CHAPTER- III

CHAPTER - III

CONSTITUENT ASSEMBLY DEBATES IN RESPECT

OF THE CONFERMENT OF POWERS ON THE
PRESIDENT AND THE GOVERNOR
« • •

I. PRELUDE

The Government of India Act, 1935

continued to remain as the constitutional law of

India till 19^7 i.e. till India attained indepen­

dence. On the basis of negotiations for the transfer

of power to India, a Provisional Constitutional

Order1 was passed by virtue of India Independence

Actj 19^7. However the Government of India Act,

1935 was adopted as the Provisional^Constitutional

Law of India pending the drafting of its own separate

Constitution. It was also decided that the Indian

Dominion was to be ruled by a Governor-General who

in turn is to become the predecessor to the Office

of the President of India.

The institution of Indian Presidency was

created by the Constituent Assembly of India, It

was no doubt a Western contribution which influenced

1. India (Provisional Constitutional)Order, I9V7

 86

much in the formation of the type of Government,

India would follow in future.

The Constitution of India, 1950 was not

adopted after a resolution hut in a process of

transfer of power from the British Parliament to the

Indian people. Prof. [Link], Vice - Chancellor,

University of Bombay has expressed; "as a matter of

fact, the Constitution of India, 1950 was shadow

2 '
of the Government of India Act, 1935 .** Pandit

Jawaharlal Nehru, the first Prime Minister of India

had advocated that the Head of the State should

he a Governor-General with powers similar to those

in other Dominions with an Executive Council

operating on the principle of Collective Responsi-

bility, Pandit Nehru also envisaged that, "India

shall have the same constitutional status in the

comity of nations of the British Empire, as the

Dominion of Canada, the Commonwealth of Australia,

the Irish Free State, with a Parliament having

powers to make laws for the peace, order and good

Government of India and an Executive responsible

2. Tope, T .K., The President and the Council of

Ministers, Constitutional developments since
Independence; I.L.I. Publications, p.17.
3-^ Nehru, J., Independence and After, 1950,
PP. 3*+fe-^9, Delhi.
 87

to that Parliament ........ " And " that

Executive Council shall he collectively responsible

to the Legislature for all matters,....... "5

_ The constitutional proposals of the Sapru

Committee also recommended for the creation of a

constitutional Head of State who shall be resposi-

tory of (a) all such powers and duties as may

be conferred or imposed on him by or under the

constitutional Act; and (b) such other powers

as are now vested in His Majesty the King of England,

provided that; in relation to his powers, the Head

of the State shall conform to the traditions,usages

and conventions which are binding on the constitu­

tional Head of any State.^

In erecting the edifice of the Constitution,

various plans were scrutinised by the leaders of the

7
Constituent Assembly/ Parliamentary democracy with

an elected Head of the State was in the logic of

Indian Constitution Development and National Movement.

Sec, 1, Recommendations of the Nehru Committee.

5. Sec, 23, Recommendations of Nehru Committee.
6. Constitutional proposals of the Sapru Committee,
Appendix No. II, 19^8, Appendices [Link]-VIII,
Bombay.
7. Prime Minister Pandit Nehru in discussing the
objective Resolution; CAD, V. 1, p. 57.
 88

g
[Link], the Constitution Advisor, prepared
a questionaire on the Executive side which he sent
to the Members of the Constituent Assembly and
Provincial Legislatures in March, 19V7 and then
to the Member^ of the Union Constitution Committee.
The response was not encouraging. However, on the
basis of replies, but more in the light of his
personal views, [Link] recommended that the Head
of the State should be a President, with a Council
of Ministers to aid and advise him in the discharge
of his functions.^
The Union Constitution Committee took the
liecision in June, 19^7 that India should have the
Parliamentary system of Government, with the President
as the Head of the State, It, however, did not approve
of the recommendations contained in the memorandum
submitted by [Link] as regards discreationary
powers of the President. Consequently upon the
setting up of Indian Dominion, the Constituent
Assembly was conferred with powers to serve as
Dominion Legislature. 1 0 However, except in so far
as other provision was made by or in accordance with

8. Replies of [Link] to the Questionaire

- vide [Link], papers with Shri [Link] Rao.
9. CAD, V. IV, p. 578.
[Link] Independence Act, 19^7, Sec. 8 (1).
 89

a law made by the Constituent Assembly of the

Dominion under Sub-Section (1) of Section 8 of
the Indian Independence Act, 194-7, the new Dominion
and all provinces and other parts thereof were
governed in accordance with the Government of
India Act, 1935; and the provisiqns of that Act
and of the Orders in Council, rules and other
11
instruments made there under, were, so far as
applicable and subject to any express provisions
of the Indian Independence Act, 1947 with such
omissions, additions, adoptations and modifications
as were specified in the orders of the Governor „
12
General continued in operation subject to
modifications and were having effect accordingly.
The provisions requiring the Governor-General or
any Governor to act in his discreation or
exercise his individual judgement, in respect of
certain matters, ceased to have effect. The Indian
Independence Act, 1947 also laid certain conditions
under which existing laws would continue in operation.

11. Government of India Act, 1935.

12. Sub Section (2) of Section 8 of the Indian
Independence Act, 1947.
 90

Section 18 Sub-Section (1) laid down, 'that in ao

far as any Act of Parliament, order-in-council,
order, rule, regulation or other instrument passed
or made would, in so far as the context permits,
and except so far as Parliament may otherwise
provide, were to be construed as, taken together or
taken separately as the circumstances and subject
matter, might require.' Similarly, the instruments
of instructions issued before the passing of the
Indian Independence Act, 1947 by His Majesty to
the Governor-General and the Governors of the
Provinces lapsed and nothing contained in the Govern­
ment of India Act, 1935 in regard to such instruments
18
of instructions continued in operation.

13. Sub Section (4) of Section 18 of the Indian

Independence Act, 1947.

1
 9'1

11 * DISCUSSIONS IN THE CONSTITUENT ASSEMBLY

The Constituent Assembly thought it necessary

for the strength and effectiveness of administration

14
of India, to form a Parliamentary Government.

Using Ayyanger's 7 and Aiyar's joint memorandum

and Rau’s ' proposal as guidelines, the Union Consti­

tution Members created the post of the Head of the

Union and the Constitution as President, without

conferring any discretionary powers on him. However,

Dr. [Link] throughout the deliberations of the

Constituent Assembly, was anxious to guard against

unrestricted Parliamentary supremacy in the country

and appealed to provide and strengthen the power and

functions of the President, so that in a crisis, he

could interfere and arrest a constitutional break-

18
down at the Centre. ,Dr. Munshi considered the

position of the President as pivotal and tried to

14-. The Union Constitution Committee during the early

June Meetings of 194-7 decided that India should
have Parliamentary system of Government.
15. [Link] Ayyangar, Member of the Union
Constitution Committee.
16. [Link], Member of the Union Constitution
Committee.
17* Sir [Link], Constitutional Advisor of the Union
Constitution Committee.
18. Munshi. K.M.. Pilgrimage to Freedom, p.537
(1 967 - Edn.) (Bom.).
 92

strengthen It in several respects so that the

President might not sink into a mere figure-head or

become a formal dignitary like the Governor-General

1Q
of the British Dominion. Thus the President of

India occupied a two-fold position in the governance

of the country. He is the Head of the Union in whom

the Executive Power is vested. The President is

also the Head of the States of India and as such he

20
is the embodiment of sovereignty. This was the

ultimate decision of the Constitution Committee of

the Constituent Assembly keeping in view the tradi­

tional Indian conditions of sovereign executive powers.

Dr. [Link] laid a scheme in the joint

meeting, of the Union Constitution Committee and

the Provincial Constitution Committee, in which there

was a heated discussion on the position and status

of the President of India. The Advocates of the

above scheme urged that;

MThe President should have powers of safe­

guarding the Constitution as also those
necessary effectively to maintain the machinery

19. Article 52 read with Article 1 of the Consti­

tution of India, 1950.
20. Munshi. K.M.. Pilgrimage to Freedom. Sunra citt.
f3TT5ilpii55-58 ~
 93

of the Government in a crisis which

might he created by the absense of a
single majority party in power at the Centre,
or by that party acting un-constitutionally,
or by the country being exposed to external
dangers.”

Though this proposal of [Link] was carried,

Pandit Nehru was not satisfied with it. However,
since the Joint Meeting had no right to overrule the
decision of the Union Constitution Committee, the
proposal was referred back to the Union Constitution
Committee, who, in turn, constituted a Sub-Committee
to re-examine the above recommendation. The Sub­
committee . consisting, of [Link] Ayyangar, B.R.
Ambedkar, [Link] and [Link], recommended
that the President should not be reduced to the
position of a mere figure-head,, rather he should have
a status and authority equal to that of a
21
Legislature.

In this context the Constituent Assembly,

while distinguishing the Principles of Constitutional
Law of the British Empire in the exercise of Paramount
Prerogative Power by the King, stated that, although
the Prerogative Power vested in theKing, the King

21 Id., at p. 24-7.
 9^

had no discretion in the exercise of his prerogative.

In fact the King cannot exercise it independently on
$
the advise of his Ministers of the Dominion
concerned and can exercise the prerogative power
only in accordance with the advice given to him by
the Ministers. Similarly for the Dominion of India
the Crown was bound to act in the exercise of its
prerogative rights in the paramountcy, under the
advise of the Indian Cabinet. Thus, according to
Protagonist theory, the paramountcy in the form of
prerogative power was not transferred to the Government
of India, as could be observed looking through the
21
Government of India Act, 1935. According to the
provisions of Government of India Act, 1935 the Civil
and Military Government of' India; as distinguished
from the Civil and Military Government of British
India was vested in the Governor-General-in-Council
and hence it was argued by the Constituent Assembly
that such an omission for not conferring prerogative
paramount power on the Governor-General, as in the
case of British Crown, was a strong evidence in

22. Id.
23. The provisions of Section 39 of the Government
of India Act. 1833 which were later reproduced
as Section 33 of the Government of India Act,
- 1915-19, were omitted in the Government of
India Act, 1935.
 95

in support of the conclusion, that pararaountcy

could not he transferred to the Government of India.

It is contended herein that such-an argument,

was puerile, since non-existence of such a clause

in the provisions of the Government of India Act,1935

under no circumstances goes to prove that the claim

of right to advise the Crown to exercise the para­

mount prerogative power, was affected.

E.M.S. Namboodripad commented that, since most

of the Indian leaders being Western educated had

learnt the principles of British Parliamentary

Government and ultimately took it for granted that

the Constitution would have a Parliamentary Executive

24
like that of Britain. Similar views were expressed
by eminent British Parliamentarian Norman D. Palmer^

Presidency is a modern terminology for an

ancient institution. [Link], eminent Parliamenta­

rian and Member of the Constituent Assembly proposed

tlje designation, "President", for the Indian Executive

26
Head. The term "Presidency" is fundamentally an

24. Namboodripad, E.M.S., The Mahatma and the Ism,

n 959 Edn.), pp. 41-42.
25. The Indian Political System, (1961 Edn.),
PP. 93-91* (London).
26. See, Replies of Sardar [Link], vide,
Munshi, f.n. 18.
 96

27
American Institution and borrowed from United
28
States. The American Presidency was also an
extension of the office of the State Governors.

Similarly, in India the roots of Indian Presi­

dency meant an administrative unit of the Indian

Empire. Etymologically the term 'President' implies

one who presides or a 'style' or 'title' of various

connotations. Accordingly the Union Constitution

Committee recommended that the Head of the Indian

' 29
Federation shall be the President. K. M. Munshi

recommended in the Constituent Assembly that wthe

Head of the Federation shall be thePresident

(Rastrapati) ........’P°

Neither the Committee nor the Constituent

Assembly was in favour of introduction of

Presidential system of Government as that of the

American Government pattern, nor did they intend to

make the President of India a mere figure-head like

27. Laski. H.J.. 1952, the American Presidency

1”8-19 (London).
28. Binkley, W.E. and Moss M.C., 19*+9, A Government
of American Politics, pp. 2>+-25 (New York).
29. Recommendations of the Union Constitution Commi­
ttee on the Federal Executive, vide Munshi, f.n.18,
P.2 47
30. id.
 97

the President of the French Republic. Pandit Jawa-

harlal Nehru as the Chairman of the Union Constitu­

tion Committee emphasised upon the Ministerial

character of the Government and wanted to make the

position of the President as ’One of Great Authority

& Dignity, and not to exercise any real political

power'

Thus, while the Nehru Committee Report envisaged

Governor-General and subsequently the President as

the Head of the State with an Executive Council of

Ministers operating as the Government with collective

responsibility;
qp the Sapru Committee, on the

31 . CAD, V. IV, p. 73*+.

32. Recommendations of the Nehru Committee were as
follows;
Sec. 1 India shall have the same Constitutio­
nal status in the comity of nations known as
the British Empire, as the Dominion of Canada,
the Commonwealth of Australia, the Dominion of
New Zealand, the Union of South Africa and the
Irish Free State, with a parliament having
powers to make laws for the peace, order and
good Government and an Executive responsible
to that Parliament and shall be stylecf and
known as the Commonwealth of India.
xx xx xx xx xx xx
Sec, 5 The Legislative power of the Common­
wealth shall be vested in a Parliament which
shall consist of the King, a Senate, and a House
of Representatives herein called the Parliament.

Foot note contd

next page
 98

otherhand, suggested creation of a constitutional

3a
Head of the State.
The historic Objectives Resolution moved by
Nehru on December 13, 19^6, four days after the
first sitting of the Constituent Assembly, suggested

Foot note contd....

XX XX XX XX XX XX
Sec. 22 The Executive Power of the Common-
Health is vested in the King and is exer­
cisable by the Governor-General as the King's
representative subject to the provisions of
this Act and of the laws of the Commonwealth.
33. Constitutional proposals of the Sapru Committee,
Appendix [Link], 19^-6, Appendices, [Link]-VIII,
Bombay;
"................ The Committee has thought it desirable
to express no opinion on the merits of the
several alternatives suggested, beyond stating
that a clear definition of a "Head of the State"
is necessary as the several resolutions adopted
by the Committee assume existence of a Head of
the State and the exercise by him of certain
powers and functions............. "
1 .“There shall be Head of the State i.e., the
Union of India who shall be repository of i-
a. all such powers and duties as may be
conferred or imposed on him by or under
the Constitution; and
b. such other powers as are now vested in
his Majesty the King of England, including
powers connected with the Executive functions
of crown in its relation with Indian States.
Provided that, in relation to his powers,
the Head of the State shall confirm to the
traditions, usages and conventions which '
are binding on the 'Constitutional Head of
the State.”

I
 99

for Parliamentary Democracy with an elected Head of

the State for the Constitutional Development in
India, which the Constituent Assembly ultimately
adopted.
[Link], another Member of the Constitution
makers, in his memorandum on the Union Constitution,
suggested for a Cabinet Government with the powers
of- a Constitution Head of the State who has to
exercise executive authority of the Union with the
•34
aid and advice of a Council of Ministers. Some of
the Members viz., Shyama Prasad, Panikar, Alladi
and Gopalswami, had advocated for establishment of
Parliamentary Democracy in India where-as [Link]
pleaded that the Union Executive should be that of
American style. ' Ultimately the Union Constitution
Committee depending mainly on Rau' s Draft and the
joint memorandum of Alladi and Gopalswami made the
President a figure head and was not to possess
discretionary powers. In a hetrogeneous country
like India, with various languages, races, ethnic
groups and religions, Parliamentary Government was
thpught of and intended to provide unity in diversity,

34. India's Constitution in the Making, p.42(1963 Edn.)

(Bom.); see,- also p.9&, Chapter-I, Part IV.
35. Papers in the President's Secretariate, G'.S .Gupte' s
reply to the Questionaire made by B.N,Rau.
36. CAD, V. IV, pp. 578-580.
 1 00

Using Ayyangar and Aiyar’s joint memorandum

and Rau's proposal as guidelines, the Committee
Members vested the President of India with powers
to refer Bills back to Parliament for re-considera­
tion as the only independent legislative power and
was not to have any discretionary powers inspite of
the fact that he was also conferred with the prero­
gative of ordinance making power to make law. But the
President cannot exercise without the aid and advice

of the Council of Ministers.

Karimuddin another Member of the Constituent
Assembly advocated a non-parliamentary executive,
both for the maintenance of peace and tranquility
and for the effective representation of various
groups in the Cabinet.^7

Shibbanalal Saksena and Prof. [Link] both

pleaded in favour of a Presidential form of Govern-
O Q

ment on the model of United States of America.

Dr. [Link] equally was anxious to guard
against unrestricted Parliamentary supremacy in the
country during the deliberations of the Constituent
Assembly.

37. C A D, Y. IV, p. 83>+

38. Ibid, pp. 326, 969, 978
39. CAD, V. II, p.312.
 101

Dr. Munshi was in favour of strengthening the

powers and functions of the President, so that in a
crisis, he could step in and avert a constitutional
break-down at the Centre. He considered the position
of the President as pivotal under political consi­
derations and that the President should not sink
IfO
into a mere figure-head.
Such proposal of Munshi annoyed Nehru during
the Joint Meeting. The system of British Monarchy
was considered to be an impracticable proposition
for India and therefore the Union Constitution Commi­
ttee decided in favour of a Republic. The proposal
for creating an American type of Executive in India
was also rejected, although the Committee adopted
extensively the nature and character of the Presidency,
1+1
from the American Constitution.
\
Similar moves for
the introduction of an Executive on the model of Swiss
Federal Council were rejected on the apprehension of
perpetual cleavage and conflict between the Legislature
and the Executive,
Theoritically speaking, since India went for,a
Republic, the post of President became necessity for
embodying national pride. Although the title 'President

bo. Ibid.
41 . Article II, Sec.1 (i) of the Constitution of
the U.S. :
* The Executive power shall be vested in a
President of the United States o:f America...
 1 02

resembled that of American Presidency as Dr. Ambedkar

observed, "beyond the identify of names, there was
nothing in common between the American form of Govern­
ment and the form of Government envisaged in the Indian
Constitution." 42 This is because the American system
of Government was based upon the theory of separation
of the Executive from the Legislature. Such a theory
was not envisaged in the Draft Constitution of India.
The Presidential form of Government, makes the
Executive directly responsible to the voters and inde­
pendent of the people’s representatives in the Legis­
lature. But Parliamentary Executives are chooser from
the membership of the Legislature and they hold their
offices at the pleasure of the President. Consequently,
there could never be any conflict between the Executive
l+q
and the Legislature. Further it was also pointed by
Dr. Ambedkar in the Drafting Committee, that a Demo­
cratic Executive must satisfy two conditions :
a. It must be a stable Executive, and
b. It must be a responsible Executive.

42. CAD, V. VII, pp. 32-33.

43. Id.
 103

In the background of this categorisation, it

was felt by the Members of the Constituent Assembly
' that, it is neither possible nor practicable to devise
a system of Government which could ensure both
'stability* and 'responsibility* in equal degree.
Whereas, the American Executive ensured more stability
then responsibility, the British Cabinet exerted
more responsibility than stability. In the former
situation the electorate had a periodic assessment
over the Executive actions, where as in the later
case, the electorate had the daily assessment of
the Executive actions. Thus, ultimately the Founding
Fathers combined in the Indian Presidency, the stabi­
lity of the American Executive and the responsibility
of the British Cabinet Government. A comparative
statement of the powers of the President of India with
that of the President of U.S.A., Prime Minister of
Great Britain and the British Crown is annexed here
at the end as Appendix 'A'.
The Constitutional Pandits, while making the
Constitution, were devided into two main schools on
the issue of President's powers. One school was known
as 'Realist' and the other 'Legalist'. The'Realists'
harped upon the responsibility part and pointed out
 104

thatthe daily assessment of responsibility is being

made in Parliament through its control over the Cabinet.
Therefore, it means that the President shall be bound
by the aid and advice of the Council of Ministers and
act as an ornamental figure head. A close similarity
can also be found, if the list of powers conferred on
the President are compared with the formal powers of
the British Monarch. Prof. [Link] quotes;
"The British Sovereign is bound by the advice
of his Ministers as is implied by the well-known
doctrine, "the King can do no wrong". This
convention is enforced through the rule, that
every public act of the Crown must bear the
counter-signature of some Minister, responsible
to Parliament. This rule is almost universal
in its application. There is not a moment in
the King's life, from the moment of his
accession to his demise, during which there is
not some one responsible to Parliament for his
liL
public conduct."

However, it is seen, that, the Indian Parlia­

mentary Executive does not resemble the British pattern.
Although the Government of India Act, 1935 closely
resembled the British formal arrangene nt, but the
conventions followed in Britain, were rarely used in
India, in the day to day governance. Further the
Indian President, being the creation of the Constitu­
tion, he is circumscribed in his powers by the con-

44. Todd, A.. Parliamentary Government in England,

V. 1, (1892 Edn.) p.266 •
stitutional provisions. Agaih the scope of the

powers vested in the President are much wider than

the powers vested in the British Monarch. The

President of India occupies a two-fold position,

in the Governance of the country, while the British

Monarch does not have such powers. Firstly, the

President of India is the Head of the Union in

whom the Executive power is vested and secondly,

he is the embodiment of sovereignty. All Ministers

hold office during the pleasure of the President.

The Constitution of India does not provide for the

countersignature of the acts of the President by a

Minister responsible to Parliament. Further the

President has the power to make rules as to the

manner in which the President’s Orders and Instrument

45
shall be authenticated. '

The ’Legalist' school emphasises upon the

stability part & say that the powers of the President

are deliberately been stronger and as such he is the

seat of power. The President in certain situations

is not bound in the performance of all his duties

and functions, or abide by the advice of the Council

45. Article 77 (2).

of Ministers. He does not act as a conduit pipe to

convey Ministerial decisions to the people of India.

For example in matters like, the decision as to

disqualification of a Member of Parliament, providing

4-7
assent to Bills, consulting the Supreme Court on a
% 4-8
Judicial matter, under a reference, appointing a

Commission to investigate the conditions of backward

classes^ Scheduled Castes^® Spheduled Tribes^1

<2
appointing a Language Commission, creating special

provisions relating to the language of substantial

minority in a State" and in proclamation of Emergency.

^ 4 -

The President if satisfied that the financial credit

of India is threatened he can also declare Financial

Emergency.^ Besides the President has over all power

to adopt, modify, add or amend the Constitution as he

ty 6
may deem necessary or expedients

4-6. Article 103

47. Article 111
■F
00

Article 143
•

49. Article 346

50. Article 341
51 . Article 342
52. Article 344
53. Article 347
54. Article 352
55. Article 360
56. Article 392
 107

Sir [Link] has observed that, 'even if in

any particular instance the President acts otherwise
than on Ministerial advice the validity of the act
cannot be questioned in a Court on that ground

The 'Legalists' further say that, reducing the

President to the position of a mere figure head would
weaken the weapon of fighting centrifugal and dis-
__ _ 58
ruptive forces.
As for example, the powers conferred on the
President under provision to Article 111, to return
a Bill to the Legislature for reconsideration and the
introduction of such amendments into a Bill, can
never be invoked or exercised on Ministerial advice.
In the Constituent Assembly there was also a
proposal to include an Article in the Constitution,
providing that in the exercise of his functions, the
President must be guided by the Council of Ministers
(Cabinet Ministers) but it was deleted as not accept­
able .
Therefore, the constitutional position that
ultimately appears is that the President is normally
required to act on the advice of the Council of Mini-

57. India's Constitution in the Making, Supra Citt.,

f.n. 34.
58. Sir [Link] observed, 'Acting on Ministerial
advice does not necessarily mean immediate
acceptance of the Minister's first thoughts';
vide, India's Constitution in the Making, Id. citt.
sters and it would be incorrect to say that the

Indian Presidentship is a mere figure head who is

hound to put his seal on everything that emanates

from the Ministry.

III. JUSTIFICATION FOR GRANT OF
DISCRETIONARY POWERS TO THE
PRESIDENT AND GOVERNORS. *

The Union Constitution Committee

recommended that the Head of the Indian Federation

*>9
shall be the President*;7 The Constituent Assembly

accepted this recommendation of the Union Constitu­

tion Committee as final^0 Neither the Union Consti­

tution Committee nor the Constituent Assembly was

in favour of introduction of the Presidential system

of Government on the American pattern, nor did they

intend to make the President of India, a mere 'figure­

head' like the President of French Republic. Pundit

Jawaharlal Nehru, as the Chairmen of the Union Consti­

tution Committee, emphasised upon the Minister's

Legislation making character and wanted to make the

position of the President as one of the great authority

and dignity.

59. [Link]; Supra Citt. f.n. 18, p.2>+7.

60. Art .52 of the Constitution of India, 1950;
However, Gandhian conception was altogether
different. Shriman Narain Agarwal in his book
•Gandhian Constitution for Free India'(19^6 Edn.),
says that, the Gandhian Scheme was a system of
indirect .and^decentralized hierarchical super­
structure based on self-sufficieht & self-governirg
units called Panchayats. The President of All
India Panchayat would be the Head of the State
and would be the Head of the Government. But such
conception of Gandhiji received a scant considera­
tion.
61 . C A D, V. IV, p. 73*+.
 110

The re commend at ion of the Nehru Committee in

this regard is also worth mentioning. It recommended

that; ‘"India shall have the same constitutional

status in the Comity of Nations known as the British

Empire, the Dominion of Canada, the Commonwealth of

Australia, the Dominion of New-Zealand, the Union

of South Africa and the Irish Free State, with a

Parliament having powers to make laws for the peace,

6?
order and good government.

[Link], the Constitution Advisor also favoured

Cabinet Systep of Government in India. The Union

Executive was to consist of two organs; one, the

President who like the British Monarch was a limited

Read of the State(s)^ and the other, the Cabinet

which was to aid and advise the President in all

matters.

The Constituent Assembly using the joint

memorandum of Ayyangar and Aiyar and [Link]'s

proposal as guidelines, conferred the President

with discretionary powers to refer Bills back to

Parliament and
denied any other type of
64
discretionary powers.

62. Sec. 1 of the Recommendation of the Nehru Committee.

63. Laski. H.J.. Parliamentary Government in England.
T1952 EdnT) pp. 388-442.
64. C- A D, V. IV, p. 578.
 111

The role of the President, however, was

considered pivotal. Dr. K.M .Munshi, throughout the
deliberations of the Constituent Assembly, was
anxious to guard against unrestricted Parliamentary
Supremacy, instead he emphasised to strengthen the
powers and functions of the President, so that in a
crisis, he could step in and avert a constitutional
break-down. Dr. Munshi feared that unless the position
of the President under the Constitution is strengthened,
he would sink into a figure head as it happened with
President De-Gaulle of France or he may become a
Formal dignitary like the Governor-General of a
British Dominion.
In the joint meeting of the two Committees
Dr. Munshi ' had to face a heated discussion on the
position and status ■ of the President of India,
because, he emphasised that t he President should have
powers of safeguarding the Constitution as a Iso those
necessary and effective powers to maintain the
Machinery of the Government in a crisis which might
be created by the absense of a single Majority Party
in Power at the Centre, or by that party acting un­
constitutionally, or by the country being exposed to

65. Supra note 18, pp.255~8

 112

external dangers.

This proposal of Dr. Munshi was referred

back to the Union Constitution Committee by the
Constituent Assembly, upon which, a Sub-Committee
consisting of Ayyangar, Ambedkar, Panikar and Munshi
examined the proposal de-novo and recommended that
the President should not be reduced to the position
of a figure head like the French President, rather,
he should have a status and authority equal to' that
of the Legislature.
However, the Constituent Assembly 66 considering
and re-considering all proposals tabled before it,
opted for a full-fledged Parliamentary Government,
rejecting the apprehension of perpetuaLcleavage,
or conflict or threatened conflict between the
Executive and the Legislature.
The system of government, as provided for in
the Constitution, is neither Monarchical nor
. Presidential in character. The Indian President.,
unlike that of the British Queen, was not considered
as an evolutionary67' one, rather treated as her

66. Articles 41 and 42 of the Draft Constitution

were adopted by the Constituent Assembly on the
1 Oth December, 1948 which are found in -the form
of Articles 5* & 53 of the Constitution of
India, 1950.
67. Finer. Herman: The Theory and Practice of
Modern Government, (1961 Edn.) pp.668-670.
 113

counterpart in America, having practically no

traditions, no conventions, no historical precedents
and no prerogatives to assist him in the discharge
of his functions and duties.
Prof. [Link], in one of his letters to Dr.
Rajendra Prasad dated 18.12.194-8 pointed out that,
"the Constitution, I am aware, does not leave any
really effective powers in the hands of the President
of the Republic." ^8

Participating in the discussions of the

Constituent Assembly, Dr. Rajendra Prasad, observed
that the position of the President is to reconcile
with an elected Legislature which is responsible
to tender advice to the President, upon which he is
beufad to act.^

Although, by then, there was no specific

provision in the Constitution, making it binding
70
on the President' to accept the advice of his
Ministers, yet there was every possibility of

68. Supra note 18, pp.566-567.

69. CAD, V. XI, p. 988.
70. The Constitution (Forty-Second Amendment) Act,
1976, inserted the following in Article 74-0 )
"..............the President who shall, in ther exer­
cise of his function, act in accordance with
advice."
 114 -

establishing a similar convention under which in

England the Queen also acts always on the advice
of her Ministers.
Against this background, it is necessary to
examine the constitutional provisions dealing with
the relationship of the President with the Council
of Ministers, which the Constituent Assembly
ratified.
Article 74- of the Constitution, 1950 says that,
"there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President
71
in_the exercise of his functions"/
From the above provision in the Constitution
it can be fairly expressed in unmistakable terms that,
for the exercise of powers by the President, there
must be a Council of Ministers with the Prime Minister
at the head, to aid and advise the President.
The Executive Power of the Union is vested in
72
the President and the Executive Power of a State is
vested in its Governor/Although the Constitution
vested Executive Power on the President and Governor!s),

71. Ibid.
.7.2,... Article 53.
73. Article 154-
 115

nowhere it defined the meaning of such 'Executive

Power'. In the Constitution the scope of such
Executive Power embraces the residium of powers after
the legislative or the judicial functions are taken
away. But the modern concept of State, demands
that the State Executive Head should also have some
7b
legislative functions. Further, the Constitution,
designed by the Constituent Assembly, has not made
absolute or rigid division of functions that are
required to be exercised by the Executive, the Legis­
lature and the Judiciary, In many situations, the
power to exercise of legislative or judicial functions
are conferred on the Executive, under the Indian
75
Constitution/J Apart from the constitutional
provision of Executive made Legislative functions,
the Executive(s) in India have also been entrusted
with powers to frame rules, regulations and notifi­
cations, under several laws which are essentially
legislative functions in charactor.

7b* Laski, H.J.; Grammar of Politics.

75. Supra citt., notes 4-6 to 56.
 116

17. EXTENT OF THE POWERS OF PRESIDENT/GOVERNOR

The Constitution of India confers on the

President and the Governor(s) a formidable array of
powers. But the real crux of the problem is as to
how the President or the Governor(s) exercise these
powersf Are they, the real powers to be exercised
/
by the President or the Goveraor(s) in their respective
discretion or are these powers conferred on them,
respectively, only in a formal sense, and have to be
exercised by them on the aid and advice of their
respective Ministers ? Conflicting views are found
on such questions. Taking an ultrarliteral view of
various constitutional provisions, it may be argued
that the President or the Governor can act, if he
chooses, without or in disregard of the aid, assis­
tance or advice of his Ministers and can become an
autocrat.
Article 7^0) of the Constitution, provides
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."
 Similarly, Article'1 63(1) of the Constitution,

provides provisions for a Governor to act according

to the aid and advise of his Ministers.

The essential problem is whether the President

or the Governor, as the case may be, is legally bound

to .seek aid or assistance or to accept the advice of

his Council of Ministers under all circumstances^

[Link] an eminent jurist, opined in the

negative and categorically said, "My submission is

r% /
that heis not."' There are a great deal of academic

debates over the role, contemplated in the Constitu­

tion of India, for the President of the Republic,

since the dignified parts of Government, are the

cardinal components of the essential appartus and

great pivots of substantial utility which attract

motive power to be efficiently employed in times

of necessity-.

The position of the President of India with a

Parliament and Cabinet farm of Government is not

the same as the position of a President under a

representative government like America, T,[Link]-

chari, during the general discussion in the Consti-

76. '[Link] the President of India', The Modern

Review. (1950 Edn.) p. 4-58 (Cal.)
 118

tuent Assembly, pointed out that every one has to

realise that the President has to act on the advise
77
of the Prime Minister. Dr. Rajendra Prasad parti­
cipating in the said discussions observed, that India
has adopted more or less, the position of the British
Monarch for the President, and although there are
no specific provisions in the draft Constitution,
making it binding on the President to accept the
advice of his Ministers, yet, it is hoped that the
Conventions under which the King of England acts
always on the aid, assistance and advice of the
Ministers, would be established in India. Again,
after becoming the President of India, Dr. Rajendra
Prasad, gave an edge to the controversy by drawing
attention to the fact 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 Ministers The -
then Union Law Minister, [Link], described the said
remarks of Dr. Rajendra Prasad, "as a major controversy"
and felt the need for an investigation in a scientific
manner so that, the scope of powers and functions of

77. C A D, V. X, p. 956.
78. CAD, V. XI, p.988.
79. The Hindustan Times, 30th Nov. 1969, p.1 .
the President can he well known.' 8ft
u Pundit Jawaharlal

Nehru, the first Prime Minister of India, dismissing

the remarks of Dr. Prasad, ascerted that, "Politically

and Constitutionally the President's position is akin

81
to that of the British Crown." Views expressed by

a number of eminent scholars, jurists and politicians

in a symposium, presented a wide spectrum of opinion,

that the President of India is a complete analogue

82
of the British Sovereign.

The most fruitful starting point for a discussion

of the powers and position of the President of India

can be seen from the intention of the framers of the

Constitution. Discussions in the Constituent Assembly

brought out three main points. Firstly, it was an

unmistakable intention of the founding fathers, to

adopt the Parliamentary form of Government, run by an

elected Council of Ministers for the country, in which

power resides in the Ministry and the Legislature and

not in the President. J Secondly, the framers accepted

it as a natural corollary by adoption of parliamentary

government, that the President of India would be a

80. Ibid, 16th March, 1961, p.6 .

81. Id., 16th Dec, i960, p.1 .
82. Link, [Link], Nos.25-2?, 1961.
83. CAD, V. IV, p. 134 (Jawaharlal Nehru).
 120

Constitutional head like the British Monarch, and

that he would he bound, by the conventions of such
form of government, to act on the advice of his
ministers. Dr. [Link] declared in the Consti­
tuent Assembly that, 'the President occupies the
same position as the King in the British Constitu­
tion................(and) he can do nothing contrary to
their (Ministers) advice and the President means the
84-
Central Cabinet responsible to Parliament."
It was, in fact, with a view to emphasising
the President's position as constitutional Head,
that a provision in the Draft Constitution empowering
him, in specific terms, to act in his discretion,
like that of the British Governor-General, in
certain matters was dropped. Dr. Rajendra Prasad,
acting as the President of the Constituent Assembly,
expressed the doubt whether, in the absence of a
clear constitutional provision, the President would
ftcj
be bound, in all cases, to act on ministerial advice. y
The members of the Drafting Committee, however, felt
that the position of the President was clear enough
as given under the constitutional Provisions, as they
stood and re-affirmed, to the conventions developed

84. Ibid, V. VII, p.32 .

85. Ibid, V. VIII, p. 215.
in the working of Parliamentary government in Great
QC
Britain. Thirdly, though the Constitution makers

intended that the President is required to function

as a donstitutional Head, it was evidently not their

intention to make the President a mere figure-head.

Dr. Ambedkar doubtlessly emphasised that the President

would be a mere figure-head who has no discretion and

no powers of administration at all since he will be

' generally* bound by the advice of Ministers. Y But

the use of the word 1 generally*, would seem to enable

the President to act in his discretion in some excep­

tional circumstances such as while using prerogative

88
powers.

However, the general intention of the framers of

the Constitution was to project the image of eonstitu-

89
bional President. '

86. Id., V. IX, p.150 .

87. Id., V. IX,p.1036 & V. VII, p. 32.
88. CAD, V. VII, p.974.
89. Pundit Jawaharlal Nehru in the Constituent Assembly
said, “we did not give him any real powers but we
have made his position one of the authority arid
dignity” • CAD, V. VII, p.73*+.
However, [Link] holds that the word ’authority'
used by Nehru could not possibly be equated with
powerlessness, since it's plain meaning is legal
power ; The President Under the Indian Constitution,
(1963 Edn.) p.7.

Foot note continued..

 122

The entire controversy regarding the

President's powers circles round the legal inter­
pretation of Articles 53(1), 7*+(1), 7^(2) and 75(3)
of the Constitution. A close look into the provi­
sions of Article 53(1) would [Link] the execu­
tive power of the Union shall vest in the President
and is to he exercised by him in accordance with the
Constitution, i.e., in accordance with the stipula­
tion given in Article 74(1), which provides 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 categorical language of the above consti­
tutional provisions, clearly means that there must
always be a Council of Ministers and that the President
can not act without their advice.
In this back ground, it is necessary to
examine the said constitutional provisions dealing
with the relationship of the President with the Council
of Ministers.

Foot note continued —

Mr. Nehru strongly argued that even though the
President was going to be a mere figure head and
was not to perform any executive function, the
relation between the Head of State and the Head
of the Executive and Parliament should be couched
in the language which reflected British Conven­
tions, practices and usages. See, D,[Link]:
Constitutional Norms, H.T, [Link].90.
 123

(a) There shall be a Council of Ministers

with the Prime Minister at the head to
aid and advise the President in the
90
exercise of his functions;7

(b) The question whether any, and if so

what, advice was tendered by Ministers
to the President shall not be enquired
91 ---
into in any Court ;7

(c) The Ministers shall hold office during

92
the pleasure of the President;7

(d) The President shall make rules for the

more convenient transaction of business
93
of the Government of India;7

(e) It shall be the duty of the Prime Minister;

(i) to communicate to the President all

' decisions of the Council of Ministers
relating to the administration of the
affairs of the Union and proposals
for the Legislature;94
(ii) to furnish such informations relating
to the administration of the affairs of
the Union and proposals for legislation
as the President may call for;95 and
(iii) if the President so requires, to submit
for the consideration of the Council of
Ministers any matter on which a decision
has been taken by a Minister but which
has not been considered by the Council;9°

90. Article 74(1).

91. Id. 74(2) read with Article*361 .
92. Article 75(2) which ofcourse is the constitutional
fiction of the Parliamentary Government.
93. Article 77(3).
94. Article 78(a).
95. Id. 78(b).
96. Id. 78(c).
 124

These provisions, taken as a whole, fairly

establishes the claim of Dr. B .[Link], that the

Constitution was based on the British pattern of

Cabinet Government where the President is required

to act in accordance with the Ministerial advice.

Taken literally, the words 'aid and advise'

may seem to suggest that the Ministers have to

function as the President's advisors and on such

advice the President makes decisions. Sir Ivor

Jennings puts it, aptly that, "the words 'aid and

advice' have to be understood not by the words used

in a dictionary, but by considering their origin

and the line of their growth."^ It may be stated

that the use of the words- ’aid and advice' might

have been acquired as a gene rally accepted conno­

tation from the constitutional practice of Great

Britain and other Dominions such as, British, North

America, Commonwealth of Australia, Ghana, Bermuda

etc.
\

It may be worthy to note that the words 'aid

and advise' are used while dealing with the powers

of the Executive Head of Canada, in the British North

97. Jennings. Sir Ivor, The Law and the Constitution,

(5th Edn.), p.95 .
 125

American Act, 1867;^® in the Commonwealth of Australia

QQ
Act, 1900 in respect of Dominion of Australia;
* 100 1 01
while those of the Union of Ghana; and Bermuda
through their respective Constitutions have used
only the word ’advise'. In all these countries the
word ’advise' used in their respective Constitution,
is perhaps, meant 'to decide in the name of the State*
and not 'to act accordingly'. And it is probably to
remove the anomally and to avoid the ambiguity in
the use of the word 'advise' the Government of Japan
incorporated the phrase 'advise and approval' in
their Constitution.^®^ Sir All ad 1 Krishnaswamy Aiyer* ®^

stated in the Constituent Assembly that the words

'aid and advice' is a constitutional euphemism and
embodies the well-known British Convention, where
the King always acts on the advice of his Ministers
even though all power is legally vested in him; and
it is in that sense, the words ' aid and advice,' have
to be understood in respect of exercising powers by
the President of India.

98. Sec. 86.

99. Sec. 62.
100. Draft Constitution, See.4o(1).
101. Constitution, Secs. 21 and 62.
1 02 . Article 3 .
103. CAD, V. X, p.270.
 126

The Instruments of Instructions appended to

the Government of India Act, 1935* further made it
clear that the words ’aid and advise’ used in the
1 aI*.
said Act v meant that the Governor-General as well
as the Provincial Governors were to be guided by
the advice of their respective Ministers except
where they were specifically required to act in
their discretion or to exercise in their individual
judgement.1

It is also pertinent to note that in the

Government of India Act, 1935, phrases like Bdisere-
tion" and ’’individual judgement” were used to denote
the areas where the Governor-General could act
without, or independent of the advice of the Mini­
sters. But no such phrases have been adopted in
the Indian Counstitution in relation to the Presi­
dent for exercising his powers. A question may there­
fore be asked, that if the framers of the Constitution

10^. Government of India Act, 1935*

105. However, the Constitution of India iteself
makes an exception in the case of the State
Governor who according to Article 163(1), is
exempted from the obligation to be guided
by the advice of his Ministers and is required
to act on his discretion; as per Article 163(2)
which shall not be called in question in any
court.
 127

were so definite in their minds regarding the

constitutional status of the President, then why

did they not categorically incorporate any provi­

sion in the Constitution that the President would

be bound by the Ministerial advice ? The answer is,

the Drafting Committee in its wisdom did examine

this question but dropped the idea of incorporating

any such provision, as it thought it better to

leave the matter to Conventions. Even if there

were a similar provision, it could not have been

enforced legally and the remedy could only have

been political,which, in fact, is existing under

the present Constitution.

Since the Constitution does not contain any

provision requiring the President to act in his

discretion, it is logical to conclude that he must,

in all matters, act on the advice of his Council of

Ministers. Such conclusion is also supported by the

fact fc at Article 75(3) which makes the Union Council,

of Ministers collectively responsible to the Lok

Sabha, which is unambiguous and must therefore be

taken to predicate a constitutional status for the

President.
 128

In the exercise of his functions the President,

acts on the advice of the Ministers, and represents

to be a formal Executive10** to formalize the deci­

sions already arrived at by the Council of Ministers.

In the ultimate analysis it can be stated that the

President’s role is at best advisory; he may act as

the guide, philosopher and friend of the Ministers,

but cannot assume to himself the role of their master.

It is perhaps made so, because of the intention of

the Constitution makers that the President should

be a centre from which a beneficent influence should

radiate over the whole administration, and not that

he should be the focus of any power. President Giri,

on his retirement, aptly said, that the President

should not do anything which will result in any

substraction from responsible government, and that

he does not function in competition with his Council

of Ministers.10'7

The President's relations with the Prime Minister

can be viewed therefore only in the context of the

systmic logic. A senior advocate and former Parlia­

mentarian, Dhirendra Nath Dwivedi said ; "The President

106 Indian Constitional Law, (1983 Edn.)

107. The Times of India, August, 1’974.

I
 129

is an integral part of parliamentary system of which

the Prime Minister is a hyphen that joins and the

buckle that fastens the legislative part to the

Executive part.”10^

In persuance of past practice and for the

maintenance of the outward dignity of the office of

the President and for avoiding some practical diffi­

culties of a constitutional character, the President

is generally bound by the advice of his Ministers.

However, certain members of the Constituent Assembly

were not satisfied with the language of the said

provision of abiding to the "aid and advice” of the

Council of Ministers. The following dialogue in the

Constituent Assembly between Dr. Raj endra Prasad and

Dr. [Link] is illuminating ;

**Mr. President : There is another amendment

which has been moved by Sardar Hukum Singh in
which he says that the President may promulgate
Ordinances after consultation with his Council
of Ministers.

108. Zail Presidency - I, Constitutional Norms ;

published in Hindustan Times, Oct. 10, 1990.
 130

The Honourable Dr. [Link] ♦ I am

very grateful to you for reminding me about
this. The point is that the amendment is
unnecessary, because the President could not
act and will not act except on the advice of
the 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 ?
Dr. 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.
Dr. Ambedkar s Though I cannot point it
out just now, I am sure there is a provision.
I think there is a 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 is bound
 131

to accept the advice. Is there any other

provision in the Constitution? We will not
be able even to impeach him, because he will
not be acting in violation of the Constitu­
tion, if there is no provision.
Dr. 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 his
functions’. It is not merely 'to aid and
advise.’ In the 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.
Dr. Ambedkar i If he does not a ccept
the advice of the existing Ministry, he shall
have to find some other body of Ministers to
advise him. He will never be able to act
independently of the Ministers.
Mr. President : Is there any real
difficulty in providing somewhere that the
President will be bound by the advice of the
Ministers ?
 132

Dr. Ambedkar s We are doing that - if I may

say so, there is a provision in the Instrument
of Instructions.
Mr. President j I have considered that
also.
Dr. Assbedkar : 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- irr the exercise
of the executive powers of the Union and not
in its legislative power.
Dr. Ambedkar s Article 61 follows-almost
literally various other constitutions and the
Presidents have always understood what that
language means, that they must accept the
advice. If there is any difficulty, it will
109
certainly be remedied by suitable amendment.
XX XX XX XX XX xx"

109. CAD, V. VIII, pp. 215-216.

 133

On the aforesaid statement and analysis

of Dr. B. R. Ambedkar, the Chairmand of the Drafting
Committee, a Schedule of Instructions to the President
was inserted within the Draft Constitution, incor­
porating there in that, in the exercise of his
functions under the Constitution the President must
generally be guided by these instructions, 110 which
inter alia provides that he must act on Ministerial
advice. Ultimately, however, the instructions as
well as the clause were omitted as unnecessary111
because, the President would be liable for impeach­
ment, in case he acts contrary to the Ministerial
advice. As a result there is no provision in the
Constitution to that effect, however, it was under­
stood that the President is bound by the advice
of the Minister though there is no specific provisions
in the Constitution to that effect.

A. Appadorai, a constitutional critic, and

the then Director of the Indian School of Interna­
tional Studies, Mew Delhi,said that, the President

110. Item No.3 of Instructions to the President.

111 . Id.
 134

112
' has no discretion to act independently, since
the provisions of the Constitution do not leave any
discretion to the President to act independently of
the advice of his Council of Ministers except in
two matters t ,
(a) in the choice of the Prime Minister*
and
(b) in a situation when the government of
the Union cannot be carried on in the
manner contemplated by the Constitution.

In the first case the President cannot get

advice of the Council of Ministers, which is yet
to be formed. Of course, even in such matters the
President has no real choice but to accept the
leader of the majority party as the Prime Minister;
but in a situation in which no party command majority
of the elected members, the President may exercise
as to who in his judgement can command the majority
112A
and can become the Prime Minister. However, if a *
situation arises, in which Parliament and the Council
of Ministers cannot function, on account of party

112. Link, Republic Day Numbep, 19^1, V.3, No.25,

p7f!T, The Link in its Republic Day Number, 1961,
published an interesting Round Table on Presi­
dent1 s Powers containing the views of a number
of eminent constitutional experts.
112A. In Oct.-Nov. 1990, after [Link] resigned.
President [Link] consulted almost all
major parties before asking Chandra Sekhar, even
though he had no majority, to form the ministry,
only to avoid dissolution of the Parliament
 135

and personal rivalries or other developments internal

and external, a reserve power should be deemed to
exist in the President to take such steps as are
necessary to carry on the Government, to preserve
113
law and order. J
Apart from these two occasions, in regards two
other occasions viz., (1) in regard to a request by
^Ministry defeated in the House of People, for the
grant of dissolution of the House before its normal
term is over and (ii) in regard to signing a Bill
11*f
presented to him, which in his judgement, requires
reconsideration for any reason, the President is not
required to act on the advice of the Council of
Ministers.
It can thus be summed up that, [Link]'s
statement in the Constituent Assembly on 4-th November,
19^9, 'that the President of the Indian Union ordinarily
can do nothing contrary to the Ministers advice nor
can he do anything without their advice,'
is the constitutional position of the President.

113. Section 4-5 of the Government of India Act, 1935 deal

with the provision relating to failure of the const!
tutional machinery of the Centre, but the Constituen
Assembly did not take recourse to such provision.
Alternatively a provision for a situation in which
government of a State cannot be carried on in accor­
dance with the Constitution was provided under
Article 356.
114-. Article 111 .

■m