Anushka PS
“Not the Potomac, but the Thames fertilizes the flow of the Yamuna.”
Introduction
The contours of the debate concerning the form of democracy envisaged by the Indian Constitution are familiar. In light of various judicial pronouncements reflecting the deliberations of the Constituent Assembly, the position is well-settled: India has been reaffirmed a Parliamentary Democracy. However, the constitutional text has not been altered to suit this understanding. Therefore, we are faced with a situation where the text embodies a spirit radically different from the conventional meaning attached to it. This inimical opposition between the written and unwritten parts of the Indian Constitution is exemplified in Articles outlining the relationship between the President and his Council of Ministers.
This post attempts to illustrate the various complexities afflicting the precise determination of the powers of the President in relation to his Council of Ministers. In this vein, it will first demonstrate that, despite varied efforts by the judiciary and the legislature to entrench British parliamentary norms, the bare text of the Constitution undermines these efforts. The post will then argue that the objective of instituting a Parliamentary framework in India will remain unachieved unless a comprehensive alteration is effectuated to several Articles of the Constitution.
The President – A Constitutional Figurehead ‘Bound’ by Ministerial Advice?
Article 53 of the Constitution vests in the President the Executive power of the Union. The exercise of this power is not untrammeled- it is circumscribed by Article 74(1), which categorically states that there “shall be a Council of Ministers to aid and advice the President in the exercise of his functions.” While this Article initially accorded an advisory role to the Council of Ministers, the Supreme Court in Ram Jawaya Kapur interpreted these provisions differently. The five-judge bench held that in India, like in Britain, executive power had to be exercised subject to the Legislature’s control. This control could be achieved by characterizing the Executive as the “buckle which fastened, and the hyphen which joined the Executive part to the Legislative part.” The Cabinet enjoyed a majority in Parliament, retaining the power to determine questions of policy. Consequently, the President was proclaimed the “formal, constitutional” head of the Executive while the “real” executive powers vested in the Cabinet. As a necessary corollary of this reasoning, the advice of the Council of Ministers, with respect to his administrative functions, was considered binding upon the President.
The court in Shamsher Singh posited that ministerial responsibility for executive functions was a fundamental tenet of the British Parliamentary system. The powers of the Indian President were held to be equivalent to the British Crown- simply put, the President was the formal figurehead of the Union, having no real executive discretion. Sanjeevini Naidu and UNR Rao also reaffirmed this view. In furtherance of this, Article 74(1) was formally amended to make Ministerial advice binding on the President. The interpretation and consequent amendment of Article 74(1) were conditioned by Article 75(3), which stresses the Council of Ministers’ responsibility to the Parliament. Additionally, Article 361(1) holds immense pertinence in this regard by excluding the personal responsibility of the President for executive malfeasance. The objective propelling this Article is to ensure Ministerial responsibility for Executive actions.
The Incomprehensive Retrenchment of the Presidential System in India
It is evident that legislative and judicial efforts have been targeted at constituting a parliamentary framework of presidential power in India. However, these efforts are inadequate since they do not traverse the entire catena of articles governing the relations between the President and his Council of Ministers. While Article 74 has been amended in furtherance of this objective, three critical articles remain unaltered- first, Article 361, which excludes the personal responsibility of the President; second, Article 61, which outlines the procedure for impeaching the President; and third, Article 78, which imposes a duty upon the Prime Minister to furnish information pertaining to Union administration, whenever required by the President. These three articles concentrate power in the Presidential position and are reminiscent of the Presidential form of Government. They also possess the potential to derail India’s parliamentary objectives. The essay will consider each of them in turn.
Political Remedies to Unqualified Presidential Discretion
While courts have readily acknowledged the binding nature of ministerial advice, there is a paucity of judicial opinion on the nature of remedies accruing upon the President’s failure to comply with such advice. Presidents are immune to legal action taken against them “for performance and exercise of the functions of their office.” Article 74(2)proscribes the court from enquiring into “whether any and if so, what advice” was actually tendered to the President by Ministers. While S R Bommai has significantly increased the scope of such judicial review by distinguishing “actual advice” from the “documents” upon which such advice is based, the former still remains impervious. The courts gauge the relevance of the material and the propriety of Presidential action, but its correspondence with ministerial advice still remains an elusive question. As Shubhankar Dam notes, “presidential intransigence can only be resolved politically” by initiating impeachment proceedings against the President.[i] However, by its very nature, the President’s impeachment suffers from two impediments- the first concerns the complexity of the impeachment procedure, and the second concerns the grounds which buttress impeachment.
- [A] The Impractical Nature of the Impeachment Procedure
Article 61 posits an elaborate procedure for impeaching the President. First, a charge has to be filed by either House of Parliament. Second, this charge must be contained in a resolution moved after fourteen days of issuing a notice signed by one-fourth of the total members of the House. Third, this resolution must be passed by a majority not less than two-thirds of the House. Fourth, the other House will investigate such charge, where the President will be allowed to be represented. Lastly, if a majority of two-thirds sustains the resolution, the President will effectively be removed from office. Evidently, impeachment is not a simple affair. It involves a lengthy procedure which may be ineffective in accomplishing its objective due to its dependence on the presence of both Houses of Parliament.VN Srivastava rightly observes-“Our Constitution expects the President to submit himself tamely to the exigencies of this process after he has deliberately and intentionally violated the same, especially when he has multiple ways to escape!”
Article 61 is inefficacious as it allows the President to “escape” impeachment in two ways. On the one hand, Art 85(2) empowers the President to prorogue and even dissolve the Legislative Assembly. As Dr. Ambedkar noted in the Constituent Assembly debates, these powers (to prorogue and dissolve Parliament) are prerogative- they can be exercised discretionarily, independent of ministerial aid and advice. These powers allow the President to prorogue or dissolve the House when in session- he canthus suspend his impeachment procedure perpetually. On the other hand, even if the President is found guilty in the investigation stage of the second House, a sustenance of the resolution requires ratification by at least two-thirds of the investigating House’s members, which is practically inconvenient and inexpedient. At hand will be an incongruous scenario- we will have a President adjudged guilty but unimpeached due to want of majority ratification. If the President commands the confidence of more than one-third of the House, a two-thirds vote will operate as an insurmountable barrier to his impeachment. Therefore, while the majority requirement was primarily intended at mirroring the seriousness associated with impeaching the constitutional head, in actuality, it acts as a procedural barrier detracting from the objective of checking the unguided exercise of Presidential power.
- [B] Violation of the Constitution: A Conundrum
The second complexity pivots around the abstract ground upon which Presidential impeachment is predicated-a “violation of the Constitution.” Nevertheless, it is uncertain whether this alludes to a violation of specific provisions of the Constitution or to the fundamental principles that animate it. While professing his views on the same, Dr. Ambedkar furnished a wide interpretation of the phrase, encompassing “bribery, treason and other high crimes misdemeanours.”This was because any President who engaged in such misdemeanours automatically violated the oath of his office. Presently, under Article 60, the President is required to affirm that he will “to the best of his abilities preserve, protect and defend the Constitution.” This can again refer to specific provisions or governing principles.
Ministerial advice tendered to the President is not always constitutional. As the court in MP Special Police Establishment pointed out, there could be scenarios, “where by reason of peril to democratic principles, an action may be compelled, which by its very nature is not amenable to ministerial advice.” For instance, the advice of the Council may suffer from manifest prejudice. In such circumstances, the President may compel the Council of Ministers to “reconsider” such advice. Such reconsidered advice is binding on the President. As Prof. K T Shah noted, ministerial advice would always prevail, but only after the President had drawn attention to other aspects that the Minister had ignored or overlooked.
- [C] President’s Disregard of Unconstitutional Advice: Violation of the Constitution?
However, when such reconsidered advice also seeks to achieve an unconstitutional objective, the President finds himself mired in a bizarre conflict. On the one hand, as a conscientious individual, he is required to defend the Constitution in furtherance of his oath, as was reiterated in Rameshwar Prasad. On the other, he is obligated constitutionally to conform to the reconsidered advice. Faced with this predicament, if the President chooses to adopt a constitutional objective and discards his Council’s advice (thereby upholding his oath), he cannot be considered to have “violated the constitution” in the true sense of the term. This understanding was prevalent amongst several members of the Constituent Assembly as well- when Alladi Krishnaswamy Aiyar remarked that disregarding ministerial advice would qualify as an absolute violation of the Constitution, there was wide disagreement in the Assembly.
In such cases, discarding Ministerial advice might not result in the concrete establishment of a charge for constitutional violation by the investigating House. Here, it is evident that impeachment ceases to be an effective method of restricting presidential discretion. As Shubhankar Dam notes the only other alternative available to the Council of Ministers is for them to resign as an indication of their protest.[ii] Therefore, in the absence of constitutional remedies, checks on Presidential power are abandoned to the vagaries of political caprice. The objective sought to be achieved by Article 74(1)- to ensure Executive responsibility- remains unrealized.
Presidential Influence on Decision-Making
Article 78 allows the President to realize his monarchic powers of “consultation, encouragement and warning.” This article obligates the Prime Minister to “communicate all decisions” and “furnish information” about Union administration whenever the President calls for it. As it would be absurd to require the Council of Ministers to advise a requisition of information against themselves, these powers are exercised discretionarily by the President.[iii] Article 78 is instrumental in achieving accountability and transparency in governance. However, apart from this, it accomplishes another critical role- it allows the President to radically influence, albeit indirectly, the ministerial decision-making process on matters of significant national importance. Even if the President cannot streamline executive decision-making directly, the force of his constitutional position compels the Prime Minister to heed his advice. As J Krishna Iyer astutely observed, “the imprint of his personality may help rectify and chasten the Government.”
It is a well-known constitutional aphorism that “executive power inheres in individuals collectively responsible to the Legislature.” In India, therefore, the locus of executive power
should be the Council of Ministers. However, the exercise of power under Article 78 effectively shifts the locus to the President, who becomes the “puppeteer,” guiding the exercise of executive power. This is antithetical to the norm of Parliamentary democracy, where ideally, “the Prime Minister and his Council of Ministers rule the country and the President will, now and then, be permitted to aid and advice the Council of Ministers.” In our constitutional framework, the President’s role is much more “pervasive and persuasive” than was legislatively conceived for him. Consequently, legislative and judicial efforts to curtail his powers inevitably fail.
Conclusion
The court in Keshavan Madhava Menon observed that, while an argument based on the ‘spirit’ of the Constitution was perpetually attractive since it appealed to emotion and sentiment, it was the court’s mandate to gather the ‘spirit’ from the language of the Constitution. “What one thinks or believes to be the constitutional spirit cannot prevail if the constitutional language does not support the view.” The jurisprudence on Presidential power in India also suffers from the same fallacy- it is guided by norms which are not codified in our Constitution. As a result, the objective of entrenching Parliamentary governance in India remains unfulfilled. As this essay has demonstrated, Article 74, which seeks to reduce presidential discretion, remains frustrated due to a lack of adequate remedies upon non-conformity. The only way out of this conundrum is to bring about a comprehensive change to other articles which confer powers upon the President, for instance, Articles 61 and 78.Legislative assessment of articles must abandon singular views and adopt pluralistic perspectives. This will ensure effectiveness and robustness.
[i] Shubhankar Dam, “Executive” in The Oxford Handbook of the Indian Constitution (1st Edn, Oxford University Press, 2016).
[ii] ibid.
[iii] U R Rai, Constitutional Law: Governance Structure (2nd Edn., EBC Publishing, 2022).
The author is a second-year student at the National Law School of India University, Bangalore
Image Credits: Shutterstock
Constitutional Law Society 
Leave a comment