Name: Ankit Kumar

Registration No: 200810016330

Enrolment No:20/62/HP/014

E-Mail: mrankit358@gmail.com

Place of residence: Ramgarh, Jharkhand

Q. 4. Critically analyze the position of President of India since independence as a

constitutional head with discretionary powers.

Answer: We find the root of the parliamentary democratic system in Britain where
existed the centuries old political struggles for power between the crown and the
people. In the course of establishing the supremacy of the people in governing the
country through the institution of parliament, there prevailed the view that in the
framework of the parliamentary system, the crown would act as the titular head of
state with no discretionary powers to act independent of or contrary to the
ministerial advice.

Under the Draft Constitution, the President occupies the same position as the King
under the English Constitution. He is the head of State but not of the executive. He
represents nation but does not rule the nation. His place in the administration is that
of a ceremonial device on a seal by which the nation's decisions are made known.
He can do nothing contrary to the advice of Council of Ministers nor can do
anything without their advice. Alladi Krishna Ayyar, a member of the Drafting
Committee of the Constituent Assembly, observed that the word President used in
the Constitution merely stands for the fabric responsible to the Legislature. The
Supreme Court has consistently taken the view that position of President (and
Governors) under the Constitution is similar to the position of Crown under the
British Parliamentary system. It is a fundamental principle of English
constitutional law that Ministers must accept responsibility for every executive act.
The power of the sovereign (or king) is conditioned by the practical rule that
Crown must find advisers to bear responsibility for his action.

When we look at the historical context of the Position of the President we find that
he is just the de jure head of India.The post of the President with the passage of
With the passage of time we have seen that the post of the president has become
more customary. He uses his discretionary powers on the advice of the cabinet. His
post has been rather politicized for example during the initial years of the
independence the Presidents used their discretionary powers to choose the Prime
Minister from the largest majority winner but as of now we can see that the Prime
Ministerial candidate is chosen beforehand and the president has to provide his seal
for his/her legitimacy.

Articles 53, 74, 75 and 78 given in Chapter 1 of Part V of the Constitution provides
the President with the instrument of powers. While Article 53(1) states that ‘the
Executive power of the Union shall be vested in the President’. Council of
Ministers to reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after such
reconsideration.

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.

In emphasizing the position of the president as a ceremonial head, Ambedkar

categorically stated that the president is ‘a mere figure-head who has no discretion
and no powers of administration at all.

The original Draft Constitution had vested the president with several powers which
during the passage of time was curtailed with various amendments in the
constitution namely the 42nd and the 44th of 1976 and 1978 respectively. This was
subsequently reiterated by the Supreme Court in its interpretation of the
Constitution in Shamsher Singh v. State of Punjab, AIR 1974. The subsequent
constitutional amendments (42nd and 44th) made it a matter of a written
constitutional provision, providing with the president that she/he ‘may require the
Council of Ministers to reconsider such advice, either generally or otherwise’, but
added that ‘the President shall act in accordance with the advice tendered after
such reconsideration’ (44th Amendment). According to(S. P. Gupta v. President of
India AIR 1982) ; State of Rajasthan v. Union of India, AIR 1977 SC, the 2nd
clause of article 72 does not bar judicial scrutiny on the ministerial advice to the
President.

The president seems to enjoy considerable discretion in the appointment of the

prime minister (PM). In case an uncertain electoral verdict produce a hung Lok
Sabha, the president does acquire an enormous scope for discretionary powers.
Presidents including Rajendra Prasad, Giani Zail Singh and R. Venkataraman, who
in their notes, speeches and memoirs gave vent to the opinion that the president
does have discretionary role in some normal or abnormal situations even though
they never acted upon their intents, interpretations and understandings. The
President can fully act on his/her discretion in the dismissal of the council of
ministers when it cannot prove the confidence in the Lok Sabha and also the
president can order for the dissolution of the Lok Sabha if the council of ministers
has lost its majority.

Article 352 (national emergency), Article 356 (emergency in a state), and financial
emergency in India or any of the states of the Indian union (Article 360) rests in
the hands of the president but that too is under the ambit of the council of
ministers. The provisions of emergency powers is also largely unexplored by the
judiciary as well, except for judicial reviews of president’s rule in states under
Article 356 of the Constitution since the paradigm shift in judicial behavior in this
area in and since the S. R. Bommai and Others v. Union of India, AIR 1994SC
1918, which unanimously made president’s rule in a state open to judicial review.

If we go on comparing the powers of the Governor with that of the Prime minister,
we find that the Governor is vested with more discretionary powers than the
President. Also the presidency has in practice been less prone to criticism and
controversy in the exercise of its implied or circumstantial discretionary power
than the governors.