UNIVERSITY INSTITUTEOF

LEGAL STUDIES

CONSTITUTIONAL LAW PROJECT ON

UNION EXECUTIVE
Submitted To: Submitted By:
Prof. Dr. Shruti Bedi Abhishek Singla
B.Com.LL.B.
Semester – 4
Roll No. 183/20
Section – D

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ACKNOWLEDGEMENT
In the present world of competition, there is a race of existence in which those having the will to
come forward, succeed. It is my genuine pleasure to express my special thanks of gratitude to my
Constitutional Law Professor Dr. Shruti Bedi, who gave me the golden opportunity to do this
project on the topic “UNION EXECUTIVE”.

Her dedication and keen interest above all her overwhelming attitude to help her students helped
me complete the project. Any attempt at any level cannot be satisfactorily complete without the
support and guidance of my parents and friends. I would like to thank everyone who helped me a
lot in gathering different information, collecting data and guiding me from time to time in
making this project, despite of their busy schedules, they gave me different ideas in making this
project unique.

Abhishek Singla

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Table of Contents
INTRODUCTION...........................................................................................................................................5
UNION EXECUTIVE.......................................................................................................................................6
THE PRESIDENT (ARTICLE 52).......................................................................................................................6
EXTENT OF EXECUTIVE POWERS (ARTICLE 73).............................................................................................6
QUALIFICATIONS REQUIRED TO BECOME PRESIDENT OF INDIA (ARTICLE 58)............................................7
PROCESS OF ELECTION................................................................................................................................8
CONDITIONS OF PRESIDENT’S OFFICE (ARTICLE 59)..................................................................................10
OATH OR AFFIRMATION BY THE PRESIDENT (ARTICLE 60)........................................................................10
WHEN TO HOLD PRESIDENTIAL ELECTION (ARTICLE 62)............................................................................10
TENURE (ARTICLE 56)................................................................................................................................10
ELIGIBILITY FOR RE-ELECTION (ARTICLE 57)...............................................................................................11
IMPEACHMENT OF PRESIDENT (ARTICLE 61).............................................................................................11
PRIVILEGES OF THE PRESIDENT (ARTICLE 361)..........................................................................................12
DISPUTES REGARDING THE ELECTION...................................................................................................13
POWERS OF THE PRESIDENT......................................................................................................................15
Executive Powers...................................................................................................................................15
LEGISLATIVE POWERS............................................................................................................................15
FINANCIAL POWERS...............................................................................................................................16
JUDICIAL AND DIPLOMATIC POWERS....................................................................................................16
EMERGENCY POWERS...........................................................................................................................16
PARDONING POWER (ARTICLE 72)............................................................................................................17
ORDINANCE MAKING POWER (ARTICLE 123)............................................................................................18
POSITION OF PRESIDENT: RELATION BETWEEN PRESIDENT AND COUNCIL OF MINISTERS...................19
PRESIDENT’S DISCRETION: A LIMITED ONE............................................................................................20
APPOINTMENT OF PRIME MINISTER.........................................................................................................21
DISMISSAL OF A MINISTER/OR CABINET...............................................................................................21
DISSOLUTION OF LOK SABHA................................................................................................................21
COMMUNICATION WITH PRIME MINISTER...........................................................................................22
VICE PRESIDENT.........................................................................................................................................22
POWERS.....................................................................................................................................................22

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COUNCIL OF MINISTERS............................................................................................................................23
NON-JUSTICIBAILITY OF CABINET ADVICE.............................................................................................24
APPOINTMENT OF PRIME MINISTER.........................................................................................................25
DISSOLUTION OF LOK SABHA....................................................................................................................26
COLLECTIVE RESPONSIBILITY.....................................................................................................................27
MINISTER’S INDIVIDUAL RESPONSIBILITY..............................................................................................28
THE ATTORNEY-GENERAL OF INDIA...........................................................................................................28
FUNCTIONS OF ATTORNEY-GENERAL........................................................................................................29
CONCLUSION.............................................................................................................................................30
BIBLIOGRAPHY...........................................................................................................................................31

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INTRODUCTION
India is a Parliamentary Democratic Secular Republic in which the President of India is the head
of State and the Prime Minister of India is the head of Government. It is based on the federal
structure of Government, although the word is not used in the Constitution itself. India follows
the dual polity system, i.e. federal in nature, that consists of the central authority at the centre
and states at the periphery. The Legislature, the Executive and the Judiciary are the three main
organs of the government. These organs do not work in isolation to each other but are
interdependent to ensure proper and systematic functioning of the government. The Parliament
or the legislature performs the function of making laws. The executive, executes or implements
the laws enacted by the Parliament and the judiciary interprets these laws. The Executive has
wide-ranging powers to refuse laws, command the military, make verdicts, ordinances and
declarations, grant mercy to criminals, etc. But the executive is accountable to the legislature for
its actions. The notices, rules and ordinances passed by the executive only become ordinary laws
when passed by the legislature, therefore curbing the powers of the executive. The executive is
answerable for its actions to the legislature and the judiciary. As India follows a Parliamentary
form of Government, the powers of the executive are thus limited. Such a system of checks and
balances ensures that no organ wields excessive power. The Judges of the Supreme Court also
have an advisory jurisdiction over the President, where the President can consult the Supreme
Court on important issues.

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UNION EXECUTIVE
Chapter I of Part V of the Indian Constitution (Articles 52 to 78) deals with the Union
Executive. Role of Union Executive is of immense Significance in the Indian Parliamentary
system.

THE PRESIDENT (ARTICLE 52)

The first and foremost part of the Executive is the President. Article 52 states that there shall be a
President of India. The President is considered the Executive head of the country. All the
Executive business of the country is carried out in the name of the President.

So the question arises that if President is the executive head and all actions are in his name, and
the President has to carry out many functions, then can there be the performance of an act not
mentioned in any specific legislation by the Executive?

The same was answered in the case of Ram Jawaya Kapoor v. the State of Punjab 1, wherein the
Court held that Executive power connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away but, as per the Indian Constitution the
executive can exercise the powers of department or subordinate legislation when such powers are
delegated to it by the legislature at the same time it can also when so empowered can exercise
judicial functions.

EXTENT OF EXECUTIVE
POWERS (ARTICLE 73)
Article 73 of the Constitution of India, Extent of the executive power of the Union, states that,

1) Subject to the provisions of this Constitution, the executive power of the Union shall
extend to the matters with respect to which Parliament has power to make laws; and to

4
AIR 1955 SC

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 the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement.
Provided that the executive power referred to in sub-clause (a) shall not, save as
expressly provided in this Constitution or in any law made by Parliament, extend in any
State2 to matters with respect to which the Legislature of the State has also power to
make laws3.
2) Until otherwise provided by Parliament, a State and any officer or authority of a State
may, notwithstanding anything in this article, continue to exercise in matters with respect
to which Parliament has power to make laws for that State such executive power or
functions as the State or officer or authority thereof could exercise immediately before
the commencement of this Constitution.

Thus, the article provides that the extent of executive power of the Union extends to matters with
respect to which the Parliament can make laws. That implies that the executive power is
competent on matters on which the Union legislature has competence. In Ram Jawaya Kapur 4, it
has been observed by the Court that while the executive has no authority to act against the
provisions of a law, it does not imply that the executive’s actions within the ambit of its authority
requires any law which specifically authorizes such action.

QUALIFICATIONS REQUIRED
TO BECOME PRESIDENT OF
INDIA (ARTICLE 58)
Article 58 (1) exemplifies the capabilities for political race as President of India. They are
recorded beneath:

i. An individual who isn't a resident of India isn't qualified for political election as
President.
ii. An individual more likely than not finished the age of 35.

2
Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549
3
Reference to Art.73(1)
4
AIR 1955 SC

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 iii. An individual should be equipped for political election as an individual from the House
of the People5.
iv. An individual should not hold a government (focal or state) office of benefit/profit.
v. An individual is qualified for political election as President if he/she is holding the
workplace of President or Vice-President.
vi. An individual is qualified for political election as President if he/she is holding the
workplace of the Governor.
vii. An individual is qualified for political election as President if he/she is holding the
workplace of Union/State Minister.

Extra conditions to be fulfilled by a candidate for his nomination to be valid:

A nomination paper of a possibility for the political decision must be made in the endorsed
structure (Form 2 attached to the Presidential and Vice-Presidential Elections Rules, 1974) and it
must be bought in by no less than fifty electors as proposers and something like fifty electors as
seconders. The nomination paper appropriately finished in all regards must be introduced to the
Returning Officer, somewhere in the range of 11AM and 3PM on any day other than on a public
occasion selected for the reason by the Election Commission, either by the up-and-comer himself
or by any of his proposers or seconders. The Security Deposit for the political decision, of
Rs.15000/ - ought to likewise be saved either in real money with the Returning Officer or a
receipt showing that the sum has been saved by the competitor or for his sake in the Reserve
Bank of India or in a Government Treasury ought to be outfitted alongside the nomination paper.
The candidate is likewise needed to outfit a confirmed duplicate of the passage showing his
name in the current discretionary roll for the Parliamentary Constituency in which the applicant
is enlisted as a balloter.

PROCESS OF ELECTION
Article 54 provides: The President shall be elected by the members of an electoral college
consisting of the elected members of both Houses of Parliament; and the elected members of the
Legislative Assemblies.

5
See Article 84 which prescribes the qualifications and Art.102 which lays the disqualifications for membership of
House of Parliament. These provisions are to be read with the Representations of People’s Act, 1951.

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 1. As far as practicable, there is uniformity in the scale of representation of the different
States at the presidential election [Art. 55(1)]. To achieve this result, a member of the
electoral college from a State Legislative Assembly has as many votes as are obtained by
the following formula6 [Art. 55(2)(a)]:

State Population ÷ (Total Number of elected members in the State × 1,000)

This formula secures to a member of a State Legislative Assembly votes in the ratio of
the population of the State and, thus, a smaller State having a relatively larger Legislature
cannot swamp the votes7 of a larger State having comparatively a smaller legislature.

2. There is a parity of votes between the elected members of the Houses of Parliament, and
of the State Legislative Assemblies, so that the former command the same number of
votes in the Electoral College as the latter. This result is achieved by the following
formula which gives the number of votes available to a member of Parliament in the
electoral college [Art. 55(2)(c)]:

Legislative Assemblies in the Electoral College ÷ Total number of elected members of

the two Houses of Parliament

Who does not take part in the President’s elections?

The following group of people is not involved in electing the President of India:
i. Nominated Members of Rajya Sabha (12).
ii. Nominated Members of State Legislative Assemblies.
iii. Members of Legislative Councils (Both elected and nominated) in bicameral
legislatures.
iv. Nominated Members of union territories of Delhi and Puducherry.

6
See Draft Constitution, 17.
7
See CAD, IV, 880

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CONDITIONS OF PRESIDENT’S
OFFICE (ARTICLE 59)
The Constitution lays down the following conditions of the President’s office: He should not be a
member of either House of Parliament or a House of the state legislature. He should not hold any
other office of profit. He is entitled, without payment of rent, to the use of his official residence
(The Rashtrapati Bhavan). He is entitled to such emoluments, allowances, and privileges as may
be determined by Parliament. His emoluments and allowances cannot be diminished during his
term of office.

OATH OR AFFIRMATION BY THE

PRESIDENT (ARTICLE 60)
Before entering his office, the President has to make and subscribe to an oath or affirmation. In
his oath, the President swears: To faithfully execute the office. To preserve, protect, and
defend the Constitution and the law. To devote himself to the service and well-being of the
people of India. The oath of office 8 to the President is administered by the Chief Justice of India
and in his absence, the senior-most judge of the Supreme Court available.

WHEN TO HOLD
PRESIDENTIAL ELECTION
(ARTICLE 62)
Election to the President’s office must be held before the expiry of the tenure of the President in
office [Art. 62(1)]. If the office falls vacant by death, resignation or removal or otherwise, then
election to fill the vacancy should be held within six months from the date of the occurring of the
vacancy. The person so elected as the President is entitled to remain in office for the full term of
five years from the date he assumes charge of his office [Art. 62(2)].

TENURE (ARTICLE 56)

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8
The form in which the oath is to be made or subscribed is laid down in Article 60.

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The normal tenure of the President is five years from the date on which he enters upon his office
[Art. 56(1)], but he continues to hold office even thereafter till his successor enters upon his
office [Art. 56(1)(c)]. The President may resign his office before the expiry of his normal tenure
of five years by writing to the Vice-President [Art. 56(1)(a)]. The Vice-President has to
communicate the President’s resignation to the Speaker of the Lok Sabha [Art. 56(2)].

ELIGIBILITY FOR RE-

ELECTION (ARTICLE 57)
A person who holds, or who has held, office as President shall, subject to the other provisions of
this Constitution, be eligible for re-election to that office. The Constitution thus does not place
any bar on the re-election of the same person to the office of the President.

IMPEACHMENT OF
PRESIDENT (ARTICLE 61)
The Supreme Court will ask and conclude in regards to all questions and debates emerging out of
or regarding the appointment of a president for each Article 71(1) of the constitution. The
Supreme Court can eliminate the president for the electing misbehaviors or after being not
qualified to be an individual from the Lok Sabha under the Representation of the People Act,
1951. Liable to Article 71 (3), parliament made pertinent guidelines/method to appeal to the
Supreme Court for settling the questions just that emerge during the political decision interaction
of the President yet not the questions that emerge from his unlawful activities/deeds or changing
Indian citizenship during the residency of president which might disregard the imperative
political decision capabilities. The President may likewise be eliminated before the expiry of the
term through impeachment9 for abusing the Constitution of India by the Parliament of India. The
interaction might begin in both of the two houses of the Parliament. The house starts the
interaction by evening out the charges against the President. The charges are contained in a
notification that must be endorsed by somewhere around one-fourth of the all out individuals
from that house. The notification is sent up to the President and after 14 days, it is taken up for

9 The term “impeachment” is used in the Constitution only for the removal of the President from his

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thought. A goal to indict the President must be passed by a 66% majority of the all out number of
individuals from the starting house. It is then shipped off the other house. The other house
explores the charges that have been made. During this interaction, the president has the option to
shield oneself through an approved direction. On the off chance that the subsequent house
likewise supports the charges made by uncommon majority once more, the President stands
impugned and is considered to have abandoned their office from the date when such a goal
stands passed. No president has confronted impeachment10 procedures so the above
arrangements have never been utilized.

Under Article 361 of the constitution, however the president can't be brought for addressing
besides on his intentional ability to affirm in the court on the side of his disputable deeds, the
unlawful choices taken by the president would be announced invalid by the courts. The case
would be chosen by the courts dependent on the realities outfitted by the Union government for
the president's job. As explained by the supreme court for the situation Rameshwar Prasad and
Ors versus Union of India and Anr on 24 January 2006; however the president can't be indicted
and detained during his term of office, he can be arraigned after he/she ventures down from the
post for any responsibility submitted during the term of administration as pronounced before by
the courts. No president has surrendered on inappropriateness to proceed in office for
pronouncing and invalidating his unlawful choices by the courts till now. No criminal case
basically on the grounds of disregarding constitution is stopped till now against previous
Presidents to rebuff them for their illegal demonstrations; however numerous choices taken
during the term of a president have been pronounced by the Supreme Court as unlawful,
malafide, void, ultra vires, and so on.

PRIVILEGES OF THE PRESIDENT

(ARTICLE 361)
a) The President cannot be asked to be present in any court of law during his tenure.
b) A prior notice of two months’ time is to be served before instituting a civil case against
him.

10
The term “impeachment” is used in the Constitution only for the removal of the President from his

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 c) The President can neither be arrested nor any criminal proceedings be instituted against
him in any court of law during his tenure.
d) The President is not answerable to any court of law for the exercise of his functions.

DISPUTES REGARDING THE ELECTION

Article 71 provides that all doubts and disputes arising out of or in connection with the election
of the President or Vice-President shall be 'inquired' into and decided by the Supreme Court
whose decision shall be final. But if the election of a President or Vice-President is declared void
by the Supreme Court acts done by President or Vice President in the exercise of their powers
before the date of the decision of the Supreme Court, shall not be invalidated by reason of that
declaration. Further, subject to the provisions of this Constitution, Parliament may by law
regulate any matter relating to the election of the President or Vice-President." Clause (4) of
Article 71 makes it clear that the election of the President or Vice President cannot be called in
question on the ground that there exists any vacancy for whatever reason in the Electoral College
electing him. In Dr. N. B. Khare v. Election Commissioner of India. the petitioner challenged the
holding of the election on the ground that since the general election in certain parts of Punjab and
Haryana had not taken place till that time and the electoral college (as envisaged by Articles 54
and 55) for that purpose would be incomplete, therefore the election of the President should take
place only after that. The court held that the election of the President could only be challenged
after the completion of the election, f. e., after the candidate is declared elected.

Clause (4) of Article 71 which was added by the Constitution (Eleventh Amendment) Act, 1961,
makes it clear that the election of the President or Vice-President cannot be challenged on the
ground that there exists any vacancy in a particular electoral college for whatever reasons. After
the election was over, in Dr. N. B. Khare v. Election Commissioner of India, he again challenged
the validity of the election. The Court held that since under section 14 of the Presidential and
Vice-Presidential Act an election can only be questioned by a candidate at such election or by 10
or more voters therefore Dr. Khare who was neither a candidate nor an elector was not entitled to
challenge the validity of election of the President.

In Re Presidential Election, the holding of the election of the President was again challenged on
the ground that the electoral college as mentioned in Articles 54 and 55 would be incomplete
because the Gujarat State Legislative Assembly was dissolved. It was contended that the

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Presidential election should be postponed until fresh elections are held in the State of Gujarat.
The Supreme Court held that the election to the office of the President, must be held before the
expiration of the term of the President, notwithstanding the fact that at the time of such election
the Legislative Assembly of a State is dissolved. The election to fill the vacancy of the office of
the President is to be held and completed having regard to Articles 62 (1), 54, 55 and the
provisions of the Presidential and Vice-Presidential Elections Act, 1952. Only such persons who
are elected members of both Houses of Parliament and the Legislative Assemblies of the States
on the date of the election to fill the vacancy caused by the expiration of the term of office of the
President will be entitled to caste their votes at the election. Article 56 (1), Proviso (c) applies to
a case where successor has not entered on his office and only in such circumstances can a
President whose term has expired, continue. Article 56 (1), Proviso (c) and Art. 62 (1) should be
read together to give effect to the constitutional intent and content that the election to fill the
vacancy caused by the expiration of the term of the President must be completed before the
expiration of the term. The elected members of a dissolved Legislative Assembly of a State are
no longer members of the electoral college as provided in Art. 54 and, therefore, they are not
entitled to cast votes at the Presidential election. The vacancies caused by the dissolution of an
Assembly or Assemblies will be covered by Article 71 (4). The Court said that Article 71 (4) was
really introduced in 1961 to shut out any challenge to the election on the ground that there was
any vacancy among members of the electoral college. The language of Art. 71 (4) is of wide
amplitude, viz. existence of any vacancy for any reasons whatever among the members of the
electoral college. It will take any case where a person who as an elected member of the House of
Parliament or the Legislative Assembly of a State became entitled to be member of the electoral
college but ceased to be an elected member at the relevant date of the election and therefore
became disentitled to cast vote at the election and that vacancy among members of the electoral
college was not filled up.

The Supreme Court, however, refrained from expressing any opinion on the question as to what
would happen if there is a "mala fide dissolution" of a State Legislative Assembly or Assemblies
or if there is, after the dissolution of the Assembly or Assemblies a mala fide refusal to hold
election, thereto within reasonable time before the Presidential election. Likewise, it did not
express any opinion on the effect of the dissolution of a substantial member of the State
Legislative Assemblies before the Presidential election.

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POWERS OF THE PRESIDENT
Executive Powers
i. All executive powers are exercised by him directly or through subordinate officers.
ii. He is ex-officio Supreme Commander of the Defense Forces. He can declare war and
make peace.
iii. He makes all important appointments such as those o f the Governors, Lt. Governor,
Chief Justice and Judges of the Supreme Court and High Courts, Prime Minister and
Union Ministers, Chief Election Commissioner, Comptroller and Auditor-General,
Members of the U.P.S.C., Members o f Finance Commission and Inter-State Council,
Commissioners of SCs/STs/ Backward Classes and Minorities, etc.
iv. He makes rules for the more convenient transaction of business of the Government and
allocates among Ministers such business.
v. He must be informed of all decisions of Council of Ministers.
vi. He governs the Union Territories through the Administrators or Lieutenant Governors.
vii. He has the power to remove his Ministers individually; the Attorney-General of India; the
Governor of a State; the Chairman or Members of the Public Service Commission (both
Union and State); a Judge of the Supreme Court or of a High Court; or an Election
Commissioner.

LEGISLATIVE POWERS
i. President has the power to summon, prorogue and address the Parliament. He also
dissolves the Lok Sabha. He can also summon a joint sitting of both Houses of
Parliament in case of a deadlock between them.
ii. He may send messages to either House of Parliament in regard to any Bill or to any other
matter.
iii. Laying Reports before the Parliament viz. Annual Financial Statement, Report of the
Comptroller and Auditor-General, Annual Report of the U.P.S.C., etc.
iv. There are certain Bills which cannot be introduced in the Parliament without the previous
sanction or recommendation of the President: (a) creation or reorganization o f States, (b)
Money Bill, (c) a Bill involving expenditure from the Consolidated Fund of India, (d) a

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 Bill affecting taxation in which States are interested, and (e) a Bill imposing restrictions
on freedom o f trade and commerce.
v. No Bill can become an Act without the President’s signature. Except for Money Bills, he
can return the other Bills for reconsideration of the Parliament. If, however, the two
Houses pass the Bill again with or without amendments (suggested by the President) and
the Bill is presented to the President, he cannot withhold assent from the Bill. Thus, the
‘veto power’ of the President is limited.
vi. When Parliament is not in Session, he may promulgate Ordinances.
vii. The President nominates 12 members to Rajya Sabha from persons having special
knowledge of arts, science, literature or social services. He also nominates Anglo-Indian
members to the Lok Sabha, if, in his opinion, that community is not adequately
represented.

FINANCIAL POWERS
i. No Money Bill can be introduced in Parliament without President’s previous sanction.
ii. He can make advances out of the Contingency Fund of India to meet the unforeseen
expenditure (viz. on account of floods, droughts, war, etc.) pending approval of
Parliament.
iii. He has the power to determine the States’ share of proceeds of the income-tax and the
amount o f yearly grants-in-aid to certain States.
iv. He appoints the Finance Commission.
v. He causes to be laid before Parliament the-Annual Financial Statement (‘Budget’) at the
beginning o f the financial year.

JUDICIAL AND DIPLOMATIC POWERS

i. The President is empowered to pardon offenders or to remit, reprieve, suspend or
commute their sentences.
ii. He appoints 'the Ambassadors and receives the credentials o f the foreign diplomatic
representatives.

EMERGENCY POWERS
i. When the security o f the country is threatened, he can proclaim national emergency.
ii. He also promulgates the President’s rule in States.

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 iii. He can also promulgate financial emergency.

PARDONING POWER (ARTICLE 72)

Under Art. 72, the President has power to grant pardon, reprieve, respite or remission of
punishment or to suspend, remit or commute the sentence to any person convicted of an offence
(i) in cases where the punishment is by Court Martial, (ii) for offences against laws made under
Union and Concurrent Lists - matters to which executive power of Union extends, (iii) for death
sentences.

Art. 72 further lays down that the power conferred on the President, however, does not affect the
power conferred by any law on any officer of the Armed Forces to suspend, remit, or commute a
sentence passed by Court Martial, and also the power exercisable by the Governor of State under
any law to suspend, remit, or commute a death sentence. It may be noted that the British King
and the U.S. President also possess such judicial powers.

The object of conferring this judicial power (“mercy jurisdiction”)... is to correct possible
judicial errors, for no human system of judicial administration can be perfect. “While exercising
his pardoning powers, the President can scrutinize the findings/witnesses on the record and come
to a different conclusion both on the guilt of the accused and the sentence imposed on him. In
doing so, the President did not amend/modify/supersede the judicial record which remained
intact” (Kehar Singh’s case).

A Pardon - Rescinds both the sentence and conviction, and absolves offender from all
punishments.

Commutation - From harder to lighter punishments e.g. from death to rigorous imprisonment.

Remission - Reduction of amount of sentence without changing its character e.g. from 1 year to 6
months.

Respite - Rewarding a lesser punishment on special grounds e.g. pregnancy.

Reprieve - A stay or suspension of execution of death sentence e.g. pending a proceeding for
pardon or commutation.

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The pardoning power can be exercised before, after or during the trial. The power is exercised,
on the advice of Council of Ministers. The power cannot be exercised when the matter is sub
judice in the Supreme Court. In Kuljeet Singh v Lt. Governor o f Delhi (AIR 1982 SC 774), held
that the exercise of President’s power would have to be examined'from case to case. It is
submitted that to examine case-to-case implies court’s ‘judicial review' on a matter which has
been vested by Constitution solely in the executive. The question of standards and guidelines for
the exercise of the. power by the President under Art. 72 however, were left open by the Court.

In Kehar Singh v UOI (AIR 1989 SC 653), regarding the assassination of Prime Minister Indira
Gandhi, the President rejected the petition on advice of Union government without going into the
merits of Supreme Court’s decision of death sentence. The court held that a pardon is an act of
grace and therefore it can’t be demanded as a matter of right. The Court need not spell out
specific guidelines for the exercise of power... because this power is of the ‘widest amplitude'
and can contemplate a myriad kinds of cases with varying facts. The order of President cannot be
subjected to judicial review on its merits.

ORDINANCE MAKING POWER

(ARTICLE 123)
The Ordinance-making power of the President-Article 123.-The most important legislative
power of the President is his Ordinance-making power. If at any time, when both Houses of the
Parliament are not in session and the President is satisfied that circumstances exist which render
it necessary for him to take immediate action, he may issue such Ordinance as the circumstances
appear to him to require. The Ordinances issued by him shall have the same force as an Act of
Parliament. Such Ordinances, however, must be laid before both Houses of Parliament and shall
cease to operate, at the expiry of six weeks from the date of re-assembly of Parliament, unless a
resolution disapproving it is passed by both Houses before the expiration of six weeks. The
President may, if he likes, withdraw such an Ordinance at any time.

The Ordinance making power is exercised by the President on his own satisfaction. The court
cannot inquire into the reasons for the subjective satisfaction of the President or into the
sufficiency of those reasons. However, in R. C. Cooper v. Union of India, the Supreme Court had

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observed that in issuing Ordinances the satisfaction of the President is not final. But the court did
not specify as to when it will interfere. An Ordinance can be issued only when both the Houses
of the Parliament are not in session. It follows from this that an Ordinance can be issued when
only one House is in session because a law cannot be passed by one House alone. It is to be
noted that the 'satisfaction is not the personal satisfaction of the President. In reality, it is the
satisfaction of the Cabinet on whose advice the President exercises his Ordinance-making power.
The Ordinance-making power of the President is co-extensive with the legislative power of the
Parliament, that is to say, that it may relate to any subject in respect of which Parliament has
power to legislate. Hence, an Ordinance will be void in so far as it makes any provision which
under the Constitution, the Parliament is not competent to make [Article 123 (3)]. Thus an
Ordinance cannot violate the fundamental rights. In no country, except India, the Executive is
vested with legislative power. The Indian Constitution expressly confers power to make
Ordinances on the President. The power to make Ordinances is justified on the ground that the
President must be armed with powers to meet with serious situation when the Houses of
Parliament are not in session. It is not difficult to imagine the cases when ordinary law-making
powers may not be able to deal with a situation which may suddenly and immediately arise. In
such circumstances, the executive must have power to take immediate action by issuing
Ordinances. With all the constitutional safeguards, there is possibility of abuse of the Ordinance-
making power by the Executive.

POSITION OF PRESIDENT: RELATION BETWEEN PRESIDENT AND COUNCIL OF

MINISTERS
The President must exercise powers according to the Constitution. Art. 53(1) which vests the
executive power of the Union in the President provides that the power may be exercised by the
President either directly or through officers subordinate to him. For this purpose. Ministers are
deemed to be officers subordinate to him.

Article 74(1) provides that there shall be a Council of Ministers with Prime Minister at the head,
to aid and advice President in exercise of his functions. Art. 74(2) lays that question whether any,
and if so, what advice was tendered by minister to the President shall not be inquired into in any
court. Thus, relation between President and Council of Ministers are confidential.

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Prior to the 42nd Amendment, there was no clear provision in the Constitution that President was
bound by ministerial advice. This amendment amended Art. 74 which makes it clear that
President shall be bound by the advice of Council of Ministers. However, by 44th Amendment,
President has been given one chance to send back advice to the Council of Ministers for
reconsideration. However, President shall act in accordance with advice tendered after such
reconsideration. Article 75(1) says that Prime Minister shall be appointed by President and other
Ministers shall be appointed by President on the advice of Prime Minister. Art. 75(2) lays that
Minister shall hold office during the pleasure of President. Art. 75(3) lays that Council of
Ministers shall be collectively responsible to the Lok Sabha. Collective responsibility implies
that Council of Ministers is responsible as a body of r the general conduct of the affairs o f the
government. If a ‘no-confidence motion’ is passed against any one Minister, the entire Council
of Ministers must resign.

Clause (IA), added to Art. 75(1) by the Constitution 91st Amendment (2003), provides that the
size of the Council of Ministers including the Prime Minister shall not exceed 15 per cent of the
total number of the members in the Lok Sabha.

PRESIDENT’S DISCRETION: A LIMITED ONE

According to Dr. Ambedkar, “Under the Draft Constitution, the President occupies the same
position as the King under the English Constitution. He is the head of State but not of the
executive. He represents nation but does not rule the nation. His place in the administration is
that of a ceremonial device on a seal by which the nation’s decisions are made known. He can do
nothing contrary to the advice of Council of Ministers nor can do anything without their advice.”

President shall have no power to act in his discretion in any case.

If the President ignores the advice of Ministers enjoying the confidence in Lok Sabha, it may
resign and thus create a constitutional crisis. It is obligatory on the President to have always a
Council of Ministers.

If he dismisses any Ministry having support of Lok Sabha, they may bring impeachment 11
proceeding against him... this serves as a deterrent against the President assuming real powers.

11
The term “impeachment” is used in the Constitution only for the removal of the President from his office.

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APPOINTMENT OF PRIME MINISTER
President’s discretion is limited. Thus, when a single party gains an absolute majority and has an
accepted leader, President’s choice of selecting Prime Minister is a mere formality. Similarly, if
on the death or resignation of a Prime Minister, the ruling party elects a new leader. President
has no choice but to appoint him as Prime Minister. However, if no single party gains absolute or
workable majority and a “coalition government” is to be formed, the President can exercise a
little discretion and select the leader of any party who, in his opinion, can command the support
of the majority in the Lok Sabha and form a stable government (Shams her Singh s case).
However, even in such a situation (i.e. the case of “hung parliament”), the President’s action is
guided by certain conventions. First, in the case of defeat of ruling party in the lower House by a
no-confidence motion, the President should invite the leader of the opposition. Secondly, where
none of the parties has attained absolute majority in the Lok Sabha, the President may invite the
leader of the “single largest party" to form the government. Thirdly, if two or more parties form a
coalition before the election and secure absolute majority in the election, the leader of such a
coalition should be invited. Fourthly, the President should invite the leader of the coalition or
alliance formed after the election.

DISMISSAL OF A MINISTER/OR CABINET

Though Ministers hold office during the pleasure of President, but President is bound to exercise
his pleasure in accordance with Prime Minister’s advice. Thus, it is a power of Prime Minister
against his (undesirable) colleagues.

DISSOLUTION OF LOK SABHA

So long as Prime Minister and his cabinet enjoys confidence, the President is bound to dissolve
Lok Sabha only when advised by Prime Minister. But, this advice will not be binding on the
President, when Prime Minister loses his majority or unable to prove his majority or a vote of no-
confidence passed against him or when he is not facing the Parliament, but President has proof
that ruling party does not have a majority (Shams her Singh's case). In the above circumstances,
the President must try to find out whether any alternative ministry can be possible.

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COMMUNICATION WITH PRIME MINISTER
Art. 78 provides that it shall be the duty of Prime Minister to communicate to the President ‘all
decisions’ of Council of Ministers relating to administration of affairs of Union and proposals for
legislation; to furnish such information relating to administration as President may call for; and if
the President so requires to submit for the consideration of Council of Ministers any matter on
which ‘a decision’ has been taken by a Minister but which has not been considered by the
Cabinet.

VICE PRESIDENT
The Constitution provides for a Vice President who is elected by members o f the two houses of
Parliament in accordance with the system o f proportional representation by means of a single
transferable vote and secret ballot12. A candidate for the office of Vice-President must -

 be a citizen o f India;
 be more than 35 years of age;
 possess the qualifications prescribed for membership o f the Rajya Sabha;
 not be member of either House of the Parliament or State Legislature;
 not be person of unsound mind or insolvent; and
 not hold any office of profit under the Union or State Government or local authority.

The Vice President holds office for a term of five years13 from the date on which he enters office.
He is eligible for re-election. His term can be cut short if he resigns or is removed by the Rajya
Sabha through a resolution passed by a two-third majority o f its members and likewise agreed to
by the Lok Sabha. The Vice-President as the ‘ex-officio Chairman of the Rajya Sabha’ is entitled
to the same salary and allowance which are paid to the Speaker of the Lok Sabha.

POWERS

12
See Clause (3) of the Article 55, Secret Ballot distinguished from open ballot, for objects thereof, see Kuldeep
Nayer v. Union of India, AIR 2006 SC 3127.
13
Article 56 (1) (a)

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The Vice-President is the ex-officio Chairman of the Rajya Sabha and preside over it meetings.
All bills, resolutions, motions or questions can be taken up by the Rajya Sabha only with his
consent. He is the chief spokesman of the Rajya Sabha before President as well as the Lok
Sabha. He discharges the functions of the office of the President in case that post fails vacant on
account of the death, resignation or removal of the President. The Vice President can act as
President for a maximum period of six months because fresh elections for the office of
President14 must be held within six months of the occurrence of vacancy. Similarly, if the
President is unable to discharge his functions for some reasons (casual vacancy) or remains
absent, the Vice-President discharges all his functions. When he does so, he ceases to perform
the functions of the Chairman of the Rajya Sabha.

COUNCIL OF MINISTERS
Articles 74 and 75 which deal with the composition and status of the Councilor Ministers are
sketchy and very generally worded. The framers of the Indian Constitution left these matters
undefined so that these may be regulated by practices and conventions. The conventions
operating in Britain, where a similar pattern of government prevails, are very relevant to India
and can be adapted suitably to meet the conditions prevailing here.

According to Art. 74(1), there shall be a Council of Ministers with the Prime Minister at its head
to aid and advise the President who shall, in the exercise of his functions, act in accordance with
such advice. The provision that “there shall be a Council of Ministers” is mandatory and at no
point of time can the President dispense with this body. The Council of Ministers remains in
office even when the Lok Sabha is dissolved. Functions are conferred on the President by
constitutional and statutory provisions. According to Art. 74(1) all these functions are to be
discharged by the President on the advice of the Council of Ministers. Under Art. 53(1),
executive powers vested in the President are to be exercised by him either directly or through
officers subordinate to him. When the President acts directly, he acts on the advice of the
Council of Ministers. Instead of the whole Council of Ministers, advice may be tendered to the
President by one Minister. Advice tendered by one Minister is regarded as advice tendered by the

14
For Instance, Dr. Rajendra Prasad, who was elected as the first President of India, enjoyed second term also. Dr.
Prasad is the only president who enjoyed two terms in Office.

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Council of Ministers in view of the principle of collective responsibility of the Council of
Ministers. When a decision is taken by an official himself, he acts under the Rules of Business
framed by the President under Art. 77(3). Further, according to Art. 74(2), the courts are barred
from enquiring into what advice, if any, has been given by the Ministers to the President.44
Whatever advice the Cabinet or a Minister has given to the President is confidential, and the
courts can neither take any cognizance thereof nor enquire as to what advice has been given by
the Ministers to the President. The courts are, therefore, helpless in the matter in view of this
constitutional provision. Thus, the matter lies outside the purview of the courts and any relief
through the courts in such a situation does not seem to be possible. The only sanction behind the
provision would thus seem to be political, and, ultimately, there is the fear of impeachment 15 of
the President if he violates Art. 74(1) on a crucial matter by not acting on ministerial advice. This
may be regarded as “violation of the Constitution” in terms of Art. 56(b). But, as has already
been discussed above, impeachment16 is a very complicated and cumbersome procedure, and it
can be resorted to only by a very strong government having majority in one House and support
of 2/3rd of total membership in another House. The Constitution stipulates that to remove the
President from office it is necessary to pass the motion by not less than 2/3rd of the total
membership of the House.

For all these reasons, the only conclusion is that that part of Art. 74(1) which makes the
ministerial advice binding on the President is merely directory in nature 17. In Britain, it is a
convention that the monarch acts on the advice of the Ministers. In India, an attempt has been
made to codify this convention, but, in effect, it still remains a convention, and does not become
a legally enforceable injunction.

NON-JUSTICIBAILITY OF CABINET ADVICE

The next question is: what is the scope of the provision in Art. 74(2) which bars the courts from
embarking upon an inquiry as to whether any, and if so what, advice was tendered by the
Council of Ministers to the President. The Supreme Court has clarified the implications of Art.

15
The term “impeachment” is used in the Constitution only for the removal of the President from his office.
16
Ibid pg.24.
17
In Re Presidential Election, 1974, AIR 1974 SC 1682; Kirpal Singh v. V.V. Giri, AIR 1970 SC 2097

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74 (2) in S.R. Bommai v. Union of India. No court is concerned with what advice was tendered
by the Minister to the President. The court is only concerned with the validity of the order and
not with what happened in the inner councils of the President and the Minister. An order cannot
be challenged on the ground that it is not in accordance with the advice tendered by the Minister
or that it is based on no advice. If, in a given case, the President acts without, or contrary to, the
advice tendered to him, it may be a case warranting his impeachment 18, but so far as the court is
concerned, it is the act of the President.

Article 74(2) does not mean that the Government need not justify the act of the President taken
in exercise of his functions. When act or order of the President is questioned in a court, it is for
the Council of Ministers to justify the same by disclosing the material which formed the basis of
the act/order. The Court will not inquire whether such material formed part of the advice
tendered to the President, or whether the material was placed before him, or what advice was
tendered to the President, what discussions took place between the President and the Ministers
and how was the ultimate decision arrived at. “The court will only see what was the material on
the basis of which the requisite satisfaction is formed and whether it is relevant to the action
taken”.

APPOINTMENT OF PRIME MINISTER

The Prime Minister is head of the Council of Ministers. Art. 75 says that "the Prime Minister
shall be appointed by the Presidents and the other Ministers shall be appointed by the President
on the advice of the Prime Minister. The Council of Ministers shall be collectively responsible to
the House of the People." But in appointing the Prime Minister the President can hardly exercise
his discretion since we have adopted the English Cabinet System which works on conventions.
One of the well-established convention in England is that the leader of the majority party of the
Lower House is appointed Prime Minister. Hence, the provisions relating to the Council of
Ministers should be interpreted in the light of British experience, so the President's choice to
select Prime Minister is restricted to the leader of the party in majority in the Lok Sabha or, a
person who is in a position to win the confidence of the majority in that House. Thus when a

18
The term “impeachment” is used in the Constitution only for the removal of the President from his office.

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single political party has gained an absolute majority in the Lok Sabha and has an accepted
leader the President's choice of selecting Prime Minister is a mere formality.

But in case of multiple party system as it prevails in India, if none is in a position to gain
absolute majority and a coalition Government is to be formed, the President can exercise a little
discretion and select the leader of any party who in his opinion can form a stable ministry. But it
has been suggested that even in such a situation the President's action should be guided by
certain conventions. Firstly, convention in England is that in case of the defeat of the
Government in the House the President should invite the leader of the opposition in the House to
explore the possibility of forming a stable ministry. Secondly, he should invite the largest single
party in the Lok Sabha to form a Government. Thirdly, if two or more party form a coalition
before the elections and secure the majority in the Lok Sabha then also he has no option but to
invite the leader of the coalition to form the Government.

DISSOLUTION OF LOK SABHA

Article 85 (b) of the Constitution provides that "The President may from time to time dissolve
the House of the People". Thus the power to dissolve the Lok Sabha is vested in the President.
But in this respect also he does not have unfettered discretion and is always bound to act on the
advice of the Council of Ministers. In England the King is bound to dissolve the House when
advised by the Prime Minister. This is a well-settled convention in England. The position in
India is the same. So long as the Prime Minister and his Cabinet enjoys the confidence of the
Lok Sabha the President is bound to dissolve the House when advised by the Prime Minister.

The question is-Is the President bound to dissolve Lok Sabha on the advice of the Prime Minister
or Council of Minister who does not enjoy the confidence of the majority in the House?

One view is that the President is bound to dissolve the Lok Sabha on the advice of the Prime
Minister, whether he is in majority or reduced to minority. This view is based on a well-
established convention in England, though there may be exceptions to this rule in exceptional
circumstances. In England it has been a uniform practice for more than a century that the
sovereign should not refuse a dissolution when advised by the Prime Minister. Even a Prime

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Minister who is defeated in a no confidence motion can advise the King to dissolve the House of
Commons.

In 1970, the Governor of Uttar Pradesh refused to dissolve the Assembly on the advice of the
Chief Minister, Mr. Charan Singh (the present Prime Minister) when he was reduced to a
minority because of the defections in the B K D-Congress Coalition Ministry. The overwhelming
juristic opinion is that the advice of the Prime Minister or Chief Minister for the dissolution of
Parliament or State Assembly will not be binding on the President in the following four cases

(1) when he loses his majority, or (2) when he is unable to prove his majority, or (3) when a vote
of no-confidence is passed against the ministry, or (4) when he is not facing the Parliament (or
Assembly), but the President (or Governor) has a proof that the ruling party does not have a
majority. In the above mentioned circumstances the President must try to find out whether any
alternative ministry can be possible. He should make all possible efforts to avoid a mid-term
poll. Dr. Ambedkar had said in the Constituent Assembly, "The President of Indian Union will
test the feelings.

COLLECTIVE RESPONSIBILITY
A notable principle underlying the working of parliamentary government is the principle of
collective responsibility which represents ministerial account- ability to the legislature. It means
that the Government must maintain a majority in the Lok Sabha as a condition of its survival. In
Britain, the principle is not legal but conventional; in India, on the other hand, there is a specific
provision in the Constitution to ensure the same. Art.75(3) lays down that the Council of
Ministers shall be collectively responsible to the Lok Sabha.

Reference may also be made in this connection to Art. 78(c) which says that the President may
submit a decision taken by a Minister for consideration by the Council of Ministers which really
means the Cabinet. This provision further strengthens the principle of collective responsibility.
When a Minister tenders any advice to the President, the matter not having been considered by
the Cabinet, the President may submit it for consideration by the Cabinet. The principle of
collective responsibility may be regarded as fundamental to the working of the parliamentary
government, as it is in the solidarity of the Cabinet that its main strength lies. The principle of

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collective responsibility means that the Council of Ministers is responsible as a body for the
general conduct of the affairs of the government. All Ministers stand or fall together in
Parliament, and the government is carried on as a unity. The rule ensures that the Council of
Ministers works as a team, as a unit, and as a body commands the confidence of the House, and
that Cabinet’s decisions are the joint decisions of all Ministers.21 There has been for sometime
and is at present a multitude of political parties in India. Collective responsibility envisages that
each Minister assumes responsibility for cabinet decisions and action taken to implement the
same. The policies and programmes of the Cabinet have to be supported by each Minister. Even
if there may be differences of opinion within the Cabinet, once a decision has been taken by it, it
is the duty of every Minister to stand by it and support it both within and outside the Legislature.
The decisions of the Cabinet are regarded as the decisions of the whole Council of Ministers and
binding on all Ministers. A Minister cannot disown responsibility for any Cabinet decision so
long as he remains a Minister. He cannot both remain a Minister and criticise or oppose a
Cabinet decision or even adopt an attitude of neutrality, or oppose a colleague in public. A
Minister who disagrees with a Cabinet decision on a policy matter, and is not prepared to support
and defend it, should no longer remain in the Council of Ministers and should better resign.

MINISTER’S INDIVIDUAL RESPONSIBILITY

All decisions are not taken by the Cabinet; many decisions are taken by the Ministers themselves
without reference to the Cabinet, or by officials in the department without reference to the
Minister. Article 77(3), noted above, 33 envisages distribution of business among several
Ministers. Even a Minister does not take all decisions himself, most of the decisions are taken by
officials in the department under the Minister according to the Rules of Business. This is the
effect of Art. 77(3). Therefore, along with the principle of collective responsibility, there also
works the principle of the individual responsibility of each Minister to Parliament, which is more
positive in character. Each Minister is personally accountable for his actions.

THE ATTORNEY-GENERAL OF INDIA

The Attorney-General of India is appointed by the President. The person to be appointed as
Attorney-General must be qualified to be appointed as a Judge of the Supreme Court. He holds

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office during the pleasure of the President. He shall get such remuneration as the President may
determine.

FUNCTIONS OF ATTORNEY-GENERAL
The Attorney-General is to give advice to the Government of India upon such legal matters as
may, from time to time, be referred or assigned to him by the President. He perform such other
duties of a legal character which may be assigned to him by the President from time to time. He
has also to discharge the functions conferred on him by the Constitution or by any other law.

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CONCLUSION
The Union and the State Executive are considered as one of the significant organs of the Indian
government. The Union executive consists of all the government people at the central level. Union
executive consists of president, vice-president, council of ministers and prime minister. Prime Minister
holds all the powers and guides the president in taking important decisions on national issues. In the
absence of the president, vice president takes all decisions on his behalf. The executive is responsible for
executing the laws made by the Indian Parliament thereby ensuring effective implementation of law and
order in the Indian State. Therefore, one cannot ignore the role played by the Indian executive in the
functioning of the government of democratic India.

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BIBLIOGRAPHY
i. Prof. M.P. Jain, “Indian Constitutional Law”, Wadhwa & Company Nagpur
ii. Prof. Narendra Kumar, “Constitutional Law of India”, Allahabad Law Agency, Faridabad
iii. V.N. SHUKLA
iv. eci.gov.in
v. NCERT

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