What do the President of India, the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and judges of the Supreme Court of India have in common? They are all high constitutional functionaries at the central level of the government. They can only be removed from office by impeachment.
Only the President however, is elected. The rest of them are appointed by the President acting on the aid and advice of the Council of Ministers. The President is (indirectly) elected by a collegium consisting of the members of the Parliament and the members of the State Legislatures. Indeed, among elected representatives, the President’s is the only tenure that is constitutionally guaranteed, no matter what happens in the Parliament.
Also unlike the President, the rest have clearly defined constitutional compartments within which they can function. They are not bound by the Cabinet and are truly independent high constitutional functionaries. This has been demonstrated by the people who have held these offices in past.
So the Comptroller and Auditor General of India, the Chief Election Commissioner of India, and Supreme Court judges are not elected to office and can only be removed by the tedious process of impeachment. Why then has the elected President been denied a clear constitutional compartment in which he can act freely?
Preserve. Protect. Defend.
Among the Cabinet, the Parliament, and the President, only the President is sworn to preserve, protect, and defend the Constitution. Like a Supreme Court judge, a Member of Parliament swears to bear true faith and allegiance to the Constitution. In addition to taking an M.P.’s oath, a Cabinet minister takes an oath of secrecy. It stands to reason then that the Cabinet, which has sworn to work within the four corners of the Constitution, would never tender any advice to the President, the acceptance of which will place the President in violation of the Presidential oath. If such advice were tendered however, would the President have the constitutional authority to reject it outright and discharge the duties of the high constitutional office in contradiction to the advice tendered by the Cabinet? Further, who decides whether the advice tendered would force the President to act in violation of the Presidential oath?
A reversal of roles
B.R. Ambedkar in fact, said that it would be permissible on occasion for the Cabinet and Presidential roles to be reversed. The text of the originally adopted “Presidential Aid and Advice Clause” (Article 74) said, “There shall be a Council of Minsters with the Prime Minister at the head to aid and advice the President.” While this provision was being drafted, Dr. Rajendra Prasad asked Dr. Ambedkar, “Where is the provision in the Draft Constitution which binds the President to act in accordance with the advice of the Ministers?” There was in fact no provision in the Draft Constitution to this effect and Dr. Ambedkar said, “…there is a provision in the Instruments of Instructions.” The Instruments of Instructions were removed from the Draft Constitution when it was adopted. But speaking on the text of the originally enacted Article 74, Dr. Ambedkar said, “It is the Prime Minister’s business, with the support of Ministers, to rule the country and the President may be permitted now and then to aid and advice the Council of Ministers.” Perhaps Dr. Ambedkar had the foresight to predict the impossible situation the President would find himself in where accepting the Cabinet’s advice would force him to act in violation of his oath.
Governor’s power to overrule the State Cabinet
In fact Justice V. R. Krishna Iyer, in his concurrence in Shamsher Singh v. Punjab, (1974) 2 SCC 831, a seven-judge bench decision, cited the views of Dr. Ambedkar to support his conclusion that, “…the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations.” This view was later used to support the conclusions in M.P. Special Police Establishment.
In M. P. Special Police Establishment, (2004) 8 SCC 788, a unanimous five-judge bench of the Supreme Court held that in exceptional circumstances, the Governor of a State, whose office is considered structurally equivalent to that of the President of India, would have the constitutional authority to act in his personal discretion. Such a situation would arise when the State Cabinet is not in a position to tender unbiased or impartial advice to the Governor. Clearly, the Supreme Court was also not oblivious to a situation where acceptance of the State Cabinet’s advice would place the Governor in violation of the Gubernatorial oath, which incidentally also is, to preserve, protect, and defend the Constitution. When the Governor granted the sanction for prosecution of the members of the Cabinet, which was denied by the Cabinet in the face of sufficient evidence, the Supreme Court upheld the Governor’s action as constitutionally valid and rejected the argument that the Governor could not have overruled the State Cabinet. The Court however, cautioned that this should be done only in exceptional circumstances.
Note here that the Governor is the other high constitutional functionary that is not elected. The Governor is appointed by the President and serves at his pleasure. Which begs the question once again — how is it possible that a non-elected high constitutional functionary, the head of a State of the Indian Union, has been granted constitutional authority to, in rare circumstances, overrule the State Cabinet, but the office of the President, who is the head of the Indian Union itself, has been denied similar constitutional authority?
In Rao v. Gandhi, (1971) 2 SCC 63, the Supreme Court, while interpreting the originally enacted Article 74, held that the President is bound by the advice of the Union Cabinet. Later by the infamous Forty-Second Amendment, Article 74 was amended to read, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice.” One wonders what the point of amendment was when the Court had already interpreted Article 74 in favour of the Cabinet. Anyway, in Rao v. Gandhi, the unanimous five-judge bench was not faced with the question of what the President could do if in his opinion the advice tendered by the Cabinet is unconstitutional. Later, by the Forty-fourth Amendment, Article 74 was amended once again and a proviso was added which said, “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.” This proviso admits the possibility of the Cabinet’s advice being rejected by the President but not if tendered again.
However, if the President rejects the Cabinet’s advice for the first time on the grounds of it being unconstitutional, merely tendering the same advice again would not cure the vice of unconstitutionality. For the purposes of this proviso therefore, it cannot be said that an advice has been constitutionally tendered at all. We must also note that both these amendments came after Kesavananda Bharti and can be judicially reviewed.
In any event, the President cannot and should not wait for the Supreme Court to give its opinion on the constitutionality of the Cabinet’s advice when in his opinion, accepting it would place him in violation of the constitutional duty to protect, preserve, and defend the Constitution. That truly would be an exceptional circumstance in which the President should be constitutionally allowed the authority to act according to his discretion. With all the legal assistance at his disposal, the President would be just as competent as a Supreme Court judge to decide whether accepting the Cabinet’s advice would force him to act in violation of the Presidential oath.
(Khagesh Gautham has an LL.M. from Columbia Law School and teaches constitutional law at the Jindal Global Law School.)