Free Judiciary Notes · TPA Notes
TPA Section.53 Fraudulent transfer
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In Ram Jawaya v. State of Punjab, AIR 1955 SC 549 the Court observed, “Under Article53(1) of our Constitution the executive power of the Union is vested on the President but under Article 74 there is to be a Council of Ministers with the Prime Minister as the Head to aid and advise the President in the exercise of his functions.
The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.
Explaining the position of the President in the Constituent Assembly Dr. Ambedkar said:
“Under the Draft Constitution the President occupies the same position at 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 sealby which the nation’s decisions are made known. He will be generally bound by the advice of the Ministers.
He cannot do anything contrary to their advice nor can do anything without their advice.”
In U.N.Rao v. IndiraGandhi,[35.AIR1971 SC 1002.]
the Supreme Court held that even after the dissolution of the Lok Sabha the Council of Ministers does not cease to hold office.
Article 74 (1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers.
In Shamsher Singh v. State of Punjab,[AIR 1974 SC 2192.]
the Supreme Court held that the President and the Governors are only “constitutional or formal heads.”
They exercise their powers and functions under the Constitution only with the aid and on the advice of the Council of Ministers, “save in spheres where the Governor is required to exercise his functions in his discretion.”
Wherever the Constitution requires the satisfaction of the President or the Governor the satisfaction is not the personal satisfaction of the President or the Governor but the satisfaction is the satisfaction of the Council of Ministers.
AFTERTHE 42ND AMENDMENT ACT, 1976.—
This amendment removes all doubts about the position of the President under the Indian Constitution.
It has amended Article 74of the Constitution which make it clear that the President shall be bound by the advice of the Council of Ministers,
It says, “there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in exercise of his functions act in accordance with such advice.” In view of the Constitution 42nd Amendment the President could not play even the role of an advisor or a guide.
44th Amendment Act, 1978.— This amendment has inserted the following proviso in clause (1) of Article 74: