Is President A Mere Head In India?

THE PRESIDENT: NOT A GOLDEN ZERO BUT A GOLDEN THREAD

Satya Ranjan Swain B.A.LL.B (Hons.) 2nd sem. KIIT Law School, KIIT University, Bhubaneswar, Orissa, India

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E-mail: [email protected]

INTRODUCTION Please don‟t frown at the title. The first women president of India Mrs. P. Patil, has assured that she won‟t be a merely figure head. A serious doubt raised in my mind, whether the President of this country is a real head or a mere figure head? The preamble of our Constitution clearly articulates India as a republic. Being a republic there is no hereditary monarch but the President, as the head of the State. The President is not directly elected but indirectly. The president is elected by an electoral college, consisting of the elected members of both Houses of Parliament and the State Legislative Assemblies, in accordance with the system of proportional representation by means of single transferable vote by secret ballot. The office of the President of India is created by Article 52 of the Constitution. The Indian Constitution has only two vesting clause i.e. Article 53 and Article 154. This paper is concerned about Article 53 which clearly states that “the executive power of the Union shall be vested in the President…” 1 That means the Parliament has power to confer only the functions of the

The Un ion Constitution Co mmittee in its report of 4 July, 1947 reco mmended it in clause 7 sub clause 1. The same was also said by N. Gopalswami Ayyangar on 25th July, 1947 in the Constituent Assembly.

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President on any other authorities and not the powers.

THEORY OF SEPARATION OF POWER Concentration of powers leads to loss of individual freedom. Power corrupts and absolute power corrupts absolutely unless there is check on it. The theory has its root in Aristotle‟s philosophy which found an elaboration in the writings of Lord Montesquieu in the 18 th century. Aristotle divided the governmental function into deliberative, magisterial and judicial although he did not consider any need for separation of personnel. Jean Bodin sees the importance of separating the executive and judicial powers. John Locke was one of the eighteenth century philosophers to pay greater attention to the problem of concentration of governmental power. He argued that the executive and legislative powers should be separate for the sake of liberty. Libert y suffers when the same human being makes the law and executes them. Lord Montesquieu in his famous work “The spirit of the Laws” (1748) gave the idea of separation of powers. 2 The Spirit of Laws in French, “De l'esprit des lois” is a thesis on political theory, the law, sociology, and anthropology first published anonymously by Charles de Secondat, Baron de Montesquieu with the help of Claudine Guérin de Tencin. 3 Montesquieu‟s theory was refined and developed by Blackstone and Madison. Montesquieu quoted in his book that, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . . Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” 4

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http://en.wikipedia.org/wiki/The_Spirit_of_the_Laws#cite_note-Cohleretal-0 accessed on 23.10. 2008

M.J.C. Vile, FOUR: Montesquieu - M.J.C. Vile, Constitutionalism and the Separation of Powers , 1967, The online lib rary of liberty at

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Biswa Ranjan Mohapatra etal, Foundations of Politics & Govern ment, Orissa State Bureau of Textbook Preparation and Production. Reprinted, First edition 2003

WHAT MADE LORD MONTESQUIEU TO GO FOR IT…? Before going further let‟s see what made Lord Montesquieu to go for this novel idea. During his days the Bouborne monarch in France had established despotism and the people enjoyed no freedom. The monarch was the chief law giver, executor and adjudicator. The statement by Louis XIV that „I am the State‟ clearly outlined the character and nature of monarchial authority. Lord Montesquieu, a great advocate of human dignity, developed this theory as the weapon to uphold the liberty of the people. He believed that the application of this theory would prevent the overgrowth of a particular organ which spells danger for political liberty. 5 MODELS There are two models of the separation of power theory. The first one is the Water tight model. This model says that there should be three branches of government and they should be free in their own sphere. But it is as one of the writers rightly said, theoretically absurdity and practically impossibility. Then comes the Check and balance model. The main objective of the latter model is to check the exercise of power, maintain balance of power and the last but not the least to restore the power, if it is abused. Unity of power is just the anti thesis of political liberty. So, there is the need for the separation of power. Moderate government is a free government. Thus separation of power is a check against royal despotism and legislative despotism. The crux of the problem of modern government is to find a synthesis combining the answer to two needs, the need for the welfare of the State and the need for the freedom of the people. The welfare State assumes concentration of power on the

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Supra note 4

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http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=677&chapter=122670&layout=html& Itemid=27

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executive level and consequently supremacy of the executive over the legislative branch.

EXECUTIVE Our main concern is not only to study the separation of powers as a whole but to go to the micro level of it (only Executive). The executive is the primary and prominent organ of the government in terms of its importance. Executive has been the manifestation of government. It has been performing its functions of executing the laws made by the legislature and also implementing the policies of the state. The efficiency of the government depends on the effective implementation of its policies by the executive. It is the pivot round which actual administration of the state resolves and includes all officials engaged in administration. However it is customary to use the term executive in its narrow sense which refers only to the chief executive head of the state and his advisors and ministers. 6

A GLANCE OVER THE PAST Before independence, the functions of the head of the State in India were performed by the Governor General, who represented the Crown and ruled in the name of His/Her Majesty. The Government of India Act, 1935 also laid down that the executive authority of the centre would vest in the Governor-General. 7 But after independence, the question arises in this rapidly moving world of the mid twentieth century, to whom the leadership task is to be given? What type of executive would be stable, strong, effective and quick, yet withal, democratic? becomes the moot question, because the aim was to build a new India overnight and create a new unity by breaking down the old loyalties that had fragmented and compartmentalized Indian life….the Indian Constitution. 8 The Constituent Assembly looked for 3 models viz. the American Presidential system, the Swiss elected executive and British cabinet government and came up with the Advanced Presidential model

Supra note 4

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Dr. Subhash C. Kashyap, Constitutional law of India, vol. 1, 2008 publication

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Granville Austin, Corner of a nation

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un/consciously. The whole idea was to provide „a sort of Privy Council whose advise shall be

available to the resident whenever he chooses to obtain it in all matters of national importance in which he is required to act in his discretion‟ 9 Article 74(1) of our 1950 Constitution had provided that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions.” In the context of the Hindu Code Bill, President Rajendra Prasad contended that he could withhold assent from Bills that did not meet with his approval. But Attorney General Motilal Setalvad advised Prime Minister Jawaharlal Nehru that “by Article 74(1) the President is required to Act in all matters with the aid and advice of his Council of Ministers.” India‟s first President shook his head and grumbled (as he gave in) saying: “this is not the way we framed the Constitution”. But 25 years later, during the Internal Emergency of June 1975, the language of Article 74(1) was altered and made even more absolute. There was a debate on whether the President should act in accordance with the advice of the Council of ministers. The Supreme Court and Pt. Nehru were in support. On the other hand those who opposed were, Dr. Rajendra Prasad, K.N.Munshi, P.B.Mukherjee J. of Calcutta High Court and K. Subha Rao CJ. But finally in 1976, it was decided that the President has to act in accordance with the aid and advice of the Council of Ministers. The Constitution 42nd

Amendment Act, 1976 provided that “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.” That‟s how the rubber stamp-theory gained currency. But then, in the euphoric post-Emergency period when the Janata Government was in power, Parliament inserted a proviso to Article 74(1) which read: “provided that the President may require the 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”. This proviso has given the President of India more elbowroom to intervene in affairs of State — the power which the British Monarch, a

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B.N.Rau, India‟s Constitution , p. 72

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Constitutional head of State, also exercises, and that is the power to caution and to warn. The

Constitution of India 1950 as it now stands (post 1978) no longer envisages a mere cipher or figurehead as President. 10

PAST CONTROVERSIES Many times in the past there arise the controversies regarding the president‟s constitutional position, but each time it ended in confirming the position of the president is a constitutional head. The first controversies was within a few month of Constitution of India coming into operation, when President Dr. Rajendra Prasad, expressed the desire to act solely on his own judgment, independently of the Council of ministers in the matters of giving assent to the Bill and sending massages to the Parliament, in a note to Prime Minister Nehru. This view was not a mere desire but it was based on the literal reading of the Constitution of India. 11 Pt. Nehru consulted Attorney General then Mr. Setalvad and Ayyar, a member of the Drefting Committee of the Constituent Assembly, on the relationship of President and Prime Minister. Mr. Setalvad chooses to please Pt. Nehru and held that President is a big zero. The disagreement raised again in 1960, on November 28, while laying the foundation stone of the Indian law Institute, President Prasad said that it was generally believed that like the sovereign of Great Britain, the President of India was also a Constitutional head and had to act only according to the advice of the Council of Ministers. The same controversy again arose in 1967 and 1969. In 1976, the position was quite clear, in the 42nd Amendment of the Constitution. Act. 74(1) was amended so as to state explicitly that the President shall act in accordance with the advice of the ministers in the exercise of his functions. 12

http://www.dnaindia.co m/report.asp?newsid=1105328 accessed on

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Article 111 and Article 86 of the Constitution of India.

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M.P.Jain, Indian Constitutional Law, 5th edition, 2003, vol.1

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Fali S Nariman, Not a rubber stamp, 24.10.08

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IS THE PRESIDENT, REALLY A MERE FIGURE HEAD? The real position of the President of India is clouded with different suspects. Some of the constitutionalists demanded the president as mere figure head or titular head or rubber stamp or golden zero. There are many causes to call the President such which are as follows: The first cause may be that the President is the head of the State, not of the Government. Secondly India does not have Presidential form of Government. Thirdly, British tradition still prevails in our constitution. The last but not the least the president works on the advice of the Ministery. The President of India does not have the only power to sign o n the dotted lines but also has the following powers, which clearly shows the position of the President. First of all these are the powers, which the President possesses, clearly shows the position of the President of India. (A) NORMAL POWER: The president is the chief of the union executive. Under Article 53(1), all executive power of the union is vested on him. The power is exercised either directly or indirectly through officers subordinated to him. a) Appointment-The laws passed by the Parliament are executed by him. Appointment of the executives- The President appoints the Prime minister. The Judges of both the Supreme Court, High Court, and the high officials like C.A.G., Election Commissioners, Member of U.P.S.C, Governors of different states etc. are appointed by the President. b) Removal of executives- The President can remove any minister from the Governors and the Council of ministers of the Parliament, the judges of the Supreme Court, High Court, Election Commissioners, the members of the U.P.S.C. c) Determination of the national policy- The executive powers are exercised by the Council of Ministers headed by the Prime Minister directly but the decisions are intimated to the President by the Prime Minister. If the President is not satisfied with the decision of the Council of Ministers then he may return the proposal for the

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reconsideration in the Cabinet.

(B) MILITARY POWERThe president is the supreme commander- in chief of the defense force. It is his duty to refrain the state from foreign aggression. He is authorized to extend the foreign relationship and to sign the treaties with different Sovereign States. (C) DIPLOMATIC POWERThe president is the head to maintain foreign relations. The negotiation of all treaties and agreements are made in the name of the President. He accredits the ambassadors and envoys to foreign States and accepts the letters of credence of the foreign diplomatic representatives. (D) LEGISLATIVE POWERThe president is the constituent part of the parliament and wields exte nsive legislative power. He has the following legislative powers: Power to summon the session of the Parliament, 13 Power to prorogue/end the sessions, Sending message to the Parliament, Power to nominate the members of the Parliament, 14 Power to assent bills. 15 The President has Power to proclaim ordinance.16 Ordinance is an Act of legislation in the absence of the Legislature promulgated by the President, to meet the emergency. An ordinance has the same force as an Act of Parliament. Its life span is 6 months and 6 weeks. If it gets the

Article 85 of the Constitution of India

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Article 80 of the Constitution of India

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The President has the power under Article 111, either to give the assent, or to withhold the assent, or to return the bill to the Parliament for reconsideration and he can also suggest modifications 16 Art 123 of the Constitution of India

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approval of the Parliament it becomes an Act. It can be withdrawn by the President.

(E) FINANCIAL POWERIntroduction of the budget, levy of taxes, power to assent the financial bills, power to constitute financial commission, presentation of audit report etc. are some of the financial power of the president. The president has at his disposal the contingency fund 17 also. (F) JUDICIAL POWER: The president enjoys some of the judicial powers which include power to pardon, reprieve, respite, remit, suspend and commute sentences of convicted persons. 18 The Supreme Court in Keher Singh v. Union of India, said that, pardoning power is an act which is done under Constitutional scheme, it further said that, it should be compared with the American President who acts on his own and not with the crown in United Kingdom, where it acts on the ministerial advice 19 . The President has also the power to consult the judges of the Supreme Court. 20 He can exercise this power in relation to any matter which of public importance or which according to him is of public importance. This is just to enable the President to seek the opinion regarding the validity of any act of the Government and the aid or advice tendered to him by them. (G) CEREMONIAL POWERS: The president attends the Republic day. He receives the ambassadors and extends the foreign relationship through negotitation. Apart from normal powers, financial powers, emergency powers, Ceremonial powers and judicial powers the president enjoys the Discretionary powers also. 21 The authority and status of the President depends upon the powers he can exercise and the functions he can perform under and within the express provisions of the Constitution and not by what is now practiced by the President. We can‟t tell that President is the figure head.

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Article 72 of the Constitution of India

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AIR 1989 SC 653.

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Article 143 of the Constitution of India

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Infra. p. 12

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The contingency fund is the fund from which the President can sanction advances to meet the expenditures of the unseen future

Secondly, the position of the President is clearly reflected from the oath and affirmation by the President. Every president and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior most of the Supreme Court available, say, “I, [name], do swear in the name of God (or solemnly affirm) that I will faithfully execute the office of President (or discharge the functions of the President) of the Republic of India, and will to the best of my ability preserve, protect and defend the Constitution and the law, and that I will devote myself to the service and well-being of the people of Republic of India.” The words “preserve, protect and defend the Constitution and the law” stated in the oath clearly define the position of the President. The preserver, protector and defender the Constitution cannot be a mere figure head. Further it is stated that “I will devote myself to the service and well-being of the people of Republic of India”. But how can a person, who is dependent upon the Council of Ministers can devote himself? Thirdly, according to Article 53 (1) of the Constitution of India, the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with this Constitution. In other words, the President can exercise his functions directly without the advice of the council of ministers or others, which is otherwise known as the discretionary powe r. The President can appoint any one as Prime Minister and he can dissolve the Lok Sabha without the suggestion of the Prime Minister 22 in the following four cases viz. a) When the Prime-minister loses his majority in the house, b) When he is unable to prove his majority, c) When the vote of no-confidence is passed against him, d) When he is not facing the Parliament, but the Parliament has a proof that the ruling party has no majority in the house. 23

Sir B.N.Rau, a member of the Drafting Committee, in his book has rightly stated that- “Even if in

Art.85 does not require the aid and advice of the Prime -minister to dissolve the house.

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Prof. M. P. Jain, Indian Constitutional Law,5th Edition, (Wadhwa Publications, Nagpur, 2005), p.387.

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any particular instance the President acts otherwise than on the ministerial advice the validity of

the act cannot be questioned in any Court on any ground”. 24 It makes clear that, even the advice in performing functions is unconstitutional, then it is not binding on the President. Therefore it is clear that the President is independent in performing his functions. Further going ahead according to the constitution the cabinet will hold office only “during the pleasure of the office” Moreover, the court also Dinesh Chandra v. Choudhari Charan Singh 25 , held that, to argue pleasure could be interpreted in Art.75(2) to mean the President can dismiss any minister at any time, at his will. Further, the Supreme Court in S.P.Anand v. H.D.Devegowda, held that, it could then be said that, since ministers also include Prime- minister, the President can dismiss Prime- minister at his will. So, the President can‟t be called as a mere head. Fourthly, the president is empowered to declare e mergency, which is very important and unique in nature. During the debates in the Constituent Assembly, Dr. Ambedkar argued on 4th November, 1948, in normal times it is framed to work as a federal system. But in times of war it is so designed as to make its work, as though it was a unitary system. Part XVIII of the Constitution defines the emergency power of the Indian President. He can declare emergency in the following 3 conditions: According to Article 352, emergency can be declared due to war, external; aggression or armed rebellion. Article 356 states on the account of the failure of the constitutional machinery in a state, the President can issue a proclamation of emergency and according to Article 360, on the account of a treat to financial stability or credit of India and any other part thereof, emergency can be declared. In Article 356, it is clearly stated that if the President is “satisfied” that a situation has arisen in which the Government of the state cannot be carried on in accordance with the provisions of the Constitution, he can proclaim emergency. In the case of Sardarilal vs. Union of India case the court said that it is the satisfaction of the President. But in Samsersingh vs. State of Bihar, Iyer J. said personal satisfaction of the Council of India and declared we adopted a British model. But it is not the correct proportion of law. In Britian the King is the hereditary head but the President of India is an elected head. Fifthly, as per Article 74 the aid and advice is limited only to the exercise of functions by the

K.M.Munshi,The President Under Indian Constitution,. 2nd Edition, (Bhartiya Vidya Bhavan Mumbai,1997), p.39.

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AIR1980 Del 114.

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President. “Powe r” means the ability to affect others and “function” means the things to be

done. Power comes with the discretion. But so far as the function is concerned there is no such question of discretion. The aid and advice given by the council can‟t go to the extent to decide the way the President is going to exercise his powers. He is only bound by the mandates of the Constitution. And no advice of the Council shall be binding on the President which is unconstitutional. At last but not the least, the President can only be impeached on one ground i.e. when he acts unconstitutionally. The Procedure for it is also very difficult. 26 Two third majorities of both houses of total membership of Parliament are required to impeach him. Investigation is also conducted. Fourteen days notice is also given to him it is a feature of Indian Constit ution which is unique in nature. It shows that the President cannot act unconstitutionally and arbitrary. The question here is if the President has no role to play then why should he be impeached? If the President is not responsible to preserve protect and defend the Constitution and his only job is to sign the bill, how come he be impeached for signing an illegal Bill, which is send by the Parliament?

PRESIDENT VIS-A-VIS PRIMEMINISTER! It is often said that the Prime Minister is the real and the President is the constitutional head. Some argues that the Prime Minister is the leader of the majority party in the lower house of the Parliament or leader of the coalition govt. So, he is more powerful than the President. But it is at the same time true that the President is the representative of both the house and the State legislatures. So, Constitutionally the President is more powerful due to his large representative

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Art.61 Indian Constitution.

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character.

LOOK HERE THE PRESIDENT…POWERFUL! The President enjoys the power to return a bill unsigned but the constitution limits the power to send it back only once for reconsideration. If the Parliament sends back the bill with or without changes, the President has to sign it. However, deliberately or inadvertently, the constitution does not set a time- limit in which the President is obliged to approve the bill, so he may withhold assent indefinitely. This has come to be known in legal and constitutional circles as the "Pocket Veto", and has been used on a number of occasions against controversial Bills. Former President Giani Zail Singh withheld assent to a Bill passed by Parliament that gave sweeping powers to the State to intercept mail. This was considered by the President to be an encroachment on citizens' freedom of speech and liberty as guaranteed by the Constitution. 27 He was about to dismiss the government of Mr.Rajiv Gandhi because of the reason that the Primeminister of that government had failed to give the information to the President. Former President Venkataraman withheld assent to a Bill passed by the outgoing Parliament that gave pension benefits to themselves. This was interpreted by the President to be selfaggrandizement. 28 In 1997 in Utter Pradesh, one of the coalition parties had withdrawn its support from the government. Then, some other members of Assembly who were not supporters of the government supported it. The Chief- minister claimed majority. After some violent incidents the Chief- minister proved the majority. But the Governor sent a report stating the government of the state cannot be carried on in accordance with the provisions of the Constitution and requested for application of Art.356. The Council of ministers also gave advice to the President to dismiss the government, but the President refused to do so, stating that the government is constitutionally

http://en.wikipedia.org/wiki/President_of_India accessed on 24.10.08

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Ibid.

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valid.

Former President K. Narayanan introduced the important practice of explaining to the nation the thinking that led to the various decisions he took while exercising his discretionary powers; this has led to openness and transparency in the functioning of the President. 29 Former President A. P. J. Abdul Kalam sent back a controversial bill regarding enlarging the scope of the offices of profit, which disqualify a person from being a member of parliament. 30

The Parliamentary elections, since the nineties, have generally not resulted in a single party or group of parties having a distinct majority. In such cases, Presidents have used his discretionary power and invited the Prime Ministerial aspirants to form the government.

THE PRESIDENT OF INDIA & PRESIDENT OF AMERICA AND THE CROWN OF ENGLAND: A COMPARISION. In this chapter we are going to discuss and compare the Indian President‟s status with President of America and the Crown of England. PRESIDENT OF AMERICA:In America there is a Presidential form of government. All executive powers are vested in the President. 31 He is indirectly elected by the people for four years. But he can‟t hold the office for more than eight years. He is free to appoint the secretaries o f different departments; he can remove them also on his own at any time without consulting any one. In America there is also the separation of power between executive, legislature and judiciary. The power is enjoyed in their own spheres with check and bala nces. The legislature can bring indirect pressure on the executive through its power to levy taxes, to make appropriation of governmental expenses, to enact legislations, to investigate executive works and polices through its committees and the senate‟s power is to confirm treaties and appointments. But it does not

Ibid.

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Ibid.

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Art. II sec.1 A merican Constitution.

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mean that the President has no powers or has less power. He can withhold his assent from a bill

passed by the legislature. In America the President has no power to dissolve the legislature i.e. the congress. 32 Constitution of America provides for two years fixed term for it. Before that, the President cannot dissolve it. So, if the legislature passes a bill and sent for Presidential assent and if the President returns it back for reconsideration using the veto, the legislature has a power to pass it by 2/3 majority in both houses and it becomes law. The President is powerless in this regard. However the judiciary can interfere in it if it is unconstitutional. The President has also no ordinance making powers. He cannot perform any legislative functions. The President can only use those powers which are either conferred by the Constitution or any law. The executive and the legislative powers are limited in nature. For e.g. the legislature can make laws regarding Foreign affairs, Security etc. the President cannot exercise powers in relation to these matters. If the President signs treaties with another country it also requires 2/3 majority of senate in order make it effective. 33 CROWN IN ENGLAND:The England there is President as such but the Crown. He is not an elected one. It is a hereditary rotation in nature. The crown in England is the head of executive. He enjoys privileges which are inherent powers and powers conferred under any statute made by parliament. But at present he does not enjoy any inherent power. He has power to appoint all high administrative and executive officers, Judges, Bishops, officers of army, navy and air force. The crown has the function to look after the enforcement of all national laws. He conducts Country‟s foreign relations; it has supreme command over all armed forces. He has power to give pardons. He has power to conclude treaties without consulting parliament. Hence we can say that it is the ultimate executive authority and has extensive executive powers. Each minister is allotted with his function. They are only the one who observes that, laws are followed or not, they conclude the International treaties. If there is a war the issue of war is decided by them. The fund granted by the parliament is spent by them only. The ministers give the advice to the crown; even the power to give the pardons is exercised by the real minister under the name of the crown. The crown

Art. I of the A merican Constitution.

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Art. II, sec.2 of the A merican Constitution.

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prorogues the session of British parliament, dissolves the House of Commons, assents the bill.

the appointments are carried out by the cabinet under the name of the crown. All issues which come before the judicial committee of Privy Council are decided by the crown. Even it is said that, crown grants the mercy to a person who is convicted for the criminal act, but the actual job is done by the judicial committee of Privy Council. PRESIDENT OF INDIA:As in America the President is totally free to exercise his executive powers, but he can‟t make laws i.e. legislative powe rs are not vested in him. Whereas the Indian President has the legislative powers, as we have seen under Art.123. he can issue ordinances when the assembly is not in session. The American President has no judicial powe rs i.e. he cannot grant pardons, which the Indian President has under Art.72 provisions as to assent to bills are to some extent similar. In America the President cannot hold office beyond the period of eight years, but there is no such condition in Indian Constitution. A President can be reelected after second term in India. The President of America has not given the power to dissolve the congress, but Art.85 (2) (b) of Indian Constitution gives the power to Indian President to dissolve the house of people. Dr.Ambedkar in this regard says that, “In draft Constitution there is placed at the head of the Union a functionary who is called President the title of the functionary reminds one of the President of the United States. But beyond identity of names there is nothing in common between the form of the government prevalent in America and the form of government proposed under the Draft Constitution.”34 Many a times it is interpreted that, the President of India is a titular head and resembles to the Crown in England. English crown is the executive head of the state and exercises all its powers through its ministers, in India Art.53(1) says that, President of India is the executive head of the state and Art.74(1) says that, he performs his functions on the advice of his council of ministers. So, if we go to the plain reading of the Articles and above discussions, it can be said that, Indian President is a nominal head of the state like English Crown. Though Art.53 vests all executive powers in him, Art.74 overrides it. In fact crown has no powers. The actual powers are in the

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Dr. J.N. Pandey, Constitutional Law of India , 35th Ed ition ,(Central Law Agency, Allahabad, 2000), p.372.

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hands of the council. So, Sir Henry Maine rightly pointed out, “The king of England reigns but

does not rule”. But this is foreign to our system. The President of India is adorned with more power in comparison to these two countries.

DIALOGUES: In Samsher Singh v. state of Punjab

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the Supreme Court held that, the Governor and President

are only the formal heads of the state, and when they require satisfaction, required by the Constitution, it is not their personal satisfaction but the satisfaction of the council of ministers on whose aid and advice they exercise powers and functions. Thus, judiciary has consistently held that, the President in practice has no powers at all. Further in Ram Jawaya Kapur v. state of Punjab36 , the Supreme court held that, under Art.53 (1) executive powers of the Union are vested in the President but, under Art.75 there is a council of ministers with Prime- minister at the head to aid and advice the President in the exercise of his functio ns. The President has thus been made a formal or constitutional head of the executive and real executive powers are vested in the council of ministers National Democratic Alliance-backed presidential nominee Bhairon Singh Shekhawat, 83-yearold, whose term as Vice President ends on August 18, 2008, has said the nation should not have a 'rubber stamp' President who signs every file without reading it and understanding its implications. The first women president of India Mrs. P. Patil, has assured that she won‟t be a merely figure head.

WHAT IS PRACTISED? Starting from the period of Nehru to that of that Manmohan Singh, always there arises a question regarding the position of the President. Theoretically we have seen that the President is not a mere figure head. But we can‟t deny the reality, which is being practiced now. In the Constituent Assembly, Nehru said the President was not to have “any real power” but

AIR 1974 SC 2192, 2226

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AIR 1955 SC 549

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neither was he to be “a mere figure head.” As Prime Minister, however he made clear he would

brook no opposition from the President. Rajendra Prasad had said as president of the Constituent Assembly that the Constitution did not “lay down that the president is bound to accept the advice [of the cabinet].” But as President of India, he did whatever Nehru advised him to do. 37 He may have done this either due to the charisma of Pt. Nehru, the doyen of the Prime minister of the free world 38 or something else but after him all the Presidents follow his foot prints. As the President becomes silent there begins an age of nastiest political era, where the national interest is sacrificed for the narrow political interest. All the sacrifice of the freedom fighters and the novel ideas of the Constituent Assembly were put aside. There started the rule unlike British. No change in the rule and rulers, but in their skin colour….CPI in 1941. In this stage the politicians do everything and the President has no option but to sign it. In this situation when Mrs. P. Patil states she will “not be a rubber stamp,” how logical she is, is clearly remarkable. Prof. T. Devidas, 39 criticized her as “not a rubber stamp” but “the handle of the rubber stamp.” Now come to the most popular President Mr. Kalam. Is playing with the school children is only a duty of a President? This is not any one‟s fault but that of our political system and the election process. How come a scientist, who was confined within a laboratory can able to take the task of a State. A good person is not only a criterion for everything. The Constitution requires of the President a certain blend of qualities. He must be neither a political illiterate nor a political professional who has run the party engine. He must have a clear understanding of the political process and yet be above its turmoils; unaffected by the dust and din of the clashes of men and policies. He is an umpire and umpires are supposed to know the rules of the game, appreciate the state of the field and have an impartial eye on the play. 40 Similarly in the case of Mrs. Patil, who doesn‟t possess any quality other than …the gender, which the politicians think the most important one. Showing we believe in gender equality is not the whole idea. The task is something else.

David Van Praagh, “The Greater Game : India's Race with Destiny and China, Published by McGill-Queen's Press MQUP, 2003”, P.100. 38 C.At lee, “With Malice To wards None” in R. Zakaria, id. 100 at 103. Cf. Rajeev Dhavan etal. Nehru and the Constitution”, Indian Law Institute New Delhi, N.M.Tripathi pvt. Ltd. Bo mbay, 1992, p.II

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Prof.of law, in Nat ional Law School o f India Un iversity, Bangalore.

A.G. Noorani, The Indian presidency, Half a century's experiences with the institution of the presidency provide several lessons, Frontline Volu me 19 - Issue 13, Jun. 22 - Ju l. 5, 2002, Ind ia's National Magazine, fro m the publishers of THE HINDU

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CONCLUSION The Indian Constitution has given many a provision, which clearly states that the President of India is not merely a figure head. True the President has not done enough what he should have done. But I could like to say here that we can‟t comment something just having a look on the present situation of the country but we have to look for the provisions of the Constitution. The President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role. 41 Indian President lies somewhere between British Crown and American President. K. M. Munshi42 in his book “The President under the Indian Constitution” has said that the President is not only the biggest dignitary of our realm but the embodiment of the unity of our country. The principal role of the president is to prevent a parliamentary government from becoming a parliamentary anarchy and it is the Presidential authority that keeps the country and the people bond together. “…for the whole country his authority runs like a golden thread throughout the Constitution.” -K. M. Munshi

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V.R.Krishna Iyer, “Governor‟s Reign and President‟s Rule”, Constitutional Miscellany, Eastern Book Co mpany, Lucknow, second edition. 42

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He was an eminent lawyer, one of the framer's of the Indian Constitution, and a seasoned statesman. K M Munshi was influenced by Sri Aurobindo and was an ardent freedom fighter, working with Mahatma Gandhi, Pandit Jawaharlal Nehru, Sardar Patel, Tilak, Annie Besant, Jinnah and others. He was the Home M inister of Bo mbay, India's Food Minister, Governor of Uttar Pradesh, India's Agent General at Hyderabad. at http://www.bhavans.info/store/bookdetail.asp?bid=230&bauth=K.+M.+Munshi