The President of India in relation to His Council of Ministers

 The Constitution of India has adopted the parliamentary system or the Cabinet form of Government on the British model. The principle of English Constitutional Law that the King does not act on his own but on the advice of Council of Ministers is embodied in the Indian Constitution.

The President of India is a constitutional executive head but the real executive authority of the Union is exercised by the Prime Minister and his Council of Ministers. He is constitutionally obliged to act as per the advice of the Ministers in exercise of all his functions and there is no more discretion given to him.

Article 74 (1) grants a special privilege to the President mentioning that he 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. According to Dr. Ambedkar, President is “the head of the State but not of the Executive”.

Article 74 of the Constitution lays down that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall in the exercise of his functions act in accordance with such advice.

The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

The expression “aid and advise” appearing in Article 74 is a constitutional phrase used besides the Constitution of India in other constitutional documents, viz., North America Act. Consistently, the expression “aid and advise” has been taken as a single phrase.

Even in the matter of executive functions, the President is to be aided and advised. In relation to his executive functions, the President has both to be aided and advised. In U.N. Rao v. Smt. Indira Gandhi, (1971) Supp SCR 46 the Court held that Article 74(1) is mandatory and, therefore, the President cannot exercise power without the aid and advice of the Council of Ministers.

In Praveen Jain v. Union of India, on 10 August, 2015 Delhi Central Administrative Tribunal said that Article 74 of the Constitution provides for the Council of Ministers to aid and advise President, as also issues like the constitutional requirement to act according to the advice of some other authority, the veto power, appointment of Governors, etc., take effect from this Article.

Article 74 is all pervasive in its character and does not make any distinction between one kind of function and another. It applies to every function and power vested in the President, whether it relates to addressing the House or returning a Bill for reconsideration or assenting or withholding assent to the Bill.

It will be constitutionally improper for the President not to seek to be guided by the advice of his Ministers in exercising any of the functions legally or technically vested in the President. The expression aid and advise’ in Article 74 cannot be construed so as to enable the President to act independently or against the advice of the Cabinet.