In a federal  <constitutional division of power b/w centre and states> parliamentary democracy <real power vests in council of ministers which is accountable to Lower House i.e Lok Sabha> which is India, President and Governor are only ceremonial heads of state, real power lies with elected govt headed by PM and CM. President and governors have to act in accordance with the aid and advice of the council of ministers.

So, are they mere rubber stamps? Do they have any discretionary powers? What’s the nature of that discretionary power?

Art 74 and art 163 basically states that council of minister will aid and advice president and governor. In its various judgments supreme court interpreted that they have to act only upon and in accordance with the aid and advice of CoM, save in a few well known exceptional circumstances.

The infamous 42nd amendment clarified this position and added that president shall act in accordance with aid and advice which was diluted by 44th amendment so that president can return back advice for reconsideration after which advice shall be binding. No changes were made wrt governor.

So, it’s clear by constitution (for president) as well as supreme court judgment (governor) that only in exceptional circumstances can they act as per their own discretion.

Rule of thumb is, a situation where the CoM is not in a position to tender unbiased or impartial advice to the president / governor can they use their own discretion.

Situation in which discretion can be used?

1. When no party has clear majority– Obviously caretaker govt would tend to advice president or governor to call it’s candidate for govt formation,, they have to as per their discretion
2. When lower house has lost confidence in the govt– Obviously govt would not ask for dissolution, discretion has to be used

But the real power comes from the fact that there is no time limit specified within the constitution within which president/ governor have to give assent to the bill. They may simply decide to sit on the bill and do nothing (pocket veto).

In the case of governor there is more scope for discretion-

1. For bills– governor can reserve bills for consideration of president. Obviously no govt will ask it’s bill to be reserved, discretion has to be applied.
2. Recommendation of president’s rule-Again no govt would advise imposition of presidential rule.

This reconsideration of bills become sore point b/w governor and govt <against the federal spirit; president i.e union CoM taking decisions on state bills; governor is not even elected>

Let’s compare president and governor

State Bills reserved for President’s consideration under the Constitution may be classified as follows:—

I. Bills which must be reserved for President’s consideration

1. bills derogating the powers of the High Court (art 200)
2. imposition of taxes on water or electricity in certain cases (Article 288)
3. during a Financial Emergency (art 360)

II. Bills which may be reserved for President’s consideration and assent for specific purposes

a). To secure immunity from operation of Articles 14 and 19. These are Bills for

1. acquisition of estates, etc.  (Article 31A(I (b))
2. giving effect to Directive Principles of State Policy (Article 31C).

(b) A Bill relating to a subject enumerated in the Concurrent List, to ensure operation of its provisions despite their repugnancy to a Union law or an existing law, by securing President’s assent in terms of Article 254(2). <for instance Rajsthan govt took presidential consent for it’s labour law which violated union legislation>

(c) Legislation imposing restrictions on trade and commerce requiring Presidential sanction under the

III. Bills which may not specifically fall under any of the above categories yet may be reserved by the Governor for President’s consideration under Article 200. 

They are reserved if the bill is deemed to be against broader national interest

But what if even 2nd advice of CoM which enjoys the confidence of house is unconstitutional and thus comes in conflict with the oath of president i.e to preserve, protect and defend the constitution?

Well, there’s no precedence. Supreme court will have to take the call if in very exceptional circumstances, president can overrule the governor.

Appendix-

The presidential election and removal

Presidential election -indirect election

Method – proportional representation by means of single transferable vote

Electoral college – All the elected members of parliament plus elected members of the legislative assembly of States and UT of Puducherry and NCT.

Value of vote of an MLA = total population of state/total elected members in LA ×1000

Value of vote of an MP= total value of votes of all MLAs of all states / total elected members of parliament

Note members of the legislative council, nominated members of Legislative assembly,  Lok Sabha, Rajya Sabha does not participate <simple, how can those whom he nominates participate in his own election>

Value of all the states plus UT votes = value of all

Contrast this with the election of Vice President in which all members of parliament (nominated as well as elected) participate but members of state assemble do not.

Removal of the President– Impeachment, 2/3rd (absolute 2/3rd not present and voting) of both the houses vote for his removal.

Parliamentary v/s presidential system

In parliamentary system (India), council of minister is part of legislature<all ministers come from either LS or RS>. PM is head of govt while president is head of state.

In presidential system, President is the head of state as well as head of govt. He is not part of legislature. He chooses his own cabinet and cabinet ministers can not be part of legislature. Recall John Kerry had to resign from Senate when he was appointed secretary of state.

It’s time for attempting some previous years IAS questions

#1. Consider the following statements:

1. 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.
2. All executive actions of the Government of India shall be expressed to be taken in the name of the Prime Minister.
Which of the statements given above is / are correct?

a. 1 only
b. 2 only
c. Both 1 and 2
d. Neither 1 nor 2

#2. Which of the following are the discretionary powers given to the Governor of a State?

1. Sending a report to the President of India for imposing the President’s rule
2. Appointing the Ministers
3. Reserving certain bills passed by the State Legislature for consideration of the President of India
4. Making the rules to conduct the business of the State Government
Select the correct answer using the code given below.

a. 1 and 2 only
b. 1 and 3 only.
c. 2, 3 and 4 only.
d. 1, 2, 3 and 4

#3. In the context of India, which of the following principles is/are implied institutionally in the parliamentary government?

1. Members of the Cabinet are Members of the Parliament.
2. Ministers hold the office till they enjoy confidence in the Parliament.
3. Cabinet is headed by the Head of the State.
Select the correct answer using the codes given below.

a. 1 and 2 only
b. 3 only
c. 2 and 3 only
d. 1, 2 and 3

#5. Which one of the following statements is correct?

a. In India, the same person cannot be appointed as Governor for two or more States at the same time
b. The Judges of the High Court of the States in India are appointed by the Governor of the State just as the Judges of the Supreme Court are appointed by the President
c. No procedure has been laid down in the Constitution of India for the removal of a Governor from his/her post
d. In the case of a Union Territory having a legislative setup, the Chief Minister is appointed by the Lt. Governor on the basis of majority support

#5. Consider the following statements:
1. The Executive Power of the union of India is vested in the Prime Minister.
2. The Prime Minister is the ex officio Chairman of the Civil Services Board.
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

#6. There is a Parliamentary System of Government in India because the

• (a) Lok Sabha is elected directly by the people
• (b) Parliament can amend the constitution
• (c) Rajya Sabha cannot be dissolved
• (d) Council of Ministers is responsible to the Lok Sabha
  

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