Yes, the President of India is supreme, he/she has the supreme authority as per the Constitution we adopted in 1949 on 26th Nov. Our founding fathers gave us the best possible unique democratic system (which never existed before) and the Constitution to build our Dream India. But we the Citizens of India failed to unveil and preserve the true form of our Constitution, not only that we also failed to protect the President of India’s powers; rather we should feal ashamed to call him a rubber stamp.
Our democracy is structured on three pillars, Executive, Legislature and Judiciary. President is the head of the Executive and Supreme Commander of armed forces as per Article 53, he/she is indirectly elected by the citizens of India as per Article 55. The President of India appoints Prime Minister of India and council of ministers as per Article 75(1), The council of Ministers including the head (Prime Minister) shall hold office during the pleasure of the President as Per Article 75(2), The Prime Minister and Council of Minister are there to aid and advise the President of India as per Article 74(1). The President appoints several heads of the different organs of the Indian Democracy for example Governors, AG, Chief Election Commissioner and so on. The President has the right to accept or reject the laws which are made by the Legislatures as per Article 368, he/she summons the Parliament (Both Houses) to start sessions, he/she can prorogue the houses and he/she can also dissolve the House of People (Elected Legislatures) as per Article 85; all these prove that the President of India has highest authority over Legislature Branch.
President has power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence as per Article 72, he/she appoints the Chief Justice of India, Chief Justices of all High Courts, Supreme Court and High Court Judges As per Articles 126 and 124. This proves that the President has supreme authority over the Judiciary too.
As per Article 60 the President of India gives oath or affirmation that “I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India” which means he/she will rule according to his/her will, but he/she can’t act as a monarch or dictator. If he/she does, in order to correct it, our Constitution gave a right to Legislature branch to impeach such a President as per Article 61. If Executive or Legislature branches breaches the Constitution, in order to correct it, any citizen can approach the Judiciary or the Judiciary can act itself with its drawn suo motu powers to overturn the Executive and Legislatures decisions.
Doesn’t it sound the President of India is supreme? Then what went wrong and how our President became so weak; and who reduced his/her powers in becoming a rubber stamp?
Article 368 specified procedures to amend the constitution, which means the Parliament has a right to amend the constitution, but our founding fathers failed to specify the limits. Honorable Supreme Court of India failed to set the things straight in Shankari Prasad vs Union of India case in 1951, it could have established the basic structure doctrine or it could have said that the Parliament can amend the Constitution as per Article 368, such amendments are subject to Judicial review, instead it said that “The Parliament, under Article 368, has power to amend of any part of the constitution” and reinstated the same in 1965 Sajjan Singh Vs. State of Rajasthan case, may be because the founding fathers and authors of the Constitution were sitting in the Legislature branch at that time.
Article 368 only lay down the procedure to amend the constitution, which means that the parliament can amend the constitution, but to what extent, which articles and parts it can amend isn’t defined in our constitution, which is a big loop hole. But our founding fathers gave powers to Executive, Judiciary and Legislature, to oversee each other and to balance the power of equilibrium. As per 368 Parliament has a right to amend the constitution, all the amendments will be presented for the President of India’s assent, he/she has the right to decide to give the assent or not, if he/she isn’t being able to decide, then as per Article 143 he/she can consult the Supreme Court of India for suggestion, he/she will act according to his/her wish. To protect Part III Fundamental Rights and for constitutional remedies any one can approach Supreme Court, so it can correct them.
Subsequently the honorable supreme court realized its past mistakes through 1967 Golak Nath vs State of Punjab case and gave a verdict that the Article 368 only lays down the procedure to amend the constitution and does not give absolute powers to the parliament to amend any part of the constitution. This judgement was pronounced in February 1967 while the elections for 4th Lok Sabha were going on.
Let’s step aside for a moment from Article 368 to observe the interesting and important events that took place after Golak Nath vs State of Punjab case verdict. Smt. Indira Gandhi became the Prime Minister of India; in 1969, during 5th Presidential election she differed with the Indian National Congress (INC) leaders, she worked behind the curtain and got elected her own candidate Sri. V.V. Giri as President of India; after this the INC divided into Congress(O) and Congress(R), Smt. Indira Gandhi formed and lead Congress(R) in 1969 and she held the power with the help of regional parties, and dissolved the 4th Lok Sabha one year before its tenure on 27th Dec 1970. The President of India appointed her as an acting Prime Minister, U.N.R. Rao appealed in Supreme Court (Civil Appeal No 196 of 1971 U N Rao Vs Smt. Indira Gandhi) against it. SC delivered a verdict on 17th Mar 1971 and held a view without proper contentions that “Art. 74(1) is mandatory and the President cannot exercise his executive power without the aid and advice of the Council of Ministers, with the Prime Minister at the head”, which was unnecessary and the decision crippled the President of India. This view gave a weapon to the Legislature branch to invade Executive and Judiciary Branches.
Instead they could have delivered the same verdict by stating that as per Article 75(1), the President appoints the council of ministers, as per Article 75(2) President will retain them as long as he/she wants, when the House of People is dissolved, the council of ministers temporarily discharge their duties until new House of People is elected. As per Article 74(1) the council of minister’s main duty is to aid and advice the President. Not only that as per Article 75(3) the council of ministers are also responsible for the House of the People, they don’t exercise this function since it is dissolved.
Smt. Indira Gandhi became Prime Minster of India once again on 15th Mar 1971, she acted like a monarch, and to abrogate the Supreme Court ruling in Golaknath vs. State of Punjab and to take advantage of the SC’s verdict dated 17th March 1971 (Civil Appeal No 196 of 1971 U N Rao Vs Smt. Indira Gandhi) the Congress(R) party brought 24th Amendment on 28th July 1971, made changes to Article 13 and 368, which enables Parliament to dilute Fundamental Rights through Amendments of the Constitution. It also amended article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his/her assent. The then President of India Mr. V.V. Giri blindly gave his assent to 24th amendment, even though his powers got reduced. Was it because Smt. Indira Gandhi made him as President against Congress parties wish? He failed and ignored his oath to protect the Constitution of India.
The honorable Supreme court delivered a land mark judgment on 24th April 1973 in Kesavananda Bharati vs. State of Kerala case, and brought Basic structure Doctrine and Upholding the validity of clause (4) of article 13 and a corresponding provision in article 368(3), inserted by the 24th Amendment. But the honorable court failed to address and revert back one of the changes of the 24th amendment to the Article 368 - from “it shall be presented to the President who shall give his assent to the Bill and thereupon” to “it shall be presented to the President for his assent and upon such assent being given to the Bill”.
This change mandated the President of India to sign the amendments, which means that the 24th amendment took away the President’s discretionary powers, and which in return altered the basic structure of the Constitution. None had objected this nor noticed nor bothered about it. As discussed before, the constitution of India gave powers to Executive and Judiciary branches to override the wrong doing of the Legislature branch. Due to 24th amendment, Executive branch lost its power.
On 12th June 1975, the Allahabad High Court declared Indira Gandhi's election to the Lok Sabha void in 1971 on grounds of electoral malpractice. The court order, stripped her parliamentary seat and banned her from running for any office (contesting in any elections) for six years. She disobeyed the verdict and declared the state of emergency. Since the President, the honorable court and citizens of India were blindfolded in this matter, she brought 42nd Constitutional amendment during the emergency in 1976 and altered the Article 74(1) as “[(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:]” which means the President (Master) must act according to the Prime Ministers’/Council of Ministers’(appointee/adviser) advise, the Master can’t reject such advise even though it is unconstitutional or harmful or useless to the Citizens of India also.
Later on, Janata party brought 44th Constitutional amendment and altered the Article 74(1) as “[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.]” which mean that the President (Master) can reject the advice (unconstitutional or harmful or useless to the Citizens of India) only one time, if the Prime Ministers’/Council of Ministers’(appointee/adviser) reiterates the same advice then the Master must might work like a rubber stamp.
We adopted the Constitution of India on 26th Nov 1949. Article 74's original content is as follows “(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.” As per this, the President of India is Supreme and he/her has the final authority to accept/reject the cabinets decisions. The council of ministers including PM are there to aid and advice the President of India, it was our first President of India’s view about Article 74(1). According to an article What are the Indian President's powers?, which was published in The Hindu newspaper on 6th June 2006, written by Senior Advocate in SC and Ex Minster of Law and Justice Mr. Shanti Bhushan, when Prime Minister Jawaharlal Nehru and President Rajendra Prasad had fallen out with each other in 1954 on the Hindu Code Bill, The then President Mr. Rajendra Prasad wrote to Attorney General "the Council of Ministers' duty was merely to aid and advise the President, and the President was not bound by the advice of the Council of Ministers”. Mr. Nehru’s charisma over shadowed Mr. Rajendra Prasad and his voice.
UK didn’t have a written constitution hence the British constitution primarily draws from four sources: statute law (laws passed by the legislature), common law (laws established through court judgments), parliamentary conventions, and works of authority. In UK the Parliament is supreme, but the Indian Democracy is a unique one, after we adopted the written Constitution of India in 1949, we have to abide to this and all the institutions have to draw their powers from this document only.
As per Article 75(1) President of India appoints the Prime Minister of India and based on PM’s advice the President appoints other Ministers. As Per Article 75(3) The council of Ministers including the head (Prime Minister) shall hold office during the pleasure of the President, which means that the council of ministers must always meet the expectations; discharge their duties satisfactorily; fulfil the needs and wishes of the President of India, if not the President can dismiss the council of ministers including Prime Minister.
The President of India can appoint any citizens of India as Prime Minister or Ministers, they don’t have to be a member of either house of the Parliament at the time of appointment, which means that all the citizens of India are not electing any one, as council of ministers or Prime Minister of India. It clearly proves that they are selected by President of India to aid and advise him/her. On behalf of the President they will take the responsibility of the Parliament, this is the main theme of the Articles 74(1) and 75(3).
The 24th Constitutional amendment took away the President of India’s discretionary powers to put on hold or reject the Legislature’s laws/amendments/acts. 42nd and 44th amendments forced him/her to obey the Prime Minister/Council of Ministers decisions even though they are harmful or useless to Citizens of India or unconstitutional. Due to these amendments, our Prime Ministers are enjoying unlimited power and acting as supreme, the appointee/adviser turned out as master and the master became puppet in the hands of the appointee/adviser to whom he/she choose and appointed.
The 24th, 42nd and 44th amendments to the Constitution are done unconstitutionally, since they altered the basic structure of the Indian Constitution; Legislatures successfully invaded the Executive branch and in turn kept on trying to conquer the Judiciary too; does any doubts exist in terms of the progress they made in this regard?
Due to the 24th, 42nd and 44th constitutional amendments, our President of India became voiceless, powerless, choice less and mere constitutional head for the namesake, and as a result he/she became a rubber stamp. As a Citizen of India, it’s our fundamental duty to unveil and preserve the true form of our Indian Constitution to build our Dream India, step up and raise your voice to glorify the Indian Democracy.
Vande mataram
Vishnu Alluri
Vishnu Alluri
