EXECUTIVE

Introduction:
 French Jurist Baron de Montesquieu (1689-1775) in order to prevent
the exercise of arbitrary power, advocated for the separation of
legislation, administration and adjudication
 He observed, when the legislative and executive powers are united in
the same person or body there can be no liberty because
apprehensions may arise lest the same monarch or senate should
enact tyrannical laws to enforce them in tyrannical manner………
where the power of judging joined with the legislature the life and
liberty of the subject would be exposed to arbitrary control, for the
judge would then be legislator. Where it joined to the executive
power, the judge might behave with all the violence of an oppressor
 Madison, who took leading part in the framing of American
Constitution, in his writings in Federalist, observed that The
accumulation of all powers legislative, executive and judiciary in the
same hands whether of one, a few or many and whether hereditary,
self-appointed or elective may justly be pronounced the very
definition of tyranny.
 Thus under the American Constitution Art. I Section I of the
American Constitution vests all legislative power in the
Congress, where as all the executive power is vested in the
President by virtue of Art.II , Sec I. The Supreme court of
America exercises all judicial power by virtue of Art. III Sec.I
 American constitution technically exemplifies separation of
powers. However, in practice there are many deviations.
 It can be stated that all the three branches of govt. exercise
mutual interference.
 Separation of powers in strict sense does not exist in America.
However, one may state that with degree of variation it
constitutionally recognizes separation of powers. One may
say that it is marked with checks and balances
 The President of America interferes with legislative process
by his veto power. While exercising treaty making power he
involves in law-making power.
 The President can pack the judiciary with his own men.
 Usurpation of the power by Judicial Review, which was not
granted explicitly under the constitution of America, was
carried by Chief Justice Marshall in a famous case of Marbury
Vs Madison (1803).
Separation of powers in India.:
 Indian Constitution, no doubt, makes tripartite classification of powers
between executive, legislature and judiciary
 Nonetheless, it is not on the lines of Montesquieu’s classification
 Separation of powers is one of the Directive Principles of State Policy,
Art.50, that executive should be separated from the Judiciary.
 Justice Patanjali Sashtri in Inre Delhi Laws Act case observed, the
historical background and the political environment which influenced the
making of the American Constitution were entirely absent here and beyond
the creation of three organs of the state to exercise their respective
functions of most civilized governments, there is not least indication that the
framers of the Indian Constitution made American Doctrine of Separation of
Powers, namely that their absolute separation of powers and vesting in
different hands lay the basis, an integral and basic feature of the Indian
Constitution.
 The Indian Supreme Court was more specific in Ram Jawaya
Vs. State of Punjab AIR 1955 S.C. 549 wherein was stated,
Indian Constitution has not indeed recognized the doctrine of
separation powers in its absolute rigidity but the functions of
the different parts or branches of the government have
sufficiently differentiated and consequently it can very well
said that our Constitution does not contemplate assumption
by one organ or part of the state of functions that essentially
belong to another.
 However, it would be interesting to note that Justice Sikri and
Justice Shelat and Grover in their exposition of basic
structure theory in Keshavananda Bharathi’s case observed
that separation of powers and demarcation of power between
the legislature, the executive and judiciary constitute basic
structure.
 The separation of powers is often blurred in the Indian
governmental power distribution
Prof.(Dr.) T.V. Subba Rao, NLSIU,
06/02/2021 B'LORE
 Legislative Branch

Judicial Branch Executive Branch

Administrative Agencies

Judicial Functions Executive Functions

adjudicative hearings
investigation
Legislative Functions
enforcement

rulemaking
 Rule-making action or quasi-legislative
action.
 Rule-decision action or quasi-judicial
action.
 Rule-application action or administrative
action.
 Ministerial action
 Indian constitutional scheme envisages distribution of
executive powers also.
 ‘Executive power’ – defies definition
 It is the residue of the governmental functions that remain
after legislative and judicial function are taken away.
 It comprises both the determination of the policy as well as
carrying it into execution.
 the maintenance of order, the promotion of social and
economic welfare, the carrying on or supervision of the
general administration of the State”.
 Though the authority to execute or administer the laws
made by the Legislature is a primary component of
“executive power”, yet its exercise is not necessarily
dependent on prior legislative sanction.
 The Union has no separate instrumentalities of its own for
execution of many of its laws. Only a few subjects in the
Union List are administered by the Union directly through
its own agencies.
 Administration of several matters in the Union List and
most matters in the Concurrent sphere and the enforcement of
Union laws relating to them, is secured through the
machinery of the States.
 The constitution enables the Union to entrust its executive
power to the agencies of the States for administration of
Union Laws.
 For instance,(FSSAI, FCI, STATE GOVT, CFSO)
 the Mines and Minerals (Regulation and Development) Act,
1957, leave the initial power to grant a mining licence to the
State. - are subject to the orders of the Union Government in
appeal or revision filed by an aggrieved party. Another
example is of the Tax Collections
 In federative governance the executive power of the union or
state are co extensive with respective legislative power
 The exceptions are firstly, that the executive power in
States with respect to matters in the Concurrent List shall
ordinarily remain with the respective States unless the
Constitution or Parliament by law expressly provides
otherwise (article 254)
 Secondly, the executive power of a State or its officers and
authorities existing immediately before the commencement
of the Constitution even with respect to matters in the
Union List, shall continue until otherwise provided by
Parliament.
 The division of executive powers between the Union and the
States even with reference to matters in List I and List II, is
not sharp, hard and fast.
 Executive powers indicated by Articles 73 and 162 are
flexible and extensible.
 Articles 72 (1)(c), 253 and 356 (1)(a), the executive power of
the Union may project into the State field.
 In the matter of any grant for any public purpose under
Article 282, the division of powers with reference to the
three Lists in the Seventh Schedule loses significance.
 In some countries, the Federal and the State Governments
have separate agencies, parallel services and courts for the
administration of their respective laws.
 The position is different under the Indian Constitution.
Jurisdiction for administration of Union as well as State
laws is conferred on the same hierarchy of courts through
legislations enacted by the Union and the State Legislatures
under the relevant Entries, e.g., 46 of List III, 95 of List I and
65 of List II.
While exercising its legislative power in the Concurrent field,
the Union may adopt any one of the following modes for
enforcement of its laws :
(i) It may leave the administration of a Union legislation
entirely to the States. - example of this mode is the
Electricity (Supply) Amendment Act, 1956
(ii) It may reserve to itself the whole responsibility for
administration of all aspects of the subject-matter of the
legislation. – Eg; Forest (Conservation) Act, 1980
(iii) It may assume the executive power with respect to some
aspects of the legislation leaving the administration of the
remainder to the States. Eg; The Essential Commodities Act,
1955 - The Act provides for conferring of powers and
imposing of duties on State Governments by the Union
Government. Powers and duties so conferred vary from
commodity to commodity and also from time to time,
depending on their availability at fair prices, need for their
equitable distribution, and similar other factors.
UNION
President

Vice - President

Prime Minister

Council of Minister

Secretary

other administrative staff

 Presidential System
In a presidential system,
 The President is the chief executive as well as the symbolic head
of government
 He is chosen by a separate election from that of the legislature.
 The President then appoints his or her cabinet of ministers (or
"secretaries" in US parlance).
 Ministers/Secretaries need not ncessarily members of the
legislature
 the presidential political system generally observes separation
of powers, executive legislative branches and judiciary are
independent of one another.
 Presidents have great control over their cabinet appointees who
serve at the President’s pleasure.
 Parliamentary system
 In Parliamentary systems, unlike presidential systems, there
is no strict separation of powers
 The Prime Minister is ‘the’ chief executive’
 The Prime Minster may be elected to the legislature in the
same way as all other members.
 The Prime Minister is the leader of the party that wins the
majority of votes to the legislature.
 Conventions govern the appointment of Prime Minister
 The Prime Minister is responsible to get appointments of
Cabinet Ministers.
 These Ministers also are members of the legislature from the
ruling party or ruling coalition.
 Thus, in a parliamentary system, the constituency of the
executive and legislature are the same.
If the ruling party is voted out of the legislature, the executive
also changes.
Continued cooperation between the executive and legislature is
required for the government to survive and to be effective in
carrying out its programs.
The UK represents the strongest form of parliamentary system
(sometimes referred to as the West minister Model).
 Hybrid system
 The term hybrid generally refers to a system with a separately
elected President who shares executive power with the Prime
Minister.
 The President usually has the constitutional power to select the
Prime Minister.
 If the constitution and/or political circumstances tend to place the
emphasis on the powers of the President, it is sometimes termed a
semi-presidential system.
 If, on the other hand, the Prime Minister and the legislative leaders
enjoy more power than the President does, it may be referred to as
a semi-parliamentary system.
 It may also be termed as Priministerial system
 Presidents generally appoint leaders of the ruling coalition to
the post of Prime Minister, although they are not required to
do so constitutionally. It is by conventions
 The French system is the hybrid model most often cited as a
semi-presidential system.
 In the French system, the President has broad powers.
 For example, the President nominates the Prime Minister
and selects his own cabinet, over which he presides. The
President, his cabinet and attending bureaucracy initiate and
draft most legislation.
 The French President, like some others in hybrid systems, has
some areas where his power is well defined, such as in the
conduct of foreign affairs.
 The day to day running of the government is, however, left to
the Prime Minister and Cabinet.
 Differences:
 A key difference between presidential and parliamentary systems
lies in the power to remove a chief executive or to dissolve the
legislature.
 In parliamentary systems, the chief executive’s term of office is
directly linked with that of the legislature, while in presidential
systems the terms are not linked.
 Separation of powers: in a presidential system presidents and
members of the legislature are separately elected for a given length
of time.
 Presidents have no authority to remove members of the legislature.
 Premature removal of either legislative members or the President
can only be initiated by a vote in the lower legislative chamber and
under particular conditions.
 Thus, under normal circumstances, even if the political party that
the President represents becomes a minority in either or both
houses of the legislature, the President will remain in his position
for the full term for which he was elected.
 In a parliamentary system, the Prime Minister can be removed
from office in two ways.
 through a ‘no-confidence’ motion, which is typically filed by the
opposition or a coalition of opposition parties.
 However, the Prime Minister can be removed by his/her own
party members, in a setting outside of the legislature.
 Unlike in a parliamentary system, the legislature in France cannot
force the resignation of the President.
 Rather, the President may dissolve the parliament’s Lower House,
the National Assembly (but not the upper house, Senate).
 Further, the President appoints, and can remove the Prime
Minister, who is effectively the head of the cabinet and
legislature.
 Similar to the parliamentary model, the National Assembly can
also force the government (the Prime Minister and legislative
leaders) to resign by passing a motion of censure.
 Thus, in the French model, while the Prime Minister is vulnerable
to removal from both the legislature and the President, the
President cannot be removed prior to the end of his/her electoral
term.
 Party system is stronger in parliamentary systems than in
presidential
 However where political parties are weaker: Relations between
individual members and constituents tend to be stronger. ; he
President and individual members are directly accountable to the
voters. the parliamentary system can lead to one party controlling
the state and locking other ethnic or regional groups out of power.
 Advantages of stronger party parliamentary system: Parties and
stable party coalitions within parliament can be held accountable
to the public based on their promotion of the party platform. The
chief executive can be made accountable to her/his party and the
parliament as a whole by a vote of no onfidence at any time.
Highly organized parties can act as a link between party leaders
and constituents at local levels
҉ In parliamentary, presidential and hybrid systems, the
legislature is a forum for discussion of political, economic and
social issues and is required to legitimize new laws.
҉ One of the major differences of these systems lies in the
legislature’s power (or lack thereof) to formulate and initiate
legislation.
҉ Presidential system - Power to veto - Executive can draft
legislation but a member must introduce it
҉ Parliamentary - The chief executive and his/her cabinet
initiate any legislation affecting the budget or revenue.
҉ In the UK and other similar models, legislatures can only
amend legislation on narrow, technical terms.
҉ Hybrid system - Bills can be introduced by the individual
members, the executive and the government (the Prime
Minister and the cabinet). However, the introduction of
executive initiated bills takes precedence over member bills.
The President can by-pass the legislature by taking a proposed
bill directly to the public through a national referendum.
 Nonparliamentary systems are committee
dominated –they have the power, and they can
easily obstruct the work of government.
 Strong committees in a parliamentary system
would weaken central unity –Strong leadership is
important to parl. Systems.
 Consequently, in Britain, for example, there are
no standing committees per se, but ad hoc
committees for each bill. No permanent staff and
no open hearings, etc

Wilson (1885) & Bagehot (1873)

argued that separation of powers
produces fragmentation,
ineffectiveness and parochialism.
Presidential system:
 Intricate system of Checks & Balances
 Judicial Review
 Presidential veto
 Congressional override of veto
 Impeachment
 Senate confirmation of treaties and Presidential appointees Slow
process
 Piecemeal Legislation
 Hard to create change
Parliamentary System:
 Fewer Checks & Balances
 No Confidence vote
 House of Lords may delay legislation for 1 year
 Cabinet pressure on PM
 Question Hour
 Tradition & Reasonableness too much Concentration of
power?
 Fewer interests represented
 Problems of defections
 Legislative process more symbolic
 efficiency, coherence of legislation, effectiveness of the
policy-making process, stability, decision-making in
times of crisis, ability to make broad changes in policy,
democratic representation of a country’s citizens, etc.
 Most stable democracies since WWII have been
parliamentary, not presidential.
 Coups are much more common in presidential
systems.
 Most parliamentary systems are located in Western
Europe. Most presidential systems are located in
Latin America and Africa.
 Western Europe is rich, LA and Africa are poor.
Democracy is established in Western Europe, but
not in LA and Africa.

Thus, correlation between democratic stability and

parliamentary government may simply reflect the
European context of these institutions.
Differences between Indian and American
Presidents:
҉The President of the United States is the real head of the
executive. As observed by Laski in his American Presidency
: “The only person responsibly charged with thinking and
planning in terms of the whole Union is the President. He
is not only the ceremonial head of the State, but is the
final source of all executive decision. He is assisted by
Cabinet Secretaries in charge of the different departments.
But he is not bound by their advice, and can dismiss them
at any time”.
҉In India, on the other hand, the President is only the
nominal head of the executive. Article 74, says : “There
shall be a Council of Ministers with 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”.
҉In the United States, the executive is independent of the
legislature. This ensures its stability. But it does not ensure
responsibility.
҉In India, however, the real executive is Council of Ministers
which is a parliamentary executive. The Ministry has to
resign when it loses the confidence of Loksabha. This
dependence makes the real executive responsible to the
legislature. At the same time, stability is ensured, because the
President himself is not removable by Parliament except by
the process of impeachment.
҉India opted for Constitutional Parliamentary democracy
instead of Presidential form for the reason that it preferred
less stability but more responsibility than of American type
which has more stability but has less responsibility or
accountability .
҉ The American Presidential system is based upon the
separation of the executive from the legislature. The
President and his Secretaries therefore, cannot be members
of the Legislature.
҉ In India, the President is not a member of Parliament but he
is an integral part of it since Parliament, under Art. 79.
Consists of the President and the two Houses respectively
known as the Council of States and the House of the People.
He is thus in a position to address either House or the
Houses assembled together.
҉ The President’s policies are judged by the people at the time
of the Presidential election which occurs once in 4 years.
҉ In India there is a daily assessment of responsibility as well.
This is because the members of Parliament by means of
questions, resolutions, adjournment motions, debates on
address by the President and no-confidence motions subject
the work of the executive to daily assessment. The periodic
assessment is done by the electorate when the Lower House
is re-constituted every 5 years.
The responsibility thus assessed, however, is that of the Ministry,
since the President of India is only a titular head of the
executive.
 Art. 52. There shall be a President of India.
Which type we have adopted?

”At the head of the Indian Union is placed a functionary who is

called the President of India. The name of this functionary
reminds one of the President of the United States. But beyond
identity of names there is nothing in common between the form
of Government prevailing in America and the form of
Government proposed under the Draft Constitution”. – Dr. B.R.
Ambedkar
Dr. Ambedkar explained in the Constituent Assembly that the
Indian President can do nothing contrary to the advice of the
Council of Ministers nor can he do anything without such
advice. According to parliamentary conventions which are to
be followed in India, the Ministers cannot be dismissed so long
as they command a majority in Parliament.
Votaries of Presidential system:
 Mr. P.B. Mukherjee, J. (The Critical Problems of the Indian
Constitution, 1966) observed, "These Constitutional features
and provisions are not mere pious wishes devoid of
Constitutional and legal substance but are specific terms of the
Indian Constitution. Their wisdom lies in the fact that the
President is a Constitutional and effective check on Cabinet
dictatorship, following out of the overwhelming strength of a
single political party without any effective opposition. ...“
 Prof. Charles Henry Alexandrowicz (Constitutional Development
in India, (1967).expressed m relation to the President, "The
provisions of Chapter 1 of the Part 5 of the Constitution relating
to the executive convey prima-facie the impression that the
President of India, the head of the State, is also the real head of
the executive, and the ministry is only there to aid and advise
him in the exercise of his functions.
 Granville Austin observed, the Assembly chose a slightly
modified version of the British cabinet system. India was to
have a President, indirectly elected for a term of five years, who
would be a constitutional head of State in the manner of the
monarch in England. As in England, there was to be a council of
ministers, headed by the Prime Minister and collectively
responsible to Parliament, to aid and advise the head of State.
The President was to be nominal head of the Executive; the
Prime Minister the real head.“
Mukherjee C.J. in RaiSaheb Ram Jawaya Kapoor v. State of Punjab, AIR
1955 SC 549.observed: "our Constitution, though federal in structure, is
modeled on the British parliament system where the executive is deemed
to have the primary responsibility for the formation of governmental policy
and its transmission into law, though the condition precedent to the
exercise of this responsibility is its retaining the confidence of the legislative
branch of the State.“
In U.N. Rao v. Indira Gandhi AIR 1971 SC 1002., the Supreme Court stated
that the conventions operating in England governing the citizenship
between the crown and the Ministers were very pertinent to the Indian
Constitution should be read in the light of these
conventions. ). Sikri, C.J., speaking for a unanimous court, after
reiterating that we are interpreting a Constitution and not an Act of
Parliament, a constitution which establishes a parliamentary system
of Government with a Cabinet’, thought it proper to keep in mind the
conventions prevalent at the time the Constitution was framed.
In R.C. Cooper v. Union of lndia AIR 1970 SC 564., the Supreme Court said:
"Under the Constitution, the President being the Constitutional Head,
normally acts in all matters including the promulgation of an Ordinance on
the advice of his Council of Ministers.
In Shamsher Singh v. State of Punjab , President and
Governors--Whether formal heads--Whether bound to act on
aid and advice of Council of Ministers--Artkles 166(3), 154(1),
53(1) of constitution of India. Constitution of India--Article
311--termination of service by innocuously worded order
whether hit by article 311. Civil service probationer whether
can be deemed to be confirmed on the expiry of probation
period. Punjab Civil Service (Judicial Branch) Rules 1951 rr.
7, 9. Constitution of India Article 235--High Court whether
can depute an executive authority to inquire into allegations
made against subordinate judiciary. Constitution of India,
Article 234--Appointment and determination of services of
subordinate judges if to be made by Governor personally.
The court said, "The omnipotence of the President and of the Governor
at State level is euphemistically inscribed in the pages of our fundamental
law with the obvious intent that even where express conferment of
power or function is written into the articles, such business has to be
disposed of decisively by the Ministry answerable to the legislative and
through it vicariously to the people, thus vindicating our democracy
instead of surrendering it to a single summit soul”
The Supreme Court has cleared the confusion of vision regarding the
meaning of the word "discretion", by impliedly stating that the word does
not have the technical meaning given to it under the
Government of India Act, 1935. The court referred to Articles 200 and 356
of the Constitution as illustrative of functions to be discharged by the
Governor in his discretion. Under Article 200 the Governor may act
irrespective of any advice from the Council of Ministers and refer a Bill to
the President for consideration. In making a report under Article 356 the
Governor will be justified in exercising his discretion
even against the aid and advice of his Council of Ministers.
 the Supreme Court quoted the opinion of the first Attorney General
of India, M.C. Setalvad, that the principle that the President (or the
Governor) is guided by the aid and advice of the Cabinet covered
every function whether it relates to addressing the House or
returning a Bill for reconsideration, or assenting or withholding
assent.
 It was observed in the above case that Nehru, Patel, Munshi, Sir
B.N. Rao,. Sir Alladi Krishnaswamy Aiyar and, above all, Dr.
Ambedkar, who was Chairman of the Drafting Committee, spoke in
one voice, with marginal variations, a Parliamentary-style quasi-
federalism was accepted, rejecting the substance of a Presidential
style executive.
 Justice V.R. Krishnaiyer in his concurrent judgement stated, not the
Potomac, but the Thames, fertilizes the flow of the Yamuna. if we
may adopt a riverine imagery. In this thesis we are fortified by
precedents of this Court, strengthened by Constituent Assembly
proceedings and reinforced by the actual working of the organs
involved for about a silver jubilee’ span of time.
 Justice VRK Iyer also quoted the Exchange between Dr.
Rajendra Prasad and Dr. Ambedkar which clearly shows the
opinion infavour of Cabinet system, specifically mentioning
Art.61 of the draft Article.
 Shri Setalvad recollected two incidents when the
President Dr. Rajendra Prasad asked his opinion on two
matters. The President wanted to know whether he could
prevent the Hindu Code Bill from becoming law. The
Attorney General advised him that the President was
bound to act accordance the advice of his Ministers. On
another occasion, the President wanted to know whether,
as the Supreme Commander of Forces, he can send for
individual army officers to elicit information about the
defence forces. In this case also, Shri Setalvad gave his
answer in "firm negative".
 When Shibbon Lal Saxena when wanted to move a resolution for
Presidential system, Munshi expressed the historical reason for
the acceptance of the parliamentary system. we must not forget
a very important fact that during the last one hundred years
Indian public life has largely drawn upon the traditions of the
British constitutional law. Most of us, and during the last several
generations before us, public men in India, have looked up to the
British model as the best. For the last thirty or forty years, some
kind of responsibility has been introduced in the governance of
this country. our constitutional traditions have become
Parliamentary and we have now all our Provinces functioning
more or less on the British model. As a matter of fact, today, the
Dominion Government of India is functioning as a full-fledged
Parliamentary Government.
 Same Munshi subsequently advocated for presidential system
 Munshi said that after some time after the constitution was
framed : "During the framing of the Constitution, we all dreamt
that we would make a success of parliamentary democracy and
the British Cabinet system. It must be confessed that this
experiment has failed. If I had to make a choice again, I would
vote for the Presidential form of Government, so that, whenever
the politicians fail the country, there is at least one strong organ
of the State capable of tiding over the crisis.
 Union Constitution Committee-early in June 1947 "decided
unreservedly in favour of the parliamentary type of
government in which the President would have no special
powers vested personally in him but would exercise all his
functions, including the dissolution of the lower chamber of
Parliament, only on the advice of his Ministers."
Art. 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.
A brief survey of the powers of the president

Executive Functions of the President.— Under Art. 53, the

executive power of the Union is vested in the President.
This executive power under Article 73, extends to all
matters with respect to which Parliament has power to
make laws. In exercising this power, he is advised by a
Council of Ministers with the Prime Minister at its head.
The Prime Minister is appointed by the President and the
other Ministers are appointed by the President on the
advice of the Prime Minister. All executive action of the
Government of India should be taken in the name of the
President
Functions connected with the Legislature.
 The President is a Constituent part of Parliament which
consists of the President, the Council of States and the
House of the people. He can address either Houses of
Parliament or both Houses assembled together. She can
also send messages to either House which should consider
the matter required by the message to be taken into
consideration. She addresses both Houses assembled
together at the commencement of the first session after
each general election and at the commencement of the first
session of each year.
 The assent of the President is required before a Bill passed
by the Houses becomes law. The President may return the
Bill if it is not a Money Bill with a message requesting the
House to re-consider the Bill. In such a case if the Bill is
passed again, by the House with or without amendment
and presented to the President for assent, it is obligatory
on his part to give his assent.
 So far as Money Bills are concerned, they cannot be
introduced except on the recommendation of the
President. Such Bills deal with taxation, borrowing of
money, appropriation of money out of the
consolidated funds of India, or the receipt of the
consolidated fund. Such bills can be introduced only
in the House of the People and only on the
recommendation of the President.
 The President cannot override the vote of the House
of the People in regard to financial legislation.
Legislative powers of the President.
 The President has Ordinance making power when
circumstances make it necessary for him to take
immediate action. This power can be exercised except
when both the Houses of Parliament are in Session.
These ordinances have the same effect as an Act of
Parliament. They should be laid before the Houses of
Parliament and will cease to operate after a period of
six months from the reassembly of Parliament. They
may be terminated earlier by the Houses passing
resolutions disapproving it.
Emergency Powers.
The President can proclaim an emergency when the
security of India or any part of it is threatened by war or
external aggression or internal disturbance (Article 352).
Such a Proclamation ceases to operate after one month
unless before that period it has been approved by
resolutions in the Union Parliament. Thereby it
continues for 6 months. By repeating the resolutions
every 6 months the Proclamation may remain in force
indefinitely. During the operation of the Proclamation of
the emergency, the Union executive can give directions
to any State as the manner in which the latter’s executive
power should be exercised.
The President may also proclaim under Art. 356, a failure
of Constitutional machinery in any State on receipt of a
report from the Governor concerned of otherwise. Such a
Proclamation ceases to operate at the expiration of two
months unless approved by resolutions of both houses
before that period expires. By such approval, the
Proclamation continues for a further period of six months
from the date of issue of the Proclamation. It can be thus
kept in force for 1 year.
If a Proclamation under Art. 352, is also in force either
throughout India or in that particular State, by such
resolutions it can be kept in force for a maximum period of
3 years. When such a Proclamation is in force, the President
may assume to himself functions of the Government of the
State concerned. The legislative power of the State will be
exercisable by or under the authority of Parliament.
 The President can proclaim a financial
emergency when the financial stability of India
is threatened. Its duration is two months unless
earlier approved by Parliament. While a
financial emergency exists, the President may
reduce the salaries and allowances of all classes
of persons serving the Union including the
Judges of the Supreme Court and the High
Courts. He can also reduce the salaries of those
serving in the State. The Union executive may
give directions to any State in regard to financial
matters.
Functions connected with the Judiciary.
The President has the right to grant pardons, and
suspend, remit or commute sentences in certain
cases
Example : In case of death sentences, sentences
pronounced by Court Martial, and other offences
relating to matters to which the executive power
of the Union extends.
She can consult the Supreme Court in regard to
any questions of law or fact of great public
importance. (Advisory Jurisdiction)
Election of the President and mode of his/her election:

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.
Art.55.Manner of election of President.
(1) As far as practicable, there shall be uniformity in the
scale of representation of the different States at the
election of the President.
(2) For the purpose of securing such uniformity among
the States inter se as well as parity between the States as
a whole and the Union, the number of votes which each
elected member of Parliament and of the Legislative
Assembly of each State is entitled to cast at such election
shall be determined in the following manner—
(a) every elected member of the Legislative Assembly of a
State shall have as many votes as there are multiples of one
thousand in the quotient obtained by dividing the
population of the State by the total number of the elected
members of the Assembly;
(b) if, after taking the said multiples of one thousand, 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;
(c) each elected member of either House of Parliament shall
have such number of votes as may be obtained by dividing
the total number of votes assigned to the members of the
Legislative Assemblies of the States under sub-clauses (a)
and (b) by the total number of the elected members of both
Houses of Parliament, fractions exceeding one-half being
counted as one and other fractions being disregarded.
(3) The election of the President shall be held in
accordance with the system of proportional
representation by means of the single transferable vote
and the voting at such election shall be by secret ballot.
Explanation.— In this Article, the expression
“population” means the population as ascertained at the
last preceding census of which the relevant figures have
been published :
Provided that the reference in this Explanation to the
last preceding census of which the relevant figures have
been published shall, until the relevant figures for the
first census taken after the year 2026 have been
published, be construed as a reference to the 1971
census].
 The President of India is elected by the Members of an
electoral college consisting of : (a) the elected members of
the Legislative Assemblies of the States and (b) the
elected members of both Houses of Parliament.
 In the ordinary elections even a person with minority
vote may be elected.
 Such defect is not there with reference to President’s
election . Because the system of proportional
representation by the Single Transferable vote is adopted.
It ensures that in a Presidential Election even when there
are more than 2 Candidates the successful Candidate is
the one who has secured an absolute majority of the
total votes Cast.
 In this system each voter has only one vote, but
he can indicate his preference by numbers : 1, for
first preference, 2, for second preference and so
on.
 In this system the first preference votes of the
voters (who have voted) are counted in the first
instance. Candidate A gets 40,B 35, and C 25.
Now no one has secured 51 votes and so the 2nd
preference votes have to be taken into account.
The Candidate who had got the least number of
1st preference votes C is eliminated. The 2nd
preference votes of those voters who gave their
first preference vote to C will be counted, adding
them to A or to B, according to the choice
indicated. Suppose the result now is A-45 and B-
55. Candidate B would be declared elected.
 The Presidential and Vice-Presidential Election
(Amendment Act) 1974, requires that a Presidential
candidate can be proposed only by at least 10 electors
and has to be seconded by at least 10 electors.
 It also provides that a Vice-Presidential candidate can
be proposed only by at least 5 electors and should be
seconded by at least 5 electors.
 A security deposit of Rs. 2,500/- is also required from
the candidate. The object of these provisions is to
prevent frivolous nominations.
 Under Arts. 56 and 62 the election of the President
must be held before the expiration of the term of the
out-going President. It may happen that a State
Legislative Assembly may have been dissolved at that
time. The question arises whether the election to the
office of the President can take place in those
circumstances.
 at the time of the election of Mr. Fakruddin Ali Ahmed
as President, the Gujarat State Legislative Assembly had
been dissolved. A reference was made to the Supreme
Court whether the election could be held in those
circumstances. It was held In re Presidential Election, AIR
1974 SC 1682 : (1974) 2 SCC 33, that the election can and
must be held even in those circumstances. The members
of the dissolved Legislative Assembly cannot vote
because they are no longer members of the electoral
college. The validity of the election in unaffected.
 Art.71 Matters relating to, or connected with, the
election of a President or Vice-President.— (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.
(2) If the election of a person as President or Vice-
President is declared void by the Supreme Court, acts
done by him in the exercise and performance of the
powers and duties of the office of President or Vice-
President, as the case may be, on or before the date of the
decision of the Supreme Court shall not be invalidated by
reason of that declaration.
(3) Subject to the provisions of this Constitution,
Parliament may by law regulate any matter relating to or
connected with the election of a President or Vice-
President.
(4) The election of a person as President or Vice-President
shall not be called in question on the ground of the
existence of any vacancy for whatever reason among the
members of the electoral college electing him
Art. 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 forth-with be communicated
by him to the Speaker of the House of the People.
Art. 57. Eligibility for re-election.— A person who holds, or who
has held, office as President shall, subject to the other provisions
of this Constitution, be eligible for re-election to that office.
Art.. 58. Qualifications for election as President.— (1) No
person shall be eligible for election as President unless he
—
(a) is a citizen of India;
(b) has completed the age of thirty-five years; and
(c) is qualified for election as a member of the House of
the People.
(2) A person shall not be eligible for election as President if
he holds any office of profit under the Government of India
or the Government of any State or under any local or
other authority subject to the control of any of the said
Governments.
Explanation.— For the purposes of this Article, a person
shall not be deemed to hold any office of profit by reason
only that he is the President or Vice-President of the
Union or the Governor 1[x x x] of any State or is a Minister
either for the Union or for any State.
Art. 59. Conditions of President’s office.
(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.
 ((Act25 of 1998 (w.e.f. 1-1-1996) - Rs. 50,000/- per mensem. In addition
he is entitled to spend upto Rs. 15,26,000 a year on travel and
entertainment, discretionary grants, staff, households expenses and his
own allowances. At the end of his term or after resignation, the
President is entitled to an annual pension of Rs. 3,00,000.
The emolument and allowances of the President cannot be diminished
during his term of office. )
Art. 60. Oath or affirmation by the President.— 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— that
I will faithfully execute the office 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.”
Pardoning power of the President
Art. 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 1[x x x] of a State under any law for the time being in
force.
 Pardon absolves the offender completely from all
sentences and punishments and disqualifications and
places him in the same position as if he never
committed any offence
 Commutation means exchange of one thing for the
other – rigorous to simple etc
 Remission means reduction of the sentence
 Respite means awarding lesser punishment on special
grounds, like pregnancy
 Reprieve means temporarily suspending the death
sentence pending the proceedings etc.
 Art. 72 is similar to that of Art. 161 which were based
on section 295 of the Government of India Act.
 There are certain differences between Governor’s
powers and President's power
 The President can pardon in all cases where the
punishment is by a Court Martial. The Governors do not
have this power.
 the President can pardon in all cases where the sentence
is a sentence of death. This is so even when the matter
relates to the State Legislative List. It does not interfere
with the Governor’s power of pardon under any
statutory power (e.g., under Sec. 402 Cr. PC). The two
powers that of the President and that of the Governor to
pardon in cases of a death sentence would be concurrent
in the State Legislative field.
 the President can pardon punishments in respect of
offences relating to matters in List I. Similarly the
Governor’s pardoning power extends over offences
relating to matters in list II. These are mutually
exclusive.
 as regards offences relating to matters in List III, the
Governor’s power is subject to the Central Law. If a
particular Central Law gives the Union Executive
power for the enforcement of that Law the
pardoning power would be that of the President.
Otherwise, the State Executive power will extend to
such offences also and the pardoning power will
remain in the Governor
K. M. Nanavati v. State of of Bombay AIR 1961 S C112
a naval officer, was convicted of murder and sentenced to life
imprisonment by the High Court of Bombay. The Governor of
Bombay suspended the sentence till the Supreme Court
disposed of the appeal proposed to be filed by Nanavati.
Nanavati applied to the Supreme Court for special leave to
appeal. Under Rule 5 of or 21 of the Rules made by the
Supreme Court a petitioner for special leave to appeal has to
submit to the sentence passed by the lower court before his
petition is heard by the Supreme Court. Nanavati contended
that the Governor can suspend his sentence and so there is no
need for him to surrender to the sentence passed against him
by the High Court. Rejecting this contention it was held that
the order of the Governor suspending the sentence passed
against the petitioner pending the disposal of his appeal to the
Supreme Court impinged on the power of the court under
Article 142 of the Constitution, and was to that extent invalid.
So Nanavati’s petition for exemption from surrendering to jail
 The ambit of Art. 161 is very much wider than Art. 142
and it is only in a very narrow field that the power
contained in Art. 161 is also contained in Art. 142, namely,
the power of suspension of sentence during the period
when the matter is sub-judice in the Supreme Court.
Therefore, on the principle of harmonious construction
and to avoid a conflict between the two powers it must be
held that Art. 161 does not deal with the suspension of
sentence during the time that Art. 142 is in operation and
the matter is sub-judice in the Supreme Court. .. Governor
cannot exercise his power of the suspension of the
sentence for the period when the Supreme Court is seized
of the case.
 It was held that the Governor had no powers under Art.
161, to grant suspension of sentence for the period during
which the matter was pending in the Supreme Court.
Kuljit Singh v. Lt. Governor of Delhi AIR 1982 SC 774 The
This is a case involving (infamous) Ranga and Billa who were
found guilty of murdering two innocent children. Sessions
court awarded death confirmed by high court – special leave
petition dismissed by the Supreme court. - mercy petition
was rejected by the president under Art. 72 without assigning
any reason. The petitioner contended that the power of the
president is coupled with duty which must be exercised fairly
and justly . The court stayed all death sentences against this
plea. However it was subsequently vacated
President has the power in an appropriate case to commute
any sentence imposed by a Court into a lesser sentence, and
the administration of justice by the Courts is not
necessarily or certainly considerate of circumstances which
may properly mitigate guilt.
But the question as to whether the case is appropriate for the exercise of
the power conferred by Art. 72 depends upon the facts and circumstances
of each particular case. The necessity or the justification for exercising that
power has therefore to be judged from case to case In the instant case,
since the accused had committed cold-blooded murders with professional
stamp, the only sentence which could possibly be imposed upon him was
that of death and no circumstances existed for interference with that
sentence. It could not, therefore, be said that in refusing to commute the
sentence of death into a lesser sentence, the President has in any manner
transgressed his discretionary power under Art. 72, whatever be the
guidelines observed for the exercise of the power conferred by Art. 72. The
question whether the Government of India has formulated any uniform
standard or guidelines by which constitutional power under Art. 72 or 161
can be exercised, left open, General order of stay of execution of death
sentence vacated.
Sher Singh v. State of Punjab AIR 1983 S C 465
Regarding the delay in the disposal of the petitions the court observed that
Government of India and the State Government must dispose of petitions filed
under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of
the Criminal P.C. expeditiously. A self-imposed rule should be followed by the
executive authorities rigorously, that every such petition shall be disposed of
within a period of three months from the date on which it is received. Long and
interminable delays in the disposal of these petitions are a serious hurdle in the
dispensation of justice and indeed, such delays tend to shake the confidence of
the people in the very system of justice.
However the court has stated That is the true implication of Art, 21 of the
Constitution. Prolonged delay in the execution of a death sentence is
unquestionably an important consideration for determining whether the sentence
should be allowed to be executed. But no hard and fast rule can be laid down
that "delay exceeding two years in the execution of a sentence of death should
be considered sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death" on the basis that
two years are sufficient for appeal and consideration of reprieve .
Kehar Singh v. Union of India AIR 1989 S C 653
Kehar Singh was convicted on 22-1-1986 under Secs. 120-B
and 302 of I.P.C for the murder of Mrs. Indira Gandhi,. He was
sentenced to death by the Additional Sessions Judge. The High
Court confirmed . His special leave to appeal was dismissed by
Supreme Court on September 7, 1988. Subsequently, a writ
petition filed before Supreme Court was dismissed. Thereupon,
his son presented a petition to President of India pleading that
Kehar Singh was innocent and requesting for personal hearing.
It was not granted on the ground that there was no such
established practice. His counsel addressed a letter to the
President arguing that there was no practice denying such
hearing.
The President replied that he could not go into the merits of the
case once finally decided by the highest court rejecting the petition.
The execution fixed was to be carried on December 2, 1988. Kehar
Singhs petition moved on 1st December 1988 was rejected. The
same day he moved the Supreme Court on special leave petition.
The Supreme Court granted stay of execution. The Supreme Court
later dealing on merits held that while exercising the pardoning
power the President can scrutinise the evidence on the record and
come to a different conclusion both on the guilt of Kehar Singh and
the sentence imposed upon him. In this process the President does
not modify, or amend or supersede the judicial record.
The Court held that It is in his discretion to follow any
method. The court cannot give guidelines. Kehar Singh had
no right for personal hearing. The President may call for
further information. It is open to him to give oral hearing of
the condemned person. The power under Art. 72 is of the
widest amplitude. The President need not give reason for his
order. The order is not subject to judicial review. Finally the
court held that the President may consider the matter a fresh
on the basis of the law laid down by the court.
Power to pardon - It is a part of constitutional scheme - Life
and personal liberty
Jumnan Khan v. State of Uttar Pradesh, (1991) 1 SCC 752,
the court found no ground to interfere with the rejection of
mercy petition by the President and to refer for
reconsideration.
Judicial review of the order of the President or the Governor
granting or refusing pardon under Article 72 or Article 161, is
available and their orders can be impugned on the following
grounds :
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.