Write a comprehensive note on the Constitutional position of the Indian President before and after the passing of the 42nd Amendment Act.

Question: Write a comprehensive note on the Constitutional position of the Indian President before and after the passing of the 42nd Amendment Act. [BJS 1977]

Find the answer to the mains question only on Legal Bites. [Write a comprehensive note on the Constitutional position of the Indian President before and after the passing of the 42nd Amendment Act.]

Answer

Article 74 of the Constitution says that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President of India who shall, in the exercise of his functions, will act in accordance with such advice. However, this relationship between the advising duty of the Prime Minister and its Council of Ministers to the President has been altered and shaped mainly two important Constitutional Amendments.

The first one is the 42nd Amendment Act, 1976 which made the president abound by the advice of the council of ministers headed by the Prime Minister. Before the 42nd amendment, Article 74(1) stated that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President of India who shall, in the exercise of his functions”.

However, since there was little ambiguity whether the advice of the CoM is binding on the President or not. So, the 42nd amendment was passed which made it explicit that the President shall, “act in accordance with such advice.”

The second one is the 44th amendment, 1978 which added in Article 74 (1) that the President can send the advice back for reconsideration once. But if the CoM sends the same advice again to the President, then he must accept it.

Thus, constitutional provisions, amendments, and parliamentary conventions have made the aid and advice of CoM binding on the President of India. Unlike Article 163 that empowers the Governor to act at his discretion, the President is not vested with the similar power to do so. The President has only certain situational discretion where he acts on his own including the appointment of the Prime Minister when no party has a clear majority in the Lok Sabha, and the power to dismiss the Council of Ministers when it cannot prove confidence.

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