Module 2

The Executive
• Legislature, executive and judiciary are the three organs
of government.
• Together,they perform the functions of the government,
maintain law and order and look after the welfare of the
people.
• The Constitution ensures that they work in coordination
with each other and maintain a balance among
themselves.
• In a parliamentary system, executive and the legislature
are interdependent.
 Executive Structures: Presidential vs.
Parliamentary form of Government
• Parliamentary System :
• The Constitution of India provides for a parliamentary form of
government, both at the Centre and in the states. Articles 74
and 75 deal with the parliamentary system at the Centre and
Articles 163 and 164 in the states.
• Modern democratic governments are classified into
parliamentary and presidential on the basis of nature of
relations between the executive and the legislative organs
of the government.
• The parliamentary system of government is the one in which
the executive is responsible to the legislature for its policies and
acts.
• The presidential system of government, on the other hand, is
one in which the executive is not responsible to the
legislature for its policies and acts, and is constitutionally
independent of the legislature in respect of its term of office.
• The parliamentary government is also known as cabinet
government or responsible government or Westminster
model of government and is prevalent in Britain, Japan,
Canada, India among others.
• The presidential government, on the other hand, is also known
as non-responsible or non-parliamentary or fixed executive
system of government and is prevalent in USA, Brazil,
Russia, Sri Lanka among others.
• Ivor Jennings called the parliamentary system as ‘cabinet
system’ because the cabinet is the nucleus of power in a
parliamentary system.
• The parliamentary government is also known as ‘Responsible
government’ as the cabinet (the real executive) is
accountable to the Parliament and stays in office so long as
it enjoys the latter’s confidence.
• It is described as ‘Westminster model of government’
after the location of the British Parliament, where the
parliamentary system originated.
• In the past, the British constitutional and political experts
described the Prime Minister as ‘primus inter pares’ (first
among equals) in relation to the cabinet.
FEATURES OF PARLIAMENTARY GOVERNMENT

• 1.Nominal and Real Executives : The President is the

nominal executive (de jure executive or titular
executive) while the Prime Minister is the real executive
(de facto executive). Thus, the President is head of the
State, while the Prime Minister is head of the government.
• 2. Majority Party Rule :The political party which secures
majority seats in the Lok Sabha forms the government.
The leader of that party is appointed as the Prime Minister
by the President; other ministers are appointed by the
President on the advice of the prime minister.
• 3. Collective Responsibility :This is the bedrock principle of
parliamentary government. The ministers are collectively
responsible to the Parliament in general and to the Lok Sabha in
particular (Article 75).
• 4. Political Homogeneity :Usually members of the council of
ministers belong to the same political party, and hence they
share the same political ideology. In case of coalition
government, the ministers are bound by consensus.
• 5. Double Membership :The ministers are members of both the
legislature and the executive. This means that a person cannot
be a minister without being a member of the Parliament.
 The Constitution stipulates that a minister who is not a member
of the Parliament for a period of six consecutive months ceases
to be a minister.
• 6. Leadership of the Prime Minister :The Prime Minister
plays the leadership role in this system of government. He is
the leader of council of ministers, leader of the Parliament and
leader of the party in power.
• 7. Dissolution of the Lower House :The lower house of the
Parliament (Lok Sabha) can be dissolved by the President on
recommendation of the Prime Minister.
• In other words, the prime minister can advise the
President to dissolve the Lok Sabha before the expiry of
its term and hold fresh elections.
• This means that the executive enjoys the right to get the
legislature dissolved in a parliamentary system.
• 8. Secrecy :The ministers operate on the principle of
secrecy of procedure and cannot divulge information
about their proceedings, policies and decisions. They take
the oath of secrecy before entering their office. The oath
of secrecy to the ministers is administered by the
President.
 FEATURES OF PRESIDENTIAL GOVERNMENT
• Unlike the Indian Constitution, the American Constitution
provides for the presidential form of government.
• The features of the American presidential system of
government are as follows:
• (a) The American President is both the head of the State
and the head of government. As the head of State, he
occupies a ceremonial position. As the head of government, he
leads the executive organ of government.
• (b) The President is elected by an electoral college for a fixed
tenure of four years. He cannot be removed by the Congress
except by impeachment for a grave unconstitutional act.
• (c) The President governs with the help of a cabinet or a
smaller body called ‘Kitchen Cabinet’. It is only an
advisory body and consists of non-elected
departmental secretaries. They are selected and
appointed by him, are responsible only to him, and
can be removed by him any time.
• (d) The President and his secretaries are not responsible
to the Congress for their acts. They neither possess
membership in the Congress nor attend its sessions.
• (e) The President cannot dissolve the House of
Representatives - the lower house of the Congress.
• (f) The doctrine of separation of powers is the basis of the
American presidential system.
• The legislative, executive and judicial powers of the
government are separated and vested in the three
independent organs of the government.
❖Key Differences Between Parliamentary and
Presidential form of Government :
• 1.The Parliamentary system of government is one in
which there exists a harmonious relationship between
the legislative and executive body, while the judiciary
body works independently.
• As against this, in Presidential form of government, the
three organs of the government work independently
of each other.
• 2.In Parliamentary form of government, the executive is
divided into two parts, i.e. the Head of the State
(President) and the Head of the Government (Prime
Minister). On the contrary, the President is the chief
executive of the Presidential form of Government.
• 3.In the Parliamentary form of government, the executive
body, i.e. the Council of Ministers is accountable to
the Parliament for its acts. Conversely, in the
Presidential form of Government, there is no such
accountability, i.e. the executive body is not
accountable to the Parliament for its acts.
• 4.Fusion of powers exists in the Parliamentary
system, whereas the powers are separated in
Presidential system.
• 5.In Parliamentary form, only those persons are appointed
as ministers in the executive body who are the members
of Parliament. Unlike, in Presidential form, persons other
than those working in the legislature can be appointed as
secretaries.
• 6.In Parliamentary government, the Prime Minister has
the power to dissolve the lower house before the
completion of its term. As opposed, the President cannot
dissolve the lower house, in Presidential government.
• 7.The tenure of the executive is not fixed in Parliamentary
government, as in, if a no-confidence motion is passed in
the Parliament, the Council of Ministers is dismissed.
Contrary to this, the executive has a fixed term in the
Presidential government.
• DISTINCTION BETWEEN INDIAN AND BRITISH MODELS :
• The parliamentary system of government in India is largely based on the
British parliamentary system. However, it never became a replica of the
British system and differs in the following respects:
• 1. India has a republican system in place of British monarchical
system. In other words, the Head of the State in India (that is,
President) is elected, while the Head of the State in Britain
enjoys a hereditary position.
• 2. The British system is based on the doctrine of the sovereignty
of Parliament, while the Parliament is not supreme in India and
enjoys limited and restricted powers due to a written Constitution,
federal system, judicial review and fundamental rights.
• 3. In Britain, the prime minister should be a member of the Lower
House (House of Commons) of the Parliament. In India, the prime
minister may be a member of any of the two Houses of
Parliament.
• 4. Usually, the members of Parliament alone are appointed as
ministers in Britain. In India, a person who is not a member of
Parliament can also be appointed as minister, but for a maximum
period of six months.
• 5. Britain has the system of legal responsibility of the minister
while India has no such system.
• 6. ‘Shadow cabinet’ is an unique institution of the British cabinet
system. It is formed by the opposition party to balance the ruling
cabinet and to prepare its members for future ministerial office.
DEMERITS OF THE PARLIAMENTARY SYSTEM :
1. Unstable Government :The parliamentary system does not
provide a stable government.There is no guarantee that a
government can survive its tenure.
2. No Continuity of Policies :The parliamentary system is not
conductive for the formulation and implementation of longterm
policies. This is due to the uncertainty of the tenure of the
government.
3. Dictatorship of the Cabinet :When the ruling party enjoys
absolute majority in the Parliament,the cabinet becomes autocratic
and exercises nearly unlimitedpowers.
• 4. Against Separation of Powers :In the parliamentary
system, the legislature and the executive are together and
inseparable. The cabinet acts as the leader of legislature
as well as the executive.
• 5. Government by Amateurs :The parliamentary system is
not conducive to administrative efficiency as the ministers
are not experts in their fields. The Prime Minister has a
limited choice in the selection of ministers; his choice is
restricted to the members of Parliament alone and does
not extend to external talent.
 REASONS FOR ADOPTING PARLIAMENTARY
SYSTEM
• A plea was made in favour of US presidential system of
government in the Constituent Assembly.But, the founding
fathers preferred the British parliamentary system due to the
following reasons:
1. Familiarity with the System:The Constitution-makers were
somewhat familiar with the parliamentary system as it had been in
operation in India during the British rule. K.M. Munshi argued that,
‘For the last thirty or forty years, some kind of responsibility has
been introduced in the governance of this country.
• 2. Preference to More Responsibility:Dr. B.R. Ambedkar
pointed out in the Constituent Assembly that ‘a democratic
executive must satisfy two conditions: stability and responsibility.
Unfortunately, it has not been possible so far to devise a system
which can ensure both in equal degree. The American system
gives more stability but less responsibility. The British system, on
the other hand, gives more responsibility but less stability.
• The Draft Constitution in recommending the parliamentary
system of Executive has preferred more responsibility to more
stability
• 3. Need to Avoid Legislative–Executive Conflicts :
The framers of the Constitution wanted to avoid the conflicts
between the legislature and the executive which are bound to
occur in the presidential system prevalent in USA. They thought
that an infant democracy could not afford to take the risk of a
perpetual cleavage or conflict or threatened conflict between
these two organs of the government. They wanted a form of
government that would be conductive to the manifold
development of the country.
• 4. Nature of Indian Society:India is one of the most
heterogeneous States and most complex plural societies
in the world. Hence, the Constitution-makers adopted the
parliamentary system as it offers greater scope for giving
representation to various section, interests and regions in
the government. This promotes a national spirit among the
people and builds a united India.
The Union Executive
• Articles 52 to 78 in Part V of the Constitution deal with the
Union executive.
• The Union executive consists of the President, the
Vice President, the Prime Minister, the council of
ministers and the attorney general of India.
• The President is the head of the Indian State. He is the
first citizen of India and acts as the symbol of unity,
integrity and solidarity of the nation.
Article 52
• Article 52 :There shall be a President of India.
• Article 52 of the Indian Constitution establishes the office
of the President of India, who is the country's ceremonial
head.
• This Article ,which is first in Union Executive ,Clearly
States that a President of India is a must in the
constitutional scheme and structure of India.
• there is no exception to this rule.
• Therefore the operation of the constitutional scheme or
structure cannot be envisaged even for a short while
without a President of India being in office.
 Article 53 : Executive power of the Union
• (1) The executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through
officers subordinate to him in accordance with this Constitution.
• (2) Without prejudice to the generality of the foregoing provision,
the supreme command 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.
• We can say that The President cannot be prevented from
lawfully transferring power to entities other than the
President.
• Article 53 does not transfer any functions conferred by any
existing law on the Government of any State or other
authority to the President.
• The president of India can be easily regarded as the
Union executive.
• It has been stated in the constitution’s article 53 that the
Constitution’s executive power of the Union shall be
vested within the President.
• Further, the power should be directly or through officers
should be exercised by the president under this
constitution.
• Hence, it can be observed from Article 53 that a president
is the head of the entire Government.
 Key Provisions:
• Vesting of Executive Power: All executive power of the
Union is vested in the President, who can exercise these
powers directly or through officers subordinate to him.
• Supreme Command of Defence Forces: The President is
the supreme commander of the Defence Forces, but the
exercise of this power is subject to law.
• Limitations on Presidential Power: The article ensures that
the President does not usurp functions conferred by law on
other authorities and allows Parliament to delegate functions
to other authorities.
• Significance: Article 53 underscores the central role of
the President in the executive framework of the Union
government while also defining the constitutional limits
and delegation mechanisms of executive authority.
 Cases
• S.R. Bommai vs. Union of India (1994): This landmark case
discussed the scope and limits of the President’s power,
particularly in relation to the imposition of President’s Rule in
states.
• Ram Jawaya Kapur vs. State of Punjab (1955): The Supreme
Court clarified that the President’s executive power is co-
extensive with the legislative power of the Union and that it
includes matters on which Parliament can legislate.
• Union of India vs. R. Gandhi (2010): The Supreme Court
observed that while the President is the executive head, actual
power and function are exercised by the Council of Ministers, in
accordance with the principle of collective responsibility.
Jayantilal Amritlal Shodhan v. F.N. Rana, : AIR 1964 SC
648:.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.
• Important Reports Related to Article 53
• Sarkaria Commission Report (1983): Examined the
balance of power between the Union and the States,
particularly the role of the President in the context of
central-state relations.
• Punchhi Commission Report (2010): Provided
recommendations on improving the functional efficiency of
the office of the President and the Council of Ministers.
 ELECTION OF THE PRESIDENT :ARTICLE 54

• The President is elected not directly by the people but by

members of electoral college consisting of:
• 1. the elected members of both the Houses of Parliament;
• 2. the elected members of the legislative assemblies of the
states; and
• 3. the elected members of the legislative assemblies of the
UnionTerritories of Delhi and Puducherry.
• Thus, the nominated members of both of Houses of Parliament,
the nominated members of the state legislative assemblies, the
members (both elected and nominated) of the state legislative
 councils (in case of the bicameral legislature) and the
nominated members of the Legislative Assemblies of Delhi
and Puducherry do not participate in the election of the
President.
• Where an assembly is dissolved, the members cease to
be qualified to vote in presidential election, even if fresh
elections to the dissolved assembly are not held before
the presidential election.
• The President’s election is held in accordance with the system of
proportional representation by means of the single transferable
vote and the voting is by secret ballot.
• This system ensures that the successful candidate is returned by
the absolute majority of votes.
• A candidate, in order to be declared elected to the office of
President, must secure a fixed quota of votes.
• The quota of votes is determined by dividing the total number of
valid votes polled by the number of candidates to be elected
(here only one candidate is to be elected as President) plus one
and adding one to the quotient.
• The formula can be expressed as:
• Each member of the electoral college is given only one ballot
paper. The voter, while casting his vote, is required to
indicate his preferences by marking 1, 2, 3, 4, etc. against the
names of candidates. This means that the voter can indicate
as many preferences as there are candidates in the fray.
• In the first phase, the first preference votes are counted. In
case a candidate secures the required quota in this phase,
he is declared elected.
• All doubts and disputes in connection with election of the
President are inquired into and decided by the Supreme
Court whose decision is final. The election of a person as
President cannot be challenged on the ground that the
electoral college was incomplete.
❖Article 56: Term of office of President.
• (1) The President shall hold office for a term of five
years from the date on which he enters upon his office:
• Provided that-
• (a) the President may, by writing under his hand
addressed to the Vice-President, resign his office;
• (b) the President may, for violation of the Constitution,
be removed from office by impeachment in the manner
provided in article 61;
• (c) the President shall, notwithstanding the expiration of
his term, continue to hold office until his successor enters
upon his office.
• (2) Any resignation addressed to the Vice-President under
clause (a) of the proviso to clause (1) shall forthwith be
communicated by him to the Speaker of the House of the
People.
QUALIFICATIONS

❖Qualifications for Election as President( Article 58) :

A person to be eligible for election as President should
fulfil the following qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the
Lok Sabha.
4. He should not hold any office of profit under the Union
government or any state government or any local authority
or any other public authority.
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.
❖Article 59 :Conditions of President’s Office :
The Constitution lays down the following conditions of the
President’s office:
1. He should not be a member of either House of Parliament
or a House of the state legislature. If any such person is
elected as President, he is deemed to have vacated his seat
in that House on the date on which he enters upon his office
as President.
2. He should not hold any other office of profit.
3. He is entitled, without payment of rent, to the use of his
official residence (the Rastrapathi Bhavan).
4. He is entitled to such emoluments, allowances and privileges
as may be determined by Parliament.
5. His emoluments and allowances cannot be diminished during
his term of office.
• The President is entitled to a number of privileges and
immunities.
• He enjoys personal immunity from legal liability for his official
acts.
• During his term of office, he is immune from any criminal
proceedings, even in respect of his personal acts.
• He cannot be arrested or imprisoned.
• However, after giving two months’ notice, civil
proceedings can be instituted against him during his term
of office in respect of his personal acts.
Oath or Affirmation by the President (Article 60):
• Before entering upon his office, the President has to make
and subscribe to an oath or affirmation.
• The oath of office to the President is administered by the
Chief Justice of India and in his absence, the seniormost
judge of the Supreme Court available.
• Any other person acting as President or discharging the
functions of the President also undertakes the similar oath
or affirmation.
 Impeachment of a President
• Impeachment of a President is the process of removing a
person in a position from all duties and authority mandated by
the position. Impeachment of a President in India refers to the
complete process of removing the President from office.
• Impeachment is defined as the act of questioning something’s
integrity or legitimacy.
• The term impeachment refers to the procedure for removing a
person in a position from all of the powers and obligations that
the post requires. Impeachment is the term used to describe the
complete process of removing someone from office. It generally
refers to the President, judicial judges, and other constitutional
 Article 61
• Impeachment of President : The President can be removed
from office by a process of impeachment for ‘violation of the
Constitution’.
• However, the Constitution does not define the meaning of
the phrase ‘violation of the Constitution’.
• The impeachment charges can be initiated by either House of
Parliament.
• These charges should be signed by one-fourth members of
the House (that framed the charges), and a 14 day’s notice
should be given to the President.
• After the impeachment resolution is passed by a majority
of two-thirds of the total membership of that House, it is
sent to the other House, which investigate the charges.
• The President has the right to appear and to be
represented at such investigation.
• If the other House also sustains the charges and passes
the impeachment resolution by a majority of two-thirds of
the total membership, then the President stands removed
from his office from the date on which the resolution is so
passed.
• The important point to note here is that the nominated members
can also participate in the impeachment process.
• However, the elected members of the state legislatures and the
UTs of Delhi and Puducherry shall not participate in the
impeachment process.
• Until now, no president has faced impeachment proceedings in
India. The method, however, has been established by the law of
the nation.
• The President may be impeached by the Indian Parliament
before the end of his term for breaking the Indian Constitution.
 Article 62
Vacancy in the President’s Office :
• A vacancy in the President’s office can occur in any of the
following ways:
• 1. On the expiry of his tenure of five years.
• 2. By his resignation.
• 3. On his removal by the process of impeachment.
• 4. By his death
• 5. Otherwise, for example, when he becomes disqualified to
hold office or when his election is declared void.
• When the vacancy is going to be caused by the expiration of the
term of the sitting President, an election to fill the vacancy must
be held before the expiration of the term.
• In case of any delay in conducting the election of new President
by any reason, the outgoing President continues to hold office
(beyond his term of five years) until his successor assumes
charge.
• This is provided by the Constitution in order to prevent an
‘interregnum’.
• In this situation, the VicePresident does not get the
opportunity to act as President or to discharge the
• If the office falls vacant by resignation, removal, death or
otherwise,then election to fill the vacancy should be held
within six months from the date of the occurrence of
such a vacancy.
• The newly-elected President remains in office for a full
term of five years from the date he assumes charge of his
office.
• When a vacancy occurs in the office of the President
due to his resignation, removal, death or otherwise,
the Vice-President acts as the President until a new
President is elected.
• Further, when the sitting President is unable to
discharge his functions due to absence, illness or
any other cause, the Vice-President discharges his
functions until the President resumes his office.
• In case the office of Vice-President is vacant, the Chief
Justice of India (or if his office is also vacant, the
seniormost judge of the Supreme Court available) acts as
the President or discharges the functions of the
President.
• When any person, ie, Vice-President, chief justice of
India, or the seniormost judge of the Supreme Court is
 acting as the President or discharging the functions
of the President, he enjoys all the powers and
immunities of the President and is entitled to such
emoluments,allowances and privileges as are
determined by the Parliament.
POWERS AND FUNCTIONS OF THE PRESIDENT
Executive Powers :
• (a) All executive actions of the Government of India are
formally taken in his name.
• (b) He appoints the prime minister and the other
ministers. They hold office during his pleasure.
• (c) He appoints the attorney general of India and
determines his remuneration. The attorney general holds
office during the pleasure of the President.
• (d) He appoints the comptroller and auditor general of
India, the chief election commissioner and other election
commissioners, the chairman and members of the Union
 Public Service Commission,the governors of states, the
chairman and members of finance commission, and so on.
• (e)He can seek any information relating to the administration
of affairs of the Union, and proposals for legislation from the
prime minister.
• (g)He can appoint a commission to investigate into the
conditions of SCs, STs and other backward classes.
• (h) He can appoint an inter-state council to promote Centre-
state and inter-state cooperation.
• (i) He directly administers the union territories through
 administrators appointed by him.
• (j)He can declare any area as scheduled area and has
powers with respect to the administration of scheduled
areas and tribal areas.
 Legislative Powers :
The President is an integral part of the Parliament of India,
and enjoys the following legislative powers.
• (a) He can summon or prorogue the Parliament and
dissolve the Lok Sabha. He can also summon a joint
sitting of both the Houses of Parliament, which is presided
over by the Speaker of the Lok Sabha.
• (b) He can address the Parliament at the commencement
of the first session after each general election and the first
session of each year.
• (c) He can send messages to the Houses of Parliament,
whether with respect to a bill pending in the Parliament or
otherwise.
• (d) He can appoint any member of the Lok Sabha to
preside over its proceedings when the offices of both the
Speaker and the Deputy Speaker fall vacant. Similarly, he
can also appoint any member of the Rajya Sabha to
preside over its proceedings when the offices of both the
Chairman and the Deputy Chairman fall vacant.
• (e) He nominates 12 members of the Rajya Sabha from
amongst persons having special knowledge or practical
experience in literature, science, art and social service.
• (f) He can nominate two members to the Lok Sabha from the
Anglo Indian Community.
• (g) He decides on questions as to disqualifications of members
of the Parliament, in consultation with the Election Commission.
• (h) His prior recommendation or permission is needed to
introduce certain types of bills in the Parliament. For example, a
bill involving expenditure from the Consolidated Fund of India,
or a bill for the alteration of boundaries of states or creation of a
• (i) When a bill is sent to the President after it has been
passed by the Parliament, he can:
(i) give his assent to the bill, or
(ii) withhold his assent to the bill, or
(iii) return the bill (if it is not a money bill) for reconsideration of
Parliament.
However, if the bill is passed again by the Parliament, with or
without amendments, the President has to give his assent to
the bill.
• (j) When a bill passed by a state legislature is reserved by the
governor for consideration of the President,
• (k) He can promulgate ordinances when the Parliament is not in
session. These ordinances must be approved by the Parliament
within 6 weeks from its reassembly. He can also withdraw an
ordinance at any time.
• (l) He lays the reports of the Comptroller and Auditor General,
Union Public Service Commission, Finance Commission, and
others, before the Parliament.
• (m) He can make regulations for the peace, progress and good
government of the Andaman and Nicobar Islands,
 Lakshadweep,Dadra and Nagar Haveli, Daman and Diu
and Ladakh.
• Financial Powers :
The financial powers and functions of the President are:
• (a) Money bills can be introduced in the Parliament only
with his prior recommendation.
• (b) He causes to be laid before the Parliament the annual
financial statement (ie, the Union Budget).
• (c) No demand for a grant can be made except on his
recommendation.
• (d) He can make advances out of the contingency fund of
India to meet any unforeseen expenditure.
• (e) He constitutes a finance commission after every five
years to recommend the distribution of revenues between
the Centre and the states.
• Judicial Powers :The judicial powers and functions of the
President are:
• (a) He appoints the Chief Justice and the judges of
Supreme Court and high courts.
• (b) He can seek advice from the Supreme Court on any
question of law or fact. However, the advice tendered by
the Supreme Court is not binding on the President.
• (c) He can grant pardon, reprieve, respite and remission
of punishment, or suspend, remit or commute the
sentence of any person convicted of any offence:
• (i) In all cases where the punishment or sentence is by
martial;
• (ii) In all cases where the punishment or sentence is for
an offence against a Union law; and
• (iii) In all cases where the sentence is a sentence of
death.
❖Diplomatic Powers:
• The international treaties and agreements are negotiated
and concluded on behalf of the President.
• However, they are subject to the approval of the
Parliament.
• He represents India in international forums and affairs and
sends and receives diplomats like ambassadors, high
commissioners, and so on.
❖Military Powers :
• He is the supreme commander of the defence forces of
India.
• In that capacity, he appoints the chiefs of the Army, the
Navy and the Air Force.
• He can declare war or conclude peace, subject to the
approval of the Parliament.
❖Emergency Powers :
• In addition to the normal powers mentioned above, the
Constitution confers extraordinary powers on the
President to deal with the following three types of
emergencies:
• (a) National Emergency (Article 352);
• (b) President’s Rule (Article 356 & 365); and
• (c) Financial Emergency (Article 360)
 VETO POWER OF THE PRESIDENT
• A bill passed by the Parliament can become an act only if it
receives the assent of the President. When such a bill is
presented to the President for his assent, he has three
alternatives (under Article 111 of the Constitution):
• 1. He may give his assent to the bill, or
• 2. He may withhold his assent to the bill, or
• 3. He may return the bill (if it is not a Money bill) for
reconsideration of the Parliament.
• However, if the bill is passed again by the Parliament with or
without amendments and again presented to the President, the
President must give his assent to the bill.
Thus, the President has the veto power over the bills passed by
the Parliament , that is, he can withhold his assent to the bills.
• The object of conferring this power on the President is two-
fold–(a) to prevent hasty and ill-considered legislation by the
Parliament; and (b) to prevent a legislation which may be
unconstitutional.
❖The veto power enjoyed by the executive in modern states can
be classified into the following four types:
• 1. Absolute veto, that is, withholding of assent to the bill passed
by the legislature.
• 2. Qualified veto, which can be overridden by the legislature with
• 3. Suspensive veto, which can be overridden by the
legislature with an ordinary majority.
• 4. Pocket veto, that is, taking no action on the bill passed
by the legislature.
• Of the above four, the President of India is vested with
three–
• absolute veto, suspensive veto and pocket veto.
• There is no qualified veto in the case of Indian President;
it is possessed by the American President.
• The three vetos of the President of India are explained
below :
• Absolute Veto
• It refers to the power of the President to withhold his
assent to a bill passed by the Parliament.
• The bill then ends and does not become an act.
• In 1954, President Dr. Rajendra Prasad withheld his
assent to the PEPSU Appropriation Bill. The bill was
passed by the Parliament when the President’s Rule was
in operation in the state of PEPSU.
• Again in 1991, President R Venkataraman withheld his assent to
the Salary, Allowances and Pension of Members of Parliament
(Amendment) Bill. The bill was passed by the Parliament
without obtaining the previous recommendation of the President.
❖Suspensive Veto :
• The President exercises this veto when he returns a bill for
reconsideration of the Parliament.
• However, if the bill is passed again by the Parliament with or
without amendments and again presented to the President, it is
obligatory for the President to give his assent to the bill.
• The President does not possess this veto in the case of money
• The President can either give his assent to a money bill or
withhold his assent to a money bill but cannot return it for the
reconsideration of the Parliament.
❖Pocket Veto :
• In this case, the President neither ratifies nor rejects nor returns
the bill, but simply keeps the bill pending for an indefinite period.
• This power of the President not to take any action (either positive
or negative) on the bill is known as the pocket veto.
• The President can exercise this veto power as the Constitution
does not prescribe any time-limit within which he has to take the
decision with respect to a bill presented to him for his assent.
• In 1986, President Zail Singh exercised the pocket veto with
respect to the Indian Post Office (Amendment) Bill. The bill,
passed by the Rajiv Gandhi Government, imposed restrictions
on the freedom of press and hence, was widely criticised.
• After three years, in 1989, the next President R Venkataraman
sent the bill back for reconsideration, but the new National Front
Government decided to drop the bill.
• The President has no veto power in respect of a
constitutional amendment bill.
• The 24th Constitutional Amendment Act of 1971 made it
obligatory for the President to give his assent to a
❖Presidential Veto over State Legislation
• The President has veto power with respect to state legislation
also.
• A bill passed by a state legislature can become an act only if it
receives the assent of the governor or the President (in case the
bill is reserved for the consideration of the President).
• When a bill, passed by a state legislature, is presented to the
governor for his assent, he has four alternatives (under Article
200 of the Constitution):
• 1. He may give his assent to the bill, or
• 2. He may withhold his assent to the bill, or
• 3. He may return the bill (if it is not a money bill) for
reconsideration of the state legislature, or
• 4. He may reserve the bill for the consideration of the President.
• When a bill is reserved by the governor for the
consideration of the President, the President has three
alternatives (Under Article 201 of the Constitution):
• 1. He may give his assent to the bill, or
• 2. He may withhold his assent to the bill, or
• 3. He may direct the governor to return the bill (if it is not a
money bill) for the reconsideration of the state legislature.
If the bill is passed again by the state legislature with or
without amendments and presented again to the President
for his assent, the President is not bound to give his
assent to the bill.
• This means that the state legislature cannot override the
veto power of the President.
 ORDINANCE-MAKING POWER OF THE PRESIDENT
• Dr. B.R. Ambedkar said in the Constituent Assembly that the mechanism
of issuing an ordinance has been devised in order to enable the
Executive to deal with a situation that may suddenly and immediately
arise when the Parliament is not
in session.
• Article 123 of the Constitution empowers the President to promulgate
ordinances during the recess of Parliament.
• These ordinances have the same force and effect as an act of
Parliament, but are in the nature of temporary laws.
• The ordinance-making power is the most important legislative
power of the President.
• It has been vested in him to deal with unforeseen or urgent matters.
• The exercises of this power is subject to the following four
limitations:
• 1. He can promulgate an ordinance only when both the Houses
of Parliament are not in session or when either of the two
Houses of Parliament is not in session.
• An ordinance can also be issued when only one House is in
session because a law can be passed by both the Houses and
not by one House alone.
• An ordinance made when both the Houses are in session is void.
• Thus, the power of the President to legislate by ordinance is not
a parallel power of legislation.
• 2. He can make an ordinance only when he is satisfied that the
circumstances exist that render it necessary for him to take
immediate action.
• In Cooper case (1970), the Supreme Court held that the
President’s satisfaction can be questioned in a court on the
ground of malafide.
• This means that the decision of the President to issue an
ordinance can be questioned in a court on the ground that the
President has prorogued one House or both Houses of Parliament
deliberately with a view to promulgate an ordinance on a
controversial subject, so as to bypass the parliamentary decision
and thereby circumventing the authority of the Parliament.
• The 38th Constitutional Amendment Act of 1975 made the
President’s satisfaction final and conclusive and beyond
judicial review.
• But, this provision was deleted by the 44th Constitutional
Amendment Act of 1978.
• Thus, the President’s satisfaction is justiciable on the
ground of malafide.
• 3. His ordinance-making power is coextensive as regards all
matters except duration, with the law-making powers of the
Parliament.
 This has two implications:
• (a) An ordinance can be issued only on those subjects on which
the Parliament can make laws.
• (b) An ordinance is subject to the same constitutional limitation
as an act of Parliament. Hence, an ordinance cannot abridge or
take away any of the fundamental rights
• 4. Every ordinance issued by the President during the recess of
Parliament must be laid before both the Houses of Parliament
when it reassembles.
• If the ordinance is approved by both the Houses, it becomes an
act.
• If Parliament takes no action at all, the ordinance ceases to
operate on the expiry of six weeks from the reassembly of
Parliament.
• The President can also withdraw an ordinance at any time.
• If the Houses of Parliament are summoned to reassemble on
different dates, the period of six weeks is calculated from the
later of those dates. This means that the maximum life of an
ordinance can be six months and six weeks.
• If an ordinance is allowed to lapse without being placed before
Parliament, then the acts done and completed under it, before it
ceases to operate, remain fully valid and effective.
• The President can also withdraw an ordinance at any time.
• However, his power of ordinance-making is not a discretionary
power, and he can promulgate or withdraw an ordinance only on
the advice of the council of ministers headed by the prime
minister.
Ordinance Making Power of Governor

• Article 213 of the Indian Constitution empowers the

Governor of the State to issue ordinances when the State
Legislative Assembly (or either of the two Houses in
states with bicameral legislatures) is not in session.
• The ordinance-making power of the Governor is more or
less similar to that of the President.
Views of Supreme Court on Repromulgation of Ordinances
• The Supreme Court has expressed its stance on the
promulgation and re-promulgation of ordinances in
various cases. Some of the prominent such cases are:

• RC Cooper vs. Union of India Case (1970): In this case,

the Supreme Court held that the President’s satisfaction
regarding the ‘existence of a circumstance that renders it
necessary to promulgate an ordinance’ can be challenged
in a court of law. Thus, the President’s satisfaction is not
immune from judicial review.
• DC Wadhwa vs. State of Bihar Case (1987): In this case, the court
condemned the practice of re-promulgating ordinances, labelling it as a
‘fraud’ on the Constitution. It rules that the Executive’s power to
promulgate ordinances is to be used sparingly only in exceptional
circumstances. It is not a substitute for the legislative power of the
legislature.
• Krishna Kumar Singh vs. State of Bihar Case (2017): In this case, the
Supreme Court reiterated that the authority to issue ordinances is not
absolute but conditional upon the satisfaction that circumstances
necessitate immediate action. The court emphasized that the re-
promulgation of ordinances is unconstitutional and undermines the
democratic process, highlighting the need for adherence to constitutional
principles and norms.
 DC Wadhwa vs State of Bihar (1986) - Case Analysis
• The case of DC Wadhwa vs State of Bihar originated from a
legal challenge posed by Dr. DC Wadhwa and others against a
practice by the State of Bihar that had far-reaching implications
on the democratic and legislative processes in India.
• The practice in question involved the promulgation and
repromulgation of ordinances on an unprecedented scale, a
method that effectively circumvented the legislative assembly
and undermined the democratic process.
• The State of Bihar, over a prolonged period, had been utilizing
the ordinance-making power vested in the Governor under
Article 213 of the Indian Constitution.
• This power allows the Governor to issue ordinances when the
state legislature is not in session, intended as a temporary
measure to address urgent situations. However, the practice
adopted by Bihar was not in line with this constitutional intent.
❖Petitioner’s Challenge:
• Dr. DC Wadhwa, a noted academic and economist, along with
other petitioners, brought this issue to the forefront by filing writ
petitions in the Supreme Court challenging this practice.
• They highlighted the constitutional validity of three specific
ordinances issued by the Governor of Bihar:
• Bihar Forest Produce (Regulation of Trade) Third Ordinance,
1983: This ordinance regulated the trade of forest produce in
Bihar.
• The Bihar Intermediate Education Council Third Ordinance,
1983: This ordinance dealt with the establishment and
functioning of the Bihar Intermediate Education Council.
• The Bihar Bricks Supply (Control) Third Ordinance, 1983: This
ordinance controlled the supply and distribution of bricks in the
state.
• These ordinances were part of a larger pattern where the
Governor of Bihar had issued 256 ordinances between 1967 and
1981. Instead of these ordinances being presented and
• This repromulgation occurred without adequate legislative
scrutiny or approval, effectively bypassing the democratic
process that ensures checks and balances on executive power.
• These ordinances were not temporary measures but were
continuously renewed, sometimes for periods ranging from one
to 14 years. This repromulgation process essentially allowed the
executive branch to legislate without the necessary legislative
oversight.
❖Issues Raised in DC Wadhwa vs State of Bihar
• The case of DC Wadhwa vs State of Bihar brought several
issues to the forefront, challenging the constitutional boundaries
❖The primary issues raised in this case were:
• Indefinite Repromulgation of Ordinances:The central question
was whether the Governor of Bihar could continue to
repromulgate ordinances indefinitely, effectively taking over the
legislative function that rightfully belongs to the elected
legislative assembly. This practice raised concerns about the
executive usurping the legislature's power to make laws.
• Constitutional Validity :The case questioned whether the
repromulgation of ordinances violated the constitutional
provisions laid out in the Indian Constitution. Specifically, it
examined whether this practice adhered to the requirements and
limitations set forth in Article 213, which governs the ordinance-
making power of the Governor.
• Separation of Powers :A fundamental issue was whether the
executive branch, through the continuous use of ordinances,
could encroach upon the legislative functions. This
encroachment would disrupt the balance of power between the
executive and the legislature, a fundamental aspect of
democratic governance.
• Misuse of Emergency Powers :The case also addressed
whether the repeated use of Article 213 for repromulgation
constituted a misuse of the emergency powers granted to the
Governor. Article 213 is intended for urgent situations when the
legislative assembly is not in session, and its misuse for non-
emergency purposes was a major point of contention.
❖Provisions Addressed in DC Wadhwa vs State of Bihar
• The DC Wadhwa vs State of Bihar case examined the misuse of
the ordinance-making power under Article 213(2)(a) of the Indian
Constitution. The case scrutinized how continuous
repromulgation of ordinances without legislative approval
undermines democratic processes and constitutional provisions.
• Article 213(2) (a) of the Indian Constitution:"An ordinance
promulgated under this article shall cease to operate at the
expiration of six weeks from the reassembly of the Legislature,
or if before the expiration of that period resolutions disapproving
it are passed by both Houses of the Legislature upon the
passing of the second of those resolutions; and may be withdrawn
at any time by the Governor."
❖Relevancy in the Case: This provision was central to the case
as it outlines the temporary nature of ordinances issued by the
Governor. According to this provision, an ordinance is valid only
for six weeks after the reassembly of the legislature, unless it is
approved by both Houses.
• The frequent repromulgation of ordinances by the Governor of
Bihar violated this provision, as it effectively bypassed the
legislative scrutiny and approval required by the Constitution.
❖Judgement in DC Wadhwa vs State of Bihar
• In the landmark case of DC Wadhwa vs State of Bihar, the
Supreme Court of India emphasized that the power to issue
ordinances is an emergency measure intended for situations
requiring immediate action when the legislature is not in session.
This power cannot be used to serve political ends or circumvent
the legislative process.
• The Court ruled that the continuous repromulgation of
ordinances without legislative approval was unconstitutional.
Such actions were deemed a fraud on the constitutional
provision, as they allowed the executive to overstep its bounds
and usurp the legislative function, thereby undermining the
principle of separation of powers.
• The Supreme Court struck down the Bihar Intermediate
Education Council Ordinance, as unconstitutional and void. It
held that the practice followed by the Government of Bihar could
not be justified as a legitimate exercise of the power conferred
on the Governor under Article 213 of the Constitution.
Additionally, the State of Bihar was ordered to pay Rs 10,000 to
Petitioner 1 as a cost for the writ petitions.
❖Conclusion :
• The judiciary's intervention in DC Wadhwa vs State of Bihar
exemplifies how legal challenges can preserve the balance
of power and ensure that the constitutional framework
functions as intended. By challenging the misuse of the
ordinance-making power, Dr. DC Wadhwa and his co-
petitioners brought to light the necessity of legislative
oversight and democratic accountability. The Supreme
Court's ruling reasserted that the power to issue ordinances
is an emergency measure meant for extraordinary situations,
not a tool for the executive to bypass the legislative process.
• The judgment reinforced the principle that a constitutional
authority cannot do indirectly what it is not permitted to do
directly, highlighting the importance of upholding the
constitutional scheme and preventing the perversion of
emergency powers for political ends.
 PARDONING POWER OF THE PRESIDENT
• Article 72 of the Constitution empowers the President to grant
pardons to persons who have been tried and convicted of any
offence in all cases where the:
• 1. Punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the union
extends.
• 2. Punishment or sentence is by a court martial (military court);
and
• 3. Sentence is a sentence of death.
• The pardoning power of the President is independent of the
Judiciary; it is an executive power.
The object of conferring this power on the President is two-
fold: (a) to keep the door open for correcting any judicial errors in
the operation of law; and, (b) to afford relief from a sentence,
which the President regards as unduly harsh.

❖The pardoning power of the President includes the

following:
1. Pardon:It removes both the sentence and the conviction and
completely absolves the convict from all sentences, punishments
and disqualifications.
• 2. Commutation:It denotes the substitution of one form of
punishment for a lighter form.For example, a death sentence
may be commuted to rigorous imprisonment, which in turn may
be commuted to a simple imprisonment.
• 3. Remission :It implies reducing the period of sentence without
changing its character. For example, a sentence of rigorous
imprisonment for two years may be remitted to rigorous
imprisonment for one year.
• 4. Respite :It denotes awarding a lesser sentence in place of
one originally awarded due to some special fact, such as the
physical disability of a convict or the pregnancy of a woman
offender.
• 5. Reprieve :It implies a stay of the execution of a sentence
(especially that of death) for a temporary period. Its purpose is to
enable the convict to have time to seek pardon or commutation
from the President.
 Comparing Pardoning Powers of President and
Governor :
• Under Article 161 of the Constitution, the governor of a state
also possesses the pardoning power.
• Hence, the governor can also grant pardons, reprieves, respites
and remissions of punishment or suspend, remit and commute
the sentence of any person convicted of any offence against a
state law.
• But, the pardoning power of the governor differs from that
of the President in following two respects:
1. The President can pardon sentences inflicted by court martial
(military courts) while the governor cannot.
• 2. The President can pardon death sentence while governor
cannot.
• Even if a state law prescribes death sentence, the power
to grant pardon lies with the President and not the governor.
• However, the governor can suspend, remit or commute a death
sentence.
• In other words, both the governor and the President have
concurrent power in respect of suspension, remission and
commutation of death sentence.
• President is the sole authority to pardon a death sentence.
• Pardoning Powers of President and Governor means the
President/governor has the authority to grant pardons to
persons who have been tried and convicted of any offence in
all cases.
• The pardoning power is founded on consideration of public
good and is to be exercised on the grounds that public welfare,
which is the legitimate object of all punishments, will be
promoted just as well by a suspension of the sentences as by
their execution.
• Pardoning Power of Governor (Article 161) :
• The Governor of a State shall have the authority 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 State's executive power extends.
• Pardoning Power overrides Section 433A of The Code Of
Criminal Procedure, 1973.
• According to a recent Supreme Court decision, a state's
governor has the ability to pardon criminals even before they
have served a minimum of 14 years in jail.
• Section 433-A has no influence on the President
/Governor's ability to issue pardons under Articles 72 or
161 of the Constitution.
• Death Sentence: Governor is unable to pardon the
death sentence. Even if a state law calls for the death
penalty, the President, not the governor, has the authority
to grant a pardon. However, the governor has the
authority to suspend, remit, or commute a death
sentence.
• Court martial: President has the authority to grant pardon,
reprieve, respite, suspension, remission, or commutation
of punishment or sentence imposed by a court-martial
(military court).
• Court martial: Governor doesn't have this kind of power.
Significance of Pardoning Power :
• The pardoning power is founded on consideration of public good
and is to be employed on the grounds that public welfare, which
is the legitimate purpose of all penalties, will be advanced just
as well by a suspension of the sentences as by their execution.
• To pardon means to absolve someone of his or her wrongdoing.
• The term "pardon" has been described as an act of grace,
emanating from the power tasked with the implementation of the
law, that exempts the individual on whom it is conferred from the
punishment inflicted by the law for a crime he has committed.
• In other words, the grant of pardon absolves the accused of his
guilt and restores him to his original position of innocence, as if
he had never done the offence for which he was charged.
• The President of India and the Governors of States have the
authority under Indian law to award pardons, reprieves, respites,
or remissions of punishment, as well as to suspend, remit, or
commute the sentence.
• Pardoning Powers - Judicial Verdicts
• Dhananjoy Chatterjee alias Dhana v State of West
Bengal
• The Supreme Court stated in this case that the power
granted by Articles 72 and 161 of the Constitution may
only be utilised by the Central and State Governments,
not by the President or Governor on their own.
• The Head of State is bound by the advice of the
appropriate Government.
• Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors
• The Supreme Court concluded in a landmark decision that it is a
well-established concept that the Supreme Court and High
Courts have limited judicial scrutiny of the use of clemency
powers.
• Clemency awarded by the President or Governor may be
challenged on the following grounds:
• The directive was issued without any consideration.
• The order is illegal.
• Extraneous or completely irrelevant considerations were used to
make the decision.
• Relevant content was excluded from consideration.
• The sequence is subject to arbitrariness.
 Maru Ram etc. vs. Union of India & Anr
• INTRODUCTION & BACKGROUND OF JUDGEMENT:Section
433A of the criminal procedure code provides that, if any person
is sentenced to imprisonment for life in which death is one of the
punishments provided by law, or where a sentence of death is
changed into imprisonment for life, such person should serve in
jail for at least fourteen years, and he can be remitted only after
14 years.
• This case also talks about the pardoning power of the president
and governor provided under articles 72 and 161 of the Indian
constitution. It says about remission and commutation of
sentences where the order of the government is necessary. And
it also highlights the main objects of punishment.
• Here, the main concern of the case is whether section 433A is
affecting the pardoning powers of the president that are provided
under sections 72 and 161 of the Indian Constitution.
• The Background of the Judgement of the Supreme Court can be
understood by these points:
• Constitutionality of Section 433A
• Effect on Articles 72 and 161’s Pardoning Powers
• Application of Section 433A Prospectively
❖FACTS OF THE CASE: A group of prisoners serving life
sentences filed the lawsuit, arguing that Section 433A of the
Code of Criminal Procedure is unconstitutional.
• With effect from December 18, 1978, Section 433A imposed a
minimum of 14 years of real detention for two categories of life-
sentence offenders:
• Individuals found guilty of a crime for which the death penalty is
one of the available penalties.
• Those found guilty under any other statute where the death
penalty is the worst.
• Before 433A, life imprisonment was understood to indicate
imprisonment for the balance of the offender’s natural life,
subject to certain remission clauses found in prison legislation
and regulations.
❖LEGAL ISSUES RAISED:Whether Section 433A is
constitutionally valid?
• Whether the pardoning powers of the president and governor
affected by section 433A?
• Whether parliament have no legislative competency to enact the
impugned provision?
• Whether section 433A violate Article 20(1) and Article 14 of the
Indian constitution?
❖PETITIONERS ARGUMENTS:The main argument here is that
Section 433A of the criminal procedure code is against the constitution of
India.
❖While Section 432 and Section 433 of the Code of Criminal Procedure
give the power of remittance and commuting sentences, section 433A
places restrictions on a certain class of prisoners. This confinement is not
fair and just where the hopes of the prisoners are lost, and they are
unable to reform themselves because of this restriction. This provision is
against the pardoning powers of the president provided under articles 72
and 161 of the Indian constitution. It is stated that it is a harsh behavior of
the law and provisions to not consider the prisoner’s feelings and
helplessness.
❖The petitioners are arguing that the reformation must be the
main essential of punishment and it must be given priority
among the other objects of punishment i.e., prevention,
retribution and deterrence where these objects deserve
secondary importance.
❖The interpretation of statutes must be plain where the provisions
are easily understood and interpreted without any complications.
❖It is also said that section 433A is against Article 14 of the Indian
constitution on 2 grounds. It treats unequal situations equally,
where the circumstances and variation of crime are not taken
into consideration. On the other hand, it says that section 433A
is inhumane and anti-reformative in nature.
• Therefore, section 433A provides constraints that lead to the
dissatisfaction of the prisoners which puts them in a difficult
position and the interpretation of statutes must be clear and plain
which provides a more straightforward approach instead of being
chaos in understanding those interpretations.
❖RESPONDENTS ARGUMENTS:
❖The main argument is that section 433A of the Criminal
Procedure Code is constitutionally valid where it is not affected
by the constitution of India.
❖While section 433A poses restrictions on certain classes of
prisoners, it does not violate the pardoning powers of the
 the president and governor, the advice of the central and state
government is taken, and their decision is binding on the head of
the state. Also, the reduction in sentence does not arise unless the
president or governor chooses to use those powers which is also
according to the fair principle. Remission only affects the
execution of the sentence, and it does not wipe out the offence.
❖The four main objects of punishment must be balanced to
provide a fair criminal justice system. All four objects must be
given equal importance. Just focusing on one objective
(reformation) will cause chaos to other objects. For example, if
we focus on reformative alone, preventive theory cannot be
established, which is providing protection to the public where the
offender might cause problems.
❖They argued that by prohibiting the early release of inmates
found guilty of major crimes, Section 433A was passed to serve
the justifiable purposes of maintaining public order and security.
❖JUDGEMENT :
❖The court held that the power under Article 72 is to be exercised
on the advice of the Central Government and not by the
President on his own, and the advice of the government is
binding on the head of the Republic.
❖The Governor’s power to pardon under Article 161 runs parallel
with presidential power under Article 72. It has been also
observed that all power including constitutional power, should
not be exercised arbitrarily or malafide.
❖In order to save this Section 433A from constitutional infirmity,
the court held that the Section will have only prospective
operation (the date in which the Section came into force).
❖It was also held that Section 433A restricts the appropriate
government to exercise its powers under Section 432 Crpc, but
cannot restrict the Constitutional power under Article 72 and 161
of the constitution of India.
 Kehar Singh vs Union of India
• Kehar Singh worked as an Assistant in the Directorate General
of Supply and Disposal in New Delhi. He was accused of being
involved in a plot to assassinate the then Prime Minister, Smt
Indira Gandhi, on October 31, 1984. Two years later, on January
22, 1986, Kehar Singh was found guilty of a crime under Section
120-B, along with Section 302 of the Indian Penal Code.
• The Additional Sessions Judge in New Delhi sentenced him to
death. Kehar Singh appealed to challenge the death sentence,
but the Delhi High Court rejected the appeal. He then made a
further appeal to the Supreme Court through a Special Leave
Petition, which was also dismissed. Despite attempts with a
review petition and a writ petition, these were also dismissed.
• Shortly afterward, Kehar Singh’s son, Rajinder Singh, submitted
a petition to the President of India seeking pardon for Kehar
Singh under Article 72 of the Constitution of India. The basis for
the pardon request was the claim of innocence and an assertion
that the court’s decision was incorrect.
• the President rejected the petition under Article 72, stating that
he could not review the merits of a case already decided by the
Hon’ble Supreme Court of India.
• Following the rejection of the mercy petition, Rajinder Singh filed
a petition with the Delhi High Court to prevent the execution of
the death sentence. Unfortunately, the High Court dismissed this
petition.
• Immediately after this dismissal, the petitioners approached the
Supreme Court by filing a Special Leave Petition under Article
32. The court decided to hear the writ petition
• The key question raised is whether the President, under Article
72, possesses the authority to consider the merits of a case that
has already been decided by the Supreme Court of India. The
petitioner is seeking clarification on the scope of the President’s
power under Article 72 of the Indian Constitution.
❖Judgement in Kehar Singh vs Union of India: In Kehar Singh
vs Union of India, the Supreme Court underscored that the
President holds the prerogative to assess the merits of a
case, irrespective of its prior judicial resolution.
• The court explicitly declared that the scope of the President’s
authority under Article 72 is open to judicial scrutiny.
• Notably, the court in Kehar Singh v Union of India ordered a
temporary suspension or abeyance, of the death sentence
directed towards Kehar Singh.
 Governor: Appointment, powers, functions and
immunity
• Generally, in India, the President and Governor are
regarded as a rubber stamp; they are considered to be
the titular head of the state.
• Appointment of a Governor has been specified in article
153 of the Indian Constitution.
• the governor needs to exercise his powers and functions
with the help and advice of Council of ministers headed
by the chief minister, aside from in issues in which he is
required to act in his watchfulness
• The Governor is generally appointed by the President of
the Nation under Article 155 of Indian Constitution.
Article 158 of the Indian Constitution is as follows:
• He ought not to be the individual from either house of
parliament or a place of the state governing body.
• He ought not to hold any office of profit.
• He can utilise his official home for other purposes,
however, ought not to charge rent for that.
• If an individual is named as the overseer Governor of
other states, he is qualified to get the compensation of
both state’s Governor (chosen by the President of India).
• His payments and remittances can’t be diminished amid
his term.
• Since, the Article is silent about the direct and indirect
election of the governor, the mode of his appointment is
by way of nomination by the Central Government which is
approved by the President of India, but after such
appointment Governor is free to act on his own wisdom
and perform his duties for the betterment of the society.
• Oaths and Resignation : The Governor takes his oath
from the Chief Justice of the respective state, and he/she
addresses his resignation to President of India.
Powers of Governor : The Powers of the Governor can be
classified under four heads viz. Legislative, Executive,
Judicial and financial powers which are as follows.
Legislative Powers :Even though the Governor isn’t the
member from either House of the State Legislature, yet he
is vested with some significant powers and obligations in
the authoritative space.
• He is to bring the House or each House of the State Legislature,
if it is a bicameral governing body, to meet at such time and spot
as he deems fit. There must not be a difference of more than 6
months between the first and the last session of the house. He
ensures that the balance is maintained.
• He may prorogue the Houses or either House and break up the
Legislative Assembly.
• He can address either or both of the Houses, amassed together
at the beginning of the first session after each General Election
and furthermore, at the initiation of the main session every year.
• He is engaged in saving specific Bills for the consent of
the President. For example, the Bills accommodating
obligatory procurement of the property or diminishing the
forces of the High Court must be so saved for President’s
assent.
• He designates people, having extraordinary learning or
pragmatic involvement concerning such issues, like
Literature, Art, Science, Co-usable Movement and Social
Service.
• He designates a few individuals from the Anglo-Indian
Community if he finds the last insufficiently spoke to.
• He may likewise send messages and ask for updates to the
House or Houses on a Bill pending in the council or something
else.
• He can get the State Assembly suspended while prescribing to
the President the taking over of the State Administration.
• Executive Powers :The executive powers vested to the
Governor of the state under the Indian Constitution are as
follows:
• His powers to stretch out to the issues counted in the State list.
On account of issues gave in the Concurrent List, Governor
practices to control over them at the same time, subject to the
• He is consulted by the President in the appointment of the
Judges of the state High Court.
• The Governor appoints Judges of the District Courts.
• In case he/she feels that the Anglo-Indian community has not
been adequately represented in the Vidhan Sabha, he or she
can nominate one member of the community to the Legislative
Assembly of the state.
• In all the states where a bicameral legislature is present,
the Governor has a right to nominate the members, who
are “persons having special knowledge or practical
experience in matters such as literature, science, art, co-
operative movement and social service”, to the Legislative
Council.
• Governor is not authorised to act and exercise his duty at
his pleasure since it is the Legislative Assembly which
upholds the aggregate obligation of the CoM to itself
[Article 164(2)].
• The Supreme Court in S.R. Bommai v. Union of India saw
that at whatever point an uncertainty emerges whether a
service has lost the certainty of the House, the primary
method for testing is on the floor of the House.
• Clearly, the evaluation of the quality of the Ministry had
not been left to the Governor.
• This reality was affirmed when Uttar Pradesh Governor
rejected Kalyan Singh’s Government on Feb. 21, 1998 as
25 M.L.As of Lok Tantrik Congress and Janata Dal (Raja
Ram) Group pulled back help, and it was left in the
minority. Kalyan Singh would not leave.
• Governor did not allow him to look for certainty vote on the floor
of the House.
• Allahabad High Court in a milestone between time requests
reinstalled Kalyan Singh and left it to the Governor to request a
preliminary of solidarity on the floor of the House.
• Financial Powers :Financial powers of the Governor enlisted in
the constitution are as follows:
• No money Bill can be presented in the Assembly aside from on
Governors’ proposal.
• The Contingency Fund is available to him. He can make signs of
progress out of it to meet unexpected use, pending its approval
• Under Article 205, the Governor can request advantageous,
expansion or abundance gifts from the State Legislature.
• Governor is required to see that the yearly financial report or
spending plan of the State is presented before the House or
Houses of the Legislature have gone through it.
• Amendments making arrangements for budgetary issues can’t
be moved without the assent of or on the recommendations of
the Governor if any changes have to be done.
• Judicial Powers : Judicial Powers of the Governor are as
follows:
• According to Article 161, The Governor can allow
pardons, respites, rests or abatement of disciplines. He
can likewise suspend, dispatch or drive the sentence of
an individual indicted for an offence illegal.
• The Governor is consulted by the President in the
appointment of the Chief Justice to the High Court of that
specific state.
• Emergency Powers : he is enabled to answer to the
President at whatever point he is fulfilled that a
circumstance has emerged in which legislature of the
state can’t be carried on as per the arrangements of the
Constitution (Article 356).
• Miscellaneous provisions:
• Governor acts as the first person to supervise the Auditor
General’s report on expenditure and income of the state.
He is also an agent of the President to oversee the
emergency situation and President rule in a particular
state.
 Vice-President
• Vice-President of India is the second highest office under the
Article 63 - 71, Part V of the Constitution of India.
• The Vice-President occupies the second highest office in the
country. He is accorded a rank next to the President in the
official warrant of precedence.
• ELECTION : The Vice-President, like the president, is elected
not directly by the people but by the method of indirect election.
He is elected by the members of an electoral college consisting
of the members of both Houses of Parliament.
• Thus, this electoral college is different from the electoral college
for the election of the President in the following two
 respects: 1. It consists of both elected and nominated members of
the Parliament.
2. It does not include the members of the state legislative
assemblies.
• the Vice-President’s election, like that of the President’s election,
is held in accordance with the system of proportional
representation by means of the single transferable vote and the
voting is by secret ballot.
• All doubts and disputes in connection with election of the Vice
President are inquired into and decided by the Supreme Court
• whose decision is final.
 QUALIFICATIONS, OATH AND CONDITIONS

• Qualifications :
• To be eligible for election as Vice-President, a person should
fulfil the following qualifications:
• 1. He should be a citizen of India.
• 2. He should have completed 35 years of age.
• 3. He should be qualified for election as a member of the Rajya
Sabha.
• 4. He should not hold any office of profit under the Union
government or any state government or any local authority or
any other public authority.
• Before entering upon his office, the VicePresident has to
make and subscribe to an oath or affirmation.
• Conditions of Office :
• The Constitution lays down the following two conditions of
theVice-President’s office:
• 1. He should not be a member of either House of
Parliament or a House of the state legislature. If any such
person is elected Vice-President, he is deemed to have
vacated his seat in that House on the date on which he
enters upon his office as Vice-President.
• 2. He should not hold any other office of profit.
• Term of Office : The Vice-President holds office for a term of
five years from the date on which he enters upon his office.
• However, he can resign from his office at any time by addressing
the resignation letter to the President.
• He can also be removed from the office before completion of his
term.
• A formal impeachment is not required for his removal. He can be
removed by a resolution passed by a majority of all the then
members of the Rajya Sabha and agreed to by the Lok Sabha.
This means that this resolution should be passed in the Rajya
Sabha by an effective majority and in the Lok Sabha by a simple
majority.
• But, no such resolution can be moved unless at least 14 days’
advance notice has been given.
• Vacancy in Office :
• A vacancy in the Vice-President’s office can occur in any of the
following ways:
• 1. On the expiry of his tenure of five years.
• 2. By his resignation.
• 3. On his removal.
• 4. By his death.
• 5. Otherwise, for example, when he becomes disqualified to
hold office or when his election is declared void.
• POWERS AND FUNCTIONS : The functions of Vice-President
are two-fold:
• 1. He acts as the ex-officio Chairman of Rajya Sabha. In this
capacity, his powers and functions are similar to those of the
Speaker of Lok Sabha.
• 2. He acts as President when a vacancy occurs in the office of
the President due to his resignation, impeachment, death or
otherwise. He can act as President only for a maximum
• period of six months within which a new President has to be
• elected. Further, when the sitting President is unable to
discharge his functions due to absence, illness or any other
cause, the Vice-President discharges his functions until the
President resumes his office.
 The Union Council of Ministers (Arts. 74-75)
• under the Indian Constitution Article 53(1) vests the executive
power of the union in the hands of the President and provides
that, “It shall be exercised by him either directly or through
officers subordinates to him in accordance with the
Constitution.”
• So on a careful reading of Article 53, we get to know that the
subordinate officers are none but the Prime Minister and his
Council of Ministers.
• Article 74(1) provides that there shall be a Council of Ministers
with the Prime Minister to aid and advise the President and such
advice given by the Council of Ministers will be binding on the
• Here one important aspect is that the Council of Ministers is
headed by the Prime Minister, who in turn itself is appointed by
the President under Article 75(1) and it is the Prime Minister on
whose advice the President appoints the Ministers to form the
Council of Ministers.
• Hence according to the provision of the constitution the Prime
Minister along with the Council of Ministers hold office at the
pleasure of the President under Article 75(2).
• Therefore putting the above statement in the laymen language,
according to which, the President is the head of the Executive
and works on the aid and advice of the Prime Minister along with
his Council of Ministers and they hold office at the pleasure of
the President.

• Therefore the players who play an essential role in the

working of the Executive and the Government are the
Council of Ministers because the President acts on the
advice rendered by this Council of Ministers.
• Collective Responsibilities of the Council of Ministers :
“The principle of collective responsibility may be regarded as
fundamental to the working of a parliamentary government, as
it is in the solidarity its main strength lies.”
• The underlying principle behind the collective responsibility of
the Council of Ministers is that it should be responsible as a
body for general conduct of the affairs of the government.
• The term “collective” means that all ministers in the Council of
Ministers should swim or sink together or stand and fall
together.
• Collective responsibility envisages that each minister in the
 entire government assumes responsibility for the cabinet
decision and action taken to implement the same.
• It just means, in the words of the Supreme Court of India, the
principle of collective responsibility is that “for every decision is
taken by the cabinet, each one of the ministers is responsible to
the legislature concerned.”
• Further the principle of collective responsibility is both salutary
and necessary, and can be seen with the help of few case laws:
• Firstly in the case of SP Anand v. HD Dev Gowda, it was held
that “once a Prime Minister is appointed, he is also a minister
and collectively responsible to the house as the Council of
• Further Gujarat High Court described the collective
responsibility as follows: “collective responsibility means all
Ministers share collective responsibility for every decision taken
whether they have dissented or not to such decisions. It means
that their decisions must have unanimity and confidentiality.”
• Now if we look at the term confidentiality it takes us to the idea
of secrecy which means that all the decision taken or the
deliberations discussed in the cabinet meeting must not be
disclosed in the public and should remain only with the Council
of Ministers because if the dissents or deliberation are
presented in the public, it becomes a threat to both, the
government and the nation.
• Thirdly the Supreme Court held in another case that “all the
ministers in the Council should exhibit unanimity in their decision
even if they might have expressed a different view in the meeting
of the cabinet.”
• 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 advise the President who shall, in the
exercise of his functions, act in accordance with such advice.
• (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.
• Before the 42nd amendment, Article 74(1) stated that, “there
shall be a Council of Ministers with the Prime Minister at the
head to aid and advise the President in the exercise of his
functions”.
• However, there was a slight ambiguity whether the advice of the
Council of Ministers is binding on the President.
• Forty-second Amendment of the Constitution of India (1976)
made it explicit that the President shall, “act in accordance with
such advice”. The amendment went into effect from 3 January
1977.
• The 44th Amendment (1978) however added that the President
can send the advice back for reconsideration once.
• But if the Council of Ministers sends the same advice again to
the President then the President must accept it.
• The next question is with respect to the scope of article 74(2)
which restrains the courts from embarking an inquiry as to the
nature of cabinet advice provided.
• This article deals with the judicial review on the cabinet advice
and protects and preserves the secrecy of the deliberations
between the President and his Council of Ministers.
• The Supreme Court has clarified the implications of Art. 74(2) in
S.R. Bommai v. Union of India:
• 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 and not
with what happened in the inner councils of the President and
the Minister.
• Article 74(2) protects the secrecy of the deliberations between
the President and his Council of Ministers.
State Council of Ministers

• A similar provision is “followed in the State Executive as

well where under Article 153 of the constitution the
Governor takes the place of the President and to aid and
advice him a Council of Ministers headed by the Chief
Minister is appointed under Article 164.
• ”The work and function of the Ministers under the heads
of both Executives are quite similar along the process of
their removal, collective responsibility, accountability,
scope of advice and its bindingness and last is the degree
of the judicial scrutiny to such advice can be subjected
too.
• State Council of Ministers :The States, or the other half of
Indian federalism, are addressed within Part VI of the
Constitution.
• The Council of Ministers (CoM) in states is dealt within Articles
163 – 164.
• Article 163 provides that the Governor is aided and advised by
the Council of Ministers.
• State Council of Ministers are analogous to Central Ministerial
Councils.
• The Chief Minister is in charge of the state council. On the
advice of the CM, the governor appoints ministers to the council.
• The Constitution under Article 163 further provides for –
• A Council of Ministers, led by the Chief Minister, shall assist and
advise the Governor in the discharge of his duties, except to the
extent that he is obliged by or under this Constitution to
exercise all or any of his duties in his discretion.
• If there would be any speculation as to whether a matter is or is
not one in which the Governor is required to act in his discretion
by or under this Constitution, the Governor's decision in his
discretion shall be final, and the validity of anything done by the
Governor shall not be called into question on the basis that he
should or should not have acted in his discretion.
• The question whether any and if so what, advice was
tendered by Ministers to the Governor shall not be
inquired into in any court.
• Article 164 provides for:
• The overall number of Ministers in a State's Council of
Ministers, including the Chief Minister, must not exceed
15% of the total number of members of the Legislative
Assembly of that State
• The State's Legislative Assembly will hold the Council of
Ministers collectively accountable.
• The Governor shall administer the oaths of office and
secrecy to a Minister before he assumes his office, using
the forms set out in the Third Schedule for that purpose.
• A Minister who is not a member of the State Legislature
for a period of six months or more ceases to be a Minister
at the end of such period.
• Ministers' wages and allowances shall be as determined
by the State Legislature from time to time by legislation
and shall be as indicated in the Second Schedule until the
State Legislature so determines.
• Qualifications :
• To be a Minister of a State Council, one should be a member of
the State legislature, if he is not a member of state legislature
while becoming a member of the state legislature, he has to
become one within the period of six months from the date of
entering the office.
• Further, the qualifications needed to be a member of the state
legislature are :
• a) He must be a citizen of India.
• (b) He must bear true faith and allegiance to the Constitution of
India.
• (c) He must be not less than 30 years of age in the case of the
legislative council.
• (d) He must not be less than 25 years of age in the case of the
legislative assembly.
• Role And Functions of State Council Of Ministers:
Formulation of Policies :
• Ministers are in charge of formulating the government's policies.
• The Cabinet makes decisions on all key issues, including public
health, disability and unemployment benefits, plant disease
control, water storage, land tenures and production, and the
supply and distribution of goods.
• The appropriate department implements the policy when it
has been developed.
• Administration and Maintenance of Public Order :
The executive power must be used in a way that ensures
that state laws are followed.
• The Governor is empowered by the Constitution to create
-rules for the more efficient conduct of government
activities.
• The Council of Ministers advises on all such regulations.
 Appointments :
• The Governor has the authority to appoint the Advocate-
General and State Public Service Commission members.
• The Governor appoints the Vice-Chancellors of the State
Universities, as well as members of numerous Boards
and Commissions.
• These appointments cannot be made at the Governor's
discretion. On the advice of his ministers, he must carry
out these duties.
Appointment to the State Council of ministers :
• The Chief Minister is appointed by the governor.
• The other ministers are appointed by the governor on the
advice of the chief minister.
• The governor can appoint only those persons as ministers who
are recommended by the chief minister.
Removal :
• Members of the state council of ministers can hold office during
the pleasure of the governor, but the governor exercises his
power on the recommendation of the chief minister.
• The Council of Ministers decides the state legislative
agenda and takes the lead in introducing and passing
government legislation. It’s the strong state legislative
council that makes the state progress on the path of
development faster and safer.
• The Expansion of the government arm in the
improvement of the lives of people of the state begins with
the council of ministers.
• Comparison Between Article 163 And Article 74 : Under
article 74(1) it is clear that the president cannot exercise his
own discretion whereas the governor under article 163(1) is
bound by ministerial advice only where the subject is beyond
his discretion.
• Prima facie, the use of the word ‘discretion’ for the Governor,
but not for the President, indicates that while the Constitution
envisages the possibility of the Governor acting at times in his
discretion, i.e., independently of the Ministers, no such
possibility has been envisaged for the President.
• Article 163 is rather wide and clear when it comes to governor’s
discretion and implies that he is not bound to act as per cabinet
❖ The Governors’ Committee has observed:
Thus, even though in normal conditions the exercise of the
Governor’s powers should be on the advice of the Council of
Ministers, occasions may arise when the Governor may find that,
in order to be faithful to the Constitution and the law and his oath
of office, he has to take a particular decision independently.
• It is however realized that, in the scheme of our Constitution,
such occasions will be extremely rare. It was held in the case of
Samsher Singh v. State of Punjab that the governor is not
bound to seek such advice in his discretionary area, and he
discharges such functions to the best of his judgment.
• It is undeniable that the sanction for prosecution of public
servant including a minister is the executive function of the State
Government. The Governor is not required to exercise this
function in his discretion ‘by or under’ the Constitution.
• There is no specific Article in the Constitution which requires the
Governor to act ‘in his discretion’ in the exercise of the Executive
function.
• It is well settled that unless a particular Article expressly so
provides, an obligation of the Governor to act in his discretion
cannot be inferred by implication, as held by the Hon’ble
Supreme Court in Ram Jawaya v. State of Punjab, and
Sanjeevi Naidu v. State of Madras.
• There has been recently a dispute between the Delhi govt.
and Lieutenant Governor of Delhi, the bone of contention
was article 239 AA which stated that a LG, could disagree with
many decisions of elected government and refer them to the president,
which means the central government but the Supreme Court held in
this case that The L-G is bound by the aid and advice of the Council of
Ministers. In case of difference of opinion, the L-G should straightaway
refer the dispute to the President for a final decision.
• Also, that the Lieutenant-Governor should act as a “facilitator” for good
governance in the national capital and not as an “obstructionist”. One
should be able to exercise one’s own discretion provided it does not
make the constitution unworkable.
 Special Powers vested in the president
• Special Powers vested in the president :The president is
vested with a lot of special powers .
• The Veto power under Article 111 provides that the President
may veto any legislation and it is less possible to override a
veto.
• The President may declare his assent to a bill, declare that he
withholds assent or send the bill back for reconsideration and
possible amendments.
• Next power is the Military Power The President is vested with
the powers of the Supreme Commander of the Defense Forces
of the Union.
 command the defense forces forms part of the executive power of
the union.
• Even if it appears that the President does possess some
discretion, realistically speaking, today’s civil heads are cut off
from any active control of military affairs.
• Another important article is 356 which provides the president
with special power to declare state emergency, if the President
upon receipt of a report from the governor or otherwise, is
satisfied that a situation has arisen in which the government of a
state cannot be carried on within the provisions of the
Constitution, he may by proclamation assume all or any of the functions
of the state government or all the powers vested in the government.
• The election of Prime Minister is another important power
vested in President Article 75 of the Constitution provides
that the Prime Minister shall be appointed by the
President but the President has to appoint the leader of
the majority party in Lok Sabha as the Prime Minister.
• But when no party has a clear majority in the Lok Sabha
the President can exercise his personal discretion in the
appointment of Prime Minister.
• In India, occasion for real exercise of the power of appointment
of a Prime Minister arose for the first time during the president
ship of Shri Radhakrishnan.
• The death of Shri Jawahar Lai Nehru on May 27, 1964 brought
his government to an end.
• A Prime Minister was immediately needed to head a new
Government. The President appointed Mr. G.L. Nanda was
Prime Minister because he was the senior-most cabinet
member.
• A literal interpretation of Article 123(1) makes it clear that
the promulgation of an ordinance is a discretionary power
of the President.
• This is obvious because of the use of the word “satisfied”.
• Hence, in theory, the President need not take the aid and
advice of the Council of Ministers in the course of issuing
ordinances.
• However, in Sardari Lal v. Union of India, the Supreme Court
speaking through Justice Grover held that in all places in the
Constitution where the term satisfaction is used, it refers to the
personal satisfaction of the President on the basis of the
material placed before him.
• This was overruled in Samsher Singh Case”, where the Court
held that satisfaction of the President was not his personal
satisfaction.
 Case: Shamsher Singh v State of Punjab
• Background :
• In the Shamsher Singh vs. State of Punjab case, the petitioner,
Shamsher Singh, challenged the legality of certain actions taken
by the Governor of Punjab.
• The contention was that these actions were executed without the
assistance and advice of the state’s Council of Ministers, which
the petitioner argued was required under the Indian Constitution.
• Issues :1. Whether the Governor of Punjab acted independently
of the Council of Ministers.
• 2. Whether such independent actions by the Governor are
constitutionally valid.
❖Observation:
• The Supreme Court observed that according to the Indian
Constitution, both the President of India and the Governor of a
state are required to act according to the advice of their
respective Councils of Ministers.
• This is mandated by Article 74(1) for the President and Article
163(1) for the Governor.
• The Court emphasized that while the Governor does have some
discretion in specific situations; the general rule is that all
executive and legislative actions must be conducted based on
the advice and consent of the Council of Ministers.
• The Court underscored that if the Governor takes action
independently, it must be supported by the agreement of the
Council of Ministers to be deemed constitutionally valid.
❖Decision :
• The Supreme Court ruled that the Governor/President must act
according to the advice of the Council of Ministers in most
circumstances, as specified in the Constitution.
• The Court added that the term ‘satisfaction’, would mean, the
satisfaction based upon the aid and advice of Council of
Ministers headed by the Chief/Prime Minister.
• The Court held that any action taken by the
Governor/President without such advice or concurrence is
not constitutionally valid. In this case, the actions of the
Governor that were challenged were deemed invalid as
they did not align with the required constitutional
procedures involving the Council of Ministers.
• The President of India and the Governor of States enjoy the
following immunities (Article 361):
• (i) The President or the Governor is not answerable to any court
the exercise and performance of the powers and duties of office.
• (ii) No criminal proceedings shall be instituted or continued aga
the President or the Governor in any court during his term office.
• (iii) No process for the arrest or imprisonment of the President or
Governor shall be issued from any court during his term of office.
• (iv) No civil proceedings against the President or the Governor
be instituted during his term of office in any court in respect of
act done by him in his personal capacity, whether before or
after he entered upon his office, until the expiration of two
months after notice has been delivered to him.