Lokendra Malik, Advocate, Supreme Court of India
Published on June 25, 2022 at 20:42 IST
With the announcement of candidates for the office of the President of India, the battle for Raisina Hill has begun. The BJP has declared Mrs. Draupadi Murmu, a tribal leader and former Governor of Jharkhand, its presidential candidate while the opposition parties have fielded Yashwant Sinha, a former Union Minister and a retired Babu, for the highest constitutional office in the country. Mr. Sinha is a well-known critic of the Modi government who left the BJP a few years ago.
It is widely believed that Mr Sinha is bound to lose given the numbers of the ruling party in the electoral college. So, the BJP candidate is most likely to occupy the Rashtrapati Bhavan in the last week of July this year. If elected, Mrs. Murmu will be the second woman and the first tribal President of the country.
After the election, her main task will be to defend the Constitution and the laws at a time when several political parties, organizations, and individuals have complained about the misuse of central law-enforcement agencies and institutions and the President will have to face such challenges. Undoubtedly, the Constitution empowers the President to stop the violations of the Constitution and Mrs. Murmu will have a great opportunity to win the hearts of the people of India.
Under the Indian constitutional scheme, practice, and several judicial pronouncements, the President of India is a constitutional head of the Union Government who is generally bound to act on the aid and advice of the Council of Ministers in the exercise of his/her constitutional powers and functions, vested in him/her by Article 53 of the Constitution.
There are rarely a few areas where the President can act at his/her discretion. The Union Council of Ministers headed by the Prime Minister is collectively responsible to the Lok Sabha, the popular chamber of Parliament, and not to the President.
The President is not the master of the Cabinet. He/she is just a guardian of the Constitution. Also, the President is an organ of Parliament. No Bill passed by Parliament can become a law unless the President gives his/her assent to that Bill.
The President also issues ordinances on the advice of the Cabinet. The ordinance-making power of the President is controlled by Parliament. The President appoints the Prime Minister from a political party that secures the support of the majority in the Lok Sabha.
However, in the case of a hung Lok Sabha, the President has some discretion in the government’s formation. On the advice of the Prime Minister, the President appoints other ministers and allocates them portfolios on the recommendation of the Prime Minister.
If someone is ineligible to become a minister, the President can point that out to the Prime Minister who can drop such a name from the list of ministers. The ministers hold their office during the pleasure of the Prime Minister who can eject any minister at any time and the President is bound to go with the Prime Minister’s choice.
The Prime Minister is the head of the Council of Ministers which can remain in office until it ceases to secure the support of the majority in the Lok Sabha. The moment the Lok Sabha expresses its lack of trust in the Council of Ministers, the President can ask the Prime Minister to resign and may invite another political party to form the government. If a defeated Prime Minister does not heed to the President’s direction, the President can dismiss such a Prime Minister and his government.
Thus, the Lok Sabha is the lifeline of the elected government. The Council of Ministers is the supreme policy-making body in the Union. It makes all decisions and takes initiatives to bring necessary legislative proposals. There is no need to get the prior approval of the President before making decisions.
However, the Prime Minister informs the President as a courtesy to fulfil the mandate of Article 78 of the Constitution. Under this provision, the President can also seek any information about the affairs of the Union from the Prime Minister who is duty-bound to furnish him with such information.
The President can also ask the Prime Minister to present the decision of any minister before the Cabinet for its approval. This provision is helpful to ensure the smooth compliance of the doctrine of collective responsibility of the government in a parliamentary democracy.
It is very difficult to accept the view of some constitutional pundits who state that the President of India is a rubber stamp or merely a figurehead who acts like a robot. The President of India is not a rubber stamp at all.
The Constitution allows him/her to play a significant role and he/she can certainly contribute a lot to the constitutional governance in the country. Under Article 74 of the Constitution, the President can ask the Council of Ministers to reconsider its advice once but thereafter, if the Council of Ministers reiterates its advice, the President is bound to accept the same and act accordingly.
The constitutional and political pundits call it President’s Referral power.
This power is exercised by the President at his discretion. This option was given to the President by the 44th Constitutional Amendment, 1978. During his tenure, then-President K. R. Narayanan exercised this option two times and saved two State Governments from Article 356 of the Constitution.
Also, the President can persuade the Prime Minister to run the administration according to the constitutional provisions because the President is duty-bound to preserve, protect, and defend the Constitution and the laws as per the mandate of his/her oath of office under Article 60 of the Constitution.
Article 61 of the Constitution provides a sanction for the fulfillment of the oath because, under Article 61, the President can be impeached “for violation of the Constitution”.
Thus, the President cannot accept the illegal and unconstitutional advice of the Council of Ministers blindly. The President needs to apply his/her mind before approving the Cabinet’s decisions or proposals even if Article 361 of the Constitution provides immunity to the President against judicial proceedings. Article 361 cannot stop Parliament from impeaching the President.
Admittedly, the President of India needs to exercise his/her constitutional powers and functions on the advice of the Council of Ministers which remains in existence even after the dissolution of the Lok Sabha.
But the President has some personal responsibility also. He/she cannot shift all responsibilities to the Council of Ministers. Renowned constitutional jurist H M Seervai rightly states that the Council of Ministers cannot compel the President to act against the provisions of the Constitution.
In his famous book on the Constitution of India, Mr. Seervai gives some examples to prove this thesis. For example, As Article 85 of the Constitution provides that:
“The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session”.
If the Prime Minister advises the President to call the next session after a year, by which time the government hoped to overcome its political crisis, it is the duty of the President to disregard such advice and to call for a session of the two Houses of Parliament as required by Article 85(1) of the Constitution.
For he if acted otherwise, he would be violating a mandatory provision of the Constitution, for which he is liable to be impeached by Parliament. In another example, Mr. Seervai states that the President cannot ignore the opinion of the Election Commission while deciding any matter relating to the disqualification of a Member of Parliament under Article 103 of the Constitution and cannot go with the Cabinet’s advice in such matters.
Thus, the President cannot violate the mandatory provisions of the Constitution while exercising his/her powers on the advice of the elected government headed by the Prime Minister.
After the three Judges’ appointment cases, the President is bound to appoint the judges of the Supreme Court and High Courts on the recommendation of the Supreme Court Collegium headed by the Chief Justice of India. If the Prime Minister advises the President to override the collegium’s recommendation, the President can disregard the Prime Minister’s advice and has to act according to the collegium’s recommendation.
This arrangement has been made by the judiciary to protect its independence from the executive. However, in many cases, the collegium has failed to achieve the objective for which it was created. Over the years, the collegium appointed several persons who should never have been appointed judges.
Also, several constitutional pundits have said on different occasions that the collegium system has promoted nepotism, elitism, and casteism in the judiciary and it must be scrapped. Unfortunately, a few privileged families of judges, lawyers, and politicians have dominated the higher judiciary badly. This is not good for the health of the legal profession.
The time has come when the government should take necessary steps to examine the functioning of the collegium system and enact a law to scrap this judge-made body which has no constitutional foundation. No authority can claim absolute power in a democracy.
Given the above discussion, it is submitted that the President of India has a specific role in our constitutional system and he/she must play that role to protect the Constitution and the laws effectively remaining within the constitutional boundaries.
The President is not a master of the elected government but he/she is certainly a guardian of the Constitution, a friend of the Prime Minister, and above all, a vigilant citizen who is duty-bound to protect the collective interests of the nation. He/she can guide the government and can persuade the government to act according to the provisions of the Constitution.
The President may use his/her activism as and when needed to save democracy, rule of law, human rights, and dignity. The people have lots of expectations from the new tenant of the Rashtrapati Bhavan which is a very powerful institution in our country. (For more information about the constitutional powers, functions, and position of the President of India, please read Lokendra Malik, The Power of Raisina Hill, LexisNexis 2015)
Let me conclude with these insightful words of Justice Krishna Iyer observed in the Samsher Singh’s case: “The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, the right to be consulted, to warn and encouraged.“
“Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political government,”
“ although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors i.e., the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role”.