Module-I

• The President and Vice-President of India: Election, Powers and Removal

(Articles 52-72)
o Article 324 of the Constitution read with the Presidential and Vice –
Presidential Elections Act, 1952, and the Presidential and Vice – Presidential
Elections Rules, 1974 vests the superintendence, direction and control of the
conduct of election to the office of the President of India in the Election
Commission of India.
o Election Commission of India opined on 06th July, 2017 - The observations
of the Hon’ble Supreme Court in the case of Kuldip Nayar v Union of India
 (AIR 2006 SC 3127) and Pashupati Nath Sukul v Nem Chandra Jain (AIR
1984 SC 399)), will apply with equal force at the Presidential election as well.
Accordingly, in the Commission’s opinion, the voting or not voting as per
his/her own free will at the Presidential election will not come within the
ambit of disqualification under the Tenth Schedule to the Constitution of India
and the electors are at liberty to vote or not to vote at the Presidential election
as per their own free will and choice.
o Election Petitions under Part III of the Presidential and Vice Presidential
Elections Act, 1952 are filed directly in the Supreme Court (five-member
bench of the Supreme Court).
o Purno Agitok Sangma v. Pranab Mukherjee, (2013) 2 SCC 239- President
Pranab Mukhrerjee’s election was declared valid.
o ELECTION TO THE OFFICE OF PRESIDENT OF INDIA: Frequently
Asked Questions- available at
http://eci.nic.in/eci_main1/current/FAQ_08062017.pdf
o The President is required to make and subscribe in the presence of the Chief
Justice of India (or in his absence, the senior-most Judge of the Supreme
Court), an oath or affirmation that he/she shall protect, preserve and defend the
Constitution.
o It is interesting to note that none of the Presidents of India was removed from
the office by an impeachment motion. Though impeachment motion was
initiated against V. V. Giri and Neelam Sanjiva Reddy (1979), it was
eventually taken back.
o Only one in the history of India, Justice Mohammad Hidayatullah, Chief
Justice of Supreme Court, discharge the duties of the President in 1969. Justice
M. Hidayatullah is the only person to perform the functions of the President
two times in two different capacities, the first time being the Chief Justice of
the Supreme Court in 1969 and the second time being the Vice-President of
India in 1982.
Pardoning Power
o Maru Ram v. Union of India, (1981) 1 SCC 107- Supreme Court of India
reviewed the power of pardon under Article 72. The Court while deciding
upon the validity of 433A of the Code of Criminal Procedure in this case
examined the power of pardon under Article 72. The Court observed that
“Pardon, using this expression in the amplest connotation, ordains fair
exercise, as we have indicated above. Political vendetta or party favoritism
cannot but be interlopers in this area. The order which is the product of
extraneous or mala fide factors will vitiate the exercise….For example, if the
Chief Minister of a State releases everyone in the prisons in his State on his
birthday or because a son has been born to him, it will be an outrage on the
Constitution to let such madness survive.”
o Shatrughan Chauhan v Union Of India, (2014) 3 SCC 1- An Inordinate delay
in the process of execution of death sentence is a mental torture for the death
row convicts and violation of right to life and personal liberty under Article
21.
 o Shabnam v. Union of India, decided on May 27, 2015- The Supreme Court
held that death row convicts also have a right to dignity and execution of death
sentence cannot be carried out in a arbitrary, hurried and secret manner
without allowing the convicts to exhaust all legal remedies.
o The Supreme Court’s five-judge Constitution Bench -Union of India vs V.
Sriharan @ Murugan decided on December 2, 2015- held that state
government has no suo motu power to release the seven Rajiv Gandhi
killers on remission without concurrence of Centre. The Supreme Court
again on February 07, 2017 dismissed a review petition filed by the Tamil
Nadu government against a 2015 Constitution Bench judgment that a
State government has no suo motu power to remit sentences of persons
convicted under a Central law and cases investigated by a Central agency
like the CBI.
o Bill Sent For Reconsideration: As the President is only a titular head with no
real powers, he is constitutionally obliged to act as per the advice of the
Ministers in exercise of all his functions. When the Bill, after being passed by
the two Houses of Parliament, was submitted by the Council of Ministers to
the President under Article 111 with its advice that it should be assented to,
the President was obliged to give his assent. If he chose to exercise his power
under the Proviso to Article 74(1), he could send it back to the Ministry for
reconsideration. Thereafter, if the Ministry after reconsideration again sent
back the Bill to the President for his assent, the President would have no
option but to give his assent. ...Setalwad expressed the view that the Indian
Constitution was based on the British parliamentary system, in which the
advice of the Council of Ministers was supreme and binding on the President
even though not so expressly stated in the Constitution. This view was also
upheld by the Supreme Court in Shamsher Singh v State of Punjab case by a
seven Judge bench.1

• Constitutional Position of Governors of States: Appointment and Powers (Articles

153-161)

1
Shanti Bhushan, “What are the Indian President's powers?” The Hindu, JUNE 06, 2006, available at
http://www.thehindu.com/todays-paper/tp-opinion/what-are-the-indian-presidents-powers/article18439465.ece
o As per Article 155 and Article 156 of the Constitution, a Governor of a state is
an appointee of the President, and he or she holds office “during the pleasure
of the President”. If a Governor continues to enjoy the “pleasure of the
President”, he or she can be in office for a term of five years. Because the
President is bound to act on the aid and advice of the Council of Ministers
under Article 74 of the Constitution, in effect it is the central government that
appoints and removes the Governors. “Pleasure of the President” merely refers
to this will and wish of the central government.
o In 2010, a constitutional bench of the Supreme Court interpreted these
provisions and laid down some binding principles (B.P. Singhal v. Union of
India). In this case, the newly elected central government had removed the
Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the
14th Lok Sabha election. When these removals were challenged, the Supreme
Court held:
▪ The President, in effect the central government, has the power to
remove a Governor at any time without giving him or her any reason,
and without granting an opportunity to be heard.
▪ However, this power cannot be exercised in an arbitrary, capricious or
unreasonable manner. The power of removing Governors should only
be exercised in rare and exceptional circumstances for valid and
compelling reasons.
▪ The mere reason that a Governor is at variance with the policies and
ideologies of the central government, or that the central government
has lost confidence in him or her, is not sufficient to remove a
Governor. Thus, a change in central government cannot be a ground
for removal of Governors, or to appoint more favourable persons to
this post.
▪ A decision to remove a Governor can be challenged in a court of law.
In such cases, first the petitioner will have to make a prima facie case
of arbitrariness or bad faith on part of the central government. If a
prima facie case is established, the court can require the central
government to produce the materials on the basis of which the decision
was made in order to verify the presence of compelling reasons.
 o In summary, this means that the central government enjoys the power to
remove Governors of the different states, as long as it does not act arbitrarily,
without reason, or in bad faith.
o Recommendations of Various Commissions
▪ The Sarkaria Commission (1988) recommended that Governors must
not be removed before completion of their five year tenure, except in
rare and compelling circumstances. This was meant to provide
Governors with a measure of security of tenure, so that they could
carry out their duties without fear or favour. If such rare and
compelling circumstances did exist, the Commission said that the
procedure of removal must allow the Governors an opportunity to
explain their conduct, and the central government must give fair
consideration to such explanation. It was further recommended that
Governors should be informed of the grounds of their removal.
▪ The Venkatachaliah Commission (2002) similarly recommended that
ordinarily Governors should be allowed to complete their five year
term. If they have to be removed before completion of their term, the
central government should do so only after consultation with the Chief
Minister.
▪ The Punchhi Commission (2010) suggested that the phrase “during
the pleasure of the President” should be deleted from the Constitution,
because a Governor should not be removed at the will of the central
government; instead he or she should be removed only by a resolution
of the state legislature.
• Legislative Powers of the President and Governor (Articles 123 and 213)
o Ordinance Making Power-2 Article 123 of the Constitution enables the
President of India to promulgate an ordinance if neither House of Parliament is
in session and “circumstances exist, which render it necessary for him to take
immediate action”. Every ordinance has to be laid before Parliament, and
ceases to exist six weeks from the end of the next sitting of Parliament. Since
the Constitution mandates that Parliament be called into session at least once
every six months, ordinances have a de facto expiration period of

2
Available at http://www.frontline.in/the-nation/ordinance-route/article4944717.ece
approximately seven and a half months. Article 213 gives the same power to
the Governor of a State. Ordinance-making power is not a new feature added
to the Indian Constitution. Articles 42 and 43 of the Government of India Act,
1935, gave the same power to the Governor General. Members of the
Constituent Assembly, having experience of abuse of such power, were
understandably wary of including the same in the Constitution. Both Hriday
Nath Kunzru and Professor K.T. Shah called for restricting the executive’s
power to promulgate ordinances through greater oversight by legislatures.
They were, however, overruled by Dr B.R. Ambedkar, who stated that
ordinance-making powers were necessary since existing law might be
deficient to deal with a situation “which may suddenly and immediately arise”.
According to him, the only solution was to “…confer upon the President the
power to promulgate a law which will enable the executive to deal with that
particular situation because it cannot resort to the ordinary process of law…”
when the legislature was not in session.
It is clear that the framers of the Constitution envisaged ordinance-making
powers only for unforeseen, sudden situations and where the executive
required additional legal sanction to address the situation. The executive,
however, decided to completely disregard this requirement of necessity for
immediate action. According to data furnished in the Statistical Handbook of
the Ministry of Parliamentary Affairs, more than 41 ordinances were
promulgated during the term of the first Lok Sabha itself. Indeed, in the pre-
Indira Gandhi period, that is, before 1966, more than 75 ordinances were
passed by the Central government. The necessity of taking immediate action
by promulgating ordinances has remained debatable at best through the years.
Instances of necessity of “immediate action” ---Parliamentary debates
indicate that in many cases where ordinances have been promulgated, the
necessity for promulgating them has been extremely debatable. Some
instances of ordinance-making from the past 15 years (1997 onwards)
highlight this truth.
The Telecom Regulatory Authority of India (TRAI) was created in 1997 first
by an ordinance and then by an Act of Parliament. The Minister in charge
stated that the ordinance route was taken since “…we were facing difficulties
in attracting private investment without an authority like the TRAI. Private
investors… were not convinced about our ongoing processes of privatisation
and liberalisation.” Important as it is to send out a signal of commitment
towards a particular government policy, in this case liberalisation of the
telecommunications sector, it is hard to make the case that had immediate
action by promulgating an ordinance not been taken, private investment in the
telecommunications sector would never have happened.
Similarly, the Electricity Regulatory Commissions Ordinance was
promulgated on April 25, 1998, one day before the government of the day
decided to convene the next session of Parliament. The National Commission
for Minority Educational Institutions (Amendment) Ordinance, 2006, was
promulgated in January 2006, even though Parliament was to convene from
February 16, 2006. In both cases, no satisfactory reason was given for
promulgating these ordinances in haste.
The Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Ordinance, 2002 (SARFAESI) was promulgated in June
2002. The then Minister for Finance and Company Affairs, while deploring
the need for taking the ordinance route, said that he did not wish to go into the
details of why an ordinance had to be promulgated in that specific instance.
He, however, said one factor that forced the promulgation of the ordinance
was the time that was being taken by the Standing Committee concerned to
finalise its views on the Bill.
The National Tax Tribunal Ordinance was promulgated in 2003. As per the
parliamentary debate on the National Tax Tribunal Bill, the ordinance was
promulgated because various committees had recommended that such a
tribunal be established, and as “…huge revenue is blocked in litigation
because of pendency of appeal and reference is before the High Court, which
has adverse affect on the national economy”. As one Member of Parliament
pointed out, though a number of months had elapsed since the promulgation of
the ordinance, no tribunal had been established at the time of the debate and
no cases referred to it.
The Manipur University Ordinance, 2005, was promulgated even though the
Bill for establishing the university had been introduced in Parliament and
looked at by a Parliamentary Standing Committee. The Standing Committee
had made its recommendations, which were accepted by the government. Yet,
the promulgation of the ordinance was justified by saying that the interests of
the students of the university should not suffer.
There is thus a repeated and deliberate attempt to push through policy
prerogatives by taking the ordinance route. Sometimes this has been justified
on the grounds of delays by parliamentary committees and at others by giving
reasons that do not seem to meet the “necessary… to take immediate action”
test. To be fair, there have been instances where the use of the ordinance-
making power has seemed more legitimate. One example would be the
Ancient Monuments and Archaeological Sites and Remains (Amendment and
Validation) Ordinance, 2010, which was promulgated to meet a deadline
imposed by the Delhi High Court. Yet another would be the Indian Medical
Council (Amendment) Ordinance, 2011, under which the government
dissolved the Medical Council of India. Yet, the overarching narrative has
been that of misuse, if not outright abuse. One check against this move may
have been strong judicial review of the grounds on which ordinances are
promulgated. The approach of the apex court has, however, been to protect the
sanctity of this power of the executive rather than subject it to strict review.
Judicial review of Ordinance Making Powers
Courts have uniformly held, in varying formulations, that the power of the
President and the Governors to issue ordinances is in the nature of an
emergency power. In A.K. Roy vs Union of India and R.C. Cooper vs Union
of India (bank nationalisation case), the Supreme Court said that ordinance-
making power was a legislative power given to the President and was not
similar to the exercise of his executive powers. As such, ordinances are also
“law” under Article 13. Using the same reasoning, the Supreme Court reached
damaging conclusions in Venkata Reddy vs State of Andhra Pradesh and K.
Nagaraj and Ors. vs State of Andhra Pradesh. In Venkata Reddy, the
constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time
Village Officers Ordinance, 1984, was challenged. One of the grounds of
challenge was that the ordinance was void on account of the lack of
application of mind by the Governor. The court asked itself the question
whether “the validity of an ordinance can be tested on grounds similar to those
on which an executive or judicial action is tested”. In answering the question it
cited its earlier judgment in K. Nagaraj and held that since promulgating an
ordinance was a legislative action, the grounds on which it could be
challenged were the same as those on which laws made by Parliament could
be challenged. The “motives of the legislature in passing a statute is beyond
the scrutiny of courts”.

That the motives of the legislature are not gone into when the validity of a law
is considered is a settled principle in law. It is a settled principle because it is
difficult to ascribe a single, clear motive for the enactment of a law to the
entire legislative body. Members of the same legislature may support (or
oppose) the enactment of a law for different reasons. Therefore, courts refrain
from scrutinising the motives of legislatures.

Ordinances are, however, framed by the executive, which is a single, unified

entity. The President or the Governor (in the States) is the head of the
executive who acts on the advice of the Council of Ministers when
promulgating ordinances. Under our constitutional scheme the Council of
Ministers shares collective responsibility. In addition, ordinances are only to
be promulgated when it is “necessary to take immediate action”. There is then
no great difficulty in ascertaining the motives of the President or the Governor
when an ordinance is promulgated to meet an immediate situation.

The Supreme Court has slowly been compelled to move in this direction as
well. D.C. Wadhwa vs State of Bihar relates to the State of Bihar
promulgating and re-promulgating ordinances on a “massive scale”. Between
1967 and 1981, as many as 256 ordinances were promulgated and re-
promulgated, and some of them continued in existence this way for up to 14
years. In pronouncing its judgment the Supreme Court departed from the
above-mentioned precedent and went into the relevant governmental
information preceding the promulgation and re-promulgation of these
ordinances.

The power of review over ordinances was implicitly taken one step further in
1998 in the case of Krishna Kumar Singh vs State of Bihar, where the court
struck down a number of ordinances, stating that no basis for the exercise of
 ordinance-making power had been shown. It stated explicitly: “There is also
no explanation offered for promulgating one ordinance after another.”

Though the sheer profligacy in ordinance-making compelled the Supreme

Court to start performing some sort of judicial review, there is as of now no
clarity on the nature and extent of judicial review over ordinance-making.

ROLE OF JUDICIARY3
The role of the Judiciary in interpreting this extra-ordinary power of the executive has
been a highly contentious one. Whether Courts can intervene on the ground of mala
fides or fraud on the Constitution, if this provision is used in a manner that defeats
Parliamentary democracy? As has already been mentioned, a court of law cannot

3
“Association of Secretaries General of Parliaments-COMMUNICATION from DR V. K. AGNIHOTRI
Secretary General of the Rajya Sabha (Council of States) of India on THE ORDINANCE: LEGISLATION BY
THE EXECUTIVE IN INDIA WHEN PARLIAMENT IS NOT IN SESSION, Addis Ababa Session April
2009” Available at
https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&cad=rja&uact=8&ved=0ahUKEwjL
5MiZmMLYAhVHNo8KHZ-
UCywQFghOMAU&url=https%3A%2F%2Fwww.asgp.co%2Fsites%2Fdefault%2Ffiles%2Fdocuments%2FDS
GLUMISWZXMFHMSMGKEQORWKOMYXW.doc&usg=AOvVaw2aJ3vxrB5w4baU6qbmPQyk
inquire into the motive behind or the propriety of promulgating an Ordinance. Its only
function is to declare it invalid, if it transgresses the constitutional limits of legislative
power. The Court should also intervene, if the President (or Governor), instead of
transgressing the limits directly, resorts to a device or practice which indirectly
violates the limits of the power. For example, re-promulgating Ordinances without
placing them before the Legislature or getting them replaced by Acts of Parliament.
The Supreme Court of India has outlined a number of observations while passing
judgments on various cases dealing with the Ordinance making power of the
President:
• The Barium Chemicals Ltd. v. The Company Law Board And Others AIR
1967 SC 295
• Rustom Cowasjee Cooper v. Union of India AIR 1970 SC 564
• The State of Rajasthan v. The Union of India AIR 1977 SC 1361
• AK Roy v. The Union of India AIR 1982 SC 710
• State of Punjab v. Satya Pal AIR 1969 SC 903

Another important case in point is the Dr. D.C. Wadhwa & others v. State of Bihar
(AIR 1987 SC 579) whereby the Constitution Bench headed by the Chief Justice of
the Supreme Court made certain important observations. The Bihar Government
was promulgating and re-promulgating Ordinances without approaching the
State Legislature. At the expiry of an Ordinance, it would promulgate another,
reproducing the contents of the defunct Ordinance. It re-promulgated as many as 256
Ordinances between 1967 and 1981. One particular Ordinance was re-promulgated
continuously for 13 years without approaching the State legislature for regular
enactment. This practice was resorted to without even considering whether
circumstances existed which rendered it necessary to take immediate action by way of
re-promulgation of expiring Ordinances. The Supreme Court took strong objection
to this and laid down the following propositions:
The power to promulgate an Ordinance is an emergency power which may
be used where immediate action may be necessary at a time when the
legislature is not in session. It is contrary to all democratic norms that the
Executive should have the power to make a law; hence such emergency
power must, of necessity, be limited in point of time.
 A constitutional authority cannot do indirectly what it is not permitted to
do directly. If there is a constitutional provision inhibiting the authority to
do an act, to avoid that limitation by resorting to a subterfuge would be a
fraud on the constitutional provision.
While the satisfaction of the President as to the existence of circumstances
necessitating immediate action by issuing an Ordinance cannot be
examined by Court, it is competent for the Court to inquire whether he has
exceeded the limits imposed by the Constitution. He would be usurping the
function of the Legislature if he, in disregard of the constitutional
limitations, goes on re-promulgating the same Ordinance successively, for
years together, without bringing it before the legislature.
Though, in general the motive behind issuing an Ordinance cannot be
questioned, the Court cannot allow it to be ‘perverted for political ends’.
o In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court
concludes that the failure to place an ordinance before the legislature
constitutes abuse of power and a fraud on the Constitution. It noted in this
case that a 1989 ordinance by which the State government took over 429
Sanskrit schools in Bihar was promulgated several times until 1992, but not
once tabled in the State Assembly.
• Council of Ministers of the Union and States (Articles 74-75 and 163-164)
o Cabinet Ministers are the integral part of the Cabinet of India (Union Cabinet),
which is regarded as the “collective decision-making body” of the
Government of India. Cabinet ministers along with the Prime Minister
complete the Union Cabinet. It is mandatory for the Cabinet Ministers to be
members of either House of the Parliament. They hold the highest rank among
the three categories of ministers, including Minister of State (Independent
Charges) and Minister of State (MoS).
o According to Article 75 of Indian constitution, Cabinet Ministers are
appointed by the President on the advice of the Prime Minister. Besides being
responsible for the advancement of a particular ministry, Cabinet Ministers are
collectively accountable to the members of the Lok Sabha. During their entire
tenure, they are advised by the Cabinet Secretary.
o Each minister is responsible for “expeditious implementation” of Government
policies, plans and programmes pertaining to his ministry. The ministers often
 seek assistance from the Cabinet Secretariat to deal with the inter-ministerial
problems.
o The prime importance of Cabinet Ministers lies in their role as advisors to the
President. They help him to exercise his power. Article 74 (1) of the
Constitution of India, which is reproduced below: "(1) There shall be a council
of Ministers with the Prime Minister at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with
such advice: "Provided that the President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such reconsideration."
The proviso did not exist till June 20, 1979, when it was introduced by the
Janata Party Government through the Constitution (44th) Amendment
Act, 1978.
o Among host of other responsibilities, the Cabinet Ministers have to meet some
serious expectations such as strengthening the security of the country,
improving the nation’s foreign affairs, and keeping its economy in good state.
These ministers are regarded as the political heads of the government’s
administrative departments who have to take care of the day-to-day progress.
o Since the Prime Minister and his Cabinet Ministers enjoy a majority support in
the Parliament, they wield enough power to pass a law in both the houses.
Similarly, they have the authority to stop a bill from becoming a law if they
have opposed it. To put it in perspective, the law making powers of Indian
Parliament is in reality the power of Cabinet Ministers. In matter of finance,
the Cabinet has the final say. The credit of preparing the annual budget and
proposing taxes and expenditures goes to the Cabinet Ministers. The
Parliament’s role is restricted to giving formal approvals. Even judiciary is
somewhat under the control of the Union Cabinet. The Supreme Court and
High Court judges are appointed or transferred by the President on the advice
of the Cabinet.4
o Manoj Narula v. Union of India, (2014) 9 SCC 1- Arts. 75(1) & 164(1) and
32 - Appointment of Council of Ministers (Union or State) - Choice of persons
as Ministers by Prime Minister/Chief Minister - Meaning of advice under Arts.

4
http://www.elections.in/political-corner/cabinet-ministers-roles-importance/
75(1) and 164(1) - Constitutional responsibility on PM/CM while giving such
advice - Faith/trust reposed in PM/CM under Constitution - Expectations of
good governance by people of India - Held, no directions can be issued in
this regard but PM/CMs are constitutionally advised to avoid choosing
persons as Ministers who have criminal antecedents, especially those
facing charges in respect of serious or heinous criminal offences or
offences pertaining to corruption - Held (per curiam), advice under Arts.
75(1) and 164(1) means formation of opinion by PM/CM and it is in their
wisdom to choose any person for appointment as Minister of Council of
Ministers - Said formation of opinion by PM/CM is expressed by use of word
advice under Arts. 75(1) and 164(1) because of immense trust reposed in
PM/CM under the Constitution - However, at the same time, it is a legitimate
constitutional expectation from PM/CM that they would give apposite advice
to President/Governor and would not choose persons as Ministers who have
criminal antecedents, especially those facing charges in respect of serious or
heinous criminal offences or offences pertaining to corruption - PM/CM have
to bear in mind that unwarranted elements or persons who are facing charges
in certain categories of offences may thwart or hinder the canons of
constitutional morality or principles of good governance and eventually
diminish the constitutional trust - In democracy, people never intend to be
governed by persons who have criminal antecedents - Per Lokur, J., burden of
appointing suitable person as Minister lies entirely on shoulders of PM/CM
and be left to their good sense - PM/CM however, are answerable to
Parliament/State Legislature and are under the gaze of watchful eye of People
of India - Per Kurian, J., the Court is the conscience of the Constitution of
India - When things go wrong constitutionally, unless the conscience speaks, it
is not a good conscience: it will be accused of being a numb conscience -
Good governance is only in hands of good men – Court cannot decide what is
good or bad but it can always indicate constitutional ethos on goodness, good
governance and purity in administration and remind constitutional
functionaries to preserve, protect and promote the same – Selecting colleagues
in Council of Ministers is constitutional prerogative of PM/CM who cannot be
directed by Court as to the manner in which they should exercise their power -
However, they can be reminded of their role in working of Constitution -
 Hence, PM/CM will be constitutionally well advised to consider avoiding any
person in Council of Ministers, against whom charges have been framed by
criminal court in respect of offences involving moral turpitude and also
offences specifically referred to in Ch. III of Representation of the People Act,
1951, (2014) 9 SCC 1-A
o Arts. 75(1) and 164(1) - Appointment of Council of Ministers (Union or
State) - Power/authority of Prime Minister/Chief Ministers to
advice/suggest/recommend a person for appointment as Minister - Restriction,
if any, that may be imposed on PM/CM from recommending person against
whom charges have been framed for serious or heinous offences or offences
relating to corruption - Non-applicability of doctrine of implied limitation -
Held, PM/CMs cannot be constitutionally prohibited to give advice to
President/Governor in respect of person for becoming Minister who is charged
for serious or heinous offences or offences relating to corruption - By
interpretative process, it is difficult to read such prohibition into Arts. 75(1) or
164(1) on the powers of PM/CMs as that would tantamount to prescribing
eligibility qualification and adding a disqualification which has not been
stipulated in the Constitution, (2014) 9 SCC 1-B
o Doctrine of silence - Nature, scope and applicability - Principle of
constitutional silence or abeyance, held, is progressive and is applied as a
recognised advanced constitutional practice to fill up gaps in respect of certain
areas in interest of justice and larger public interest - Non-applicability, when
there is already express provision existing - Matter relating to disqualifications
for person to be appointed as Minister of Council of Ministers (Union or State)
- Express provisions stating disqualifications already provided under
Constitution and Representation of the People Act, 1951 - New/additional
disqualification for person facing charges for serious or heinous offences or
offences relating to corruption, held, cannot be read into existing expressed
disqualifications by taking recourse to principle of constitutional silence or
abeyance - Moreover, doing so would amount to crossing boundaries of
judicial review, (2014) 9 SCC 1-C
o Silences of the Constitution/Implied Limitation
o Constitutional trust reposed in holders of high office - Held, in a controlled
Constitution like ours, the Prime Minister, as also the Chief Ministers, are
 expected to act with constitutional responsibility as a consequence of which
the cherished values of democracy and established norms of good governance
get condignly fructified - The Framers of the Constitution left many a thing
unwritten by reposing immense trust in the Prime Minister - The scheme of
the Constitution suggests that there has to be an emergence of constitutional
governance which would gradually grow to give rise to a constitutional
renaissance, (2014) 9 SCC 1-D
o Constitutional Trust
o Applicability - Held, doctrine of constitutional trust is applicable not only to
exercise of legislative power but also to every high constitutional functionary -
Therefore, doctrine is applicable to Prime Minister as also Chief Ministers
who hold high constitutional positions, (2014) 9 SCC 1-E
o Constitutional Interpretation
o Subsidiary rules of interpretation
o Doctrine of implication - Scope and applicability - Explained in detail - Held,
doctrine of implication can be taken aid of for interpreting constitutional
provision in expansive manner - Doctrine is fundamentally founded on
rational inference of idea from words used in the text - However,
interpretation given by Court has to have a base in Constitution – Court cannot
rewrite a constitutional provision - Words on the advice of the Prime
Minister/Chief Minister under Arts. 75(1) and 164(1) of Constitution -
Interpretation of - Held, while interpreting these words on the advice of the
PM/CM appearing in Arts. 75(1) and 164(1), it cannot be legitimately inferred
that there is prohibition to think of person as Minister if charges have been
framed against him in respect of serious or heinous offences including
corruption cases, (2014) 9 SCC 1-F
o Arts. 75, 164, 84, 102 and 32 - Appointment of Council of Ministers (Union
or State) - Legality of appointment of persons with criminal background or
charged with serious offences as Ministers - Framing of guidelines for
appointment - Appropriate authority - Held (per Lokur, J.), is legislature and
not Court - Though it is necessary, due to criminalisation of our polity/politics,
to ensure that certain persons do not become Ministers, but this is not possible
through guidelines issued by Court - It is not for Court to lay down any
guidelines relating to who should or should not be entitled to become
 legislator or who should or should not be appointed Minister in Central or
State Government - It is for electorate to ensure that suitable (not merely
eligible) persons are elected to legislature and it is for legislature to enact or
not enact a more restrictive law - Therefore, appropriate legislature would
decide if such guidelines for appointment of Ministers in Central and State
Governments are necessary and the frame of such guidelines, (2014) 9 SCC 1-
G
o Arts. 75(1) and 164(1) - Appointment of Council of Ministers (Union or State)
- Disqualifications - Framing of criminal charge against person, not a
disqualification - Applicability of principle of presumption of innocence -
Held (per Lokur, J.), merely because charges are framed against a person,
there is no bar to that person being elected as Member of Parliament or of a
State Legislature or being appointed as Minister in Central or State
Government, (2014) 9 SCC 1-H
o Grant and Separation of powers
o Court as conscience of Constitution - Consideration of right or wrong by
Court from constitutional sense and not in ethical sense of morality - Function
of conscience, held (per Kurian, J.), is to speak when things go wrong
constitutionally - If conscience does not speak, it is not a good conscience and
will be accused of being a numb conscience - Hence, though no directions
could be issued to PM/CMs not to appoint persons with criminal antecedents
as Ministers, constitutional advice given not to appoint such persons as
Ministers, (2014) 9 SCC 1-I

• Provisions Relating to Emergency (Articles 352-360)

Recommended Readings:
o “Emergency powers” by Victor V Ramraj and Menaka Guruswamy in
Routledge Handbook of Constitutional Law, (2013) Edited by Mark Tushnet,
Thomas Fleiner and Cheryl Saunders
o Article by Rahul Sagar, “Emergency Powers,” in Sujit Choudhry et. al. (eds.),
The Oxford Handbook Of The Indian Constitution, (2016) Oxford University
Press.
o S.R. Bommai v Union of India, (1994) 3 SCC 1- President’s Emergency Order
is subject to judicial review.
o BP Singhal v. Union Of India (2010)- Change of government at centre level is
not the ground for the removal of Governor.
o Nebam Rebia v. Deputy Speaker and others (2016)- Floor test should be done
first
o Union of India v. Harish Rawat (Supreme Court ordered on 6th May 2016 for
conducting Floor Test in Uttrakhand assembly).