C: UNR Rao V Indira Gandhi (1971) 2 SCC 63: Resident OF Ndia

PRESIDENT OF INDIA
 The President and the Council of Ministers

 Pardoning power
 Ordinance making power
1. The President and the CoM

Art. 74 and 75:
75(1) says the President shall appoint PM and CoM on advice of PM
Council of Minister- president can’t act on his own
CoM is responsible to Lok Sabha
CASE: UNR Rao v Indira Gandhi (1971) 2 SCC 63

It was contended that the continuance of Indira Gandhi as PM when the Lok Sabha was
dissolved is unconstitutional. The reason was since Lok Sabha is dissolved and hence, CoM
is responsible to none, the continuance is unconstitutional.
No moment of time can be imagined when the President will act without the CoM to aid and
advise him and hence the continuance of CoM is a constitutional imperative.
Art 75(5): all the ministers must be a member of either house of the Parliament.
o Nature of Indian Presidency:

The reason for choosing Parliamentary form of governance was to remove the friction
between legislative and executive.
Between 1950-1956: debate on whether president was a rubber stamp.

Under 42nd CAA- it was made clear that president shall act on the advice of the CoM.
Nehru and others believed that president must necessarily act on the advice of the CoM.
One of the instances was that when the amendment in Hindu Law was sent to Rajendra
Prasad for assent, he was unhappy but it was held that the assent of the prez was mandatory
and merely ceremonial.
Other group, like KM Munshi, Subbarao etc, held that the position of elected president isn’t
like that of a hereditary monarch and hence, he should be more prominent.
President is more representative when compared to PM because former has pan India support
(RS, LS, States) and the latter is the leader of majority of LS.
The President is liable to be impeached when he violates constitution, hence, that means he
must have some powers.
In England, every order given by the crown is to be counter signed by the minister. The
minister would be liable. Hence, king can do no wrong.
Political responsibility to govern: ruling party

Legal responsibility to govern: union of India
Corporation Sole: British monarch

Corporation aggregate: Indian president
Both are incorporated personalities
PM is the subordinate to the prez as he has to inform and report to him.
 President of India is a constitutional head

Things are done under his name. He isn’t a real head but only a constitutional head.
President has to work on the aid and advice of the CoM.
If all the powers that are given to the president are also exercised by him then there will be
totalitarianism.
President is not accountable to people directly as he is indirectly elected.
The president can act on his own when CoM has lost power.
PM reports to president so that president is consulted by the PM.
The CoM hold office at the pleasure of the president and he exercises such power in
consultation with the PM
 Correct view of Indian Presidency:

Neither weak nor too strong
No political accountability
Not a rubber stamp
Discretionary powers
Appointment of the PM
Dissolution of the house of the people
Power to dismiss a government
Allan Gledhill in his book The Republic of India said, “constitution has enough scope for an
adventurer to become a dictator.”
Reading the constitution as a whole, the president is closer to British monarch considering his
functioning. De jure power is vested in him but not de facto. The President has some powers
similar to British Monarch.
Strong:
The constitution has ensured that president isn’t a nominee of the majority party.
His removal requires special majority. This protects the president to be freer from threat of
impeachment.
Electoral college and process of impeachment gives more stability to the government.
Electoral college is very broad and wide and so president has very wide and diverse support.
Weak:
No political power.
President is as weak as British monarch.
No political accountability because he acts on the advice and resp of the CoM.
Impeachment can’t take place if the president works in a constitutional manner.
 Powers of the President:

i. Governance: right to be consulted, encourage and warn.
ii. Governing institutions: a. he must maintain the image of being impartial
b. must ensure that the government is working according to the constitution and
his office is not used for defrauding the constitution.
The president does not blindly follow government orders. He can send, for e.g. Bills, for
reconsideration as well.
President may also express his disapproval:
i. He may dissuade the CoM
ii. Delay the matter and seek time to think upon the issue
iii. May ask minister to reconsider the whole thing
If the president does not accept the proposal of government then CoM may resign. In this
case, the president may invite the next majority group to form government, if not then re-
election would happen. (It is only in cases of policy decisions etc)
Discretionary powers of president:

- Power to appoint the PM
- Power to dissolve the house of

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PRESIDENT OF INDIA

 The President and the Council of Ministers

1. The President and the CoM

CASE: UNR Rao v Indira Gandhi (1971) 2 SCC 63

o Nature of Indian Presidency:

Between 1950-1956: debate on whether president was a rubber stamp.

Political responsibility to govern: ruling party

Corporation Sole: British monarch

 President of India is a constitutional head

 Correct view of Indian Presidency:

 Powers of the President:

Discretionary powers of president:

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