Presidential Aid and Advice

The President formally makes many constitutional appointments, but ordinarily does so on the aid and advice of the Council of Ministers, rather than by personal choice. Article 74 makes ministerial advice binding, while allowing the President to require its reconsideration once.

The constitutional rule

India’s parliamentary system separates the formal appointing authority from the politically responsible executive. Presidential appointment powers must therefore be read together with Article 74, not as independent powers of selection.

• Under Article 74(1), the Council of Ministers, headed by the Prime Minister, aids and advises the President, who must act in accordance with that advice.
• The 42nd Amendment expressly made the advice binding; the 44th Amendment enabled the President to require reconsideration, either generally or otherwise.
• The President must accept the advice tendered after reconsideration; this is not a continuing power to veto an appointment.
• Under Article 75(3), the Council of Ministers is collectively responsible to the Lok Sabha, locating political accountability in the elected government.

Application to appointment powers

A provision stating that an official is appointed by the President identifies the formal appointing authority. It does not, by itself, permit the President to select that official independently of ministerial advice.

• Under Article 75(1), ministers other than the Prime Minister are appointed by the President on the Prime Minister’s advice.
• Governors are appointed by the President under Article 155, with Article 74 governing the exercise of that power.
• The Comptroller and Auditor-General is appointed by the President under Article 148(1), by warrant under the President’s hand and seal; this formal requirement does not create personal discretion.
• Under Article 324(2), presidential appointments of the Chief Election Commissioner and other Election Commissioners are subject to any parliamentary law governing them.
• Ministerial advice does not dispense with applicable constitutional or statutory qualifications, consultation requirements, or selection procedures.

Limited discretion and judicial scrutiny

Appointment of the Prime Minister is a special situation: where no party has a clear majority, the President may have to assess who is best placed to command the Lok Sabha’s confidence. This limited discretion does not establish a general discretion over other appointments.

• Article 74(2) bars courts from inquiring into whether advice was tendered and, if so, what that advice contained.
• This protection of ministerial advice does not place presidential appointments beyond judicial scrutiny for constitutional or legal invalidity.