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Types of governments
Unitary constitution
Dual constitution
Unitary Constitution
Central government is supreme There may exist local governments with
certain assigned functions to discharge Local governments area of operation is
confined Their jurisdiction may be curtailed,
restricted and modified by the Centre at its own will
They are mere administrative agencies
Federal/dual constitution Units in the federation act under
constitution Their jurisdiction and duties are defined in
constitution It can be changed only through
amendment of the constitution i.e., by constituent process
Units in federation have their own identity and personality
They have their own separate functions
federalism Federalism constitutes a complex
governmental mechanism for governance of a country
It has been evolved to bind into one political union several autonomous, distinct, separate and disparate political entities or administrative units
It seeks to draw a balance between the concentration of power in the centre and the state units which urge for dispersal of power
Unity with multiplicity Centralization with decentralization Nationalism with localism A federal constitution establishes a dual
polity i.e., two levels of governemntCentral governmentRegional governments
Citizen is subject to both governments
Regional governments called as state governments in USA, Australia, India
Provincial Government in Canada
Distribution of Centre and the state is the most important characteristic of any federal system
A federal constitution envisages a demarcation or division of government functions and powers between the centre and the regions by the sanction of the constitution which is written and rigid
That meansAny invasion by one level of government on
the area assigned to the other level of government is a breach of constitution
Breach of constitution is matter to be determined by the courts
Constitution of India
Dual polity Union government and state
government States are the regional administrative
units India is a union of states
Three pillars of Indian federal system Strong central government Flexible federal system Co-operative federalism
Strength of the centre lies in its large legislative and financial powers and in its emergency powers
The flexibility of the Indian federalism lies in the expedients adopted in the constitution to mitigate the rigidity of a federal system and to increase temporarily the powers of the central government if the contemporary situation so demands
Co-operative federalism has been worked out in a number of constitutional provisions and also through legislative and administrative actions
Central & State Government Art.52 to 367
It may be resolved into three institutional componentsLegislative as represented by Parliament
and AssemblyExecutive as represented by the President
and Council of Ministers headed by Prime Minister, Governor and Council of Ministers headed by Chief Minister
Judicial as represented by the Supreme Court of India and High court
Central & state executive Common pattern for both Most cases mutatis mutandis the same
for both Subject is divided into four heads
Chief executiveCouncil of MinistersLaw officersConduct of business
Central Executive 52 to 78 Art.52 – There shall be a President of
India Art.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
The central executive consists of the President and the Council of Ministers headed by the Prime minister
Council of ministers is responsible to the Lok Sabha
The constitution formally vests many functions in the President but he has no function to discharge in his discretion or in his individual judgment
He acts on ministerial advice, therefore, council of ministers constitute the real and effective executive
53(2) without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law
53(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
Prevent Parliament from conferring by law functions on authorities other than the President
Election of president
Art.54 : The president shall be elected by the Members of an electoral college consisting of –
(1) the elected members of both Houses of Parliament and
(2) the elected members of the Legislative Assemblies of the States
Election is through indirect process
Manner of election Art.55 (1): As far as practicable, there shall be
uniformity in the scale of representation of the different states at the election of the president
Art.55(2): for the purpose of securing such uniformity among the States interse as well as parity between the States as 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 elected shall be determined in the following manner -
55(2)(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
State Population 1
---------------------------------- x -------
Total number of elected 1000
Members in the State
Legislative Assembly
55 (2)(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
55(2)(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 clause (a) and (b) by the total number of elected members of both Houses of Parliament, fractions exceeding one and half being counted as one and other fractions being disregarded
Total number of votes assigned to the members of the State Legislative
Assemblies in the Electoral College
---------------------------------------------------
Total number of elected members of the two Houses of Parliament
55(3) : 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
Explanation : In this article, the expression ‘population’ means the population as ascertained at the last preceding census of which the relevant figures have been published
Provided that the reference in this explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 1971 census
The increase in state population after 1971 is not going to increase its votes at the election of the president S.2 of the constitution (Eighty-Fourth Amendment Act, 2001)
Art.81(2)(a) – allocation of seats to the seats in Lok sabha also blocked basing on this same 2026 sensus by 1971
Term of office of President Art.56 : (1) five years from the date of his entering into office Provided that – (a) the President may, by writing under his hand addressed to
the VP, 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 VP under cl (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People
Eligibility for re-election
Art.57 : A person who holds, or who has held, office as President shall, subject to other provisions of this constitution, be eligible for re-election to that office
Qualifications for election as president 58(1) : No person shall be eligible for election
as president unless he – (a) is a citizen of India (b) has completed the age of 35 yrs (c) is qualified for election as a member of the
House of people (2) A person shall not be eligible for election as
President if he holds any office of profit under the GOI or the Govt of any State or under any local or other authority subject to the control of any of the said governments
Explanation: for the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-president of the Union or the Governor of any State or is a Minister either for the Union or for any State
This restriction is broader than that under Art.102
Under Art.102, disqualification extends only to the holding of an office of profit under the CG or SG and not to the holding of office of profit under local or other authority
Conditions of President’s office
Art.59(1) : The President shall not be a member of either house of parliament or of a House of the Legislature of any state, and if a member of either house of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that house on the date which he enters upon his office as president
59(2) : The president shall not hold any other office of profit
59(3) : The president shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the second schedule
2nd schedule
Salary : 10,000/- Same allowances and privileges as
were payable to the governor-general of India
In case of vice-president acting as president same emoluments and privileges
Oath or affirmation by the President 60 : Every president and every person
acting as president or discharging the functions of the president shall, before entering upon his office, make and subscribe in the presence of the CJ of India or in his absence senior most judge of SC available on oath or affirmation in the following form, that is to say -
“ I, so and so, do swear in the name of god/solemnly affirm that I will faithfully execute the office of president (or discharge the functions of the president) of India and will to the best of my ability preserve, protect and defend the constitution and the law and that I will devote myself to the service and well-being of the people of India
Impeachment
The president may be removed from his office, before the expiry of his term, for ‘violation of the constitution’ by the process of impeachment Art.56(1)(b)
Procedure for impeachment is mentioned in Art.61
Procedure for impeachment of the President
61 (1) : When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either house of parliament
61(2) : No such charge shall be preferred unless –
(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days notice in writing signed by not less than one-fourth of the total number of members of the House has been given of their intention to move the resolution and
(b) such resolution has been passed by a majority of not less than two- thirds of the total membership of the house
(3) when a charge has been so preferred by either house of parliament, the other house shall investigate the charge or cause of the charge to be investigated and the president shall have the right to appear and to be represented at such investigation
(4) if as a result of the investigation a resolution is passed by a majority of not less than two- thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the president has been sustained, such resolution shall have the effect of removing the president from his office as from the date on which the resolution so passed
England
Two distinct classes of public servants can be impeachedThose who hold political officeThose who hold public office during good
behaviour
Considerations governing both classes are distinct and seperate
Before the development of ministerial responsibility, impeachment was a weapon enabling the Commons to call to account ministers appointed by, and responsible to, the Crown
As per English constitutional theory, no impeachment of the sovereign
Political offenders has to faceImpeachmentDeprivation of officeOther penalties
Royal prerogative does not extend to preventing impeachment
Address to the Crown must originate is mandatory condition before impeachment/ removal of officer/judge
Procedure is judicial and the judge is entitled to be heard
U.S.Scenario Impeachment is the ideology borrowed from U.S.
Constitution Art.II, section 4 of the U.S. Constitution, the
president can be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours
According to Art.I, section 3, all impeachments are tried solely by the senate and when the president is being impeached, the CJ of SC is to preside.
To convict the president, concurrence of two-thirds of the members present is needed
Indian scenario The president in India can be impeached only
for violation of the constitution and not for any criminal offence
Impeachment can be tried by either of the two houses of parliament, and not necessarily by the Upper house
There is no provision for the CJI to preside at such sittings of the house when the charge against the president is being investigated
Votes of atleast 2/3 of the total membership of the house is required
Impeachment process was invoked twice in USA Andrew Jhonson -1867 – high crimes and
misdemeanors – Justice Samuel ChaseNo legal definition for high crimes and
misdemeanorsJustice Archibald of the Commerce Court, -
1913Judge Wright of Florida Court- 1936Bill Clinton
President’s power to pardon offences does not extend to cases of impeachment : Art.II, S.2, Cl.1
Remote possibility of impeachment because always president acts on the advice of the council of ministers
Even though president is immune from parliamentary and judicial control – fear of impeachment will always have an impression on his working
Acting independently without the advice of council of ministers may drag such situation of impeachment
Interpretation of the word ‘violation of constitution’
It is a matter to be decided by the house which tries the charge
It can be interpreted in wider sense such as a violation of conventions, usages and spirit of the constitution
Impeachment is a political instrument
Time of holding election to fill vacancy in the office of president and the term of office of person elected to fill casual vacancy 62(1) An election to fill a vacancy
caused by the expiration of the term of office of president shall be completed before the expiration of the term
(2) An election to fill a vacancy in the office of president occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in nocase later than six months from, the date of occurrence of the vacancy, and the person elected to fill the vacancy shall, subject to the provisions of the article 56, he entitled to hold office for the full term of five years from the date on which he enters upon his office
Part XIX – MiscellaneousArt.361 : Presidential privileges
361 (1) : the president, or the Governor or Rajpramukh of a state, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties
No court can compel the president to exercise or not to exercise any power, or to perform or not to perform any duty, nor can a court issue any writ in respect of the president’s official acts or omissions
He is amenable to any mandate, writ or direction from any court
No court can compel him to show cause or defend his action
Absolute immunity is given to the President
The immunity extends to acts or omissions which may be incidental to, as well as to any act purporting to be done by the president
Even though the act is outside, or in contravention of, the constitution, the president is protected so long as the act is professed to be done in pursuance of the constitution
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the GOI or the Govt of State
Immunity is personal to the president Appropriate actions can be brought
against GOI He cannot be summoned to the court
Madhav Rao Scinida vs. UOI AIR 1971 SC 530 After independence Rulers of various States
were integrated with guarantee of payment of some amount known as privy purse along with 'gaddi' of State
After some time Order of 'derecognising' such Rulers passed by President
Validity of said Order challenged in Supreme Court
Petitioners contended that Order being violative of Articles 291 and 362 unconstitutional and void
It also violates Articles 19 (1) (f), 21 and 31 as deprive Rulers from Privy Purse
respondents contended petition on ground that power of derecognising the Rulers is sovereign power and can be exercised by him when he wants
Applicability of doctrine of paramountcy pleaded Supreme Court observed that President had no
power to withdraw recognition of persons as Ruler Doctrine of paramountcy empowers President to
recognize Ruler but cannot be used to validate illegal act of derecognisation of Rulers which affect rights of citizen
Right to receive privy purse is absolute right of Rulers and Rulers cannot be deprived from same
In present case right to receive privy purse taken away by Order passed by President it can be said that there is infringement of Articles 19 and 31 –
Supreme Court held, Order unconstitutional and void.
According to Art. 77(1), all executive actions of the CG to be expressed in the name of the President
Such orders cannot be interpreted as order of the president personally
It is on advise of the council of ministers No immunity to such orders under
art.361
Common cause, A registered society vs. UOI
AIR 1999 SC 2979
The case is related to ministry of oil & Gas Relating to permission to petrol outlets According to Articles 77 and 361 of Constitution of India Order
issued in name of President does not become Order of President passed by him personally
but it remains essentially Order of Ministers on whose advice President acts and passed that Order
by virtue of Article 77 (1) all executive actions of Government of India have to be expressed in name of President
Order passed by Ministers would be amenable to judicial scrutiny
authenticity, validity and correctness of such power can be examined by Court inspite of Order having been passed in name of President
immunity available to President under Article 361 cannot be extended to Orders passed in name of President under Article 77.
SC observed that As it is the order of the GOI, it is
subjected to judicial scrutiny Judicial review can be invoked Authenticity, validity and correctness of
the order can be examined
If the president appoints a disqualified person to a constitutional office, the discretion of the president to do so cannot be questioned because of Art.361
That would confer no immunity on the appointee
His qualification to hold the office can be challenged in writ of quo warranto
If the appointment is contrary to the constitutional provisions, it can be quashed
Kumar Padma Prasad vs. UOI AIR 1992 SC 1213 The appointment of Shri K.N.Srivastava
as a high court judge was challenged through a writ petition moved in the gauhati high court by a practising advocate
Shri K.N.Srivastava was a secretary (Law and Justice), Mizoram government
The Gauhati HC granted a stay on the warrant of appointment
Srivastava moved the SC against the HC order and moved a transfer petition of the writ petition from the HC to SC
Issue : whether Srivastava had held a judicial office for 10 years
Judicial office has not been defined in the constitution
For the purpose of Art.217(2)(a), according to court, holder of judicial office meansA person who exercises only judicial
functions, determines causes inter partes and renders decisions in a judicial capacity
He must belong to judicial service which as a class free from executive control
And is disciplined to hold the dignity, integrity and independence of judiciary
In view of the court, the expression ‘judicial office’ means an office which is a part of judicial service as defined under art.236(b)
Judicial service means a service consisting exclusively of persons intended to fill the post of DJ and other civil judicial posts inferior to the post of district judge
SC held that srivastava was not qualified to be appointed as a high court judge as he had held no judicial office in a judicial service
Proviso to art.361 (1)
Provided that the conduct of the president may be brought under review by any court, tribunal or body appointed or designated by either house of parliament for the investigation of a charge under art.61
361(2) No criminal proceedings whatsoever shall be instituted or continued against the president in any court during his term of office
361(3) : no process for the arrest or imprisonment of the president shall issue from any court during his term of office
Thus, no criminal proceedings for the acts done in his personal capacity
361(4) : No civil proceedings in which relief is claimed against the president, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity,
Whether before or after he entered upon his office as president
Until the expiration of two months next after notice in writing has been delivered to the president or left at his office stating the nature of proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and relief which he claims
In civil cases, in respect of his official acts, an absolute bar has been created against court action (Art.361(1)
In respect of his personal acts, there is only a partial bar in so far as a two months notice needs to be given to him prior to the institution of civil proceedings
Vice-President Art.63 : there shall be a VP 64 : The VP to be ex-officio Chairman of the
Council of states (Rajya Sabha)The VP shall be the ex-officio chairman of the council
of states and shall not hold any other office of profit;Provided that during any period when the VP acts as
president or discharges the functions of the president under art.65 he shall not perform the duties of the office of chairman of the council of states and shall not be entitled to any salary or allowance payable to the chairman of the council of states under art.97
U.S. – ex-officio Chairman of the Second Chamber
Is precluded from being a member of either house of parliament (Art.63, 64 and 66(2)
65: the VP to act as president or to discharge his functions during casual vacancies in the office, or during the absence, of president
(1) in the event of the occurrence of any vacancy in the office of the president by reason of his death, resignation or removal, or otherwise, the vp shall act as president until the date on which a new president elected in accordance with the provisions of this chapter to fill such vacancy enters upon his office
65(2) : when the president is unable to discharge his functions owing to absence, illness or any other cause, the VP shall discharge his functions until the date on which the president resumes his duties
The VP shall, during, and in respect of, the period while he is so acting as, or discharging the functions of, president, have all the powers and immunities of the president and be entitled to such emoluments, allowances and privileges as may be determined by the parliament by law and until provisions in that behalf is so made, such emoluments, allowances and privileges as are specified in the second schedule
Election of VP
66 (1) : the VP shall be elected by the members of an electoral college consisting of the members of both houses of parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot
66(2) : the VP shall not be a member of either house of parliament or of a house of the legislature of any state, and if a member of either house of parliament or of a house of the legislature of any state be elected VP , he shall be deemed to have vacated his seat in that house on the date on which he enters upon his office as VP
Eligibility for election as VP 66(3) : no person shall be eligible for
election of VP unless he(a) is a citizen of India(b) has completed the age of 35 yrs and(c) is qualified for the election as a member
of the council of states
66(4) : a person shall not be eligible for election as VP if he holds any office of profit under the GOI or the Govt of any state or under any local or other authority subject to the control of any of the said governments
Explanation: for the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the president or VP of the Union or the governor of any state or is a minister either for the union or for any state
Term of office of VP 67 : the VP shall hold office for a term of 5 yrs from
the date on which he enters upon his office(a ) a VP may, by writing under his hand addressed to
the president resign his office(b) a VP may be removed from his office by a resolution
of the council of states passed by a majority of all the then members of the council and agreed to by the house of the people; but no resolution for the purposes of this clause shall be moved unless at least 14 days notice has been given of the intention to move the resolution
(c) a VP shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office
In rajya sabha, there should be an absolute majority of the total membership (excluding those seats which are vacant) of the House supporting the resolution to remove the VP, a simple majority is sufficient in Lok Sabha
The VP can be removed on any ground and without enquiry
Time of holding election to fill vacancy in the office of VP and the term of office of person elected to fill casual vacancy
62(1) An election to fill a vacancy caused by the expiration of the term of office of VP shall be completed before the expiration of the term
(2) An election to fill a vacancy in the office of VP occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in nocase later than six months from, the date of occurrence of the vacancy, and the person elected to fill the vacancy shall, subject to the provisions of the article 67, he entitled to hold office for the full term of five years from the date on which he enters upon his office
Oath or affirmation by the VP
60 : Every VP and every person acting as president shall, before entering upon his office, make and subscribe before the President or some other person appointed on behalf of him,an oath or affirmation in the following form, that is to say -
“ I, so and so, do swear in the name of god/solemnly affirm that I will bear true faith, and allegiance to the constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter
97 : As chairman of Rajya Sabha, the VP is entitled to get such salary and allowances as may be fixed by Parliament by law, and until so fixed, as specified in the second schedule to the constitution
No salary as vice president
Discharge of president’s functions in other contingencies
70 : parliament may make such provision as it thinks fit for the discharge of the functions of the president in any contingency not provided for in this chapter
Parliament enacted President (Discharge of Functions) Act, 1969
President (Discharge of Functions) Act, 1969 It provides that when vacancies occur in
the offices of both president and the VP, the CJ of India or, in his absence, the senior most judge of the SC available, is to discharge the president’s functions until a new president or VP enters upon his office
Matters relating to or connected with the election of President or VP 71 (1) : all doubts and disputes arising out of or
in connection with the election of a president or VP shall be inquired into and decided by the SC whose decision shall be final
(2) : if the election of a person as president or VP is declared void by the SC, acts done by him in exercise and performance of the powers and duties of the office of president or VP, as the case may be, on or before the date of the decision of the Supreme court shall not be invalidated by reason of that declaration
N.B.Khare vs. Election Commission AIR 1957 SC 694
The SC held that it would not entertain any petition challenging the presidential election before the completion of the election process and declaration of the result
Reason being the entire election may be held up till after the expiry of the five years term which will involve a non-compliance with the mandatory provisions of art.62
(3) subject to the provisions of this constitution, parliament may by law regulate any matter relating to or connected with the election of a president or VP
The Presidential and Vice-Presidential Elections Act, 1952
The Presidential and Vice-Presidential Elections Act, 1952
The Act lays down that a candidate can be nominated when at least 10 voters propose him and ten voters second him and he deposits a sum of Rs.2500
It has nothing to do with the qualifications mentioned in Art.58 & 66
A petitioner must come within the four corners of the Act to have locus standi to challenge the presidential election and to be able to maintain the petition
Under section 14 of the presidential and vice presidential elections Act, an election can be called into question either by a candidate at such election or by 10 or more electors
Charan Lal Sahu vs. N. Sanjeeva Reddy Air 1978 SC 499
N.B.Khare vs. Election commission AIR 1958 SC 139
Supreme court held that a person who is neither a candidate nor an elector could not file a petition to challenge the presidential election
71(4) : the election of a person as president or VP shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him
In re Presidential Poll AIR 1974 SC 1682, the Supreme Court has ruled that the election of the President can be held when a State Assembly has been dissolved under Art. 356 and its members are unable to participate in the election
Art.71 has been substituted by the 39th amendment Act, 1975 and the forty fourth amendment Act, 1978
Council of ministers Art.74-75 74 & 75 deals with the composition and
status of the Council of Ministers in general words
The remaining matters left to the conventions
Importance of conventions was discussed in U.N.R.Rao vs. Indira Gandhi AIR 1971 SC 1002
SC held that art.75(3) must be interpreted to its own terms regardless of conventions that prevail in UK
If the words of the article are clear effect should be given to the words
As it is constitution not a general law, one has to keep in mind while interpreting the conventions prevalent at the time the constitution was framed
Council of ministers to aid and advise president 74(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
U.N.R. Rao vs. Indira Gandhi AIR 1971 SC 1002 the appellant contended that under the
Constitution as soon as the House of the People is dissolved under Article 85(2) of the Constitution the Council of Ministers, i.e., the Prime Minister and other Ministers, cease to hold office.
According to him this follows plainly from the wording of Article 75(3), which provides that "the Council of Ministers shall be collectively responsible to the House of the People".
How can the Council of Ministers be responsible to the House of the People when it has been dissolved under Article 85(2) ?
According to him no void in the carrying out of Government will be created because the President can exercise the Executive Power of the Union either directly or through officers subordinate in accordance with the Constitution as provided in Article 53(1) of the Constitution.
Supreme Court has refused to accept the contention of U.N.R.Rao that during the dissolution of the Lok Sabha, there need be no Council of Ministers and that the President can rule with the help of advisers
This argument was based on the hypothesis that when there is no Lok Sabha, the responsibility of the council of ministers to this house cannot be enforced and so there need be no Council of Ministers when there is no house
The SC rejected the argument that, in the context, the word “shall’ in Art.74(1) should be read as ‘may’
It is part of collective responsibility If it is only directory the president would
be able to rule with the aid of advisors till he is impeached
The moto of parliamentary form of government will die
No legal action for non-compliance of the provisions as he is immune from judicial scrutiny
Proviso Art.74(1) : Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration
74(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
Only sanction available is the political, i.e., impeachment
Non-justiciability of cabinet advice What is the scope of the provision in
Art.74(2) which bars the courts from embarking upon an inquiry as to whether any, and if so what, advice was tendered by the council of ministers to the president
Notings are also protected
Courts can compel production of the materials on which the decision of the council of ministers is based as such material does not form part of the advice
S.P.Gupta vs. UOI AIR 1982 SC 149 controversy in case revolves round
letter written by Law Minister of India to Chief Justices of various High Courts of country
letter contained instructions in form of request to convince Judges working in High Courts to be appointed in High Court of another State
advocates all around country filed several writ petition against letter
writ petition of advocates also challenged some of transfers of Judges and Chief Justices along with letter
all writ petitions transferred to Supreme Court for collective decision as cause of action in petition was same
issues
whether advocates can maintain petition as having valid grievance where letter neither written to them nor contained any matter related to them
whether power of president with respect to transfer Judges of High Court under Article 222 absolute or opinion of Chief Justice of India binding on him
any member of public having sufficient interest can maintain action for judicial redress for public arising from breach of public duty or from violation of provisions of Constitution
where legal wrong or legal injury caused to person or to determinate class of persons and if such persons did not challenge such injury any common citizen can approach Court for challenging such legal injury
any person has constitutional right to file petition in public interest where injury is to masses
Court will not insist on regular writ petition to be filed by public spirited individual espousing their cause and seeking relief to them
petition in such cases would be treated as public interest litigation under Article 32 and strict rule of procedure will not be allowed to defeat sense of justice
even letter written by common citizen will be treated as public interest litigation if desired so and contained valid cause of action
person approaching Court for public cause must act bonafide and not otherwise
transfer of Judges is question of policy question of policy matter entirely for President
to decide opinion of Chief Justice not binding on
President opinion of Chief Justice under Article 222 not
condition precedent for affecting transfer on part of President
petitioners could not prove alleged illegality of transfers
letter of Law Minister only in form of request and neither violate any constitutional right nor inflict public injury
SC held that no court is concerned with what advice was tendered by the minister to the president
The court is only concerned with the validity of the order and not with what happened in the inner councils
An order cannot be challenged on the ground that it is not in accordance with the advice rendered by the minister or that it is based on no advice
When the question relating to order is in the court, the council of ministers has to defend the order by disclosing the material which formed the basis of the act/order
The court will not inquire whether such material formed part of the advice to the president or what advice or what discussion took place
The court has to look into the material on the basis of which the requisite satisfaction is formed and whether it is relevant to the action taken
Material is not advice Privilege in respect of presenting
documents is not available under art.74(2) but under Sec.123 of IE Act
Section 123 : Evidence as to affairs of State : No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
It is also necessary for arriving at a proper interpretation of Section 123 to refer to Section 162 which says:
Section 162. Production of documents -- A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.
Doypack systems vs. UOI AIR 1988 SC 782 SC held that it is duty of this court to
prevent disclosure where art.74(2) is involved
The court has also ruled that ‘the notings of the official which lead to the cabinet note leading to the cabinet decision formed part of the advice tendered to the president
Cabinet papers also include papers brought into existence for the purpose of preparing submission to the cabinet
The courts are also barred from compelling president to act according to the cabinet advice
Appointment of PM
75(1) : the PM shall be appointed by the President and the other ministers shall be appointed by the president on the advice of the PM
President has to perform his discretion in appointment of PM without the advice of the council of ministers
But he has to follow conventions and few constitutional provisions
It is required that the appointee as PM should enjoy the confidence of the Lok Sabha
The council of ministers shall be collectively responsible to the Lok Sabha Art.75(3(
Britain system is followed There is no restriction that the PM should
be the member of Lok Sabha In 1966 Indira Gandhi, a member of Rajya
Sabha has been elected as PM but soon after that she became the member of Lok Sabha
It is inevitable to run stable to strong government the PM should be the member of Lok Sabha
Appointment of ministers A minister should always be a member
of house of parliament Even a non-member may be elected but
sooner than later he should be come member of house
A non-member cannot hold office for longer than six months without becoming member of either house
Art.88 : rights of ministers and attorney general as respects houses
Every minister and the attorney general of india shall have the right to speak in, and other wise to take part in the proceedings of, either house, any joint sitting of the houses, and any committee of parliament of which he may be named as a member, but shall not by virtue of this article be entitled to vote
Even for the appointment of PM, a non-member may be appointed and even a member SLA can be appointed
75(5) : a minister who for any period of six consecutive months is not a member of either house of parliament shall at the expiration of that period cease to be a minister
Harsharan Verma vs. UOI AIR 1987 SC 1969 The term minister in 75(5) includes PM Appointment of Shri Sitaram Kesari was
challenged through writ on the ground that he was not a member of either house of parliament
The petition was dismissed by reading art.75(5) and 88 together
S.P.Anand vs. H.D.Deve Gowda AIR 1997 SC 272 Appointment of H.D.Deve Gowda as PM was
challenged becausee he was not a member of either house of parliament
Sc held that ‘even if a person is not a member of the house, if he has support and confidence of the house, he can be chosen to head the council of ministers without violating the norms of democracy and the requirement of being accountable to the house would ensure the smooth functioning of the democratic process’
S.R.Chaudhari vs. state of punjab AIR 2001 SC 2707 The case arose in state of punjab under art.
164(4) similar to 75(5) Issue was ‘a person who is not a member of the
house of parliament is appointed as a minister. He resigns after six months, as required by Art. 75(5), as he fails to become a member of the house of parliament within six months
Can he be re-appointed as a member for another term of six months
Can a person be appointed repeatedly as a minister
SC held that the practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid even though it is not barred through any provision
Art.75(5) is an exception to the general rule that only members of parliament can be appointed as ministers
This exception is essentially required to be used to meet very extraordinary situation and must be strictly construed and sparingly used
So a non-member can be appointed as minister only once
B.R.Kapur vs. state of TN (2001) 7 SCC 231 In this case SC ruled that under
Art.75(5) & 164(4), a person who is not a member of the parliament/assembly can be appointed as a the PM or a minister only if he has the qualification for membership of parliament as prescribed in art.84 and 102
Ministerial tenure
75(4) : before a minister enters upon his office, the president shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the third schedule
75(2) : the ministers shall hold office during the pleasure of the president
75 (3): The council of ministers shall be collectively responsible to the Lok Sabha
75(6) : the salaries and allowances of ministers shall be such as parliament may from time to time by law determine and until parliament so determines shall be specified in second schedule
Working of the executive
President – a titular head PM Cabinet Collective responsibility Minister’s individual responsibility Minister’s responsibility for his
subordinates
President – a titular head
77: conduct of business of the GOI (1) : all executive action of the GOI shall be
expressed to be taken in the name of the president
(2) : orders and other instruments made and executed in the name of the president shall be authenticated in such manner as may be specified in rules to be made by the president, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the president
(3) : the president shall make rules for the more convenient transaction of the business of the GOI, and for the allocation among ministers of the said business
Even though 77(1) & (2) are not complied the order still can be interpreted as the authenticated order if it is made by the appropriate authority
Major E.G.Barsay vs. State of Bombay AIR 1961 SC 1762
An order issued by the Deputy secretary to the government on behalf of the central government was held valid
Under the prevention of corruption Act, a public servant can be prosecuted for certain criminal offences only after the central government gives its sanction for the purpose
In the instant case, the sanction was given in the name of the central government by its deputy secretary
It was not an authenticated order but one issued by the Deputy secretary in his own right
Although the order did not comply with Arts.77(1) and 77(2), nevertheless, it was held valid because the Deputy Secretary was competent to accord sanction in his own right
The order was made by the Deputy secretary on behalf of the central government in exercise of the power conferred on him under the rules of business
Executive power and executive action in the context mean the power and action of the executive
All orders made by the executive, whether administrative or legislative in nature, can be authenticated under Art.77(2)
Art.77(2) covers both executive orders and legislative orders
President’s satisfaction in executive orders doesn’t mean personal satisfaction
In the sense of constitution, it is satisfaction of the council of ministers
K.Anand Nambiar vs. Govt of Madras AIR 1966 SC 657
The supreme court ruled that in view of Art.77, president’s personal satisfaction is not essential for issuing orders for proclamation of emergency under Art.359(1) and suspend the fundamental rights
In the instant case, though the orders were issued in the name of president but were signed by an additional secretary of GOI
SC held that a properly authenticated order signed by the Additional secretary to the GOI issued under Art.359(1) could not be questioned on the ground that it was not an order made and executed by the president
President rajendra prasad Controversy in 1960 – ili foundation
stone 1967 – congress failed in certain states
– election of prime minister 1976 – president has no active role 42nd amendment 74(1) – shall 44th amendment proviso to 74 (1)
Reconsideration clause 74(1) proviso October 1997 IK gujral president –
president rule in up 1998 BJP govt recommendation –
president rule in Bihar
Duties of the PM as respects the furnishing of information to the president etc.,
78 : It shall be the duty of PM- (a) to communicate to the president all
decisions of the Council of ministers relating to the administration of affairs of the Union and proposals for legislation
Prime Minister – Key stone of the Constitution – Jennings
All roads in the constitution lead to the PM
John Morley – Keystone of the cabinet arch
He can compel the resignation of a minister and invoke the presidential power to dismiss an unwanted Minister
All ministers hold office at his discretion Principal spokesman of the cabinet He can obtain dissolution of the Lok Sabha Chairman of the cabinet and his
resignation amounts to resignation of all council of ministers
(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the president may call for; and
K.M.Sharma vs. Devi Lal AIR 1990 SC 528 Deputy Prime Minister – no post as such 1990 VP singh government appointed
Devi lal as Deputy Prime Minister Devi lal took oath mentioning himself as
the Deputy PM Question was raised through a writ
petition before the Supreme Court whether the oath taken by Devi Lal was valid
Court rejected the writ petition saying that an oath has two parts – (i) descriptive; (ii) substantial
So long as the substantial part of the oath is properly followed, a mere mistake or error in the descriptive part would not vitiate the oath
SC held that even though Devi lal described himself as a Deputy PM he is also just like other council of minsiters
Cabinet
Council of ministers consists ofCabinet ministerMinisters of states (independent)Deputy ministers (ministers of states)
PM will determine the composition of the cabinet
In the meetings of the cabinet, the deputy ministers and ministers of state will come and participate whenever the discussion is relating to their ministry only
Collective responsibility
75(3) and 78(c) 78(c) if the president so requires, to
submit for the consideration of the Council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council
Principle of collective responsibility may be regarded as fundamental to the working of the parliamentary government
It means that the council of ministers is responsible as a body for the general conduct of the affairs of the government
Rule ensures that the council of ministers would work as a team, as a unit, and as a body commands the confidence of the House, and that Cabinet’s decision are the joint decisions of all ministers
Decisions of cabinet is binding on council of ministers
Common cause, A registered society vs. UOI
AIR 1999 SC 2979
The case is related to ministry of oil & Gas
Relating to permission to petrol outlets
Relief sought (i) Pass an appropriate writ, order or orders
directing the Respondents to specifically declare as to when the Union of India will now bring before the Parliament an appropriately drafted Bill for enactment of legislation for the establishment of the institution of Lokpal, or a suitable alternative system of the nature of Ombudsman which is operating in a number of other countries, for checking and controlling corruption in public offices, inter alia, at the political and bureaucratic levels,
whether in the enactment of such legislation they will take in to consideration the suggestions that have emanated from the Colloquium recently organised under the auspices of Indian Institute of Public Administration with the participation of foreign and Indian experts for examining various aspects of the matter relating to establishment of Ombudsman institution in this country;
(ii) Pass an appropriate writ, order or orders directing that the institutions and organisations of the Comptroller and Auditor General of India, Chief Vigilance Commissioner, and the Central Bureau of Investigation should indicate to the Hon'ble Court the specific steps which they will take for effectively overcoming any inadequacies and weaknesses in the operations of these important institutions which presently hamper effective and efficacious check on prevalence of corrupt practices in the country and to curb corruption at all political and bureaucratic levels;
(iii) Pass an appropriate writ, order or orders appointing a Commission or Commissioner to urgently undertake comprehensive study of the present inadequacies in the Prevention of Corruption Act, 1947 for making specific recommendations to strengthen this enactment for achieving the objective of curbing and checking corruption at the political and bureaucratic levels in the country.
(iv) Pass an appropriate writ, order or orders directing the State Governments Respondents to indicate to the Hon'ble Court as to when they propose implementing the specific suggestions which have been made for strengthening and improvement of the functioning of the system of Lokayukta, including inter alia, the following:
a) To ensure expeditious establishment of the " institution of Lokayukta and Upa-Lokayukta in every State;
b) To achieve uniformity in the provisions of various Lokayukta and Upa-Lokayukta Acts; and
c) To confer constitutional status on the institution of Lokayukta.
According to Articles 77 and 361 of Constitution of India Order issued in name of President does not become Order of President passed by him personally
but it remains essentially Order of Ministers on whose advice President acts and passed that Order
by virtue of Article 77 (1) all executive actions of Government of India have to be expressed in name of President
Order passed by Ministers would be amenable to judicial scrutiny
authenticity, validity and correctness of such power can be examined by Court inspite of Order having been passed in name of President
immunity available to President under Article 361 cannot be extended to Orders passed in name of President under Article 77.
SC observed that as it is the order of the GOI, it is subjected to judicial scrutiny
Judicial review can be invoked Authenticity, validity and correctness of
the order can be examined
According to SC, collective responsibility means‘all members of a government are
unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet”
Attorney General vs. Jonathan Cape Ltd., [1976] QB 752
Crossman was a Cabinet Minister for nearly six years (1964-70)
He maintained a detailed dairy about the cabinet proceedings
After he ceased to be a minister, he began to collate his diaries with a view to their eventual publication
Crossman died in 1974
After his death, his dairies were due for publication
The Attorney General brought an action for injunction against Crossman’s executors for restraining them to publish the diaries
His contention was that the cabinet proceedings and cabinet papers being secret, these could not be publicly disclosed
The confidentiality of cabinet papers and proceedings emanate from ‘the convention of joint cabinet responsibility’ ‘whereby any policy decision reached by the cabinet has to be supported thereafter by all members of the cabinet whether they approve of it or not , unless they feel obliged to resign’
In India also, the principle of collective responsibility lays down that the deliberations of the Cabinet are kept secret and confidential because preservation of a united front will be difficult if disclosure is allowed
The cabinet ministers are free to raise their voice in in-house discussion
A cabinet minister may lose his office if he reveals the details of a cabinet discussion to the press
The secrecy may at times be released partially when a minister resigns his office
He is entitled to make a statement in parliament so that he may reveal the reason for his resignation
In Jonathan Cape case, the court ruled that since the requirement of secrecy is must in the matters of cabinet affairs, the publication of which can be restrained by the court when this is clearly necessary in the public interest
Minister’s Individual Responsibility 77(3) : envisages distribution of
business among several ministers Most of the decisions are taken by
officials in the department under the minister according to the Rules of Business
Each minister is personally accountable for his actions – individual responsibility
A.Sanjeevi vs. state of madras AIR 1970 SC 1102 Appellants are private stage carriage operators in the
state of TN They have been operating in various routes in that
State. Some of those routes are proposed to be nationalised. A draft scheme of nationalisation has-been prepared
and published under Section 68 (C) of the Motor Vehicles Act (Central Act IV of 1939)
The validity of the draft scheme was challenged by the appellants before the High Court of Madras under Article 226 of the Constitution.
Incidentally the validity of some of the provisions of the amending Act XVIII of 1968 (Madras Act) also came to be challenged in those petitions.
A division bench of the Madras High Court consisting of Anantanarayanan C.J. and Natesan J. have dismissed those petitions. As against the decision of the High Court these appeals have been brought on the strength of the certificates issued by the High Court.
The ground on which it is challenged is that the opinion requisite under Section 68(C) of the Act was not formed by the State Government but by the Secretary to the government in the Industries, Labour and Housing Department, acting in pursuance of the powers conferred on him under Rule 23(A) of the Madras Government Business Rules
The contention of the appellants is that the said rule is ultra vires the provisions of the Constitution. There is no dispute that if the rule in question is valid, the challenge directed against the draft scheme must fail. The High Court has opined that that rule is, a valid rule. It is the correctness of that conclusion that is primarily in issue in these appeals.
3. Section 68(C) prescribes :Where any State transport undertaking is of opinion that
for the purpose of providing an efficient, adequate, economical and properly co-ordinate road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area Or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct.
This section requires that the State transport undertaking must form the opinion contemplated therein.
In the State of Tamil Nadu, the State transport undertaking is a department of the State government.
Therefore the necessary opinion should have been formed by the State government.
It was urged on behalf of the appellants that under our Constitutional set up, the requisite opinion could have been formed either by the Council of Ministers or the Minister to whom the business in question had been allocated under the 'Rules'.
The same could not have been formed by the Secretary who is merely an official and that too by the Secretary who is not the head of the department to which the functions under the Act had been assigned.
The contentions advanced on behalf of the appellants proceed thus : The executive power of the State vests in the Governor (Article 154).
In the exercise of that power he has to be aided and advised by the Council of Ministers with the Chief Minister at the head (Article 163(1)) but the Governor can make rules for more convenient transaction of the business of the government of the State arid for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion, (Article 166(3)).
A Minister can only deal with the business that has been allocated to him by the Governor under 'the Rules'.
He is not competent to deal with any other business. Motor Vehicles Act has been allocated to the Home Department.
Mr. Karunanidhi, the Transport Minister was not in-charge of the Home Department.
Therefore his department could not have dealt with functions arising under the Act.
Further the Governor could into have allocated any business to a Secretary. Hence in making Rule 23(A), the Governor exceeded the powers conferred on him under Article 166(3).
The SC held in the present appeal where challenging scheme of nationalisation of various routes of State has been filed that where functions entrusted to Minister are performed by official employed in Minister's department there is in law no delegation because Constitutionally act or decision of official is that of Minister
SC also held that ecretary validly authorised under Rule 23-A to take decision under Section 68 C for nationalisation scheme.
In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure.
The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the government.
When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the government. It is always open to a Minister to call for any file in his ministry and pass ordeRs.
He may also issue directions to the officers in his ministry regarding the disposal of government business generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the government. These officers are the limbs of the government and not its delegates.
Each minister is personally liable and collectively responsible for his actions
A vote of no-confidence against one minister may be treated as a vote of non-confidence against the entire council of ministers
Krishna menon’s resignation from the ministry of defence because of the debacle of the Indian arms in the face of the Chinese aggression in 1962
Though it was due to the late decision making of the government, menon was held responsible
President venkataraman paid tribute to the great personality by mentioning that his efforts resulted in the success of war in 1965 and 71
Krishna menon died in 1974
Misfeasance in office A tort of misfeasance in public office Malicious abuse of power, deliberate
maladministration and unlawful acts causing injury to a person
Common clause (I), the court held that minister is responsible for misfeasance in office
Common cause (II), the court held that minister is not responsible as malicious intention is not there so the order was only quashed by mentioning that it leads to unlawfulness
Minister’s responsibility for his subordinates Principle of vicarious liability Chagla report in Madhura affair The principal finance secretary
negotiated the purchase of a large number of shares from an individual industrialist for the LIC
Transaction was held against to rules of business
Accordin to chaglaMinister is responsible for the acts of his
servantsServants has to work according to the
guidelines and the rules set for them
Interaction between executive and parliament Minister must be a member of house of
parliament Ministers stay in office until they enjoy support
from Lok sabha Both houses of parliament discuss and criticize
in all opportunities the govt policy Executive cannot ignore and by-pass
parliament becausee the constitution enjoins that not more than six months should pass between the end of one session and the beginning of another session of parliament
Many executive matters are having involvement of parliamentFixation of emoluments, allowances and
privilegesImpeachmentElectoral college
Art.77(1) and (2) Provides that all executive action of the Govt
of India shall be expressed to be taken in the name of the president, and orders and other instruments made and executed in the name of the president shall be authenticated in such manner as may be specified in the rules to be made by the President
Validity of an order or instrument authenticated shall not be called in question on the ground of President’s executive power
No defintion in Indian Constitution for – President’s executive power
Ram Jawaya Kapur vs. Punjab (1955) 2 SCR 225
Nature of executive power :
Contention : the executive power of the state did not extend to carrying on the trade of printing, publishing and selling text-books for schools, unless such trade was authorized by law
Judgment:Mukherjee CJ., -
○ “it may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away
Indian constitution is modelled on the British Parliamentary system
Executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law through the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the state
If in pursuance of a policy, the Ministry decided to undertake a trade, then, the estimated expenditure required for such trade, would be shown in the Annual Financial statement, followed by an Appropriation Act
So long as the trade was carried on in pursuance of the Ministry’s policy, with the tacit support of the majority in the legislature, no objection that it was not sanctioned by a law, could possibly be raised
Further adding, Justice Mukherjee urgedEspecially when encroaching upon the
private rights, specific legislation may indeed be necessary if the Govt. require certain powers in addition to what they undertake otherthan ordinary course of trade
Functions and powers of executive Judicial functions Legislative functions Executive functions
Judicial functions
Appointment of judges of SC and HCs Disqualification of a member of house of
parliament Power of pardon
72 (1) : president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by court martial
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends
(c) in all cases where the sentence is a sentence of death
(2) Nothing in sub clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed forces of the Union to suspend, remit or commute a sentence passed by a court martial
(3) Nothing in sub-clause (C) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a state under any law for the time being in force
criticisms
Does the president exercise any personal discretion in the matter or does he act merely as a constitutional head
Should he give a personal hearing to the convicted or his lawyer before disposing of the matter
Is the power to pardon subject to any norms eg., art.14
Is the exercise of this power subject to judicial review
Maru ram vs. UOI AIR 1980 SC 2147
Advice of council of ministers
Kuljeet Singh vs. Lt., Governor AIR 1981 SC 2239
Questioned regarding to norms and standards for granting pardon
Kehar Singh vs. UOI AIR 1989 SC 653 Right to hearing is subject to president’s
discretion No need of specific guidelines Indira Gandhi assasination To what areas does the president’s
power to scrutinize evidence extend in exercising his power to pardon?
President can examine the evidences
G.Krishna Goud vs. state of AP (1976) 1 SCC 157 No judicial review
Legislative functions
Participation of the executive in legislative process
Power of rule-making under the constitution
Power to proclaim an emergency Power to make ordinances
participation
Convene and prorogue parliament Dissolve loksabha Presentation of bills to parliament President’s assent for conversion of bill
into act Art.3 Art.117(1) : Money bill Art.117(3) : Consolidated fund of india Art.274 : tax affecting state interest
Rule making 77(2) : authentication or orders and
instruments made and executed in the name of president
77(3) : rules for convenient transaction of the govt’s business and allocation of jobs to the ministers
148(5) : conditions of services etc., of Audit and accounts department
318 : Chairman and members of the union and joint Public service commission
98(3) : secretariat and staff of house of parliament 146(1) : consultation with UPSC regarding
officials of the SC 101(2) : dual membership of parliament and state
legislature 118(3) : procedure to be followed at the joint
sittings of the two houses of parliament 309 : regulating the requirements and conditions
of service of persons appointed to services and posts in connection with the affairs of the Union
Declaration of emergency
Art.123 Power of president to promulgate ordinances during recess of parliament (1) if any time, except when both houses
of parliament are in session, the president is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinance as the circumstances appear to him to require
(2) : an ordinance promulgated under this article shall have the same force and effect as an Act of parliament, but every such ordinance-(a) shall be laid before both houses of parliament
and shall cease to operate at the expiration of six weeks from the reassembly of parliament, or, if before the expiration of that period resolution disapproving it are passed by both houses of parliament, upon the passing of the second of those resolutions and
(b) : may be withdrawn at any time by the President
Explanation : where the Houses of parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those date for the purposes of this clause
(3) if and so far as an ordinance under this article makes any provision which parliament would not under this constitution be competent to enact, it shall be void
Ordinance making power
In extraordinary circumstances, where law is needed urgently president has power to make ordinances
Art.123 – (1) both houses of parliament are not in session
(2) he is satisfied that circumstances exist which render it necessary for him to take immediate action
123(4) : 38th amendment : making satisfaction of the President to issue an ordinance is non-justiciable
44th amendment : it was removed
A.K.Roy vs. UOI AIR 1982 SC 710 National Security Ordinance, 1980 ground to challenge is malafide
intention, corruption, bribery
T.Venkata Reddy vs. state of AP (part time village officers) and Nagaraj vs. state of AP :
No judicial review against executive’s action
Bommai case
Proclamation under Art.356 for failure of constitutional machinery in state is subjected to judicial review only under malafides or extraneous and irrelevant grounds
RC cooper vs. UOI AIR 1970 SC564 Banking Companies (Acquisition and
Transfer of Undertaking) Ordianance, 1969
President’s satisfaction is subjective
Venkata reddy vs. state of AP AIR 1985 SC 724 Ordinance won’t become void ab intio
when an Act in support of this was not passed
Executive actions
76(1) : power to appoint various high officials like attorney general
148(1) : comptroller and attorney general
155 : state governor 315-323 : member of UPSC 324(2) : election commissioners
Inter state council: 263 Finance commission : 280 Commission for ST : 339(1) Backward classes : 340(1) Official language commission : 344(1) Power to enter into contracts 299 Issue directions to states in certain
circumstances 256, 257, 339(2)
Attorney general of india 76(1) : president shall appoint a person who is
qualified to be appointed a SC Judge to be the Attorney-General for India
(2) : it shall be the duty of the Attorney-general to give advice to the GOI upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the president, and to discharge the functions conferred on him by or under this constitution or any other law for the time being inforce
(3) : in the performance of his duties the Attorney-general shall have right to audience inall courts in the territory of india
(4) : the attorney-general shall hold office during the pleasure of the president, and shall receive such remuneration as the president may determine
State Executive
