Constitutional position of the President :- The President of India is the head of

the Country. Articles 53 provides that the executive power of the Union shall be
vested in the President and shall be exercised by him directly or through officers
subordinate to him. Article 77 provides that all executive action of the
Government of India shall be expressed to be taken in the name of the
President. But, Article 74(1) expressly provides that there shall be a Council of
Ministers with the Prime Minister at the head to aid and advise the President
and the President shall, in the exercise of his functions, act in accordance with
such advice. This article declares the President bound by the aid and advise given
by the Council of Ministers and not to act or exercise his powers by his own
discretion. The effect of Article 74 (1) is that the Council of Ministers becomes
empowered to exercise the powers conferred upon the President. Prior to the
42nd Amendment there was nothing in Article 74(1) which show that the
President is bound by aid and advise of the Council of Ministers. But, the
President has been made bound by the advice of the Council of Ministers by this
amendment. Dr B.R. Ambedkar said, that under the Draft Constitution the
President occupies the same position as the King under the English Constitution.
He is the Head of the State but not of the Executive. He represents the nation
but does not rule the nation. He is the symbol of the nation. His place in the
administration is that of a ceremonial device on a seal by which the nation’s
decisions are made known. He will be generally bound by the advice of the
Ministers. He can do nothing contrary to their advice nor can do anything
without their advice. Dr. Rajendra Prasad, who was the President of the
Constituent Assembly has expressed the same view. He said, although there is
no specific provision of the Constitution itself making it binding on the President
to accept the advice of his Ministers, it is hoped that the convention under which
in England the King always acted on the advice of his Ministers, would be
established in this country also and the President would become constitutional
President in all matters. In the case of Ram Jawaya v. State of Punjab (AIR 1955
SC), the Supreme Court has considered this fact and held that Indian
Constitution, has adopted the English system of Parliamentary executive and
consequently, the President has been made the Constitutional head of the
executive and the real executive power has been vested in the Council of
Ministers. In the case of Shamsher Singh v. State of Punjab (AIR 1974 SC), The
Supreme Court has held that the President is only constitutional or formal head.
They exercise their powers and functions under the Constitution only with the
aid and the advice of the Council of Ministers. In the case of U.N. Rao v. Indira
Gandhi (AIR 1971 SC), the Supreme Court said that the President is bound to act
on the advice of the Council of Ministers. With the intention to remove
confusion, 42nd Amendment has been made in Article 74(1), and it has been
expressed in clear words that the President is bound by aid and advice of the
Council of Ministers. The Constitution of India has taken precaution by not giving
sole powers to an individual because it cannot be denied that in that situation
the President might be a dictator. Thus the Indian Constitution establishes the
balance of powers by giving powers to the President and making him bound by
aid and advice. These provisions show the real glimpse of the democracy
because the preference in the governance is given to the members directly
elected by the common people. It is noticeable point that by 44th Amendment
of the Constitution, a Proviso has been added in Article-74(1), which provides
that the President may require the Council of Ministers to reconsider such
advice, either generally or otherwise, and the President shall act in accordance
with the advice tendered after such reconsideration. It is noticeable point that
the president enjoys discretion in the appointment of the Prime Minister in case
no party has a clear majority in the House of the people, though he has no
discretion in case of clear majority.

The vice-President :
Article-63 provides that there shall be a Vice-President of India. Generally, the
office of the Vice-President has been established by the Constitution to
discharge the functions of the President when his office is vacant or he is unable
to discharge his functions.

Qualification for election as Vice-President :- According to Clause-(3) of Article-

66, the following qualifications are necessary for a person to be elected as a
Vice-President :

(1) He must be citizen of India.

(2) He must have completed the age of thirty-five years.
(3) He must be qualified for election as a member of the Council of States.
(4) He must not hold office of profit.

Election of Vice-President :- According to Clause-(1) of Article-66, 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. The voting
at such election shall be by the secret ballot. It is necessary that the Vice-
President shall not be a member of either House of Parliament or of a House of
the Legislature.
Oath or affirmation :- Article-69 provides that the Vice-President shall, before
entering upon his office, take oath before the President or any person appointed
by him.

Disputes relating to election of Vice-President :- According to Article-71 the

disputes relating to election of Vice-President shall be decided by the Supreme
Court and the decision given by the Court shall be final.

Term of office :- Article-67 provides that the Vice-President shall hold office
for a term of five years from the date on which he enters upon his office.

Resignation by a Vice-President :- According to Article-67, Clause (a), a Vice-

President may resign from his office. The resignation shall be addressed to the
President and shall be given in writing.

Removal of Vice-President :- According to Clause-(b) of Article-67, the 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. It is noticeable point that no resolution
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.

Functions :- The Vice-President may exercise the following functions :

(1) Ex-officio Chairman of the Council of States :- According to Article-64 the

Vice-President shall be ex-officio Chairman of the Council of States. Thus, the
Vice-President discharges the functions assigned to Chairman of the Council of
States.

(2) Functions of the President :- The Vice-President may discharge the functions
of the President in some contingencies. Article-65 provides that if the vacancy
in the office of the President arises due to his death, resignation or removal or
otherwise or the President is unable to discharge his functions due to absence
or illness or any other cause, the functions of the President shall be discharged
by the Vice-President.

The Council of Ministers :

Indian Constitution establishes parliamentary form of government. Its emphasis
is to establish real democracy. Thus, it provides that the governmental powers
shall be exercised by the Council of Ministers. Article 74 (1) of the Constitution
expressly provides that there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice. The effect of this provision is
that the powers vested in President are really exercised by the Council of
Ministers. After, 42nd amendment, the language of Article 74(1) is very clear and
made the President bound by the advice of the Council of Ministers. The Proviso,
added to Article 74(1), provides that the President may require the Council of
Ministers to reconsider such advice, but he is bound to act in accordance with
the advice tendered after such reconsideration. Clause (2) of this article
provides that the question whether any, and if so what, advice was tendered by
Ministers to President shall not be inquired into in any Court. In the case of S.R.
Bommai v. Union of India (1994,SCC), the Supreme Court has held that the
advice by the Council of Ministers to the President under Article 74 (2) is not
subject to the judicial enquiry, but the material on the basis of which advice was
tendered does not form part of the advice, therefore the judicial review can be
made.

Appointment of Prime Minister and other Ministers :- Clause (1) of Article 75

provides that the Prime Minister shall be appointed by the President and the
other Ministers shall be appointed by the President on the advice of the Prime
Minister. The appointment of Prime Minister is based on the well-established
convention in England. In England, the leader of the majority party of the Lower
House is appointed Prime Minister. Thus, in India, the leader of the majority
party of the House of People is appointed as the Prime Minister. It is noticeable
point that it is not necessary that the person appointed as a Prime Minister
should be a member in the House of People. Thus, the president has no
discretion in the appointment of the Prime Minister.

Maximum number of Ministers :- Clause (1A) has been added to Article 75 by

91st Amendment made in 2003. This clause provides that the total number of
Ministers, including the Prime Minister, in the Council of Ministers shall not
exceed fifteen percent of the total number of members of the House of the
People.

A Minister should be a member of either House of Parliament :- A person, who

is appointed as a Minister should be a member of either House of Parliament.
Clause (5) of Article 75 provides that 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. Thus, it is very clear that if a
person who is not the member of either House of Parliament is appointed as a
Minister he must become a member of either house before the expiry of six
months. If he does not become a member of either House of Parliament he shall
cease to be a Minister after the expiry of six months. In the case of S.P. Anand
v. H.D. Deve Gowda (AIR 1997,SC), the Supreme Court has held that a person
who is not a member of either House of Parliament can be appointed as a Prime
Minister, Chief Minister or as a Minister for a period of six months, but if during
the said period he is not elected to either House of the Parliament he will cease
to be a Minister. In the case of S.R. Chauhan v. State of Punjab (AIR 2001,SC),
the Supreme Court has held that a non-member who fails to get elected during
the period of six consecutive months after he is appointed as a Minister cannot
be reappointed as Minister.

Disqualification on defection on ground of split in political party :- Clause (1B)

has been added to Article 75 by 91st Amendment in 2003. This clause provides
that if 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 the Tenth Schedule shall also be disqualified to be
appointed as a minister under Clause (1) of Article 75, till he is again elected as
a member of either House of Parliament.

Oath by a Minister :- Clause (4) provides that a Minister enters upon his office,
the President shall administer to him the oath of office and of secrecy. The oath
shall be administered to him according to the forms set out for the purpose in
the Third Schedule.

Term of office of a Minister :- Clause (2) of Article 75 provides that a Minister

shall hold office during the pleasure of the President. Thus, no any fix term is
provided for the office of a Minister. But the President is bound to exercise his
pleasure in accordance with the advice given by the Prime Minister. The
dismissal of Council of Ministers can be made if it has lost the confidence in the
House of People.

Collective responsibility :- Clause-(3) of Article-75 provides that the Council of

Ministers shall be collectively responsible to the House of People. Thus, the
Council of Ministers can remain in office so long as it enjoys the confidence of
the House of People. The term ‘Collective Responsibility’ means that the Council
of Ministers is as a body responsible to the House of People for the general
conduct of affairs of the Government. The Council of Ministers work as a team
and all decisions taken by the Council of Ministers are the joint decisions of all
its members. It is the duty of every minister to support them in Parliament and
also outside Parliament. Every Minister is bound to accept the decisions taken
by the Council of Ministers, though he has different opinion. If any minister is
not agree the decisions taken by the Council of Ministers, he has only one
alternative to resign. The failure of Council of Ministers is deemed to be the
failure of every minister. This Provision ensures the Parliamentary and
democratic form of Government. In the case of U.N. Rao v. Indira Gandhi (AIR
1971 SC), the Supreme Court has held that this provision establishes the
responsible Government.

Individual Responsibility :- The Concept of individual responsibility is also

accepted. According to this concept, a minister is individually responsible for the
acts of his department and cannot shift his responsibility for the acts of his
department to other minister. Parliament can ask question regarding the affairs
for his department and he has to answer them.

Salaries and allowances :- According to Clause (6) of Article 75, the salaries and
allowances of Ministers shall be such as Parliament may from time to time by
law determine and until Parliament so determine, shall be as specified in the
Second Schedule.

Functions of the Council of Ministers :- Clause (1) of Article 74 provides that

the Council of Ministers shall aid and advice to the President of India. The
President of India shall act in accordance with the advice given by the Council of
Ministers.

Duties of Prime Minister :- The duties of the Prime Minister are provided by
Article 78 of the Constitution. According to this article, the Prime Minister shall
be under the following duties :

(1) 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.
(2) To furnish such information relating to administration of the affairs of the
Union and proposals for legislation as the President may call for.
(3) 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.

Ministers are Public Servant :- The Prime Minister and the Ministers get
salaries from the Government for the public work done or the public duty
performed by him and, therefore, he is a public servant.

Right to take part in the proceedings of either House :- According to Article

88, every Minister shall have the right to speak in, and otherwise to take part in
the proceedings of, either House, any joint sitting of the Houses, and any
committee of Parliament of which he may be named a member. But, he shall
not be entitled to vote, if he is not the member of that House.

Attorney General for India :

The provisions relating to Attorney General for India are provided under Article-
76. According to this article, the President shall appoint the attorney general for
India. The person who is to be appointed attorney general for India must be
qualified to be appointed a judge of the Supreme Court. Attorney General for
India shall hold office during the pleasure of the President, and shall receive such
remuneration as the President may determine.

Rights of Attorney General :- The Attorney General of India shall have the
following rights :

(1) Article-76(3) provides that the Attorney General of India shall have right of
audience in all courts in the territory of India.
(2) Article-88, provides that the Attorney General of India shall have right to
speak in and otherwise to take part in the proceedings of either House or
in any joint sitting of the Houses. But he shall not be entitled to vote in any
House of Parliament.

Duties :- Clause-(2) of Article-76 imposes following duties upon the Attorney-

General For India :

(1) To give advice to the Government of India upon such legal matters as may
from time to time be assigned to him by the President.
(2) To perform such other duties of a legal character as may from time to time
be assigned to him by the President.
(3) To discharge the functions conferred on him by or under this Constitution
or any other law for the time being in force.
‘‘””