Module II

MODULE II- THE UNION AND THE STATE EXECUTIVE

INTRODUCTION
India, being a quasi-federal democracy, has two levels of government; one at the Centre and
the other at the State level. However, it is not a strict federation like the US and is more
similar to the structure found in Canada. Therefore, the Constitution of India provides for the
Union Executive and the State Executive. President is the executive head of India and the
Governor is the executive head of the State. Articles 52-78 cover the Union Executive in the
Constitution in Part V.
THE PRESIDENT UNDER THE CONSTITUTION
Though the office of President in India is a rubber-stamp, he is still the executive head of
India and enjoys various powers and immunities in respect of his official duties. The
President is also the Supreme Commander of the Defence Forces of the Union.
Election of the President
The President is elected by an electoral college and his election is conducted in accordance
with the ‘system of proportional representation by means of the single transferrable vote by
secret ballot’.
The electoral college consists of-

Elected members of both the houses of Parliament
Elected members of Legislative Assemblies of States
The members appointed by the President are, however, not entitled to vote in the election of
President due to conflict of interest. A person is required to have ten proposers and ten
seconders for being nominated as a candidate for President’s election.
Term
The term of the office of President is five years from the date on which he enters upon office
and not the date of appointment. The President is also liable for re-election.
Oath

The oath of office is administered by the Chief Justice of India or any other senior-most judge
in his absence.
Qualifications for election as President
Article 58 of the Constitution lays down the following qualifications-

He must be a citizen of India
He must have completed the age of 35 years
He must be qualified to be elected as a member of the Lok Sabha
He should also not hold any office of profit and should not be a Member of Parliament or any
State Legislatures.
Powers of the President
Executive Powers
-All executive power is exercised by the President.
-He is the Supreme Commander of the Defence Forces
-He has the power to make appointments to the posts of Governors, CJI, Judges, Prime
Minister, Union Ministers, etc.
-He governs the Union Territories through Administrators.
-He has the power to remove his Ministers individually, the Attorney General, the Governor,
chairman of PSCs, Judges, Election Commissioner etc.
Legislative Powers
-He has the power to summon, prorogue and address the Parliament. He can also dissolve
Lok Sabha and summon joint sitting of both the Houses of the Parliament.
-He lays down reports before the Parliament.
-Some Bills require previous sanction of the President before being introduced in the
Parliament.
-A Bill becomes an Act only after the President’s approval.

-President may promulgate Ordinances when the Parliament is not in session under Article
123.

-The President nominates 12 members to Rajya Sabha and 2 Anglo-Indian members to the
Lok Sabha.

Financial Powers

-Money Bills can only be introduced in the Lok Sabha after the previous sanction of the
President.

-President is empowered to make advances out of the Contingency Fund of India to meet
unforeseen expenditure. Such advance is pending the approval of the Parliament.

The President appoints the Finance Commission under the Constitution of India.

-The President causes to be laid before the Parliament the Annual Financial Statement at the
beginning of the financial year.

Judicial and Diplomatic Powers

-The President may pardon offenders or remit, reprieve, suspend or commute their sentences
on the written recommendation of the Ministry.

The President Appoints ambassadors.

Emergency Powers

-The President can proclaim National Emergency on the advice of the Cabinet.

-The President is empowered to promulgate President’s rule in States.

-The President is also empowered to promulgate financial emergency. It is important to note
that no financial emergency has been declared in India since the commencement of the
Constitution.
In Ram Jawaya Kapoor v. State of Punjab1, the Court has discussed in detail the executive
power and their scope under the Indian Constitution.

RELATION BETWEEN PRESIDENT AND COUNCIL OF MINISTERS


1 AIR 1955 SC 549.

Though President is the executive head, yet almost all his powers are either exercised on the
recommendation of the Council of Ministers or are approved by the Council of Ministers.

Council of Ministers

Article 74(1) provides that there shall be a Council of Ministers. The Prime Minister heads
the Council of Ministers. The Council of Ministers must aid and advise the President in
exercise of his powers under the Constitution.

Confidentiality

A very important aspect of this relation is the aspect of confidentiality. The advice tendered
to the President cannot be inquired into any Court of Law. This is not to say that President
can take arbitrary decisions on the advice of the Council of Ministers. The decision should be
based on reasonable advice though the sufficiency of reason cannot be dragged in a Court of
law.
42nd and 44th Amendment
The 42nd amendment to the Constitution clarified that the advice tendered to the President by
the Council of Ministers is binding upon him. However, after the 44th amendment, the
president can send back the advice for re-consideration one time. If the same advice is
tendered in the second chance also, then the President is bound to accept the recommendation
and cannot refuse to consider it.

Collective Responsibility

Article 75(3): the Council of Ministers is collectively responsible to the Lok sabha.

Strength of Council of Ministers
By the 91st amendment, clause (1A) has been included which provides that the size of the
Council of Ministers including the Prime Minister shall not exceed fifteen percent of the total
number of members in the Lok Sabha.

PRIVILEGES/IMMUNITIES OF THE PRESIDENT (ARTICLE 361)

President is not answerable to any court for the exercise of power and duties of his
office, except when he is placed under impeachment proceedings.

No proceedings criminal in nature can be instituted against the President during the
term of his office. The bar is lifted after his term of office ends.
No process for the arrest or imprisonment of the President shall be instituted during
the term of his office.
No civil proceeding can be instituted in which relief is claimed against the President
during his term unless-
-A notice is given to him
-The notice is to be given two months prior
-The notice must state the nature of proceeding, cause of action, description of party
etc.

Resignation/Impeachment of the President

The President may resign from his office by tendering a written resignation to the
Vice-President.
Article 56 requires the Vice-President to communicate the resignation to the Speaker
of the Lok Sabha.
The President may also be removed from his office before the expiry of the term by
the process of impeachment.
The President can be impeached from his office on the grounds of violation of the
provisions of the Constitution.
Article 61 lays down the detailed procedure for the impeachment of the President.

Impeachment Procedure

The charge against the President can be preferred by either house of the Parliament by
a resolution after giving a written notice of 14 days.
The notice has to signed by atleast one fourth of the total number of Members of that
house.
The resolution should be passed by a majority of not less than two-third of the
membership of the house.
The other house should investigate the charge against the President. The president has
the right to appear and be represented at such investigation.
If after investigation, the President is found guilty, and the other House passes a
resolution by a majority of not less two-third of its total membership declaring that the

charge preferred has been sustained, it would have the effect of removing the
President from his office from the date on which the resolution is passed.

VICE-PRESIDENT

The Constitution also provides for a post of Vice President. He is elected by members of the
two houses of the Parliament in accordance with the system of proportional representation by
means of a single transferable vote and secret ballot.

Qualifications of a Vice President

A candidate for the office of Vice-President must have the following qualifications-

He must be a citizen of India
He must be more than 35 years of age
He must possess the qualifications prescribed for membership of the Rajya Sabha
He must not be a member of either House of the Parliament or the State Legislatures
He must not be a person of unsound mind or insolvent
He must not hold any office of profit under the Union or State Govenrment.

Term

The Vice President holds office for a term of five years from the date on which he enters
office.

Re-election

The Vice President is eligible for re-election.

Resignation/Removal

The Vice President can resign from his office by tendering his resignation to the President of
India. He can also be removed by the Rajya Sabha through a resolution passed by a two-third
majority of its members and agreed to by the Lok Sabha in a similar manner.

Ex-officio Chairman

The Vice President acts as the ex-officio Chairman of the Rajya Sabha. He draws salary and
emoluments by virtue of being the Chairman of Rajya Sabha and not from his office of Vice-
President.

He is entitled to the same salary and allowance that are paid to the Speaker of the Lok Sabha.

Powers of Vice President under the Constitution of India

He is the ex-officio Chairman of the Rajya Sabha
He presides over the meetings of Rajya Sabha
All bills, resolutions etc. are taken up in Rajya Sabha after his consent
He is the chief spokesperson of the Rajya Sabha before the President as well as the
Lok Sabha
In the event of vacancy in the post of President, the Vice President discharges the
functions of the office of the President
The vacancy in the office of President may arise out of death, resignation or removal
The Vice President can act as President for a maximum period of six months
In the event of temporary absence of the President also, the Vice President discharges
the functions of the office of President

PRIME MINISTER

Prime Minister is the leader of the majority party in the Lok Sabha.
He is the head of the Council of Ministers (Article 74(1)).
The Prime Minister is primes inter pares (‘First among Equals’) in Council of
Ministers.
The main function of the Prime Minister is to aid and advise the President in the
exercise of his functions.
The Prime Minister is the Chairman of the Planning Commission.

THE GOVERNOR

The Executive power of the State is vested in the Governor. He is also known as the
Constitutional Head of the State. Article 153 provides that there shall be a Governor for each
State. There is no bar on the appointment of same person as the Governor for two or more
States after the seventh amendment, 1956.

Appointment

The Governor is appointed by the President by warrant under his hand and seal on the advice
of the Prime Minister.

Term

The Governor holds the office for a term of five years from the date on which he enters upon
his office. He continues to hold office until his successor enters upon his office. There is also
no bar on re-appointment of Governor for the same or different State.

Qualification of Governors

The qualifications for appointment of Governor are-

He must be a citizen of India
He must have completed the age of 35 years

Removal/Resignation

The Governor may be dismissed by the President or the Governor may resign from his post.
Article 156(1) provides that the Governor holds office during the pleasure of the President.
The Chief Justice of the High Court becomes the ‘acting Governor’ in the event of the death
of the Governor.

Executive Powers

The Executive power of the State extends to those matters with respect to which the State
Legislature has power to make laws. The Governor is also authorised to make rules for more
convenient transaction of the business of State Government.
In Shamsher Singh v. State of Punjab2, the Court held that whenever the Constitution requires
the satisfaction of the President or the Governor, it is the satisfaction in the constitutional
sense and not personal sense that is warranted.

Executive Powers of the Governor-

The Governor appoints the Chief Minister of the State
The Governor also appoints the Council of Ministers on the advice of the Chief
Minister
The Governor appoints the Advocate-General. The Advocate General holds office
during the pleasure of the Governor


2 AIR 1974 SC 2192.

The Governor also has the power to nominate members of the Anglo-Indian
community to State Legislative Assembly and members having special knowledge to
the State Legislative Council
The Governor also appoints the members of the State Public Service Commission.

Legislative Powers

State Legislature consists of the Governor of the State.
The Governor has the right to address and send messages to the Legislature
The Governor is empowered to summon, prorogue and dissolve the Legislature
All Bills in the State require the assent of the Governor before becoming a law
The Governor may also reserve a Bill for the assent of the President
He causes to be laid the Annual Financial Statement before the State Legislature
The Governor has the power to issue ordinance in the absence of session of the State
Legislature (Article 213)

Relationship between Governor and Council of Ministers

The relationship between the Governor and Council of Ministers is similar to that of between
the President and his Ministers except that some of the powers exercised by the Governor are
exercised in his discretion as opposed to the powers exercised by the President in the same
scheme.

Article 163(1) in the Constitution states-

“There shall be a council of Ministers with the chief Minister at the head to aid and
advise the Governor in the exercise of his functions, except in so far as he is by or
under this constitution required to exercise his functions or any of them in his
discretion”

Article 163(2) in the Constitution states-

“If any question arises whether any matter is or is not a matter as respects which the
Governor is by or under this Constitution required to act in his discretion, the decision
of the Governor in his discretion shall be final, and the validity of anything done by
the Governor shall not be called in question on the ground that he ought or ought not
to have acted in his discretion”

There are certain circumstances under which the Governor is required to exercise his
discretionary powers. Some of them are enlisted below-

Appointment of Chief Minister
Dismissal of a Ministry
Dissolution of Legislative Assembly
Emergency power under Article 356

Appointment of Chief Minister

When no party has formed an absolute majority in the legislature, the Governor may exercise
his discretion in the appointment of the Chief minister.

Dismissal of a Ministry

Ministers hold office during the pleasure of the Governor, and this pleasure is exercised on
the advice of the Chief Minister.

Dissolution of Legislative Assembly

The Governor can exercise his discretion when the ministry has lost the majority and no
alternative is possible.

Emergency Power under Article 356

For the imposition of President’s rule in a State under Article 356, the Governor’s
recommendation is generally sought. Although emergency under this article can also be
imposed without the Governor’s recommendation, but generally his advice is solicited and
considered on the matter.

There have also been instances where these discretionary powers have been challenged
before the Courts as being arbitrary.
The Court in the landmark case of Rameshwar Prasad v. Union of India3, made observations
regarding misuse of powers bestowed under the Constitution of India in the manner of
appointment and discharge of functions by the Governors.

LEGISLATIVE POWERS OF THE EXECUTIVE (ARTICLES 123 AND 213)


3 AIR 2006 SC 980.

The ordinance making power in the Constitution is a legislative power that is conferred upon
the President and the Governor under Article 123 and 213 respectively. Before moving to
discuss these provisions, let’s take a look into the provisions-

Article 123 of the Constitution states-

Power of President to promulgate Ordinances during recess of Parliament
(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate action,
he may promulgate such Ordinance as the circumstances appear to him to require
(2) An Ordinance promulgated under this article shall have the same force and effect as an
Act of Parliament, but every such Ordinance
(a) shall be laid before both House of Parliament and shall cease to operate at the expiration
of six weeks from the reassemble of Parliament, or, if before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of
those resolutions; and
(b) may be withdrawn at any time by the President Explanation Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause
(3) If and so far as an Ordinance under this article makes any provision which Parliament
would not under this Constitution be competent to enact, it shall be void.

Article 213 of the Constitution states-

Power of Governor to promulgate Ordinances during recess of Legislature
(1) If at any time, except when the Legislative Assembly of a State is in session, or where
there is a Legislative Council in a State, except when both Houses of the Legislature are in
session, the Governor is satisfied that circumstances exist which render it necessary for him
to take immediate action, he may promulgate such Ordinance as the circumstances appear to
him to require: Provided that the Governor shall not, without instructions from the President,
promulgate any such Ordinance if
(a) a Bill containing the same provisions would under this Constitution have required the
previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for
the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would under this
Constitution have been invalid unless, having been reserved for the consideration of the
President, it had received the assent of the President
(2) An Ordinance promulgated under this article shall have the same force and effect as an
Act of Legislature of the State assented to by the Governor, but every such Ordinance
(a) shall be laid before the legislative Assembly of the State, or where there is a Legislative
Council in the State, before both the House, and shall cease to operate at the expiration of six
weeks from the reassembly of the Legislature, or if before the expiration of that period a
resolution disapproving it is passed by the Legislative Assembly and agreed to by the
Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the
resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor Explanation Where the Houses of the
Legislature of a State having a Legislative Council are summoned to reassemble on different
dates, the period of six weeks shall be reckoned from the later of those dates for the purposes
of this clause
(3) If and so far as an Ordinance under this article makes any provision which would not be
valid if enacted in an Act of the legislature of the State assented to by the Governor, it shall
be void: Provided that, for the purposes of the provisions of this Constitution relating to the
effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an
existing law with respect to a matter enumerated in the Concurrent List, an Ordinance
promulgated under this article in the Concurrent List, an Ordinance promulgated under this
article in pursuance of instructions from the President shall be deemed to be an Act of the
Legislature of the State which has been reserved for the consideration of the president and
assented to by him

The ordinance making power is the power to legislate, when both the Houses of the
Parliament or State Legislature are not in session. This power is exercised by the President
and the Governor in their respective spheres. The power is to be exercised by the President
and the Governor on the advice of the Council of Ministers. The ordinance has to be laid
before the Parliament after it reassembles.

However, throughout the legislative history, the ordinance making power has been abused by
the Executive to further their interests and to encroach upon the Legislature functions. The
leading case on this point is D C Wadhwa v. State of Bihar4.

JUDICIAL POWER OF THE EXECUTIVE (ARTICLES 72 AND 161)

Article 72 of the Constitution states-

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) Noting in sub clause (a) 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.

Similarly, Article 161 of the Constitution states-

Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences
in certain cases
The Governor of a State 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 against any law relating to a matter to which the executive power of
the State extends.


4 AIR 1987 SC 579.