UNIT 1

Union executive
1) discuss the executive power of the union, election of the president, manner of election
of the president and procedure for impeachment of the president (15)
Ans: Article 52 lays down that there shall be a president of India. Article 53(1) vests the
executive power of the Union in the President which he exercises directly or through
officers subordinate to him in accordance with the constitution. Further, the supreme
command of the defence forces of the union is also vested in the president and the
exercise thereof is regulated by law. However, the article also clarified that the
aforementioned clauses under this article do not deem to transfer to the president any
executive functions conferred by any existing law (pre constitutional law) on the
government of any State or other authority nor prevent parliament from conferring by law
executive function son authorities other than the president.
The provisions relating to the election of the president and manner of election have been
laid down in the following articles
i) Election of president (art. 54): The president by an electoral college consisting of the
elected members of both houses of parliament; and the elected members of the legislative
assemblies of the states and the Union territories of New Delhi and Puducherry.
ii) manner of election (art. 55): there should be uniformity I the scale of representation of
the different states at the election of the president as far as possible. For the purpose of
ensuring such uniformity among the States inter se as well as parity between the States as
a whole and the Union, the number of votes which each elected member of Parliament
and of the Legislative Assembly of each State is entitled to cast at such election shall be
determined in the following manner:
a) every elected member of the Legislative Assembly of a State shall have as many votes
as there are multiples of one thousand in the quotient obtained by dividing the population
of the State by the total number of the elected members of the Assembly;
b) if, after taking the said multiples of one thousand, the remainder is not less than five
hundred, then the vote of each member referred to in sub-clause (a) shall be further
increased by one;
c) each elected member of either House of Parliament shall have such number of votes as
may be obtained by dividing the total number of votes assigned to the members of the
Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of
the elected members of both Houses of Parliament, fractions exceeding one-half being
counted as one and other fractions being disregarded.
The election of the President shall be held in accordance with the system of proportional
representation by means of single transferable vote and the voting at such election shall
be by secret ballot.
The president may be removed from his office, before the expiry of his term for
“violation of the constitution” by the process of impeachment as laid down in article 61 of
the constitution. The procedure for impeachment is as follows:
i) for impeachment, the charge against him may be preferred by either house of
parliament
ii) the proposal to prefer the charge is to be put in the form of a resolution of the house.
Such a resolution can be moved only after giving at least 14 days written notice signed by
not less than 1/4th of the total number of members of the house. The resolution must be
passed by a majority of not less than 2/3rd of the total membership of the house.
iii) when one house thus prefers a charge, it becomes incumbent on the other house to
investigate the same. Investigation may be made either by the House itself or by some
agency as the house may direct. The President has the right to appear and to be
represented at such investigation.
iv) If after investigation the House passes a resolution by majority of not less than 2/3rd of
its total membership declaring that the charge preferred against the President has been
sustained, it would have the effect of removing the President from his office from the date
on which the resolution is so passed.

2) discuss the powers and functions of the president and examine the true constitutional
position of the president of India / do you agree that the president of India reigns but
does not rule. What according to you is the true constitutional position of the
president of India
Ans: Powers and functions of president are discussed below:
a) Judicial functions: as per articles 124 and 217, the Supreme court and high court
judges as well as the CJI and chief justice of high courts, are appointment by the central
executive or in other words, the president.
Article 72 of the constitution also empowers the President to grant pardon, reprieve,
respite or remission of punishment or to suspend, remit, or commute the sentence of any
person convicted of any offence in all cases:
i) where the punishment or sentence is by a court-martial;
ii) where the punishment or sentence is for an offence against any law relating to a matter
to which the executive power of the Union extends;
iii) where the sentence is a sentence of death.
In Epuru Sudhakar v. State of APA the SC held that the considerations of religion, caste or
political loyalty are irrelevant and prohibited grounds while granting clemency and
pardon. In Maru Ram v Union of India, Supreme Court held that pardoning power under
Article 72 is to be exercised by the President, on the advice of the Central Government
and not on his own will and that the advice is binding on the head of the Republic. The
court further insisted that although the power of pardon is very wide, it cannot run riot.
The court emphasized that although the considerations for the exercise of the power under
art. 72 may be myriad and best be left to the govt. yet, if in any case, the power to pardon
is exercised on irrational irrelevant, discriminatory or mala fide considerations, the courts
could examine the case and intervene if necessary. In Kehar singh v. UOI the SC accepted
the proposition laid down in Maru Ram as regards the exrcise of pardon power by the
president and expressed the view that the order of the president cannot be subjected to
judicial review on its merits except within the strict limitations defined by the court in
Maru Ram case
b) Legislative power: the legislative power of the president may be discussed in the
following heads:
i) Participation of the executive in the legislative process: The Council of ministers being
an integral part of Parliament participates intimately in the legislative process, and
discharges important functions in relation to Parliament. This concept is underlined by
making President a component part of Parliament. The executive's power to convene and
prorogue Parliament, to dissolve Lok Sabha, presentation of Bills to Parliament and the
requirement of Presidential assent for transforming a Bill passed by the two Houses into
an Act are some of the factors which denote the intimate role played by the executive in
relation to the legislative process.
President may address any or both Houses of Parliament and send message to either
House with respect to a Bill pending in Parliament or otherwise. There are several
provisions in the Constitution which require prior recommendation of the President for
introducing legislation or some matters in a House of Parliament. As for example-
(A) President's recommendation is required to introduce in either House a Bill for the
formation of new States or alteration of areas, boundaries or names of existing States
(Article 3).
(B) A money Bill cannot be introduced without the recommendation of the President
[Article 117(1)].
(C) President's recommendation is required for consideration by a House of a Bill
involving expenditure from the Consolidated Fund of India [Article 117(3)].
(D) Prior recommendation of the President is required for introducing in either House
of Parliament any Bill affecting any tax in which States are interested (Article 274).
ii) Ordinance making: The Central Executive has power to issue ordinances and thus
promulgate laws for a short duration. The technique of issuing an ordinance has been
devised with a view to enabling the Executive to meet any unforeseen or urgent situation
arising in the country when Parliament is not in session, and which it cannot deal with
under the ordinary law
article 123(1) lays down that If at any time, except when both Houses of Parliament are in
session, the President is satisfied that circumstances exists which render it necessary for
him to take immediate action, he may promulgate such ordinance as the circumstances
appears to him to require. The ordinance issued by him shall have the force of an act of
parliament but such ordinance must be laid before both houses of parliament and shall
cease to operate at the expiry of six weeks from the date of re assembly of parliament
unless a resolution disapproving it is passed by both houses before the expiration of six
weeks.
However it must be noted that the power of the President to promulgate ordinances must
not be used as a substitute for legislative powers of the state legislative assembly. Thus in
D C Wadhwa v State of Bihar the Supreme Court ruled that successive Re promulgation
of Ordinance without any attempt to get the Bill passed by the Assembly would amount to
fraud on constitution and the ordinance so promulgated is liable to be struck down.
iii) rule making: Several Constitutional provisions confer rule-making powers on the
Central Executive enabling it to prescribe detailed provisions for several matters, as for
example:
(a) authentication of orders and instruments made and executed in the name of the
President [Article 77(2)];
(b) the more convenient transaction of the government's business [Article 73(3)];
(c) conditions of services etc., of Audit and Account Department [Article 148(5)]
Chairman and Members of the Union Public Services Commission [Article 318],
secretariat and staff and House of Parliament [Article 98(3)];
(d) consultation with the UPSC regarding appointment of officials of the Supreme
Court [Article 146(1)];
(e) dual membership of Parliament and State Legislatures [article 101(2)].
(f) procedure to be followed at the joint meeting of the two Houses of Parliament
[Article 118(3)];
(g) regulating the requirement and conditions of service of person appointed to
services and posts in connection with the affairs of the Union [Proviso to Article 309].
iv) Emergency Power of President.-If the President is satisfied that a grave emergency
exists whereby security of India or any part thereof is threatened, emergency may be
proclaimed by him under article 352. During the period the proclamation is in force.
President may make modifications in distribution of revenues between Union and States
and suspend enforcement of fundamental rights when on report of the Governor or
otherwise, he is satisfied that Government of State cannot be carried on in accordance
with the provisions of the Government. During financial emergency under article 360,
President is empowered to issue necessary directions requiring Money Bills or other Bills
of State to be reserved for his consideration and reduction of salaries of persons serving
under the Union or States.
c) Executive power: (a) Powers as head of the State.-According to article 53, the
executive power of the Union vests in the President, and according to article 77 executive
actions of the Government of India are to be taken in his name. In foreign countries, he
represents the nation. He sends and receives ambassadors and other diplomatic agents. All
treaties and international agreements are made in his name though their implementation
may require legislation by Parliament. He can declare a State of war with any country or
that a state of war with any country ended.

(b) As Supreme Commander of Armed Forces.-Article 53(2) declares that the Supreme
Command of Defence Forces of the Union shall be vested in the President and the
exercise thereof shall be regulated by law.

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

(d) Powers in relation to Council of Ministers.-The President appoints Prime Minister and
other members of the Council of Ministers and they hold their offices during the pleasure
of the President. Article 77(3) empowers the President to make rules for some convenient
transaction of the business of the Government of India and for allocation of such business
among the members.
POSITION OF THE PRESIDENT
Article 53 provides that the executive power of the Union is vested in the President. This
power is to be exercised in accordance with the constitution. Though formally vested in
the President, the idea could never be that he should personally exercise this power or
take every decision himself.
Article 74 provides that there shall be a COM with the PM at the head to aid and advice
the president in the exercise of his functions and the president shall act in accordance with
such advice. Article 75 says that the PM shall be appointed and the other ministers shall
be appointed by the president on the advice of the PM. Article 75(2) further provides that
the ministers shall hold office during the pleasure of the president.
Interestingly, prior to the 42nd amendment act of 1976, article 74 did not lay down that the
president shall act in accordance with the advice of the COM. Thus, a purely literal
interpretation of article conveys the impression that the President if he so desires could
become a real head and not merely a titular head. This literal interpretation is however not
 in tune with the spirit of the constitution. The supreme court of India has consistently
taken the view that the position of the President under the Indian Constitution is similar to
the position of the Crown under the British Parliamentary system. The constitutional
position of the president can be better understood by referring to the following cases:
I) Samsher Singh v State of Punjab: The supreme court held that the President and the
governors are only constitutional or formal heads and that they exercise their powers and
functions under the constitution only with the aid and advice of the COM save in spheres
where the governor is required to exercise his functions in his discretion. Wherever the
constitution requires the satisfaction of the president or the governor, the satisfaction is
not the personal satisfaction of the president or governor it is the satisfaction of the COM.
II) UN Rao v. Indira Gandhi: the supreme court emphasized that the conventions
operating in Britain governing the relationship between the Crown and the Ministers are
very pertinent to the Indian Constitution as well and the formal provisions of the Indian
constitution should be read in the light of those conventions. The court observed the
Constituent assembly did not choose the Presidential system of government.
Thus in the view of the Supreme Court the position of the President and the Governors
are under the Indian Constitution is similar to the position of the Crown under the British
Parliamentary system
After the Constitution 42nd (amendment) act 1976, the position of the President was made
clear. the act amended article 74 of the Constitution which makes it clear that the
president shall be bound by the advice of the COM. Thus in view of this amendment the
president could not play even the role of an advisor or guide.
Then the 44th amendment act, 1978 inserted a proviso in the clause (1) of article 74 which
enabled the president to ask the COM to reconsider their advice However, after the
Council of Ministers has reconsidered the advice and resubmitted it, the President is
bound to act according to that reconsidered advice. The amendment thus recognizes the
limited but essential role of the president under the IC.

3) discuss the qualifications for election as the president of India and examine the
executive, legislative and judicial powers of the president
4) are the powers of the president in article 78 limited by the provisions of article 74 of
the constitution? Explain the constitutional importance of the provisions that the
question whether, if any and if so, what advice was tendered by the council of
ministers to the president shall not be enquired into in any court
State executive
 1) Governor in a state is not just a figure head but enjoys enormous power. Explain the
powers and position of a governor in a State. (15)
Ans:A) Legislative power: the powers of prorogation and dissolution of the legislature vests
in the executive. Under article 174, the governor shall from time to time summon the house
or each house of the legislature of the state to meet at such time and place as he thinks fit, but
six months shall not lapse between the last sitting in one session and the first in the next
session. Under article 175, the governor has the right to address the State legislature.
No bill can become law without the assent of the governor. Under article 200, the governor
may either give his assent to the bill, withhold his assent or he may reserve certain bills for
the assent of the president. The decision of the Supreme Court in State of Punjab v. Principal
Secretary to the Governor of Punjab has made it clear that withholding assent is only valid if
the Governor returns the Bill to the legislature. In another recent case, The State of Tamil
Nadu v Governor of Tamil Nadu, the SC has prescribed a time limit for the exercise of the
power under article 200:
i) In case of either withholding of assent or reservation of the bill for the consideration of the
President, upon the aid and advice of the State Council of Ministers, the Governor is expected
to take such an action forthwith, subject to a maximum period of one-month;
ii) In case of withholding of assent contrary to the advice of the State Council of Ministers,
the Governor must return the bill together with a message within a maximum period of three
months;
iii) In case of reservation of bills for the consideration of the President contrary to the advice
of the State Council of Ministers, the Governor shall make such reservation within a
maximum period of three months;
iv) In case of presentation of a bill after reconsideration in accordance with the first proviso,
the Governor must grant assent forthwith, subject to a maximum period of one-month
But, the most important legislative power of the governor is his ordinance making power.
Under article 213, whenever the legislature is not in session and if the governor is satisfied
that circumstances exist which require him to take immediate action, he may legislate by
ordinances.
Further, a money bill cannot be introduced in the legislative assembly without the
recommendation of the governor as per art 207(1). Moreover, under art 202 the governor is
required to cause to be laid before the house or houses of the legislature the annual financial
statement known as the budget. Art 203(3) also makes it clear that No demand for a grant
shall be made except on the recommendation of the Governor.
B) Executive power: article 154 lays down that The executive power of the State is vested in
the Governor and is to be exercised by him directly or through officers subordinate to him .
Article 162 says that the executive power of the State extends to matters with respect to
which the legislature of the State has power to make laws. Article 166(1) lays down that All
executive actions of the Government of a State shall be expressed to be taken in the name of
the Governor. Clause 2 of article 166 further provides that Orders and other instruments made
and executed in the name of the Governor shall be authenticated in such manner as may be
specified in rules to be made by the Governor, and the validity of an order or instrument
which is so authenticated shall not be called in question on the ground that it is not an order
or instrument made or executed by the Governor. Under article 166(3), the Governor is
authorised to make rules for the more convenient transaction of the business of the
Government of the State and for its allocation among Minister.
But it must be noted that the real executive power vest in the COM. In Rai Sahib Ram
Jawaya Kapur v. State of Punjab, the SC held that our Constitution has adopted the British
system of Parliamentary form of Government and the basic principle of this type of
Government is that the President and Governors are constitutional heads and the real
executive powers are vested in the Council of Ministers. This position was reiterated in
Samsher Singh v State of Punjab wherein the court held that the President and the Governors
are only constitutional heads and they exercise their powers and functions with the aid and
advice of the Council of Ministers and not personally save in cases where the Governor is
required by the Constitution to exercise the functions in his discretion.
C) pardoning power: Article 161 says that the Governor shall have the powers to grant
pardons, reprieves, respite or remission of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law relating to matter to which,
the executive power of the State extends. The executive power of the State extends to matters
with respect to which the Legislature of the State has power to make laws (Article 162).

POSITION OF GOVERNOR: in general, the position of the governor is similar to that of the
president but the important difference is that the constitution empowers the governor to
exercise his discretion in certain cases. Article 163 clearly lays down that there shall be COM
with the CM as the head to aid and advise the governor in the exercise of his functions except
in so far as he is by or under the constitution required to exercise his functions or any of them
in his discretion. In the exercise of his discretionary powers the governor is not required to
act on the advice of his ministers or even to seek advice. This is made clear from clause (2) of
art. 163 which says that if any question arises whether any matter is or is not a matter as h the
Governor is by or under this Constitution required to act in his discretion, the decision of the
Governor in his discretion shall be final, and the validity of anything done by the Governor
shall not be called in question on the ground that he ought or ought not to have acted in his
discretion.
There are certain areas in which governor can exercise discretion:
a) appointing CM: Soon after an election when a single party or a coalition emerges as the
largest single party or group, there is no difficulty in the selection and appointment of a Chief
Minister. However, where no single party or group command absolute majority, the Governor
has to exercise his discretion in the selection of Chief Minister. The governor must appoint a
CM who will be able to enjoy a majority support in the assembly because if the ministry is
not able to enjoy majority support in the house, it will fall. At times while appointing the CM
the governor imposes the restriction that he should seek a vote of confidence from the house
concerned. This serves two purposes: 1) it assures the governor that his choice of the CM was
right and 2) it satisfies the electorate that the CM enjoys majority in the assembly
b) dismissal of ministry: as per art 164 the ministers shall hold office during the pleasure of
the governor. But this does not mean that the governor can dismiss the ministers as he
pleases. The governor is to exercise his pleasure according to the advice of the COM. This
power is to be exercised to dismiss a minister if he has lost the confidence of the CM or to
dismiss the ministry which has demonstrably lost majority support in the legislative assembly
but which refuses to vacate the office. The Calcutta HC in Mahabir Prasad Sharma v. Prafulla
Chandra Ghose held that if the Council of Ministers refuses to vacate the office of Ministers,
even after a vote of no confidence has been passed against it in the Legislative Assembly of
the State, it will then be for the Governor to withdraw the pleasure during which the Council
of Ministers holds office
c) dissolution of the house: Various Governors have adopted different approaches in similar
situations in regard to dissolution of the Legislative Assembly. The advice of a Chief
Minister, enjoying majority support in the Assembly, is normally binding on the Governor.
However, where the Chief Minister had lost such support, some Governors refused to
dissolve the Legislative Assembly on his advice, while others in similar situations, accepted
his advice, and dissolved the Assembly. The Assembly was dissolved in Kerala (1970) and in
Punjab (1971) on the advice of the Chief Minister whose claim to majority support was
doubtful. However, in more or less similar circumstances in Punjab (1967), Uttar Pradesh
(1968), Madhya Pradesh (1969) and Orissa (1971) the Legislative Assembly was not
dissolved.
d) in recommending president’s rule: under art 356 the governor is to report to the president
that a situation has arisen in which the government of the state cannot be carried out in
accordance with the provisions of the constitution. The governor can exercise his discretion
in making such a report
e) reservation of bills: Governors have generally gone by the advice of their Council of
Ministers in reserving State Bills passed by the Legislature for the consideration of the
President. There have been, however, some instances when Governors reserved State Bills in
the exercise of their discretion, creating a controversy in some cases
Thus, While ordinarily a figurehead, the Governor's discretionary powers, especially in cases
of political instability, breakdown of constitutional machinery, or in matters involving
reservation of bills, give the office considerable influence and power.

2) Discuss the qualification, appointment, tenure and power of the governor of a state.
Relationship
1) Discuss the relationship between president and council of ministers under the
parliamentary form of government
Ans: Article 53 provides that the executive power of the Union is vested in the President.
This power is to be exercised in accordance with the constitution. Though formally vested
in the President, the idea could never be that he should personally exercise this power or
take every decision himself.
Article 74 provides that there shall be a COM with the PM at the head to aid and advice
the president in the exercise of his functions and the president shall act in accordance with
such advice. Article 75 says that the PM shall be appointed and the other ministers shall
be appointed by the president on the advice of the PM. Article 75(2) further provides that
the ministers shall hold office during the pleasure of the president.
Interestingly, prior to the 42nd amendment act of 1976, article 74 did not lay down that the
president shall act in accordance with the advice of the COM. Thus, a purely literal
interpretation of article conveys the impression that the President if he so desires could
become a real head and not merely a titular head. This literal interpretation is however not
in tune with the spirit of the constitution. It is the essence of the parliamentary
government that the real executive powers should be exercised by the COM responsible
to the Lok Sabha. The president cannot exercise his powers without the aid and advice of
a COM, i.e., the existence of a COM is obligatory. Even when the LS is dissolved the
COM remains in office to aid and advice the president. Whilst explaining the position of
the President in the constituent assembly, Dr B. R. Ambedkar opined that the president’s
place in the administration is that of a ceremonial device on a seal by which the nation’s
decisions are made known. Ambedkar further states that the president occupies the same
position as the king under the English constitution.
The supreme court of India has consistently taken the view that the position of the
President under the Indian Constitution is similar to the position of the Crown under the
British Parliamentary system. The constitutional position of the president can be better
understood by referring to the following cases:
I) Samsher Singh v State of Punjab: The supreme court held that the President and the
governors are only constitutional or formal heads and that they exercise their powers and
functions under the constitution only with the aid and advice of the COM save in spheres
where the governor is required to exercise his functions in his discretion. Wherever the
constitution requires the satisfaction of the president or the governor, the satisfaction is
not the personal satisfaction of the president or governor it is the satisfaction of the COM.
II) UN Rao v. Indira Gandhi: the supreme court emphasized that the conventions
operating in Britain governing the relationship between the Crown and the Ministers are
very pertinent to the Indian Constitution as well and the formal provisions of the Indian
constitution should be read in the light of those conventions. The court observed the
Constituent assembly did not choose the Presidential system of government.
Thus in the view of the Supreme Court the position of the President and the Governors
are under the Indian Constitution is similar to the position of the Crown under the British
Parliamentary system
After the Constitution 42nd (amendment) act 1976, the position of the President was made
clear. the act amended article 74 of the Constitution which makes it clear that the
president shall be bound by the advice of the COM. Thus in view of this amendment the
president could not play even the role of an advisor or guide.
Then the 44th amendment act, 1978 inserted a proviso in the clause (1) of article 74 which
enabled the president to ask the COM to reconsider their advice However, after the
Council of Ministers has reconsidered the advice and resubmitted it, the President is
bound to act according to that reconsidered advice. The amendment thus recognizes the
limited but essential role of the president under the IC.
Another important aspect of the relations between the president and the COM is that the
PM must keep the head of the state informed about the affairs of his government. The
president has the right to know what his govt is doing or proposes to do.