Conflicts Between the President and PM

4074 words (16 pages) Essay in Constitutional Law

02/02/18 Constitutional Law Reference this

Last modified: 02/02/18 Author: Law student

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Ever since the independence of the country and subsequent adoption of the Constitution, the President has been considered just to be a titular head and has even been addressed as rubber stamp i.e. who agrees to each and every advice of the Council of Ministers. Council of ministers comprise of some ministers headed by the Prime Minister and have been given the role of advising the President. Even though, the President is not a member of the Parliament, he is considered to be an important member of the scheme of things. It is only after his seal that any parliamentary function is completed. The power and the position of the presidential office which ever since the inception of the constitution, has been a subject of acute controversy and the dignitary, holding the office, was relegated to insignificance of by the formulation of an erroneous theory, out of the context of the basic structure of the constitution, making the ‘aid and advice’ phrase to be ubiquitous needs to be jettisoned lock, stock and barrel. [1] There have been two schools of thought which argue upon the powers of the President. The ‘Realist’ School harp upon the argument that the President of India is a formal and constitutional figure head working only on aid and advice of the Council of Ministers whereas the other school, the ‘Legalist School’, argues that there are certain situations when President rejects the advice tendered by the Council of Ministers and assumes significant powers to uphold the constitution and to maintain peace and order. [2]

It is with regard to the second scenario that there can be conflict between President and Prime Minister which is to be enquired by the researcher. In this paper, the researcher will be discussing about the form of government adopted by India and the scope of Presidential powers in this regard. Then, he will be discussing the scenario which emerged after the pasing of 42nd and 44th Constitutional amendments and sudden rise of Presidents who wanted to be more than just titular heads. Here, the researcher will be addressing Prime Minister as Council of Ministers or vice-versa as the Prime Minister is the head of Council of Ministers. He will be primarily dealing with executive powers of President.

Form of Government and Scope of Presidential Powers

When Constituent Assembly was formed so as to draft a Constitution for independent India, it faced many challenges. It witnessed a hotly contested debate between the protagonists of the parliamentary system (functioning in U.K.) on one side and the presidential system (as followed in U.S.A.) on the other. These two systems are similar in the sense that both have their roots in sound democratic principle and believe strongly that power is derived from people and must be directed for their welfare. Under the presidential system, President is the real executive head and exercises all the powers vested in him under the Constitution in conjunction with the members of his cabinet. All the three organs of the government i.e. the Executive, the Judiciary and the Legislature work in watertight compartments and this system is supposed to provide greater executive stability and strength to the administration though if relation between either of the organs sour then there can be deadlock and friction. [3] On the other hand, in a parliamentary system, the King or the Head of the State is only a nominal ruler and is just vested with various powers which can’t be exercised by him. All his powers are supposed to be exercised by the Cabinet on his behalf or he is supposed to act on the advice of the Cabinet. The King is considered to be just a titular head of the executive and it is the collective responsibility of the executive to take decisions. [4] It was argued by the supporters of presidential governance that our country should not follow the British pattern as it reminds of the suppression suffered by us whereas supporters of parliamentary system argued that it will be easy to operate the country by parliamentary form as we are used to be governed under that system for around three-quarters of a century. [5] After examining all the pros and cons of both the form of governments, it was decided by the Constituent Assembly that parliamentary form of government is more suited to our country as it asked for more responsibility and kept daily checks on the parliament as opposed to presidential form where assessment came once in four years during elections. It was observed by Dr. B.R. Ambedkar that

“The daily assessment of responsibility which is not available in American system is, it is felt, far more effective than periodical assessment, and, far more necessary in a country like India.” [6]

By the adoption of parliamentary form of government, it was clear that there will be a post which will be at par with King under British Constitution. Though our Constituent Assembly agreed on the adoption of parliamentary form of government, it preferred a system of government having the combination of ‘responsibility’ of the British system of cabinet government with that the stability of the American Presidential executive. The head of the state was not addressed as monarch because it had clearly been declared by our Constitution that ours will be republican state and thus the head of the state will be an elected representative. Though President is provided with vast powers over executive, legislature etc., he is not entitled to exercise these powers on his own accord. On the status of President under Indian Constitution, it was clearly stated by Dr. Ambedkar that President will just be the head of the state but not of the executive. [7] He expressed in clear terms that President’s place in administration will be that of a ceremonial device on a seal by which the nation’s decisions are made known. [8] Also, it has been specifically provided under Art. 74(1) of the Constitution that the President has to act on the aid and advice of the Council of Ministers and this advice was considered to be binding on the President.

During the constituent assembly debate, it was a debatable question as to whether the Constitution obliges the President to act only on the advice of the Council of Ministers. This question was answered in affirmative by Dr. Ambedkar who said that the President will be generally bound by the advice of the ministers and he can do nothing without or against their advice. [9] Though it is nowhere in writing in the Constitution that President is bound to accept the advice of Council of Ministers but it has been a convention under parliamentary form of government that the head of the state has to accept the advice of the Minister. The use of the words ‘aid and advice’ is more of an euphemism so as to maintain the authority and dignity of the post. This has even been recognised by the court in Ram Jawaya Kapoor v. State of Punjab [10] when it said that the President has been vested with executive power under Art. 53(1) of the constitution but under Art 74, there needs to be a Council of Ministers who aids and advises the President in carrying out his functions. It further stated that President is just formal or constitutional head and the real powers have been vested in the ministers of the cabinet. Regarding the absence of the provisions expressing the binding nature of aid and advice, it was said by Rajendra Prasad” Although there are no specific provisions, so far as I know, 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 acts always on the advice of his Ministers will be established in this country also and the President, not so much on account of the written word in the Constitution, but as a result of this very healthy convention, will become a Constitutional President in all matters.” [11] To this, it was replied by Dr. Ambedkar that this a matter of convention and the Head of the State is supposed to follow it otherwise he would be impeached. [12] Even the mode of election of a President was kept indirect as it was thought that if a President is directly elected then it would be really anomalous to not to provide him with same powers as provided to the Prime Minister. As said by Nehru, the power really resided in the Ministry and the legislature and President has just been given power to make his position one of great authority and respect. [13] He continued and said that if there had been a election by adult franchise and then also President was not vested with any real power then it would have been anomalous and wastage of time and money without any result. [14]

By all the above discussion, it can be construed that constitution vested actual authority in the Council of Ministers and President was supposed to act on their advice. Constitution envisaged that by this arrangement there will be no conflict between President and Council of Ministers as President was to accept the advice and this was supposed to maintain harmony at the highest executive of the country and to prevent the country from going into any kind of turmoil. However, this didn’t stop conflicts from coming in. The first conflict between the President and Prime Minister was seen in September 1951 when Dr. Rajendra Prasad was not ready to sign the Hindu Code Bill as was advised by the Council of Ministers as he was against some of the provisions of the act and wanted to know whether he can exercise his own discretion irrespective of the advice tendered by the Council of Ministers. To this Nehru replied that the whole conception of Constitutional government was against any exercise of the authority by the President. [15] However, he wanted to satisfy himself in this regard and asked Attorney General for his advice in this matter. The Attorney General clearly stated that the President was bound to act according to the aid an advice tendered by the Council of Ministers and it would be constitutionally improper for him not to be guided by the advice of the Ministers as it was all pervasive in character and they can advise him on any matter. [16] After this, even though not satisfied, President relented and agreed to sign the bill as he didn’t want to throw the nascent republic into problems. Though there were differences between Nehru and Rajendra Prasad over some issues but still they knew the maintenance of cordial relations between them was very important for proper functioning of constitutional machinery. The Presidents after Dr. Rajendra Prasad didn’t actively participate in any discussion and mostly agreed to the aid and advice of the ministers. So it was kind of an accepted convention that President will act by the advice. However, Supreme Court created a flutter when it declared that President has to be satisfied personally to assent to any executive action or to perform any executive action. [17] This decision threatened the stability at the highest level as it allowed the President to exercise his powers. However, this decision was overruled by the Supreme Court while pronouncing decision in Samsher Singh v. State of Punjab [18] where court categorically stated that the satisfaction required by the Constitution is not the personal satisfaction but the satisfaction of the council of ministers who aid and advice the President. The Supreme Court upheld the same principles in U.N.R. Rao v. Indira Gandhi [19] when it said that the conventions operating in Britain which govern the relationship between the crown and the ministers are pertinent to the Indian scenario.

By the Supreme Court decisions, all the talks about the power of the President to exercise his functions was put to rest and a mutual understanding was reached that President will act on the advice of the ministers. Here, it can be easily seen that the provisions of the Constitution were made in such a way that there could be no conflict between the Head of the State and Prime Minister and if there be any, then Prime Minister should prevail

Amendments to Art. 74(1) and Rise of Activist Presidents

However, knowing the fickle nature of the judiciary, Indira Gandhi sought to put the question beyond political controversy and amended Art. 74(1) by the Constitution (42nd Amendment) Act which expressly laid down that President is bound to exercise his powers on the advice of the Council of Ministers. Later on, in 1978, by Constitution (44th Amendment) Act, Art 74(1) was again amended which gave President the power to ask the Council of Ministers to reconsider their advice but he must accept it after reconsideration. The first amendment was passed by Mrs. Gandhi so that she can get any bill passed by the President and it was done during the emergency. When Morarji Desai came to power, he wanted to correct this and with that view he granted the President the power to reconsider so as to maintain the dignity of the office of President. These amendments finally put the convention in writing that President has to act on advice of ministers and is bound by it.

After this amendment, it was thought that there will be no differences on this issue but it turned out to be opposite and the Presidents turned to be more activist and started questioning government’s intentions. Many activist Presidents came to the fore who decided that they can’t just be puppets in the hands of the politicians and have to act so as to save the nation from any eventuality which might hurt it in long run. In Samsher Singh v. Union of India [20] , it was declared by Krishna Iyer, J. In his concurring judgement that barring following three exceptions, President is always bound by the advice of the ministers:

The appointment of the Prime Minister guided by the paramount consideration that he should be leader of majority.

The dismissal of the government which has lost majority but is not ready to quit.

The dissolution of the house where an appeal to the electorate for fresh mandate is necessitated.

These discretions were provided to the President to act in the instances where the advice of the ministers would result in placing the democracy at peril and appeal to the houses becomes obligatory. These discretionary powers were conferred on him so as to enable him to protect and defend the federal-parliamentary ethos described in the Constitution. These discretionary powers are important in the sense that they provide some machinery to the President, independent of the ministry, to prevent the constitution to be twisted out of shape by political pressures. Only tainted and motivated interpretations, put on the powers of the President, made for appalling aberrations to cock a snook at the constitution and there is nothing which forbids the President from exercising his powers if he chooses to do so. [21]

The powers of the President, under Art 111, are not subject to the aid and advice of the Council of Ministers. Without his assent, no bill can become law and if he considers a particular bill inappropriate then he can either return the bill for reconsideration or withhold it for an indefinite period. Using this power, neither President Zail Singh nor President R. Venkatraman gave assent to the Post Office (Amendment) Bill, 1986 as they were against the mail censorship clause of the bill. R.Venkatraman went to the extent of advising Prime Minister to consult Attorney-General in this regard. Though this could have resulted in a major conflict between Prime Minister and President but it was avoided as the Council of Ministers didn’t send the bill again for approval. [22] Similarly, under Art 123, the President is conferred the power to promulgate ordinance on his own satisfaction. Using these powers, President Dr. Shankar Dayal Sharma didn’t assent to promulgation of two ordinances as advised by the Narasimha Rao government. [23] The same power was exercised by President Dr.A.P.J. Abdul Kalam when he didn’t give assent to the office of profit bill as he thought that it was promulgated for some political gain and not for general principles mentioned.

The above mentioned examples show the activist side of the President where he dares to reject the advice for the larger interest of the people of the country. Though, sometimes this might put the whole constitutional machinery at risk as an activist President would sometime have a confrontation with the Cabinet which might result in the negation of the parliamentary system. Two co-ordinate decision-making authorities acting independently of each other would lead to the derailment of the whole parliamentary setup. [24] Whatever be the President’s legal powers, his real power rests on his moral stature and the public esteem he enjoys. With a nod of disapproval, a President can bring back to the straight track of probity and wisdom a derailed Council of Ministers. However, in the ultimate analysis, in case of a conflict, it is the Council of Ministers which will prevail and not the President. The role of President can at best be considered to be an advisory, a guide to the ministers. He cannot be supposed to assume the role of their head and call the shots. The Constitution intends that the President should be a centre from which a beneficent influence should radiate over the whole administration and not that it should be centre of the power. [25] In case of conflict between President and Prime Minister, if the Council of Ministers resign then President will have real problem in running the council as he is always supposed to have a Council of Ministers. The president cannot carry on the administration for a long period of time, as there have to a parliament in session and also for declaration of emergency there is a need to have approval of both the houses. [26] Further, in this scenario, Constitution provides the ministers, if they have majority support , to go ahead with impeachment of President for showing disregard to the parliamentary government and violating the constitution. [27]

There have not been any major crisis in the last fifty years of our republic because of the mutual respect they among themselves. There had been many instances when Prime Minister and President were at loggerheads. For example, when President Narayanan refused to accept the advice of BJP government at centre to dismiss the UP state government. This could have resulted in a grave situation had the Prime Minister not applied his brains. He did not want to show disrespect to the Head of the State so he didn’t submit the proposal again


It is now amply clear that constitution has nowhere envisaged conflict between President and Prime Minister (or Council of Ministers). In fact, Constitution has envisaged a co-operative and harmonious relationship between the president who is the head of the nation and the Prime Minister who is the head of the government and is directly answerable to the people of the country and legislature. A clash is not in the interest of the country as it can derail the whole mechanism set in by the Constitution. The Prime Minister has to respect not only the office of the President but also the views of the person who holds the post. Similarly, in return President has not only to respect the Prime Minister but also the policies and directions pursued by his government. Though, from initial readings it might sound that President is just a titular head but that is not the case always. He can also exercise his powers if he sees that his inaction might result in violation of Constitutional machinery. It is the Presidential authority that keeps the country and the people constitutionally bound together. He may exercise his executive powers if he desires by asking Prime Minister about the policy decisions under Art 78 or by withholding ot returning the bill for reconsideration. Though, in most cases, where there is conflict between Prime Minister and President, the Prime Minister prevails as he is the head of the parliamentary government but it doesn’t mean that he may always be the one who gets to decide. The President has full powers to take initiative during any threat presented to internal stability and external danger. It is president’s obligation to function without any infringement of the constitution. In doing so, he may reject ministerial advice, if it is violative of the constitution. The constitution is thus the only limitation on the powers of the President. In case of conflict, Constitution has different safeguards which are there to prevent either of them to violate the basic principles of Indian republic and gives both of them some power to keep check on each other. But mostly, in Indian scenario, Prime Minister and President have been known to share cordial relations among themselves and respect each other’s posts even when there are differences among them as seen in relationship between Pandit Nehru and Dr. Prasad. Basically, due to the inherent regard which have been given to both President and Prime Minister there always have been amicable ways to find solution to them and thus prevent any kind of confrontation between the Head of the State and the highest Representative of the People of India.

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