Case: U.N. R. Rao Vs. Smt. Indira Gandhi

President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of the Constitution. Art. 60 prescribes the oath or affirmation which the President has to take. It reads:"I. A B. do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India." Articles 74 and 75 deal with the council of Ministers. They read thus : "74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. (2) The question whether any, and so what advice was tendered by Ministers to the President shall not be inquired into in any court. 75. (1) 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. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines shall be as specified in the Second Schedule." 8. It will be noticed that Article 74 (1) is mandatory in form. We are unable to agree with the appellant that in the context the word "shall" should be read as "may". Article 52 is mandatory. In other words there shall be a President of India. So is Art. 74 (l). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no Council of Ministers, nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61. 9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office. 10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 1951. 11. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister. 12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 195111. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.