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The Powers of the President and Union Council of Ministers under the Indian Constitution

Niyati Nagar

India has got one of the most elaborate constitutions in the world, yet some of the important parts have been left unwritten or in ambiguity. One such provision is related to the powers or position of the President in India. According to the black letter of the Constitution, the President of India is a mere constitutional head of the republic which is governed by the common law conventions, i.e., the general practice adopted. The position and power of the President in India is a subject of debate and the first President of India, Dr. Rajendra Prasad had given hue and cry to this controversy by presenting a contradictory statement in the 1960s against his own speech in the Constituent Assembly.

Let’s discuss the contemporary position and power of the president in India as ascribed under articles 74 and 75 of the Constitution of the Republic of India:

Position of the President under the Constitution of India

The President of the Republic of India holds the position of a ‘Constitutional head’ of the country and a nominal head of the Government being the head of the executive or the executive itself. The intention of the framers of the constitution was to establish a parliamentary system of government but the years-old practice of having a king could not be denied as was retained by the Common Law regime and therefore, a nominal post was created under the Constitution. Article 52 of the Constitution of India declares that “there shall be a President of India”. The literal interpretation of the term ‘shall’ establishes that the position of the head of the state should never be left vacant and there shall always be a President. President is the head of the executive wing of the government of India and all the transaction with and by the government of India has to be in name of the President.

Powers vested in the President of India under Article 74 and 75 of the Constitution of India

Article 74

This provision of the Constitution submits for the constitution of a Council of Ministers with the Prime Minister as its head which will ‘aid and advice’ the President of India, who is required to act on such advice. The said provision has been a subject of controversy for it seems to be limiting the discretion of the President rather than empowering his position.

The unambiguous language of the provision states that even when the President can ask the Council of Minister to reconsider their advice he/she is obliged to follow it on reconsideration, rendering any possible use power or discretion by him/her.

The term ‘aid and advice’ was first used in India, in the Government of India Act, 1985, providing Council of Ministers to aid and advise the Governer-General in all the matters except those expressly left for the Governor’s discretion. The Constitution of Present India sought to remove any discretion if any.

Article 75

The Constitution further makes the Council of Ministers collectively responsible to the House of People (Lok Sabha), establishing the Parliamentary form of government, President is a part of which. However, the doctrine of ministerial responsibility to the legislature appears inconsistent with the provision where the minister holds the office during the pleasure of the President. This clarifies a position, that as long as a ministry is under the confidence of the legislature, the President is helpless even when he/she is of the opinion that it be removed or altered.

Moreover, the appointment of Prime Minister is the power of the President under Article 75, however, the provision merely says appointment and does not provide for the President’s choice of denial of such an appointment. Even if the President refuses to appoint a Minister of on the ground of their unsuitability, the Prime Minister can only resign and threaten impeachment. This is because the aid and advice by the Council is an obligation for the President to follow, denial of which can result in impeachment proceedings.

Thus, it can be concluded that the power with the President comes with limitations on its use, or it can be said that the power is only confined to the text and is very difficult in its practical exercise under the contemporary political system of India.


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