(BNB 1.21) The Union (The Executive & Parliament)

BE N BY IAS
Be An IAS \ By An IAS
Paper - I
Cons tu onal & Administra ve Law
1.21
The Union (The Execu ve & Parliament)
By Jasbir Singh Bajaj

Former I.A.S oﬃcer (Law Expert)
57/11, 2nd Floor, Bada Bazaar Road, Old

info@beandbyias.com www.beandbyias.com 9958294810, 011-41644377 Rajinder Nagar, Karol Bagh, ND-110060
PART V - THE UNION (THE EXECUTIVE & PARLIAMENT)
& CONSTITUTIONAL POSITION OF PRESIDENT AND
RELATIONSHIP WITH THE COUNCIL OF MINISTERS
Article 52. The President of India.
• There shall be a President of India.
• Article 52, which is the first Article on the Union Executive, clearly states and requires that a President of India is
a must in the constitutional scheme and structure of India. There is no exception to this rule. Therefore, the
operation of the constitutional scheme or structure cannot be envisaged even for a short while without a
President of India being in office. The office of the President came into existence immediately after the
Constitution was adopted on 26th November, 1949. [Article 394]
Introduction:
• The framers of the Indian Constitution adopted the best features from the Constitutions of the leading countries
of the world, and regarding the constitutional position of the President, therefore, they set up a curious
combination of the Presidential and Parliamentary systems.
• Being a Republic, India cannot have a hereditary King. So, an elected President is at the head of the Executive
power in India. The tenure of his office is for a fixed term of years like the American President. He also resembles
the American President in as much as he will be removable by the Legislature only under the special quasi-
judicial procedure of impeachment.
• But, on the other hand, he is more like the English King than the American President in as much as the
Constitution entrusts to him no ‘functions’ to discharge, on his own authority. All the powers that are vested by
the Constitution in the President, are expected to be exercised on the advice of the ministers responsible to the
Legislature as in England.
• The Constitution only formally vests functions in the hands of the President. In reality, he has considerably less
function to discharge his discretion and or his individual judgment. He has to act on ministerial advice and
therefore the Prime Minister and the Council of Ministers constitute the real and effective executive.
• Under the parliamentary form of government as embodied in our Constitution, the President is the
Constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or
under the Constitution on the aid and advise of his Council of Ministers.
• The Supreme Court has consistently taken the view that the powers of the President are similar to the powers of
the Crown under the British Parliamentary system.
• In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, the then Chief Justice, Mukherjea speaking for the
Court, states that though the executive power is vested in the President, the President is only a formal or
constitutional head of the executive. The real power is vested in the Council of Ministers on whose aid and
advise the President acts in the exercise of his functions.
Role of Conventions under the Constitution of India:
• Even though India has adopted a written Constitution, it must not be supposed that the answer to all questions
may be found from the letters of that text; where the Constitution is silent it has to be supplemented by
conventions or well-established usage.
• In S.C. Advocates v. Union of India, AIR 1994 SC 268, it was held that:
• “Even where there is a provision in the Constitution but generally worded, it may have to be interpreted in the
light of conventions which have grown up by the passage of time. The operation of Constitutional provision may
be modified by growth of conventions, practice and observances.”
• The Indian Constitution is very detailed and comprehensive. Some of the conventions of the British Constitution
have been expressly incorporated in the text of the Constitution. Still there remains scope for growth of
convention.
Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 1
• When the terms of a Constitutional provision are ambiguous or silent, on a particular point, a reference may be
made by the court to constitutional conventions or practice relating to that point as an “aid to construction”
provided that in doing so no express provision of the Constitution is violated.
Article 53. Executive Power of The Union.
1. The executive power of the Union shall be vested in the President and shall be exercised by him either directly
or through officers subordinate to him in accordance with this Constitution.
2. Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of
the Union shall be vested in the President and the exercise thereof shall be regulated by law.
3. Nothing in this article shall—
(a) Be deemed to transfer to the President any functions conferred by any existing law on the Government of
any State or other authority; or
(b) Prevent Parliament from conferring by law functions on authorities other than the President.
Meaning of the expression “Executive power”:
• Executive power means the power which is concerned with the ‘execution of the will of the State’. However,
executive power is not defined in our Constitution.
• Like the legislation and judicial powers, “executive power” is also essentially a constitutional concept. While the
judicial power is the administration of justice in accordance with law, the executive power is the administration
of Government in accordance with law.
• However, in Ram Jawaya Kapur v. State of Punjab (supra), the Supreme Court dealt with important questions
relating to the nature of executive power and the manner in which it is to be exercised under our Constitution. It
was observed:
• “It may not be possible to frame an exhaustive definition of what executive function means and implies.
Ordinarily, the executive power connotes the residue of the functions of Government after legislative and
judicial functions have been taken away”.
• Executive power is co-extensive with legislative power. Hence, if there is no enactment covering a particular
subject, certainly the Government can carry on administration by issuing administrative directions or instructions
until the Legislature makes a law on that behalf.
• The executive power vested in the President can be exercised only “in accordance with the Constitution” and
the power is not intended to be exercised to destroy the Constitution itself.
• Executive power also partakes of legislative or certain judicial acts. But all organs of State namely the Executive,
the Legislature, and the Judiciary derive their authority, jurisdiction, and powers from the Constitution and some
allegiance to it. No organ can claim sovereignty or supremacy over the other organs.
• Article 53(1) has a threefold function:
(a) It vests the executive power in the President.
(b) It enables him to exercise this power either directly, i.e., personally, or through subordinate to him.
(c) It delimits the scope of his power by declaring that it must be exercised in accordance with the Constitution.
• But by reason of Article 74(1), all these powers, whether he exercises them directly or through subordinates, can
be exercised only on the advice of the council of ministers.
• The President derives his power from Article 53 which vests in him all the executive authority including the
Supreme Command of the Armed forces. There are several other provisions in the Constitution that mention
specific functions of the President. Briefly, the President has the power to appoint.
• All important offices including those of the Prime Minister and other Central Ministers, Governors, Judges of
the Supreme Court and the High Courts, and even Election commissioners. He even has the authority to
appoint commissions with respect to the administration of scheduled areas.

• Under Article 263, the President is empowered to establish an Inter-State Council, if at any time, it appears to
him that the public interests would be served thereby. The purpose of setting up of an Inter-State Council is for
the settlement of disputes between the Union and the States as well as between the States. However, the
Council under Article 263 have no power itself to adjudicate any dispute like the tribunal set up under Article
262 in relation to inter-State waterways. But there are many disputes which may be settled by a mere inquiry
and report by such an inter-State body, and litigation may be obviated by its efforts. The ambit of the jurisdiction
of this Council will be very wide inasmuch as any disputes which may have arisen ‘between states’ may be
referred to it. The creation of this Council would not oust the jurisdiction of the Supreme Court under Article
131.
• If two or more States are involved in non-observance of an inter-State agreement, the President can compel the
States to observe the inter-State agreement and to resolve the dispute with the help of the Inter-State Council.
• The Supreme Court in T.N. Cauvery Padhugappu Sangam v. Union of India, AIR 1990 SC 1316, has held that
once the Central Government finds that the dispute referred to in the request received from the State
Government cannot be settled by negotiations, it becomes mandatory for the Central Government to constitute
a tribunal and to refer the dispute to it for adjudication. If the Central Government fails to make such reference,
the court may, on an application under Article 32 by an aggrieved party issue mandamus to the Central
Government to carry its statutory obligation.
• Most importantly the President is vested with wide powers during the Emergency under Articles 352 to 360 of
the Constitution including suspension of Fundamental rights.
• Moreover, every bill comes to him for his assent and can either refuse to give his assent or send it back for
reconsideration.
Position of the President
• Indian Parliamentary form of government is borrowed from the UK, where the monarch is head of the State, not
the US presidential form of government. India, being a Republic, has a President, which has power, privileges
and duties, very similar to the British Monarch.
• Dr. B.R. Ambedkar, in constituent assembly about President, has said that:
• “President occupies the same position as the King under the English Constitution. He is the head of the state but
not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of 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.”
• The President of India acts in two following capacities. However, it is not defined in the Constitution, expressly,
under what circumstances he acts in which capacity.
(i) As a Constitutional Head.
(ii) As an Executive Head.
1. As a Constitutional Head:
• The President of India is the head of state, formal executive, the first citizen of India and the Supreme
Commander of the Indian armed forces. In theory, the President possesses considerable power. In practice, the
President’s role is comparable to those of a constitutional monarch, and indeed the office replaced that of the
British monarch (represented by the Governor General) upon India’s independence.
• The framers of the Indian Constitution explained that they had outlined the position of the President of India on
the Irish Model, viz., that of an elected President, acting on the advise of ministers responsible to the Legislature.
• However, the Indian President is not an exact replica of the Irish model despite the similarities. The Indian
President like the Irish is neither the repository of all powers of the State as the English King is, nor would he be
the head of the political system like the American President who has been styled as “the majesty of the people
incarnate”.
• Under Article 53(1) of the Indian Constitution, the executive power of the Union is vested in the President, but
under Article 74, there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the
President in the exercise of his functions. The President has, thus, been made a formal or a constitutional head
of the executive, and the real executive powers are vested in the Ministers or the Cabinet.
• However, under certain circumstances, the President of India may cease to be a mere constitutional head and
exercise effectively the powers given to him under the Constitution.
• As observed in Ram Jawaya Kapur v. State of Punjab (supra), if the president is satisfied that the Prime Minister
is exercising his powers not in the interest of the nation, but for furthering the interest of his political party, the
President may exercise his power effectively under the Constitution.
• The position of the President of India corresponds in several aspects to that of the King or Queen of England. The
British Parliament consists of the King and the House of Commons and House of Lords and Indian Parliament
consists of the President and the House of People and Council of States. Further, just as the King is not a member
of either House of Parliament, the President cannot be a member of either House of Parliament or the
Legislature of any State and on his being elected President, he is deemed to have vacated his seat in that House.
Like the King who acts on the advice of his minsters, the President must act on the advice of his Council of
Ministers.
• The King enjoys an unchallenged position as Head of State. There can be no legitimate claimant against him. The
President, on the other hand, can never enjoy an unchallenged position. He is elected by the people and
represents the people who elect him.
• According to Prof. Dr. H.C. Jani Kagzi:
• “The President is not a robot placed in the President House. He is not even a computer-controlled automation.
Neither he is a figurehead, nor an ornamental piece placed in the show window of the Nation; that is, the
President’s House. He is a living human whom the Nation selects; and he is endowed with all dignity, honour,
and prestige. The Constitution declares him to be the Head of the Republic. He has the inalienable duty to
uphold the Constitution and the laws must not be doubted. He is required ‘to the best of my ability, preserve,
protect and defend the Constitution’. Although a Constitutional head, he stands as the father figure of the
Prime Minister and ministers, when things go normally, he does have an imperative duty to ensure that the
Government is carried out in accordance with the provisions of the Constitution; the convention and practices of
the parliamentary democracy and the institution of the republic. His is the prerogative to counsel and advise the
Prime Minister and the council of ministers and to sound caution when the need for this arises. The President
and the Prime Minister stand in a very close and intimate relationship of Constitutional trust and public
confidence. They stand in a fiduciary relationship with one another. They are required to trust one another,
repose confidence in one another, and co-operate in a harmonious manner with one another.”
• According to Henry W. Holmes Jr., American Jurisprudence Scholar in Constitutional Law:
• “During the normal operation of the Government, the President acts as the ceremonial head, but when certain
exigencies occur, the President, as a neutral symbol of unity above the party system, exerts power at his own
discretion. He is the safety valve to continue the Government when the system breaks down, and he is to
operate the Government in trust till parliamentary Government is restored.”
• In the ultimate analysis, it is the Council of Ministers that will prevail and not the President. President’s role is
the best advisory, he may act as a guide, philosopher, and friend to the Minsters, but cannot assume to himself
the role of their master- a role which is assigned to the Prime Minister. The Constitution intends that the
President should be a centre from which a beneficial influence should radiate over the whole administration
and not that he should be the focus or centre of power.
• It is clear that the Indian President is not an exact replica of the Executive of any other country, but combines
some features drawn from many sources. The Constitutional of India provides a unique position for the
President of India with the inalienable duty to uphold the Constitution.
2. As an Executive Head:
• Under Article 53 of the Constitution the Executive Power of the Union vests in the President and such power
should be exercised by him either directly or through officers subordinate to him in accordance with the
Constitution.
• In Ram Jawaya Kapur v. the State of Punjab, (supra), it was held that the executive power is generally described
as the residue, which does not fall within the legislative or judicial power. But executive power may also partake
of legislative or judicial actions.
• The executive function comprises both the determination of policy as well as carrying it into execution. This
evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic
welfare, the direction of foreign policy, in fact, the carrying on or supervision of the general administration of the
State.
Extent of Executive Power of the Union:
• Article 73 provides that the executive power of the Union shall extend to matters with respect to which
Parliament has the power to make laws and to exercise such rights, authority and jurisdiction as are exercisable
by the Government of India, by virtue of any treaty or agreement. The proviso engrafted in clause (1) of Article
73 further lays down that although with regard to matters in the Concurrent List, the Executive authority should
ordinarily be left to the State, it would be open to the Parliament to provide in exceptional cases that the
executive power of the Union shall extend to these matters also.
• Therefore, by virtue of clause (1)(a) of Article 73, the executive power of the Union shall be co-extensive with the
legislative power of the Union Parliament. The Supreme Court in Satya Narain Shukla v. Union of India, (2006) 9
SCC 69, has reiterated the principle in holding that the executive power of the Central Government extends to
the same subjects and to the same extent as that of Parliament as long as it does not infringe upon any provision
of any law made by Parliament or the Constitution.
• The extent of executive power of the Union can be summarized as follows-
1. The Union shall have exclusive power for-
(a) The administration of laws made by Parliament under its exclusive power;
(b) The implementation of treaties and agreements binding on the Government of India, whether entered
into before or after the commencement of the Constitution. [Article 253]
2. While executive authority in regard to matters in the Concurrent List shall be ordinarily left to the States,
Parliament shall be entitled to provide that in exceptional cases the executive power of the Union shall also
extend to these subjects. Though Parliament has the power to enact laws in respect of matters covered by
the State List in pursuance of any treaty or agreement entered into with foreign countries, the executive
power can be exercised by entering into a treaty, though it is likely to affect matters in the State List.
3. The proviso to clause (1) of Article 73 provides that Executive authority in regard to matters in the
Concurrent List shall be ordinarily left with the States, but Parliament shall be entitled to provide that in
exceptional cases the power of the Union shall also extend to these subjects.in Concurrent List
4. Apart from Article 73, the executive power is conferred upon the Union as regards three specified matters-
(a) Carrying on of any trade or business. [Article 298]
(b) Acquisition, holding and disposal of property. [Article 298]
(c) Making of contracts for any purposes. [Article 299]
Whether specific legislation is required for the exercise of executive power relating to a
particular subject:
• In Ram Jawaya Kapur v. State of Punjab, (supra), it was held that;
• “Under our Constitution, the functions of the Executive are not confined to the execution of laws made by the
Legislature and already in existence. Articles 73 and 162 indicate that the powers of the Executive of the Union
and of a State are co-extensive with the legislative power of the Union and State, as the case may be. While the
Executive cannot act against the provisions of a law, it does not follow that in order to enable the Executive to
function relating to a particular subject, there must be a law already in existence, authorizing such action.
• Once a law is passed, the executive power can be exercised only in accordance with such law so far as it goes but
the Government is not debarred from exercising its executive power merely because a Bill relating to the subject
is pending before the Legislature. [Joseph v. State of Kerala, AIR 1955 Ker 290]
• Legislation may, however, be required where the Constitution itself provides that the act can be done by
legislation e.g., for the imposition of tax [Article 265]; for the expenditure of money [Article 266(3)];
encroaching upon fundamental rights [Article 19(2)(6)] or other legal rights [e.g., Article 300A].
• The following activities (not exhaustive) can be implemented administratively without the need of having any
specific statutory power:
(a) Engage in the trading undertaking. The overall power for this purpose is to be found in Article 298 of the
Constitution.
(b) Enter into a contract with any person, accept or reject any tender and dispose of public property.
(c) Enter into treaties with foreign countries. But, maybe at times, legislation may be necessary to implement
the terms of treaties.
(d) Create posts and make appointments, promote Government servants from lower to higher administrative
posts or fix their seniority, grades, or emoluments, create a cadre or merge one cadre with another, or lay
down service conditions for its employer.
The President doesn’t exercise executive power personally:
• The executive power of the Central Government vests in the President [Article 53(1)] but the President doesn't
exercise the executive functions individually or personally. Executive actions taken in the name of the President
are the action of the Union [Article 77(1)].
Article 74. Council of Ministers to Aid and Advise President.
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.
2. The question of whether any and if so what, advice was tendered by Ministers to the President shall not be
inquired into in any court.
• Originally clause (1) of Article 74 provided that:
• “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President”
• After the 42nd Constitutional Amendment Act, 1976, Clause (1) of Article 74 reads:
• “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:”
• Clause (1) was substituted, by the 42nd Constitutional Amendment Act, 1976, to add the italicized, words, in
order to make it clear that the President can exercise his functions only in accordance with the advice of the
Council of Ministers.
• However, in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, it had been held by the Supreme Court
that even before the additional words were inserted by the Amendment, the meaning of Article 74(1) was
the same. The court further observed:
• “It was not correct to say that the President is to be satisfied personally in exercising the executive power.
The President is only a formal head or Constitutional head, who exercises the power and functions conferred
on him by or under the Constitution on the aid and advice of his Council of Ministers. Whenever the
Constitution requires the ‘satisfaction’ of the President for the exercise by him of any power or function, it
is not his personal satisfaction, but in the Constitutional sense, the satisfaction of his Council of Ministers.”
• 44th Constitutional Amendment Act, 1978, the Proviso was inserted to Article 74(1) which provides:
• “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 was added to Clause (1) of Article 74 to partially ameliorate the rigorous provision of clause (1),
as amended in 1976, which would have reduced the President to the position of a rubber-stamp. The Proviso
saves the President from such discomfiture, by empowering him to ask the council of ministers to reconsider
an advice (which may not be to his liking.) If, however, on their reconsideration, they give the same advice,
the President shall be bound to act according to that advice.
• In other words, the President shall have an opportunity of returning it for reconsideration once, but only
once.
• Therefore, after the 1976 amendment of Article 74(1), the Constitution expressly requires the President to
act “in accordance with such advice”. If the ministers give him an unconstitutional advice, the ministers shall
be answerable to the House of the People, under Article 75(3). But, if the President rejects a ministerial
advice, he would himself be liable to the charge of violating the Constitution and answerable to
Parliament in impeachment.
• He cannot reject the advice, but may ask the Council of Ministers to reconsider it under the Proviso
inserted in the year 1978.
Exceptional circumstances in which the President might have to exercise his individual
judgment:
• Though the insertion of the word ‘shall’ in the latter part of Article 73(1) has settled the major controversy as to
the position of the President under the Constitution, it was pointed out by the Supreme Court in its pre-1976
decisions that there are certainly exceptional cases where, in the nature of the things, the President cannot act
according to the advice of the Council of Ministers.
• In Shamsher Singh v. State of Punjab, (1974) 2 SCC 831, by 7 Judges Bench, it was said, “the President,
custodian of all executive and other powers under various articles shall, by virtue of these provisions, exercise
their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few
well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to-
(a) The choice of Prime Minister, restricted though this choice is by the paramount consideration that he should
command a majority in the House;
(b) The dismissal of a Government that has lost its majority in the House, but refuses to quit office;
(c) The dissolution of the House under Article 85(2)-
o When Prime Minster loses his majority;
o When Prime Minister is unable to prove his majority;
o When a vote of no-confidence is passed against the ministry; or
o When the Prime Minister is not facing the Parliament, the President has proof that the ruling party does
not have a majority.
(d) There are some provisions in the Constitution itself, such as Proviso to Article 111 which provides that
when a Bill (other than a money bill) has been passed by the Houses of Parliament, the President may return
the Bill to the Houses for reconsideration, but only once. But even if the same bill is passed by the Houses
without any amendment and presented to the President for assent, the President would be bound to give
his assent. Even if the Council of Ministers advices the President not to give his assent, the President is
bound to give his assent due to the duty imposed by Proviso to Article 111. Similarly, under Article 368(2),
when a Bill of amendment to the Constitution is presented to the President after being passed in each
House, the President is bound to give his assent to the Bill and any advice given by the Council of Ministers
to the President regarding such assent would be of no force.
(e) The Constitution requires the President to take the advice of some other authority, such as-
(i) Under Article 217(3), in the matter of determination of the age of the High Court Judge, the President is
required to take the advice of the Chief Justice of India. However, Article 217(3) does not say that
President ‘shall act according to such opinion’ but merely requires the President to decide ‘after
consultation with the Chief Justice of India. It clarifies that the requirement to consult a third party does
not dispense with the overall requirement to act according to the advice tendered by the Council of
Ministers, after considering the opinion of such a third party.
o Justice Krishna Iyer, in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 observed:
o “In all conceivable cases consultation with the highest authority of Indian Judicial will and should be
accepted by the Government of India and the court will have an opportunity to examine if any other
extraneous circumstances have extended into the verdict of the Minister.”
(ii) After the 44th Constitutional Amendment, under Article 103(2), on a question on disqualification of a
Member of Parliament, the President shall obtain the opinion of the Election Commission and shall act
according to such opinion. In the abovementioned situation, the President cannot act according to the
advice of his Council of Ministers and this is an exception to Article 74(1), engrafted by the Constitution
itself.
o However, it is clarified that these exceptions mentioned hereinabove are not exhaustive.
Scope of the bar against judicial review raised by Article 74(2)
• The relation between the President and the Council of Ministers is confidential because Article 74(2) of the
Constitution provides that the nature of advice tendered by Ministers shall not be enquired into by any court.
• The scope and object of this bar against judicial review made under Article 74(2) came into question in the
landmark judgment of S.R. Bommai v. Union of India, AIR 1993 SC 1769, wherein inter alia the following
observations were made by the Supreme Court of India:

1. The object of Article 74(2) is not to exclude any material or document from the scrutiny of the court, but to
provide that an order issued by or in the name of the President cannot be questioned on the ground that it is
either contrary to the advice tendered by the Council of Ministers and it is issued without obtaining any
advice from the Ministers. In effect, the purpose is to make the question of whether the President had
followed the advice of the Council of Ministers, non-justiciable.
2. If in a given case, the President acts without or contrary to the advice tendered to him, it may be a case that
may warrant his impeachment, but so far as the court is concerned, it is the act of the President.
3. The materials on which the reasoning of the Council of Ministers is based, and the advice given cannot be
said to form part of the document.
4. Article 74(2) does not bar scrutiny by the court of the factual existence and relevance of the material on
the basis of which the advice was tendered by the Ministers to the President.
5. Where certain documents are part of the preparation of the document leading to the formation of the
advice tendered to the President of India, they are privileged under Article 74(2).
6. Even though the exact advice of the Council of Ministers is not subject to Judicial Review, the material
based on which such advice was tendered will be subject to Judicial Review.
• This observation was confirmed by the Supreme Court of India in the case of Rameshwar Prasad v. Union of
India, AIR 2005 SC 4301 wherein the court further held the Presidential proclamation and dissolution of the
Assembly unconstitutional.
Other Important Provisions Relating to President:
Election of the president
Article 54. Election of President.—
• The President shall be elected by the members of an electoral college consisting of—
(a) The elected members of both Houses of Parliament; and
(b) The elected members of the Legislative Assemblies of the States.
• Explanation.—In this Article and in Article 55, “State” includes the National Capital Territory of Delhi and the
Union territory of Pondicherry.
• The President is elected by the method of indirect election i.e. by an electoral college consisting of elected
members of both Houses of Parliament and of the State legislative assemblies.
• The nominated members of the Houses at the Centre and the states do not have voting rights in the election of
the President.
• The election of the President shall be held in accordance with the system of proportional representation by
means of the single transferable vote.
• The system adopted for voting by secret ballot.
• The method of indirect election was to emphasize the ministerial character of the executive that the effective
power resides in the Ministry and not in the President as such. Secondly, the method of the direct election
would have been very costly and energy-consuming. There was also the fear that a directly elected President
may in course of time assume all the power.
• Dr. Ambedkar,
• “The reason that the President is not directly elected is that he may not be content with his mere constitutional
position and can claim to derive his authority from the people. So, if he wanted to assume real power, this would
lead to a Constitutional deadlock and a clash with the Cabinet.”
• Therefore, the office of the president as created by Article 52 of the Constitution is not subjected to direct
election by the people but by the method of indirect election.
Article 71 under clause (1) further provides that
(1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be
inquired into and decided by the Supreme Court whose decision shall be final.

Manner of election of the President:
• Under Article 55, the constitution provides that as far as practicable there shall be uniformity in the scale of
representation among the states inter-se as well as parity between the states as a whole and the Union at the
election of the President. For the purpose of securing such uniformity among the states, the parity between the
Union and states, the following formula is adopted:
1. Every elected member of the legislative assembly of a state shall have as many votes as there are multiples
of 1000 in the quotient obtained by dividing the population of the state by the total number of the elected
members of the Assembly.
2. If by this division, the remainder is 500 or more, it will be counted as if the vote of each member is increased
by one. Thus, the number of votes which a member of the legislative assembly is entitled to cast in the
presidential election is based on the ratio of the population of the state.
3. The number of votes which elected members of Parliament are entitled to cast shall be obtained by dividing
the total number of votes of the legislative assemblies of all the states obtained under the above formula,
by a total number of the elected members of both Houses of Parliament.
4. If by this division the reminder exceeds one-half it will be counted as one. This formula secures parity of
votes between the members of Parliament, and of the legislative assemblies of the state.
• The result of sub-clauses (a) and (c) of Clause (2) of Article 55 is as follows:
(𝒂𝒂) 𝑇𝑇ℎ𝑒𝑒 𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛 𝑜𝑜𝑜𝑜 𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣 𝑜𝑜𝑜𝑜 𝑒𝑒𝑒𝑒𝑒𝑒ℎ 𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚 𝑜𝑜𝑜𝑜 𝑎𝑎 𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆 𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿 𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴 𝑜𝑜𝑜𝑜 𝑒𝑒𝑒𝑒𝑒𝑒ℎ𝑒𝑒𝑟𝑟
𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆 𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝𝑝
𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻 𝑜𝑜𝑜𝑜 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃 =
𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇 𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛 𝑜𝑜𝑜𝑜 𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚 𝑜𝑜𝑜𝑜 𝑡𝑡ℎ𝑒𝑒 𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴 × 1000
(𝒄𝒄) 𝑇𝑇ℎ𝑒𝑒 𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛 𝑜𝑜𝑜𝑜 𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣 𝑜𝑜𝑜𝑜 𝑒𝑒𝑒𝑒𝑒𝑒ℎ 𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚
𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇 𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛 𝑜𝑜𝑜𝑜 𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣𝑣 𝑜𝑜𝑜𝑜 𝑡𝑡ℎ𝑒𝑒 𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚 𝑜𝑜𝑜𝑜 𝑎𝑎𝑎𝑎𝑎𝑎 𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆𝑆 𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿𝐿 𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴𝐴
=
𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇𝑇 𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛𝑛 𝑜𝑜𝑜𝑜 𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒𝑒 𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚𝑚 𝑜𝑜𝑜𝑜 𝑏𝑏𝑏𝑏𝑏𝑏ℎ 𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻𝐻 𝑜𝑜𝑜𝑜 𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃𝑃
• Sub-clause (b)of Article 55 only deals with the remainder, if any, obtained by the calculation made under sub-
clause (a). Sub-clause (b) provides that if, after taking the said multiples of one thousand under sub-clause (a),
the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be
further increased by one.
• The working of all the sub-clauses may be illustrated thus-
o Suppose the population of Bombay is 20,849,840.
o Let us take total number of elected members in the Legislative Assembly of Bombay to be 208 (i.e., one
member representing one lakh of the population).
o To obtain the number of votes which each such elected member will be entitled to cast at the election of the
President, we have to first to divide 20,849,840 (which is the population) by 208 (which is the total number
of elected member), and then divide the quotient by 1,000.
o In this case,
208,49,840 100239
÷ 1000 = = 𝟏𝟏𝟏𝟏𝟏𝟏 (𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 𝑡𝑡ℎ𝑒𝑒 𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 239 𝑏𝑏𝑏𝑏𝑏𝑏𝑏𝑏𝑏𝑏 𝑙𝑙𝑙𝑙𝑙𝑙𝑙𝑙 𝑡𝑡ℎ𝑎𝑎𝑎𝑎 500)
208 1000
o Thus each member of Bombay Legislative Assembly (MLA) will get 100 votes and the total votes cast by
Bombay Legislative Assembly would be – 100 × 208 = 20,800.
Tenure
Article 56. Term of office of President.—
1. The President shall hold office for a term of five years from the date on which he enters upon his office:
• Provided that—
(a) The President may, by writing under his hand addressed to the Vice-President, resign his office;
(b) The President may, for violation of the Constitution, be removed from office by impeachment in the
manner provided in Article 61;
(c) The President shall, notwithstanding the expiration of his term, continue to hold office until his
successor enters upon his office.
2. Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be
communicated by him to the Speaker of the House of the People.
• Article 56 states that the President shall hold office for a term of five years from the date on which he
enters upon his office.
• Even after the expiry of his term he shall continue to hold office, until his successor enters upon his office.
He is also eligible for re-election.
• The President may also resign from the office before the expiry of his tenure, by writing to the Vice-
President.
• He may also be removed from his office for the violation of the Constitution by the process of
impeachment.
• Article 57 further provides that a person who holds, or who has held office as President shall, subject to the
other provisions of the Constitution, be eligible for re-election to that office. Under our Constitution, it will
be possible to re-elect a worthy President as many times as he holds the people’s confidence, and is not
otherwise disqualified. However, there is a Constitutional convention which sets for a maximum of two
term tenure for the President.
Qualifications for Presidential Candidate
• Article 58 of the constitution lays down that the person to be eligible for the president should be:
o At least 35 years of age,
o A citizen of India, and
o Should be qualified to be a member of the Lok Sabha.
• A person is also not qualified to stand for election as President if he holds the office of profit.
• The conditions of the President’s office are that they cannot be members of any legislature and if they are such
members at the time of their election or appointment, they are deemed to have vacated their seats in such
legislature when they enter upon their office.
• Article 59 provides the conditions of the President’s office and reads-
1. The President shall not be a member of either House of Parliament or of a House of the Legislature of any
State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected
President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon
his office as President.
2. The President shall not hold any other office of profit.
3. The President shall be entitled without payment of rent to the use of his official residences and shall be also
entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and,
until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the
Second Schedule.
4. The emoluments and allowances of the President shall not be diminished during his term of office.
Office of Profit
• An ‘office of profit’ is an office that is capable of yielding a profit or pecuniary gain. Holding an office under the
Central or State Government to which some pay, salary, emolument, remuneration, or non-compensatory
allowances is attached ‘holding an office of profit’.
• The word ‘profit’ has always been treated as equivalent to or a substitute for the term ‘pecuniary gain’. The very
context in which the word ‘profit’ has been used after the words ‘office of’ shows that not all offices are
disqualified, but only those which yield pecuniary gains as profit, other than mere compensatory allowance to
the holder of the office. If the pecuniary gain is receivable in connection with the office, then it becomes an
office of profit, irrespective of the fact whether such pecuniary gain is actually received or not.
• In Jaya Bachan v. Union of India, AIR 2006 SC 2119, the Supreme Court observed:
• “Where the office carries with it certain emoluments or the order of appointment states that the person
appointed is entitled to certain emoluments, then that will be an ‘office of profit’, even if the holder of the office
chooses not to receive or draw such emoluments. What is relevant is, whether the pecuniary gain is ‘receivable’
in regard to office and not whether the pecuniary gain is, in fact, received or received negligibly.”

• In Anokh Singh v. Punjab State Election Commission, AIR 2011 SC 230, the Supreme Court observed that
‘whether an office is an office of profit depends on facts and circumstances of each case, its substance and
essence and no conclusion could be arrived at on the basis of nomenclature or form. Where a person who has
taken a contract with Government is desirous of contesting the election, the contract must be cancelled.’
Oath or Affirmation by The President:
• Article 60 reads:
o Every President and every person acting as President or discharging the functions of the President shall,
before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his
absence, the senior-most Judge of the Supreme Court available, an oath or affirmation in the following form,
that is to say—
“I, A.B., do swear in the name of God that I will faithfully execute the office solemnly affirm of President
(or discharge the functions of the President) of India and will to the best of my ability preserve, protect
and defend the Constitution and the law and that I will devote myself to the service and well-being of the
people of India”.
Impeachment of the President
• Article 61 of the Constitution lays down the procedure for the impeachment of the President.
• The President can be removed from his office by a process of impeachment for the ‘violation of the
Constitution’. The impeachment charge against him may be initiated by either House of Parliament.
• The charge must come in the form of a proposal contained in a resolution signed by not less than one-fourth of
the total number of the members of the House, and moved after giving at least 14 days’ advance notice.
• Such a resolution must be passed by a majority of not less than two-thirds of the total membership of the
House.
• The charge is then investigated by the other House. The president has the right to appear, and to be
represented in such an investigation. If the other House after investigation passes a resolution by a majority of
not less than two-thirds of the total membership of the House declaring that the charge is proved, such
resolution shall have the effect of removing the President from his office from the date on which the resolution
is so passed.
Powers of the President
• The President of India performs several functions of the executive, legislative, judicial, and several other nature.
It is noteworthy that such categorization is not clearly demarcated by the Constitution, so it overlaps with each
other. Some of the power of the President is following:
1. Executive Power:
• A primary function of the executive is to administer and execute the laws enacted by the Parliament and
maintain law and order. However executive function cannot be limited to this and a modern state is not
expected to confine itself to a mere collection of taxes, maintaining law and order and defending the country
from external aggression. The executive operates over a large area and discharges varied and complex
functions. The Central Executive is entitled to exercise executive functions with respect to all those subjects
which fall within the legislative sphere of Parliament besides exercising executive functions which are
exercisable by the Government of India under any treaty or agreement.
• A few provisions in the constitution confer on the president some express executive powers such as:
o Appointment of Prime Minister and Council of Ministers [Article 75(1)].
o Appointments of the Governors of the States [Article 155], Lieutenant Governors and Administrators of
UTs [Article 239(1)].
o Appointments of Chief Justice of India, Judges of the Supreme Court [Article 124(2)], Chief Justices of
High Courts, other Judges of the High Courts [Article 217(1)] and their transfers [Article 222(1)], etc.
o Appointment of the Election Commissioners [Article 324(2)].
o Appointment of a temporary presiding officer of Rajya Sabha [Article 91(1)]
o Appointment of a temporary presiding officer of Lok Sabha [Article 95(1)]
o Appointment of the Comptroller and Auditor General of India [Article 148(1)].
o Appointment of Attorney-General of India Article [Article 76(1)].
o Appointment of Finance Commission [Article 280(1)].
o Appointments of members of the Union Public Service Commission [Article 316(1)].
o Appointments of Chairman of National Commissions of SC [Article 338(3)]& ST [Article 338A (3)],
Backward Commission [Article 338B (3)] etc.
• However, a dispute exists with regards to this power due to the absence of a definition of the term
‘executive power’ in the Constitution.
• For example, in Amritlal v. F.N. Rana, Justice Shah remarked that: “It cannot however be assumed that the
legislative functions are exclusively performed by the legislature, executive functions by the executive and
judicial functions by the judiciary alone. The constitution has not made absolute or rigid divisions of function
between the three agencies of the State”.
• The executive cannot act against a statute or exceed its statutory powers. If there exists a law on that
particular matter the executive is bound to act in accordance with it.
• In M.P v. Bharat Singh, the Hon’ble Supreme court held that the executive cannot infringe the rights of
private individuals without any legal authority. However, in some cases, the government may do any act
provided it is not an act assigned by the Constitution to any authority or body or it is not contrary to the
provisions of any law or it does not encroach upon the individual’s right without the existence of prior
legislation supporting the same. An example of this would be the acquiring of a foreign territory ceded to
India.
2. Legislative Power:
• Participation of the executive in the legislative process:
• The President along with the council of ministers is both members of the parliament and participates
intimately in the legislative making process.
• Since, President is a part of Parliament (Article 79), his Legislative powers are as follows:
o Summon, Prorogation of the session of Parliament or Dissolution of the Lok Sabha [Article 85].
o The President inaugurates Lok Sabha by addressing it after each general election and also at the beginning
of the first session of every year [Article 87(1)].
o All bills passed by the parliament can become laws only after receiving the assent of the president [Article
111].
o Calls Joint Sitting of the Parliament [Article 108].
o Nomination of 12 members to the Rajya Sabha [Article 80(3)].
o The central executive’s consent is also required in passing of certain types of State legislation which fall
under the ambit of [Article 288(2)]. Moreover, in certain aspects President’s recommendation is required
before the Bill is introduced before the two houses of Parliament.
o A money bill cannot be introduced without the recommendation of the President [Article 117(1)].
Promulgation of Ordinance [Article 123]
• The more controversial and debatable legislative power of the President has always been the Ordinance Making
power. Usually, the power to make the laws rests with the Parliament. However, Article 123 confers special
power on the President empowering him to promulgate ordinances when the Parliament is not in session and
the circumstances are such which require immediate action. An ordinance cannot be promulgated when both
the houses of parliament are in session. However, it may be passed when only one house is in session the
reason being that a law cannot be passed by only one house and thus it cannot meet a situation calling for
immediate legislation.
• This power is granted to the President in the Indian Constitution. It is unique that no such power has been
conferred upon the executive in Britain or the USA.
• In A.K. Roy v. Union of India, AIR 1982 SC 710, the Supreme Court observed:
• “While the law-making power under the Constitution of India is vested in the Parliament (Article 107), Article
123 empowers the President to legislate by Ordinances, to meet with any circumstances that require immediate
action, when Parliament or either House thereof is not in session. However, the satisfaction referred to in this
clause is the satisfaction of the President, acting on the advice of his Council of Ministers.”
• In justification of the inception of the Ordinance Making power in the Constitution, Dr. Ambedkar said that
“there might be a situation of emergency when the Houses of the parliament is not in session. It is important
that this situation should be dealt with and it seems to me that the only solution is to confer upon the President
the power to promulgate the law which will enable the executive to deal with that particular situation because it
cannot resort to the ordinary process of law because the legislature is not in session.”
• Further in Shamsher Singh v. State of Punjab (1974), the Supreme Court held:
• “The President is invested with legislative power only in order to enable the Executive to tide over an emergent
situation which may arise whilst the Houses of the Parliament is not in session. Furthermore, this power to
promulgate an ordinance conferred on the President is co-extensive with the power of Parliament to make law
and the President cannot issue an Ordinance which the Parliament cannot enact into law. The legislative power
conferred on the President is thus hedged by condition and limitation.”
• Article 123 empowers the President to promulgate ordinance as the circumstances which appear to require
when –
(a) When both houses of the parliament are not in session;
(b) He is satisfied that the circumstances exist which render it necessary for him to take immediate action.
• Clauses (2) and (3) of Article 123, read together, make it clear that the power of the President to legislate by
Ordinance during the recess of the Union Parliament is co-extensive with the legislative power of Parliament
itself. Hence, the President may enact by Ordinance what Parliament might have enacted, and he cannot enact
what Parliament could not. It is obvious that the President cannot claim the power to amend the Constitution
which belongs to the Parliament in the exercise of ‘Constituent’ power under Article 368.
Judicial Review of ordinance promulgation power of the President:
• In the case of Bariun Chemicals v. Company Law Board, AIR 1967 SC 295, the Supreme Court broke the ice by
holding that it was not correct to say that judicial review was totally ousted whenever the Legislature
empowered an authority to act upon his subjective satisfaction as to specified circumstances. The Court
therefore held:
• “Since the subjective satisfaction was made a ‘condition precedent’ to the exercise of the power, it was open to
the Petitioner to show that condition precedent did not exist, because of any of the following facts disclosed on
the record:
(a) That no circumstances had been placed before the authority for his consideration;
(b) That the circumstances relied upon by the impugned order did not exist, in fact;
(c) That the fact placed before the authority was such that it was impossible for any reasonable person to form
an opinion of the kind specified by the Legislature;
(d) That the authority did not apply his mind to the relevant circumstances at all;
(e) That the grounds upon which the impugned order professes to have been made were not relevant to the
object of the power or had no rational connection with the object.”
• In A.K. Roy v. Union of India (supra), the question of judicial review of President’s satisfaction to promulgate the
National Security Ordinance 1980 providing for preventive detention was raised. The Supreme Court left the
question open whether the satisfaction of the President under Article 123(1) is justiciable or not. The Court said
that it was arguable that ‘judicial review’ is not totally excluded in regard to the question relating to the
President’s satisfaction.
• Judicial review is also maintainable when the power is exercised mala fide, or under the misconception of the
scope and nature of the power, or by ignoring relevant consideration or by taking into account irrelevant
consideration is ultra-virus and void.
• At times the Government may misuse its ordinance-making power by repeatedly re-issuing an ordinance over
and over again without placing it before the Legislature.
• The case of D.C. Wadhwa v. State of Bihar AIR 1987 SC 579 furnishes the glaring example of abuse of ordinance
power under Article 213 by the Governor. 256 ordinances were promulgated in the state of Bihar, and all of
them were kept alive by re-promulgation without being bought before the legislature between 1976 and 1981.
The court severally criticized this practice characterizing it as undemocratic. The court called it a “subversion of
the democratic process” and “colorable exercise of powers” and held that this amounted to fraud in the
constitution. The court insisted that government cannot bypass the legislature under the constitution.
• Under Article 123, the power to make ordinances have been given only to deal with unforeseen or urgent
matters, and it is subject to proper parliamentary controls. If the executive misuses its power, the Lok Sabha can
pass a vote of no confidence to remove the government from office. However, a government enjoying majority
support in the House can misuse or abuse this power. It can use this power to bypass Parliament and enact a law
through an ordinance that it feels would raise controversies on the floor of the House.
• Furthermore, it has been already pointed out under Article 74(1) that the President shall, in the exercise of his
functions, act in accordance with such advice as is given by the Council of Ministers. Therefore, even while
exercising his ordinance-making power under Article 123, the President shall act according to the advice
tendered by the Council of Ministers. However, Proviso to Article 74(1) provides that the President may require
the Council of Ministers to reconsider such advice, but after such reconsideration, the President shall act in
accordance with the advice tendered.
3. Judicial Power
• The central executive is empowered to appoint judges of the Supreme Court and the High Court under Article
124(2) and 217(1) respectively. The issue of the disqualification of the member of the Parliament is also decided
formally by the President.
Pardoning Power of The President
• Another important judicial power vested with the President is the power to pardon under Article 72.
• Article 72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain
cases.—
1. The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any offence—
(a) In all cases where the punishment or sentence is by a Court Martial;
(b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which
the executive power of the Union extends;
(c) In all cases where the sentence is a sentence of death.
2. Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces
of the Union to suspend, remit or commute a sentence passed by a Court Martial.
3. Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death
exercisable by the Governor of a State under any law for the time being in force.
• Meaning of expressions under Article 72:
(a) Pardon- the word ‘Pardon’ removes both the sentence and conviction and completely absolves the convict
from all sentences, punishments and disqualifications.
(b) Reprieve- implies stay of execution of sentence for a temporary period.
(c) Respite- denotes awarding lesser sentence due to some special fact.
(d) Remission- implies reducing the period of sentence without changing its character.
(e) Suspension- is the temporary postponement of the sentence.
(f) Commutation- denotes the substitution of a form of punishment for a lighter one.
• The words of Article 72 are very wide and do not contain any limitation as to the time at which, the occasion on
which, or the circumstances in which the powers conferred by the Article might be exercised. Pardoning power is
neither a matter of grace nor a matter of privilege, but is an important Constitutional responsibility to be
discharged by the highest Executive authority keeping in view the consideration of larger public interest and
welfare of the people.
• However, Pardon should not be regarded as a matter of right. It is an act of grace. It is an important
Constitutional responsibility to be discharged by the highest Executive authority keeping in view the
consideration of the larger public interest and welfare of the people. The government concerned is duty bound
to objectively put forth full facts of the case of the convict with a clear indication of the nature and magnitude of
the crime committed by him, its impact on society, and all incriminating and extenuating circumstances before
the President, based upon which the President has to take a final decision in the matter. Although, President
cannot overturn the final verdict of the court, in appropriate cases, President can, after scanning records of the
case, form his or her independent opinion whether a case is made out for grant of pardon, reprieve, etc. or not.
• President while considering a mercy petition is duty bound to take into consideration various factors such as the
nature of the crime, its impact on society, the nature of the weapon used for the commission of a crime, etc. If
murder is committed in an extremely brutal and dastardly manner, giving rise to intense and extreme
indignation in the community, President would be fully justified in rejecting the mercy petition.
• A pardon not only removes the punishment but also places the offender in the same position as if he had never
committed the offence. The effect of the pardon is to clear the person from all infamy and from all
consequences of the offences for which it is granted and from all statutory or other disqualifications upon
conviction.
• The scope of the power of the President under Article 72 to commute a death sentence into a lesser sentence
has been left open by the court after observing that whether a case is appropriate to be sent for the
consideration of Presidential Pardon depends on the facts and the circumstance of each particular case.
• This power of the president can be subjected to judicial review if the court discovers mala fide intention or
political vengeance.
• In the case of Epuru Sudhakar v. Govt. of Andhra Pradesh AIR 2006 SC 3385, the Supreme Court held that the
pardon power of President is open to judicial review on limited grounds which are as follows:
(a) Order has been passed without application of mind;
(b) Order is mala fide;
(c) Relevant material has been kept out of consideration;
(d) Order is based on wholly irrelevant consideration;
(e) Order has been exercised arbitrarily on the basis of caste or political reasons.
4. Diplomatic Powers
Sending and receiving of the Ambassador to the foreign nations.
(a) An international treaty, agreements to be made on the behalf of the President.
5. Military Power
(a) Supreme Commander of the Armed Forces i.e., Air, Navy and Army [Article 53(2)].
6. Emergency Power (Article 352 to 360)
(a) When the security of the state is threatened, he can proclaim national emergency under Article 352
(b) He also promulgates President rule in the state under Article 356
(c) He can also promulgate financial emergency Article 360
7. Financial power
1. No money bill can be introduced in Parliament without President’s previous sanction.
2. He can make advances out of the Contingency Fund of India to meet the unforeseen expenditure pending
approval of Parliament
3. He has the power to determine the State’s share of proceeds of the income-tax and the amount of yearly
grant-in-aid to certain States. Demand for a grant cannot be made without his recommendation
4. He appoints the Finance Commission after every five years to recommend the distribution of taxes between
the Centre and the States
5. He causes to be laid before Parliament the Annual Financial Statement (union budget) at the beginning of
the financial year.
Council of Ministers
Article 75. Other provisions as to Ministers.—
1. The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the
President on the advice of the Prime Minister.
1A. The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed
fifteen per cent of the total number of members of the House of the People.
1B. A member of either House of Parliament belonging to any political party who is disqualified for being a
member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as
a Minister under clause (1) for duration of the period commencing from the date of his disqualification till
the date on which the term of his office as such member would expire or where he contests any election to
either House of Parliament before the expiry of such period, till the date on which he is declared elected,
whichever is earlier.
o Articles 75 (1A) and (1B) were inserted by Section 2 of the 91st Constitution Amendment Act, 2003,
(w.e.f. 1-1-2004).
2. The Ministers shall hold office during the pleasure of the President.
3. The Council of Ministers shall be collectively responsible to the House of the People.
4. Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy
according to the forms set out for the purpose in the Third Schedule.
5. A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at
the expiration of that period cease to be a Minister.
6. The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine
and, until Parliament so determines, shall be as specified in the Second Schedule.
Appointment of Prime Minister
• According to Article 75(1), the Prime Minister shall be appointed by the President, and other Ministers shall be
appointed by the President on the advice of the Prime Minister.
• If the President is the Constitutional Head of the State, the real executive is the Council of Ministers established
by Article 74(1) with the Prime Minister at the head to aid and advice the President in the exercise of his
functions and he is constitutionally required to always act in accordance with such advice.
• A new Prime Minister is appointed when a Prime Minister in office either dies or resigns, thus, dissolving the
entire Council of Ministers. The choice is exercised by the President, but having regard to the qualification which
the Prime Minister must possess, the range of choice is necessarily limited. He must choose as Prime Minister a
person who has the support of the party or coalition which may be expected to command a majority in the
House, i.e., House of the People. In normal circumstances, the President need have no doubt as to who is the
appropriate person to be appointed, it is the leader of the majority party in the House of the People.
Circumstances can however arise in which the President may have to exercise his personal judgment in selecting
the Prime Minister, for example, where the Prime Minister in office dies or resigns on personal grounds. The
party may have no recognized leader, or either of the two parties may be able to form the Government and
command the support of the House of the People.
• The Constitution does not require that a person must establish or prove his majority in Lok Sabha before he is
invited to be the Prime Minister. The President may first invite and appoint him as Prime Minister and then ask
him to prove his majority or seek a vote of confidence in Lok Sabha within a reasonable period.
• Clause (1) of Article 75 is silent as to how the President shall choose the Prime Minister. The Constitution also
does not provide whether he should necessarily belong to the House of the People or may be a Member of
either House of Parliament. It is, however, established by the Supreme Court in Shamsher v. the State of Punjab,
AIR 1974 SC 2192, that our Constitution has imported the Cabinet system of Government from England, and that
some of the conventions on which the British system of Cabinet Government rests have been codified in the
body of the Constitution.
• Further in S.C. Advocates on Record v. Union of India, AIR 1994 SC 268, the Supreme Court observed: “As
regards the other conventions or in matters of detail which are not available directly from the Constitution, the
British conventions and precedents should be applied. Provided, they are not excluded or modified by the
express provisions of our Constitution.”
• The Prime Minster is the keystone of the Cabinet arch because he is responsible for its formation, life, and death.
In his hand is the key to Government. His functions and duties are wide and his authority enormous. The
convention is that the Head of the State summons the Leader of the Party or group commanding the majority
in the House of the People to form a ministry. If no party has a majority, the President should ordinarily
exercise discretion and summon the leader of a party or group most likely to be able to form a ministry.
Appointment of Council of Ministers
• The other ministers are to be appointed by the President on the advice of the Prime Minister. The same is the
practice in England. The nomination of the ministers rests with the Prime Minister. This does not mean that the
President may not have considerable influence. But as against the President, the Prime Minister has the final
word. He must have a Government that can work together and which can secure the support of the House of
People.
Council of Ministers vis-à-vis Cabinet
• Although the Council of Ministers is nowhere categorized in the Constitution of India, through various
conventions which are being followed in India, the Council of Ministers consists of three categories of Ministers-
(a) Ministers of Cabinet Rank- who are usually the top-level leaders of the ruling party or parties who are in
charge of the major ministries. All Ministers of Cabinet Rank are not members of the Cabinet. The cabinet is
thus the inner ring of the Council of Ministers;
(b) Ministers of State-their rank is lower than that of the Cabinet Ministers and some Minster of State may be
given independent charge usually of smaller ministries and;
(c) Deputy Ministers- who have no separate charge of the department. Their task is to assist the Ministers with
whom they are attached in their administrative duties.
• The Cabinet is a smaller body of the Council of Ministers. The cabinet in India incorporates the essentials of a
Cabinet system of the British Government. The Cabinet is thus an extra-constitutional growth based upon
convention. The Cabinet is the supreme policy-making body. All senior Ministers are members of the Cabinet.
The Council of Ministers shall be collectively responsible to the House of the People.
• Though the Constitution provides only for the Council of Ministers, it speaks of Cabinet only incidentally at one
place [Article 352(3)] (which defines Cabinet as the Council consisting of the Prime Minister and other
Ministers of Cabinet rank appointed under Article 75) as the steering wheel of the Executive Government.
Largely unrecognized by the Constitution, the Cabinet consists of the inner core of the Council of Ministers. It is
in a way, a Committee of Council of Ministers. The whole framework of the Cabinet and its functioning is based
largely on conventions. It ensures that before policy decisions are taken, the issues involved are weighed and
considered. Political decisions of importance are often complex and need sufficient and considerable time, and
the decisions relating to public service need probity and diverse considerations. The Cabinet takes a considered
decision without division with speed and expedition. It is the supreme directive authority.
Rule of Individual Responsibility
• Clause (2) of Article 75 lays down the ministers hold office during the pleasure of the President. The term
‘Ministers’ or ‘Minister’ in clause (2) and subsequent clauses includes the Prime Minister.
• The fact that each minister holds his office at the President’s pleasure indicates that his office is at all times at
the Prime Minister’s disposal, for in these matters the President, acts on the advice of the Prime Minister.
Doctrine of Pleasure
• The Pleasure Doctrine has its origin in English law, with reference to the tenure of public servants under the
Crown.
• In England, the Crown is regarded as the Executive Head and the civil services are part of the Executive. The
doctrine of Pleasure means that the Crown has the power to terminate the services of a civil servant at any time
they want without giving any notice of termination to the servant. Thus, the civil servants work at the pleasure
of the Crown which can remove them at any time. When the civil servants are removed from their service, they
do not have the right to sue the Crown for wrongful termination and they also cannot ask for damages
undergone due to wrongful termination. This doctrine is based on the concept of public policy and whenever the
Crown feels that a civil servant should be removed from his office because keeping him will be against public
policy, the Crown can remove such servant.
• Black’s Dictionary defines `Pleasure Appointment’ as the assignment of someone to employment that can be
taken away at any time, with no requirement for notice or hearing.
• While this doctrine has been adopted in India it has not been blindly copied in the same manner as it is followed
in England and there are some modifications that exist in India’s adoption of this doctrine from that of England.
In India, Article 310 of the Indian Constitution embodies the provision for this doctrine.
• The Constitution refers to offices held during the pleasure of the President (without restrictions), offices held
during the pleasure of the President (with restrictions), and also appointments to which the said doctrine is not
applicable.
• Article 75(2) prima facie means that ministerial tenure is within President’s discretion and a minister may legally
be dismissed by him as and when he likes. Ex facie, there appears to be an inconsistency between Articles 75(3)
and 75(2). But in practice, it is not so.
• President’s power to dismiss individual ministers and the power to dismiss the Prime Minister is different
because the dismissal of the Prime Minister who enjoys the confidence of the majority in Parliament would
virtually mean the dismissal of the Council of Ministers.
• Therefore, the President can exercise his personal discretion while the dismissal of a Government which has lost
its majority in the House, but refuses to quit office. But in the case of ministers other than the Prime Minister,
the power to dismiss other ministers individually is not the President’s personal satisfaction but of the Council of
Ministers.
• All the ministers are appointed by the president on the advice of the Prime Minister. It is the Prime Minister who
allocates the portfolio to other ministers. The Prime Minister may call for the resignation of any minister at any
time. In case the minister refuses, the prime minister may advice the President to dismiss the minister. This is
also called the “Rule of Individual Responsibility”. This individual responsibility is a powerful weapon of the
President in the hands of the Prime Minister. Losing the confidence of the Prime Minister leads to dismissal by
the President is another facet of individual responsibility.
• The Supreme Court in Sanjeevi v. the State of Madras, AIR 1970 SC 1102 explained the concept of the Minister’s
individual responsibility in the following words:
• “The Cabinet is responsible to the legislature for every action in any of the ministries. That is the essence of joint
responsibility. That does not mean that each and every decision must be taken by the Cabinet. The political
responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the
Ministers to discharge all or any of the governmental functions. Similarly, an individual Minister is responsible to
the legislature for every action taken or omitted to be taken in his Ministry. This again is a political responsibility
and not personal responsibility.”
• No Minister can retain office against the will of Parliament. Each Minister in his own sphere of responsibility
bears the burden of speaking and acting for the government. He has to answer questions relating to the
activities of his department and defend his policies and administration when the House discusses the same. He
must answer for every act or neglect of his department, and he cannot throw his responsibility on anyone else
whether an official in his department or another Minister. Each Minister is personally liable and collectively
responsible for his actions, acts and policies.
• This positive liability of each Minister is essential if the Parliament is to effectively perform its role of criticizing
the Executive. But when a particular Minister is under fire in Parliament, the principle of collective responsibility
ensures that other Ministers should come to his rescue and defend his actions.
• In course of time, a tort of misfeasance in public office has also come into existence.
• The tort of misfeasance has been defined as “malicious abuse of power, deliberate maladministration and
unlawful acts causing injury” to a person. The tort arises when there is a deliberate abuse of power. The tort
imposes, liability on a public officer who does an act which to his knowledge amounts to an abuse of his office
and which causes damages. The element of ‘bad faith or malice’ is the decisive factor in such a tort.
• In Common Cause v. Union of India, AIR 1996 SC 3538, (popularly known as Common Cause I), the Supreme
Court held that Minister for Petroleum had committed the tort of ‘misfeasance in public office’ and imposed on
him exemplary damages of Rs. 50 Lacs payable to the Central Exchange.
• But, then, in Common Cause v. Union of India (II), AIR 1999 SC 2979, the Court revised its earlier judgment and
held that Minister had not committed any such tort. The Minister’s order was held to be simply ‘unlawful’ and so
it was quashed.
Rule of Collective Responsibility
• Council of Ministers is collectively responsible to “Lok Sabha”. This means that if the Ministry loses the
confidence of the “Lok Sabha”, all ministers including those who are from Rajya Sabha have to go. The entire
ministry is obliged to resign. This means that ministers fall and stand together.
• The doctrine of collective responsibility as stated in absolute terms by Lord Salisbury in 1878:
• “For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible
and has no right afterwards to say that he agreed in one case to a compromise, which in another he was
persuaded by his colleagues... It is only that principle that absolute responsibility is undertaken by every member
of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of
ministers to Parliament can be upheld and one of the most essential principle of parliamentary responsibility
established.”
• Hartley and Griffith explained the position in regard to the collective responsibility of ministers:
• “Collective responsibility means that cabinet decisions bind all cabinet ministers even if they argued in
opposite directions in cabinet. But this is to say no more than a cabinet minister who finds himself in a minority
must either accept the majority view or resign. The team must not be weakened by some of its members making
clear in public that they disapprove of the government policy. And obviously what is true of cabinet ministers is
even more true for other ministers. If they do not like what the team is doing, they must either keep quiet or
leave.”
• In Dattaji Charandas v. State of Gujarat, AIR 1999 Guj 48, Gujarat High Court held “Collective Responsibility
means all ministers share collective responsibility even for decisions in which they have taken no part
whatsoever or in which they might have dissented at the Council of Ministers. Collective responsibility means
the members of Council of Ministers express a common opinion. It means unanimity and confidentiality.”
• In India, the principle of collective responsibility is explicitly codified in Article 75(3) of the Constitution. Article
75(3) lays down that the Council of Ministers shall be collectively responsible to Lok Sabha.
• The principle of collective responsibility may be regarded as fundamental to the working of the Parliamentary
Government, as it is the solidarity of the Cabinet that its main strength lies. The principle of 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 must stand or fall together in Parliament and the Government is carried on as a
unity. The rule ensures that the Council of Minsters works as a team, as a unit, and as a body and commands the
confidence of the House and the Cabinet’s decisions are the joint decisions of all ministers.
• In the words of the Supreme Court of India in State of Karnataka v. Union of India, AIR 1978 SC 131:
• “The principle of collective responsibility is that- for every decision taken by the Cabinet, each one of the
ministers is responsible to the Legislature concerned.”
• In S.C. Advocates on Record v. Union of India, (supra), the Supreme Court observed some conventions relating
to the Cabinet system, such as-
(a) The person who is appointed Prime Minister by the President must have the support of the House of the
People.
(b) The other ministers are appointed by the President on the advice of the Prime Ministers and they must
continuously have the confidence of the House individually and collectively.
(c) If the Opposition obtains a majority at the Polls, the Government in power must tender resignation.
• Moreover, for the effective realization of the rule of collective responsibility of the Council of Ministers, it is
necessary that no person should be nominated to the cabinet except on the advice of the Prime Minister.
Secondly, no person should be retained as a member of the Cabinet if the Prime Minister says that he should be
dismissed. It is only when members of the Cabinet both, in the matter of appointment as well as in the matter of
their dismissal are placed under the Prime Minister that it would be possible to realize the idea of collective
responsibility.
• In this connection, the following extract from the speech of Dr. Ambedkar, may be quoted:
• “The Prime Minister is the keystone of the arch of the Cabinet and unless and until we create that office and
endow that office with statutory authority to nominate and dismiss ministers there can be no collective
responsibility.”

• Article 75(3) provides for the Council of Ministers being Collectively Responsible to Lok Sabha. In the UK, the
concept is that of Individual and Collective Responsibility of Ministers. Our Constitution, however, provides only
for Collective Responsibility which means that there can be no no-confidence in a single Minister. The entire
Council of Ministers is jointly responsible to the Lok Sabha for all acts of Government. Therefore, it stands or falls
together. If it loses the confidence of the House, the entire Council of Ministers must resign. Also, Collective
Responsibility would mean that the Ministers must not speak in public in different voices.
• 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.
• After 1990, Indian politics saw a rise of regional political parties in many states. It was also the beginning of the
era of Coalition Government at the Centre. A Coalition Government is a Cabinet of a Parliamentary Government
in which several political parties cooperate. The usual reason given for this arrangement is that no party on its
own can achieve a majority in the Parliament.
• The term ‘coalition government’ is defined in Collins Dictionary as:
• “A government containing members of two or more political parties, usually because no party has an absolute
majority.”
• The need to form effective alliances and coalitions has forced parties to ‘concede, coalesce, compromise, and
come to a consensus’. The role of the Prime Minister has also weakened, selected as convener of a government
coalition rather than a dominant personality.
• Coalition governments have now become the order of the day in India, especially at the Centre. A number of
disparate political parties come together to form the government as no single party has the majority in the
House. Experience has shown that inherently such governments are unstable as any constitutional party forming
such a coalition government can withdraw its support anytime, thus, reducing the government to a minority.
Another casualty of such an arrangement is the principle of collective responsibility, the reason being that the
various parties lack a common programme and a common approach to national issues and so they speak in
different voices. Further, the various parties constituting the government are more interested in pursuing their
own party programme rather than a common national agenda. The coalition governments adversely affect the
homogeneity and solidarity of the Cabinet.
Dissolution of The House of People
• Article 85(2) (b) empowers the President to dissolve the House of the People at any time, prior to the expiry of
its usual term provided in Article 83(2).
• Under amended Article 74(1), the function of the President can, prima facie, be exercised only accruing to the
advice of the Council of Ministers. If therefore, a Prime Minister in office, advises the President to dissolve
Parliament, the President can ask the Council of Ministers, once, to reconsider [Proviso to Article 74(1)] but he
cannot eventually refuse to oblige the Prime Minister.
• The framers of the Constitution clearly intended to repose in the President, as head of the State, the discretion
whether or not to dissolve the House of the People. The existence of this discretion was explicitly recognized in
the Shamsher Singh Case wherein it was pointed out that the Constitution establishes a parliamentary system of
Government with a Council of Ministers (Cabinet) and one may keep well in mind the conventions prevalent at
the time the Constitution was framed.
• Although since that decision, Article 74(1) has been amended, it may still be argued that the amendments clarify
the position on the ordinary functioning of the government but do not abolish the foundational conventions of
the parliamentary system of Government such as the one relating to the dissolution of the Lok Sabha.
• In U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002, it was urged that as soon as the House of People was
dissolved under Article 85(2) of the Constitution, the Council of Ministers ceased to hold office. The Supreme
Court rejected this argument and observed that:
• “Article 74(1) is mandatory and therefore, the President cannot exercise the executive power without the aid
and advice of the Council of Ministers. One must harmonize Article 75(3) with Articles 74(1) and 75(2). Article
75(3) envisaged ‘responsible government’, and the Council of Ministers must enjoy the confidence of the House
of the People. While the House of the People is not dissolved, Article 75(3) has full operation. But, when it is
dissolved, the Council of Ministers cannot naturally enjoy the confidence of the House of the People. Article
75(3) should be read as meaning that the principle of collective responsibility applies only when the House of the
People is in existence and not when it is dissolved or prorogued.”
• This decision re-affirms the convention that when the House of the People is dissolved with a view to holding
fresh elections by the President on the advice of the Prime Minister who enjoys the support of the majority of
the members of the House of the People, the Council of Ministers headed by the Prime Minister has the right to
continue till the elections are over and the relative strength of the parties in the newly-elected House of the
People is known.
Article 78. Duties of Prime Minister as Respects the Furnishing of
Information to The President, etc.
• It shall be the duty of the Prime Minister—
(a) To communicate to the President all decisions of the Council of Ministers relating to the administration of
the affairs of the Union and proposals for legislation;
(b) To furnish such information relating to the administration of the affairs of the Union and proposals for
legislation as the President may call for; and
(c) If the President so requires, to submit for the consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not been considered by the Council.
• Clause (a) and (b) of Article 78 embody the rules of the English system governing the relationship between the
Crown and the Cabinet. It shall be the duty of the Prime Minister, as the head of the Cabinet, to communicate to
the President not only all decisions of the Cabinet but also any other information that the President may himself
call for relating to administration as well legislation. Like the English King, the Indian President shall have no right
to sit in Cabinet meetings, but he shall have a right to be informed of everything relating to public affairs, so that
he may exert his influence as the impartial head of the Executive, upon the Council of Ministers.
• The power vested in the Parliament by clause (c) of Article 78, not only enables the President to obtain a
reconsideration of an advice tendered by an individual Minister but indirectly ensures the principle of collective
responsibility laid down in Article 75(3).
• Article 78 provides for the duties of the Prime Minister vis-a-vis the President. The Indian Constitution envisages
a Cabinet form of Government and provides for a Council of Ministers with the Prime Minister as its head to aid
and advice the President under Article 74. Though Article 53, formally vests the executive power of the Union in
the President, in actual practice, by constitutional convention, the council of ministers exercises the executive
power. This necessitates a constitutional clarification about the relationship between the President and the
Council of Ministers. Though the President takes no part in the formal deliberation of the ministers, he is
constitutionally entitled to criticize the conduct of the executives. Hence, Article 78 imposes a duty upon the
Prime Minister to keep the President informed.
• This appears to be a safeguard intended to ensure the collective responsibility and solidarity of the Council of
Ministers. Under the complicated conditions of modern Government, it is not possible for every matter relating
to the different departments to be discussed and determined in Cabinet meetings.
• It is obvious that all the powers under Article 78 will be exercisable by the President at his discretion and as the
word 'duty' signifies, the Prime Minister is bound to comply with the direction of the President to place a
particular matter before the Council of Ministers.
• Article 78 specifically puts certain conventions of the British Constitution in Indian Constitution. It is clearly
stated that “it shall be the duty of the Prime Minister.”
• The question- What is the remedy if the Prime Minister does not perform his duty under Article 78 that arose
in 1987.
• In March 1987, one of the newspapers published a letter purported to have been written by President Zail Singh
to Prime Minister Rajiv Gandhi. The letter referred to certain statements made by the Prime Minister on the
floor of Lok Sabha. A privilege motion was sought to be moved against the Prime Minister, but it was ruled out.
The reason given for ruling out was as under:
• “According to Conventions of British Parliament, the correspondence between the Queen and the Prime
Minister is treated as confidential and never debated".
• The controversy between the President and the Prime Minister also raised the question of whether President
Zail Singh could have dismissed Prime Minister Rajiv Gandhi because of his failure to comply with the provisions
of Article 78. It was reported in the press that in spite of the Prime Minister's party’s comfortable majority,
President Zail Singh claimed that he had the Constitutional authority to dismiss the Prime Minister. The matter
was later dropped. President Zail Singh was reported to have expressed an opinion that he was leaving the
matter to be pursued by his successor in office.
• Article 78(c) reinforces the point that the President functions on the aid and advice of the Council of Ministers
and is not bound by any advice of any individual minister including the Prime Minister. He can, therefore, ask the
Prime Minister to place any matter before the Council of Ministers if a decision in the matter had been taken
only at the level of individual minister/Prime Minister. The Prime Minister is duty bound to do so.
• It is, therefore, well established that while the President is only a Constitutional head functioning on the advice
of Council of Ministers, he is above all bound by the Constitution and has to discharge his functions in
accordance with the Constitution. Also, he is bound by his oath to “preserve, protect and defend the
Constitution”. He cannot, therefore, knowingly be a party to any decision or acts which are likely to be found to
be unconstitutional. The President does not mechanically accept any advice and is not a mere rubber stamp. He
is expected to apply his mind before putting down his signature.
Previous Years Questions (Law Optional)
Q1. Explain the relationship between the President and the Council of ministers. ls the President bound to accept
the advice of the Council of Ministers? [2021 1(d)]
Q2. Explain the Pardoning Powers of the President. Examine how far the Judicial Review can be exercised over
such powers. [2020 2(a)(ii)]
Q3. “With the adoption of Parliamentary form of government, the vesting clause under Article 53(1) remains to a
great extent meaningless, as real executive power lies in the Ministry.” Critically examine the above statement
in the context of the status and position of the President of India under the Indian Constitution. Also answer, if
the President of India does not accept the advice of the Prime Minister, what consequences would follow.
[2018 1(e)]
Q4. Briefly enumerate the executive powers of the President, especially when two or more States are involved in
non-observance of an inter-State agreement. [2016 3(a)]
Q5. Duties of the prime Minister regarding furnishing of information to the president. [2011 4(b)]
Q6. The distinction between ‘Executive power’ of the president and his 'Constitutional power'. [2008 4(a)]
Q7. Is the president of India a mere constitutional head? Is he bound to accept the advice of the Council of
Ministers? Discuss fully stating constitutional provisions. [2005 3(b)]
Q8. “The question whether any and if so what advice was tendered by Ministers to the President shall not be
inquired into in any court” - Article 74 (2) of the constitution. Examine the scope and ambit of the exclusion of
judicial review mandated by this provision in the background of decided cases. [1997 2(b)]
Q9. Discuss the constitutional position of the President of India. On the eve of general election to the Lok Sabha
and just after the last session of Parliament, the Govt. sends an ordinance to the President extending the
benefit of job reservations to Dalit Christians. The President returns the ordinance and asks the cabinet to
reconsider its advice. Is the action of President sustainable under the constitution? Discuss. [1996 3(b)]
Q10. “The central Executive...... exercises not only executive functions but also, in a limited way, judicial and
legislative functions.” Comment on the various powers of the Executive at the centre. [1995 3(a)]
Q11. What are powers and rights of the President under our constitution vis-a-vis his council of ministers in running
the administration of the union? [1981 1(a)]
Q12. No one can examine the character of the American Presidency without being impressed by its many sidedness.
The range of President's functions is enormous. He is the ceremonial head of the State. He is a vital source of
legislative suggestion. He is the final source of all executive decisions. He is the Authoritative exponent of
nation’s foreign policy.
(i) What is character of Indian Presidency?
(ii) Explain the constitutional position of the Indian President in relation to council of ministers under the
constitution. [1979 1(a)]
Q13. What are the discretionary powers of the President, if any? How much discretion does he have in the
appointment of the Prime Minster, dismissal of the Government and dissolution of the Lok Sabha? Discuss.
[1999 2(b)]
Q14. Does the President of India possess powers which he may exercise independently of the Council of Ministers?
Comment on the constitutional position and powers of the President particularly in circumstances-
(i) When the Prime Minister advises him to dissolve the House of the People; and
(ii) After the house of people has been dissolved for holding elections before its term is over and before the
newly elected Council of Ministers in formed. [1989 4(a)]
Q15. Write short notes on “Power of President of India to grant pardons, reprieves, etc. under Article 72 of the
Constitution.” [2007 4(c)]
Q16. Point out the contingencies under which the President may promulgate ordinances. Discuss the limitations on
this power. [1993 1(a)]
Q17. Examine the scope of the ordinance-making power of the President. [1985 3(b)]
Q18. What is the scope of the ordinance making power of President and how far is his satisfaction about existence
of necessity for immediate action amenable to judicial Review? [1982 1(a)]
Q19. “The Prime Minister is the keystone of the Cabinet arch because he is responsible for its formation, life and
death.” Critically examine the above statement in the light of various provisions of the Constitution and
determine the position of the Prime Minster in the Cabinet. [2015 2(b)]
Q20. What is meant by ‘individual responsibility’ and ‘collective responsibility’ of the Council of Ministers? What
would be the consequences of ‘individual responsibility’ in case a Minister of the Government is found guilty of
tort of misfeasance by the Supreme Court of India? Comment. [2012 1(c)]
Q21. “Collective responsibility is the very basis of the Parliamentary system of government.” Do you agree with this
statement? What has been the impact of coalition politics on the doctrine of collective responsibility?
[2006 2(b)]
Q22. What is the justification behind the Pardoning power of the President of India under Article 72 of the
Constitution? Discuss with reference to Supreme Court cases the extent to which the exercise of this power
can be subjected to judicial review. [2012 1(d)]
Previous Years Questions (Judiciary)
Q1. Discuss the scope of power of the President under Article 72 relating to grant of pardons, etc., and to suspend,
remit or commute sentences in certain cases. [UPJS 2012]
Q2. Write a comprehensive note on Constitutional position of the Indian President before and after the passing of
the 42nd Amendment Act. [BJS 1977]
Q3. Discuss the right of the President to seek information from the Prime Minister. Can the Prime Minister refuse to
give desired information to President? [BJS 1987]
Q4. Discuss power of the President to promulgate Ordinances. [MPJS 2015]
******

(BNB 1.21) The Union (The Executive & Parliament)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

(BNB 1.21) The Union (The Executive & Parliament)

Uploaded by

Copyright:

Available Formats

BE N BY IAS

By Jasbir Singh Bajaj

57/11, 2nd Floor, Bada Bazaar Road, Old

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 2

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 7

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 8

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 10

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 19

Previous Years Questions (Law Optional)

Previous Years Questions (Judiciary)

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 23

You might also like

(BNB 1.21) The Union (The Executive &amp; Parliament)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

(BNB 1.21) The Union (The Executive &amp; Parliament)

Uploaded by

Copyright:

Available Formats

BE N BY IAS

By Jasbir Singh Bajaj

57/11, 2nd Floor, Bada Bazaar Road, Old

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 2

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 7

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 8

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 10

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 19

Previous Years Questions (Law Optional)

Previous Years Questions (Judiciary)

Ph. No. 9958294810, 011-41644377 I Email Id: info@beandbyias.com I Website: www.beandbyias.com 23

You might also like

(BNB 1.21) The Union (The Executive & Parliament)

(BNB 1.21) The Union (The Executive & Parliament)