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Art icle 74 in The Const itut ion Of India 1949

The Government Grants Act, 1895

The British Statutes (Repeal) Act, 2004

Art icle 75(3) in The Const itut ion Of India 1949

Art icle 78 in The Const itut ion Of India 1949

Central India Law QuarterlyPosition Of The President Under The Indian Constitution

POSITION OF THE PRESIDENT UNDER THE INDIAN

CONSTITUTION

Smt. Kamfa Jain *

The most accepted definition of Law is that body of rules which

is recognised by the Courts of the Country as "taw'. The term Law

embraces all governmental machinery for carrying out governmental

programme. Legislation. judicial precedent and customs are regarded as

the important sources of Law. So far as the administration of the Country

is concerned we have got three organs of government namely legislature,

executive and judiciary. In India the task of administration is in the hands

of administrators or the executive. Under the Constitution of India,

Executive Power of the Union and the State is vested respectively in the

President and the Governors and to be exercised by him or them either

directly or through officers subordinate to him or them in accordance with

the Constitution. There is a Council of Ministers with the Prime Minister at

the head to aid and advice the President in the exercise of his officialfunctions. Similarly In States there is a Council of Ministers with the Chief

Minister at the Head to aid and advice the Governor in the exercise of his

functions. But, vesting of the executive power of the Union in the

President and of the State in the Governors is only formal or

Constitutional . They are only Constitutional heads. The President, the

Governors and Council of Ministers, however, do not exhaust the

numbers which constitute the executive. The Ministers are but political

administrators then there is a Central administration consisting of the

permanent civil servants , for example, the Secretary, the Director, the

Commissioner and other Incharge of different departments of Government

who also carry on executive administration either under statutory powers,

powers delegated to them or as part of the duties of their office. Under

them starts a heirarchy of officers who are entrusted with the various

works of administration either by law or as delegates or otherwtse.

2. Unlike America. there is no separation 1 of Constitutional powers

which gives separate treatment to the three institutions and allocates

separate distinct field for their operation. Articles 52, 74 and 75 give a

M.A., LLM. (Public Law). Head olthe Department, Govt Hamidia College . Bhopal (M.P.)

and Lile Member , The Central India Lew Institute. Bhopal.

1. Motlr.m v. Stal. of U.P. [1951. Allahabad 257. In this case Executive Powers are not

tion Of The President Under The Indian Constitution http://indiankanoon.org/doc/1228416/

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defined. But the Constitution being a written one power, of different organs including

Executive must be ,pelt out from the Constitu1ion itself. Ramjavaya Kapoor v. Slale

ot Punjab. 1955. S.C. 549. In this ease our Council of Ministers'ls like the British

Cabinet, a hyphen which joins a buckle which fastens the legislative part of the state

to the Executive Part.

1992) PRESIDENT UNDER THE INDIAN CONSTITUTION 333

picture of Constitutional provision which is not very dear. The question Is

whether the President is the Constitutional Head of the State invariably

acting upon the advice of the Coune. of Ministers and whether he has

any independent authority of his own I.e.discretionary power by which he

can dis-regard the advice tendered to him and issue his own order? What

Is the relationship between the President and Council of Ministers. This

question remained unsettled2.

3. The nation has witnessed a controversy over the President's

decisionto dissolve the Lok Sabha. The moot question Is was it obligatory

on President Reddy in 1979 to declare the dissolution of Lok Sabha

before the expiration of the normal term of 5 years and ask it to have fresh

mandate of the people, and this question was again put before President

Venkataraman in dissolving the House in 1989. In other words was the

President bound by the advice of the out going Ministry to dissolve the

House and hold a mid-term poll or had the right to Ignore its acMee and

Instead invite the then leader of the opposition (Mr.Jag Jlvan Ram) in 1919

(Mr.Chandra Shekhar) in 1989. to explore the possibUity of forming an

alternative Gcvt . ? All these issues compelled me to review the

Constitutional position of the President of India.

4. To present the subject in its proper perspective, it is necessary

that the legislative history of the relevant Constitutional provision is traced

and an analysis of the provision is attempted with views expressed by

leading Constitutionalists and Jurists and the Supreme Court.

HISTORY OF PHRASEOLOGY

5_ M and advice" as a constitutional phraseology was Invented

Aid

under the Constitution of Canada, that is, the British North America Act.

1867_Section 11 of that Act provided for a "Council to aid and advise in

the government of Canada. to be styled the Queen's Privy Councl for

canaoa- From the British North America Act of 1867. this phraesology

had travelled to Sections 9 and 50 of the Government of India Act. 1935

which provided for a Council of Ministers to aid and advise respectively

the Governor-General of British India and the Governors of the British

Indian Provinces.

6. The provision of Section 9 of the Government of India Act, 1935,

had borne a half way resemblance k) the provisions of article 13(9) of the

2. Before Inidi.-, Con,titution eame into Ioru SM. B.N. Reu ...preMed his viewt .. to

wllel eKtent b. the Prelident i, required in !he d iseherge 04 hil funetion to act on sueh


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advic.7

334 CENTRAL INDIA LAW QUARTERLY I Vol 5:3

Irish Constitution. Under Section 9 of the Government of India Act, 1935

a distinct division of functions of the Governor -General was improvised.

providing firstly where he should act in his own judgment and secondly

where he should act accord ing to the advice of the Ministers. The

amended Section 9 stated , "There shall be a Council of Ministers to aid

and advice the Governor-General in the exercise of his functions.When

the Constitution of India was framed. the language of Section 9 was

retained in article 61.

LEGISLATIVE BACK GRQUND

7. This background never envisaged that the powers and the

functions vested in President sholJd be exercised by him on his own

responsbilit y without the co nsent of the Council of Ministers. The

Assembly resolved on 4th November, 1948 that President occ upies the

same position as the King under the British Constitution. He is the Head

of the State but not of the Execut ive. He represents the Nation but does

not rule the Nation. He will be generally bound by the advic e of his

Minister. He can do noth ing countrary to them or their advice flO( can he

do anything without their adviceJ. Dr. Ambedkar said that the commttee

had followed the proposal set out in the report of the draft co nstitution

commission. The report of the Committee said thai wh ~e the President is

to be the Head of Executive. He is to be guided by a Cou ncil of Ministers

whose advice shall be binding upon him In aU actions that he is supposed

to take under the power given to him by the Constitution".

8. On 30th December, 1948 the Present provisions in the

Constitution were adopted by the Constituent Committee. It is submitted

that the correct interpretation of Artlde 53 as already pointed out would

be to make it subject to other relevant provisions of the federal structure

of our Constitution. Article 74 expressly states thai there shall be a

Council of Ministers with the Prime Minister at the Head to aid arid advise

the President In the exercise of his functions. Clause (2) Provided that the

question whether any and it so what advice was tendered by the Ministers

to the President shall not be enquired nto in any Court . The question

arises as to the expression "aid and advice " in clause (1) of Article 74. Is

the advice tendered to the President is binding on the President ? If the

words are construed that the advice of the Ministry is only advice and it

is for the President to accept the advice or not. But if clause (1) of Article

3. Con5tituem Asembly Debate. Vol. VII. at. p. 32

4. C.A.D. Vol. VII- al p. 974.

19921 PRESIDENT UNDERTHE INDIAN CONSTITUTION 335

74 is read along with other provisions of the Constitution, also in thebackground of the Government of India Act,1935 and also other similar

provision in which similar expressions occur, the clause seems to be that

the President is bound to act according to the advice of the Council of


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Ministers. The clause is a mandatory one. The word ~Shall" used in this

article must not be interpreted as "may'. The provi sion is mandatory in the

sense that , the President cannot dispense with this body. If Article 74(1)

is read in this manner, the rest of the pl'OVision dealing with "Executive W

must be read in harmony with the other prcvtscos. In other words Article

74(4) and 75(2) and (3) must be interpreted harmoniously. They bring into

existence what is usually called "respon sible Government" As regards the

.

doctrine of the pleasure of the President and his powers are to be read

in the light of the Constitutional provisions. Or. Ambedkar said that 't here

is no case which can arise where the Presdent would be called upon to

discharge his functions without the advce of the Prime Minister and his

Cabinet except in two cases one is appointment of Prime Minister and the

other is dissolution of Parliament. Or. Rajendra Prasad felt (May 23.1949)

that Article 61(1) of the draft Constitutions does not lay down that

President is bound to accept the advice and asked , "is there any

ConstitutionaJ provision in regard to it or is there any real difficulty in

providing some-where that the President w~1 be bound by the advice of

the Ministers" ? Or. Ambedkar referred to dauses 3 of the 'Instrument of

Instructions' which provided that the President shall be 'guided' by the

Cabinet's advice. He also stressed thai Article 61 follows almost literally

other Constitutions and the Presidents have always understood that

language which means that the advice of the Council is binding upon himand he must accept the advice. H. V. Kamath reverted to this (October

14,1949)6 and reminded Or. Rajendra Prasad about his doubts. He

bluntly asked Or. Ambedkar. "if in particular case the President does not

act upon the advice of the Council of Ministers will that be tentamount to

be a violation of the Constitution and will be liable to impeachment. There

is not the slightest doubt about it. 'Was the categorical reply 7. Sir A1ladi

Krishnaswami Ayyar another member 01 the drafting committee too,

thought, "That the point is the necessity of provision is essentially without

substance" Article 61 was, "merely a euphemistic way of saying that the

President will be guided by the advice of his Ministers in the exercise of

B

his functions , His Cabinet holds office, but it is the pleasure of the House

5 The corresponding provision in Constitution is Article 74 (1).

6. CAD, Vol. VIII. at p, 216

7. C.A,D, Vol Vol IX, at p.116.

8. CAD, Vol X. at p , 269

336 CENTRAL INDIA LAWOUARTERLY [ Vol 5:3

whose majority confidence they command and not the President It is further

submitted that while interpreting these provlsons of the Constitution we have

to take the Constitution as a whole and these provisions as a living organ


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rather than to place literal ioterpretatoes on it' .

IRRELEVANCY OF DEBATES IN INTERPRETATION

9. In A.K.Gopalan v. Slate of Madras' o, the Supreme Court held

that the repo rt of the Drafting Committee of the Constituent Assembly

might be looked into for interpreting the words only in case of an

ambiguity of meaning in the words used in the Constitution, but not where

the language used was plain and unambiguous. Accordingly. reference 1 0

the speeches made by Dr. Ambedkar, Allad! Krishnaswamy Ayyar or by

T.T,Krishnamachari in the Constituent Assembly is wholly out of place in

reading article 74 into an implication that the advice of the ccorce of

Ministers would be binding on the President.

10. H. M. Seervai1 1 is of the view that the Statement of Objects and

Reaso ns, might only express the indi vidual opinion of the person

lntroduclnq the Bilt and that opinion might not be taken into consideration

for three reasons; firstly, because it Is on a question which Is lor the Court

to decide; secondly, because it may be mistaken; and thirdly because

other members who voted for the Bill may not share it An exception

according to him could be made in a case where the Statement of

Objects and Reasons referred to ' acts which were matters of history or

common knowledge, and which were capable of independent proof.

JUDICIAL VIEWSUPREME COURT

11. The oft referred decision bearing on articles 73 and 74 is that inthe case of Ram Jawaya Kapur v. State of Punjab 12 where the Supreme

Court has observed:

"The expression 'aid and advice' in article 74 may apparently

suggest that 11 is left to the President to accept the advice or

ignore the same and thus the decision on all matters witt be of the

President himself. But on a true Interpretation of the expression in

the context of the relevant provision of the Constitution, it be-

comes abundantly clear that the functions of Ministers or Council

9. ibId

10. AlA, 1950, s .C. 27

11 . H.M.Seervai : Constitutional Law 01 India, 3rd Edn. 1990,vol

12. AIR 1955 S.C.549 .

PRESIDENT UNDER THE INDIAN CONSTITUTION 337

of Ministers are not merely giving advice ; they can take dec isions

which must take effect."

The expressio n "relevant provision of the Constitution", presumably refers

to the provisions of art icle 78 which co ntains references to such terms as

'decisions' and 'proposals for leg islation'; but even these provisions have


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failed to make th is matte r "abundantly clear". Article 78 itself makes it

inc umbent that all such 'd ecisions' and ' proposals' have to be

communicated to the President and there was no point in the transmission

of thesedecisions or proposals just in the form of a routine message unless

they were meant for the President to apply his own mind and then approve

or disapprove any. Since all executive actions are required under article

n {1 )13 1 be expressed as taken in the named the President, the Ministers

0

In taking any decision or making any proposals, simply act as administrators

on behalf of the President. Simser observations were made in P.Joseph

John v. State of Travancore Cochin ', and reiterated in Pratap Singh, v.

15

State of Punjab. The High Cou rts were bo und to accept this view. In Re

Jaya rama Iyer 16, fo r example, the High Coun of Andhra Prad esh and

Calcutta17 head tha t the President was a formal or constitutional head and

the real execut ive powers were vested in the Ministers or the Cabinet. A new

d imension appears \0 have been g iven to this view by the d ecision of the

18

Supreme Cou rt in State of Uttar Pradesh v. Babu Ram Upadhyaya .

Art icle 310 of the Constitution which vests in the Preside nt. and the

Governors of States. the sole pleasure d uring which the government servant

could enjo y a tenure of offic e was under the Court's consideration. It was

held that the power und er articl e 310 was outside the scope of the executive

pow er of the state under artier 154. On the same reasoning naturally, it woul d

also be out sid e the sco pe of the executive power 01 the Union under articl e

53. In his ow n judgment, Subba Rao J.(as he then was) had alluded to the

'overriding' powers of the President . o r the Governor i under the Co nstitution. 1

When the case of Jayantilal Amritlal v. F.N.Rana came up for decision ,

the Supreme Court became explicit and ob served :"Articl e 258(1) may,

however. be noticed . That clau se enables the President to entrust to the

State the functions which are vested In the Union, and which are exercisable

by the President on behalf of the Uni on. The power to pr omulgate

13. Ibid

1" . AlA 1955, S,C. 160

15. AlA 1964 , S.C. 72

16. AlA 1958, Andh ra Pradesh 14

17. R.mkri.hna v. Union of India. AlA 1969, Calculi. 12

18. AlA 1961 , S.C .7S1

19. AIR 1964 , S.C. 1969

338 CENTRAL INDIA LAW QUARTERLY [Vol 5:3

Ord inances under artic le 123. to suspend provi sions of article 268 to 279

during an eme rgency, to declare failure of the constitutional machinery in

Statesunder article 356. to declare a financial emergencyunder article 360,to makerulesregulating the recruitmentandconditions of service of persons

appointed to posts and services in connection with the affairs of the Union

under article 309-10 enumerate a lew out of the various powers- are not


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powers of the Union Government ; the se ar e powers vested in the President

by the Constitution and are incapable of being delegated or entrusted to any

other body or authority under article 258( i ) . ~

Textual Analysis Of The Relevant Constitutional Provisions

12. In estimating the Constitutional position of the President. the

peovlsioos of Article 53, 74 and 75 may particularly be referred . Article 53

makes the President the executive head of the Union and provided that

the powers g iven to him shall be exercised by him either d irectly or

th rough office rs subordinate t o h im In accordance with this

Constitution20. .

13. The last few words "Officers subordinate to him" mean nothing

but th e Council of Ministers 21. The Words "in ac cordance with the

provisions of the Constitution, mean that he is bound by the Council of

Minister's advice. Shri Mukherjee C.J. speaking for the Court stated that

though the exec utive power is vested in President the President is only a

formal or Co nstitutional head of the Executive, the real power is vested in

the Cou ncR of the Ministe rs on whose aid and advice the President acts

in the d ischarge of his functions and in the exercise of his powers. His

l ordship de scri bes the position saying thaI the relationship 01 Parliament

and Cabinet is "as a hyphen which joins a buc kle, fastens the legislative

part of the State to the Exec utive Part 22.

23

14. In R.C.Cooper v . Union of India it wlJs observed that unde rthe Constitution the President being the Constitutional head normall y acts

in all matt ers including the prom ulgation of an ordinance on the advice of

his council of Ministers. The Court , how ever, d id not exp ress any opinio n

as to whether the President may declin e to act upon such advice?

20. Maxwell, The Interpretation of etetutes 8192 (12th Edition 1969) and also H.R. Khanna,

ConstituliOll and Civil Uberties at 31 (1978) D.J . Payna, The intantion 01the legislature

in the interpretation 01the Statute ill probable, at p. 96 (1956)

21. Emperor II. Shi llnath, AIR, 1945, PII"Y CO\lncill56,

22 . UnOer the Gov!. of India Act 1935 alao the Execulive aulhoflty whieh wllS vested under

the Governor General exercised by him either directly Of by hill llubordinates

23. AIR 1970, S.C. 564

1992 J PRESIDENT UNDER THE INDIAN CONSTITUTION 339

15. Maitland 24 had tried to classify the powers of the Crown, and out

of the nine different powers categorized by him, he had placed the

constitutional powers of the Crown at the top . This classification can wilh

justification be worked out in England where there is no written

Constitution and the "residue to discretionary authority" , which in Dicey'ssense. is leh at any given ume in the hands of the Crown. Is the only

content of the constitutional power of the Kino In India, the distinction

between the executive and the constitutional powers of the President


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would not only be arbitrary but would also alter the settled notions of

jurisprudence. When the Constitution has vested vast and diverse powers

in the highest office of the State, it may really be a task to distinguish

whether a given power is executive , legislative or judicial.

16. The powers of the President, exercised in whatever sphere are all

constitutional powers. There is thus no basis to suppose that the

legislative powers of the President are only those enumerated under

Chapter III of Part V of the Constitution. The power of the President under

article 111 to assent to or dissent from. any Bill is yet a legislative power

although it falls under Chapter II. Sim~arly. the power of the President

under article 304 to grant or withhold sanction to a Bill for being

introduced in the Legislature of a State in order to impose restrictions on

trade, commerce or interco urse among States, is all the same a legislative

power , thoug h it falls under Part XIII and not under Part V.lt is, however,

Impossible to hold that all these powers are not covered by article 75 as

powers of the Union Executive . Under article 73, the executive power of

t he Union extends to all matters with respect to which the Union

Parliament has power to make laws. and power to make laws with respect

to the matters falling under article 268 to 279 has been conferred on

Parliament under articles 269(3), 274(1) and 275(1) .

17. Anoth er important case which bears a mark on the issue came

before the Court is U.N.Rao v. Indira Gandhi 25. In this case the House

of People was dissolved on 27.12.1970 . The respondent was the Prime

Minister before the dissolution. The question that arose In this case was:

How can the Council of Ministers be responsible to the House of People,when it has been dissolved under Article 85(2) 2 6. The second questio n

raised was: Is there anythin g in the Constitution and in particular in Article

75(3) which rende rs her carryi ng on as Prime Minister contrary to the

24. op cit. p. 422 .

25. AIR , 1971 , S.C. 1002

26. Article 85 (2) reada thal 'The President may from time to time (a) prorogue the Houlel

or either HOUle. (b) Dilsolve the HOUle.

340 CENTRAL INDIA LAW QUARTERLY ( Vol 5:3

constitution. Another question raised was that on dtssotunonot the

House. the Prime Minister and ot her Ministers must resign and the

President must carry on Govt. with the aid of the services of the CivU

servants. Sikri C.J.speaking for the Court observed: The Constituent

Assembly did not choose the Presidential type of Govt.lf we were to give

effect to these contentions of the appellant we would be . changing the

whole concept of the Executive. It would mean thai the President need

not have a Prime Minister and Minister to aid and advice in the exercise

of his functions. As there would be no Council of Ministers, no body wouldbe responsible to the House of the People. with the aid and advice he

would be able to run the Country at least l UI he is impeached27. As to

the last contention raised, his Lordship observed "Article 74 is mandatory.


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Provision of the Article 75(3) which envisages the doctrine 01 Ministerial

responsibility has to be harmonised with the provisions of Article 74(1 )

and 75(2) and the y sho uld be construed in this spirit only . Thus ,

construed. Article 75(3) appears only when the House of the people does

not stand dissolved or prorogued. It cannot, therefore. be said that on

dissolution of the House of the People, the Prime Minister and other

Ministers must reslgn28.

18. The judgment of the Court makes It clear that the existence of the

Council of the Minister is the symbol of our Partiamentry system of Govt.

and very soul of the President and hence, indispensable (Article 74(4))

has to be made mandatory in this sense that President will become

virtually important to the extent of particular provisions and hence article

gives potency to the President to enable him to keep the spirit of the

Constitution alive.

19. Later judgment of the Court which came in the year 1974 nas,

however, removed all doubts. The case is Samsher v.Punjab29. Here the

Court observed that though the President and the Govern ors , are

custodians of all Executive Powers under various articles, still by virtue of

this provision exercise their functions and Constitutional Powers only

upon and in accordance with the advice of their Ministers. save in a very

well known exceptional situation. These situations related to (a) the

choice of Prime Minister (Chief Minister) . The choice is, however .

restricted by the condition precedent that he should command a majority

in the House; (b) the dismissal of a Govt. which has lost the confidence

27. Supre note 25 .. p . 1005

28. Ibid

29. A.I.R 1974 S .C. 2192

1992 J PRESIDENT UNDER THE INDIAN CONSTITUTION 341

of the House and refuses to resign; (c) the dissolution of the House,

where an appeal to the Country is necessary although in this area he

being the head of the State should avoid getting involved in politics and

should be advised by his Prime Minister (Chief Min ister). The Court further

observed by way of caution that even in such cases the action of the

President must be compelled by the perW to democracy30.

CORRECT ESTIMATE OF ADVICE

FUNCTIONS DISTINCT FROM POWERS

20. The term 'function' has an organic affinity. In the Dictionary 01

Social Sciences 31 the term 'function' has been defined as "a

consequence of some kind of the existence and/or actions and whichmay originate from persons or things . The psychologi cal distinction

between functional and structural comprexes in the behaviour of an

organism is well known. It is by cooveotiorer use that this term has crept


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into the statutory sphere also. According to the Advanced Leamer's

Dictionary 01 Current English32 the word 'function' has four different

meanings: (i) the activity which is natural for a thing, as the function of

the nerves (i.e.to carry message to the brain) ; the function of the

heart(i.e.to pump blood through the body); (ii) the special purpose or use

of something, as the function of education; (ill) the task or duties which

must be carried out by a person in an official position, as the function of

a judge (I.e.to administer justice);the functions of an officer of State (I.e.to

help in the government): (iv) a public ceremony or occasion: a social

meeting of an important (and usually formal) kind.

21. The Constitutio n of India, too, has used the two words 'power'

and 'function' in a sense conveying two different meanings. The word

'powe r' has been used in article 53(1) which vests the executive power of

the Union in the President but in clause (3) the word 'functions' has been

employed. In article 65, the word 'functions' has been used in clause (2)

but the phrase 'powe rs and immunities' has been used In clause (3)

30 . krdarl Lal v. Union of Idia, 1971 , S,C, 154. Union 01 India v. Jyottp'llkesh, AIR

'971, S.C. 1093, The binding nature 01 Ministerial advice has been reconsidered in

ease of diMOlution 019 Assembly in 1977 , State ot Rajasthan v. Union of India. AIR

19n, S.C. 1361 .

31. Julius Gould and William Dictional)' p.2n.

32. OxfOld Un;"'rsrty P.eu. p, 504.

342 CENTRAL INDIA LAW QUARTERLY

AID AND ADVICE NOT BINDINGAID NOT BINDING

22. The Council of Ministers is charged with a dual responsibility l.e.to

render aid and tender advice to the President in the exercise of his

functions . There is virtually no point in an aid being binding . Aid is just

ass istance, be it of a pontcar. personal Of intellectual nature, and a thing

which is characteristically assistance cannot be regarded as admonition.

At the same time it is not so superfluous as to amount merely to an

adulation.

ADVICE NOT BINDING

23. (a) Interpretation of Text ;. The advice by the Council of Ministers to

the President is not legally binding on the tarter. because the text of article

74(1) does not elevate the essentials at advice to the status of mandates.

(b) Absence of Strict Compliance or Prohibition ; Artide 74(1) does

not imply that strict compliance by the President with the ministerial

advice is a condition precedent to the validity of his function. nor does it

make the neglect to abide by such advice as rendering his functionsinvalid.

(c) Provisions of Articles 103 and 74 :. The provisions of article 74(1)

may be compared with those of article 103 (2) whereunder the President.


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while de


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Council of Ministers relating to the administration of the affairs of the

Union and proposals for legislation and to furnish such information

relating there to as the President may call for and if the President so

desires.

ADVICE NOT BINDING EVEN ON POLITICAL CONSIDERATIONS

25 (a) Threat of Impeach ment : . It is argued, rather in an anchantingly

political spirit, thai in case the President does not follow the advice of

the Coun cil o f Mini st er s, h e imm edi at ely beoc mes liabl e to

impeachm ent. What Dr. Ambedkar once said to this effect33 was in the

heat of debate at the spur of the moment without any broad analysis of

interaction eX one conse;Jlional provision with another. One shoUd not

make a myth of the impeachment proceedings but rather try to know what

33. Constituent AsMmbly De~les .Vol x ., p. 269.

344 CENTRALINDIA LAW QUARTERLY I Vol 5:3

Impeachment is arc what it must mean. There Is an impeachment for

violation of the Constitution : whether it comes about by overriding the

ministerial advice Of otherwise, does not mater. There is, however, no

impeachment for violation of the Minister's advice which has fNery

teroeocy to be wrongful in itself.

(b) Chances of an Unconstitutional Advice:- The council of

Ministers consisting as it does of not infallible human beings may itself

tender an advice in violation of the Constitution.

CONCLUSION

26. Though the people are sovereign and the political sovereignty

vests in them In law , they have been reduced to mere vote banks and are

needed only ones in five years. Their mental maturity level makes them

swing with pooear sentiments and reduces the exercise of sovereig n

power to an empty formality. They have thus ceased to be either source

of powe r or provid e inspiration for purposeftJ exercise of power. Eve n

though ou rs is the biggest democracy in the wend and OUf people ,

inspite of their miseries and sorrows are fond of freedom. it may not be

possible to sustain this feeling for long if the people themselves do not

develop their capabilities.

27. Some of t he ju rists hold the view that Presid ent is

constitutionally speaking bound in all matters by the aid and advic e

clause. Granville Austin supports this view. The othe r view is that

President can disregard the advice of the Council of Ministers. This view

is suppo rt ed b y Dr . K. M . M un sh l, D.O . Ba su and Pr o f. C .H.

Alexendrowicz. And there is third vtew which is a mid way between the

tw o. Sovereign powe r has a purpo se for Its exercise for the success ofsocial revolution. Not only the executive or the legislature but also the

Judiciary is th us there under an obligation to work for their achievement

In actually and any detailed study of legislative trend, executive styles


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and judicial process must engage itself in social transformation.


position of the president under the indian constitution

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