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Indian Political Science Association

Author(s): K. R. BOMBAWALL and K. R. BOMBWALL
Source: The Indian Journal of Political Science, Vol. 27, No. 3/4
(July—September—December 1966), pp. 23-36
Published by: Indian Political Science Association
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Accessed: 01-12-2017 13:04 UTC

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The Hindustan Times» 30 November 1960.162 on . N. 3 More recently. Rajendra Prasad him course of an address delivered at the Indian Law Institute. Allahabad . I. Taking an ultra-literal view of certain constitutional provisions. 01 Dec 2017 13:04:13 UTC All use subject to http://about. the late Dr. Thus.199. 1951. The Republic of India. THE PRESIDENT OF INDIA LIMITS OF DISCRETION By K R. In view of the differenc the constitutions of Great Britain and India. 1950. 103. Allen Gledhill. "Position of the President of India". referring to article 74 (I) of the constitution. The Modern Review December. act without or in disregard of the advice of his Ministers in exercising the powers formally vested in him. 3. Banerjee has observed : "The essential point is whether the President is legally bound circumstances. " 1 According "It is possible to contend that the constitution does not sufficie against the President becoming a dictator" ' He takes the "without violating the Constitution the President can establish an rian government". which provides that "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his funetions". D. p. he raised the question it was proper to equate the position of the President of India with 1. the controversy regarding the President's posit revived by India's first President. he drew to the fact that "There is no provision in the Constitution which i words lays down that the President shall be bound to act in accord the advice of his Council of Ministers" 4. if he chooses. Banerea. There has been considerable academic debate in India as regards the role contemplated in the Constitution for the President of the Republic. London. 458. BOMBAWALL Motilal Nehru Regional Engineering College.jstor. This content downloaded from 210.212. Ibid. 2. My submission is that he is not. D. N. some scholars and jurists have held that the President can. P. P. 4.

Domcay. 975-80. after giving 'anxious thought to the matter'. M. former Chief Minister of Uttar Pradesh and at present Governor of Rajasthan. In the first place. in his opinion make this necessary". however. Views expressed in the symposium presented a wide spectrum ranging from the one which regarded the President of India as a complete analogue of the British sovereign to the one which looked upon him as a potential de Gaulle. The Hindustan Times.9 In view of the continuing controversy. A few members argued in favour of the presidential system as more suitable to India on account of its strength and stability10. PP. it may be instructive to see what role the framers of the Indian Constitution envisaged for the President. Ibid. 26 January . was strongly opposed by spokesmen of the Drafting Committee and.199. Prime Minister Nehru declared in a press conference that Dr. This content downloaded from 210. Dr. has stated that "The only way to save democracy is to vest the President with the power to intervene in the administration when circumstances. K. K. Sampurnanand. 8 Commenting on the role the President should play. A few days later. the Assembly decided in favour of the "ministerial s. r. 9. In a newspaper article published some three years ago K.jstor. Munshi. He felt the need of "study and investigation in a scientific manner so that we may know what the scope of powers and functions of the President is" 5. envisaged for the Indian President a much more positive role than one would attribute to a purely constitutional head of the State. The late Professor K.162 on Fri. The Hindustan Times. M. Discussions in the Constituent Assembly brought out three points quite clearly. P. 7. T. Nevertheless. 1962. it was unmistakably the intention of the constitution-makers to adopt the parliamentary form of government for the country.212. 01 Dec 2017 13:04:13 UTC All use subject to http://about. rr • 157*58. a fact highlighted in a symposium published in a New Delhi weekly wherein a large number of well-known scholars. Prasad's observations touched off what the Union Law Minister A. Prasad's remarks were 'casual'. 1961. He maintained that some of the powers of the President were "supra-ministerial' where the ministry could not be relied on to advise him. 6. [ 24 ] British 'monarch. lhe Hindustan limes (Republic Day Supplement). an eminent politician and member of the Constituent Assemly. 6 Despite Nehru's assertion that 'Politically and constitutionally' the President's position is akin to that of the British Crown.. Sen described as a major political controversy since the constitution came into force ". politicians and jurists participated. Prasad continues to evoke conflicting answers. This view. Sampurnanand Memories and Kenections. L 8. Sana was one of the most vocal advocate« or the presiden- tial system See Constituent Assembly Debates. 16 December 1960 r. "Powers and Functions of the President . the question posed by Dr. coming as they did from the first occupant of Rashtrapad Bhavan. 10. VII. 6. IV.MunsKi. 26 March.

on the contrary. IV. 4 This content downloaded from 210. for instance." After weighing the pros and cons of the parliamentary executives as they obtain in Great Britain. but not of the Executive"14. to act on the advice of his ministers. A D. It even* omitted from the constitution a Schedule of Instructions for the President which was included in *he Draft and which. in Para 3.212. x. has been done in article 13 (9) of the Constitution of Ireland. with a view to emphasis position as the constiutional head that a provision in the empowering him in specific terms. left the position deli berately indefinite. said that "in all matters withtn the scope of the executive power of the Union.. Ibid.199. Article 3 of the new constitution of Japan similarly Provides that "the advtce and approval of the Cabinet shall be required for all acts of the EmPeror in matters of state". in the Dominions and in some continental countries.jstor.. P. categorically stated that "The President means the Centra to Parliament"15. "The President. by the recognised principles and conventions of this form of government. In view of all this positive evidence of the f make the President a constitutional ruler. He even asked whether there was a stating in the * constitution in so many words that th 11.1 3 In the second place. Krishnamackari put tke Position a -So far aa tke relationship between ihe President and ths Cabin have . the Indian Constitution has adopted the institution of parliamentary executive".162 on Fri. 956. Ibid. P. 14.. 15. According to "the head of the State. VII." Dr. . T. completely copied the system of responsible governmen in Britain to-day". 134. be guided by the advice of hU Ministers". 01 Dec 2017 13:04:13 UTC All use subject to http://about. in th® of his pç>wer#. Ibid. Rajendra P the Constituent Assembly. Ambedkar "occupies the same position as the King in the British Constitution can do nothing contrary to their (the Ministers') advic 'symbolic' position was repeatedly stressed.. 13. 32. and the presidential type of government fis it obtains in the tJnited States of America."1 1 To quote Alladi Krishnaswami Aiyer. [ 25 ] character of the government" in which "power resided in the Ministry and the Legislature and not in the President as such. the framers accepted it as a natural corollary of the adoption of the parliamentary system of government that the President of India would be a constitutional head like the British monarch and that he would be bound. C A. (Jawaharlal Nehru) 12. VII. the President •hall.. 896. in fact. P. 124. As.1 6 No less a man than Dr. it is somewhat position was not stated in specific language so as to put th pale of controversy. Ibid. The Indian Constituent Assembly. It was. expressed the doubt whether clear constitutional provision the President would feel bou on ministerial advice. to act in his discretio was dropped. C. D. T. 16. P. IX.

269. 150. Emphasis in the original. p. C. 2 2 That the framers expected the President to be more than a mere rubber-stamp is. 01 Dec 2017 13:04:13 UTC All use subject to http://about. 25. the President may well become a 'constitutional autocrat'. IX. "The whole scheme of the Consti tuion". 25 What. .The President under the Indian Constitution... it must be conceded that the position was not Precisely spelled out in the text of the constitution 2 4 As a result. 23. to project the image of a constitutional President. A. XI. M. Dr.. VIII. P. IV. p 213. However. Alladi Krishnaswami Ai yar ••••. he also said that the President "will -be generally bound by the advice of Ministers" ai.. though the constitution-makers intended the President to function as a constitutional head. Ibid. 20. in any case. Ibid. K. X. "has been envisaged on the basis that the President is a constitutional head even if we have not put it in so many words in the Constitution"1 8. True. the Constituent Assembly did not understand that they were creating a powerless President. C. This content downloaded from 210. Ibid. 32. D. clear from Jawaharlal Nehru's view that the President of India would not be an automaton like the President of (pre-de Gaulle) France and that "we did not give him any real powers but we have made his position one of authority and dignity. however.162 on Fri. it continues to be said in certain quarters that.. Ibid. IX. 18. P* 9. that the position was clear enough in the constitutional provisions els they stood. Ambedkar even want to the length of assuring a member that the President would be liable to impeachment if. p.. Ibid. however. A. 19. Dr Ambedkar did say on one occasion that the President would be "a mere figure-head who has no discretion and no powers of administration at all" 20. 1036. In fact. then. 734. in any particular case. 974.212. Ibid. as far as the constitution is concerned.*' 2 3 While the general intention of the framers was. is the position in terms of the actual provisions of the 17. it was asserted. were their personal opinions. Munshi bolds that the word 'authority* used by Pandit Nehru 'could not posstbily be equated with powerlessness: its plain meaning is legal power". In the Coijsembly itself some members felt that "too much power has been given to the President". Munshi declares. VII. Ambedkar spoke somewhàt vaguely of the President's 'prerogative powers'. p. reinforced by the conventions developed in the working o£ parliamentary government in Great Britain.. Ibtd. 988. he did not act on the advice of the Council of Ministers.19 In the third place. The assurances given by Dr. Members of the Drafting Committee felt. Ambedkar and Dr. L 26 1 bound by the advice of the ministers. 22. p. 24. 1963. Bombay. M.199. D. that "in adopting the relevant provisions. K. VII p. p.jstor. it waè not the unanimous view of the House . 7. The use of the word 'generally' would seem to leave room for the President to act in his discretion in some exceptional circumstances. it was evidently not their intention to make him a figure-head. thus.

But In all these cases.jstor. with the Prime Minister at the head.212. 01 Dec 2017 13:04:13 UTC All use subject to http://about.199. The Instrument of Instructions appended to the Government of India Act. therefore. made it clear that the phrase 'aid and advise' used in the Act meant that the Governor-General and the provincial Governors were to be guided by the advice of their respective ministers except where they were specifically required to act in their'discretion or to exercise their individual judgment. provide that the ministers shall hold office during the pleasure of the President. the mean- ing attached to 'advise' is to decide in the name of the state'. that the phrase 'aid and advise' has to be understood in India also. 1867 (S. P. However. A. Does he have to act in accordance with their advice ? Taken literally. the phrase is "a constitutional euphemism" 2 7 and embodies the well-known British convention whereby the King always acts on the advice of his ministers even though all power is legally vested in him. act on the advice of his ministers. to aid and advise the President in the exercise of his functions". The phrase 'aid and advise' ti used in the British North America Act. in all matters. The Constitution of India itself makes such an exception in the case of the State Governor who. The Constitution of the Union of South Africa uses the word 'advice'. (S. The categorical language of this article clearly means that there must always be a Council of Ministers and that the President cannot act without their advice. presuming that the President is under no obligation to be guided by the 'intentions' of the framers ? The entire controversy regarding the President's 'powers' turns upon the interpretation of articles 53 (I). D. 270. Article 75. it is logical to conclude that he must. t 27 ] Constitution. of course. the phrase 'aid and advise' may seem to suggest that the ministers have to function as the President's advisers and that it is for the latter to make decisions. The new consti- tution of JaPan seels to avoid i he ambiguity of 'advise' by employing the Phrase ''advice and aPProval". that is. X.162 on . Since the Constitution does not contain any provision requiring the President to act in his discretion. but 'during the pleasure' like 'aid and advise' is one of the constitutional fictions of 26. C. Such a conclusion is supported by article 75 (3) which makes the Union Council of Ministers collectively responsible to the Lok Sabha. Article 53 (I) lays down that 'the executive power of the Union shall be vested in the President" and is to be exercised by him "in accordance with the Constitution".(2) does. 74 (I). (Article 3) 27. according to article 163 (I) is exempted from the obligation to act on the advice of his ministers where he is required to act in his discretion. 86) and the Commonwealth of Australia Act. 2 6 As Alladi Krishnaswami Aiyer put it in the Constituent Assembly. 75 (2) and 75 (3). 1935. in accordance with the stipulation made in article 74 (I) which provides that "There shall be a Council of Ministers. 6a). 1900. This content downloaded from 210. 'aid and advise' is a term of art and has acquired a generally accepted connotation from the constitutional practice of Great Britain and the Dominions. It is in this sense.

t 255). 01 Dec 2017 13:04:13 UTC All use subject to http://about. thus. Rau has stated . 375.30 Evidently. 1960/ p. Not only is there no provision requiring the President to accept and abide by the advice of his ministers. it is laid down in article 74 (2) that the question whether any and. no less difficult than to mix oil with water.199. the sanctions to prevent the President from exercising arbitrary authority must be conventional and political rather than legal. India's Constitution in the making. argued that the President is free to reject ministerial advice as no limitation can be put on his powers except by a specific provision of the Constitution. the President acts in disregard of the advice of his ministers. R. former Chief Justice of the Supreme Court.jstor. have. Some jurists including Patanjali Sastri. Even if in any Particular Instance the President acts otherwise than on Ministerial advice. 30. The unambiguous spelling out of the principle of ministerial responsibility must. be taken to predicate a constitutional status for the President. C. in fact. t 28 1 parliamentaty government To combine a 'responsible' Council of Ministers with a President who may dismiss ministers at will is. This is likely to be impossible since the outgoing ministry would presumably continue to enjoy the confidence of the House even after its forced resignation. however. In Ram Jawaya V . If the gamble succeeds. N. in an opinion expressed in an important judgment supported this view. the President will be faced with the problem of finding an alternative ' Council of Ministers willing to accept responsibility for his action and able to muster the • support of a majority in the Lok Sabha. the validity of the act cannot he challenged in a court of law -on that ground". This content downloaded from 210. what advice is tendered by the ministers to the President cannot be enquired into in any court.28 It must be conceded. As there is no provision corresponding to article 356 enabling him to deal with the breakdown of constitutional machinery at the Centre. 161. The Supreme Court of India has. if . The President may try to break the deadlöck by dissolving the Sabha and gambling on a fresh general election. tender their resignation. The President may install a minority Government but the latter will fall the moment it faces a hostile Lok Sabha. that the Constitution does not provide any legal sanction to ensure that the President will. 2 S. in fact.212. Madras. indeed. L. in violation of the recognised conventions pf parliamentary government. If. the latter will. Madras. 1960. therefore. been made a formal or constitutional head of the executive and the real executive Powers are vested In the Ministers' 29. F. Punjabi. B. the new Lok Sabha may support a Government willing to accept responsibility 28. function as a constitu- tional head. Rajendra Prsaad.162 on Fri. The SuPreme Court has observed : The President has. K. the State of Punjab (1955. in aU probability. 2 9 Article 361 provides that the President shall not be answerable to any court for the exercise and performance of powers and duties of his office or for any act done or purporting to be done in the exercise and performance of those powers and duties.

it may be asserted. Speaking in the Lok Sabha in April 1957. has been singularly lucky in having Dr. he held 31. a President who has more courage than prudence can. op. His te such that he "would rather reach an understanding than force an issue.jstor. 01 Dec 2017 13:04:13 UTC All use subject to http://about. 8 July 1939.162 on Fri.212. Some eighteen months later. the President's predicament may be so grave as to force him to resign. 34 Without ceasing to be a Congressman. It must be emphasised that impeachment. Rajendra Prasad as her first President. One of the country's 'tallest' leaders. on the advice of the Prime Minister' 31 . Nehru h declare again. Dr. No President. one may say. In any case. Punjabi. L. therefore. the electorate may return the outgoing Government to power.this time in reference to the controversy ge Rajendra Prasad's address to the Indian Law Institute that " is and has always acted as a constituonal head". 18 April 1957. eit. In the twelve years he occupied the Rashtrapati Bhavan. One may assume.. p. Prasad carrie with a rare grace and self-effacing devotion to duty. as is equally possible. Rajendra Prasad to the Prime Minister wherein the former was reported to have expressed opinions different from those of the Cabinet on matters like cooperative farming and state trading in food- grains . is essentially a political weapon to be used by Parliament which is not a court of law and which is likely to decided on political rather than legal grounds the question whether the President's actions amount to violation of the Constitution. Law Minister A. The consensus of opinion is that he has consistently acted in conformity with the framers' design. he displayed a sense of and personal propriety which gave a good start to parliamentar India. K. 32. . The Hindustan Times* 16 December I960. 33 India. that the President will be guided more by what is constitutionally proper and politically expedient thaa by what may appear to be legally permissible. The assumption is supported by whatever evidence is available in regard to the actual manner in which the President of India has been functioning during the past fifteen years. t 29 1 for the President's decisions. despite its quasi-judicial appearance. that is to say as a constitutional head. P. n. Sen asked members to remember that the President "acted on the advice of the Cabinet and to "be more specific.199. p» 163. The Statesman. be brought to heel through impeachment. The Hindustan Times. L 34. In such an event. would normally run the hazards involved in such an endeavour to assert his authority against the advice of his ministers. in the last resort. 33. 4. 30. This content downloaded from 210. Nehru was speaking in reference to a contro- versy relating to the leakage of a letter addressed by Dr. K.". In a press conference (July 1959) Prime Minister Nehru was able to assure journalists that the "President is a constutional ruler that of the Cabinet " 3a.

however. n. [ 30 ] himself rigidly aloof from party politics and truly became a symbol of the nation. if . This content downloaded from 210. The President can state his objections to any proposed course of action and ask his Ministers in Council. Dr. it was due not to any attempt on his part to assert himself but to the clumsy manoeuvres of some interested politicians and over- zealous admirers. again. On his part. If.. the President has to act on the advice of the ministers. as B. Far from being an automaton. often.212. "acting on ministerial advice" does not mean immediate acceptance of the Ministers' first thoughts. If on one or two occasions his name was dragged into controversy. Prasad discouraged all attempts to build a 'King's party' or even a presidential lobby within the Congress parliamentary party.jstor. He showed no inclination to exploit his immense popularity and prestige in order to set himself up as an independent focus of power. the present President of India. Until the archives of the period are released for public study. 382. S. N. he was just the man to fill the role of a constitutional head of the state. and. Of course. is in line with the role envisaged for him by the constitution-makers. In short. Available evidence seems to indicate that Dr. to good purpose. it does not follow that the President is a figure-head whose role is limited to performing opening ceremonies. his life-long friendship with Prime Minister Nehru and their profound regard for each other made for cordial and strainless relations between the two. p. in other words. attending state banquets. Prasad exercised this residua] authority in ample measure. 29. Article 78 which defines the true scope of the President's powers requires the Prime Minister to communicate to the President the 'decisions' of the Council of Ministers regarding the administration of the affairs of the Union or proposals for legislation ami empowers the President to rlomanrl that a decision taken by an individual minister should be submitted to the Council of Ministers as a whole. thus. to reconsider the matter. the right to be consulted. Rau. It is only iti the last Tesori that he should accept their final advice"35. Radhakrishnan. Besides. the Constitution has contemplated and actual practice has demonstrated the 'constitutional' character of the Indian Presidency.162 on Fri. He has. it will not be possible to (35) B. There is evidence to show that Dr. possesses the British monarch's three traditional rights. This. is following the tradition established by his illustrious predecessor and has shown no desire to act as Plato's philosophef-king to whom some eulogists compared him on his elevation to the highest public office in the country. N. 01 Dec 2017 13:04:13 UTC All use subject to http://about. the right to encourage and the right to warn. delivering platitudinous speeches written up for him and signing on the dotted line. he holds an office of great dignity and considerable influence. Rau has put it. op. The Indian President. cit. a residual authority to "enforce mature deliberation of important questions of policy". But.199.

the President has no choice in the matter. It is advisory rather than decisive" 3 8. equally true of the President of India. the Indian President may have greater freedom of action in view of the proliferation of parties in this country. What Ivor Jennings has said of the British King is. op. (36) K.jstor. A." wrote "B. at the time. p. for example. the present Queen appears to have taken a personal decision in selecting Harold Macmillan rather than R. accept ministerial advice in all matters which the ministers regard as important enough to involve their responsibility. This content downloaded from 210. Ordinarily. (37) B. There may conceivably be rare but significant occasions when no ministerial advice is available to the President. t 31 ] assess precisely the quantum of influence he was able to exert on the shaping of the Union Government's policies. If. op. Thus when Neville Chamberlain resigned in 1940. Such an occasion may arise. n. in regard to the selection of a Prime Minister. N. 3rd ediu. which still holds a majority in the Lok Sabha. If a single political party holds a majority of seats in the Lok Sabha and has a recognised leader. "is more readily heard when it can persuade but no longer coerce" 3 7 . In relation to ordinary policy his influence "May be substantial though it is rarely the deciding factor. L. 339. 29.199. if a Prime Minister dies suddenly or submits a personal resignation and his party. p. 36 It is known that he frequently communicated his criticisms and suggestions to the Prime Minister in writing and that these had a positive impact on the government's decisions. According to his biographer. 163. It is generally believed that his views had something to do with the postponement of the consideration of the Hindu Code Bill.212. however. 1939. párty position in the Lok Sabha is not so clear. P. The two-party system strictly limits the monarch's discretion in this field. This has been the position in India so far.. the President's choice is a foregone conclusion. available that his views carried great weight with the government. Cabinet Government . The British monarch is known to haVe played a decisive role in the choice of the Prime Minister under such circumstances. therefore. 382.162 on Fri. on the other hand. the President may be able to tilt the balance in favour of a particular individual by inviting him to form the government.. n. has no "accepted second-in-command ready to step into his shoes". Rau. 30. Ran. does leave a small area of executive action on the border line between ministerial responsibility and presidential discretion. in the last resort. On the other hand. However. he may be able to exercise some discretion in picking one òtit of two or more claimants. N. he was not even a member of the Cabinet. Winston Churchill was the King's choice . Some indications are. Again. of course. he never pressed his views on the Govern- ment beyond the limits of persuasion "The voice of reason. London. Again. Prasad advised the Prime Minister in favour of postponement and was reported to have been ready tp appeal to the legislature by sending a message with that recommendation. Punjabi. This. cit. cit. Butler as Anthony Eden's successor in 1957. however. 01 Dec 2017 13:04:13 UTC All use subject to http://about. He must. Dr. (38) Ivor Jenntnfi.

George V is reported to have actually refused a dissolution in 1910 but it is known that a threat of resignation by the mmistry made him change his mind. In Great Britain.162 on Fri. 18 August l96l. Quoted In Ivor Jennings. The President of India too. In 1913. 1 32 ] It is less certain whether. wrote tn I9I3 : * I entirely agtee that the King can do nothing except on the advice of Ministers I totally disagree with the doctrine drawn from this principle that he can never dismiss his Ministers In order that he may ascertain the will of the people". the President can dismiss the Council or Ministers in his discretion. the monarch's right to dissolve the House of Commons is held by most authorities to have been "Atrophied by disuse".org/terms . it may be argued that he has a legal right to do so. n.. The absence of an añalogous provision in respect of the Union Cabinet would seem to . at best. Prime Ministers may. lend further support to the view that the President's power to dismiss ministers is a technical rather than a substantive power. the principle of 'collective responsibility'. op. The President's power to dissolve the Lok Sabha is. the King was known to have considered the use of this prerogative but Asquith was able to point out tò him that such action on his part would "Inevitably prove disastrous to the monarchy".jstor. Dicey who. under any circumstances. wilťfind it virtually impossible either to exercise the right on his own or to reject a Prime Minister's request for dissolution. In Great Britain. Under the parliamentary form of government. also inscribed in the constitution. The President can use his authority under article 356 to remove a State Council of Ministers even when it has a majority in the legislature.212. However. p. of course. 4 1 . during the Irish Home Rule controversy. 40) The Governor of Punjab recently used his corresponding power to dismiss Revenue Minister Rao Birendra Singh on the advice of the State Chief Minister". makes the President's right a purely theoretical one.199. similar in character. have practical significance only as a device for enabling a Prime Minister to get rid of an inconvenient colleague who cannot be persuaded to resign 40. 407. (4I) There are some Commonwealth examples of the Governor General forcing thç resignation of a ministry hy rejecting a request for dissolution* This content downloaded from 210. cit. 38 p. The general position appears to be that in a parliamentary government the head of the state cannot dismiss a ministry which enjoys the confidence of the legislature without causing a chain of consequences which may make his own position untenable. The Hindustan Times. it seems. The same view was more recently expressed hy A. during the Irish Home Rule controversy. the monarch's right to dismiss his Ministers. by and large.V. advise a dissolution not only because they have trouble with the legislature but because they feel that a particular moment (39) In 1878 Disraeli advised Queen Victoria that the monarcK had "a clear constitutional right to dismiss them (the ministers) despite their present parliamentary majority". inlaw 39. I. has never been used since 1783. 01 Dec 2017 13:04:13 UTC All use subject to http://about. the 'pleasure' clause in the Constitution may. In view of the 'pleasure* clause in article 75 of the Constitution. which is still believed to exist. In India.

N. for it is difficult to see what hope the President can have of áccepting amendments suggested by him against thé advice of his ministers. it is conceivable that the Council of Ministers may advise the President to withhold assent from a bill for this purpose. It is far more difficult to conceive of the President exercising his power under article 111 without or against the advice of his Ministers since such action is likely toinvove him in the grave hazards which are bound to follow any serious clash between him and the Council of Ministers. 27.jstor. It is however. (42) The Practice in the States» however. cit. oP. According to . The Governor did not act on this advice and was atle to Persuade the Chief Minister to withdraw his resignation. n. In Í933 the RajPramukh of Travancore-Cochin dtd not accept the outgoing Chtef Minister's advice to dissolve the State Assembly. Rau. if its request for a dissolution is rejected. (43) B. Rau. possible to argue that this need not necessarily be the intention behind the article. has followed a somewhat different course. in effect. at «least in some cases. irrespective oí ministerial advice" 4 3. In 1938 the Chtef Minister of Orissa resigned and was reported to have advised a dissolution.the President thereunder are meant to be exercised. It must be noted. the President's discretion in this sphere is hardly likely to be of serious practical significance. Pé 37TÍ 5 This content downloaded from 210. 01 Dec 2017 13:04:13 UTC All use subject to http://about. even through unlikely.199. Consequently. Rau conceded that. However..212. N. B. even if a dissolution is sought merely as an electoral manoeuvre. however. [ 33 ] offers their party the best chance of an electoral victory. N. to the dismissal of the ministry with the attendant consequences of such action. that 'independent' exercise of the right of dissolution by the President or his refusal to grant a dissolution when asked for by the Prime Minister amounts. The article can just as well be understood as a means to enable the Council of Ministers to bring back a measure to Parliament for certain amend- ments 'which may have been rendered necessary by factors not foreseen or not taken into account at the time of its first consideration. the provisions of this article "are intelligible only on the supposition that the functions of . 4 3 Article 111 of the Constitution authorises the President to withhold assent from non-money bills passed by the two houses of Parliament or reconsideration along with such amendments as he may desire to suggest. The position is less clear if a second dissolution is requested by the same Prime Minister soon after a general election when there is no reason to believe that there has been a major shift in public opinion or when the formation of an alternative ministry is clearly possible in the event of the existing Ministry refusing to carry on the government. the President will have to accede to the request though he may do this 'in the last resorť after using his influence to persuade the Prime Minister 'to play the game*.162 on Fri.

According to one writer. The Indian Express. cit. It is stressed that the President's oath of office which requires him to 'preserve. "President's Powers". in <-«> rtaji contingencies. (New Delhi). cit. 46 Link. This content downloaded from 210. n. . M. 3. K.212. K. it is clear that the President "Can reject the advice of his Ministers. he may act in his discretion' not because ministerial advice is not available to him but becasue he feels that there is a clash between the 44. it is held that it is the President's function 'to hold the scales even between the States and the Union Government'. According to Punjabi. Appadorai has expressed the view that there being no provision correspondig to article 356 to deal with a breakdown of constitutional machinery at the Centre. P. t 34 ] Those who contend that the President can.. scheduled tribes and scheduled castes. oP.jstor. 23. n 8. Vol. if it would result in an encroachment on the rights of the States guaranteed by the Constitution. "a reserve power should be deemed to exist in the Head of the State to take such steps as are necessary to carry on the Government. 30. protect and defend the costitution is 'no empty verbiage' but that it imposes on him a personal responsibility which cannot be shifted to the ministers. further. 29 Januaiy 1961 .199. II July 1959. if "the President honestly comes to the conclusion that any particular advice tendered to him by his Ministers is subversive of the Constitution and that the acceptance of the same is countrary to his oath of office. 6. turn down the Prime Minister's request for a dissolution or withhold assent to bills passed by Parliament. P. IV. 163. for each emergency Kas to be judged by the President in the light of the circumstances in which it arises". He is supposed. Munshi has expressed the view that the Power to declare an emergency is left to the President's 'satisfaction*. ' Such a Power"." . the President is supposed to have several responsibilities such as to defend the fundamental rights of citizens and the special interests of minorities. to preserve law and order and to maintain the integrity of the State. A. One such occasion may arise if the Union Ministry were to advise the President to refuse assent to a State Bill dealing exclusively with matters within the jurisdiction of the State. tend to base their contention on the view that President has to act as a 'guardian' of theContitution. The implication drawn from the word 'satisfaction' is that the President is free to act otherwise than on ministerial advice. oP. 01 Dec 2017 13:04:13 UTC All use subject to http://about." 4 6 The clear meaning of postulating 'responsibilities' or 'reserve powers' for the President as flowing from his oath of office or otherwise is that. 45. Pheroze ]. he would be justified in rejecting it ' 44 As 'custodian' of the Constitution. to safeguard the legitimate interests of the States as against the Unioni. in his discretion use his formal power to dismiss his ministers. 33. No. P. Panjabi. dissolve the Lok Sabha. he writes "cannot be governed by any convention suPPosed or real.162 on Fri. Shroff. L. P.

in view of the President's oath of office. the President's judgement will be impartial or disinterested and that he will not become the leader or instrument of elements advocating policies opposed to those of the Union government ? It is necessary. serve a useful purpose by deterring arbitrary exercise of the President's marginal authority. This evidently amounts to giving the President the right to interpret the Constitution. The Statesman. If. What assurance is there that. that the President's oath of office or the provision for his impeach- ment ceases to have any meaning. the personality of the first Prime Minister and the weakness and fragmentary character of the opposition . the question arises whether there is any basis for the belief that the President is in a better position to judge things than the Council of Ministers or Parliament. The Indian Constitution provides for judicial review and empowers the Courts to strike down legislative measures or executive decisions which violate constitutional provisions relating to fundamental rights or special interests of minorities.162 on Fri.212. be conceded that it is too early at this stage to define the precise limits of presidential discretion under the Constitution.jstor. In short the judiciary is the guardian of the Constiturion and there seems to be no justification for expecting the President to play this role. (editorial).199. 01 Dec 2017 13:04:13 UTC All use subject to http://about. t 35 ) advice of his ministers and the provisions of the Constitution. It must. together. incompatible with the 'welfare of the people'. 14 May 1962. the temperament of the first President. in such matters. it is argued that he may have to reject the advice of his ministers in case it is in his judgement.which cannot be expected to last indefinitely. As a newspaper editorial put it graphically. scheduled castçs and tribes or the federal distribution of powers. of course. P. The obligations recorded in his oath of office and the possibility of impeachment can. three parts British King and one part American President or develop into an Indian Soekarno will dependjon the political climate 47. Whether the tradition of constitutionalism set by Dr. in which the President may} have to take decisions in his discretion.clt may be pointed out here that in Great Britain the theory that the monarch has some undefined powers as guardian of the Constitution is quite often strongly challenged. 17 The relationship that has hitherto subsisted between the President and the Union Council of Ministers has been the result of a combination of circumstances : the dominance of one political party. Rajendra Prasad has struck firm roots in the soil of this country or whether the Indian President will . "only a few of the muscles of the Presidency have been tested in the last few years". In India such a theory in respect of the President is even less tenable. in short. This content downloaded from 210. to recognise the dangerous implications of setting up the President as^ custodian' of the constitution. howsoever rare they may be. what some say he already is. We have noted that there can be 'border line' cases. In a sense the Indian Presidency is yet in the making. This is not to say. 6. however.

Ran. 4P. 29.jstor.N.199. P. [ 36 1 of the country in the years to come. B. eschewing legal power. oP. we have reason to believe that the Indian Presidency will run true to this desired and desirable horoscope. Cil. Rau wrote: "One can conceive of no better future for the President of India than that he should be more and more like the monarch in England.162 on Fri. Some eight years ago. This content downloaded from 210.. B.212. 382. 01 Dec 2017 13:04:13 UTC All use subject to . N. 48 Unless there is a radical change in India's political spectrum and unless the letter of the Constitution comes to acquire greater authority than its spirit. n. standing outside the clash of parties and gaining in moral ¿authority".