The President: A Powerful Puppet

The President: A Powerful Puppet

Author: Chandrasekhar V Pillai
3rd Year Student,
School of Law, Christ (Deemed to be University),
 Bengaluru..

ABSTRACT
Article 52 of the Constitution of India recognises the post of President in India. The position held by the president under the Constitution of India is a diverse one. The Position of the President of India not only represents neutrality and non-partiality in duty but it also represents the concept of unity of the nation. The President though is merely a ceremonial head of the state the extent of power which he can exert in his own discretion are vast. He can be termed as the guardian of the democracy as he is the one who guards the democracy when there is a breakdown in the parliamentary system and he guards it till a new government comes and restores democracy. But the partiality and the dignity of the position of the highly respected post of President is today under the question.

Some of the contemporary incidents in India put the partiality and neutrality of the president under threat. Some of the recent incidents in India have been a diversion from the neutral position exerted by president to a mere partisan. The incidents range from Maharashtra president rule withdrawal to assent of controversial bills like Citizenship Amendment Bill, 2019 puts president’s neutrality under shadow. The 42ndAmendment Act, 1976 had put the president to act as per aid and advice of president thereby making him a mere puppet executing the decision of cabinet which in terms is the implementation of decision of the party to which the ministers of cabinet belong to. The research aims to discuss the discretionary power of the president with respect to aid and advice of council of ministers. The research also aims to question the extent of independence which could be asserted by the president of India by him acting as a neutral and impartial person free from any political obligations.
  
INTRODUCTION
The government of India is divided into three organs which is namely, legislature, executive and judiciary. The executive includes the executive at centre as well as state. The central executive consists of President and the Council of Ministers which is headed by the Prime Minister. The President can be called as the Head of the Union of India, he is in papers to posses a very huge amount of power as the executive power of the Union is vested in the hands of the President of India[1]. The post of the President is something which has been mandated by the Constitution of India itself[2]. The Constitution of India lays down all the necessary aspects relating to the President of India such as with reference to his election[3], term of office[4], Qualifications[5] and his impeachment[6]. The extent of the power of the President in India has also been seen whereas it has been mentioned that a president will act only on the aid and advise of the Council of Ministers and that he will be bound to act according to the advice tendered by the Council of Ministers[7].
Article 74 thus mentions about the extent of his powers and this definition of the President’s power point the finger to another fact i.e. the existence of parliamentary democracy in India. The Parliamentary democracy has been formulated in England where the parliament enjoy the supremacy over the framing and formulating of matters and policy with respect to the country and the monarch of that country has been limited merely to the extent of a mere nominal head or rubber stamp who does not posses any power in the case of matters handled by the parliament  apart from the American Democracy where the president is said to posses all the discretion
ary power and he can act even by not taking into consideration the acts of his secretaries (who is parallel to council of ministers in India and Britain). Thus on looking after the position of the President of the United states and United Kingdom it can be said that the President of India is said to the mixture of both these systems whereby he posses certain discretionary powers and where he is also bound by the instructions of the council of ministers. So the question here is whether the President of India is a single entity who has an individual existence or is he mere a puppet who acts as per the strings pulled by the Cabinet and Council of Ministers. This question is relevant considering the contemporary situation in India where the President recently acted upon to declare an order with respect to the cancellation of Article 370 of Constitution and his act in Maharashtra where the President called of the Presidential rule at midnight in order to facilitate the minority party to form State government and that minority party being the ruling party of India.
Indian President and his powers
The provisions of the Constitution that can be regarded as conferring powers on the President are Articles 53, 72, 76, 85, 86, 108, 111, 123, 124(2), 124(3), 127, 128, 143, 148, 240, 263, 304, 352, 354, 356, 359, 360 and 366(22). The exercise of power under these provisions carries a strong element of discretion. Some provisions such as Articles 103, 118(3) and 258 can be considered to confer powers in one sense and impose duties in another[8]. Articles 87, 112, 115 and 124(4) may be considered purely functions of the President[9].  As far as the text of the Constitution goes, it appears that there is no provision which makes it obligatory on the part of the President to act in conformity with ministerial advise[10].  By the bare reading of Constitution it can be said that the president is a person who has the power to act on his own and it is said that other positions including the council if ministers are to be only forming the subordinate position of the president. In article 53 of the Indian Constitution, the president is said to be the head of the Executive of the country and on reading this article it can be said that all other part of executive including the prime minister, cabinet and the council of ministers only are mere the servants of the President. The power of the president under this article can be executed either directly or through employees subordinate to him. It has been mentioned in Article 74 that the President has been bound by the advise of the ministers and that he has to act in accordance advice tendered by the Council of ministers, this provisio was added only by the later 1979 amendment and the original intention of the constitution was to create a president who could keep a check on the arbitrary actions of the government. Another power of the President which was mentioned was the Article 111 which says that a president has the power to give assent to the bills when it has been passed by the Parliament, but even this position of the President is diluted by the fact that if the bill the president has failed to give assent if passed by the parliament for a second time then he has to give assent to it and in that case the president has no power to withhold the assent.
Article 123 confers the power to promulgate ordinances on the President, subject to two conditions. Firstly, both Houses of Parliament should not be in session and secondly, the President must be “satisfied” that a situation exists which warrants the issuing of an ordinance. In case of the literal interpretation of the same it can be seen that the president is free from advise of the council of ministers  in promulgating ordinance and hence he enjoys the discretionary power therein. Article 352 of the Constitution provides that “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by proclamation, make a declaration to that effect…”. Here also the word satisfaction is used giving rise to confusion on whether it is discretionary or whether it is subject to Union council’s decision. However in 352(3), it has been said that such a proclamation can be given only after the advice of the Union Cabinet. But with respect to Article 356 where the State Emergency is declared, no such provision as Parliament’s advise is mentioned putting it under President’s discretionary power. This power can be seen to be exercised by the President in the recent scenario in Maharashtra where the President who declared state emergency when no party was able to form a state government after State general assembly elections revoked the State emergency at mid night to facilitate a party to form the state government that too without even checking whether the claimant party to form government had necessary majority to form their government.
Also the discretionary power of the president also lies to the extent that he appoints the Prime minister and appoints the council of ministers on the advise of the Prime Minister[11]. After the general elections in the country the President has the power to invite a party to form the government and prove their majority in the house of parliament. If no part is able to prove the majority in the house after the election then the President has the power to decide himself to the fact that whether th
ere is a need to cal for fresh elections and the power to decide upon such circumstance is being laid upon the president. The president has also been given the Right to give pardon to any person convicted of an offense and it includes the power to commute, respite, suspend, remit or remission of a sentence[12].
Judicial trends on power of President
Ram Jawaya Kapur v. State ofPunjab[13], the Supreme Court held that the Indian Constitution had adopted the English system of a parliamentary executive and that the real power lay with the “Cabinet”. The Court in U. N. R. Rao v. Indira Gandhi[14], ruled that the conventions in England governing the relationship between the Crown and the Council of Ministers were pertinent to the Indian Constitution as well, and that the exercise of powers under the Indian Constitution should be read in the light of those conventions. In R. C Cooper v. Union of India[15]“, the Supreme Court ruled that the President has to act in all matters, including the promulgation of an ordinance, on the advice of the Council of Ministers. The Court speaking through Justice Shah said that although in a constitutional sense an ordinance is promulgated on the satisfaction of the President, in truth, it is promulgated on the advice of the Council of Ministers and upon their satisfaction. The Court therefore implied that the promulgation of ordinances was a function of the President. This position was reiterated in Venkata v. State of Andhra[16]Pradesh.
In State of Rajasthan v. Union of India[17]  the Supreme Court ruled that the word “shall” in Article 74(1) suggests that regardless of whether the President has received a report from the Governor, he can act under Article 356(1) only in accordance with the advice tendered by the Union Council of Ministers and if the latter so advise, the President cannot but issue a proclamation under Article 356(1) in respect of the concerned state. Maru Ram v. Union ofIndia[18]. In this case, the Court held that the power under Article 72 was to be exercised on the aid and advice of the “Central Government” and not by the President on his own and that the advice of the “government” would be binding on the President.
Conclusion
India has a unique system of government, which vests equal power in the three branches maintained in equilibrium by an effective system of checks and balances. On looking into various provisions of the Indian Constitution it can be seen that the President of the India was intended by the framers of the Constitution to ensure that the position of the President should be something which has to be seen as a high position. Their intention can be seen in the Article 361 of the Constitution which says that a president shall not be answerable and is having an immunity on his part on any actions which he has taken on the behalf of him acting as the President of India. The position of the President of India was intended to be neutral in nature and the president was supposed to be a person who should not have any political affiliation and but today the appointment of president is nothing less than a position of the political appointment. The constitution has provided many powers to the position of president but most of it seem to have been diluted by the later amendments and judicial interventions making the position of the president an insignificant one. The position of the President is not relevant when a clear party majority and a stable government exist, but when there is instability and no majority, the President will emerge into relevance. The most opportune times for this occurrence is when there is a deadlock at the Center which can either be solved by dissolution of Parliament or a change in the government or when there is a breakdown in several state governments which require President’s rule pending new election. Thus on a bare analysis it can be sen that a president s only a mere procedural head and his actions are always guided by the decisions of the Cabinet and the Ruling party and the power of president which is discretionary and which has to be neutral in nature today is done according to the whims and fancies of the ruling party making him a puppet, a puppet which has a lot of power but which instead acts on the strings pulled by others.

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[1]     Article 53(1), The Constitution of India


[2]     Article 52, The Constitution of India

[3]     Article 54, The Constitution of India

[4]     Article 56,The Constitution of India

[5]     Article 58,The Constitution of India

[6]     Article 61,The Constitution of India

[7]     Article 74, The Constitution of India

[8]     Mrinal Satish, Discretionary Powers of the President under the Indian Constitution, 12 Student Advoc. 49 (2000), http://heinonline.org

[9]     Ibid 8

[10]   Henry W. Holmes Jr, POWERS OF PRESIDENT : MYTH OR REALITY, Journal of the Indian Law Institute, Vol. 12, No. 3 (JULY-SEPTEMBER 1970), pp.367-399,  https://www.jstor.org/stable/43950082

[11]   Article 75(1), The Constitution of India

[12]   Article 72, The Constitution of India

[13]   AIR 1955 SC 549

[14]   AIR 1971 SC 1002

[15]   AIR 1970 SC 564

[16]   AIR 1985 SC 724

[17]   AIR 1977 SC 1361

[18]   AIR 1980 SC 2147

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