Why the President of India Must Reclaim Constitutional Powers

Why the President of India Must Reclaim Constitutional Powers

How the 24th, 42nd, and 44th Amendments Eroded Presidential Discretion and Why It Must Be Restored

By [Vishnu Alluri]

🏛️ Introduction: From Guardian to Rubber Stamp

On 26th November 1949, India adopted a visionary Constitution, placing the President of India at the apex of the Executive—not merely as a ceremonial figurehead, but as a constitutional safeguard. Yet, over decades, this vision has faded.

Three major amendments—the 24th, 42nd, and 44th Amendments—have eroded the President’s discretionary powers, reducing the office to a so-called rubber stamp. This article explores why this erosion is unconstitutional, violates the basic structure doctrine, and demands urgent correction.

⚖️ Article 74: What the Constitution Originally Intended

Originally, Article 74(1) read:

“There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President...”

The phrase “shall act in accordance with such advice” was introduced only later. The framers—especially Dr. Rajendra Prasad and Dr. B.R. Ambedkar—emphasized that the President held discretionary powers in exceptional situations.

Key Articles Empowering the President:

• Article 53 – Executive power of the Union
• Article 75 – Ministerial appointments
• Article 85 – Power to summon and dissolve Parliament
• Article 111 – Assent to bills
• Article 60 – Oath to defend the Constitution

🛑 The Turning Point: 24th, 42nd & 44th Amendments

1. 24th Amendment (1971)

Made it mandatory for the President to assent to constitutional amendments, removing any room for evaluation or objection.

2. 42nd Amendment (1976)

Passed during the Emergency, this changed Article 74 to read:

“The President shall, in the exercise of his functions, act in accordance with the advice of the Council of Ministers.”

3. 44th Amendment (1978)

Slightly restored balance by allowing the President to return advice for reconsideration, but binding him/her to the reiterated advice.

These amendments stripped away constitutional discretion, even in cases where a President may believe the advice violates democratic principles or constitutional morality.

📚 Why This Is Unconstitutional: The Basic Structure Doctrine

In the landmark case Kesavananda Bharati v. State of Kerala (1973), the Supreme Court of India laid down the Basic Structure Doctrine, which protects:

• Separation of powers
• Rule of law
• Federalism
• Constitutional supremacy

By forcing the President to blindly follow ministerial advice—even in matters of grave national concern—these amendments breach the separation of powers.

The President’s Oath under Article 60:

“To preserve, protect and defend the Constitution.”

How can the President uphold this oath without discretion to refuse unconstitutional advice?

🧑‍⚖️ Supporting Judicial Precedent

In S.R. Bommai v. Union of India (1994), the Supreme Court held that constitutional authorities must act as safeguards against authoritarianism and political misuse.

Yet today, the President is denied that role. This structural contradiction must be addressed.

✅ What Needs to Be Done

✴️ Judicial Reinterpretation

The Supreme Court must examine whether the 24th, 42nd, and 44th Amendments violate the basic structure. A reinterpretation of Article 74 is essential to:

• Restore Presidential discretion in exceptional cases
• Rebalance the Executive-Legislature relationship
• Reinforce constitutional accountability

✴️ Legislative Repeal (if necessary)

Alternatively, a new constitutional amendment may be needed to repeal or modify the above amendments—bringing Article 74 back in line with its original purpose.

🔍 Frequently Asked Questions (SEO Section)

❓Is the President of India just a ceremonial head?

No. While largely ceremonial in practice today, the original Constitution intended the President to have limited discretionary powers, especially during constitutional crises.

❓Can the President refuse to sign a bill?

Currently, only once. After that, the President must accept the reiterated advice of the Council of Ministers.

❓Which amendments curtailed Presidential powers?

The 24th (1971), 42nd (1976), and 44th (1978) Amendments.

🧩 Conclusion: A Constitutional Imperative

India needs a President who can act—not just approve. The erosion of discretionary powers is not merely an academic concern—it weakens the very fabric of democratic governance.

Repealing or reinterpreting the 24th, 42nd, and 44th Amendments is not a radical idea. It is a constitutional necessity.

📖 Sources & References

1. Constituent Assembly Debates – Volume 9
2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
3. S.R. Bommai v. Union of India, (1994) 3 SCC 1
4. The Constitution of India – Articles 53, 60, 74, 75, 85, 111

The author is a constitutional researcher and advocate for democratic accountability.

Tags: #IndianConstitution #PresidentialPowers #BasicStructure #Amendments #Democracy #Legal Reform #Indian Politics #Dream India