Position of the President

 Prior to the 42nd Amendment Act of 1976. -Article 53 (1) says that the executive power of
the Union shall be vested in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution.
 Originally, Article 74 provided 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. Article
74 (2) says that the question whether any, and if so, what advice was tendered by the
Ministers to the President shall not be inquired into in any court.
 In the Judges Transfer case, the Supreme Court has held that though the advice given by the
Council of Ministers to the President cannot be inquired into by the Courts but the materials
on the basis of which such advice is given are not secret and can be scrutinised by the
Courts.
 A purely literal and legalistic interpretation of these Article conveys the impression That the
President, if he so desire, could become a dictator, Article 53 (1) leaves a clear scope for the
President, if he chooses, to become a real ruler and not to remain mere nominal head of the
Union. It is true that there shall be a Council of Ministers with a Prime Minister as head to
aid and advice him in the exercise of his executive powers.
 But prior to the Constitution (42nd Amendment) Act, 1976 there was no clear provision in
the Constitution that the President was bound by the ministerial advice. He can easily
manage to seize all executive powers by dissolving the Parliament and declaring state of
emergency Thereby suspending fundamental rights. As a Supreme Commander of the
Armed Forces, he can use military to suppress the civil forces. Even without violating the
Constitution, an ambitious President can become the real ruler of India.
 This literal interpretation is, however, not in tune with the spirit of the Constitution. None
can dispute the fact that the form of Government adopted by the Constitution is a
Parliamentary one It is the essence of the Parliamentary Government that the real executive
powers should be exercised by the Council of Ministers responsible to the Lok Sabha.
 The President cannot exercise his powers without the aid and advice of a Council of
Ministers. The Supreme Court of India has consistently taken the view that the position of
the President and the Governors under the Indian Constitution is similar to the position of
the Crown under the British Parliamentary system
 In the case of Ram Jawaya Kapur vs State of Punjab, Mukherjea CJ speaking for the court
stated that, though the executive power is vested in the President, the President is only a
formal or constitutional head of the executive. The real power is vested in the Council of
Ministers on whose aid and advice the President acts in the exercise of his functions. The
executive has the primary responsibility for the formulation of governmental policy and its
transmission into law. But it is responsible for all its actions to the legislature and, therefore,
it must retain the confidence of the legislature. The basis of this responsibility is embodied in
Article 75(3)
 U. N. Rao v. Indira Gandhi, the Supreme Court held that even after the dissolution of the Lok
Saba the Council of Ministers does not cease to hold office Article 74 (I) is mandatory and,
therefore, the President cannot exercise the executive power without the aid and advice of
the Council of Ministers. Any exercise of executive power without such aid and advice will be
unconstitutional
 After the 42nd Amendment Act, 1976. This amendment removes all doubts about the
position of the President under the Indian Constitution. It has amended Article 74 of the
Constitution which makes it clear that the President shall be bound by the advice of the
Council of Ministers.
 there shall be a Council of Ministers with the Prime Minister at the head to aid and advice
the President who shall, in exercise of his functions act in accordance with such advice."the
President may require the Council of the Ministers to reconsider such advice, either
 generally or otherwise, and the President shall act in accordance with the advice tendered
after such reconsideration.
 Article 75 (3) says that the Council of Ministers shall be collectively responsible to the House
of People:
Thè second part of Article 74 (I) was added by the 42nd Amendment which makes it clear
that the President cannot act "in his discretion. Thus it is clear that the power to dissolve the
Lok Sabha has to be exercised by the President according to the advice of the Council of
Ministers. He cannot exercise his pleasure to dismiss the Prime Minister so long as the Prime
Minister enjoys the confidence of the House because the Council of Minister is only
responsible to the House.
 The constitution clearly contemplates a constitutional president, it is not permissible to
invest upon a President a different role of a ruling monarch. Any reference to the president
under any rule made, under the constitution must be to the president as the constitutional
head, as envisaged in the Constitution acting with the aid and advice of the Council Of
Ministers.