Constitutional Design & the President

Part V · the design

Part V covers the Union Executive: President, Vice-President, Prime Minister, Council of Ministers and Attorney General. India adopted a parliamentary executive — the President is formal head; the PM and Council of Ministers wield real power. It differs from Britain: an elected President (not hereditary monarch), a written Constitution, judicial review, constitutional supremacy (not parliamentary sovereignty) and federal distribution of powers.

The Assembly weighed the British Cabinet, the Swiss elected executive and the American presidential model, and chose a parliamentary executive built on executive–legislative cooperation, ministerial responsibility and the avoidance of rigid conflict. Jawaharlal Nehru stressed ministerial governance and legislative supremacy over presidential activism; B.R. Ambedkar saw parliamentary government as more responsible; Granville Austin called it “strength with democracy”; K.M. Munshi saw the overlap as useful for effectiveness.

President — position & articles

The President is head of state, first citizen, supreme commander of the defence forces, part of Parliament, ceremonial head of the Union executive and a symbol of unity, integrity and dignity. Key articles: 52 (office), 53 (executive power vested), 54 (election), 58 (qualifications), 60 (oath), 61 (impeachment), 72 (pardon), 74 (aid & advice), 79 (part of Parliament), 111 (assent), 123 (ordinances), 352/356/360 (emergencies).

B.R. Ambedkar explained that the President represents the nation but does not rule it. Walter Bagehot‘s principle applies partly — a ceremonial head may “advise, encourage, and warn” but not govern. M.C. Setalvad and A.K. Ayyar supported Cabinet supremacy. Paul R. Brass — the President is effective only when trusted by the PM. James Manor — not a mere rubber stamp, since speeches and advice can influence opinion and ministers.

Powers in brief: Executive — appoints PM, ministers, Governors, judges, key officers. Legislative — summons/prorogues Parliament, dissolves Lok Sabha, assents to/returns Bills, promulgates ordinances. Financial — prior recommendation for Money Bills; annual financial statement in his name. Judicial — appoints judges; pardon (Art 72); advisory reference (Art 143). Emergency — national, President’s Rule, financial. Diplomatic/Military — represents India; supreme commander.

Politics of the presidential office

“we did not want to make the President a mere figurehead like the French President. We did not give him any real power but we have made his position one of great authority and dignity.”

Jawaharlal Nehru

Presidential elections carry political messaging: Indira Gandhi‘s “conscience vote” for V.V. Giri against Neelam Sanjeeva Reddy; Gyani Zail Singh’s nomination amid Punjab tensions; A.P.J. Abdul Kalam read as outreach to Muslims; Pratibha Patil as a message on women’s representation; Dalit candidates from both sides in 2017. The office is formally apolitical, so partisan use of the election can weaken constitutional dignity.

Election of the President

The electoral college · Article 54. Elected MPs (both Houses) + Elected MLAs (all States) + Elected MLAs of Delhi, Puducherry, J&K → PRESIDENT. Excluded: nominated MPs, nominated MLAs, all Legislative Council members. Method: proportional representation · single transferable vote · secret ballot · weighted voting. Value of vote — MLA: by State population ÷ elected Assembly seats (larger States weigh more); MP: total value of all MLA votes ÷ total elected MPs. Aim: uniformity among States, parity between Union and States, federal balance.

N. Gopalaswamy Ayyangar helped devise the equitable formula. B.R. Ambedkar — since the President’s powers extend to Centre and States, both MPs and MLAs should participate. Article 71 — election disputes are decided by the Supreme Court.

Why indirect? The President is a nominal head; a direct mandate could rival the PM; a nationwide campaign would intensify party conflict; cost and complexity would be high. Indirect election gives moral authority and national legitimacy without making the office a competing centre of power.

Discretion of the President & Ordinances

Conventional view: the President acts on the aid and advice of the Council of Ministers under Article 74 — affirmed in Ram Jawaya Kapur (1955), U.N.R. Rao v. Indira Gandhi (1971), R.C. Cooper (1970) and Samsher Singh (1974). Textual argument for discretion: words like satisfaction, assent, opinion, pleasure, consent in Arts 72, 111, 123, 143, 352, 356, 360 indicate limited discretion.

• Appointment of PM — matters in a hung House; invite the person most likely to command a Lok Sabha majority.
• Dissolution of Lok Sabha — possible discretion in unstable coalitions.
• Assent to Bills — Art 111 allows assent, withholding or return of a non-Money Bill; Rajendra Prasad considered discretion on the Hindu Code Bill.
• Pocket veto — indefinite delay in rare situations.
• Pardon (Art 72) — Maru Ram (1980), Kehar Singh (1989): exercised on ministerial advice; V.R. Krishna Iyer stressed Cabinet advice.
• Ordinances / Emergency — “satisfaction” formula; S.R. Bommai (1994) opened President’s Rule to review.

Balanced view — the President is not a rival executive and not an empty rubber stamp: moral authority, a constitutional cautionary role, limited crisis discretion, and a duty to preserve, protect and defend the Constitution.

Ordinance-making — Articles 123 & 213

Temporary law when the legislature is not in session, for urgent situations; must be laid before the legislature; ceases six weeks after it reassembles unless approved. Issues: re-promulgation, absence of urgency, bypassing the legislature, executive law-making, rights violation.

In Krishna Kumar Singh v. State of Bihar (2017) the Supreme Court held ordinances are subject to judicial review; must be laid before the legislature; re-promulgation is an unconstitutional fraud on the legislative process; and ordinances do not create enduring rights after lapse unless validated. P.B. Mehta links excessive ordinances with executive dominance.

The Prime Minister

The central figure of the Indian executive. Articles: 74 (Council headed by PM), 75 (appointment, tenure, collective responsibility), 78 (PM–President communication). B.R. Ambedkar noted that if any Indian functionary is to be compared to the U.S. President, it is the Prime Minister, not the President.

The PM is the “keystone of the arch” of parliamentary government.

Walter Bagehot

Roles: head of government, leader of the Council of Ministers, chief adviser to the President, leader of the Lok Sabha majority, coordinator of administration, key figure in foreign policy, national political leader. Appointment: the President appoints the person most likely to command a majority; clear majority → the majority-party leader; hung House → limited presidential discretion (coalition letters, support, stability).

Powers & functions

Forms the ministry (resignation/death of the PM dissolves the Council); allocates portfolios — A. Lawrence Lowell compared this to assembling a figure from mismatched blocks; chairs the Cabinet; is the sole link with the President; leads Parliament; advises dissolution (and can discipline MPs because elections are costly and uncertain); leads foreign policy; campaigns often revolve around the PM’s personality.

Evolution of the office

Nehru — strong but accommodative; authority grew after Patel’s death, yet Cabinet collegiality survived. Lal Bahadur Shastri — consensus-oriented, “primus inter pares”. Indira Gandhi — shifted power to the PMO and a “kitchen cabinet”, producing prime-ministerial government. Rajiv Gandhi — continued the style; PMO expanded. Coalition era — V.P. Singh, Chandra Shekhar, United Front, Vajpayee, Manmohan Singh faced constraints; James Manor, D.N. Panandikar and G.K. Mehra note coalition PMs leave less personal imprint. Narendra Modi — single-party majority revived strong leadership; the PMO became highly central. K.T. Shah warned against excessive concentration.

“luna inter stellas minores” — the Prime Minister as “a moon among lesser stars”.

William Harcourt

Council of Ministers & the Cabinet System

Basis: Article 75(3) — the Council is collectively responsible to the Lok Sabha; Article 77(3) — rules for transaction of business. Collective responsibility — the Council acts as one body; ministers defend Cabinet decisions publicly; internal disagreement must not become public opposition; loss of confidence removes the entire ministry.

“A Cabinet is … a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part.”

Walter Bagehot

Three-tier structure (on N. Gopalaswamy Ayyangar‘s recommendations): Cabinet Ministers, Ministers of State, Deputy Ministers. Core features: collective responsibility, PM as “primus inter pares”, political homogeneity, secrecy of deliberations, accountability to the Lok Sabha. Evolution: Nehru’s interim government (1946) prepared Cabinet rule; collegiality under Nehru; consensus under Shastri; weakened under Indira Gandhi; participatory but factional under Morarji’s Janata; coalition quotas later diluted homogeneity; under Manmohan Singh the NAC (chaired by Sonia Gandhi) and GoMs/E-GoMs reduced Cabinet centrality; Modi dissolved the NAC and GoMs in 2014, revived GoMs/E-GoMs in December 2020.

91st Constitutional Amendment, 2003 — Union Council (incl. PM) capped at 15% of Lok Sabha strength; State Council (incl. CM) at 15% of Assembly strength; minimum 12 in smaller States; a 10% limit for Delhi/J&K-type assemblies. Parliamentary Secretaries were used by States to bypass these caps with minister-like perks; the Supreme Court struck down Assam’s law (July 2017) and the Himachal Pradesh High Court restrained six Parliamentary Secretaries (January 2024). They must not evade the 91st-Amendment caps.

The Prime Minister’s Office

Earlier the Prime Minister’s Secretariat, renamed PMO during the Morarji Desai ministry in 1977. It gives secretarial assistance to the PM — politically headed by the PM, administratively by the Principal Secretary; extra-constitutional but recognised under the Allocation of Business Rules. Functions: liaison with ministers, President, Governors, CMs and foreign dignitaries; public grievances; policy coordination; appointments advice; defence/security briefings; foreign-policy assistance; NITI Aayog support; files needing PM approval; think-tank role.

Evolution: modest under Nehru; strengthened under Shastri; a decision-making centre under Indira Gandhi (P.N. Haksar-type officers); lower profile under Janata; expanded under Rajiv Gandhi; coordinated reform under Narasimha Rao; strong under Vajpayee with the NSA; reduced monopoly under Manmohan Singh’s coalition and NAC; strong again under Modi (Nripendra Misra, P.K. Mishra, Ajit Doval).

Smita Gupta — the PMO became especially strong under a single-party mandate. Christophe Jaffrelot — increasing centralisation. Suhas Palshikar — executive control over bureaucracy. Harsh V. Pant and Sanjaya Baru — politicisation of bureaucracy and “Durbarisation” of governance.

Concerns: weakens the Cabinet Secretariat; reduces ministerial autonomy; creates a parallel Cabinet; limits collective responsibility; centralises appointments; shapes public narrative; may weaken federal consultation. Theory: Weber‘s rational-legal authority (efficiency); Foucault‘s governmentality (control over administration and discourse); Arendt‘s plurality (warning against concentration); Gramsci‘s hegemony (shaping the national narrative).

Bureaucracy & the Tilt towards the Executive

Bureaucracy

Grew from the Indian Civil Service; Sardar Vallabhbhai Patel ensured continuity through the IAS — unity, administrative continuity, constitutional order. Max Weber‘s principles shaped it: open competition, hierarchy, permanence, rule-based authority. Critique (Nehru, Chakrabarty, Bhattacharya): conservative, regulatory, law-and-order-oriented, poor developmental expertise, paternalistic, politicised, corruption, over-expansion, weak citizen orientation; Paul R. Brass, Rudolph & Rudolph and others highlight delivery limits. Reform: Rajiv Gandhi said the “paternalistic model” had outlived its utility; the Fifth Pay Commission (1997) urged downsizing, transparency, contractual appointments, RTI and Citizens’ Charters; the Second ARC under M. Veerappa Moily sought to recalibrate it for developmental governance.

Tilt towards the executive

Growing dominance of the executive over the legislature and other institutions. Some overlap is natural; the danger is when executive control weakens Parliament, committees, Cabinet, opposition, bureaucracy, autonomous bodies and the judiciary. Reasons: strong single-party majority, personality-centred leadership, PMO centralisation, weak internal party democracy, the party whip, frequent ordinances, the Money-Bill route, reduced debate, weak committee referrals, executive control of the legislative agenda.

Vernon Hewitt and Shirin Rai — committee scrutiny remains weak under government control. Arvind Kurian Abraham — responsible government cannot work if Parliament is dysfunctional.

“A crisis of executive accountability is a crisis of holding the ruling party to account.”

Khaitan

Justice A.P. Shah warned India may move towards an “elected autocracy”. Counter-arguments — checks still operate: the 2008 confidence vote on the civil nuclear deal; the JPC on the stock scam; ministerial resignations in the 1990s; judicial cancellation of coal-block allocations; committees on Rafale; and judicial review of Money-Bill certification by Justice D.Y. Chandrachud and Justice Ashok Bhushan. Indian separation of powers is negotiated, not rigid; the parliamentary form is part of the basic structure; executive strength aids governance, but unchecked dominance weakens constitutional democracy.