President: a titular head?, Slides of Constitutional Law

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Sameeksha Shetty

President: a titular head?

Introduction

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 election is carried out 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 clauses i.e. Article 53 and Article 154. A. 53 clearly states that “the executive power of the Union shall be vested in the President…” which means that the Parliament has the power to confer only the functions of the President on any other authorities and not the powers.

Why Did Montesquieu Propose the Theory of

Separation of Powers?

Montesquieu lived in France during a time when the monarchy had absolute power. The French king had the power to make laws, enforce them, and interpret them. Montesquieu believed that this concentration of power was dangerous to individual liberty. He wanted to create a system of government where no one branch of government had too much power.

The Importance of the Theory of Separation of Powers

The theory of separation of powers is important because it helps to protect individual liberty. When the three branches of government are separate and can check and balance each other, it is less likely that any one branch of government will become too powerful and abuse its power.

The Two Models of Separation of Powers

• (^) The watertight model says that the three branches of government should be completely separate from each other. Each branch should have its own powers and responsibilities, and no branch should be able to interfere with the other two branches. However, this model is unrealistic in practice. It is difficult to completely separate the three branches of government, and some overlap is necessary for the government to function effectively.
• (^) The checks and balances model is more realistic. It says that the three branches of government should be separate, but that they should also be able to check and balance each other. This means that each branch has some power to limit the power of the other two branches. For example, the legislature can pass laws that limit the power of the executive, and the executive can veto laws passed by the legislature. The judiciary can also strike down laws passed by the legislature if it finds that they are unconstitutional.

There has been a long-standing debate about whether the President should act in accordance with the advice of the Council of Ministers. The Supreme Court and PM Nehru supported this view, while Dr. Rajendra Prasad, K.N. Munshi, Justice P.B. Mukherjee of the Calcutta High Court, and Chief Justice K. SubbaRao opposed it. In 1976, it was finally decided that the President must act in accordance with the aid and advice of the Council of Ministers. The Constitution 42nd Amendment Act, 1976 further strengthened this position by stating that the President "shall, in the exercise of his functions, act in accordance with such advice." This led to the rubber stamp theory, which holds that the President is a mere figurehead with no real power. However, the Janata Government, which came to power in the euphoric post-Emergency period, inserted a proviso to Article 74(1) which gives the President the power to require the Council of Ministers to reconsider their advice. This proviso has given the President more elbowroom to intervene in affairs of state. In the past, there have been several controversies about the President's constitutional position. However, each time, it has been confirmed that the President is a constitutional head of state.

Powers of President

The true role of the President of India has been a subject of debate, with some questioning whether they are merely a figurehead or hold more significant power. While the President does not have the same level of authority as in a presidential system, they are not without power and influence. The President holds a number of important responsibilities, including appointing the Prime Minister and other key officials, dissolving the Lok Sabha (the lower house of Parliament), and serving as the Supreme Commander-in- Chief of the Armed Forces. They also play a role in foreign affairs and have the power to grant pardons. While the President typically acts on the advice of the Council of Ministers, they do have some discretionary powers. They can choose to appoint a Prime Minister who is not the leader of the majority party in Parliament, and they can dissolve the Lok Sabha even if the Prime Minister does not advise them to do so. The President's role is further strengthened by the oath of office they take, which pledges them to uphold the Constitution and defend the nation. They can also be impeached for acting unconstitutionally, which suggests that they are not merely a figurehead.

President Vis-à-Vis Prime Minister

It is often said that the Prime Minister is the real and the President is the constitutional head. Some argue that the Prime Minister is the leader of the majority party in the lower house of the Parliament or leader of the coalition government. So, he is more powerful than the President. But it is at the same time it is true that the President is the representative of both the houses and the State legislatures. So, constitutionally the President is more powerful due to his large representative character.

The President of USA

Comparative Study

The United States has a presidential form of government, with the president serving as both the head of state and the head of government. The president is indirectly elected by the people for a four-year term and can serve no more than two terms. The president has the power to appoint and remove cabinet secretaries, and to veto legislation passed by Congress. However, the president cannot dissolve Congress or make laws. There is a separation of powers between the executive, legislative, and judicial branches of government. The legislature has the power to levy taxes, appropriate money, and investigate the executive branch. The judiciary has the power to interpret the law and strike down laws that are unconstitutional. The president's powers are limited by the Constitution and by laws passed by Congress. For example, the president cannot make laws related to foreign affairs or security. Treaties signed by the president must also be approved by a two-thirds majority of the Senate. In short, the United States has a presidential form of government with a separation of powers between the executive, legislative, and judicial branches of government. The president has significant powers, but they are limited by the Constitution and by laws passed by Congress.

India

The President of India has more powers than the President of the United States. In the United States, the President can only exercise executive powers, but the President of India has both executive and legislative powers. For example, the President of India can issue ordinances when Parliament is not in session. Additionally, the President of India can grant pardons, which the President of the United States cannot do. The Indian President also has more power than the British Crown. The British Crown is the executive head of state, but it exercises its powers through its ministers. In India, the President is the executive head of state, but they must act on the advice of the Council of Ministers. Dr. Ambedkar, the chief architect of the Indian Constitution, said that the President of India is not like the President of the United States nor like the British Crown. Instead, the President of India is a unique figure in the Indian political system.

Important Judgements

In Shamsher Singh v. State of Punjab , the Supreme Court held that, the Governor and President are only the formal heads of the state, and when they require satisfaction as 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, the judiciary has consistently held that, the President in practice has no powers at all. Further in Ram Jawaya Kapur v****. State of Punjab , the Supreme Court held that under A. 53(1) executive powers of the Union are vested in the President but under A. 75 there is a Council of Ministers with Prime Minister at the head to aid and advice the President in the exercise of his functions. 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.

A good person is not the only criterion for position of the President. The Constitution requires of the President to be a certain blend of qualities. They must be neither a political illiterate nor a political professional who has run the party engine. They must have a clear understanding of the political process and yet be above its turmoil; unaffected by the dust and din of the clashes of people and policies. They are 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.

Conclusion

The Indian Constitution has given many a provisions, which clearly state that the President of India is not merely a figure head. True the President has not done enough what he should have done. But one would like to say here that one cannot comment upon something just by observing the present situation of the country but one will have to look at the provisions of the Constitution. The President, like the King, has not merely been constitutionally romanticised but actually vested with a pervasive and persuasive role. The status of the position of the Indian President is somewhere in between the British Crown and that of the American President. K. M. Munshi 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.