Whether the “aid and advice” theory will apply while exercising power under Art. 111 of the Constitution?

The article leads to a very critical discussion about the binding and unjustified existence of cabinet guidance. The binding of the Cabinet Council advice on the President has three approaches.

Parliamentary form of government has been adopted by India where the President is the head of the Executive. Although the position of the President is similar to the British monarch, however, it varies dramatically when in the context of the constitutional analysis of the President’s powers and functions. Article 53(1) of the Indian Constitution defines the Executive Power of the Union which vests with the President, that “it shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.” Let us discuss the aid and advice theory.

 Nevertheless, if President is empowered to wield this influence in compliance with his sweet wishes, India will soon transform into the dictatorship of President. So, to avert this, Article 74(1) of the Indian Constitution provides that “there shall be Council of Ministers to aid and advice the President on his executive powers and such advice except in some cases where President’s discretion to be exercised, has to be binding on the president.”[1]

Doctrine of Aid and Advice

As far as the text of the Constitution is concerned, there seems to be no provision obliging the President to take action in accordance with ministerial advice. The fundamental meaning of the Constitution must be either gleaned or inferred from the words spoken. A closer review indicates that justification can be found for the position of the President in relation to the Constitution’s words. There are two ways through which the President exercises his executive powers: 

  • By him directly
  • Through officers subordinate to him.

In accordance with Article 53(1), the executive authority shall be read solely with the President, while the ministers shall exercise power only as subordinate officers. Therefore, he may act without the advice of his ministers if he exercises control by a direct process. Article 74 is another significant article on Presidential powers which state that: Council of Ministers to aid and advice President;

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

The article leads to a very critical discussion about the binding and unjustified existence of cabinet guidance. The binding of the Cabinet Council advice on the President has three approaches. 

President being bound by Ministerial advice: Scholars who believe that the President is bound by ministerial advice to concede that the wording does not expressly obligate the President to follow his Ministers advice. They contend that the terms “aid and advice” are developed throughout the Dominion Constitution and used by the English Convention. It does not mean that under the English and the Dominion Convents the President may reject the advice, but that the President shall follow it absolutely. 

Also Read  Juvenile Crimes in India: A concern to the future of the Nation

Dr Ambedkar described the President’s position as provided by the Constitution and stated that “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]

Dr Ambedkar, consequently, in response to the question, whether the rejection of the Council of Ministers advice is identical to violation of the Constitution, stated that there hadn’t been any slightest doubt. He also claimed that “aid and advice” are enough to tie the President on his ministers to follow their advice. Hence, the intent of Article 74(1) is to pen down in writing the principles of responsible government as prevalent in England, which is the Ministerial System.

President not being bound by Ministerial Advice: The opposition argues that there is no provision in the express language stating that the President “must” accept ministerial advice. The phrase “aid and advice” do not imply the acceptance of the advice. However, it’s only the compulsory offer by the ministers. As the Constitution does not imply words such as a mandate is indicated; no words of mandate appear in article 74. The courts are therefore limited to questioning whether and what ministerial advice has been issued according to Article 74(2). Hence, “the validity of an act promulgated by the President without the advice of an expressed provision and the prohibition of judicial involvement buttresses the position that the President is not legally bound by the advice.”[3]

Another interpretation of Article 74(2) is the assumption that the aid and advice bound the President; only chapter one part five of the Indian Constitution, which is only the executive powers, is subject to this obligation. Only two Articles (Articles 74 and 75) refer to the Council of Ministers. At the same time, the President is mentioned in all Chapters in Part Five as well as in many other provisions of the Constitution. The powers and responsibilities of the President are not the only Executives, just like that of Ministerial Council, but they are also legislative, judicial, prerogative and constitutional. It is argued that such additional powers fall beyond the meaning of “aid and advice.” Interpretations of Article 53(1) and 74(1) have judicial expression, and these were observed by the Supreme Court of India in the case of Ram Jawaya Kapur v. State of Punjab[4], “that it was the intent of the Constituent Assembly to base the executive in India on the British model and concluded that, article 74(1) binds the President to follow ministerial advice as under the British system.” One more case is that the Bank Nationalization judgement,[5] which indicates that the President’s issue is still subject to the argument in relation to ministerial advice. Hence, judicial history does not help to interpret this language. That concludes the debate on the legal liability of ministerial advice. 

Also Read  Employees Compensation (Amendment) Act 2017

Applicability of “Aid and Advice” theory while exercising Art. 111 of the Indian Constitution.

Article 111: Assent to Bills

When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom Procedures in Financial Matters”

This is an Executive Function. The Veto Power under this article facilitates that the President can veto any legislation and there is a less possibility to override a veto. The President can accept the bill, declare withholding consent or he can return for reconsideration and necessary amendments. However, if the Parliament, refuses to act according to President’s assent and passes it again with or without any change, when it is presented foe the second time the President must approve the bill and should withhold his assent. Another power vested within the hands of the President is the Supreme Commander of the Defense Forces of the Union.[6]

In some cases, the President’s prior approval is required before any law is to be introduced. For e.g., with prior consent of the President, bill to create a new State or to change the boundaries of the current State or States shall be put before the parliament. Another example is the Money Bill, where the President’s approval is a constitutional necessity.

Before the 42nd Constitutional Amendment, Article 74(1) stated that, “there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions.” There was, however, some confusion as to whether the Council of Ministers’ opinion will be binding on the President. Forty- Second Amendment of the Constitution of India (1976) made it clear that the President shall “act in accordance with such advice.” The said amendment came into effect from 3rd January 1977. However, the 44th Constitutional Amendment added that the President could revert the advice for reconsideration once. However, the President must consider if the Council of Ministers sent the same notice again. 

Article 123 of the Indian Constitution confers the power to impose ordinance, subject to two conditions. Firstly, both the Houses of the Parliament must not be in session and secondly, the chairman must be “satisfied” that there exists a condition which involves the issuance of an ordinance. A precise interpretation of Article 123(1) suggests that the execution of an order is the President’s power. The use of the term “satisfied” obviously demonstrated this. In practice, therefore, the President does not require the Council of Ministers to provide aid and advice in issuing orders. But, in Sardari Lal v.Union of India,[7] the Supreme Court of India communicating through Justice Grover held that “in all places in the Constitution where the term satisfaction is used, it refers to the personal satisfaction of the President on the basis of the material placed before him.” This was overruled in Samsher Singh case[8], where it was held that the president’s satisfaction is not his personal satisfaction.

Also Read  Board of Directors: Strategic Importance of Women Directors

Hence, it can be said that, from the above-mentioned facts and cases, “aid and advice” theory will apply while exercising power under Article 111 of the Constitution of India. If this doctrine is not followed then this would against the concept of Separation of Powers and entails President with absolute powers.

Conclusion

The President’s position is more important when there are uncertainty and no majority. Unless the President is still bound by ministerial advice, the clause that makes him responsible for the preservation and security of the Constitution will be an irregularity because it is rather unjust for a supreme authority such as the President not to be allowed to exercise such power. The only inference is that an element of Art. 74(1) that enables ministerial advice obligatory on the President is merely directory in nature. It is a tradition in Britain that the monarch should rule on the recommendation of the ministers. An effort has been made in India to codify this convention, however, in effect it remains a guideline and does not constitute a constitutionally enforceable order.  It may be concluded that Articles 74 and 75 concerning the membership and standing of the Council of Ministers are worded in a very comprehensive manner. Article 74 explicitly uses the word ‘functions’ because, as the Constitution makes a strong differentiation amongst powers and functions, they cannot be used synonymously. The amendment of 1976 did not change the situation with regard to the use of its own power in the exercise of executive functions. Nevertheless, it is seen that even though the Constitution has provided the President a more significant role, his powers have been limited when it comes to simple facts, and this obviously shows an erroneous interpretation of the Constitution, there is also a variation in the language of the constitutional provisions of article 163 and 74, that allows the governor absolute power, unlike that of the president, who is very ambiguous and subject to judicial interpretations and conventions.[9]

Also read Constitutional Validity of Encounters


[1] Samsher Singh v. State of Punjab, AIR 1974 SC2192.

[2] Council of Ministers: Aid &Advice- it’s Scope & Ambit – iPleaders, https://blog.ipleaders.in/council-of-ministers-aid-advice-its-scope-ambit/#The_doctrine_of_Aid_and_Advice_A_study_of_Article_74 (last visited Jul 21, 2020)

[3] Supra, Note 2

[4] Ram Jawaya Kapur v. State of Punjab, AIR 1955 Sc 549.

[5] Rustom Cavasjee Cooper v. Union of India, 1970 AIR 564.

[6] Dr Syed Asima Refayi, Position of the President and Prime Minister of India.

[7] Sardari Lal v. Union of India, 1971 AIR 1547

[8] Supra, Note 1

[9] Supra, Note 2