It all began while staring at a wordle of The Constitution of India. Something was not right. Words I was looking for like: Prime Minister and Chief Minister; did not stand out. Instead words like: Act, Amendment, President, Governor, State, Parliament, Union stood out. Where I was expecting a Parliamentary System of Constitution, with words like Prime Minister & Chief Ministers everywhere, something else seemed to exist.
I had to know why. So, I decided to do a little word count test, to see how many times “President” & “Governor” appeared in the Constitution as compared to the occurrences of “Prime Minister” and “Chief Minister”. Here are the numbers:
President: 598 | Prime Minister: 15
Governor: 376 | Chief Minister: 20
This was really shocking to me, since India is mostly run by a Prime Minister & the Chief Ministers, and yet the constitution seemed to be a road map for the President and Governors to follow. This didn’t quiet gel with reality and so being illiterate in the matters of the Constitution, I decided to learn more about the Constitution of India. It was mainly out of a curiosity to see if, as per the numbers, it really is a President & Governor centric constitution, as opposed to being a Prime Minister & Chief Minister centric one.
I was able to download a current version of the Constitution with all the Amendments from Ministry of Law website. Being someone for whom, up to this point, the Constitution of India was simply the Preamble, Fundamental Rights, & Fundamental Duties; it was a shocker to be staring at a massive 915 page Constitution with 395 articles.
A complex document for anyone; I soon found myself diving into something that raised a lot more questions than had the answers I was looking for. One question lead to another, and soon an unraveling of the story of the Constitution of India started taking place.
“A bit from here and a bit from there-it is a Pandora’s Box.”
– Maulana Hasrat Mohani on the Draft Constitution of India submitted by Dr. Ambedkar.
The President vs. The Prime Minster
On 4th Nov, 1948, when Dr. Ambedkar presented the Draft Constitution (315Articles and 8 Schedules), which was drafted by the Drafting Committee that he headed; the vision of the new Constitution of India he defined was clearly a Parliamentary system with the twist of a ceremonial President at the top.
“The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system. The two are fundamentally different.”
- Dr. Ambedkar
“Under the Presidential system of America, the President is the Chief head of the Executive. The administration is vested in him. Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known.”
- Dr. Ambedkar
“The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do any thing without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament.”
But what does the Constitution say?
The Constitution adopted on January 26th, 1950 had the following to say about the relationship between the President, Prime Minister & Council of Ministers:
Council of Ministers
(1) 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.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Very simple and precise: the role of the Council of Ministers with Prime Minister as head is to aid and advise the President. Nothing here says that the President is bound by the advise, which is contrary to what Dr. Ambedkar had mentioned in his speech. This seems like a very obvious contradiction, which from the Constitution point of view, makes the President more powerful than the Council of Ministers.
Did someone notice this?
On 23rd May 1949, during the debates over an Amendment to Article 102 in the draft Constitution, Dr. Rajendra Prasad, the President of the Constituent Assembly, did notice. Here is the debate which ensued with Dr. Ambedkar:
The Honourable Dr. B. R. Ambedkar : I am very grateful to you for reminding me about this. The point is that amendment is unnecessary, because the President could not act and will not act except on the advice of Ministers.
Mr. President: Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers?
The Honourable Dr. B. R. Ambedkar : I am sure that there is a provision, and the provision is that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions.
Mr. President: Since we are having this written Constitution, we must have that clearly put somewhere.
The Honourable Dr. B. R. Ambedkar : Though I cannot point it out just how, I am sure there is a provision. I think there is provision that the President will be bound to accept the advice of the Ministers. In fact, he cannot act without the advice of his Ministers.
Some Honourable Members:- Article 61 (1).
Mr. President: It only lays down the duty of the Ministers, but it does not lay down the duty of the President to act in accordance with the advice given by the Ministers. It does not lay down that the president to accept the advice. Is there any other provision in the Constitution? We would not be able even to impeach him. because he will not be acting in violation of the Constitution if there is no provision.
The Honourable Dr. B. R. Ambedkar : May I draw your attention to article 61, which deals with the exercise of the President’s functions. He cannot exercise any of his functions, unless he has got the advice, ‘in the exercise of functions.’ It is not merely to ‘aid and advise’. “In the next exercise of his functions” those are the most important words.
Mr. President: I have my doubts if this word could bind the President. It only lays down 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. It does not say that the President will be bound to accept that advice.
The Honourable Dr. B. R. Ambedkar : If he does not accept the advice of the existing ministry, he shall have to find some other body of ministers to advice him. he will never be able to act independently of ministers.
Mr. President: Is there any real difficulty in providing somewhere that the President will be bound by the advice of the ministers?
The Honourable Dr. B. R. Ambedkar : We are doing that. If I may say so, there is a provision in the Instrument of Instructions.
Mr. President: I have considered that also.
The Honourable Dr. B. R. Ambedkar : Paragraph 3 reads: In all matters within the scope of the executive power of the Union, the President shall, in the exercise of the powers conferred upon him, be guided by the advice of his ministers. We propose to make some amendment to that.
Mr. President: You want to change that. As it is, it lays down that the President will be guided by the ministers in the exercise of executive powers of the Union and not in its legislative power.
The Honourable Dr. B. R. Ambedkar : Article 61 follows almost literally various other constitutions and the Presidents have always understood that that language means that they must accept the advice. If there is any difficulty, it will certainly be remedied by suitable amendment.
The Honourable Dr. B. R. Ambedkar : Our President is quite different from the President of the United States.
As you can see from the debate, Dr. Rajendra Prasad (President) clearly sees the flaw, and asserts that the Constitution should clearly state that the President is bound by the advise of the Council of Ministers. But, Dr. Ambedkar is adamant that the current wording is sufficient, and Presidents will assume it to mean that they have to take the advise from the Ministers.
As it is clear from Article 74 of the 1950 adopted Constitution, Dr. Ambedkar never made a change to the constitution to clarify that the President is bound by the advise of the Council of Ministers.
So, did this issue come up again?
Dr. Rajendra Prasad went on to become the first President of India, a unanimous decision, as he was the only nominee for President. On 26th November 1949, in his final speech to the Constituent Assembly, before authenticating the Constitution, this is what he had to say:
Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice. 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 the result of this very healthy convention, will become a Constitutional President in all matters.
This clear flaw in the Constitution of India must have been lurking in his mind, for him to have brought it up again. But, as the first President of India, he kept his word of acting in accordance with the advise of the Ministers, thus establishing the precedence for future Presidents of India to follow.
Is this flaw still there in the Constitution?
No, 26 years later, during the emergency, when Indira Gandhi the then Prime Minister of India, really needed the power, probably realized that the Constitution did not give the Prime Minister enough power to trump the President. The 42nd Amendment of 1976, changed Article 74, thus binding the President of India to the advise of the Ministers. Here is what the current Article 74 Section 1 states:
(1) 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:
Six words which took away an unknown power Presidents of India enjoyed up till the 42nd Amendment of 1976.
Did the story end here?
No, the 42nd Amendment was a contraversial one, which passed during an emergency curtailed a lot of powers. Under Morarji Desai, the next Prime Minister of India, the 44th Amendment of 1978 was passed, to take care of the butchering of the Constitution by the 42nd Amendment. The powerlessness of the President in being bounded by the Ministers advise was realized, and a second paragraph was added to give the President one chance at having the Ministers reconsider the advise:
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.
Here ends for now; the story of the Constitution of India and the power struggle between the President and his Council of Ministers. Has it reached perfection? I don’t know, but one thing is sure, the story will not end here.