Whether the President of India is bound to accept the advice given by the care-taker government

The author discusses whether the President of India is bound to accept the advice given by care-taker government, it further discusses the related Constitutional provisions and the case laws.

Evolution of Care-taker Government

Due to the defeat of Italy and Germany in World War II in 1945, the leader of the British Conservative Party, Sir Winston Churchill, and the leaders of the British Labour Party, Clement Attlee and Sir Archibald Sinclair formed in the wartime alliance, until Japan won. It is recommended to continue but neither party agreed for the care-taker government.

Churchill, under pressure from various factions to take advantage of the pressure of quick elections to take advantage of his status as a winning man, has resigned as prime minister. When the war alliance ended in May 1945, the king invited Churchill to form a government. The government, officially called the national government, is composed of a majority of Conservative Party members. It is informal and is called the Provisional Ministry without reference to the British Constitution.

There is no mention of the caretaker government in the Indian Constitution or even the Congress Constitution. However, some rules and court decisions are different from prohibited items. “Care Taker Government” is a concept of Westminster parliamentary system since Churchill’s time.

It is practiced in all parliamentary democracies in which the executive government is composed of a majority of the elected House of Representatives. Thecaretakergovernment can be broadly described as interfering with the government until the outcome of the event.

The functioning of a care-taker government

  1. A caretaker government shall:

• Perform this function to solve daily problems required to run government operations.

• Help the committee conduct elections in accordance with the law.

• Routine, non-controversial and urgent activities limited to the public interest can be revoked by the future government elected after the general election.

• Fair to everyone and political parties.

  • The caretaker government shall not:

• Make major policy decisions, except for urgent matters.

• Make decisions or policies that may affect or prevent elected governments from exercising power in the future.

• Make major contracts or promises that are not in the public interest.

• Except in special circumstances, participate in major international negotiations with foreign countries or international organizations, or sign or approve internationally binding documents.

• Promotion or major appointment of civil servants, but appointments in the public interest or short-term appointments.

• Unless deemed appropriate, mobilize civil servants after committee approval. with

• Do or attempt to influence elections, or influence or detriment free and fair elections in any way.

  • Providing statements of assets and liabilities: The Prime Minister, Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form B and the Commission shall publish the statement of assets and liabilities in the official Gazette

Alternative systems

Many countries, including the United Kingdom (without constitution), use specific rules because the transitional government can use multiple methods to create a framework to follow.

In the UK, these rules are “a series of actions accepted by people participating in binding rules or government agencies.”

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However, even in constitutional countries, the treaty signed with the transitional government will usually consolidate its temporary status, ensure that the interim cabinet has clear powers and follows some basic principles.

Another option for establishing temporary administrative rules and restrictions is to develop a code of conduct for this purpose.

For example, India follows the rules set by the election commission. It sets guidelines for all officials who continue to control power between the two elected governments.

The third and most sensible option is to ensure that election managers have appropriate guidelines to ensure that they have a series of appropriate guidelines to help them complete their work without exercising power over the elected government. Yes through.

Opening the door by not setting temporarily set parameters will allow the country to spend time financially when starting the interim government’s decision-making and then canceling the decision by questioning the court.

In a system with frequent coalition governments, an interim government may be temporarily established and negotiated to form a new coalition. This usually happens after an election, when there is no clear winner, or when a coalition government collapses and a new coalition government must be negotiated.

In this case, it is expected that the Caretaker government will deal with day-to-day issues and prepare budgets for discussion, but make decisions with long-term effects or propose controversial bills. It is not expected to happen. If he dissolves an elected house on the recommendation of a leader with an undisputed majority and is appointed to a temporary position, his decision-making power is unlimited.

However, after dissolving the parliament and issuing an election notice, the government can act as the actual gatekeeper under the Code of Conduct. This role continues until the election results are announced, or in the event of a change of government, the new government officially takes office.

Some Exceptional circumstances when the President can act independently under the Constitution.

Article 74 clearly uses the word “shall”. To a large extent, the support and suggestions for the existence and the support and suggestions for the council are crucial. In some cases, the President of India can use his own judgment instead of following the recommendations of the Council of Ministers. President has the Power of dissolution exercised as a discretionary power.

Article 85(2)(b) provides the President with the power to dissolve the house of people at any time, prior to the expiry of its usual term provided in article 83(2) .

The prime minister can suggest that the president dissolve the house. The President can ask the Security Council to review it, but he cannot refuse to impose the Prime Minister. This is necessary due to the Prime Minister’s suggestion. However, the President will surely act on the Prime Minister’s recommendation. He can submit a house split proposal to see if the house agrees to split the house, or whether it should continue to break up with other leaders without breaking up.. If he admits that he thinks he has no choice but to dissolve, he will definitely accept the dissolution of the prime minister Mansion’s recommendation.

The President disbanded power for the first time after the 42nd Amendment came into effect on January 19, 1997, when the President disbanded Lok Sabha for more than a year until his term expired. March 1976

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The Prime Minister’s proposal came from the country’s response to the arrest of political leaders in an emergency.The president can refuse to call for the dissolution of the prime minister, mainly because he foresaw the danger of democracy. Necessity under the constitution to act in accordance with the advice of some other authority.

In these cases, the opinion and judgment of the President are usually required and not bound by the recommendations of the Council of Ministers. However, he was bound by the recommendations of other authorities. For example, article 103(2) of the Constitution uses the word “shall”. Therefore, the President should be detained to act on the recommendation of the Election Commission. The “should” in this article will cover the “should” in section 74. This is an exception to the Constitution itself.

The Constitution stipulates that the President shall consult with the Chief Justice of India in accordance with article 217(3)  , to determine the age of judges of the High Court. Nothing in the article binds the Chief Justice’s suggestions. But in the game between Samschatin and Punjab, Jayer Justice was the opposite. He believes that the last sentence of this delicate matter must belong to the Supreme Court of India.

Therefore, it turns out that the President does not necessarily have to act under the guidance of the Council of Ministers, because the Constitution itself provides for certain other institutions with which the President can negotiate under certain circumstances. Proclamation of emergency and failure of constitutional machinery in a state

If the president uses such a powerful force as the suspension of state constitutional government under the recommendation of his council, it will undermine the federal nature of the Indian constitution, especially the government of the government. The accused country is composed of political parties other than those of the Ministry of Labor.

However, State of Rajasthan v. Union of India[1]  , upholds a contrary view by silencing this contention by the importation of ‘shall’ in article 74(1).

If the President is satisfied that there is a threat to national security, he can issue a Presidential Decree (issued under Article 352) under Article 352 or Article 356. Or, there are good reasons to believe that the state’s constitutional mechanism has failed (because of the declaration under Article 356). The question is whether this “satisfaction” of the president is sufficient and reasonable. Based on the reports and evidence submitted to the President, this satisfaction must be objective. In any case, the Prime Minister’s advice is always available, and it is illegal for the President to act at his discretion. There are enough precedents and laws to discuss both sides of the case, but the general position is to detain the president on the advice of the minister.

In view of all the above “exceptions”, we can infer that the law allows the president to act independently under the constitution. Does he have a problem? In fact, unless the prime minister is appointed, the president will never make any decisions without consulting his council. However, the President always seeks guidance and advice from some authorities. The fact is that it is completely impossible to manage more than one billion countries alone without the guidance of other competent organizations.

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However, with a few exceptions, if the President of India has to act only on the recommendations of the Council of Ministers, the question is, what is the reason for the President to replace the President? It happens naturally. Council of Ministers? The reason for this is the same as in England. The 42nd Amendment clearly states that the Indian constitutional president and the British monarch are the same constitutional ruler.

The government powers granted to the Queen by law are exercised in accordance with the laws, customs and conventions of the “Convention”, and are exercised by the Queen or the Minister on the advice of the Minister.


In a well-written constitution, the president has clear rules to bind the minister’s recommendations. “There is no written requirement to the contrary, the president cannot and cannot act on the advice of the minister.”

Therefore, the Indian Constitution does not contain details about this “caretaker” government. According to the Constitution;

1. When any government is dissolved, a new government must be formed within 6 months from the date of dissolution.

2. The President of India can take over control of the state until a new government is formed.

However, due to its ease of management, the president and governor have repeatedly agreed to continue to dissolve the same government in the name of the “Kalethucker government” until a new government is established. Please note that this is only an informal written agreement. It has all the powers of a real government, no less than a real government.

However, in 2002, the then President of India sought instructions from the Supreme Court of India’s on this matter. According to the apex court;

1. The Indian Constitution does not clearly mention who must rule in case of invalidity, so the “care-taker” government can continue to govern with the permission of the Governor and the President.

2. The “care-taker” government has all the powers of the entity government. However, unless an emergency or natural disaster occurs, it should be limited to general management and the current state of the country. These governments must stop announcing new projects, plans, recruitment and appointments.

3. The election in India is to prevent the “care-taker” government from influencing people’s special advantages through its decisions, which is ultimately reflected in the vote to form a new government. The committee must hold elections as soon as possible. Complete the entire process and pave the way for the formation of a new government.

Hence a care-taker government does not enjoy the confidence of Lok Sabha and hence it is not expected to take major decisions but only to make the day-to-day administrative decisions. It is for the President to decide the day-to-day decisions.

Therefore, the Care-taker Government does not like Lok sabha’s confidence and is expected to make daily administrative decisions rather than major decisions. The president is authorised to decides daily decisions.

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[1] 1977 AIR 1361, 1978 SCR (1) 1