Whether the aid and advice theory has any relevance in the Constitution of India?

The author in this article discusses that aid and advice theory plays a very significant role by enabling the Parliament to hold the legislative power with the President as the executive.

On 6th December 1946, the Constituent Assembly of India was elected to draft the Constitution of India. The President of the assembly was Shri Rajendra Prasad and Dr. B.R. Ambedkar chaired the Drafting Committee. The Constitution of India adopted the parliamentary form of government, similar to that of the British government. Although it has adopted many of its features from the British Constitution, when it comes to powers and functions of the President (i.e. the British Crown there), there are trivial differences. The Constitution of India limits the powers of the President by making him/her merely the nominal head of the Union, while the real power lies with the Council of Ministers with the Prime Minister. Similarly, at the state level, the Governor is the Head of the state, while the Chief Minister along with the state Council of Minister head of the state government holding the actual law-making powers.  Let us discuss the relevance of aid and advice theory

Article 74 of the Constitution of India

Article 74 in the Constitution of India establishes the “aid and advice” theory. The article provides,

“(1) 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.

[Provided 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.]

 (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

According to this article, the President must act according to the aid and advice of the Council of Minister with the Prime Minister. The framers of the Indian Constitution did not initially include the clarifications on whether the President must abide by the aid and advice of the Council of Ministers and whether the President may require the Council of Ministers to reconsider such advice. The Forty-second Amendment of the Constitution of India, which came into effect from 3rd January 1977, amended article 74(1), by clarifying that the President shall exercise his functions following the advice from the Council of Ministers. Later, the Forty-Fourth amendment of the Constitution of India, which came into effect from 20th July 1979, further amended the article by adding that the President may require the Council of Ministers to reconsider their advice, but if the Council of Ministers sends back the same advice, the President has no choice but to give his assent to the decision.

Apart from these amendments to clarify the intent behind this article, the Constituent Assembly Debates also play a significant role in doing so too. Article 61 of the Draft Constitution 1948 which discussed on 30th December 1948, gives the debate summary for article 74 of the Indian Constitution.[1] Dr B.R. Ambedkar clarified the intent behind the article by stating, “The President is the Head of 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 of 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”.[2] He further stated that “aid and advice’ were sufficient to bind the President to seek and abide by the advice of his Ministers. Mr Alladi Krishnaswami Ayyar, a member of the Drafting Committee, supported Ambedkar by stating, “If the President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of the violation of the Constitution and he will even be 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”.[3] Further supporting their statements, the first Attorney General of India, Shri M.C. Setalvad stated, “The President was under our Constitution which had borrowed the British parliamentary form of Government making the Cabinet collectively responsible to the Lok Sabha as strict constitution head. Having regard to the meaning of the expression ‘aid and advise’ in British Constitutional law and practice it meant that the President was bound to act in accordance with the aid and advice tendered to him by the Council of Ministers. Once this theory was accepted it would govern all Presidential action except, perhaps, a few situations in which the Council of Ministers would not be capable of advising him by reason.”[4]

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This way the clarity of the article is provided along with its importance and relevance in the Constitution of India. The aid and advice theory plays a very significant role by enabling the Parliament to hold the legislative power with the President as the executive. If not for this article it would have confused has to who held the binding law-making powers. The aid and advice theory is not limited to the Union government only, it has extended itself to the state governments of the country as well.

Article 163 of the Constitution of India w.r.t aid and advice theory

Article 163 in the Constitution of India provides,

“(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. 

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

Article 143 of the Draft Constitution 1948 debated on 1st June 1949, created a Council of Ministers to aid and advise the Governor. Concerning the intent behind this article, a member of the drafting committee clarified that the Governor would be bound to act on the advice of the Council of Ministers except on those matters which explicitly came under his discretionary powers, which he/she can use without the aid and advice of the Council of Ministers.[5]  But the occasions to exercise such discretionary powers are few for the Governor. The Bench of Justices B.S. Chauhan and Kalifulla while endorsing the appointment of Justice R.A. Mehta as Gujarat Lokayukta by Governor Kamla Beniwal, stated, “ It is evident that the Governor enjoys complete immunity under article 361(1) and that under this, his/her actions cannot be challenged for the reason that he/she acts only upon the aid and advice of the Council of Ministers. If this was not the case, democracy itself would be in peril. The Governor is not answerable to either the House of the State or Parliament or even to the Council of Minister, and his/her acts cannot be subject to judicial review. In such a situation, unless he/she acts upon the aid and advice of the Council of Ministers, he/she will become powerful, and this is an anti-thesis to the concept of democracy.”[6]

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In this article as well the aid and advice theory is applied to guide the powers and functions of the governor and the Council of Ministers with the Chief Minister. To have a clear distinction of powers, functions and responsibilities, of the Governor from the Council of Ministers the aid and advice theory is very relevant as provided. The Governor performs various functions with the aid and advice of the Council of Ministers with the Chief Minister, which are binding upon him/her, such as, he/she allocates the various subjects amongst particular ministers, appoints the Council of Ministers for the State, the Advocate general and members of the State Public Service Commission, issues ordinances, and appoints Vice-Chancellors or nominating members to the various bodies of University. The various functions performed by the governor is with the aid and advice of the Council of Ministers, therefore showing the relevance of the aid and advice theory in the Indian Constitution.

Judicial Precedents relating to aid and advice theory

There were judicial judgements as well to confirm the intent behind the aid and advice theory in the Constitution of India along with strengthening its relevance:

In the case of N.R. Rao v. Smt. Indira Gandhi[7], the court decided that due to mandatory nature of article 74(1), where there has to be Council of Ministers to aid and advice President and without such advice, President cannot carry out his functions. Therefore, even if the Lok Sabha is dissolved, the Council of Ministers continue to aid and advice the President. Similarly, if the state legislative assemblies dissolve, article 163(1) prevails.

In the case of Ram Jawaya Kapur v. the State of Punjab[8], the court stated, “The condition precedent for the executive to exercise its primary responsibility of formulating governmental policy and transmitting it into law is that the executive retains the confidence of the legislative branch of the State. The executive is subject to the control of the legislature. The President is the constitutional head of the executive. The real executive powers are vested in the Minister of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the president in the exercise of his functions.”

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Conclusion

As seen in the above statutes and judgements, the aid and advice theory borrowed from the British Constitution plays a very significant role in guiding the President of India and the Governors of the Indian states in performing their functions without violating anything that is against the basic goal that the Indian Constitution.  It further clarifies the distinctions between who has to perform what and who is empowered to do what function.

According to the British Oxford Dictionary, the word ‘aid’ is defined as help, typically of a practical nature, and the word advice is defined as guidance of recommendation offered about prudent future action. This terms although seem as suggestive are binding according to the Indian Constitution. Without this theory in the constitution, there would not have been a clear distinction in the powers and functions of the members of the parliament and the President, similarly, between the governor and the state legislative members. In reality, the President and the Governor have very limited powers although they are given few discretionary powers. But the aid and advice theory is seen to be strictly followed by during the law-making procedure.

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[1]https://www.constitutionofindia.net/constitution_of_india/87/articles/Article%2074

[2] Vol. 12, Henry W. Holmes Jr., Powers of President: Myth or Reality, 369 (1970)

[3] Ibid.

[4] Shamsher Singh & Anr v. State of Punjab 1975 SCR (1) 814

[5] https://www.constitutionofindia.net/constitution_of_india/the_states/articles/Article%20163

[6] J. Venkatesan, Governor bound to act on Cabinet’s advice (January 2, 2013, 23:29 IST), https://www.thehindu.com/news/national/governor-bound-to-act-on-cabinets-advice/article4266103.ece

[7] AIR 1971 S.C. 1002 (Supreme Court of India)

[8]AIR 1955 SC 549