name of crown. It appoints all the judges, including the judges of peace in the country. But in fact the appointments are carried out by the cabinet under the name of the crown. All issues which come before the judicial committee of Privy Council are decide by the crown. Even it is said that, crown grants the mercy to a person who is convicted for the criminal act, but the actual job is done by the judicial committee of Privy Council. So, we can say that, English crown has only crown and no powers. The actual powers are thus transferred to the council who is responsible for the day to day life of the nation. Sir Henry Maine rightly pointed out, “The king of England reigns but does not rule”.39 President of India We have seen President’s position in various countries, now we will see the status of President under Indian Constitution. As in America the President is totally free to exercise his executive powers, but he can not make laws i.e. legislative powers 38 Vishnu Bhagwt and Vidya Bhushan, World Constitutions, 1stEdition, (Sterling Publishers Pvt. Ltd, Delhi, 1987), p.41. 39 Supra note 39. 18
  19. 19. are not vested in him. Where as the Indian President has the legislative powers, as we have seen under Art.123. he can issue ordinances when the assembly is not in session further, the American President has no judicial powers i.e. he can not grant pardons, which the Indian President has under Art.72. provisions as to assent to bills are to some extent similar. In America the President can not hold office beyond the period of eight years, but there is no such condition in Indian Constitution. A President can be reelected after second term in India. The President of America has not given the power to dissolve the congress, but Art.85 (2) (b) of Indian Constitution gives the power to Indian President to dissolve the house of people. Dr. Ambedkar in this regard says that, “In draft Constitution there is placed at the head of the Union a functionary who is called President the title of the functionary reminds one of the Presidents of the United States. But beyond identity of names there is nothing in common between the form of the government prevalent in America and the form of government proposed under the Draft Constitution.”40 So far as the French President is concerned, there are no two power centers in India; in rest of the cases his powers are more or less similar to Indian President. In case of Sri Lankan President, there is a huge difference between Indian and Sri Lankan President. In Sri Lanka the President is directly elected from the people, but not so in case of Indian President. President of Sri Lanka is directly responsible to the Parliament, but Indian President is not. The impeachment process of Sri Lankan President is totally different from Indian President. In Sri Lanka the Supreme Court is given the duty to hear the impeachment proceedings, but in India Supreme Court can not interfere in this matter. Now we come to the English Crown, many a times it is interpreted that, the President of India is a titular head and resembles to the Crown in England. English 40 Dr. J.N. Pandey, Constitutional Law of India, 35th Edition, (Central Law Agency, Allahabad, 2000), p.372. 19
  20. 20. crown is the executive head of the state and exercises all its powers through its ministers, in India Art.53(1) says that, President of India is the executive head of the state and Art.74(1) says that, he performs his functions on the advice of his council of ministers. So, if we go to the plain reading of the Articles and above discussions, it can be said that, Indian President is a nominal head of the state like English Crown. Though Art.53 vests all executive powers in him, Art.74 overrides it. Dr.Ambedkar says that, “Under the Draft Constitution the President occupies the same position as the King under the English Constitution”41. PROBLEMS AND PERSPECTIVES There is a huge debate and controversy relating to the status of President of India. Till now we have seen what powers does the Indian President posses. To go dipper in this issue of the President’s status we have to take a look on some more aspects. Amendment Acts of 1976 and 1978 played a vital role in so called changing status of the President, it amended Art.74. In this chapter I will also discuss some important aspects relating to the status of President. I have formulated some important questions, which I have tried to solve. What was the status of the President prior to Amendment, what changes have been brought in it Prior to Amendments As we have seen that Art.74 is clear that, some words are substituted and some are replaced. Prior to these Amendments the Article was, which was original, as- there shall be a council of ministers with the Prime-minister at the head to aid and advice the President in exercise of his functions. Cl(2) said that- the aid and advice given to the President by the council shall not be questioned in any Court. If 41 Supra note 41, pg.367. 20
  21. 21. it had been the wording of the Article then it would have been much easier to understand the status of the President, because according to the Art.53 (1) all the executive powers shall vest in the President and he shall exercise those either directly or through officer subordinate to him. And moreover the provision of Art.74 was not clear to the point. It did not say any thing about binding force of the aid and advice of ministers. So, in this situation the literal interpretation of the Article says that, President had unrestricted powers. 42nd Amendment Act, 1976 By the Amendment Act, 1976 the Article was substituted and cleared the doubts regarding the binding force of the Article. It provided in addition to the provision of the Article that- “…………who shall, in exercise of his functions, act in accordance with such advice”. It restricts the President from acting on his own in discharging his functions. 44th Amendment Act, 1978 This Amendment Act added a proviso to this Article empowering him to send the advice back for reconsideration to the council of ministers, but he can do so only once only. The advice tendered to him after such reconsideration is binding, as per the wording of proviso to Art.74 (1). This provision was inserted to up lift the degraded position of the President which was done away by above amendments. It pretended to show that, the President is not mare puppet in the hands of the government and tried to pull up the status of the President. Is there any difference between power and function? As we have seen in chap.2 what are the powers and functions of the President, we can say that, these two are different terms. But what is the exact difference. That is- • Power is always vested in an individual. E.g. in ancient Indian state system power was solely vested in the king. Where as function is 21
  22. 22. vested in more than one person or institution. E.g. various governmental authorities, because the actual work is carried out by those authorities. Function is always vested in more than one person or institution. • Power comes with the discretion. It means in exercising the power there are more than one options, what to choose and what not solely depends upon the power holder. But so far as the function is concerned there is no such question of discretion. There are no such options. It is mandatory to the person who performs it to perform it. • Power is independent in nature. It means when the power is provided, no advice or aid is needed, it is up to power holder to take advice of not and not up to any other person. But function is carried on with consultation with others, with aid and advice of others. • Power is a narrower term and it is specific in nature, where as the function is a broader term. • Power can not be delegated, except provided by the source of power. Where as the functions can be delegated or reassigned. From above discussion it is clear that, aid and advice can not and should not be given in exercise of powers. But it can be given in case of functions. Art.74 does not speak anything about power and only says about functions. So, it is applicable only in the matter of functions and not powers. Power and functions can not be joined together. Does the advice of ministers always binding on President? What if the council of minister is incompetent or the advice is incompetent? Answering this question I would like to discuss the scope of Art.60 of the Constitution which talks about the oath of President and Art.74 which limits the President. In this case the question is that, what the President shall do, either to follow the advice tendered or to follow Art.60. 22
  23. 23. If we compare these two Articles, we can say that Art.60 has much wider scope than Art.74, because the oath is as equivalent to the oath of ancient Indian King, who was governed by the Rajdharma. He could not do any thing against Rajdharma nor could he allow others to do such things. The Indian President has been given the same duty. He is responsible for protection of the Constitutional provisions. There are other authorities, who also take the oath like Vice-President, Prime-minister and other Ministers, but there is a wide difference between oath of President and others, he obligates himself to guard the Constitution which others do not. Neither he can not do any unconstitutional act nor can allow to be done. Further Art.361 provides a safeguard i.e. immunities in certain cases, to the President in Constitutionally valid actions. It means that, if he takes constitutionally valid action, his action can not be challenged in any Court. Sir B.N.Rau, a member of the Drafting Committee, in his book says that-“Even if in any particular instance the President acts otherwise than on the ministerial advice the validity of the act can not be questioned in any Court on any ground”.42 It makes clear that, even the advice in performing functions is unconstitutional, and then it is not binding on the President. In 1997 in Utter Pradesh, government at that time faced a trouble, because one of the coalition party withdrawn its support from the government. Then, some other members of Assembly who were not supporters of the government initially supported it. The Chief-minister claimed majority. A floor test was also conducted and after some violent incidents the Chief-minister proved the majority. But the Governor sent a report stating the government of the state can not be carried on in accordance with the provisions of the Constitution and requested for application of Art.356. The Council of ministers gave advice to the President to dismiss the government, but the President refused to do so, stating that the government is constitutionally valid. Thus, the advice of ministers in exercise of powers of the 42 K.M.Munshi, The President Under Indian Constitution,. 2ndEdition, (Bhartiya Vidya Bhavan Mumbai, 1997), p.39. 23
  24. 24. President is not at all binding and advice in performing functions which is unconstitutional as well. IS INDIAN PRESIDENT REALLY A TITULAR HEAD LIKE CROWN IN ENGLAND Election of the President This election has been given a Constitutional importance. It is also a line of demarcation between Crown in England and the President of India. The Crown in England is a heredity post, not elected while the President is elected by the Electoral College. The President remains in office generally for five years unlike in England where there is no such tenure of the Crown. The intention behind choosing Indian President was to choose a person who is independent from party politics. If the President was intended to make a ceremonial head and to serve the purposes of the Union government, the lengthy procedure is provided. He is elected by the Electoral College which not only consists of members of Parliament but also the members of Assemblies of the states. The President shall not be a member of either house of Parliament, all the provisions that we have seen makes difference. Sir B.N.Rau says- “he is therefore answerable to his constituents for his acts, which implies that, he should have freedom to act as he thinks right. He should not therefore, be held, to be bound by any convention to act upon the advice of others…”43. Oath As we have already discussed, the oath of the President which binds him to preserve, protect and defend the Constitution and which differentiates him from all other executive office holders like Vice-President, Prim Minister and other Ministers. It also differentiates him from the Crown in England. 43 P. B. Mukharjee, Critical Problems of Indian Constitution, 1st Edition, (University of Bombay, Mumbai, 1967), p.14. 24
  25. 25. Personal discretionary powers Constitution under Art.37 states that, these principles are not enforceable in the Court of Law, but, these principles are fundamental in the governance of the country. It shall be the duty of state to apply these principles in making laws; the state has a duty to apply it. Firstly, the term ‘fundamental governance of Country’ includes the executive and the President being the head of executive is also involved in this. These principles are not binding on the government. Even if they are not followed it does not matter, but as being the Constitutional provisions these principles can not be violated i.e. law can not be passed in violation of these principles. It is the duty of the President to look for that. If such bill comes before him, he should not give assent to it. Hence, he has discretion over that. President has to perform a lot of duties; he further exercises some powers given under the provisions of the constitution explicitly. Art.74 which is said to be the bar in functioning of the President is thus struck down by previous discussions on Art.60. So, it is clear that, the President of India has some discretionary powers, which the Crown in England does not have. Impeachment Art.61 provides for impeachment of the President. We can find the impeachment provision in American, Sri Lankan, French Constitutions as well, where the President is more or less in a strong position and exercises his powers independently. But in case of Crown of England we don’t find any impeachment provision. In this situation how far is it correct to compare the Indian President with the Crown in United Kingdom. The impeachment provision is applied where the President acts unconstitutionally in performing duties or powers. There is no impeachment provision for English Crown. From all above points and according to Sir B. N. Rau it is clear that, he is not a titular head and plays some important role under the Constitution, so he can not be compared with the English Crown. “Theoretically speaking the President should have greater sanctions than Prime ministers. He is not the dynastic sovereign in Britain, who has no executive or 25
  26. 26. representative character. He is a person who as representative character in terms of Constitution than Prime Minister”. He is not a titular head.44 CONCLUSION As we have studied the President of India and his status in practice and theory. Now we are able to form an opinion. Often the President is compared with the Crown of England. The Supreme Court at many times interpreted for many time in that manner, that, he is equivalent to English Crown. For understanding the concept of President more clear we have started studying right from the ancient Indian state system and have looked the status of the President in that era. The King was given the highest status in the state and he was governed by the Rajdharma, which was the supreme law of the land. We found that, most of the functions of the ancient Indian King and the present President are similar. Further, for better understanding of President I have discussed his powers, functions, duties and rights with special insistence on Art60 and Art.74. I have differentiated powers from functions, because every word has its own meaning. So, powers can not be replaced with functions. It has separate existence. In constitutional provisions, especially in Art.74 (1) which is considered to be a fetter in the exercise of the powers of President, the word ‘function’ is used. So it is clear that, council of ministers can give its aid and advice to the President in performing his functions only and not in exercise of powers. Power is always discretionary, it is up to the power holder to use it or not and if exercised in what manner. It needs not to take any one’s aid or an advice. If it is not exercised noting will happen, but carrying on function is mandatory for the person who has been assigned it. The interpreters are not ready to accept this fact. Further Art.60 has not been given any importance which it deserves, because unless the executive takes the oath, they are not considered to be the ‘Executives’, we 44 Vasant Sathe, Two Swords in One Scabbard, Chap:4, 1stEdition, (NIB publications, 1989), p.13. 26
  27. 27. have seen this concept in Ancient Indian State System also. By taking oath they are assigned with their duties, non fulfillment of which amounts to breach of duty. President has the foremost duty to preserve, protect and defend the Constitution. He is bound not to behave in a manner which is ultra-virus to the Constitution and prevent others such actions. Moreover if any unconstitutional advice is given to him by council of ministers in performing his functions, he is required not to accept it. Further, comparing with some other President in the world I have tried to make the picture some more clear. President of India cannot be said to be a ceremonial head of the state like English Crown nor can be said to be identical to President of America, France or Sri Lanka. The English Crown has been given the just given a post of honor which is hereditary, where as rest of the Presidents enjoys more or less absolute freedom. Indian President is neither like both the categories, because in some matters like Art.123,111,85 etc he differs from other Presidents. It will be proper to say that, the Indian President lies somewhere between British Crown on one hand and American, French and Sri Lankan Presidents on other hand. Supreme Court has also played very important role in creating more confusions. In some cases it stated that, the President can act on his own but subsequently it changed its view. In Sardari Lal vs Union of India45, where the dispute regarding issuing orders was arisen, was held that, President or governor can issue orders on their own satisfaction. Though this decision was prior to 42nd Amendment Act it is still worthy. Prior to Amendment there was also a convention to accept the aid and advice of ministers. In Maru Ram vs Union of India46, it was held by the Supreme Court that, the pardoning power is exercised by the President 45 AIR 1971 SC 154 46 1980 INDLAW SC 278 27
  28. 28. but on the advice of the ministers. Further in Keher Singh’s case, it was held by the Supreme Court that, matter of deciding pardoning petition lies entirely within the discretion of President. In S.R.Bommai vs Union of India47, while discussing scope of Art.356; it was held that, word satisfaction occurring in the Article means personal satisfaction of President. Such satisfaction can be arrived with the help of aid and advice of the ministers and cognitive materials placed before him. It means the President can develop his satisfaction independent of aid and advice of the council of ministers. After discussing all above things, the sentence of Mr. Pandit Nehru, Prime- minister of Constituent Assembly which he said during the Assembly debate is worthy that- “We did not want the President to be just a mere figurehead….” 47 1994 INDLAW SC 2206 28