17-01-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

President and Council of Ministers

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

COUNCIL OF MINISTERS
ITS FORMATION: A CONSTITUTIONAL OBLIGATION

• Art 74: “There shall be a council of Ministers with the

Prime Minister at the head to aid and advise the President
who shall, in the exercise of his functions, act in accordance
with such advice”.
• UNR Rao v Indira Gandhi (1971) 2 SCC63
– SC- continuance of the COMs was a constitutional imperative. [74(I)]
– No moment of time can be imagined when the President will act without a
COMs to aid and advise him

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ARTICLE 75

• (1) The Prime Minister shall be appointed by the President and the other Ministers shall be
appointed by the President on the advice of the Prime Minister.
• 1A) and 1B) …..
• 2) The Ministers shall hold office during the pleasure of the President.
• (3) The Council of Ministers shall be collectively responsible to the House of the People.
• (4) Before a Minister enters upon his office, the President shall administer to him the oaths of
office and of secrecy according to the forms set out for the purpose in the Third Schedule.
• (5) A Minister who for any period of six consecutive months is not a member of either House
of Parliament shall at the expiration of that period cease to be a Minister.
• (6) ………..

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

NATURE OF INDIAN PRESIDENCY

• Framers opted for a parliamentary form of government for

two-fold reasons-
– 1. they were little acquainted with it
– 2. they rightly thought that it would be suitable for the infant Indian
democracy since a parliamentary system would ensure concord
between the legislative and executive wings of the govt.
• Difficulty was how to shape an elected President so as to make
him look like a hereditary monarch and how to transplant
English conventions on an alien soil
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Two conflicting viewpoints up-to 1976

• 1) Indian President would necessarily act on the advice of the

COMs (Nehru, MC Setalvad, Alladi Krishnaswamy Ayyar,
Granville Austin)
– Constituent Assembly debates & Courts also support this view
• 2) position of the elected Indian President was qualitatively
different from that of the hereditary British monarch (KM
Munshi, PB Mukherjea, former CJI Subba Rao)
– President could refuse to accept the advice on a few occasions, in
certain areas he could act on his own initiative
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRESIDENT’S POSITION IS DIFFERENT FROM THAT OF

THE BRITISH MONARCH
• The Indian President has a representative capacity
• Elected by the members of Legislative Assemblies and by the members of
Parliament
• The President takes a special oath to preserve, protect and defend the
Constitution
• Liable to be impeached
• Implies responsibility- only one who has power to do something can be held
responsible
• British monarch presents a contrast- “king can do no wrong”.
• In Britain every instrument signed by the Crown requires counter-signature of
the a Minister who owns responsibility for that act.

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

… PRESIDENT’S POSITION IS DIFFERENT

• CONSTITUTION IS OF A FEDERAL NATURE

Involvement of President in the area of Centre-State relations
– It cannot be assumed that the President in these matters will act on the
advice of the Central executive at the expense of the State interest
– Should be a neutral umpire exercising his own judgement
• PM TO GIVE HIM INFORMATION
– of all legislative and administrative decisions and everything that he
especially asks for.
• This is meant to enable the President to exercise his judgment and
discretion and not merely to act as a rubber stamp

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRESIDENT: A CONSTITUTIONAL HEAD

• So many powers given to the President are not his personal powers nor are they expected to be
exercised by him in person or on his personal responsibility
• Aid and advice of the Ministers
• Functions specifically given to the President under the Constitution are to be exercised by
him on the aid and advice of the Ministers
• COMs: accountable for that politically to the House of the People and for which
• Legal responsibility is that of the UOI
• Right to get information from PM
• Meant only to enable him to use his power to get consulted, Encourage, Warn
• Ministers hold office during the pleasure of the President
• But the pleasure can be withdrawn only on the recommendation of the PM
• Pleasure from the PM can be withdrawn only when he has forfeited the confidence of the
lower House

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

…PRESIDENT: A CONSTITUTIONAL HEAD

• INDIRECT MODE OF ELECTION

• PRESIDENT’S DUTY TO DEFEND THE CONSTITUTION?
• IS FULFILLED IF HE ACTS ON THE ADVICE OF A MINISTRY WHICH COMMANDS MAJORITY SUPPORT IN
THE HOP
• NOT SO TO ACT MAY AMOUNT TO VIOLATION OF THE CONSTITUTION FOR WHICH HE CAN BE
IMPEACHED

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

NATURE OF THE STATE

• IN BRITAIN, STATE IS A CORPORATION SOLE (THE CORPORATION SOLE IS TYPICALLY HEADED BY A
SINGLE INDIVIDUAL, WHO HOLDS THE OFFICE FOR A FIXED TERM AND IS RESPONSIBLE FOR MANAGING
THE ASSETS AND CONDUCTING THE BUSINESS OF THE CORPORATION.)
• AND IS REPRESENTED BY THE CROWN WHO,

• STATE IN INDIA IS A CORPORATION AGGREGATE (A CORPORATION AGGREGATE, ON THE

OTHER HAND, IS A TYPE OF CORPORATION THAT IS OWNED BY A GROUP OF INDIVIDUALS OR
ENTITIES.)
• AGAINST WHOM ACTION CAN BE BROUGHT
• THOUGH THE PRESIDENT PERSONALLY ENJOYS AN IMMUNITY

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

BALANCED VIEW

• Reading the Constitution as a whole

– President is nothing more than a constitutional head of the State
on the pattern of British monarch
– Despite all the powers vested in him de jure, Constitution
contemplates a systematic check to keep the Indian President
within the bounds of a constitutional head
• He possesses some discretionary powers
– President has a few more powers and responsibilities than his
British counterpart

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

INDIAN PRESIDENT: NEITHER TOO WEAK NOR TOO

STRONG
– By providing that he shall be elected by a electoral college which
consists of not only elected members of the two Houses of
Parliament but also the elected members of the Legislative
Assemblies of the States, Constitution ensures that the President
is not a mere nominee of the majority party in the House of
People
– His removal requires a very special majority (larger than required
for the amendment of the Constitution) in each of the two
Houses of Parliament, saves the president from being all the time
threatened of possible impeachment
– He is prevented from becoming politically strong
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

NO POLITICAL ACCOUNTABILITY OF THE PRESIDENT

– He acts on the advice and responsibility of the Council of Ministers and it is
the Ministry which is accountable
– The impeachment is for the violation of the Constitution which is different
from something done that is unacceptable or unwise, but within the
Constitution
• Powers of President can broadly be put into two categories:
– (1)powers related to the governance: He has only three powers – right to be
consulted, right to encourage, and the right to warn
– (2) powers relating to the governing institutions: Where he may be required
to exercise his own discretion and judgment.
– The guiding principle has to be two-fold:
• i) he must maintain his image of being non-partisan and impartial, and
• ii) he must ensure that the government of the day is not disregarding the law and the
Constitution and his office is not being used for defrauding the Constitution
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRESIDENT: NOT A RUBBER STAMP

– To say that the President acts on the advice of the CoMs is not the
same thing as to say that the President blindly and slavishly okays
everything that the CoMs suggests
– the president my express his personal approval or disapproval
• If he disapproves,
– he may dissuade the Ministry from following that course.
– He may delay the matter and may seek time to reflect over it
– He may ask the Ministry formally to reconsider the whole thing
– But at the end if the Ministry is insistent, the President like the British Monarch, has
either to accept the advice or has to take the risk of facing resignation of the Ministry
– It is only where the constitutionality of the proposed course of action
is doubtful, or
– Where the President is sought to be involved in the execution of a
design which in a way preempts subsequent parliamentary decision,
that the President has wider authority to refuse to endorse the
decision

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

DISCRETIONARY POWERS OF THE PRESIDENT

• President has also to ensure that the governance is carried

on by those who have a legitimate claim to govern.
• For this he is invested with three discretionary powers:
• 1) power to appoint the PM
• 2) power to dissolve the House of the People, and
• 3) power to dismiss the Ministry
• Samsher Singh v State of Punjab, (1974) 2 SCC 831,
Krishna Iyar J said that our President and Governers are
possessed of these powers in the same degree as the
British monarch.
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

APPOINTMENT OF PM

– PM has to be appointed by the President in the exercise of his

own discretion
– When there is a definite party or combination of parties, the
President has little choice but to call that person to form the
govt.
• 1. President must look non-partisan
• 2. he must explore the possibilities of forming a govt.
• 3.it will be irresponsible for him to say that no govt. is possible
• He must give chance to the person who commands the maximum
support, though nor necessarily an absolute majority
• The leader of the largest single party or the leader of the largest single
pre-election alliance has a natural claim to priority

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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

DISSOLUTION OF THE HOUSE OF THE PEOPLE

• Art 85(2) (b): President has the power to dissolve the House of the
People before the end of its stipulated period of five years
• Power to advise dissolution is the power of CoM and not of the PM
• President’s refusal to accept the advice would provoke resignation of the
govt., and the successor govt., being in minority, would also advise
dissolution immediately
– As for as the question of the President dissolving the House on his own is
concerned, it must be understood in its correct perspective
• President may throw hints to the PM that he should advise dissolution
• He may indeed directly suggest it
• But if the govt. is not ready to oblige, he can dissolve only by dismissing
the existing govt. or by forcing it to resign
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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PRESIDENT’S POWER TO DISMISS A GOVERNMENT

• Art. 75(2): Ministers shall hold office during the pleasure of

the President
• Art. 75(3): CoMs shall be collectively responsible to the
HoP
– Thus a govt. must go once it forfeits the confidence of the House
and the President cannot touch a govt. which retains majority
support
– Govt. which has lost majority support must resign, and if it fails
to do so it is the duty of the President to dismiss such govt.
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