JAMIA MILLIA ISLAMIA

FACULTY OF LAW
CONSTITUTIONAL LAW-I PROJECT

POSITION OF THE PRESIDENT

By:
SAMEEKSHA KASHYAP

B.A.- LLb.(Hons.), Self-finance

SEMESTER- III (2nd Year)

1
 INDEX

TOPIC:
I.INTRODUCTION – Pg 3

II.THE PRESIDENT – Pg 4

III.ELECTION OF THE PRESIDENT-Pg 6

IV.PRESIDENT: A CONSTITUTIONAL HEAD OF THE STATE- Pg 9

V.WHETHER THE CONTITUTION OBLIGES THE PRESIDENT TO ACT ... – Pg 12

VI.POSTION OF THE PRESIDENT: CHANGES INTRODUCED BY THE 42ND AND 44TH

AMENDMENTS – Pg 14

VII.PRESIDENT NOT A RUBBER STAMP- Pg 15

VIII.CONCLUSION – Pg 17

IX.BIBLIOGRAPHY – Pg 18

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 I. INTRODUCTION
In our constitutional system, the President occupies a very special place. He is the Head of
the State and the symbol of the Nation. Every important authority mentioned in the
Constitution is directly or indirectly attached to him. His scope of powers is wide and diverse
as regards executive, legislative, judicial and diplomatic matters as well as functions. The
system of government in India is modelled after the Parliamentary government system in
England, where the head of the state is a monarch. The position of the monarch is ceremonial
and scope of her powers very limited and defined.

When the Constitution was being drafted, our constitution makers wanted to define the
powers of the Head of the State by binding the exercise of his functions to the ‘aid and
advice’ of his Council of Ministers. However, there was no explicit mention of this principle
in the Constitution, in any of the already stipulated provisions concerning the President and
his powers. This brought about a debate in the Indian polity on the questions- whether the
President is free to exercise the powers vested in him, by the Constitution, at his own
discretion or as per the ‘aid and advice’ of his Council of Ministers. The other controversial
question which surfaced was whether the ‘aid and advise’ offered by the Council to the
President, is binding on him or not.

This paper attempts to analyse the position of the President of India, trace the similarities and
differences between the Indian President and the British Crown, as well as seek answers to
the above mentioned questions. This has been done with the help of several judicial
precedents, examinations of Constituent Assembly Debates and study of commentaries on the
subject matter by well known jurists and academicians.

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 II. THE PRESIDENT

“There shall be a President of India.”

-Article 52, Chapter I, Part V, Constitution Of India

ADOPTION OF A SUITABLE MODEL OF GOVERNMENT

After attaining independence from the British rule, India faced a series of challenging
questions with regard to the nature and organisation of its polity. It had to chose between
different models of the government to adopt.

In the Constituent Assembly, Shri Mahboob Ali Beg, Begum Aij az Rasul, Shri K.S.
Karimuddin and Shri Aziz Ahmad Khan spoke against the introduction of the Cabinet system
of Government in India.

Mr. Aziz Ahmad Khan had observed : ”... English system of democracy does not suit India.
We have witnessed the result of this system of democracy, which has caused disturbances and
bloodshed in this country. Had the system of Government been the product of our own
genius, most probably such mutual hatred and differences would not have been created or
intensified...."1

There was also a move by Prof. K.T. Shah in favour of a Presidential form of Government
based on the American model2. But Shri K.M. Munshi, while opposing the motion of Shri
K.T. Shah for the adoption of the American President, said :

"We must not forget a very important fact that during the last one hundred years Indian
public life has largely drawn upon the traditions of the British Constitutional law. Most of us
... have looked up to the British Model as the best. For the last thirty or forty years some kind
of responsibility has been introduced in the governance of this country. Our constitutional
traditions have become parliamentary ... After this experience, why should we go back upon
the tradition that has been built for over a hundred years and try a novel experiment ...
framed 150 years ago and found wanting even in America.3"

Dr. Ambedkar also said that the British system was preferable as it was possible to have a
periodic as well as daily assessment of responsibility under the system, whereas under the
American system, only periodic assessment of responsibility was possible.4

Shri Alladi Krishnaswamy Ayyar also said "An infant democracy cannot afford, under
modern conditions, to take the risk of perpetual cleavage, feud, or conflict or threatened
conflict between the Legislature and the Executive".5 Moreover, the reports of the Union

1
. Constituent Assembly Debates, July 17, 1947, p. 629
2
. Ibid, Vol. 7, December 10, 1948, pp. 959-60.
3
. Ibid, pp. 984-5.
4
. Ibid, November 4, 1948, pp. 32-3.
5
. Ibid, December 10, 1948, p. 985. 13.

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Constitution Committee and the Provincial Constitution Committee whose Chairman were Pt.
Nehru and Sardar Patel, respectively favoured the retention of the British model for India.6

However, after much deliberation the framers of the Constitution adopted the English model
of Parliamentary Democracy for two reasons, one was the experience gained as a result of the
past constitutional development. In fact, India was familiar with the British tradition of
administration and it was considered better to have a type of government with which the
country was familiar. Secondly, to maintain continuity of responsibility towards the
Legislature and flexibility of the system as a whole. However, the features of the American
model such as the process of election of the President, his impeachment, the Fundamental
Rights, the Federalism etc. were also included in our Constitution.

THE PRESIDENT AND THE CONSTITUENT ASSEMBLY

Having decided that India would adopt the English system of Parliamentary Democracy, the
Constituent Assembly had to find answers to other important questions also. India was to be a
Republic and not a Monarchy, therefore the questions arose :

 who should be the Head of the State?

 What would be his designation?
 How was he to be chosen and what should be his powers?

The Nehru Report had advocated that the Head of the State should be a Governor-General
with powers similar to those in other Dominions with an executive council7 operating on the
principles of collective responsibility. The Sapru Report also advocated a constitutional head
of8 the State for India. In March 1947, Shri B.N. Rau, the Constitutional adviser, prepared a
questionnaire on the Executive which he sent to the members of the Central and Provincial
Legislatures9.

In reply to Shri Rau's first question i.e. what should be the designation of the Head of the
State, Shri Shyama Prasad Mukherjee suggested the term 'Rashtrapati’ probably because the
architects of the Indian Constitution were going to construct India as a 'Rastra', a sovereign
Democratic Republic.10 On the other hand, Hr. Panikkar proposed the designation,
'President.11 The Union Constitution Committee, however, recommended that the designation
of the Head of the Indian Union should be Rashtrapati, in English the President. The
Constituent Assembly accepted this recommendation of the Union Constitution Committee as
final.

6
. Sardar Patel's description of the meeting; Ibid, Vol. 4, July 15, 1947, p. 578.
7
. Cited in T.K. Tope, 'The President and the Council of Ministers' in Alice Jacob (ed.), Constitutional
Developments since Independence (Bombay : N.M. Tripathi Pvt. Ltd., 1975*), p. 17.
8
. Ibid.
9
. B.N. Rau, f.n. 1, p. 16.
10
. B.C. Das, The President of India (New Delhi : S. Chand and Company 1977), p. 69.
11
. Ibid.

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 III. ELECTION OF THE PRESIDENT
Article 54 and Article 55 in the Constitution of India, deal with the election of the President
and the manner in which the election is to be conducted. Before these articles came to be
incorporated in the constitution, the manner of the President’s election came up for
discussion in the Constituent Assembly. The final decision, in this regard, was an outcome of
a much debated deliberation among the makers of the Constitution.

During discussion in the Constituent Assembly, Shri K.T. Shah proposed that, "the Chief
Executive or the Head of the Union of India ... shall be elected by the votes of all the adult
citizens of India.”12 Prof. Shibban Lai Saxsena also proposed that the President should be
elected directly by the people on the basis of adult franchise13. Shri S.K. Karimuddin again
was of the view that the President should be directly elected by the people and said : "If after
every fourth or fifth year the election of the President is held on adult franchise basis, it will
educate the masses and momentous economic problems of great magnitude will be brought to
the fore front...."14

Shri T. Channiah suggested that the President of India should be elected by rotation either by
the North or South of India because that would give a fair representation and satisfaction to
the people of India who stood geographically divided into two distinct divisions.15

On the other hand, Shri Tajamul Husain opposed the proposal that the President should be
elected by rotation from North and South of India. As he said : "This (the proposal to elect
President by rotation) is a dangerous principle to adopt. If such a principle is adopted, then
every province may claim that in turn the President should be elected from a particular
province."16

Pt. Nehru opposed the principle of election of the President on North and South basis. He
favoured the idea that in the units of the Federation only the Lower Houses should participate
in the election of the President. As regards direct election of the President, he felt that, 'it
would waste much of our time and that we shall not be in a position to act according to our
new Constitution.’17

Shri B.N. Rau, in his memorandum on the Union Constitution, suggested that, "the
President should be elected by the two houses of the Union Parliament at a joint session by
secret ballot according to the system of proportional representation by the single
transferrable vote".18

12
. Cited in B. Shiva Rao, The Framing of India’s Constitution; Select Documents .Vol. 2 (New Delhi : The Indian
Institute of Public Administration, 1967), p. 458.
13
. Constituent Assembly Debates, f.n. 5, July 23, 1947, p.788.
14
. ibid, July 24, 1947, p. 796.
15
. ibid, July 23, 1947, p. 784.
16
.Ibid, July 24, 1947, p. 797.
17
.Ibid, July 24, 1947, p. 797.
18
. B.N. Rau, f.n. 1, p. 66.

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On 8th June 1947, the Union Constitution Committee accepted the suggestion of Shri N.G.
Ayyangar that the President should be elected neither by Parliament nor by direct universal
suffrage but by an electoral college comprising of the members of the lower chamber of the
Federal Legislature as well as of a fixed percentage of the total population of the Provinces
and of the Indian States.19

On 9th June 1947, Shri K.M. Munshl wrote a letter recommending that the President and the
Governors should be elected by an electoral college directly elected for the purpose.20
Ultimately, the Union Constitution Committee took the final decision that the President
would be indirectly elected through an electoral college consisting of all the elected members
of the Legislatures in the country.21 The Constituent Assembly also accepted that decision
of the Union Constitution Committee, as final. 22

In this context Shri K.M. Munshi commented:

"Ultimately a compromise was arrived at (in the Union Constitution Committee) that the
President should not be reduced to the position of a figurehead like the French President, tut
should have a status and authority equal to the Parliament, by being chosen as the
representative of the whole country, though indirectly through an electoral college consisting
of all the elected members of the Legislatures in the country".23

Understanding the election of the President, according to the Constitution

Article 54 of the Constitution of India: Election of President

The President shall be elected by the members of an electoral college consisting of –

(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
Explanation: In this article and in article 55, “State” includes the National Capital Territory of
Delhi and the Union territory of Pondicherry.
Article 55 Constitution of India: Manner of election of President

(1) As far as practicable, there shall be uniformity in the scale of representation of the
different States at the election of the President.
(2) For the purpose of securing such uniformity among the States inter se as well as parity
between the States as a whole and the Union, the number of votes which each elected
member of Parliament and of the legislative Assembly of each state is entitled to cast at such
election shall be determined in the following manner; –
(a) every elected member of the Legislative Assembly of a State shall have as many votes as

19
. 'Draft minutes of the meeting of the Union Constitution Committee, held on June 8, 1947 in the Council
House at 3 p.m.’ in Dr. Rajendra Prasad's Papers, f.n. 22.
20
. K.M. Munshi, 'The Presidency' in M.G. Gupta (ed.). Aspects of Indian Constitution (Allahabad * Central Book
Depot, 1964), p. 178.
21
. Ibid, p. 179.
22
. Ibid.
23
. Ibid.

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there are multiples of one thousand in the quotient obtained by dividing the population of the
State by the total number of the elected members of the Assembly;
(b) if, after taking the said multiples of one thousand, the remainder is not less than five
hundred, then the vote of each member referred to in sub-clause (a) shall be further increased
by one;
(c) each elected member of either House of Parliament shall have such number of votes as
may be obtained by dividing the total number of votes assigned to the members of the
Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of the
elected members of both Houses of Parliament, fractions exceeding one-half being counted as
one and other fractions being disregarded.

IV. PRESIDENT: A CONSTITUTIONAL HEAD OF THE STATE

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During the discussion and drafting of the Constitution and even after it came into force in the
country, much ambiguity and controversy prevailed around the position of the President in
India. There were two popular views in this regard. The first view is that, since the form of
Government contemplated by the Constitution is on the model of British Parliamentary system, the
President is a constitutional head like the British Monarch i.e. the President is always bound by the aid
and advice of the Council of Ministers. The second view is that the President has large and substantial
powers which he can exercise in his discretion.

This section will discuss the first view in detail and draw a comparative picture between the position
of the Indian President and that of the British Crown i.e. the points of similarity between them. The
paper will also draw reference from a few prominent judicial precedents, regarding the position of the
Indian President and his relationship with the Executive i.e. the Council of Ministers, to support the
concerned view.

Position and powers of the British Crown

In early days, all powers of the government were centered in the man who wore the crown –
the state cap of royalty. In other words, all powers rested on the King as a person. However,
in the course of history, those powers have entirely been transferred from the king as a person
to a complicated impersonal organization called the “Crown.”24 The powers of the Crown are
those which belong to the office of the king or the Kingship as an impersonal institution.
These powers are never exercised by the Monarch himself. They are exercised in the King’s
name by Ministers who derive their authority form Parliament and are responsible to
Parliament. The powers of the Crown are derived form two sources, i.e., prerogative and
statute. Statutory powers of the Crown are those duties which have been assigned to the
Executive authorities by Acts of Parliament. Prerogative powers of the Crown refer to those
powers which are derived from the Common Law. Some of these powers include the
summoning of Parliament, declaration of war or neutrality, ratification of treaties,
appointment to offices, etc.

AN INQUIRY INTO THE SCOPE OF THE CROWN’S POWERS

24
. Introduction to the British Executive: the Crown and the Cabinet,
kkhsou.in/EBIDYA/POL.%20SC/MODIFY_british_executive.html

9
Executive powers: The Crown is the supreme executive authority. It appoints all the high
executive and administrative officers, judges, bishops and the officers of the army, navy and
air force; directs the work of administration and national service. It holds supreme command
over the armed establishments. The Crown supervises and in some instances directs the work
of local government, especially that of boroughs and counties. The Crown conducts the
country’s foreign relations with other countries; sends and receives ambassadors or other
diplomatic agents and all negotiations are carried out in the name of the Crown. It deals with
the colonies and dominions. The Crown is also the treaty-making authority and all
international agreements are made in its name. It can even declare war or peace and conclude
a treaty without consulting Parliament. Thus, it is seen that all executive authority is vested in
the Crown.

However, all these powers are exercised by the ministers, or the Cabinet in the name of the
Crown. It is they who decide who shall be appointed to office. They direct British foreign
policy and conclude treaties. They even decide on the issue of war. In short, the Cabinet
headed by the Prime Minister, and not the king, is the real wielder of authority.

Legislative powers: The Crown is not only an executive but also an integral part of the
national legislature. The Crown summons, prorogues and dissolves Parliament. When a new
Parliament meets it is usually greeted by the Monarch in a speech from the Throne, which is
usually delivered by the King or Queen in person from the Throne in the House of Lords
(upper house of the British parliament) with the Commons (lower house of the British
Parliament) present. Theoretically, no bill passed by the Parliament can become an act unless
and until the King gives assent to it but once a bill is passed by the Parliament, the King does
not exercise the right to veto.
Practically, however, the King exercises all legislative powers as per the advice of the
Cabinet. As a matter of fact, the speech from the throne is not the King’s or Queen’s speech.
It is the government’s speech. Again, the veto power of the King has become obsolete. The
assent of the King to the acts passed by the Parliament is never denied and is always given as
a matter of course.

Judicial Powers: The King is still described as the “fountain of justice.” In fact, the Crown
does so as the King. The King appoints the judges, including the Justices of Peace in the
counties and boroughs. The Lord Chancellor, a member of the Cabinet, exercises general
judicial supervision. All issues which come before the Judicial Committee of the Privy
Council are decided by the Crown. All justice in England is rendered in the name of the King.
Finally, the Crown exercises the prerogative of mercy and may grant pardon to persons
convicted of criminal offences. This is done by the Home Secretary. 25

Conclusion: Though the powers of the British Crown are immense and important, in
practice, they have been transferred to the ministers who actually exercise these powers and
are responsible for the day-to-day administration of the country. Hence, it can be concluded
that the British monarch is only a titular or nominal head of the State with no real power to
exercise on her own accord or discretion.

Position of the President of India with respect to the British Crown

25
. Ibid.

10
By the Constitution, the President is required to act in all matters with the aid and advice of his
Council of Ministers. The moment the President refuses to accept its aid or advice there will be a
break-down in the constitutional machinery ... Having regard to the historical setting of our
Constitution and its key provisions, the position of the President in our Constitution would appear
to be very similar to that of the King in the British constitution ....

-Shri M.C. Setalvad, the former Attorney General of India also stated on October 6, 1950

Under the Parliamentary system represented by England, the Crown (the head of the
Executive), as has been discussed, is a mere titular head, and the virtual executive power is
wielded by the Cabinet, a body formed of the members of the Legislature and responsible to
the House of the Legislature for their office and actions.

Being a Republic, India could not have a hereditary monarch. So, an elected President is at
the head of executive power in India. The tenure of his or her office is for a fixedbterm of
years as of the American President. He also resembles the American President inasmuch as
he is removable by the Legislature under the special quasi-judicial procedure of impeachment
[Article 61 of the Constitution of India].26

But, on the other hand, he is more akin to the British Crown than the American President
insofar as he has no ‘functions’ to discharge, on his own authority. All the powers and
‘functions’ [Article 74(1)] that are vested by the Constitution in the President are to be
exercised on the advice of the Ministers responsible to the Legislature as in England. The
Council of Ministers of the Indian president are responsible to the Parliament

V. Whether the Constitution obliges the President to act only on the advice
of the Council of Ministers, on every matter?

26
. DD Basu, Introduction to the Constitution Of India, Chap. 1, Pg. 200, Ed. 21st

11
The office of the President has been created by the Constitution as the Constitutional head of the
Executive of the Union. The President ... does not appear to have any personal capacity or any
capacity as a persona designata as distinguished from his sole capacity as the head of the Union
Executive. He is invariably advised by the Council of Ministers in all his functions....

Justice V.S. Deshpande in ‘The President, his powers and their exercise’

The controversy, on this question was highlighted by a speech delivered by the former
President of India, Dr. Rajendra Prasad at a ceremony of the Indian Law Institute on
November 28, 1960. In the speech, he urged for a study of the relationship between the
President and the Council of Ministers, observing that:

“There is no provision in the Constitution which in so many words lays down that the
President shall be bound to act in accordance with the advice of his Council of Minister”

The above observation came in contrast with the words of Dr. Prasad himself with which he,
as the President of the Constituent Assembly, summed up the relevant provisions of the Draft
Constitution:

“Although there is no specific provision in the Constitution itself making it binding on the
President to accept the advice of his ministers, it is hoped that the convention under which in
England the King always acted on the advice of his ministers would be established in this
country also and the President would become a constitutional President in all matter.”

JUDICIAL JUDGEMENTS PERTAINING TO THE QUESTION

When the question went up to the Supreme Court, the Court took the view that the Indian
President is a constitutional head similar to the British Crown, relying on the interpretations
of the words ‘aid and advice’ in the Dominion Constitution Acts, in these words, in the Ram
Jawaya’s case27:

“Under article 53(1) of our Constitution the executive power of the Union is vested in
the President. But under article 74, there is to be a Council of Ministers with the prime
Minister t the head to aid and advise the President in the exercise of his functions. The
President has thus been made a formal or constitutional head of the executive and the real
executive powers are vested in the Ministers and the Cabinet.”

Again in 1970, in the Bank Nationalisation case28, the Supreme Court observed:

"The ordinance is promulgated in the name of the President, and in a constitutional

sense on his satisfaction; it is in truth promulgated on the advice of his Council of
Ministers and on their satisfaction".

In 1971, in U.N. Rao v. Mrs. Indira Gandhi29 case, the continuation of the ministry after the
dissolution of Lok Sabha was challenged. It was contended that as the Council of Ministers

27
. Rai Sahib Ram Jawaya Kapur And Ors. V. The State of Punjab AIR 1955 SC 549
28
. R.C. Cooper V. Union of India AIR 1970 564
29
. U.N. Rao V. Indira Gandhi AIR 1971 SC1002

12
has to be collectively responsible to the House, the Council could not exist while the House
did not exist. It was also argued by the appellant that the executive power of the Union could
be exercised by the President directly or through officers subordinate to him in accordance
with the Constitution. But justice Sikri observed:

"The Constituent Assembly did not choose the Presidential system of Government. If we
were to give effect to this contention of the appellant we would be changing the whole
concept of the Executive. It would mean that the President need not have a Prime Minister
and ministers to aid and advice in the exercise of his functions. As there would be no
Council of Ministers' nobody would be responsible to the House of the People. With the aid
of advisers he would be able to rule the country atleast till he is impeached under Article
61."

He also maintained, “Article 74(1) is mandatory and, therefore, the President cannot
exercise the executive power without the aid and advice of the Council of Ministers”.
However, the caretaker government cannot take any major policy decisions and the
advice of any such government is not binding upon the President.

In Shamsher Singh Vs. State of Punjab30 case, Chief Justice A.N. Ray had also observed,

“Our Constitution embodies generally the Parliamentary or Cabinet system of Government

of the British model both for the Union and the States. Under this system the President is
the constitutional or formal head of the Union and he exercises his powers ... on the aid
and advice of his Council of Ministers ....”

These judicial pronouncements were instrumental in answering the above question, regarding
the position of the President in relation to the Council of Ministers, to an extent. However,
there still remained room for ambiguity with regard to the question because there was no
explicit provision in the Constitution that provided that the advice of the Council of Ministers
was binding on the President in the exercise of his functions. It was in the mist of such
controversy and confusion, regarding the position of the President that the 42nd Amendment
and eventually, the 44th amendment came to the aid of Indian polity.

VI. POSTION OF THE PRESIDENT: CHANGES INTRODUCED BY

THE 42ND AND 44TH AMENDMENTS

30
. AIR 1974 2192

13
The original Article 7431 stipulated 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.’

The Indira Gandhi Government sought to put the question beyond political controversy, by
amending the Constitution itself. Article 74 (1) was thus substituted, by the Constitution (42nd
Amendment Act),1976. The 42nd amendment changed the construction of this sentence to
clarify further that 'the President shall, in the exercise of his functions, act in accordance
with such advice.’

In 1978, the Janata Government sought to wipe off the radical changes infused into the
Constitution by Mrs. Gandhi’s Government. However, it did not disturb the foregoing
amendment made in Article 74(1). The only change made by the 44th Amendment Act over
the 1976-provision was to add a Proviso which gives the President one chance to refer the
advice given to the Council of Ministers back for a reconsideration; but if the Council
reaffirm their previous advice, the President shall be bound to act according to that advice.

Article 74(1), as it stands after the 44th Amendment, 1978, stands thus:

“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”

The position today, therefore, is that the debate whether the President of India has any power
to act contrary to the advice given by the Council of Ministers has become meaningless. By
amending the Constitution in 1076 and 1978, a seal has been put to the controversy which
had been mooted by the President Rajendra Prasad at the Indian Law Institute that there was
no provision in the Indian Constitution to make it obligatory by the Council of Ministers, on
each occasion and under all circumstances.

VII. PRESIDENT NOT A RUBBER STAMP

31
. It means the Article before the passing of 42nd Constitution Amendment Act (1976).

14
It is fallacious to suppose that after the two amendments of Article 74, the President will
become an automaton , a mere rubber stamp, or a signing machine. There are two important
areas of his power which remain unaffected by the said amendment, namely,

(a) the appointment of the Prime Minister and

(b) the dismissal of the Prime Minister.

In the very nature of things, the President cannot be bound by the Cabinet advice and must be
guided by constitutional propriety and political imperatives in these matters.32

JUDICIAL PRECEDENTS THAT SUPPORT THIS VIEW

There are some cases where the Courts (Supreme Court and High Courts) themselves have
recognised the existence of an autonomous sphere of Presidential action.

In 1964, in Jayantilal Amritlal Vs. F.N. Rana33, the Supreme Court held that, 'Article
258(1) empowers 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 Union'. But it went on
to say that, 'Article 258 does not authorise the President to entrust any other person or body
the powers and functions as are expressly vested in him by the Constitution, such as Articles
356, 309 and do not fall within the ambit of Article 258(1)'.34 Thus, by making distinction
between the executive functions of the Union and that of the President, the Supreme Court
recognised an autonomous field of action for the President.

The judgment delivered by Justice Krishna Iyer in Shamsher Singh V. State of Punjab35,
contrary to the judgement of Justice A. N. Ray, conformed to the view expressed in this
section. He expressed that :

We declare the law of this branch of our Constitution to be that the President and the
Governors ... exercise their formal constitutional powers only upon and in accordance with
the advice of their Ministers save in a few well known exceptional situations ... these
situations relate to : (a) the choice of the Prime Minister ... (b) the dismissal of a government
which has lost its majority in the House but refuses to quit office; (c) the dissolution of the
House ,...

In Bishambhar Dayal Chandra Mohan Vs. State Of Uttar Pradesh 36 the Supreme Court
held that ‘no Bill or amendment for the purpose of cl. (b)37 shall be introduced or moved in
the legislature of a State without the previous sanction of the President’.

32
. H.M. Jain, ' Presidential Prerogatives under the Constitution', Journal of Constitutional and Parliamentary
Studies (New Delhi) 12(2), April-June 1978, p. 177.
33
. AIR 1964 648
34
. Ibid.
35
. Ibid 30.

15
Thus, from the above discussion, we can conclude that the President of India is not simply a
titular head of the State or a mere rubber stamp. His position differs from the British Crown,
as regards the exercise of a few discretionary powers that are vested in the President by virtue
of certain provisions of the Constitution.

VIII. CONCLUSION
The object of this paper was to analyse the ‘position of the President’ of India, in order to
determine the scope of his powers and functions. From the time the Constitution came into
36
. 1982 AIR 33
37
. Art. 304(b) provides that notwithstanding anything in Art. 301 or Art. 303, a legislature of a State may, by
law, impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within
that State as may be required in the public interest, provided that no Bill or amendment for the purpose of cl.
(b) shall be introduced or moved in the legislature of a State without the previous sanction of the President.

16
force till the present-date, there has been a lack of unanimity between the jurists and
academicians regarding his position.

This submission aimed at clearing a little of the ambiguity that revolved around this office of
power. In the course of the research, the researcher has come to the conclusion that the
President of India is the Constitutional Head of the country but not a mere rubber stamp or
figure-head like the British Crown. Although the President is to exercise his functions as per
the ‘aid and advise’ of the Council of Ministers and such advice is binding on him [by virtue
of the 42nd and 44th Amendments to the Constitution- Article 74(1)], he is bound essentially
by ‘constitutional propriety and political imperatives’.

IX. BIBLIOGRAPHY
BOOKS REFERRED:

D.D. Basu, Introduction to the Constitution of India, 2015, 22nd Edn., Lexis Nexis

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JOURNAL REFERRED:

A. K. Ghosal, The position of the President of Indian Republic- Is it a Replica of the Bristish Crown?,
Vol. 22, No. 4 (1961), pp. 312-318, The Indian Journal of Political Science

ONLINE SOURCES:

http://www.lexisnexis.com.elibrarydsnlu.remotexs.in

https://indiankanoon.org

http://shodhganga.inflibnet.ac.in

http://www.jstor.org

http://www.clearias.com/president-of-india/

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