Why India chose a parliamentary executive: the President's constitutional position

Detail

1. What a parliamentary executive is

• Executive: the branch of government that carries out laws and runs the administration.
• Parliamentary executive: the real executive (the PM and the Council of Ministers) comes from the legislature and stays in office only while it has the support of the Lok Sabha.
• The head of state (the President) is a nominal head. This means a head in name only.

• The real power lies with the Prime Minister and the ministers.

• Presidential executive (as in the USA): the President is both head of state and head of government. The President is elected separately and serves a fixed term. The legislature cannot remove the President by a simple vote of no confidence.

• India uses the same model at both levels:
• At the Union: President (nominal head) with the PM and Council of Ministers (real executive).
• In the states: Governor (nominal head) with the Chief Minister and Council of Ministers (real executive).

2. Why the framers chose it

• Past experience: Indians had already worked parliamentary institutions under the Government of India Act, 1919 and the Government of India Act, 1935. A familiar system was easier to run.
• Responsiveness and accountability:
• The framers wanted a government that responds to what people expect from it.

• They also wanted it to answer to the elected House every day, through questions, debates and no-confidence motions.

• Fear of a personality cult:

• A directly elected President with a fixed term could build a cult around one person.

• In a parliamentary system, the PM is only "first among equals" in a cabinet that the Lok Sabha controls.

• A strong executive with safeguards: the framers wanted a government strong enough to act, but checked by Parliament.

• Ambedkar's reasoning (Constituent Assembly Debates, 4 November 1948):
• A presidential system gives more stability, because the President cannot be removed easily.
• A parliamentary system gives more responsibility, because ministers must answer to the legislature.

• The Draft Constitution chose "more responsibility" over "more stability".

• Rejected alternative: a Swiss-style executive:

• On 17 July 1947, Begum Aizaz Rasul proposed an executive elected by the legislature through the single transferable vote. Single transferable vote is a form of proportional representation in which voters rank candidates.

• The proposal was modelled on Switzerland's collegial executive. It was not adopted.

• Debate on draft Article 61 (now Art. 74): the Constituent Assembly adopted draft Article 61 on 30 December 1948 [2]. It rejected three amendments [2]:

• one limiting the Cabinet to 15 ministers chosen by proportional representation;
• one deleting "with the Prime Minister at the head", which would have kept the PM's office out of the Constitution;

• one giving the President discretionary powers without Cabinet advice, on the lines of the 1935 Act.

• Why the PM was written into the text: the framers saw the PM as essential for two reasons [2]:

• to secure collective responsibility (all ministers stand or fall together in the Lok Sabha);
• to stop the President from having undue influence over individual ministers.

3. Republic, not monarchy

• Republic: a state whose head is elected for a fixed term, not born into the office.
• India's President is elected indirectly. The UK's head of state is a hereditary monarch (someone who inherits the throne).

• In a republic, the Constitution limits the power of those who rule.

• George Washington box (NCERT Class 7):

• Washington was the first President of the USA.
• He refused to become a king-like ruler and stepped down after two terms.

• The example shows that in a republic, power is held for a limited time and does not pass down in a family.

• India combines both ideas:

• It has an elected head, which makes it a republic.
• That head acts on ministers' advice, which is the British-style parliamentary practice.

4. Constitutional text

Article / Amendment	What it says
Art. 52	There shall be a President of India.
Art. 53(1)	The Union's executive power is vested in the President. The President exercises it directly or through officers subordinate to the President, in line with the Constitution.
Art. 53(2)	Supreme command of the Defence Forces is vested in the President. Its use is regulated by law.
Art. 74(1) (original, 1950)	There shall be a Council of Ministers, with the PM at the head, "to aid and advise" the President.
42nd Amendment, 1976	Added that the President "shall act in accordance with such advice". This made the advice binding.
44th Amendment, 1978	Added a proviso: the President may send the advice back once for reconsideration. The advice given after reconsideration is binding.
Art. 74(2)	No court may inquire whether any advice was given, or what advice was given.

• Current text of Art. 74(1): the Council of Ministers aids and advises the President, "who shall, in the exercise of his functions, act in accordance with such advice". The President may require the Council to reconsider the advice, and must then act on the reconsidered advice [2].
• Meaning of "shall" (NCERT Class 11): "shall" makes the duty compulsory. After 1976, the President has no choice once advice is given. The 1978 proviso allows only a one-time delay, not a veto.
• How the advice works, step by step:
• The Cabinet decides and advises the President.
• The President may return the advice once (44th Amendment, 1978).
• The Cabinet reconsiders and sends the advice again, changed or unchanged.
• The President must act on it.
• Under Art. 74(2), no court can examine what was advised.

5. Landmark judgments

• Ram Jawaya Kapur v. State of Punjab (1955):
• The Court explained that India has a cabinet system of government. In this system the real executive is the Council of Ministers, which answers to the legislature.

• The Court defined executive power as what is left of government's functions after legislative (law-making) and judicial (deciding disputes) functions are taken away.

• U.N.R. Rao v. Indira Gandhi (1971):

• A Council of Ministers must exist at all times, even after the Lok Sabha is dissolved.
• The reason: Art. 74(1) says "there shall be" a Council. The President can never act without one.

• So an outgoing PM continues in office until a new PM is sworn in.

• Shamsher Singh v. State of Punjab (1974, seven-judge bench):

• Date and citation: decided on 23 August 1974, reported as [1975] 1 SCR 814 [3].
• Facts: Shamsher Singh was a subordinate judge on probation. The Punjab Government ended his service by an order issued in the Governor's name, with no reasons given [3].
• Question: are the President and Governors only formal heads, bound by ministerial advice under Arts. 53(1), 154(1) and 166(3)? [3]
• Holding: under the cabinet system, the President and the Governor are constitutional (formal) heads. They use their powers on the aid and advice of their Councils of Ministers. The exceptions are the areas where the Constitution itself gives the Governor discretion [3].
• Known exceptions for the President:
  • choosing a PM when no party has a clear majority in the Lok Sabha;
  • dismissing a government that has lost its majority but refuses to resign.

6. What the office is worth

• Constituent Assembly view (CAD extract in NCERT Class 11):
• The President has no "real power". The office instead carries "authority and dignity".

• The President is a head who "neither reigns nor governs".

• Ambedkar's words: the President is "head of the State but not of the Executive". The President represents the nation but does not rule it.

• Why have a President at all (NCERT Class 11):
• Continuity: the President has a fixed five-year term and stays in office when governments change.
• Appointing the PM: when a government falls or an election gives no majority, the President appoints the PM and so starts the process of forming a new government.

• Symbol: the President stands for the unity of the nation, above party politics.

• Influence without power (Bagehot's three rights):

• Walter Bagehot, a British writer, described three rights of the British monarch: the right to be consulted, to encourage and to warn.

• In India, the President is entitled to information about Union affairs from the PM. The President can use it to give private advice and warnings.

• First test: Rajendra Prasad:

• India's first President, Rajendra Prasad, doubted whether the President must always follow ministerial advice.
• The dispute arose over the Hindu Code Bill, a set of laws reforming Hindu family law, in the early 1950s.
• In the end, the convention that the President acts on advice held. Parliament wrote it into Art. 74 in 1976.

7. Who has held the office

• Pratibha Patil (2007): the first woman President of India.
• Droupadi Murmu (2022): the 15th President and the first President from a Scheduled Tribe.

Prelims Hooks

• Art. 52 creates the office of President. Art. 53 vests the Union's executive power, including supreme command of the Defence Forces, in the President.
• 42nd Amendment (1976): made ministerial advice binding ("shall act in accordance"). 44th Amendment (1978): lets the President return advice once, after which it binds. Exam trap: the 44th did not remove the binding nature of advice.
• Art. 74(2): courts cannot inquire into what advice the ministers gave the President.
• U.N.R. Rao (1971): a Council of Ministers must exist even after the Lok Sabha is dissolved.
• Ram Jawaya Kapur (1955): executive power is what remains after legislative and judicial functions are taken away.
• Shamsher Singh (1974): seven-judge bench. President and Governors are constitutional heads acting on advice. Decided on 23 August 1974 [3].
• Art. 74 was draft Article 61 in the Draft Constitution, 1948. It was adopted on 30 December 1948 [2].
• Ambedkar (CAD, 4 November 1948): the parliamentary system was preferred because it gives "more responsibility", even though it gives less stability.
• Begum Aizaz Rasul (17 July 1947): proposed a Swiss-style executive elected by single transferable vote. It was rejected.
• Pratibha Patil (2007): first woman President. Droupadi Murmu (2022): 15th President, first from a Scheduled Tribe.

Mains Points

• Responsibility vs stability:
• India chose daily accountability to the Lok Sabha over a fixed-term executive.
• The cost showed in the unstable coalition years: governments fell in 1979, 1990 and 1996-98.

• The gain is that no executive can rule without the House's confidence, which acts as a guard against a personality cult.

• Nominal head, not a rubber stamp:

• Arts. 74(1) and 74(2), along with Shamsher Singh (1974), make the President act on advice.

• But the one-time return of advice (44th Amendment, 1978), the right to be informed, and discretion in a hung Parliament (a Lok Sabha where no party has a majority) still give the office real influence as a "conscience-keeper".

• 42nd vs 44th Amendment as a lesson:

• The 1976 change wrote a convention into the text during the Emergency.
• The 1978 proviso restored a small check: the right to ask ministers to think again.

• Together they show how India balances cabinet supremacy with a dignified head of state.

• Same model in the states:

• The Governor has a wider area of discretion than the President.
• This explains repeated Centre–state disputes over the Governor's role, while the President's role has stayed largely free of such disputes.