The Constitution of India has provided fora parliamentary form of government. Consequently, the President has been made only a nominal executive; the real executive being the council of ministers headed by the prime minister. In other words, the President has to exercise his powers and functions with the aid and advise of the council of ministers headed by the prime minister.
Dr B R Ambedkar summed up the true position of the President in the following way:
“In the Indian Constitution, there is placed at the head of the Indian Union a functionary who is called the President of the Union. The title of the functionary reminds of the President of the United States. But beyond the identity of names, there is nothing in common between the form of government prevalent in America and the form of government adopted under the Indian Constitution. The American form of government is called the presidential system of government and what the Indian Constitution adopted is the Parliamentary system. Under the presidential system of America, the President is the Chief head of the executive and administration is vested in him. Under the Indian Constitution, the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in administration is that of a ceremonial device or a seal by which the nation’s decisions are made known. He is generally bound by the advice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss anysecretary at any time. The President of the Indian Union has no power to do so, so long as his ministers command a majority in Parliament”.
In estimating the constitutional position of the President, particular reference has to be made to the provisions of Articles 53, 74 and 75. These are:
1. The executive power of the Union shall be vested in President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (Article 53).
2. There shall be a council of ministers with the Prime Minister at the head to aid and advise the President who ‘shall’, in the exercise of his functions, act in accordance with such advice (Article 74).
3. The council of ministers shall be collectively responsible to the Lok Sabha (Article 75). This provision is the foundation of the parliamentary system of government.
The 42nd Constitutional Amendment Act of 1976 (enacted by the Indira Gandhi Government) made the President bound by the advice of the council of ministers headed by the prime minister16. The 44th Constitutional Amendment Act of 1978 (enacted by the Janata Party Government headed by Morarji Desai) authorised the President to require the council of ministers to reconsider such advice either generally or otherwise. However, he ‘shall’ act in accordance with the advice tendered after such reconsideration. In other words, the President may return a matter once for reconsideration of his ministers, but the reconsidered advice shall be binding.
In October 1997, the cabinet recommended President K R Narayanan to impose President’s Rule (under Article 356) in Uttar Pradesh. The President returned the matter for the reconsideration of the cabinet, which then decided not to move ahead in the matter. Hence, the BJP-led government under Kalyan Singh was saved. Again in September 1998, the President KR Narayanan returned a recommendation of the cabinet that sought the imposition of the President’s Rule in Bihar. After a couple of months, the cabinet re-advised the same. It was only then that the President’s Rule was imposed in Bihar, in February 1999.
Though the President has no constitutional discretion, he has some situational discretion. In other words, the President can act on his discretion (that is, without the advice of the ministers) under the following situations:
(i) Appointment of Prime Minister when no party has a clear majority in the Lok Sabha or when the Prime Minister in office dies suddenly and there is no obvious successor.
(ii) Dismissal of the council of ministers when it cannot prove the confidence of the Lok Sabha.
(iii) Dissolution of the Lok Sabha if the council of ministers has lost its majority.
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