(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

 

(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.

 

(3) Nothing in this article shall—

 

(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or

 

(b) prevent Parliament from conferring by law functions on authorities other than the President.

Debate Summary

Article 42, Draft Constitution of India, 1948 

(1) The executive power of the Union shall be vested in the President and may be exercised by him in accordance with the Constitution and the law.

(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of India shall be vested in the President and the exercise thereof shall be regulated by law.

(3) Nothing in this article shall-

(a) Be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or

(b) Prevent Parliament from conferring by law functions on authorities other than the President.

 

The Constituent Assembly took up Draft Article 42 (Article 53) for debate on 10 December 1948 and 16 October 1949. The Draft Article stipulates that the executive power of the Union will lie with the President.

 

One member proposed to make it explicit in the Article that the President’s executive power was subject to the advice and help of the Union Government. This would reiterate the Parliamentary choice of government that the Assembly had adopted.

 

Another member wanted to include “on behalf of the people of India” in the first clause to demonstrate that sovereignty and popular will lie with the people. He illustrated how the Government of India Act, 1935 enabled the Governor-General to exercise executive power on behalf of the “King Emperor of India”. Since India is an independent country and the people of India are the ‘real owners’, this insertion was necessary.

 

There was another proposal to exhaustively list out all the powers and responsibilities of the President. The member argued that for a new nation like India, the definite powers of the President must be laid out in the Constitution to avoid any ambiguities. Several members opposed this move. It was highlighted how some of the powers ascribed to the President including in matters related to budget, defence and passing of bills were antithetical to the Parliamentary notion of government. Further, a member of the Drafting Committee pointed out that this proposal was against the decision of the Assembly to adopt a Parliamentary form of democracy.

 

One member wanted to restrict the power of the President: he argued that the President should not be allowed to exercise power given to other constitutional bodies. He believed this amendment would strengthen the role of the President as a ‘Constitutional President’.

 

The Assembly adopted the Draft Article on 10 December 1948  without any amendments. However, the Constituent Assembly reopened discussion of the Draft Article on 16 October 1949.

 

The Drafting Committee moved a minor amendment which enabled the President to exercise his power even through his subordinates. Some members opined that this amendment was redundant and unnecessary. They argued that it was understood that the President would be exercising his power through his ‘agents’. It was further observed: ‘This attempt to clarify things is grossly exaggerating the idea of going into details’.

 

The members of the Drafting Committee responded by highlighting that the President would not be actually exercising the powers under the Constitution. He would ‘simply exercise them at the dictation of other people who are responsible to the legislature’. This amendment encodes the understanding that the President exercises his power through his subordinates.

 

The Assembly accepted the amendment on 16 October 1949.