doctrine of Aid and Advice
Image source - https://bit.ly/2APsJUh

This article is written by Ojasav Chitranshi and Palak Dwivedi from National Law University, Jodhpur. The article talks about the council of ministers, their collective and individual responsibility along with the bindingness of the advice rendered by them to the president supported by a timeline of such events.

Introduction

The constitution of a country is sacrosanct. It must not be disturbed except according to the due process of law and doing so may spell trouble. Almost every Constitution has been amended from time to time to pace up with the running time and India is no exception to it. As a matter of fact, the will of the people is supreme which is represented in the parliamentary form of government that India has, run and administered by the Prime Minister and his Council of Ministers. The function of the Prime Minister and his Council of Ministers is to aid and advise the President, who is the head of the executive.

In India, the position of the President looks similar to that of the British monarch but varies drastically when powers and function of the President are analyzed in the constitutional framework. Now, under the Indian Constitution Article 53(1) vests the executive power of the union in the hands of the President and provides that, “It shall be exercised by him either directly or through officers subordinates to him in accordance with the Constitution.”

So on a careful reading of Article 53(1), we get to know that the subordinate officers are none but the Prime Minister and his Council of Ministers and if the President is allowed to exercise such power at his own sweet will, India will be soon transformed into a dictatorship of the President. Therefore to avoid this, Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister to aid and advise the President and such advice given by the Council of Ministers will be binding on the President after reconsideration and shall not be questioned in any court of law.

Here one important aspect is that the Council of Ministers is headed by the Prime Minister, who in turn itself is appointed by the President under Article 75(1) and it is the Prime Minister on whose advice the President appoints the Ministers to form the Council of Ministers. Hence virtually or according to the written provision of the constitution the Prime Minister along with the Council of Ministers hold office at the pleasure of the President under Article 75(2). Therefore putting the above statement in the laymen language, according to which, the President is the head of the Executive and works on the aid and advice of the Prime Minister along with his Council of Ministers and they hold office at the pleasure of the President.

Donald Rumsfled has rightly said, “See that the President, the Cabinet and staff are informed. If cut out of the information flow, their decisions may be poor, not made or not confidently or persuasively implemented.” Therefore the players who play an essential role in the working of the Executive and the Government are the Council of Ministers because the President acts on the advice rendered by this Council of Ministers. 

According to the provision of the constitution under Article 75(3), the Council of Ministers shall be collectively responsible to the House of People or the Lok Sabha because every advice furnished by the Council of Ministers is for the people of the country. Hence the Council of Ministers is accountable to the House of People and if the Council enjoys the majority support in the House of People, then it cannot be removed by the President. This statement sounds contrary to the above statement but has been incorporated to preserve the very sanctity of democracy. 

A similar provision is “followed in the State Executive as well where under Article 153 of the constitution the Governor takes the place of the President and to aid and advice him a Council of Ministers headed by the Chief Minister is appointed under Article 164.”The work and function of the Ministers under the heads of both Executives are quite similar along the process of their removal, collective responsibility, accountability, scope of advice and its bindingness and last is the degree of the judicial scrutiny to such advice can be subjected too. Therefore it becomes important to look into the nature and scope of the position held by the Council of Ministers and the advice which is rendered by them, upon which the future policies and actions are dependent.

Collective Responsibilities of the Council of Ministers

“The principle of collective responsibility may be regarded as fundamental to the working of a parliamentary government, as it is in the solidarity its main strength lies.” The underlying principle behind the collective responsibility of the Council of Ministers is that it should be responsible as a body for general conduct of the affairs of the government. The term “collective” means that all ministers in the Council of Ministers should swim or sink together or stand and fall together. Collective responsibility envisages that each minister in the entire government assumes responsibility for the cabinet decision and action taken to implement the same. 

The policies, programmes or any other schemes of the cabinet have to be supported by each minister till they are a part of such cabinet. There can be no room for any difference of opinion with respect to any decision taken by the cabinet whether inside or outside the legislature. The principle of collective responsibility not at all means that every minister must take an active participation in the formulation of policy, or that he should be present in the committee room whenever the decision is taken because it is not possible in today’s time as the size of the cabinet are very large. It just means, in the words of the Supreme Court of India, the principle of collective responsibility is that “for every decision is taken by the cabinet, each one of the ministers is responsible to the legislature concerned.”

Further the principle of collective responsibility is both salutary and necessary, and can be seen with the help of few case laws: Firstly in the case of SP Anand v. HD Dev Gowda, it was held that “once a Prime Minister is appointed, he is also a minister and collectively responsible to the house as the Council of Ministers.” Further Gujarat High Court described the collective responsibility as follows: “collective responsibility means all Ministers share collective responsibility for every decision taken whether they have dissented or not to such decisions. It means that their decisions must have unanimity and confidentiality.” Now if we look at the term confidentiality it takes us to the idea of secrecy which means that all the decision taken or the deliberations discussed in the cabinet meeting must not be disclosed in the public and should remain only with the Council of Ministers because if the dissents or deliberation are presented in the public, it becomes a threat to both, the government and the nation. Thirdly the Supreme Court held in another case that “all the ministers in the Council should exhibit unanimity in their decision even if they might have expressed a different view in the meeting of the cabinet.”

So does this mean that individual opinions or dissents can never be expressed or put forward? The answer to the question is itself in a dissent because a minister can oppose or dissent to any policy or programme of the government but for doing the same, he must have to resign from the cabinet, as he cannot both remain a minister and simultaneously criticize a cabinet decision. This provision has been entailed to prevent the essence of democracy and the people’s faith in the government because if each minister is allowed to dissent publically then the faith of the people in the elected government will fall and eventually the government will lose majority in the Lok Sabha and owing to this reason there will be no government in the long run. In the past there have been numerous instances where ministers have resigned from the cabinet to criticize a particular government policy like John Maithi resigned as the Finance Minister to oppose the government policy.

https://lawsikho.com/course/lord-of-the-courses-judiciary-test-prep
                                Click Above

Therefore the question arises how such collective responsibility can be enforced? The collective responsibility of the Council of Ministers can be enforced by the process of no-confidence motion which has been illustrated in Rule 198 of the Rules of Procedure and Conduct of the Lok Sabha. The process of no-confidence motion is a motion expressing the want of confidence in the council of ministers. ‘The motion can be moved by any member by giving a written notice to the speaker before 10:00 am on the given day which will be read out by the speaker in the house. The motion should be supported by at least 50 members and then the speaker will announce a date which will be within ten days of such notice. If the motion fails to secure the support of 50 members then the motion will be discarded and the member who initiated the motion will be informed.’ However if the motion is passed then the majority party will have to seek majority support to retain its seat in the Lok Sabha and if it fails the entire government will have to resign which means that there will be no Council of Ministers to aid and advise the President. In such a situation, the President may appoint a Council of Ministers among the other ministers of the Lok Sabha and the Council so formed also have to prove its majority in the Lok Sabha by way of no confidence motion. 

If the newly formed Council fails to establish the majority support then the previous Council of Ministers will continue until a new government is formed. No confidence motion has been initiated against many governments like the Nehru Government, Lal Bahadur Shastri’s Government and many others but the only two occasions where no confidence motion was successful was against the Morarji Desai Government and Vajpayee’s Government. Therefore, showing that the want of confidence in the Lok Sabha is necessary for any government to survive.

Now looking at the above discussion the conclusion that can be drawn is that the Council of Ministers are collectively responsible to the Lok Sabha and must maintain a majority in the House of People to be in the power and do not hold office only at the whims and fancies of the President. The Council of Ministers with the Prime Minister is indispensable. However if the ministers were holding office at the pleasure of the President it would have been an undemocratic process.

Individual Responsibility of Ministers

The principle of collective responsibility emphasizes that every decision should be taken unanimously among the Council of Ministers but it is not possible in today’s time as among the Council of Ministers, each minister has a different portfolio and the exigencies of that portfolio can lead to individual decisions. The decisions so taken are not under the head of collective responsibility of the Council of Ministers but under the individual responsibility of that minister.

Article 77(3) envisages that there should be a distribution of business among the ministers. Therefore along with the principle of collective responsibility, the principle of individual responsibility of ministers should also be there as it is more positive in character that every minister should be personally accountable for his action to the legislature. The positive liability of each minister is essential if the parliament is to effectively perform its role of criticizing the executive.

The concept of individual responsibility has been very explicitly spelt out by the Supreme Court in the case of Secretary, Jaipur Development Authority v. Daulat Mal Jain that “each minister is personally and collectively responsible for the action, acts and policies. He is accountable and answerable to the people. The legal and the moral responsibility or liability for the acts done or omissions, duties performed and policy laid down rest solely on the minister of the department. Accordingly, he is indictable for his conduct or omission or misconduct or misappropriation”. But when a particular minister is under fire in Parliament the principle of collective responsibility ensures that other ministers should come to his rescue or defend his action. 

Ordinarily the support of the Council for such ministers depends upon the exigencies of the situation. On some occasions cabinet may feel bound to back a minister but there are instances, when the cabinet has decided to throw the offending Minister off because to accept full responsibility for such an offending act may cost the downfall of the entire government. And the most outstanding example of a minister going out instead of the Council of Ministers is that of Krishna Menon who resigned as the Defense Minister because of the debacle of the Indian Arms during the Indo-China war in 1962. Another instance was when K D Malviya resigned after an enquiry commission was set up against him by the Supreme Court and the charges to be investigated were of corruption and misfeasance.

Prima facie, it may seem that it depends upon the situation that the Council will support such individual ministers or not but the truth is somewhat different. The truth in reality is that it is the choice of the Prime Minister to decide whether he will drop a particular minister or not because of criticism against him in the parliament. “It appears to be most unlikely today that the House could force a Prime Minister to remove an individual Minister from his office until the Prime Minister has seized confidence in him”. Therefore the removal of an individual minister is entirely based on the confidence that he enjoys from his co-ministers.

Now after discussing individual and collective responsibility, one thing is quite evident that the Council of Minister owes a collective responsibility for every decision taken by the Cabinet but should not be allowed to suffer for any illegal or immoral act committed by any of the Individual Ministers. The responsibility of such an act should only be taken by that Individual Minister.

Now the question arises that if the Ministers are able to seek support for any of their arbitrary advice which has formed a base of a policy, can it be questioned into any court of law or the immunity provided under Article 75(2) has a universal application?

The doctrine of Aid and Advice: A study of Article 74

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 advice. Either it must be gleaned from the underlying intention of the Constitution or implied from the expressed language. A closer analysis illustrates that the role of the President can find support by reference to the language of the Constitution. 

The executive functions then are exercised by the President in two ways: (1) by him directly; (2) through officers subordinate to him. Article 53(1) can be read to vest executive power exclusively in the President, while the Ministers are able to exercise power only as officers subordinate to the President. Thus, if he exercised power by the direct method, he would be free to act without the advice of his Ministers. Another important article with respect to Presidential power is article 74 that states:

Council of Ministers to aid and advice President

(1) 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: 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.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Before the 42nd amendment, Article 74(1) stated that, “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”. However, there was a slight ambiguity whether the advice of the Council of Ministers is binding on the President. Forty-second Amendment of the Constitution of India (1976) made it explicit that the President shall, “act in accordance with such advice”. The amendment went into effect from 3 January 1977. The 44th Amendment (1978) however added that the President can send the advice back for reconsideration once. But if the Council of Ministers sends the same advice again to the President then the President must accept it.

This article leads us to a very important discussion on bindingness and non-justiciability of cabinet advice and this chapter will deal with this in detail. There are three approaches to check the bindingness of cabinet advice on the President.

https://lawsikho.com/course/lord-of-the-courses-judiciary-test-prep
          Click Above

In Favour of the president – being bound by Ministerial advice

The scholars who support the view that the President is bound by ministerial advice admit that the language does not expressly bind the President to accept the advice of his Ministers. They argue that the terms “aid and advice” are developed by English convention and used throughout the Dominion Constitution. It does not mean that the President may reject the advice under the English and Dominion conventions, but that the President is absolutely bound to follow the advice. Numerous scholars and court decisions in these countries have interpreted the terms on this.

This view is further buttressed by the fact that Article 163(1) – the article relating to the executive power of the state governors – contains the language “in his discretion,” which coincides exactly with the language of the 1935 Act. Article 74(1) does not contain such language and it can be assumed that it was purposely eliminated, viz., article 163(1) illustrates that where the Constitution intends the executive to be competent to reject the advice of the Ministers, it has expressly provided such an exception. 

With these precedents in mind, scholars favouring this view then interject the legislative intent into the argumental framework. When it comes to the legislative intent, The Constituent Assembly Debates contain the historical record of the discussion preceding the institution of the Constitution. It is cited as the authority regarding the legislative intent behind any Constitutional provision and their intention was to make the president the ceremonial head and not the real head. Dr. Ambedkar explained the role of the President as envisaged by the Constitution and said that “The President of the Indian Union will be generally bound by the advice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice.”

Subsequently, in response to a question whether refusal to follow the advice of the Council of Ministers is tantamount to a violation of the Constitution, Dr. Ambedkar stated that there was not the slightest doubt about it. He further stated that “aid and advice” was sufficient to bind the President to seek and abide by the advice of his Ministers. Pandit Nehru also articulated what he believed to be the intent of the Constituent Assembly. In responding to the advocates of a popular presidential election, he stated: “We want to emphasize the ministerial character of the government that power really resided in the Ministry and the Legislature and not in the President as such.” Many other members of the Constituent Assembly concurred in Dr.Ambedkar’s conclusion as to the construction of this section however, there was a significant argument presented by Mr. Mohd. Tahir and attempted to make the executive power of the President analogous to that of the state governors under the Constitution. He moved to explicitly grant discretion to the President to act on his own when the Constitution so enabled him. The proposed amendment was rejected. Thus, the aim of article 74(1) is to put into writing the principles of responsible government as it exists in England, i.e., the ministerial system.

The English King does not select the ministers or distribute the portfolios. This is the exclusive function of the Prime Minister. In India, article 77(3) of the Constitution provides that the President shall make the rules in this respect. Thus, since the systems and countries are so dissimilar, the king president comparison is specious, and the written Constitution contains a number of provisions in direct contrast to English convention, it can be concluded that the Constituent Assembly did not in fact intend the Indian system to be strictly bound to English convention. It still remains, however, to determine just how far the Indian system can constitutionally diverge from the British model.

Against the President – being bound by Ministerial Advice

The opponents to this position argue that the express language does not contain a provision stating that the President “must” accept ministerial advice. The terms “aid and advice” do not imply that the advice must be accepted in all cases, but simply obligates the Ministers to tender such advice. Another fact that the Constitution does not contain a clause requiring a co-signature with the President to authenticate issued orders also illustrates that the President has unfettered discretion, in that it supplements the meaning attributed to the absence of binding language in the Constitution.

Also, the Constitution does not spare words; a mandate is indicated; no words of mandate appear in this article. In addition, the courts are restrained from enquiring whether and what ministerial advice was tendered under Article 74(2). Thus, the validity of an act promulgated by the President without the advice of an expressed provision and the prohibition of judicial involvement buttresses the position that the President is not legally bound by the advice.

Third interpretation of Article 74(2) is based on the assumption that aid and advice binds the president, this obligation only exists in reference to chapter one part five of the Constitution, which is merely the chapter on executive power. The Council of Ministers is mentioned only in two articles (articles 74 and 75), while the President is mentioned in all chapters of part five as well as in many other provisions of the Constitution. His powers and functions are not only executive, as that of the Council of Ministers, but also legislative, judicial, constitutional and prerogative. These additional powers, or so it is argued, are outside of the ambit of the “aid and advice” clause.

There is a judicial expression on the interpretation of articles 53(1) and 74(1). The Supreme Court of India observed in dicta in the case of Ram Jawaya Kapur v. State of Punjab, that it was the intent of the Constituent Assembly to base the executive in India on the British model and concluded that, article 74(1) binds the President to follow ministerial advice as under the British system.

Another case is that the Bank Nationalization decision implied that the issue of the President bound to follow Ministerial advice is still subject to argument. Therefore, judicial history is not an aid to interpretation of this language. This brings us to an end of the discussion on the topic of legal bindingness of ministerial advice. Now this chapter will throw light upon another important issue, the non-justiciability of the cabinet advice.

Non-Justiciability of Cabinet Advice

The next question is with respect to the scope of article 74(2) which restrains the courts from embarking an inquiry as to the nature of cabinet advice provided. This article deals with the judicial review on the cabinet advice and protects and preserves the secrecy of the deliberations between the President and his Council of Ministers. Its scope is limited. It does not immunize orders and acts done by the President in exercise of his functions.

The Supreme Court has clarified the implications of Art. 74(2) in S.R. Bommai v. Union of India. No court is concerned with what advice was tendered by the Minister to the President. The court is only concerned with the validity of the order and not with what happened in the inner councils of the President and the Minister. An order cannot be challenged on the ground that it is not in accordance with the advice tendered by the Minister or that it is based on no advice. If, in a given case, the President acts without, or contrary to, the advice tendered to him, it may be a case warranting his impeachment, but so far as the court is concerned, it is the act of the President. Article 74(2) protects the secrecy of the deliberations between the President and his Council of Ministers.

When the act or order of the President is questioned in a court, it is for the Council of Ministers to justify the same by disclosing the material which formed the basis of the act/order. The court will not look into the adequacy of the material. Material will not become advice just because it was provided as a support to the advice. The Court disagreed in this respect with the reasoning of its own earlier decision in State of Rajasthan v. Union of India. The view expressed in Bommai’s case was affirmed and extended in Rameshwar Prasad(VI) v. Union of India And the views to the contrary in State of Rajasthan v. Union of India, were held to be no longer the law.

The majority held that Article 74(2) does not bar scrutiny by courts of the factual existence and relevance of the material on the basis of which advice is given by the Ministers to the President. The onus of proving was on the Union of India and the Governor’s report would not suffice. The courts can also scrutinize the reasons for such advice. This clause also implies that if the president fails to follow the cabinet advice he cannot be forced by courts to follow it.

Comparison Between Article 163 And Article 174

Under article 74(1) it is clear that the president cannot exercise his own discretion whereas the governor under article 163(1) is bound by ministerial advice only where the subject is beyond his discretion. Prima facie, the use of the word ‘discretion’ for the Governor, but not for the President, indicates that while the Constitution envisages the possibility of the Governor acting at times in his discretion, i.e., independently of the Ministers, no such possibility has been envisaged for the President. Article 163 is rather wide and clear when it comes to governor’s discretion and implies that he is not bound to act as per cabinet advice. On this point, the Governors’ Committee has observed:

Thus, even though in normal conditions the exercise of the Governor’s powers should be on the advice of the Council of Ministers, occasions may arise when the Governor may find that, in order to be faithful to the Constitution and the law and his oath of office, he has to take a particular decision independently.

It is however realized that, in the scheme of our Constitution, such occasions will be extremely rare. It was held in the case of Samsher Singh v. State of Punjab that the governor is not bound to seek such advice in his discretionary area, and he discharges such functions to the best of his judgment. It is undeniable that the sanction for prosecution of public servant including a minister is the executive function of the State Government. The Governor is not required to exercise this function in his discretion ‘by or under’ the Constitution. 

There is no specific Article in the Constitution which requires the Governor to act ‘in his discretion’ in the exercise of the Executive function. It is well settled that unless a particular Article expressly so provides, an obligation of the Governor to act in his discretion cannot be inferred by implication, as held by the Hon’ble Supreme Court in Ram Jawaya v. State of Punjab, and Sanjeevi Naidu v. State of Madras.There has been recently a dispute between the Delhi govt. and Lieutenant Governor of Delhi, the bone of contention was article 239 AAwhich stated that a LG, could disagree with many decisions of elected government and refer them to the president, which means the central government but the Supreme Court held in this case that The L-G is bound by the aid and advice of the Council of Ministers. In case of difference of opinion, the L-G should straightaway refer the dispute to the President for a final decision.

Also, that the Lieutenant-Governor should act as a “facilitator” for good governance in the national capital and not as an “obstructionist”. One should be able to exercise one’s own discretion provided it does not make the constitution unworkable.

Special Powers vested in the president

The president is vested with a lot of special powers which will be discussed in brief in this chapter where the president is required to exercise his own judgment. The Veto power under Article 111 provides that the President may veto any legislation and it is less possible to override a veto. The President may declare his assent to a bill, declare that he withholds assent or send the bill back for reconsideration and possible amendments. Next power is the Military Power The President is vested with the powers of the Supreme Commander of the Defense Forces of the Union.

The words “without prejudice to the generality of the foregoing provision” in clause (2) of article 53 imply that the power to command the defense forces forms part of the executive power of the union. Even if it appears that the President does possess some discretion, realistically speaking, today’s civil heads are cut off from any active control of military affairs. Another important article is 356 which provides the president with special power to declare state emergency, if the President upon receipt of a report from the governor or otherwise, is satisfied that a situation has arisen in which the government of a state cannot be carried on within the provisions of the Constitution, he may by proclamation assume all or any of the functions of the state government or all the powers vested in the government. 

We feel that concentration of power on such a large scale in the hands of a person who is neither directly elected nor responsible to the legislature is dangerous; it might lead to unfair use as it involves his personal political views and prejudices. The election of Prime Minister is another important power vested in President Article 75 of the Constitution provides that the Prime Minister shall be appointed by the President but the President has to appoint the leader of the majority party in Lok Sabha as the Prime Minister. 

But when no party has a clear majority in the Lok Sabha the President can exercise his personal discretion in the appointment of Prime Minister. In India, occasion for real exercise of the power of appointment of a Prime Minister arose for the first time during the president ship of Shri Radhakrishnan. The death of Shri Jawahar Lai Nehru on May 27, 1964 brought his government to an end. A Prime Minister was immediately needed to head a new Government. The President appointed Mr. G.L. Nanda was Prime Minister because he was the senior-most cabinet member. After the President had exercised the prerogative and appointed the Prime Minister, no power remains with him to tender any advice or give any direction in the matter of discharge of his duties as Prime Minister as it was said by Charan Singh in Lok Sabha while seeking a vote of confidence. 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. 

A literal interpretation of Article 123(1) makes it clear that the promulgation of an ordinance is a discretionary power of the President. This is obvious because of the use of the word “satisfied”. Hence, in theory, the President need not take the aid and advice of the Council of Ministers in the course of issuing ordinances. However, in Sardari Lal v. Union of India, the Supreme Court speaking through Justice Grover held that in all places in the Constitution where the term satisfaction is used, it refers to the personal satisfaction of the President on the basis of the material placed before him. This was overruled in Samsher Singh”, where the Court held that satisfaction of the President was not his personal satisfaction.

Conclusion

We would conclude by saying that democracy would be undermined, if Article 75 which talks about the collective responsibility of the ministers, will be exploited by the majority government according to its whims and fancies, without any check on their authority. The process of no-confidence motion also is a nominal process which can be escaped by having a majority in the Lok Sabha. There have been numerous instances where in spite of the arbitrary decision of the government, it had passed the no-confidence motion and secondly, if the “aid and advice” is not interpreted as a basis of parliamentary authority.

The position of the President becomes more relevant when there is instability and no majority. If the President is always bound by ministerial advice, the provision rendering him responsible for the maintenance and protection of the Constitution would be an irregularity and it is very unfair for a central authority like the President not being able to exercise such discretion. The only conclusion is that, the part of Art. 74(1) which makes the ministerial advice binding on the President is merely directory in nature. In Britain, it is a convention that the monarch acts on the advice of the Ministers. In India, an attempt has been made to codify this convention, but, in effect, it still remains a convention, and does not become a legally enforceable injunction. It can be concluded that Articles 74 and 75 which deal with the composition and status of the Council of Ministers are very generally worded. The framers of the Indian Constitution left these matters undefined so that these may be regulated by practices and conventions, which is one of the major sources of law. Through various cases like Ram Jawaya Kapur and Samsher Singh that we follow cabinet systems like in England and have laid down article 74(1) to be mandatory in nature. Article 74 clearly uses the term “functions” and since the Constitution makes a clear distinction between powers and functions, they cannot be used interchangeably. 

The amendment of 1976 has not changed the position with respect to exercising his own discretion in performing executive functions. The next question that we discussed was that does the President have any discretionary powers? The power of the President makes it abundantly clear that most of the powers conferred on the President under the Constitution of India are discretionary in nature. Words and phrases such as “pleasure”, “if the President is satisfied”, “if the President is of the opinion”, “with the previous consent of the President”, “the President may by order determine”, “as he may deem necessary”, etc., imply that the President has discretion in a number of matters. However, it seen that even if Constitution provided a bigger role to the President his powers have been curbed when it comes to ground realities and this clearly reflects a flawed understanding of the Constitution also that there is difference in the language of constitutional provisions of article 163 and article 74, which provides governor clear discretion unlike, that to president which is very controversial and left to judicial interpretations and conventions.


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY