Executive Powers of President of India

The president of India is nominal head of executive and all contracts and assurances of the property are made by the Government of India in President’s name. The following discussion deals with important aspects of executive powers of President of India.

Appointment of Union Government Officials

Further, president appoints the important members of the union government. They are as follows:

• Prime Minister and Council of Ministers on advice of Prime Minister.
• Chief Justice of India and Other Judges of Supreme Court on advice of the Chief Justice.
• Chief Justice of High courts after consulting with Chief Justice of India and other Judges of the High Court’s on advice of Chief Justice of High Court.
• Chairman of the Union Public Service Commission.
• Other members of the Union Public Service Commission.
• Attorney General of India.
• Comptroller and Auditor General of India
• Chief Election Commissioner.
• Other members of the Election Commission.
• Governors of states (Please note that advice of chief Ministers is not sought for appointment of Governors)
• Ambassadors and High Commissioners.
• Finance Commission members.
• National Commission for SC/ ST members & Chairmen.
• Administrator of the Union territories. (Administrators of Andaman and Nicobar Islands, Delhi and Puducherry are designated as Lieutenant Governors. The Governor of Punjab is concurrently the Administrator of Chandigarh. The Administrator of Dadra and Nagar Haveli is concurrently the Administrator of Daman and Diu. Lakshadweep has a separate Administrator)

The president must exercise powers according to the constituent. Article 53(1) which vests the executive power of the union in the president provides that the power may be exercised by the president either directly or through officers subordinates to him. For this purpose, ministers are deemed to be officers subordinate to him.

Confidential Relation between President and Council of Ministers

Then, the Article 74 (1) provides that there shall be a council of ministers with prime minister at the head, to aid the advice president in exercise of his functions. Article 74 (2) lays that question whether any, and if so, what advice was tendered by minister to the president shall not be inquired into in any court. Thus, relation between president and council of ministers are confidential.

Real Executive Power in Council of Ministers

The executive powers vested in the president have to be exercised in accordance with the advice of the Council of Minister as per Article 74(1). This provision was implicit but was made explicit and obligatory for the president via Constitution 42^nd amendment act 1976. Later the 44^th amendment act gave him the power to send back advice received from council of Ministers to reconsider. At present, the president exercises the executive powers as per the advice of the Council of the Ministers. However, he has the power to send back the advice to council of Ministers for reconsideration. If the council of Ministers adheres to the previous advice, the president has to act as per this advice. So, Council of Ministers exercises the real executive power in the name of the president. All executive decisions are taken in the name of the President (Article 77).

Discretionary Powers of the President: Critical Analysis

The role of the president in Indian polity as a figurehead is reflected in his indirect election. Further, the constitution nowhere uses the terms like “Discretion” and individual judgement” for the president which were used for the governor-general under the government of India act, 1935. Except in certain marginal cases, president shall have no power to act in his discretion in any case:

• India’s Council of ministers is responsible to Lok Sabha. If the president ignores the advice of ministers enjoying the confidence in Lok Sabha, it may resign and thus create a constitutional crisis. So, it is obligatory on the president to have always a council of ministers.
• If he dismisses any ministry having support of Lok Sabha, they may bring impeachment proceeding against him. This serves as a deterrent against the president assuming real powers
• In the appointment of prime minister, the president’s discretion is limited. Thus when a single party gains an absolute majority and has an accepted leader, president’s choice of selecting prime minister is a mere formality, similarly, if on the death or resignation of a prime minister , the ruling party elects a new leader, president has no choice but to appoint him as prime minister.
• However, if no single party gains majority and a “coalition government” is to be formed, president can exercise a little discretion and select the leader of any party who, in his opinion, can form a stable ministry. However, even in such a situation, his action should be guided by certain conventions. President may first invite a person and appoint him the prime minister and then ask him to prove his majority or seek a vote of confidence in the Lok Sabha within a reasonable time.
• The individual ministers hold the office during the pleasure of the president, but president is bound to exercise his pleasure in accordance with prime minister ‘s advice. Thus, it is a power of prime minister against his (Undesirable) colleagues.
• So long as prime minister and his cabinet enjoy confidence, the president is bound to dissolve Lok Sabha only when advised by prime minister. But, this advice will not be binding on the president, when prime minister loses his majority or unable to prove his majority or a vote of non-confidence passed against him or when he is not facing the parliament, but president has proof that ruling does not have a majority. In such circumstances, the president must try to find out whether any alternative ministry can be possible. He should make all possible efforts to avoid a mid-term poll.
• Article 78 provides that it shall be the duty of prime minister to communicate to the president all decisions of council of ministers relating to administration of affairs of union and proposals for legislation; to furnish such information relating to administration as president may call for; and if the president so requires to submit for the consideration of council of ministers any matters on which’s decision has been taken by a minister but which has not been considered by the cabinet.
• The president has a right to know what his government is doing or proposes to do. But the question how much information is to be furnished by prime minister to the president is his prerogative. This should be a matter to be resolved by mutual confidence and cooperation between the two.

Thus, India has a president but not a presidential form of government, as found in America. The American president is the real executive head and is directly responsible to the people, who elect president. American president is the chief head of executive, and administration is vested in him, and he appoint members of cabinet who are responsible to him. While, Indian president is head of the state but not the real executive. He represents the nation but does not rule the nation, as India has a Parliament system of government.

Is President a Puppet?

It is submitted that it would have never been the intention of the framers of constitution to make the president a puppet or a passive spectator. In view of the oath taken by the President ……… to preserve, protect and defend the constitution and law, and that……….. devote myself to the service of people of India, President is duty bound to advice to guide and exert his influence on decisions taken by the prime minister. Thus the president can exercise a persuasive influence. His role is at best advisory.

Is President a Rubber Stamp?

Article 77 expressly mentions that all executive actions of the Government of India shall be expressed to be taken in the name of the president. This article provides that the orders and other instruments shall be authenticated in such a manner as may be specified in rules by the president. But the rules made by the President do NOT require the president to act ONLY through the Ministers. It expressly mentions that the President is not a Rubber stamp.

Duties of Prime Minister towards President?

Article 78 deals with the duties of the Prime Minister towards the President of India. The duties of the Prime Minister towards President are:

• To communicate to the President all decisions of the Council of Ministers Regarding the administration and legislation of India.
• To furnish such information as the President may call for.
• To submit for the Consideration of the Council of Ministers as desired by the President.

Is Presidential Office superfluous?

Weak position of president doesn’t mean that his office is superfluous. President of India is the symbol of Indian national unity. Being impartial and above the party politics, he exerts his influence on the decisions of prime minister. The influence, however, will depend on his sterling character, magnetic personality and selfless devotion to the nation.

Mr. Nehru the first prime minister of the country observed: We want to emphasise the ministerial character of the government and that power really resided in the ministry and in the legislature and not in the president. At the same time, we did not want to make the president just a mere figurehead……….. we did not give him any real power but we have made his position one of the great authority and dignity. He is also the commander-in-chief of the defence forces…….

• Indian constitution envisages not a dictatorial but a democratic president who was uses his judgement to keep the democratic and representative government functioning and not to thwart or to subvert the same.

President R. Venkataraman in his autobiography has expressed the view that advice of the cabinet violative of the constitutional provisions is not binding on the president. He meant that recommendations of the cabinet violative of the provisions of the constitution could be legally and constitutionally stalled by the president.