The President must exercise powers according to the Constitution. Art. 53(1) which vests the executive power of the Union in the President provides that the power may be exercised by the President either directly or through officers subordinate to him. For this purpose, Ministers are deemed to be officers subordinate to him.
Article 74(1) provides that there shall be a Council of Ministers with Prime Minister at the head, to aid and advise President in exercise of his functions. Art. 74(2) lays that question whether any, and if so, what advice was tendered by minister to the President shall not be inquired into in any court. Thus, relation between President and Council of Ministers are confidential.
Prior to the 42nd Amendment, there was no clear provision in the Constitution that President was bound by ministerial advice. This amendment amended Art. 74 which makes it clear that President shall be bound by the advice of Council of Ministers.
However, by 44th Amendment, President has been given one chance to send back advice to the Council of Ministers for reconsideration. However, President shall act in accordance with advice tendered after such reconsideration.
In Madhav Rao Scindia v. Union of India, reported in (1971) 3 SCR 9 at page 169, it has been held by a Bench of eleven Judges that:
".... There is no analogy between our President and the British Crown. The President is a creature of the Constitution. He can only act in accordance with the Constitution..."
23. It is submitted that Article 74 of the Constitution, as it stands now, i.e., after 42nd and 44th Constitutional Amendments, the President is bound, in every case, be it so-called constitutional, executive or legislative functions, to act on the advice of the Cabinet.
24. It is submitted that the Constitution casts certain duties upon the President, such as, appointment of Election Commissioners, Judges of the Supreme Court, High Courts, etc., which the President is obliged to perform. The President cannot take a decision contrary to the advice rendered by the Council of Ministers. It has been held in the said Madhav Rao Scindia's case (at page 195) that:
"...The President cannot do indirectly, what the legislature cannot do directly. It is wrong to mistake a duty for a right...."
25. In U.N.R. Rao v. Smt. Indira Gandhi, reported in (1971) Supp SCR 46, a Bench of five Judges of the Supreme Court has held that Article 74(1) is mandatory and the President cannot exercise his powers without the aid and advice of the Council of Ministers, with the Prime Minister at the head. It has been further held that even if the House of the People stands dissolved, such dissolution of the House does not require that the Prime Minister and other Ministers must resign, or cease to hold office, or must be dismissed by the President.
26. The respondent has mentioned that there is no difference between "constitutional functions" and "executive functions" of the President. The source of all powers is the Constitution, which provides that the President shall act on the aid and advice of the Council of Ministers. Even the legislative functions are discharged by the President on the aid and advice of the Council of Ministers. It has been held in R.C. Cooper v. Union of India, (1970) 3 SCR 530 at 559:-
"Under the Constitution, the President being the constitutional head, normally acts in all matters including the promulgation of an Ordinance on the advice of his Council of Ministers. .... The Ordinance is promulgated in the name of the President and, in a constitutional sense on his satisfaction; it is in truth promulgated on the advice of his Council of Ministers and on their satisfaction...."
The respondent, Union of India, has referred to Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441 at 567. A Bench of nine Judges of the Supreme Court has held that thus, it is seen that the President has no discretionary powers as in the case of the Governor even though the discretionary power of the Governor is only a small strip. The President is required to perform his administrative duty under the Constitution, the performance of which requires his formal approval or seal and in respect of which nothing is left to his discretion.
Article 75(1) says that Prime Minister shall be appointed by President and other Ministers shall be appointed by President on the advice of Prime Minister. Art. 75(2) lays that Minister shall hold office during the pleasure of President. Art. 75(3) lays that Council of Ministers shall be collectively responsible to the Lok Sabha.
Collective responsibility implies that Council of Ministers is responsible as a body for the general conduct of the affairs of the government. If a ‘no-confidence motion’ is passed against any one Minister, the entire Council of Ministers must resign.
Clause (1A), added to Art. 75(1) by the Constitution 91st Amendment (2003), provides that the size of the Council of Ministers including the Prime Minister shall not exceed 15 per cent of the total number of the members in the Lok Sabha.