The Supreme Court of India.
| Photo Credit: Shashi Shekhar Kashyap
The Supreme Court’s judgment in State of Tamil Nadu v. Governor of Tamil Nadu (2025) lays down the correct constitutional position and is unassailable. However, some people have questioned the judgment. My answer to them is that the Constitution has created a parliamentary democracy.
A parliamentary system
As Dr. B.R. Ambedkar pointed out on November 4, 1948, “The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.” He amplified this position stating, “The American form of Government is called the Presidential system of Government. What the Draft Constitution proposes is the Parliamentary system… Under the Presidential system of America, the President is the Chief head of the Executive. The administration is vested in him. Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the 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 on 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.”
This position stands affirmed in Article 52 of the Constitution which states that “there shall be a President of India” and in Article 153 which states that “there shall be a Governor for each State”. Article 74 provides for “a Council of Ministers with the Prime Minister at the head to aid and advise the President” and Article 163 provides for “a Council of Ministers with the Chief Minister at the head to aid and advise the Governor”.
In 1949, the draft Constitution had proposed to include Schedule IV, which was intended to serve as an Instrument of Instruction. However, this was deleted at the instance of the Drafting Committee. The deletion was protested by the members but justified by T. T. Krishnamachari who said, “It has now been felt that the matter should be left entirely to convention rather than be put into the body of the Constitution as Schedules, in the shape of Instrument of Instructions, and there is a fairly large volume of opinion which favours that idea.” Dr. Ambedkar said, “So far as our Constitution is concerned, there is no functionary created by it who can see that these instruments of Instruction are carried out faithfully by the Governor. Secondly, the discretion which we are going to leave with the Governor under this Constitution is very meagre… He has to act on the advice of the Prime Minister in the matter of the selection of Members of the Cabinet”.
Earlier, while discussing Article 52, the Constituent Assembly rejected the substitution proposed to draft Article 41 (now Article 52) proposed by K.T. Shah to the following effect: “The Chief Executive and Head of the State in the Union of India shall be called the President of India.” Professor Shah justified this by saying that the President represented “sovereignty of the whole people and of the State as a whole.” But Dr. Ambedkar opposed this saying, “Prof. K.T. Shah uses the word ‘Chief Executive and the Head of the State’. I have no doubt… that what he means is to introduce the American presidential form of executive and not the Parliamentary form of executive… contained in this Draft Constitution. If my friend Prof. Shah were to turn to the report of the Union Constitution Committee, he will see that the Drafting Committee has followed the proposals set out in the report of that Committee. The report of that Committee says that while the President is to be the head of the executive, he is to be guided by a Council of Ministers whose advice shall be binding upon him in all actions that he is supposed to take under the power given to him by the Constitution. He is not to be the absolute supreme head… and that is the Parliamentary form of government in the United States… We have not adopted that system.”
The Constitutional Bench in Shamsher Singh v. State of Punjab (1974) amplified this position, holding that the President is “…the Constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers”. This judgment was subsequently followed in another Constitutional Bench judgement in Nabam Rebia v. Deputy Speaker (2016).
A timely reminder
The President and the Governor are bound to exercise their executive power in accordance with the Constitution. Every power is coupled with the duty to exercise it for the intended purpose and within a reasonable period. If this is not done, the Writ Court has the duty to step in and require it to be so exercised.
The President under Article 60 and the Governor under Article 159 are to take constitutional oaths and affirm to the best of their ability to “preserve, protect and defend the Constitution and the law” and “devote” themselves “to the service and well-being of the people of India or the State as the case may be”. How then can the President or the Governor of any State defy the Constitution and act against the will of the people? While President Droupadi Murmu maintains the decorum of the office she holds, some Governors have conducted themselves so poorly as to defile the high constitutional positions they hold. The Supreme Court has therefore given a timely reminder to the President and the Governors to respect and adhere to the Constitution and act in the interest of the people.
Dushyant Dave, Senior Advocate, Supreme Court of India
Published – April 22, 2025 01:05 am IST