Quick answer
No. In Shamsher Singh v. State of Punjab (23 August 1974), a seven-judge bench of the Supreme Court held that the President and the Governor are constitutional (formal) heads who exercise their powers on the aid and advice of their Council of Ministers, except where the Constitution requires the Governor to act in his discretion. Neither of them is to exercise executive functions personally. The Court overruled the earlier view in Sardari Lal that the President must be personally satisfied.
The case
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, 1975 SCR (1) 814, Supreme Court of India, 23 August 1974. Seven judges: A.N. Ray, CJ (for himself and Palekar, Mathew, Chandrachud and Alagiriswami, JJ); a separate opinion by Krishna Iyer, J for himself and Bhagwati, J. Two probationary judicial officers, Shamsher Singh and Ishwar Chand Agarwal, challenged their terminations, arguing that the Governor had to decide personally. Held: the Governor acts on ministerial advice, so the orders were not invalid merely because the Governor did not personally see the papers; but both terminations were set aside on other grounds.
What the Court held
- Formal head: the President and the Governor exercise powers conferred "by or under the Constitution" on the aid and advice of the Council of Ministers headed by the Prime Minister or Chief Minister.
- No personal satisfaction: where the Constitution speaks of the "satisfaction" of the President or Governor, it means the satisfaction of the government acting through ministers and the Rules of Business. Sardari Lal was overruled.
- Exceptions (discretion): discretion (lawful freedom to decide without following ministerial advice) applies only where the Constitution provides for it, for example a report to the President under Article 356. Krishna Iyer, J added a short list of exceptional situations for the Head of State: choosing a Prime Minister or Chief Minister, dismissing a government that has lost its majority but refuses to quit, and dissolving the House. Even then, action must be "compelled by the peril to democracy".
- Control over subordinate judiciary (Article 235): the High Court failed in its duty by asking the State Government to hold an enquiry through its Vigilance Department. The High Court itself should have conducted the enquiry, preferably through District Judges.
- Probationers (Article 311): the substance of a termination order, not its form, is decisive. A discharge founded on misconduct or inefficiency without a proper enquiry and an opportunity to show cause can amount to punishment and is then invalid.
Parliamentary head versus presidential executive
| Point | India (after Shamsher Singh) | Presidential system |
|---|---|---|
| Real executive | Council of Ministers | The elected President |
| Responsibility | Ministers answerable to the legislature | President answerable to the voters |
| Head's own choice | Only in discretionary areas the Constitution recognises | General |
Neha, a probationary civil judge, is discharged by an order issued in the Governor's name, though the Governor never saw the file. Her argument that the order is void because the Governor did not decide personally fails under Shamsher Singh. But if the discharge is really based on alleged misconduct and no proper enquiry was held, it can still be struck down under Article 311.
Current law
The Constitution (Forty-second Amendment) Act, 1976 rewrote Article 74(1) so that the President "shall" act in accordance with ministerial advice. The Constitution (Forty-fourth Amendment) Act, 1978 added a proviso allowing the President to ask the Council of Ministers to reconsider its advice; the President must then act on the advice given after reconsideration. For Governors, Article 163(1) still keeps an exception for functions the Governor must exercise "in his discretion". For the earlier account of cabinet government that the Court relied on, see Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955).
Exam point
Shamsher Singh (1974, seven judges): the President and Governor are constitutional heads who act on ministerial advice, except in discretionary areas; Sardari Lal's "personal satisfaction" view was overruled.
