The Attorney-General for India

76. Attorney-General for India:

(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.

(2)It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) In the performance of his duties the Attorney-General shall have the right of audience in all, courts in the territory of India.

(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.

COMMENTS

The Attorney-General is the Chief Law Officer of the Government. He has the first right of audience in all courts in India. He shall give legal advice to the Government of India on such matters as may be referred to him by the President. However, the Attorney General shall not advise or hold a brief against the Government of India. He is not barred from private practice except that he cannot advise or hold brief against the Government of India.

77. Conduct of Business of the Government India:

(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.

(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.

COMMENTS

When executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the President in whom the executive power of the Union is vested. However, immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77 of the Constitution. Accordingly, an action against a Minister in the court for his illegal act could not be denied on the basis of the Article 77(1). Thus, it does not prevent courts from inquiring into the correctness of recitals contained in an order or instrument. Nor does it prevent a person from challenging orders of Government as being bad or invalid or ultra-vires.

78. Duties of Prime Minister to inform President, etc.:

It shall be the duty of the Prime Minister:

(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;

(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for;

(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

COMMENTS

The President is constitutionally entitled to criticize the conduct of the executive. Therefore, the Prime Minister is required to meet him from time to time and inform him about the Cabinet decisions, policy decisions and administrative functions. The President may also send back the decision taken by a single Minister to the Cabinet foe reconsideration. The President may call for any other information relating to administration or legislation which will be furnished to him.

Position and Powers of the President of India

The President of India like the King or Queen is called the figure head or titular or ceremonial head. But it is better to call him the Constitutional head as per debate in the Constituent Assembly. The position of the President in the scheme of our Constitution is one of the highest honours, dignity and representation. He is the Head of the State. The Supreme Court has rightly summarized his position.

“The President has been made a formal or Constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet headed by the Prime Minister. In the Indian Constitution, we have the same system of Parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the Legislature is like the British Cabinet a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part.”

Indira Government put the question beyond political controversy, by amending the Constitution itself through Constitution 42nd Amendment Act, 1976. Later on, by 44th Amendment, a proviso was added that the President can refer any matter to the Council of Ministers back for reconsideration. But if the Council of Ministers reaffirms their previous advice, the President shall be bound to act according to that advice. The President has great power to exercise his discretion in the matter of choosing new Prime Minister specially in cases if no single party has the majority in the House of People and no Council of Ministers exists, on the sudden death of the Prime Minister. He can dismiss the Prime Minister or the Council of Ministers when he is defeated in no Confidence Vote on the floor of the Parliament.

He has wide powers to appoint protem Speaker of Lok Sabha and an acting Chairman of Rajya Sabha. He can at times withhold his assent. When during the Ninth Lok Sabha an amendment proposing pension to Members of Parliament after only a year’s tenure was allowed to be introduced and passed without President’s recommendation, President Venkataraman did not give his assent to the bill.

The President can withhold his assent to promulgate ordinances when the Parliament is not in session or delay it indefinitely, putting the Council of Ministers in an awkward situation. In his power to grant pardons, some of the Presidents have effectively exercised their powers. Similarly, in few matters of appointment of Supreme Court judges of doubtful integrity, one President never cleared the proposal and the proposal did not see the light of the day. None can question, time taken by the President to take a decision. Twice during his tenure, President Narayanan returned two proposals of imposition of President’s rule in U.P. and Bihar. His ‘satisfaction’ stipulated under Article 356 is one exclusive prerogative. It is debatable whether in view of Article 74(2), what transpires between the President and his Ministers should become matters of public debate and controversy in the media.

There is gradual change of perception among the public to have more confidence in the highest post of the President as successive Prime Minister had become more the leader of their political parties rather than statesman for the country. The occasions are being noticed less and lesser when the Prime Minister places the nation first over the interest of his party. Secondly, most of the primacy in India and, therefore, the President of India has to discharge many of his protocol duties with his counterpart in other countries. In fact, the President is now visiting many countries to witness signing of bilateral and international treaties along with top executives of the Union Government as the effective head. Thirdly, he is the real head for proclamation of Emergency and declaration of the President’s rule in the States.

The President of India is not a hereditary head State like his counterpart in England, Japan, Netherlands and many other countries. In fact, he is more directly elected by the people of India should have the Presidential form of government in view of delay in decision-making through Parliamentary procedure, non-acceptance of the primacy of the post of Prime Minister by the States having government by the opposition parties and thirdly instability at Union level because of various constituents of coalition governments blackmailing the Prime minister to stay in the majority. As a result, corruption and unhealthy decision-making are resulting at the Centre. The Republic cannot afford to have a weak and unstable head of Central Government. The Parliament has become a forum to fight political battle rather than making consensus on issues of national development.

If the Prime Minister has majority in the House of People, he may not have the majority in the Council of States. As a result, he cannot implement his far-reaching reforms without the concurrence of both the Houses of the Parliament. The Constitution Commission (NCRWC) felt that instability of the elected governments was in part attributable to unprincipled opportunities, political realignments from time to time and defections and re-defections.

However, healthy convention has been developing in India, whereas the President dares advice publicly his Government on many issues recently on intolerance or communal discord surfaced during the year 2015. The Secretary of the President or his Secretariat is being associated more day by day before the seal of final decision is put by the President so that the decision may not only appear to be the decision of the President. It may be with application of his mind at least in very important decisions of national importance which are to be kept beyond the pale of political interest and bickering. The better co-ordination between the Prime Minister and the President can remove misgivings in the minds of people and they will then devote more sincerely and will giving their hundred per cent to nation which India requires at the moment to preserve its integrity and place herself in the comity of the developed nations at the international level. Thus, the debate for the presidential system of the Government loses its place in India and the existing Constitutional scheme will be implemented with new vigour and will be supported by all and sundry in India in letter and spirit.

However, India cannot afford the Presidential system as such because in that case, the Parliamentary democracy will lose its brand and there is every likelihood that the President may be more totalitarian than what the country experienced with Mrs. Indira Gandhi as Prime Minister during Emergency.