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Cites 30 docs - [View All]
Article 74 in The Constitution Of India 1949
The Government Grants Act, 1895
The British Statutes (Repeal) Act, 2004
Article 75(3) in The Constitution Of India 1949
Article 78 in The Constitution Of India 1949
Central India Law Quarterly
Position Of The President Under The Indian Constitution
POSITION OF THE PRESIDENT UNDER THE INDIAN
CONSTITUTION
Smt. Kamfa Jain *
The most accepted definition of Law is that body of rules which
is recognised by the Courts of the Country as "taw'. The term Law
embraces all governmental machinery for carrying out governmental
programme. Legislation. judicial precedent and customs are regarded as
the important sources of Law. So far as the administration of the Country
is concerned we have got three organs of government namely legislature,
executive and judiciary. In India the task of administration is in the hands
of administrators or the executive. Under the Constitution of India,
Executive Power of the Union and the State is vested respectively in the
President and the Governors and to be exercised by him or them either
directly or through officers subordinate to him or them in accordance with
the Constitution. There is a Council of Ministers with the Prime Minister at
the head to aid and advice the President in the exercise of his official
functions. Similarly In States there is a Council of Ministers with the Chief
Minister at the Head to aid and advice the Governor in the exercise of his
functions. But, vesting of the executive power of the Union in the
President and of the State in the Governors is only formal or
Constitutional . They are only Constitutional heads. The President, the
Governors and Council of Ministers, however, do not exhaust the
numbers which constitute the executive. The Ministers are but political
administrators then there is a Central administration consisting of the
permanent civil servants , for example, the Secretary, the Director, the
Commissioner and other Incharge of different departments of Government
who also carry on executive administration either under statutory powers,
powers delegated to them or as part of the duties of their office. Under
them starts a heirarchy of officers who are entrusted with the various
works of administration either by law or as delegates or otherwtse.
2. Unlike America. there is no separation 1 of Constitutional powers
which gives separate treatment to the three institutions and allocates
separate distinct field for their operation. Articles 52, 74 and 75 give a
M.A., LLM. (Public Law). Head olthe Department, Govt Hamidia College . Bhopal (M.P.)
and Lile Member , The Central India Lew Institute. Bhopal.
1. Motlr.m v. Stal. of U.P. [1951. Allahabad 257. In this case Executive Powers are not
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defined. But the Constitution being a written one power, of different organs including
Executive must be ,pelt out from the Constitu1ion itself. Ramjavaya Kapoor v. Slale
ot Punjab. 1955. S.C. 549. In this ease our Council of Ministers'ls like the British
Cabinet, a hyphen which joins a buckle which fastens the legislative part of the state
to the Executive Part.
1992) PRESIDENT UNDER THE INDIAN CONSTITUTION 333
picture of Constitutional provision which is not very dear. The question Is
whether the President is the Constitutional Head of the State invariably
acting upon the advice of the Coune. of Ministers and whether he has
any independent authority of his own I.e.discretionary power by which he
can dis-regard the advice tendered to him and issue his own order? What
Is the relationship between the President and Council of Ministers. This
question remained unsettled2.
3. The nation has witnessed a controversy over the President's
decisionto dissolve the Lok Sabha. The moot question Is was it obligatory
on President Reddy in 1979 to declare the dissolution of Lok Sabha
before the expiration of the normal term of 5 years and ask it to have fresh
mandate of the people, and this question was again put before President
Venkataraman in dissolving the House in 1989. In other words was the
President bound by the advice of the out going Ministry to dissolve the
House and hold a mid-term poll or had the right to Ignore its acMee and
Instead invite the then leader of the opposition (Mr.Jag Jlvan Ram) in 1919
(Mr.Chandra Shekhar) in 1989. to explore the possibUity of forming an
alternative Gcvt . ? All these issues compelled me to review the
Constitutional position of the President of India.
4. To present the subject in its proper perspective, it is necessary
that the legislative history of the relevant Constitutional provision is traced
and an analysis of the provision is attempted with views expressed by
leading Constitutionalists and Jurists and the Supreme Court.
HISTORY OF PHRASEOLOGY
5_ M and advice" as a constitutional phraseology was Invented
Aid
under the Constitution of Canada, that is, the British North America Act.
1867_Section 11 of that Act provided for a "Council to aid and advise in
the government of Canada. to be styled the Queen's Privy Councl for
canaoa- From the British North America Act of 1867. this phraesology
had travelled to Sections 9 and 50 of the Government of India Act. 1935
which provided for a Council of Ministers to aid and advise respectively
the Governor-General of British India and the Governors of the British
Indian Provinces.
6. The provision of Section 9 of the Government of India Act, 1935,
had borne a half way resemblance k) the provisions of article 13(9) of the
2. Before Inidi.-, Con,titution eame into Ioru SM. B.N. Reu ...preMed his viewt .. to
wllel eKtent b. the Prelident i, required in !he d iseherge 04 hil funetion to act on sueh
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advic.7
334 CENTRAL INDIA LAW QUARTERLY I Vol 5:3
Irish Constitution. Under Section 9 of the Government of India Act, 1935
a distinct division of functions of the Governor -General was improvised.
providing firstly where he should act in his own judgment and secondly
where he should act accord ing to the advice of the Ministers. The
amended Section 9 stated , "There shall be a Council of Ministers to aid
and advice the Governor-General in the exercise of his functions.When
the Constitution of India was framed. the language of Section 9 was
retained in article 61.
LEGISLATIVE BACK GRQUND
7. This background never envisaged that the powers and the
functions vested in President sholJd be exercised by him on his own
responsbilit y without the co nsent of the Council of Ministers. The
Assembly resolved on 4th November, 1948 that President occ upies the
same position as the King under the British Constitution. He is the Head
of the State but not of the Execut ive. He represents the Nation but does
not rule the Nation. He will be generally bound by the advic e of his
Minister. He can do noth ing countrary to them or their advice flO( can he
do anything without their adviceJ. Dr. Ambedkar said that the commttee
had followed the proposal set out in the report of the draft co nstitution
commission. The report of the Committee said thai wh ~e the President is
to be the Head of Executive. He is to be guided by a Cou ncil of Ministers
whose advice shall be binding upon him In aU actions that he is supposed
to take under the power given to him by the Constitution".
8. On 30th December, 1948 the Present provisions in the
Constitution were adopted by the Constituent Committee. It is submitted
that the correct interpretation of Artlde 53 as already pointed out would
be to make it subject to other relevant provisions of the federal structure
of our Constitution. Article 74 expressly states thai there shall be a
Council of Ministers with the Prime Minister at the Head to aid arid advise
the President In the exercise of his functions. Clause (2) Provided that the
question whether any and it so what advice was tendered by the Ministers
to the President shall not be enquired nto in any Court . The question
arises as to the expression "aid and advice " in clause (1) of Article 74. Is
the advice tendered to the President is binding on the President ? If the
words are construed that the advice of the Ministry is only advice and it
is for the President to accept the advice or not. But if clause (1) of Article
3. Con5tituem Asembly Debate. Vol. VII. at. p. 32
4. C.A.D. Vol. VII- al p. 974.
19921 PRESIDENT UNDERTHE INDIAN CONSTITUTION 335
74 is read along with other provisions of the Constitution, also in the
background of the Government of India Act,1935 and also other similar
provision in which similar expressions occur, the clause seems to be that
the President is bound to act according to the advice of the Council of
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Ministers. The clause is a mandatory one. The word ~Shall" used in this
article must not be interpreted as "may'. The provi sion is mandatory in the
sense that , the President cannot dispense with this body. If Article 74(1)
is read in this manner, the rest of the pl'OVision dealing with "Executive W
must be read in harmony with the other prcvtscos. In other words Article
74(4) and 75(2) and (3) must be interpreted harmoniously. They bring into
existence what is usually called "respon sible Government" As regards the
.
doctrine of the pleasure of the President and his powers are to be read
in the light of the Constitutional provisions. Or. Ambedkar said that 't here
is no case which can arise where the Presdent would be called upon to
discharge his functions without the advce of the Prime Minister and his
Cabinet except in two cases one is appointment of Prime Minister and the
other is dissolution of Parliament. Or. Rajendra Prasad felt (May 23.1949)
that Article 61(1) of the draft Constitutions does not lay down that
President is bound to accept the advice and asked , "is there any
ConstitutionaJ provision in regard to it or is there any real difficulty in
providing some-where that the President w~1 be bound by the advice of
the Ministers" ? Or. Ambedkar referred to dauses 3 of the 'Instrument of
Instructions' which provided that the President shall be 'guided' by the
Cabinet's advice. He also stressed thai Article 61 follows almost literally
other Constitutions and the Presidents have always understood that
language which means that the advice of the Council is binding upon him
and he must accept the advice. H. V. Kamath reverted to this (October
14,1949)6 and reminded Or. Rajendra Prasad about his doubts. He
bluntly asked Or. Ambedkar. "if in particular case the President does not
act upon the advice of the Council of Ministers will that be tentamount to
be a violation of the Constitution and will be liable to impeachment. There
is not the slightest doubt about it. 'Was the categorical reply 7. Sir A1ladi
Krishnaswami Ayyar another member 01 the drafting committee too,
thought, "That the point is the necessity of provision is essentially without
substance" Article 61 was, "merely a euphemistic way of saying that the
President will be guided by the advice of his Ministers in the exercise of
B
his functions , His Cabinet holds office, but it is the pleasure of the House
5 The corresponding provision in Constitution is Article 74 (1).
6. CAD, Vol. VIII. at p, 216
7. C.A,D, Vol Vol IX, at p.116.
8. CAD, Vol X. at p , 269
336 CENTRAL INDIA LAWOUARTERLY [ Vol 5:3
whose majority confidence they command and not the President It is further
submitted that while interpreting these provlsons of the Constitution we have
to take the Constitution as a whole and these provisions as a living organ
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rather than to place literal ioterpretatoes on it' .
IRRELEVANCY OF DEBATES IN INTERPRETATION
9. In A.K.Gopalan v. Slate of Madras' o, the Supreme Court held
that the repo rt of the Drafting Committee of the Constituent Assembly
might be looked into for interpreting the words only in case of an
ambiguity of meaning in the words used in the Constitution, but not where
the language used was plain and unambiguous. Accordingly. reference 1 0
the speeches made by Dr. Ambedkar, Allad! Krishnaswamy Ayyar or by
T.T,Krishnamachari in the Constituent Assembly is wholly out of place in
reading article 74 into an implication that the advice of the ccorce of
Ministers would be binding on the President.
10. H. M. Seervai1 1 is of the view that the Statement of Objects and
Reaso ns, might only express the indi vidual opinion of the person
lntroduclnq the Bilt and that opinion might not be taken into consideration
for three reasons; firstly, because it Is on a question which Is lor the Court
to decide; secondly, because it may be mistaken; and thirdly because
other members who voted for the Bill may not share it An exception
according to him could be made in a case where the Statement of
Objects and Reasons referred to ' acts which were matters of history or
common knowledge, and which were capable of independent proof.
JUDICIAL VIEWSUPREME COURT
11. The oft referred decision bearing on articles 73 and 74 is that in
the case of Ram Jawaya Kapur v. State of Punjab 12 where the Supreme
Court has observed:
"The expression 'aid and advice' in article 74 may apparently
suggest that 11 is left to the President to accept the advice or
ignore the same and thus the decision on all matters witt be of the
President himself. But on a true Interpretation of the expression in
the context of the relevant provision of the Constitution, it be-
comes abundantly clear that the functions of Ministers or Council
9. ibId
10. AlA, 1950, s .C. 27
11 . H.M.Seervai : Constitutional Law 01 India, 3rd Edn. 1990,vol
12. AIR 1955 S.C.549 .
PRESIDENT UNDER THE INDIAN CONSTITUTION 337
of Ministers are not merely giving advice ; they can take dec isions
which must take effect."
The expressio n "relevant provision of the Constitution", presumably refers
to the provisions of art icle 78 which co ntains references to such terms as
'decisions' and 'proposals for leg islation'; but even these provisions have
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failed to make th is matte r "abundantly clear". Article 78 itself makes it
inc umbent that all such 'd ecisions' and ' proposals' have to be
communicated to the President and there was no point in the transmission
of thesedecisions or proposals just in the form of a routine message unless
they were meant for the President to apply his own mind and then approve
or disapprove any. Since all executive actions are required under article
n {1 )13 1 be expressed as taken in the named the President, the Ministers
0
In taking any decision or making any proposals, simply act as administrators
on behalf of the President. Simser observations were made in P.Joseph
John v. State of Travancore Cochin ', and reiterated in Pratap Singh, v.
15
State of Punjab. The High Cou rts were bo und to accept this view. In Re
Jaya rama Iyer 16, fo r example, the High Coun of Andhra Prad esh and
Calcutta17 head tha t the President was a formal or constitutional head and
the real execut ive powers were vested in the Ministers or the Cabinet. A new
d imension appears \0 have been g iven to this view by the d ecision of the
18
Supreme Cou rt in State of Uttar Pradesh v. Babu Ram Upadhyaya .
Art icle 310 of the Constitution which vests in the Preside nt. and the
Governors of States. the sole pleasure d uring which the government servant
could enjo y a tenure of offic e was under the Court's consideration. It was
held that the power und er articl e 310 was outside the scope of the executive
pow er of the state under artier 154. On the same reasoning naturally, it woul d
also be out sid e the sco pe of the executive power 01 the Union under articl e
53. In his ow n judgment, Subba Rao J.(as he then was) had alluded to the
'overriding' powers of the President . o r the Governor i under the Co nstitution.
1
When the case of Jayantilal Amritlal v. F.N.Rana came up for decision ,
the Supreme Court became explicit and ob served :"Articl e 258(1) may,
however. be noticed . That clau se enables the President to entrust to the
State the functions which are vested In the Union, and which are exercisable
by the President on behalf of the Uni on. The power to pr omulgate
13. Ibid
1" . AlA 1955, S,C. 160
15. AlA 1964 , S.C. 72
16. AlA 1958, Andh ra Pradesh 14
17. R.mkri.hna v. Union of India. AlA 1969, Calculi. 12
18. AlA 1961 , S.C .7S1
19. AIR 1964 , S.C. 1969
338 CENTRAL INDIA LAW QUARTERLY [Vol 5:3
Ord inances under artic le 123. to suspend provi sions of article 268 to 279
during an eme rgency, to declare failure of the constitutional machinery in
Statesunder article 356. to declare a financial emergencyunder article 360,
to makerulesregulating the recruitmentandconditions of service of persons
appointed to posts and services in connection with the affairs of the Union
under article 309-10 enumerate a lew out of the various powers- are not
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powers of the Union Government ; the se ar e powers vested in the President
by the Constitution and are incapable of being delegated or entrusted to any
other body or authority under article 258( i ) . ~
Textual Analysis Of The Relevant Constitutional Provisions
12. In estimating the Constitutional position of the President. the
peovlsioos of Article 53, 74 and 75 may particularly be referred . Article 53
makes the President the executive head of the Union and provided that
the powers g iven to him shall be exercised by him either d irectly or
th rough office rs subordinate t o h im In accordance with this
Constitution20. .
13. The last few words "Officers subordinate to him" mean nothing
but th e Council of Ministers 21. The Words "in ac cordance with the
provisions of the Constitution, mean that he is bound by the Council of
Minister's advice. Shri Mukherjee C.J. speaking for the Court stated that
though the exec utive power is vested in President the President is only a
formal or Co nstitutional head of the Executive, the real power is vested in
the Cou ncR of the Ministe rs on whose aid and advice the President acts
in the d ischarge of his functions and in the exercise of his powers. His
l ordship de scri bes the position saying thaI the relationship 01 Parliament
and Cabinet is "as a hyphen which joins a buc kle, fastens the legislative
part of the State to the Exec utive Part 22.
23
14. In R.C.Cooper v . Union of India it wlJs observed that unde r
the Constitution the President being the Constitutional head normall y acts
in all matt ers including the prom ulgation of an ordinance on the advice of
his council of Ministers. The Court , how ever, d id not exp ress any opinio n
as to whether the President may declin e to act upon such advice?
20. Maxwell, The Interpretation of etetutes 8192 (12th Edition 1969) and also H.R. Khanna,
ConstituliOll and Civil Uberties at 31 (1978) D.J . Payna, The intantion 01the legislature
in the interpretation 01the Statute ill probable, at p. 96 (1956)
21. Emperor II. Shi llnath, AIR, 1945, PII"Y CO\lncill56,
22 . UnOer the Gov!. of India Act 1935 alao the Execulive aulhoflty whieh wllS vested under
the Governor General exercised by him either directly Of by hill llubordinates
23. AIR 1970, S.C. 564
1992 J PRESIDENT UNDER THE INDIAN CONSTITUTION 339
15. Maitland 24 had tried to classify the powers of the Crown, and out
of the nine different powers categorized by him, he had placed the
constitutional powers of the Crown at the top . This classification can wilh
justification be worked out in England where there is no written
Constitution and the "residue to discretionary authority" , which in Dicey's
sense. is leh at any given ume in the hands of the Crown. Is the only
content of the constitutional power of the Kino In India, the distinction
between the executive and the constitutional powers of the President
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would not only be arbitrary but would also alter the settled notions of
jurisprudence. When the Constitution has vested vast and diverse powers
in the highest office of the State, it may really be a task to distinguish
whether a given power is executive , legislative or judicial.
16. The powers of the President, exercised in whatever sphere are all
constitutional powers. There is thus no basis to suppose that the
legislative powers of the President are only those enumerated under
Chapter III of Part V of the Constitution. The power of the President under
article 111 to assent to or dissent from. any Bill is yet a legislative power
although it falls under Chapter II. Sim~arly. the power of the President
under article 304 to grant or withhold sanction to a Bill for being
introduced in the Legislature of a State in order to impose restrictions on
trade, commerce or interco urse among States, is all the same a legislative
power , thoug h it falls under Part XIII and not under Part V.lt is, however,
Impossible to hold that all these powers are not covered by article 75 as
powers of the Union Executive . Under article 73, the executive power of
t he Union extends to all matters with respect to which the Union
Parliament has power to make laws. and power to make laws with respect
to the matters falling under article 268 to 279 has been conferred on
Parliament under articles 269(3), 274(1) and 275(1) .
17. Anoth er important case which bears a mark on the issue came
before the Court is U.N.Rao v. Indira Gandhi 25. In this case the House
of People was dissolved on 27.12.1970 . The respondent was the Prime
Minister before the dissolution. The question that arose In this case was:
How can the Council of Ministers be responsible to the House of People,
when it has been dissolved under Article 85(2) 2 6. The second questio n
raised was: Is there anythin g in the Constitution and in particular in Article
75(3) which rende rs her carryi ng on as Prime Minister contrary to the
24. op cit. p. 422 .
25. AIR , 1971 , S.C. 1002
26. Article 85 (2) reada thal 'The President may from time to time (a) prorogue the Houlel
or either HOUle. (b) Dilsolve the HOUle.
340 CENTRAL INDIA LAW QUARTERLY ( Vol 5:3
constitution. Another question raised was that on dtssotunonot the
House. the Prime Minister and ot her Ministers must resign and the
President must carry on Govt. with the aid of the services of the CivU
servants. Sikri C.J.speaking for the Court observed: The Constituent
Assembly did not choose the Presidential type of Govt.lf we were to give
effect to these contentions of the appellant we would be . changing the
whole concept of the Executive. It would mean thai the President need
not have a Prime Minister and Minister to aid and advice in the exercise
of his functions. As there would be no Council of Ministers, no body would
be responsible to the House of the People. with the aid and advice he
would be able to run the Country at least l UI he is impeached27. As to
the last contention raised, his Lordship observed "Article 74 is mandatory.
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Provision of the Article 75(3) which envisages the doctrine 01 Ministerial
responsibility has to be harmonised with the provisions of Article 74(1 )
and 75(2) and the y sho uld be construed in this spirit only . Thus ,
construed. Article 75(3) appears only when the House of the people does
not stand dissolved or prorogued. It cannot, therefore. be said that on
dissolution of the House of the People, the Prime Minister and other
Ministers must reslgn28.
18. The judgment of the Court makes It clear that the existence of the
Council of the Minister is the symbol of our Partiamentry system of Govt.
and very soul of the President and hence, indispensable (Article 74(4))
has to be made mandatory in this sense that President will become
virtually important to the extent of particular provisions and hence article
gives potency to the President to enable him to keep the spirit of the
Constitution alive.
19. Later judgment of the Court which came in the year 1974 nas,
however, removed all doubts. The case is Samsher v.Punjab29. Here the
Court observed that though the President and the Govern ors , are
custodians of all Executive Powers under various articles, still by virtue of
this provision exercise their functions and Constitutional Powers only
upon and in accordance with the advice of their Ministers. save in a very
well known exceptional situation. These situations related to (a) the
choice of Prime Minister (Chief Minister) . The choice is, however .
restricted by the condition precedent that he should command a majority
in the House; (b) the dismissal of a Govt. which has lost the confidence
27. Supre note 25 .. p . 1005
28. Ibid
29. A.I.R 1974 S .C. 2192
1992 J PRESIDENT UNDER THE INDIAN CONSTITUTION 341
of the House and refuses to resign; (c) the dissolution of the House,
where an appeal to the Country is necessary although in this area he
being the head of the State should avoid getting involved in politics and
should be advised by his Prime Minister (Chief Min ister). The Court further
observed by way of caution that even in such cases the action of the
President must be compelled by the perW to democracy30.
CORRECT ESTIMATE OF ADVICE
FUNCTIONS DISTINCT FROM POWERS
20. The term 'function' has an organic affinity. In the Dictionary 01
Social Sciences 31 the term 'function' has been defined as "a
consequence of some kind of the existence and/or actions and which
may originate from persons or things . The psychologi cal distinction
between functional and structural comprexes in the behaviour of an
organism is well known. It is by cooveotiorer use that this term has crept
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into the statutory sphere also. According to the Advanced Leamer's
Dictionary 01 Current English32 the word 'function' has four different
meanings: (i) the activity which is natural for a thing, as the function of
the nerves (i.e.to carry message to the brain) ; the function of the
heart(i.e.to pump blood through the body); (ii) the special purpose or use
of something, as the function of education; (ill) the task or duties which
must be carried out by a person in an official position, as the function of
a judge (I.e.to administer justice);the functions of an officer of State (I.e.to
help in the government): (iv) a public ceremony or occasion: a social
meeting of an important (and usually formal) kind.
21. The Constitutio n of India, too, has used the two words 'power'
and 'function' in a sense conveying two different meanings. The word
'powe r' has been used in article 53(1) which vests the executive power of
the Union in the President but in clause (3) the word 'functions' has been
employed. In article 65, the word 'functions' has been used in clause (2)
but the phrase 'powe rs and immunities' has been used In clause (3)
30 . krdarl Lal v. Union of Idia, 1971 , S,C, 154. Union 01 India v. Jyottp'llkesh, AIR
'971, S.C. 1093, The binding nature 01 Ministerial advice has been reconsidered in
ease of diMOlution 019 Assembly in 1977 , State ot Rajasthan v. Union of India. AIR
19n, S.C. 1361 .
31. Julius Gould and William Dictional)' p.2n.
32. OxfOld Un;"'rsrty P.eu. p, 504.
342 CENTRAL INDIA LAW QUARTERLY
AID AND ADVICE NOT BINDING
AID NOT BINDING
22. The Council of Ministers is charged with a dual responsibility l.e.to
render aid and tender advice to the President in the exercise of his
functions . There is virtually no point in an aid being binding . Aid is just
ass istance, be it of a pontcar. personal Of intellectual nature, and a thing
which is characteristically assistance cannot be regarded as admonition.
At the same time it is not so superfluous as to amount merely to an
adulation.
ADVICE NOT BINDING
23. (a) Interpretation of Text ;. The advice by the Council of Ministers to
the President is not legally binding on the tarter. because the text of article
74(1) does not elevate the essentials at advice to the status of mandates.
(b) Absence of Strict Compliance or Prohibition ; Artide 74(1) does
not imply that strict compliance by the President with the ministerial
advice is a condition precedent to the validity of his function. nor does it
make the neglect to abide by such advice as rendering his functions
invalid.
(c) Provisions of Articles 103 and 74 :. The provisions of article 74(1)
may be compared with those of article 103 (2) whereunder the President.
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while de<:."tJing a reference whether a Member of Parliament has become
subject to any disqualifications, is required to act according to the opinion
of the Election Commission to be necessarily obtained by him . There is
lack of any such words in article 74(1).
(d) Ejusdem Generis Constructions :- This conclusion would claim
support also from accepted canons of construction. The rule of ejusdem
generis. which broadly means that where the genus is given and some
species have also preceded in the same potvlalon. the genera must
answer to and fulfil the purpose of, the species.
(e) Provision for other Advisory Bodies :- There are several other
bodies under the Constitution which the president Is required to. or may
at times, consult in order to be better informed of the implications of any
particular situation. Article 143 (1) provides thaI II at any time it appears
to the President that a question of law or fact has arisen or is likely to
arise. which is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it, he may
refer the question to that Court for consideration . The president acting
under article 124(2) may consult certain judges of the Supreme court in
1992 J PRESIDENT UNDER THE INDIAN CONSTITUTION 343
the matter of appointment of judges to that court. Article 324(4) provides
for consultation by the President with the Election Commissioners. All
those are bodies other than the Council of Minister which the
Constitutio n binds the President 1 take advice trom.
0
ADVICE NOT BINDING BV ANV IMPLICATION
24.(a) Impli cation of Com parision between Articles 74 (i) and 163(1 )-lt
is con tended that where as article 163(1) has specifically stated that there
shall be a Counc il of Minister with the Chief Minister at the head to aid
and advise the Gove rnor in the exercise of his functions,
(b) Implication of Article 361(1) :. In terms of article 361(1) the
President shall not be answerable to any court for the ' exercise and
performance of the powers and duties of his office or for any act done
or purporting to be done by him in the exercise and performance of
those powers and duti es.
(c) Implication of Article 74(2) :- It is conterded on the basis of
article 74(2) that since no court would ever come in for inquiry whether
any, and if so what, advice was t endered by Ministers to the
President, the latter must accept that advice whether he likes it or
not; and in a case of conflict, the matter has to be settled between the
President and the Ministers alone.
(d) Implication of Article 78 :- Article 78 makes it the unfailing duty
of the Prime Minister to communicate to the President all decisions 01the
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Council of Ministers relating to the administration of the affairs of the
Union and proposals for legislation and to furnish such information
relating there to as the President may call for and if the President so
desires.
ADVICE NOT BINDING EVEN ON POLITICAL CONSIDERATIONS
25 (a) Threat of Impeach ment :. It is argued, rather in an anchantingly
political spirit, thai in case the President does not follow the advice of
the Coun cil o f Mini st er s, h e imm edi at ely beoc mes liabl e to
impeachm ent. What Dr. Ambedkar once said to this effect33 was in the
heat of debate at the spur of the moment without any broad analysis of
interaction eX one conse;Jlional provision with another. One shoUd not
make a myth of the impeachment proceedings but rather try to know what
33. Constituent AsMmbly De~les .Vol x ., p. 269.
344 CENTRALINDIA LAW QUARTERLY I Vol 5:3
Impeachment is arc what it must mean. There Is an impeachment for
violation of the Constitution : whether it comes about by overriding the
ministerial advice Of otherwise, does not mater. There is, however, no
impeachment for violation of the Minister's advice which has fNery
teroeocy to be wrongful in itself.
(b) Chances of an Unconstitutional Advice:- The council of
Ministers consisting as it does of not infallible human beings may itself
tender an advice in violation of the Constitution.
CONCLUSION
26. Though the people are sovereign and the political sovereignty
vests in them In law , they have been reduced to mere vote banks and are
needed only ones in five years. Their mental maturity level makes them
swing with pooear sentiments and reduces the exercise of sovereig n
power to an empty formality. They have thus ceased to be either source
of powe r or provid e inspiration for purposeftJ exercise of power. Eve n
though ou rs is the biggest democracy in the wend and OUf people ,
inspite of their miseries and sorrows are fond of freedom. it may not be
possible to sustain this feeling for long if the people themselves do not
develop their capabilities.
27. Some of t he ju rists hold the view that Presid ent is
constitutionally speaking bound in all matters by the aid and advic e
clause. Granville Austin supports this view. The othe r view is that
President can disregard the advice of the Council of Ministers. This view
is suppo rt ed b y Dr . K. M . M un sh l, D.O . Ba su and Pr o f. C .H.
Alexendrowicz. And there is third vtew which is a mid way between the
tw o. Sovereign powe r has a purpo se for Its exercise for the success of
social revolution. Not only the executive or the legislature but also the
Judiciary is th us there under an obligation to work for their achievement
In actually and any detailed study of legislative trend, executive styles
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and judicial process must engage itself in social transformation.


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