PRESIDENT: THE DISCRETIONARY POWERS AND POSITION OF CONSTITUTIONAL HEAD IN INDIA
The Union Government of India is composed of three components: (1) the executive to implement laws; (2) the legislative to make laws; and (3) the judiciary to interpret laws. India follows a parliamentary form of government. Prime Minister runs the Union Government and acts as a Head of Central Executive which consists the President himself and the Council of Ministers. The President of India is the Head of the State and possesses the executive power of union vested by the Constitution. This executive power is exercised with the aid and advice rendered by the Council of Ministers and comprises of Parliament’s power to make laws. The President, as a matter of fact is elected by an electoral college however, indirectly. It is imperative that Constitutional Head plays an assertive role and respects the provisions of the Constitution.
PRESIDENT – THE SYMBOL OF COUNTRY’S UNITY
The significance of having a President in a constitutional set-up can be understood by the manner of his/her election. According to Article 54, the President shall be elected through an electoral college which consists of (a) the elected members of Lok Sabha and Rajya Sabha; and (b) the elected members of the States’ Legislative Assembly. This pattern of presidential election shows that President is not solely a figurehead and also, that he/she represents the citizens of nation as against the Central Ministers who represent only the Parliament’s majority party. Henceforth, the President is also Chief of the Nation in addition to being Head of the Union. President is trusted with the responsibility to preserve, protect and defend the Constitution against inroads from external quarters. The oath taken by President represents the will of the citizens to secure unity, integrity and welfare of this country.
The Doctrine of Aid and Advice
To fathom the powers of the President, we have to begin with the interpretation of Indian Judiciary prior to 42nd Amendment. In one of early cases after independence, the Supreme Court stated that the real power lies with ‘Cabinet’ since we have adopted the English system of a Parliamentary Executive. Further, in another case, the Supreme Court went on to curtail the power of President by calling such position a mere Constitutional Head who shall work in accordance with the eventual aid and advice of Council of Ministers. In Samsher Singh v. State of Punjab, Justice Krishna Iyer stated that in a country like India where both Cabinet and Parliamentary forms of Government have been adopted, the President is a representative of the Council of Ministers but he had also saved a few exceptions which demand the discretion of President: (1) The choice of the Prime Minister restricted by the supreme deliberation that he/she shall command a majority in the House; (2) The government shall be dismissed if it lost its majority in the House; (3) The dissolution of the House, where an appeal to the country is necessitous, although in the area the President should circumvent from getting involved into the politics.
The Presidential Power of Pardon:
Under Article 72 of the Indian Constitution, five different types of pardoning powers are elucidated for the President. This Article states the “Power of President to accord pardons, etc., and to suspend, remit or commute sentences in certain cases.” This power of pardon shall be exercised alone for it being a discretionary power as it explicitly uses the term power and henceforth, Article 74 shall not be pertinent here. But this has not always been the case, in Maru Ram v. Union of India and Kehar Singh v. Union of India, the Courts determined that the power under Article 72 is to be exercised with respect to aid and advice of the Central Government. But in the later judgments, Presidents were given the power vested under Article 72 to form independent conclusions which may be different from that of what Court perceives on the conviction and deciding sentence of the accused.
The Presidential Power - Assent to Bills:
Under Article 111 of the Indian Constitution, the President has the power to send back a Bill to the Houses of Parliament for reconsideration but after such reconsideration, he is obligated to sign the same. As of date, Indian judiciary has given no landmark judgment interpreting this Article. Though this seems to be a discretionary power, in reality it is not. If looked at this Article parallelly with Article 74, this very concept of reconsideration would seem unnecessary because even when the Parliament passes and later reconsiders an unconstitutional law, the President gives his assent in accordance with advice from his Council of Ministers which indirectly violates Article 60. But the question is, what if the Bill which requires assent is against the Constitutional Provisions? In the past, there have been rare instances where President took a stand to not give assent to the Bills, one such instance is when Dr. Rajendra Prasad acted independently and raised a dissenting voice on giving assent to the Hindu Code Bill under the government of Prime Minister Nehru. It has to be realized that framers of Constitution vested President with great power to preserve and protect it, not to wholly exercise it on Council of Ministers’ advice.
The Power of the President with respect to Issuing Ordinances:
Under Article 123 of the Indian Constitution, President is conferred with power to promulgate ordinances. But this power is subject to two conditions, firstly both the Houses of Parliament shall not be in session and secondly the existing situation shall be such that President must be satisfied to issue ordinance. But not surprisingly, the Courts have had a contrary view as to President’s ‘satisfaction’. In Venkata v. State of Andhra Pradesh, the Court implied that issuance of ordinance by the President is a function and not power. Likewise, in R. C Cooper v. Union of India, the Supreme Court held that ordinances by the President shall be promulgated on the advice and satisfaction of Council of Ministers. But in one of the cases, Justice Grover held that the term ‘satisfaction’ refers to President’s personal satisfaction based on the material placed before him, however, then and again, Courts have overruled this judgment implying that President carries no discretion. Lately, Presidents have been using their power showing that the use of word satisfied in Article 123(1) leaves no room for doubt as this power is discretionary in nature.
The Power of the President with respect to Emergency Provisions:
Under Article 352 of the Constitution, President has the power to proclaim emergency “If he is satisfied that a grave emergency exists.” The usage of the word satisfied takes us back to the arguments advanced with regards to Article 123. It is essential to note that a written communication directing the issuance of proclamation of emergency from the Union Cabinet is required under Article 352(3). Under Article 356 of the Constitution, President has the power to proclaim emergency owing to “Failure of constitutional machinery in States.” In State of Rajasthan v. Union of India, the Supreme Court held that under Article 356(1) of the Constitution, President is supposed to act on the advice rendered by the Council of Ministers whether or not he/she has received report from the Governor. This interpretation implies that Article 356 is a function whereas it is clearly not because as per literal interpretation, the President is not bound to solicit and accept the advice. Further, the Court went on to reiterate that President’s power under Article 356 is de jure and Council of Ministers’ power is de facto. In the same case, Justice B.P. Jeevan Reddy opined that it’s up to President to decide accordingly as per situations since the provisions under Article 356 permit discretion which has to be exercised fairly.
The executive power vested in the Indian President generally is the sediment of functions of Government. This power extends to military, diplomatic and financial powers. Constitutional Head is the Supreme Commander of the Defence forces of the nation. Moreover, he/she represent India in the international forums and also, agreements are negotiated on his/her behalf. Presidents holds financial powers with respect to Annual Financial Statement as well as recommendation for Money Bill. All the proposals regarding revenue matters for the government shall get the permission from President before introducing in the Parliament. It is imperative that Constitutional Head plays an assertive role and respects the provisions of the Constitution. With the office he holds and the position he asserts, the President has to prevent a parliamentary government changing into parliamentary anarchy.
Functions are the duties which are imposed so as to operate as a check on the powers of Council of Ministers whereas Powers include the authority to assent or dissent. Article 74(1) of the Indian Constitution reads as “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.” If literally interpreted then, it can be deduced that the Council of Ministers shall advice the President only with regards to matters in exercise of his functions and the President has the command to act on his own in the matters pertaining to his powers. In Samsher Singh v. State of Punjab and Ram Jawaya Kapur v. State of Punjab, the Supreme Court held that while interpreting Article 74 and Article 75 it would be admissible to refer to existing British conventions as ‘Cabinet System’ of both the countries is identical. Furthermore, it was also reiterated by the Courts that any exercise of President’s power without or against the aid and advice of Council of Ministers would be deemed unconstitutional in view of Article 53(1). But it is essential to note that all such judicial decisions were taken prior the 1976 Amendment to Article 74 and also, Courts have drawn erroneous conclusions because of the use of words power and function interchangeably.
The recent judgments referring to President’s power of pardon are in contradiction to the previous judgments as they give him/her the power to scrutinize evidence on records and draw up an unbiased decision because the aid and advice plays no role. This power of pardoning vested in executive is important as every nation shall have some authority to keep a check and rectify the mistakes of judiciary. It is true that even a legislature can act up on such mistakes by making laws but it is not feasible to pass laws in the case of individuals. Moreover, death penalty is the highest level of punishment in the books of law, so it necessitates a review by the Head of State. I am of the opinion that, over the years, judiciary has played a significant role with its review, meaning though this power is not absolutely discretionary, judiciary shall make amends to involve itself only during circumstances of arbitrariness and mala-fide cases.
Let’s compare power of President in Indian model with American model since no landmark judgments have arisen concerning the assent to bills. The American President cannot withhold assent to Bills except for pocket veto, however, the Indian President possesses such power under Article 111 which he/she is required to exercise at his/her discretion. The real discretionary power here is that there is no timeframe specified within our Constitution which limits the period in which President shall give assent to the Bill, meaning that at his/her discretion, he/she may simply sit on the Bill for an indefinite period without ratifying nor returning it. This inaction of the President in turn stops the Bill from becoming an Act.
The promulgation of ordinances has its own shortcomings in the way judiciary has interpreted it. Firstly, ordinance has become a colorable legislation pointing out that an authority which is not competent acts through another competent authority as a tool to perform an act. Over the time, executive has been acting as a tool for the legislature which lacks original authority under Constitutional provisions to issue ordinances. Secondly, this has led to disturbance in the federal structure and the distribution of powers because conflicts arise between the executive and the legislative functions. Provision to issue ordinance is meaningless without President’s discretion because it is the executive who can keep a check on government’s intentions.
Emergency provisions under our Constitution have been placed with an intent to provide for the security of the nation in addition of protection of the people. In a literal interpretation, these provisions in themselves display a lot of discretionary power in the hands of the President. Theoretically, it is evident that President to act up on emergency powers doesn’t require the advice of Council of Ministers but judicial interpretation has blurred this line too. In lieu of Article 352, D.D. Basu expressed his opinion saying these powers have to be exerted as per aid and advice of Union Cabinet. Therefore, in my opinion, since citizens look up to President for protection of their fundamental rights, a well-established system of checks and balances is required as the rash usage of provisions can destabilize the nation.
Though in many ways, the discretionary powers of President have been brought down to mere functions to abide by on the aid and advice of Council of Ministers, the concrete importance of such authority will be felt when disputes arise between various State governments as in such times, the President is bound to function as an arbitrator and bring about a solution. When there is a change in ministry, the overall control returns into the hands of the Head of State. Moreover, in the international arena, it is the President who strengthens the social, political and cultural bonds of India with foreign nations. It is true that India follows a Parliamentary system and not the Presidential system, additionally, over and above judiciary has constantly undermined the powers of President irrespective of Constitutional provisions. Therefore, it is summed up that India’s Constitutional Head is an adviser, arbitrator, a brake but not a protagonist. After analyzing the powers and position, I opine that it is the duty of Council of Ministers headed by Prime Minister to govern but when this very machinery fails, that’s when President acts to uphold the democracy, thus establishing the real power vested by Constitution.
This discretionary power can be interpreted from the terms and phrases like "pleasure", "if the President is of an opinion", "if President is satisfied", "the President by order may determine", "with the previous consent of President", "as he/she may deem necessary", etc. It is essential to acknowledge that India’s unique system of governance vests equal power in all the three branches which are maintained in equilibrium with an effective approach of checks and balances as well as with distinct separation of powers. However, the judiciary has constantly stated that India follows the ‘Cabinet System’ of government, and has undermined the position of President as a mere figure head who works on the aid and advice given by the Council of Ministers headed by Prime Minister. This transparently reflects an inaccurate and flawed understanding of our Constitution. Because of such an understanding, power which is granted to President by the Constitution of India is usurped by Council of Ministers through Article 74. This whole erroneous understanding stands in line with Article 361 of the Constitution which grants the President immunity from court proceedings in exercise of powers and duties. The backbone of Article 361 will be destroyed if President is not expected to implement discretionary powers and it’d be unnecessary if it’s the Council of Ministers instead who are receiving such immunity.
In my view, it’s not too late to correct the errors of the past and recognize President’s discretionary powers. He/She is not merely a rubber stamp but is the link between legislative and executive and if vested with the position and power as given by the Constitution, he/she can utilize it to promote harmony. This recommendation extends to the extent of recognizing the President as a symbol of Nation’s unity because at the end of the day, it is this position that will act as a mediator between political leaders when there’s national crunch or crisis. Henceforth, it is concluded that a vast amount of power has been vested in President but this power has just always confined to theory as it has been put to use rarely. It is President’s solemn obligation to respect the Constitutional provisions and play an assertive, decisive and positive role in the working of State.
(1) INDIA CONST. art. 53, cl. 1.
(2) INDIA CONST. art. 54.
(3) INDIA CONST. art. 60.
(4) Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
(5) R.C. Cooper v. Union of India, AIR 1970 SC 564.
(6) AIR 1974 SC 2192, 2226.
(7) AIR 1980 SC 2147.
(8) 1989 Cri. LJ 941.
(9) K. V. Kuriakose, "The President of India: Status and Position", 14 Indian Bar Review (1987).
(10) AIR 1985 SC 724.
(11) AIR 1970 SC 564.
(12) Sardari Lal v. Union of India, AIR 1971 SC 1547.
(13) AIR 1977 SC 1361.
(14) S. R. Bommai v. Union of India, AIR 1994 SC 1918, 1976.
(15) AIR 1974 SC 2192, 2226.
(16) AIR 1955 SC 549.
(17) D.D. Basu, Shorter Constitution of India, 1171 (1994).
(18) Santhanam. K, Third Lecture in a series of four on "Conventions and Properties in the Parliamentary Government of India" delivered at the Indian Institute of Public Administration, New Delhi, reported in the Hindustan Times, Oct-3rd.
- Chilamkuri Deepthi
BBA LLB (Hons.)
Symbiosis Law School, Pune