STATUS OF PRESIDENT UNDER CONSTITUTION:
PROBLEMS AND PERSPECTIVES
♣ Subodh S. Patil
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
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.
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.
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
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
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
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.
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
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
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
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.
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,
14 Ibid, pg.399.
15 AIR1980 Del 114.
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.
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
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.
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.
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
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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
• 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
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.
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.
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
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.
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.
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.
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
representative character. He is a person who as representative character in terms of
Constitution than Prime Minister”. He is not a titular head.44
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,
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
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
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
After discussing all above things, the sentence of Mr. Pandit Nehru, Prime-
minister of Constituent Assembly which he said during the Assembly debate is
“We did not want the President to be just a mere figurehead….”
47 1994 INDLAW SC 2206