The President was designated as the titular head of government. The founding fathers and mothers of the Constitution adopted the convention which made the President generally bound by the advice of the Council of Ministers. This was explained by Dr B R Ambedkar, while introducing the Draft Constitution on 4th November 1948.
“Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known…
The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament…
A democratic executive must satisfy two conditions – (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree…
In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses…
The daily assessment of responsibility which is not available under the American system is it is felt far more effective than the periodic assessment and far more necessary in a countrylike India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.”
Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar:
“…that the Council of Ministers shall be collectively responsible to the House of the People. If a President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of violation of the Constitution and he will be even liable to impeachment. Therefore it is merely a euphemistic way of saying that the President shall be guided by the advice of his Ministers in the exercise of his functions.
This Council of Ministers will be collectively responsible to the House of the People, and the House of the People must meet all situations in regard to the budget, in regard to legislation, in regard to every matter connected with the administration of the country. Therefore, if the Council of Ministers is to discharge their responsibility, it will be the duty of the President to see that the Constitution is obeyed…”
As the Chairman of the Constituent Assembly, Dr Rajendra Prasad expected the convention to be developed into a healthy practice in independent India:
“We have had to reconcile the position of an elected President with an elected Legislature and, in doing so, we have adopted more or less the position of the British Monarch for the President… [H]is position is that of a Constitutional President. Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice.
Although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and, the President, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a Constitutional President in all matters.”
The Constitution makers envisaged and adopted a limited role for the President as the nominal head of the Indian State and imposed sanctions on his or her constitutional authority by making them bound by the decisions of the Council of Ministers generally. A similar role was adopted for the Governor in the States.
After the Constitution had come into force, this Court gave judicial sanction to the convention. In U.N.R. Rao v Smt. Indira Gandhi[1], the Constitution Bench held:
“It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word “shall” should be read as “may”. Article 52 is mandatory. In other words there shall be a President of India…. The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions.
As there would be no ‘Council of Ministers’ nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61… Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called “Responsible Government”.”
In Samsher Singh v State of Punjab[2], while dealing with the question whether the Governor as the Constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service personally, Chief Justice AN Ray delivered the majority judgment, holding that:
“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions.
The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.”
The Court summed up the position of law as follows:
“[W]e hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally… Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers.”
Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a concurring opinion. The convention that the President shall be bound by the aid and advice tendered by the Council of Ministers was explicitly made a part of the Constitution by the forty-second constitutional amendment. By the amendment, Article 74(1) was amended to ensure that the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers.
Article 74(1) reads thus:
“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.” The Forty-fourth Constitution Amendment added another proviso to Article 74 (1) so 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”.
Therefore, the position which emerges is that where it has not been expressly provided, the executive head shall be bound by the advice tendered by the Council of Ministers. This constitutional scheme, after the forty-second and forty-fourth amendments, has been judicially reaffirmed. Authoring the judgment of the Constitution Bench in PU Myllai Hlychho v State of Mizoram[3], Justice KG Balakrishnan (as he then was) held that the “satisfaction” of the Governor required by the Constitution for the exercise of any power or function is not the personal satisfaction of the Governor but a satisfaction in the constitutional sense under the Cabinet system of Government, i.e. on the aid and advice of the Council of Ministers.
Justice Madan B Lokur, while delivering the concurring opinion in the fivejudge Constitution Bench decision in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly[4], opined that the absence of the expression “his individual judgment” makes it apparent that the Governor would always be bound by the aid and advice of the Council of Ministers, except in matters where he/she is permitted under the Constitution to act “in his discretion”.
Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. By ensuring that government is responsible in its decision making to the legislature, the principle of collective responsibility fosters a responsive and accountable government.
Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance. Discussion and dialogue are accepting of dissent. In a system of constitutional governance, collective decision making must allow room for differences. A synthesis can emerge in government, when political maturity and administrative wisdom combine in arriving at acceptable solutions to the problems of governance. Collective responsibility allows for and acknowledges differences in perception and ideology.
Yet, what the doctrine does is to place a decision taken by a constituent part of the government as a decision of the government. All Ministers are bound by a decision taken by one of them or their departments. In terms of its accountability to the legislature, government is treated as one decision making unit so that the politics of decision making and administrative divergences do not dilute from the responsibility which government owes as a political unit to the legislature. This is crucial to ensuring that government is responsive to the aspirations of the people in whom political sovereignty resides.
In Kihoto Hollohan v Zachillhu[5], Chief Justice Venkatachaliah speaking for this Court had held thus:
“Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view.
Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not often the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy.”
The doctrine of aid and advice enhances the commitment to the same democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance (decision making in the name of a titular head) is subservient to its substance, which mandates that the real authority to take decisions must reside in the elected arm of the government.
The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible. Collective responsibility and the aid and advice doctrine must not be construed as disjunctive but together constitute integral parts of the discourse in ensuring the strength of and commitment to democracy.
Reference
Govt of NCT Delhi v. Union of India (2018)
[1] (1971) 2 SCC 63
[2] (1974) 2 SCC 831
[3] (2005) 2 SCC 92
[4] (2016) 8 SCC 1
[5] 1992 SCC Supp. (2) 651