Chapter 16

The Union executive

(Articles 52-78)

(A) the President

Article 52. The President of India

Who is the executive head of the State?

There shall be a President of India.

The central executive consists of the President and the Council of Ministers headed by
the Prime Minister. It is of the parliamentary type insofar as the Council of Ministers is
responsible to the Lok Sabha. The President is the Head of the State and the formal
executive. All executive action at the centre is expressed to be taken in his name. The
office of the President came into existence immediately after the Constitution was
adopted on 26th November, 1949.

Article 53. Executive power of the union

What are the executive powers 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 for 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.

Rai Sahib Ram Jawaya Kapur v. State of Punjab, MANU/SC/0011/1955 : AIR 1955 SC
549: 1955 SCJ 504: (1955) 2 SCR 225. Executive functions comprises both
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. Executive function embraces
the direction of general policy.

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 Jayantilal Amritlal Shodhan v. F.N. Rana, MANU/SC/0046/1963 : AIR 1964 SC 648:
(1964) 2 SCA 284: (1964) 5 SCR 294. The executive now exercises the powers of
subordinate legislation and of administrative justice. It cannot be assumed that the
legislative functions are exclusively performed by the legislature, executive functions
by the executive and judicial functions by the judiciary alone.

Article 54. Election of President

Define the process and manner of 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.

Article 55. Manner of election of President

(1) As far as practicable, there shall be uniformity in the scale of the 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

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 proportional representation by means of 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.

In Re, Presidential Election, 1974, AIR 1974 SC 1682: (1974) 2 SCC 33: (1975) 1
SCR 504. The Supreme Court has ruled that the election of the President can be held
when a State Assembly has been dissolved under article 356 and its members are
unable to participate in the election.

Article 56. Term of office of President

Define terms, eligibility and qualification for election as 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 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.

Article 58. Qualification for election as President

(1) No person shall be eligible for election as President unless he:-

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 (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 Government.

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 of any State or is a Minister either for
the Union or for any State.

This article lays down the qualification which a person must possess for being elected
to the office of the President of India. The person must be a citizen of India and of 35
years of age, and must be qualified for election as a member of the House of the
People. Thus, a person contesting for the office of the President must be a voter in
any Parliamentary constituency.

Article 59. Conditions of President's office

(1) The President shall not be a member of either House of Parliament or 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.

The President's salary has been raised to Rs. 1,50,000 per month from Rs. 50,000 per
month. His salary and allowances cannot be diminished during his term of office.

Article 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

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 presence of the Chief Justice of India or, in his absence, the seniormost Judge of the
Supreme Court available, an oath or affirmation in the following form, that is to say-

"I., A.B., do 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."

Before entering upon his office, the President has to make and subscribe to an oath or
affirmation in the prescribed form in the presence of the Chief Justice of India or, in
his absence, the seniormost judge of the Supreme Court available. In his oath, the
President undertakes to protect and defend the Constitution and the law and to
devote himself to the service and well-being of the people.

Article 61. Procedure for impeachment of the President

What is the procedure for impeachment of the President?

(1) When a President is to be impeached for violation of the Constitution, the

charge shall be preferred by either House of Parliament.

(2) No such charge shall be preferred unless-

(a) the proposal to prefer such charge is contained in a resolution which has
been moved after at least fourteen days notice in writing signed by not less
than one-fourth of the total number of members of the House has been given
of their intention to move the resolution, and

(b) such resolution has been passed by a majority of not less than two-thirds
of the total membership of the House.

(3) When a charge has been so preferred by either House of Parliament, the other
House shall investigate the charge or cause the charge to be investigated and the
President shall have the right to appear and to be represented at such investigation.

(4) If as a result of the investigation a resolution is passed by a majority of not less

than two-thirds of the total membership of the House by which the charge was
investigated or caused to be investigated, declaring that the charge preferred against
the President has been sustained, such resolution shall have the effect of removing
the President from his office as from the date on which the resolution is so passed.

There is, however, only a remote possibility of this provision being invoked because
the President acts on the advice of his ministers who are responsible to Parliament.
So long as he acts in this manner, the majority in Parliament need not invoke the
provision regarding impeachment as it can easily remove the Council of Ministers. The
power to impeach might possibly be invoked in the event of the President acting
independently of, or contrary to, ministerial advice, or for treason, bribery or other

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 high crimes or misdemeanours.

Impeachment is a political instrument. What constitutes 'violation of the Constitution'

is a matter to be decided by the House which tries the charge and the House is
essentially a political organ.

Article 62. Time of holding election to fill vacancy in the office of President and the
term of office of person elected to fill casual vacancy

(1) An election to fill a vacancy caused by the expiration of the term of office of
President shall be completed before the expiration of the term.

(2) An election to fill a vacancy in the office of President occurring by reason of his
death, resignation or removal, or otherwise shall be held as soon as possible after,
and in no case later than six months from the date of occurrence of the vacancy; and
the person elected to fill the vacancy shall, subject to the provisions of article 56, be
entitled to hold office for the full term of five years from the date on which he enters
upon his office.

In re Presidential Election case, AIR 1974 SC 1982: (1974) 2 SCC 33: (1975) 1 SCR
504. The Supreme Court held that election to fill the vacancy in the office of the
President must be completed before the expiration of the term of the President having
regard to articles 62(1), 54 and 55 of the Constitution. Article 56(1)(c) applies to a
case where a successor has not entered in his office and only in such circumstances
can a President whose term has expired continue in his office.

Article 361. Protection of President

Define Vice-President and also explain election, terms and qualification required for
Vice-President

(1) The President shall not be answerable to any court for the exercise and
performance of the powers and duties of his office or for any act done or purporting
to be done by him in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by
any court, tribunal or body appointed or designated by either House of
Parliament for the investigation of a charge under article 61:

Provided further that nothing in this clause shall be construed as restricting the
right of any person to bring appropriate proceeding against the Government of
India.

(2) No criminal proceedings whatsoever shall be instituted or continued against the

President in any court during his term of office.

(3) No process for the arrest or imprisonment of the President shall issue from any

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 court during his term of office.

(4) No civil proceedings in which relief is claimed against the President shall be
instituted during his term of office in any court in respect of any act done or
purporting to be done by him in his personal capacity, whether before or after he
entered upon his office as President, until the expiration of two months next after
notice in writing has been delivered to the President or left at his office stating the
nature of the proceedings, the cause of action, the name, description and place of
residence of the party by whom such proceedings are to be instituted and the relief
which he claims.

The ambit of this immunity is very extensive. No court can compel the President to
exercise or not to exercise any power, or to perform or not to perform any duty nor
can a court issue any writ in respect of the President's official acts or omission. He is
not amenable to any mandate, writ or direction from any court. No court can compel
him to show cause or defend his action. In the case of official acts, an absolute
immunity from the process of the court is given to the President. When any official act
of the President is challenged on the ground of mala fide, the immunity under article
361 extends to him and he cannot be called upon personally to defend himself against
such an allegation. Nevertheless, the validity of the act can be questioned and the
Government has to defend it.

(B) the Vice-President

Article 63. The Vice-President of India

There shall be a Vice-President of India.

Article 64. The Vice-President to be ex-officio Chairman of the Council of States

The Vice-President shall be ex-officio Chairman of the Council of States and shall not
hold any other office of profit.

Provided that during any period where the Vice-President acts as President or
discharges the functions of the President under article 65, he shall not perform
the duties of the office of Chairman of the Council of States and shall not be
entitled to any salary or allowance payable to the Chairman of the Council of
States under article 97.

Article 65. The Vice-President to act as President or to discharge his functions

during casual vacancies in the office, or during the absence of President

(1) In the event of the occurrence of any vacancy in the office of the President by
reason of his death, resignation or removal, or otherwise, the Vice-President shall act
as President until the date on which a new President elected in accordance with the
provisions of this Chapter to fill such vacancy enters upon his office.

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 (2) When the President is unable to discharge his functions owing to absence, illness
or any other cause, the Vice-President shall discharge his functions until the date on
which the President resumes his duties.

(3) The Vice-President shall, during, and in respect of, the period while he is so acting
as, or discharging the functions of President, have all the powers and immunities of
the President and be 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.

Article 66. Election of Vice-President

(1) The Vice-President shall be elected by the members of an electoral college

consisting of the members of both Houses of Parliament 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.

(2) The Vice-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 the Legislature of any State be elected Vice-President, he shall be
deemed to have vacated his seat in that House on the date on which he enters upon
his office as Vice-President.

(3) No person shall be eligible for election as Vice-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 Council of States.

(4) A person shall not be eligible for election as Vice-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 of any State or is a Minister either for
the Union or for any State.

Dr. Ambedkar, Chairman of the Drafting Committee, said:

"The President is the head of the State and his power extends both to the
administration by the centre as well as to the States. It is necessary that in his
election, not only members of Parliament should play their part, but the
members of the State legislatures should have a voice, but when we come to
the Vice-President, his normal functions are to preside over the Council of

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 States.

Article 67. Terms of office of Vice-President

The Vice-President shall hold office for a term of five years from the date on which he
enters upon his office:

Provided that-

(a) a Vice-President may, by writing under his hand addressed to the

President, resign his office;

(b) a Vice-President may be removed from his office by a resolution of

the Council of States passed by a majority of all the then members of
the Council and agreed to by the House of the People; but no
resolutions for the purpose of this clause shall be moved unless at least
fourteen days' notice has been given of the intention to move the
resolution;

(c) A Vice-President shall, notwithstanding the expiration of his term

continue to hold office until his successor enters upon his office.

The normal tenure of office of the Vice-President is five years from the date he enters
upon his office. He may, however, resign his office before the expiry of the term by
writing to the President. He may also be removed from office by a resolution of the
Council of States passed by a majority of all the then members of the House and
agreed to by the House of the People.

Article 68. Time of holding election to fill vacancy in the office of Vice-President
and the term of office of person elected to fill casual vacancy

Vice-President and the term of office of person elected to fill casual vacancy.-An
election to fill a vacancy caused by the expiration of the term of office of Vice-
President shall be completed before the expiration of the term. An election to fill a
vacancy in the office of Vice-President occurring by reason of his death, resignation or
removal, or otherwise shall be held as soon as possible after the occurrence of the
vacancy, and the person elected to fill the vacancy shall be entitled to hold office for
the full term of five years from the date on which he enters upon his office.

Article 69. Oath or affirmation by the Vice-President

Every Vice-President shall, before entering upon his office, make and subscribe before
the President or some person appointed in that behalf by him, an oath or affirmation
in the following form, that is to say-

"I. A.B., do that I will bear true faith and allegiance to the Constitution of India
as by law established and that I will faithfully discharge the duty upon which I

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 am about to enter".

Article 70. Discharge of President's functions in other contingencies

Parliament may make such provision as it thinks fit for the discharge of the functions
of the President in any contingency not provided for in this chapter.

Article 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 Constiution, 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.

Charan Lal Sahu v. Neelam Sanjeeva Reddy, MANU/SC/0401/1978 : AIR 1978 SC

499: 1978 UJ (SC) 134: (1978) 2 SCC 500: 1978 (2) SCJ 51. Under section 14 of the
Presidential and Vice-Presidential Election Act, 1952, the petitioner challenged the
election of Sh. Reddy as President of India at the Presidential election held on July 19,
1977. A question was raised whether the petitioner had locus standi to maintain the
petition in view of sections 5B and 5C of the Act and whether he could challenge the
validity of these sections. It was held by the Supreme Court that the petitioner was
not duly nominated nor was one who could claim to be so nominated and that his
nomination paper was rightly rejected by the returning officer as required under the
Act.

Indira Nehru Gandhi v. Raj Narain, (1976) 2 SCR 347: MANU/SC/0304/1975 : AIR
1975 SC 2299: 1975 Supp SCC 1. In this case, the Supreme Court struck down article
329A

clause (4) of the Constitution on the ground that it violated the basic structure of the
Constitution. Clause (3) of article 71 did not affect the basic structure.

Dr. Narayan Bhaskar Khare v. Election Commission of India, MANU/SC/0022/1957 :

AIR 1957 SC 694: 1957 SCC 344: 1957 SCJ 663. Clause (4) of this article was

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 introduced by the Constitution (Eleventh Amendment) Act, 1961 to foreclose any
challenge of the kind made in this case that the Presidential election should be stayed
till all vacancies in Parliament and State legislature are filled.

Powers of the President

What are the powers of the President?

Executive Powers of President

(a) Powers as head of the State.-According to article 53, the executive power
of the Union vests in the President, and according to article 77 executive
actions of the Government of India are to be taken in his name. In foreign
countries, he represents the nation. He sends and receives ambassadors and
other diplomatic agents. All treaties and international agreements are made in
his name though their implementation may require legislation by Parliament.
He can declare a State of war with any country or that a state of war with any
country ended.

(b) As Supreme Commander of Armed Forces.-Article 53(2) declares that the

Supreme Command of Defence Forces of the Union shall be vested in the
President and the exercise thereof shall be regulated by law.

(c) Power to appoint certain commissions and officials.-All important

appointments will be made by him including those of the Prime Minister and
other Central Ministers, Governors, Judges of the Supreme Court and the High
Courts, Chairmen and Members of the Union Public Service Commission, the
Attorney-General, the Chief Election Commissioner and other election
Commissioners and the Comptroller and Auditor-General of India. He also
appoint the Finance Commission, National Commission for the Scheduled
Castes and Scheduled Tribes and other commissions.

(d) Powers in relation to Council of Ministers.-The President appoints Prime

Minister and other members of the Council of Ministers and they hold their
offices during the pleasure of the President. Article 77(3) empowers the
President to make rules for some convenient transaction of the business of the
Government of India and for allocation of such business among the members.

(e) Power to grant Pardon.-Under clause (1) of article 72 - The President shall
have the power to grant pardons, reprieves, respite or remission 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

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 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.

Clause (2) of article 72 provides that 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.

Clause (3) of article 72 provides that nothing is 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.

Explain the pardoning power of President with the help of decided case laws

Pardon.-Pardon means to foregive a person of his offence. A pardon is an act of

grace. It cannot be demanded as a matter of right. A pardon not only removes the
punishment but places the offender in the same position as if he had never committed
the offence. It is a purely executive act.

Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, AIR 1981 SC 2239. It was
contended that President cannot exercise his discretion arbitrarily, particularly in case
of death sentence. A pardon may be absolute or conditional. A pardon is conditional
where it does not become operative until the grantee has performed some specified
act, or where it becomes valid when some specified event happens.

Pardon can be granted at any stage after the commission of the offence, before legal
proceedings are taken, during pendency of proceedings or after the conviction.

Reprieve.-Reprieve means temporary suspension of punishment fixed by law e.g.,

where he files a mercy petition or a woman pleads pregnancy.

Respite.-Respite means postponement of the execution of sentence to a future date.

Commute.-Commute means to change the nature of punishment e.g., to commute a

death penalty into life imprisonment or rigorous imprisonment into a simple one.

Remit.-Remit means to reduce the amount of punishment without changing the

nature of the punishment e.g., to reduce 10 years' imprisonment to that of 5 years.

K.M. Nanavati v. State of Bombay, MANU/SC/0063/1960 : AIR 1961 SC 112: (1961)

1 Cr LJ 173: (1961) 1 SCA 54: (1961) 1 SCR 497: 1961 (2) SCJ 100. It was held that
the power to suspend a sentence is subject to the rules made by the Supreme Court
with respect to cases which are pending before it in appeal.

Kehar Singh v. Union of India, MANU/SC/0240/1988 : (1989) 1 SCC 204: 1989 Cr LJ

941: JT 1988 (4) SC 693: MANU/SC/0240/1988 : (1989) 1 SCC 204: 1989 (1) Crimes
238: 1989 SCC (Cri) 86. Article 72 is of the widest amplitude, can contemplate
myriad kinds and categories of cases with facts and situations varying from case-to-

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 case, in which the merit and reasons of State may be profoundly assisted by
prevailing occasion and passing time.

The Court observed in this case that article 72 falls squarely within the Judicial
domain and can be examined by the court by way of judicial review.

Legislative Power of the President

Explain the ordinance making power of President

(a) Participation of the Executive in the Legislative Process.-The Council of ministers

being an integral part of Parliament participates intimately in the legislative process,
and discharges important functions in relation to Parliament. This concept is
underlined by making President a component part of Parliament. The executive's
power to convene and prorogue Parliament, to dissolve Lok Sabha, presentation of
Bills to Parliament and the requirement of Presidential assent for transforming a Bill
passed by the two Houses into an Act are some of the factors which denote the
intimate role played by the executive in relation to the legislative process.

President may address any or both Houses of Parliament and send message to either
House with respect to a Bill pending in Parliament or otherwise. There are several
provisions in the Constitution which require prior recommendation of the President for
introducing legislation or some matters in a House of Parliament. As for example-

(i) President's recommendation is required to introduce in either House a Bill

for the formation of new States or alteration of areas, boundaries or names of
existing States (Article 3).

(ii) A money Bill cannot be introduced without the recommendation of the

President [Article 117(1)].

(iii) President's recommendation is required for consideration by a House of a

Bill involving expenditure from the Consolidated Fund of India [Article 117(3)].

(iv) Prior recommendation of the President is required for introducing in either

House of Parliament any Bill affecting any tax in which States are interested
(Article 274).

(b) Rule-Making Powers.-Several Constitutional provisions confer rule-making powers

on the Central Executive enabling it to prescribe detailed provisions for several
matters, as for example:

(a) authentication of orders and instruments made and executed in the name
of the President [Article 77(2)];

(b) the more convenient transaction of the government's business [Article 73

(3)];

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 (c) conditions of services etc., of Audit and Account Department [Article 148
(5)] Chairman and Members of the Union Public Services Commission [Article
318], secretariat and staff and House of Parliament [Article 98(3)];

(d) consultation with the UPSC regarding appointment of officials of the

Supreme Court [Article 146(1)];

(e) dual membership of Parliament and State Legislatures [article 101(2)].

(f) procedure to be followed at the joint meeting of the two Houses of

Parliament [Article 118(3)];

(g) regulating the requirement and conditions of service of person appointed to

services and posts in connection with the affairs of the Union [Proviso to
Article 309].

(c) Ordinance making powers.-(1) If at any time, except when both Houses of
Parliament are in session, the President is satisfied that circumstances exists which
render it necessary for him to take immediate action, he may promulgate such
ordinance as the circumstances appears to him to require.

(2) An Ordinance promulgated by the President under article 123 shall have the same
force and effect as an Act of Parliament, but every such Ordinance-

(a) shall be laid before both Houses of Parliament and shall cease to operate at
the expiration of six weeks from the re-assembly of Parliament; or if before
the expiration of that period resolution 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 re-

assemble 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 the article makes any provision while
Parliament would not under this Constitution be competent to enact, it shall be void.

R.C. Cooper v. Union of India, MANU/SC/0011/1970 : AIR 1970 SC 564: (1970) 3

SCR 530: (1970) 1 SCC 248. The constitutional validity of the Banking Companies
(Acquisition and Transfer of Undertaking) Ordinance, 1989, was challenged. By the
Ordinance, the Central Government nationalised a number of private banks. It was
argued that the Ordinance was invalid because the condition precedent to the
exercise of the power under article 123 does not exist. The Government's argument
was that the condition of satisfaction of the President is "purely subjective" and the
Government was under no obligation to disclose to existence of, or to justify the

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 circumstances.

The Court ruled that the satisfaction of the President is subjective and the only way in
which the exercise of power by the President can be challenged is by establishing 'bad
faith or mala fide and corrupt motive.

A.K. Roy v. Union of India, MANU/SC/0051/1981 : AIR 1982 SC 710: 1982 Cr LJ 340:
(1982) 1 SCC 27: 1982 SCC (Cri) 152: 1982 (2) SCJ 68. The Supreme Court has
emphasized that an Ordinance is law and is a product of exercise of legislative power.
It is 'law' for the purposes of article 21.

Emergency Power of President.-If the President is satisfied that a grave emergency

exists whereby security of India or any part thereof is threatened, emergency may be
proclaimed by him under article 352. During the period the proclamation is in force.
President may make modifications in distribution of revenues between Union and
States and suspend enforcement of fundamental rights when on report of the
Governor or otherwise, he is satisfied that Government of State cannot be carried on
in accordance with the provisions of the Government. During financial emergency
under article 360, President is empowered to issue necessary directions requiring
Money Bills or other Bills of State to be reserved for his consideration and reduction of
salaries of persons serving under the Union or States.

Article 73. Extent of executive power of the Union

(1) Subject to the provisions of this Constitution, the executive power of the Union
shall extends-

(a) to the matters with respect to which Parliament has power to make laws;
and

(b) to the exercise of such rights, authority, jurisdiction as are exercisable by

the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall

not save as expressly provided in this Constitution or in any law made
by Parliament, extend in any State to matters with respect to which the
Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a
State may, notwithstanding anything in this article continue to exercise in matters
with respect to which Parliament has power to make laws for that State such
executive power or functions as the State or officer or authority thereof could exercise
immediately before the Commencement of this Constitution.

(c) Council of Ministers

Define the election of Prime Minister and other Ministers

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Article 74. Council of Ministers to aid and advice President

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and
advice the President who shall, in the exercise of his functions, act in accordance with
such advice:

Provided that the President may request the Council of Minsters 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 whether, any, and if so what, advice was tendered by Ministers to
the President shall not be inquired into in any court.

Article 75. Other provisions as to Ministers

Explain in detail the S.R. Bommai case

(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.

(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.

(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."

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 According to article 53 the executive power of the union is vested in the President and
is exercisable by him in accordance with the Constitution. Article 74 expressly
provideds for a Council of Ministers with a Prime Minister at the head to aid and
advice the President in the exercise of his functions. The President is only a
constitutional head and acts on the aid and advice of the Council of Ministers.

Articles 74 and 75 which deal with the composition and status of the Council of
Ministers are sketchy and very generally warded. The framers of the Indian
Constitution left these matters undefined so that these may be regulated by practices
and conventions.

U.N. Rao v. Indira Gandhi, MANU/SC/0059/1971 : AIR 1971 SC 1002: (1971) 1 Civ
Ap J (SC) 176: 1971 (Supp) SCR 46. The Supreme Court held that even after the
dissolution of Lok Sabha, the Council of Ministers does not cease to hold office. Article
74(1) is mandatory one and, therefore, the President cannot exercise the executive
power without the aid and advice of the Council of Ministers. Any exercise of
executive power without such aid and advice will be unconstitutional in view of article
75(1).

Samsher Singh v. State of Punjab, MANU/SC/0073/1974 : AIR 1974 SC 2192: 1974

Serv LR 701: 1974 SCC (Lab) 550: (1975) 1 SCR 814. The Supreme Court held that
the President and the Governor are only "constitutional or formal heads". They
exercise their powers and functions under the Constitution only with the aid and on
the advice of the Council of Ministers. The Court said that our Constitution embodies
generally the Parliamentary or cabinet system of Government on the British Model,
both for the Union and the States.

In article 74, the proviso was added by the 44th Amendment Act, 1978 which
intended to prevent the recurrence of the situation which arose in 1975 when the
President had to sign the Emergency Proclamation only on the advice of the then
Prime Minister, Indira Gandhi, without consulting her cabinet colleagues.

S.R. Bommai v. Union of India, MANU/SC/0444/1994 : AIR 1994 SC 1918: 1994 AIR
SCW 2946: JT 1994 (2) SC 215: MANU/SC/0444/1994 : (1994) 3 SCC 1: (1994) 2
SCR 644. The Supreme Court has clarified the implications of article 74(2) and
observed that no court is concerned with what advice was tendered by the Minister to
the President. The court is only concerned with the validity of the order. An order
cannot be challenged on the ground that it is not in accordance with the advice
tendered by the Minister or that it is not based on an advice.

Article 74(2) protects and preserves the secrecy of the deliberations between the
President and his Council of Ministers. Its scope is limited. It does not immunize
orders and acts done by the President in exercise to his functions. Article 74(2)
cannot override the basic provisions of the Constitution relating to judicial review

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 when any action taken by the President in exercise of his functions is challenged, it is
for the Council of Ministers to justify the same, since the President acts under article
74(1).

The Prime Ministers appointed by the President under article 75(1). This is one act
which the President performs in his discreation without the advice of the Council of
Ministers or the Prime Minister. Clause (1A) and (1B) of article 75 was added by the
91st Amendment Act, 2003. The new clause (1A) provides that the total number of
Ministers, include the Prime Minister, in the Council of Ministers shall not exceed 15%
of the total number of members of the House of the people.

The new clause (1B) of article 75 provides that a member of either House of
Parliament belonging to any political party who is disqualified for being a member of
that House on the ground of defection under paragraph 2 of Tenth Schedule shall also
be disqualified to be appointed as a Minister under

clause (1) of 75, till he is again elected.

The Council of Ministers consists of three categories of Ministers Minister of Cabinet

Rank, Minister of State and Deputy Ministers. The Cabinet is the smaller body of the
Council of Ministers. The Cabinet is the supreme policy making body. All senior most
Ministers are the Members of the Cabinet.

Removal of Ministers.-Clause (2) lays down that Ministers hold office during the
pleasure of the President. Each Minister holds his office at the President's pleasure
indicates that his office is at all time at the Prime Minister's disposal. The President
acts on the advice of the Prime Minister. Clause (2) only applies to the dismissal of
Ministers. It does not apply to the dismissal of the Council of Ministers.

Collective Responsibility.-Clause (3) provides the basic principle of Parliamentary

Government is the collective responsibility of Minister to a statutory form. The Council
of Ministers are responsible to the Lok Sabha or the House of the People not as
individuals alone, but collectively also.

Common Cause, A Registered Society v. Union of India, (1996) 6 SCC 667. The
Supreme Court observed that collective responsibility has two meanings: The first
meaning which can legitimately be ascribed to it that all members of a Government
are unanimous in support of its policies and would exhibit that unanimity in public
occasions although while formulating the policies.

The Council of Ministers work as a team and all decisions taken by the Cabinet are the
joint decisions of all its members. No matter whatever be their personal differences of
opinion within the cabinet, but once a decision has been taken by it, it is the duty of
each and every Minister to stand by it and support it both in the Legislature and
outside.

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Article 78. Duties of Prime Minister as respects the furnishing of information to the
President etc

What are the duties of Prime Minister in respect of President?

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 proposal 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) makes it clear that though the President takes no part in the formal
deliberations of Ministers, he is constitutionally entitled to criticise the conduct of the
executive, and for these purposes decisions of the Council of Ministers relating to the
administration of the affairs of the Union are communicated to the President. Under
clause (b), it is the duty of the Prime Minister to furnish such information relating to
the Union administration and legislative proposals as the President may call for.
Clause (c) expressly affirms the doctrine of collective responsibility. It shall be the
duty of the Prime Minister, if the President so requires, to submit for reconsideration
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 of Ministers.

(d) Attorney-General For India

Explain the Attorney-General of India

Article 76. Attorney-General

(1) The President shall appoint a person who is qualified to be appointed a Judge of
the Supreme Court to be Attorney-General for India.

(2) It shall be the duty of the Attorney-General to give advice to the Government of
India upon such legal matters, and to perform such other duties of a legal character,
as may from time-to-time be referred or assigned to him by the President, and to
discharge the functions conferred on him by or under this Constitution or any other
law for the time being in force.

(3) In the performance of his duties the Attorney-General shall have right of audience
in all courts in the territory of India.

(4) The Attorney-General shall hold office during the pleasure of the President, and

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 shall receive such remuneration as the President may determine.

In England office of the Attorney-General is regarded as political. He is a member of

the Ministry. In India, Attorney-General is not a member of Council of Ministers.
There is distinct past of Minister who is member of the Council of Ministers. According
to article 88, every Minister and Attorney-General for India shall have the right to
speak and otherwise take part in the proceedings of either House of Parliament or any
joint sitting of both Houses and any committee of which he may be named as a
member but he shall not be entitled to vote.

The appointment of Attorney-General is made on the basis of professional

competence and not on political considerations. He is non-party man, is appointed
because of his competence as a lawyer and he is not a member of the cabinet.

Article 77. Conduct of business of the Government of India

(1) All executive action of the Government of India shall be expressed to be taken in
the name of the President.

(2) Orders and other instruments made and executed in the name of the President
shall be authenticated in such manner as may be specified in rules to be made by the
President, and the validity of an order or instrument which is so authenticated shall
not be called in question on the ground that it is not an order or instrument made or
executed by the President.

(3) The President shall make rules for the more convenient transaction of the
business of the Government of India, and for the allocation among Ministers of the
said business.

Rai Sahib Ram Jawaya Kapur v. State of Punjab, MANU/SC/0011/1955 : AIR 1955 SC
549: 1955 SCA 577: 1955 SCJ 504: (1955) 2 SCR 225. The decision taken by the
officers authorised under the rules of business is regarded as the decision of the
Government of India. The wheels of the Government will stop if all decisions were
required to be taken by the President or even by the Ministers.

A. Sanjeevi Naidu v. State of Madras, MANU/SC/0381/1970 : AIR 1970 SC 1102:

(1970) 2 SCJ 582: (1970) 2 Andh WR (SC) 98. These rules have statutory force and
are binding. Therefore, sanction for prosecution of an employee of the Central
Government under the Prevention of Corruption Act, was held not valid when it was
granted by a Ministry other than the one authorised to do so under the rules of
business.

Union of India v. Naveen Jindal, MANU/SC/0072/2004 : AIR 2004 SC 1559: 2004 AIR
SCW 705: JT 2004 (2) SC 1: MANU/SC/0072/2004 : (2004) 2 SCC 510: (2004) 1
SCALE 677: 2004 (1) Supreme 880: 2004 (2) UJ (SC) 955. Business rules cannot
overside a provision made by an Act or by any statutory rules.

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 © Universal law Publishing Co.

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