Constitutional Democracy of India

8. Executive powers of the Indian President:

Article 53 of India‟s constitution says that the executive authority shall be vested in the president of india who can exercise them either directly or through thee officers subordinate to him.in accordance with the constitution. In this context, the president has vast powers of appointing a number of constitutional authorities and a number of other officials. He not only appoints the prime minister and other members of the council of ministers on the advice of the prime minster, but also the governors in the states, the comptroller and auditor General of India, the Attorney general of India, the chairman and the members of the union public service commission and of the joint public service commission, the chief election commissioner and other election commissioners, chairman and the members of the finance commission, the chairman and members of the national human rights commission, of the national commission for women; of the national commission for scheduled castes and the national commission for scheduled tribes; ambassadors and high commissioners and special officer for linguistic minorities Most of these appointments are made by him on the advice of the council of ministers while some of them are appointed by him on the recommendations of a committee. For example the NHRC, NCW,NCPCR or the NCM are constituted by him on the advice of a committee as defined under the statutes establishing these commissions. However, the president can exercise his discretion in the appointment of the prime minister specially when there is a fluid political situation after the elections to the Lok sabha. So far, the president has been following methods of appointing the prime minister whenever there was the absence of a political party or the coalition of parties with absolute majority in the Lok sabha after the general elections. For the first time such a situation emerged for the first time in 1989 when no political party or a combination of parties secured absolute majority in the Lok sabha while congress emerged as the largest single party. The president invited the leader of the congress to form the government. When the leader of the congress legislature party, Rajiv Gandhi refused to form the government , president invited the leader of the next largest single party, VP Singh to form the government who accepted the invitation and was asked to prove majority on the floor of the house which he did with the outside support from the BJP and the CPM. Similarl action was taken by him in 1991 when in the absence of a party with absolute majority, invited the leader of the congress, the largest single party, PV Narsimha Rao to form the government who agreed to form the government. He later proved majority, as required by the president, on the floor of the Lok Sabha. In 1996 again , the president invited the leader of the BJP, the largest single Party, Atal Bihari Vajpayee, to form the government but he had to resign within 13 days of forming the government because he was not in a position to prove majority in the Lok sabha. The president then invited the leader of the national front after congress, the next largest party not only refused to form the government but extended outside support to the national front led by HD Devegowda and later IK Gujaral. In 1998, the president invited the leader of the largest single party, the BJP, to form the government but with a rider and that rider was to satisfy the president that Atal Bihari Vajpayee had the support of other parties to command majority. It was only after Vajpayee submitted the letters of support from different political parties that he was invited by him to form the government. In 1999, there was a pre-poll alliance under the National Democratic Alliance that emerged with absolute majority and therefore the president had no option but to invite the leader of the NDA, Atal Bihari Vajpayee to form the government. In 2004, the president invited the leader of the largest single party, the congress to form the government who was asked to prove majority. The congress formed a post-poll alliance, the United Progressive Alliance and was successful in proving the majority on the floor of the Lok sabha. In 2009, the UPA was returned back to power with absolute majority and the leader of that alliance was invited by the president to form the government.

So far so good. The presidential action in all the above situations was considered as non-partisan and unbiased. But his actions came in for questioning when he appointed those as prime minister who not only were responsible for bringing down the duly formed government, but had a very small support of their own party. Those decisions were criticised as ones promoting politics of opportunism, horse trading and politics of instability. This is what happened when charan singh was invited to form the government in 1978 and Chandra shekher after he split the Janata dal under the leadership of VP Singh. Charan Singh had the support of only 100 MPs of his own and Chandra Shekhar had the support of only 40 MPs of his own. The appointment might have been technically correct; it was politically and morally incorrect. None of them could provide a stable alternative government and congress used them to dislodge the Janata party government and janata dal governments were louder than reality.

Another question relating to the executive powers of the president is with regard to his power of dismissing the council of ministers and the prime minister. Can he dismiss them? In normal situations no. The constitution makes the council of ministers headed by the prime minister collectively and individually responsible to the parliament, that is, Lok sabha. It means the council of ministers including the prime minister shall remain in office till they enjoy the confidence of the majority of the members of the Lok sabha. However, if the council of ministers does not resign even after loosing the majority support, the president can remove it from office by dismiss it under the constitutional provision that the council of ministers shall remain in office till the pleasure of president. The president can also dismiss the individual minister/s on the advice of the prime minister. can he dismiss the prime minister if he thinks in his judgement that the prime minister was not performing his duties as per the provisions of the constitution? This he can do because he is under oath to protect and preserve the constitution. For instance it is the constitutional duty of the prime minister to keep the president informed of the decisions of the cabinet on the union affairs and further to furnish the information to him whenever he seeks any information relating those matters. Even though there has been no precedent of dismissal of the prime minister in the history of independent india, the matter is quite uncertain still. It was in the mid eighties that then president Gyani zail singh sought the report of the Thakkar commission and Mishra commission on anti-Sikh riots of 1984 and the council of ministers headed by the then prime minister, Rajiv Gandhi decided not to furnish that report to the president. Similarly, the unin cabinet decided against providing to the president the technical and classified information when the president asked for the entire information regarding the Bofors Deal including the technical details. The council of ministers asserted its supremacy with reference to Articles 74, 78 and 86 of the constitution in regard to taking decision on giving information to the president. (JR Siwach, Dynamics of Indian Government and Politics,1990, p. 133) It is a known secret that the president at that time thought the prime minister was failing to perform his constitutional obligation to provide information sought by the president to him. He explored both the political and legal possibilities to dismiss the then prime minster and install an alternative government. He failed to persuade the other congress leaders in the efforts to have alternative prime minister while the attorney general expressed himself against the dismissal of the prime minister enjoying majority support in the Lok sabha. He also advised the president to act in accordance with the advice of tendered to him in that regard by the council of ministers. Even then, the president made it clear that the constitution gave the power to dismiss the prime minister, though he had no intention to do so. HM Seervai agreed with the this view of the president in an earlier Article when he opined that “if the council of ministers advised the president to take an action which is admittedly contrary to the constitution, it was imperative on the president to reject such advice and if necessary dismiss the ministry. Under Article 60, the president takes an oath to preserve, protect and defend the constitution. Under Article 61 he can be impeached for violation of the constitution. The necessary implication of these two Articles is that the president must refuse to act on such advice of the council of ministers as might lead to a violation of the constitution”.( The Times of India, August 30, 1979, P.6)