The President of India: The Constitutional Head with Discretionary Powers
| DOI | 10.1177/0019556117720618 |
| Author | Ruchi Tyagi |
| Date | 01 September 2017 |
| Published date | 01 September 2017 |
| Subject Matter | Articles |
Article
Indian Journal of Public
Administration
63(3) 330–351
© 2017 IIPA
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/0019556117720618
http://journals.sagepub.com/home/ipa
1 Associate Professor, Department of Political Science, Kalindi College, University of Delhi, Delhi,
India.
Corresponding author:
Ruchi Tyagi, E 7/10A Vasant Vihar, New Delhi 110057, India.
E-mail: ruchityagi@hotmail.com
The President of India:
The Constitutional
Head with Discretionary
Powers
Ruchi Tyagi1
Abstract
The Constitution of India has vested the President with the role ‘to aid and
advise’ (Article 74) while expecting him/her to use authority and influence
under certain circumstances, yet leaving the actual decision-making with the
Cabinet. The president may be assertive and use his/her discretion under certain
circumstances—in appointment and dismissal of the prime minister, maintaining
relationship between prime minister/president and Council of Ministers,
exercising right to be informed, dissolution of the parliament, use of veto
power, etc. In fact, the equation within the Union Executive depends upon the
factional balance of forces in the ruling party or coalition, the political conditions
of hung parliament, party splits and naked struggle for power along with the
personalities of the principal actors involved. The experiences have showed that
the president’s role was definitely not that of a mere rubber stamp.
Keywords
Constitutional head, independent presidency, discretion, collective responsibility,
coalition, aid and advise, information, prosecution, dissolution, veto, disallowance
Introduction
Vested with the role ‘to aid and advise’ (Article 74), which could lend the presi-
dent as much authority and influence as his/her own personal character, capability
and political situation would warrant and leaving the actual decision-making with
the Cabinet, in fact, is the actual position of the president of India. Article 53
states the powers of the president and these powers have remained unchanged by
the 42nd and 44th Amendments of 1976 and 1978. The Article provides that the
Tyagi 331
executive power of the union shall be vested in the president and shall be exer-
cised by him/her either directly or through officers subordinate to him/her in
accordance with the Constitution. In Article 74, after the words ‘aid and advise the
President’, the 42nd Amendment inserted the phrase ‘who shall, in exercise of his/
her functions, act in accordance with such advice’. And the 44th Amendment only
gave the president the right to return a proposal to the cabinet for reconsideration
only once and bound him/her to that advice—whether changed or unchanged.
Even so, if a prime minister dies or a government resigns, the president still has
considerable discretion (Verney, 2011).
While there may not be any occasion for the president speaking to the media
or in public against the policies or acts of his/her own ministers, he/she has every
right ‘to be consulted, to encourage, and to warn’ his/her ministers where neces-
sary (Kashyap, 2002).
First Prime Minister Jawaharlal Nehru explained president’s position in the
Constituent Assembly by saying:
We want to emphasize the ministerial character of the government that power really
resides in the ministry and legislature and not in the President as such. At the same time
we do not want the President to be just a mere a gurehead like the [pre-vth Republic]
French President. We do not want him to have any real power but we have made his
position one of great authority and dignity.
He added, ‘You will notice he is also to be the commander-in-chief of the defence
forces just like the American President is’ (Constituent Assembly Debates, 1989).
The Constituent Assembly never envisaged that the powers and functions vested in
the president would be exercised by him on his own without the advice of the min-
isters. This point was clearly elucidated by several members in the Constituent
Assembly. While introducing the Draft Constitution as settled by the Drafting
Committee, Dr B. R. Ambedkar, the Chairman of the Drafting Committee, made it
clear:
Under the Draft 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.... The President of the Indian Union
will be generally bound by the advice of his Ministers. He can do nothing contrary to
their advice; nor can he do anything without their advice. (ibid., VII, p. 32)
In his capacity as the president of the Constituent Assembly, Rajendra Prasad also
expressed on the day the Constitution was passed:
Although there are no specic provisions, so far as I know, in the Constitution itself
making it binding on the President to accept the advice of his Ministers, it is hoped
that the convention under which in England the King acts always on the advice of his
Ministers will be established in this country also and, the president, not so much on
account of the written word in the Constitution, but as the result of this very healthy
convention, will become a Constitutional President in all matters. (ibid., XI, p. 988)
Thus for all practical purposes the President is a constitutional head.... The Constitution
lays down specically either in the matter of performance of a governmental action or
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