Constitutional Status of President
as well as the Governors in India
India is a democratic country which has adopted British form of Parliamentary democracy by it’s Constitution. The President of India is head of Republic of India and Governor is head of the State/Province. But they are titular heads of the Government and ordinarily they can act only on the advice of the Council of Ministers, barring few exceptional situations. Following are relevant excepts from the judgment of Supreme Court of India.
Constitutional head or formal head of State:
(Per A. N. Ray C.J. Palekar, Mathew, Chandrachud. Alagiriswami, JJ, at p. 833 & 836).
The President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally.
(Per Krishna lyer J. for himself and Bhagwati J. concurring)
(i) The argument about the oath of office of President to defend the Constitution is sometimes put forward by inti- ministerialist advocates. The President defends the Constitution not by denying its spiritual essence of Cabinet responsibility-indeed he subverts it that way-but by accepting as his Constitutional function what his responsible’ ministers have decided. Can a Judge, in fulfillment of the oath of his office, ignore all binding precedents and decide according to the ad hoc dictates of his uninformed conscience ? Tribhovandas’s case answers the point in the negative. If every functionary who takes the oath by the Constitution interprets it according to his lights, this solemn document would be the source of chaos and collusion and the first casualty would be the rule of law. Such mischief cannot merit juristic acceptance.
It is clear from article 74(1) that it is the function of the Council of Ministers to advise the President over the whole of the Central field. Nothing is left to his discretion or excepted from that field by this article. By way of contract see Article 163 which is the corresponding provision for Governors and which expressly excepts certain matters in which the Governor is, by or under the constitution, required to act in his discretion. There is no such exception in the case of the President. [858FG]
However, Article 75(3) makes the Council of Ministers responsible to the House of the People. If, therefore, the President acted contrary to advice, the ministers would either resign or, since the advice tendered reflected the view of the House of the People, they would be thrown out of office by the House of the People. For the same reason, no one else would then be able to form a government. The President would, therefore be compelled to dissolve the House. Apart from the technical difficulty of carrying out the many details of a general election in such a situation the President might have to dismiss the Ministry and install a caretaker’ government to co-operate with him in ordering a general election–the consequences of the election might be most serious. if the electorate should return the same government to power, the President might be accused of having sided with Opposition and thrown the country into the turmoil and expense of a general–election in a vain attempt to get rid of a Ministry that had the support of Parliament and the people. This would gravely impair the position of the President. [858G-H; 859A-B]
If we hold that in a conflict between the Ministry and the President, the President’s Voice should prevail in the last resort, either generally or even in a particular class of cases, this would mean the elimination to that extent of the authority of a Ministry which is continuously subject to control or criticism by the house of the People in favour of the authority of a President who is not so subject. It would thus result in a reduction of the sphere of responsible government. So important a subtraction must be justified by some express provisions in out constitution. [859C-D]
If the President, in a particular case, where his own views differ front those of his Ministers, ultimately accepts their advice in defence to a well understood convention, then even if the act should result in a breach of some fundamental right, or directive principle’ enunciated in the constitution, the responsibility will be that of the ministers and not of the President. [859D-E]
The President under the Indian Constitution is not a mere figure head. Like, the King in England he will still have the right to be consulted, to encourage and to warn. Acting on ministerial advice does not necessarily mean immediate acceptance of the Ministry’s first thoughts. The President can state all his objections to any purposed. course of action and ask his Ministers in Council, if necessary, to reconsider the matter. it is only in the last resort that he must accept their final advice. [859F-G]
The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has, rapport with the people and parties being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as ‘the right to be consulted, to warn and encourage.’ Indeed, Article 78 wisely said, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government, although the actual exercise of the functions entrusted to him. by law is in effect and in law carried on by his duly appointed mentors, i.e. the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role he is not a rival centre of power in any sense and must abide, by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery. Of course, there is some qualitative difference between the position of the President and the Governor. The former, under Art. 74 hag no discretionary powers; the latter too has none. save in the tiny strips covered by Arts. 163 (2), 371A(1)(b) and (d), 371A(2)(b) and (f); VI Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with effect from 21-1-1972). These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions. Again, a minimal area centering round reports to be dispatched under Art. 356 may not, in the nature of things, be amenable to ministerial advice. [867F-H; 868A-C]
Mystery of Law and Justice 