Article 74 (2) provides that the question whether any advice was given by the Council of Ministers shall not be questioned in any court of law. Article 75 provides that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister. The Ministers shall hold office during the pleasure of the President.
A purely literal Interpretation of these provisions conveys the impression that the President if so desires can become a dictator. But this interpretation is not in tune with the spirit of the Constitution. In a parliamentary form of Government, the President is a titular head and the real powers are vested with the Council of Ministers.
Ordinarily, it is the function of the executive to execute the law. In the exercise of its executive powers, the government may do any act provided it is not an act assigned by the Constitution to any authority or body or it is not contrary to the provisions of any law or it does not encroach upon or infringe the legal right of an individual.
So, it is the executive branch of the Government, Le., the Council of Ministers which executes the governmental functions in the name of the President. In various cases like Ram Jawaya vs. State of Punjab. AIR 1955 S.C. 544, U.N. Rao vs. Indira Gandhi, AIR 1971 S.C. 1002, Samsher Singh v. State of Punjab, AIR 1974 S.C. 2192 and M/s Bishambhar Dayal Chandra Mohan vs. State of U.P., AIR 1982 S.C. 33, the Supreme Court has held that the President is merely a ceremonial head and the real power lies with the Council of Ministers.
The Constitution (42nd Amendment Act, 1976) has now removed all doubts about the position of President to a greater extent. It has amended Article 74 which makes it obligatory for the President to act in accordance with the advice given by the Council of Ministers. But the Constitution (44th Amendment Act, 1978) has Inserted a proviso to clause (1) of Article 74 according to which the President may require the Council of Ministers to reconsider such advice either generally or otherwise and the President shall act in accordance with such reconsidered advice. This provision recognises the essential rule that the President can advise and guide the Government.
Under our Parliamentary system of Government, the President is the constitutional head of the State while the real power vests In the Council of Ministers. In view of the following provisions the position of the President is clear:
(1) Article 75 (3) provides that the Council of Ministers is collectively responsible to the House of People for the executive functions. How can the Council of Ministers be made responsible for an act which is not performed by it but by the President?
(2) Article 78 (a) provides that it shall be the duty of the Prime Minister to communicate the President on any matter on which a decision has been taken by a Minister………………………
(3) The President is bound by the advice of the Council of Ministers even after dissolution of the House of the People. Even after dissolution of the House, the Council of Ministers remains in office and advises the President in exercise of his powers.