POWERS AND FUNCTIONS OF THE PRESIDENT

UNDER THE CONSTITUTION

A DISSERTATION SUBMITTED TO AMITY UNIVERSITY IN PARTIAL

FULFILLMENT OF THE AWARD OF DEGREE OF MASTERS IN LAW (LL.M)

SUBMITTED BY:

HARISH.G A0342614014

AMITY INSTITUTE OF ADVANCED LEGAL STUDIES AMITY UNIVERSITY, SECTOR 125,

UTTAR PRADESH

CONTENTS

I. PRESIDENT OF INDIA AN OUTLINE Background Significance

II. ELIGIBILITY, ELECTION AND TERM OF OFFICE Election, manner of election, term of office and qualification Conditions of Presidents office

III. RESIGNATION, REMOVAL AND IMPEACHMENT PROCEDURES Procedure for resignation and removal of the President Procedure for impeachment of the President

IV. POWERS, RIGHTS AND FUNCTIONS OF THE PRESIDENT Right to address and convey messages to Houses Power to appoint various posts like Attorney General, Chairman and members of

Public Service Commission, Chief Commissioner, Chief Justice and other Judges of

Supreme Court and High Court, Comptroller and Auditor-General, Governors of

States, Lieutenant Governors and etc.

Power to appoint Prime Minister and the Council of Ministers Power to assent of Bills, amending the Constitution etc., Power to promulgate Ordinances Power to issue Proclamation of Emergency Power to grant pardons etc. and to suspend, remit or commute sentences Power to summon, prorogue and dissolve Parliament Immunity of the President from Court proceedings

V. COMPARATIVE ANALYSIS Constitution of United States of America Constitution of United Kingdom

VI. CONCLUSION

CHAPTER 1

PRESIDENT OF INDIA AN OUTLINE

1. INTRODUCTION

On the 15th August 1947, the renaissance of India began with Pandit Jawaharlal Nehru

heralding the birth of the nation. He gave the grand vision of the independent India effectively

emerging out of the shackles of the empire. He envisioned India free from the stratification of

class, caste, creed, religion and gender inequality. The battle continues, as the process of

reinventing the social and political ethos in the globalized context keeps evolving and the nation

continues its journey of self-discovery.

India is a federal state with unitary spirit; the configuration of Indian democracy is

erected on the structure of its numerous diversities - linguistic, social-cultural, religious,

geographical etc. To value India, one must be part of the palpable vibrancy of its diversity. The

head of this largest democratic republic of the world, the President of India, is to be both

objective and impartial, keeping with the secular fabric of the nation. The office of the President

also demands to uphold the Constitution and take care of the integrity and dignity of the spirit

and ethos of democracy.

The head of the Indian State, the President of India is a significant Constitutional post.

Occupants of this post, however, remain largely outside the public gaze with their role assuming

great importance during periods of crises and national debate. Unfortunately the knowledge that

most students and Indians have about their Presidents remains sketchy at its best. This is largely

because, unlike the Prime Minister, the President is not elected by direct popular mandate.

Instead our head of State is brought into power through electoral colleges consisting of

legislators from the centre and States.

2. BACKGROUND

The President is the Head of the Executive of the State. This is not a new concept to

India. In ancient times, citizens regarded the King as a Head of the State and all the executive

actions were taken in Kings name. This system can be found ages ago from now and it is

ubiquitous in India as the President is the Head of the nation/state as all the executive actions are

taken in his name.

In Presidential form of Government (e.g., that of the United States of America), the

President is the real executive, he is also the head of the State and head of the Executive whereas

in Parliamentary form of Government (e.g., that of United Kingdom and India), the President is

nominal executive and the cabinet is the real executive.

3. MEANING OF THE TERM PRESIDENT

President is a title held by many leaders of various organizations or universities and even

the head of the State in few countries is called as President. The expression President is derived

from the Latin term Prae which means before and Sedere meaning to sit. Initially this term

was used and referred to the presiding officer of a ceremony or a meeting, but today it is most

commonly referred to an official with executive powers1.

4. HISTORY OF THE PRESIDENT

The word President prima facie became popular in the United States of America, now

we can see it in quite a lot of Republican countries but in 1789, for the first time, the United

States of America formed a post of President who will be the Head of the State and slowly but

surely this was accepted by the people in rem. In addition to this, the year 1848 marked its

presence as the first European President in France and first South African President in Liberia

came into being. Another major development took place in the year 1912 wherein the first Asian

President in China took place and now the present situation is that, most of the countries have

their own President.

In India, the President is regarded as the first citizen as he is the Head of the State and he

holds the utmost position enshrined in the Constitution.

5. ROLE OF THE PRESIDENT

The role of a President differs drastically according to the nature of the political structure,

a Presidents power can move towards those of an imperial ruler only in an autocracy, that is, a

system, that so values the authority of Government that suppresses the representation of

particular interests by competing political parties and pressure groups. By contrast, a President is

almost a bystander in a system of Government that so values the representation of particular

demands that it provides hardly any institution to make collective decisions.

Making the authority of Government responsive to popular demands began in the 17th

century in England, a century later on the continent of Europe with the revolution of French. In

proportional standpoint the American structure stands out because it capitalizes on politics. The

founding fathers depicted the American system of governance as a system of checks and

balances2.

6. PROVISIONS RELATING TO STATUS OF PRESIDENT UNDER CONSTITUTION OF INDIA

Articles 52 to 78 of the Constitution of India deal with the Central Executive. The

President is the Head of the State and the Formal Executive, all the Executive action at the

Centre is expressed to be taken in his name.

Article 53(1) of Constitution of India says: The executive power of the Union shall

be vested in the President and shall be exercised by him directly or through officers

subordinate to him in accordance with this Constitution.

The President of India unlike many other countries is not just a Ceremonial Head of the

State, though he acts based on the aid and advice of the Council of Ministers the President can

take decisions based on his own convictions (i.e., discretionary powers) if the situation prompts

him to do so. The President is also vested with numerous VETO powers over the bills present in

the Parliament and can even summon the Prime Minister for explanation on certain matters. The

powers of President can be generally classified into six different types:

i. Legislative; ii. Executive/Appointment Powers; iii. Judicial Powers; iv. Financial Powers; v. Pardoning Powers; and vi. Emergency Powers.

All the supra powers of the President of India shall be discussed in detail in the ensuing

chapters.

REFERENCES

1. Subodh.S.Patil, Advocate, Supreme Court of India, in his article STATUS OF PRESIDENT UNDER CONSTITUTION: PROBLEMS AND PERSPECTIVES.

2. Jagdish Swarups Constitution of India by Dr. L.M. Singhvi, Revised by G.P. Mathur, (3rd Ed., Vol.2) page. 1941

CHAPTER 2

ELIGIBILITY, ELECTION AND TERM OF OFFICE

In the preamble to the Constitution, India is declared to be a Sovereign, Socialist,

Secular, democratic, Republic. Being a republic, there can be no hereditary monarch as the head

of the State in India, hence the institution of the President.

The President is elected not directly by the people, but by the method of indirect election.

The constitution-makers were faced with the question whether the President should be elected

directly by the people or not. Ultimately, they chose the indirect elective procedure so as to

emphasize the ministerial character of the executive that the effective power resides in the

Ministry and not in the President as such.

It would have been anomalous to have the President elected by adult suffrage directly by

the people and not to give him any real and substantive power. Also the method of direct election

would have been very costly and energy consuming. There was also the fear that a directly

elected President may emerge, in course of time, as a centre of power in his own right.

Therefore, the framers of the Constitution thought that it would be adequate to have the President

elected indirectly. On the other hand, the framers of the Constitution did not want the President

to be elected merely by Parliament alone as that would have been a very narrow basis and

Parliament being dominated by one political party would have invariably chosen a candidate

from that party1. In that case the President would not have commanded national consensus by an

electoral college consisting of the elected members of both Houses of Parliament and of the State

Legislative Assemblies (originally, the elected members of the Legislative Assemblies of Union

Territories were not included in the electoral college to elect the President. In S.K.Singh v/s.

V.V.Giri, AIR 1970 SC 2097, the Supreme Court had ruled that the term State in Article 54 did

not include Union Territories. After the above pronouncement, the Constitution (Seventieth

Amendment) Act, 1992, added an explanation to Article 54 saying that the term State in

Articles 54 and 55 includes the National Capital Territory of Delhi and the Union Territory of

Puducherry. Thus, the elected members of the Legislative Assemblies of Delhi and Puducherry

now have become a part of the electoral college), in accordance with the system of proportional

representation by means of single transferable vote by secret ballot (the system of proportional

representation ensures that the successful candidate is returned by an absolute majority of votes.

If there are more candidates than two, it may be that by simple majority rule, the person getting

less than 51 percent of votes cast in the election may be declared elected; whereas on the

principle of proportional representation by the system of transferring votes, a candidate is finally

declared elected by an absolute majority: IV Constitutional Assembly Debates, 880.

I. ELIGIBILITY FOR THE OFFICE OF THE PRESIDENT OF INDIA

Article 58 of the Constitution of India sets the code and core qualifications that one must

meet to be eligible to the office of the President.

A candidate for the Presidents office should be a citizen of India of at least 35 years of age and qualified to be elected as member of the Lok Sabha [Article 58(1)];

He should not be holding any office of profit under the Central or State Government or under any local or other authority subject to the control of any of these governments. In

order to be an office of profit, the office must carry various pecuniary benefits or must be

capable of yielding pecuniary benefits (Purno Agitok Sangma v/s Pranab Mujherjee, AIR

2013 SC 372 : (2013) 2 SCC 319; Gajanan Samadhan Lande v/s Sanjay Shamrao

Dhotre, AIR 2012 SC 486 : (2012) 2 SCC 64.

The President shall not be a member of the either of House of Parliament or of a House of the Legislature of any State [Article 59(1)].

A person who is or has been the President is eligible for re-election to that office if he fulfills the necessary conditions for this purpose.

II. ELECTION TO THE OFFICE OF PRESIDENT OF INDIA

Every elected member of the Legislative Assembly of a State shall have as many votes as

there are multiples of 1000 in the quotient obtained by dividing the population of the State by the

total number of the elected members of Assembly.

If by this division the remainder is 500 or more it will be counted as one and the vote of each

member is increased by one. Thus the number of votes which a Member of Legislative Assembly

is entitled to cast in the Presidential election is based on the ratio of population of the State.

The number of votes which each elected member of Parliament is entitled to cast shall be

obtained by dividing the total number of votes of the Legislative Assemblies of all the States

obtained under the above formula by the total number of the elected members of both Houses of

Parliament. If by this division the remainder exceeds one-half it will be counted as one. This

formula secures parity of votes between the members of Parliament and of the Legislative

Assemblies of the States.

The illustration given below will make the above formula clear2. Thus suppose the

population of Bombay is 208,49,840. The total number of elected members of the Bombay

Legislative Assembly is 208 (one member representing one lakh of population). Now to obtain

the number of votes which every member of a Legislative Assembly is entitled to cast at the

Presidential election is to divide 208,49,840 (population of Bombay) by 208 (total number of

elected members of the State) and then to divide the quotient by 1000, i.e. = 208,49,840208

1000 = 100,2391000

= 100 (rejecting the remainder 239 being less than 500).

Thus each member of Bombay Legislative Assembly (MLA) will get 100 votes and the

total votes cast by Bombay Legislative Assembly would be: - 100 x 28 = 20,800.

Now suppose the total number of votes elected Members of Legislative Assemblies of all

States in accordance with the above calculation is 74,940 and the total of elected member of both

the Houses of Parliament is 750. The number of votes each member of Parliament (MP) is

entitled to cast would be 74,940750

= 99 2325 (since the fraction 2325 exceeds one-half it will be counted as one), and will be added to the total numbers, i.e. 99 + 1 = 100.

MODE OF VOTING: Under the Constitution, the election of the President must be held

in accordance with the system of proportional representation by means of the single transferable

vote. The system adopted for voting is secret ballot. The voting system works in the following

manner:

Let us suppose that there are 4 candidates A, B, C and D. The total number of valid votes

1500. A candidate must secure at least 7,501 first preference votes that is, more than half the

valid votes to be declared elected. In the count A, B, C and D have polled as follows:

A 5250

B 4800

C 2700 Total 15,000

D 2250

Here no candidate has secured a minimum of 7501 votes. In this case D having obtained

the least number of votes would be the first to be eliminated and the second preference votes

recorded in his favor will be transferred to the remaining candidates A, B and C. suppose that the

second preference votes recorded in the votes of D are as follows: - A 300, B 1050 and

C 900. These would be transferred and added to the first preference votes in favor of A, B and

C as follows:

A 5250 + 300 = 5550

B 4800 + 1050 = 5850

C 2700 + 900 = 3600

Even in the second count no candidate could secure a minimum of 7501. Here C having

obtained the least number of votes is eliminated and the third preference votes recorded in his

favor will once again be transferred to A and B. Suppose the third preference votes on the ballot

paper recorded in favor of A and B are 1700 and 1900 respectively. The result of this second

transfer would be as follows:

A 5550 + 1700 = 7250

B 5850 + 1900 = 7750

In this illustration, B having obtained the maximum votes, that is, more than half of the

valid votes, will be a successful candidate though he had secured fewer first preference votes

than A.3 This process will be repeated again and again till a candidate secures more than half the

valid votes.

Until the relevant figures for the first census taken after the year 20264 have been

published the reference to the last preceding census be construed as a reference to the 1971

census. The expression population in this Article means the population as ascertained at the

previous census that is 1971 census.

PROCESS OF FILING NOMINATIONS: In the case of Presidential Elections,

nomination should be subscribed by at least 50 electors as proposers and at least 50 more

seconding the nomination

SECURITY DEPOSIT: The amount of security deposit for contesting Presidential

election is Rs. 15,000/- which the candidate has to deposit in the Reserve Bank of India. The

security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes

polled.

THE PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS ACT, 1952: The

Parliament has enacted the Presidential and Vice-Presidential Elections Act, 1952 to carry out

the purposes of Article 71(1) of the Constitution of India. The Act of 1952 and the Rules framed

thereunder regulate all matters relating to or connected with the election to the offices of the

President and Vice-President of India. The Act of 1952 was amended in 1974 and 1997 to make

certain changes therein in the light of the experience gained during the elections held earlier.

Similarly, the Presidential and Vice-Presidential Election Rules, 1952 were also revised. The

main requirements of the Act are:

i. A nomination paper for election to the office of President of India should be completed in the prescribed form, subscribed by the candidates as assenting to the

nomination and also by at least fifty electors as proposers and at least fifty

electors as seconders. Before 1997, the number of proposers and seconders

required was only ten each. The requirement was held to be in order because

Article 58 provided only the qualification for eligibility and not the requirements

for a valid nomination (Charan Lal Sahu v/s. N. Sanjeeva Reddy, AIR 1978 SC

499).

ii. Each nomination paper should be accompanied by a certified copy of the entry relating to the candidate in the electoral roll for the Parliamentary constituency in

which the candidate is registered as an elector.

WHEN TO HOLD PRESIDENTIAL ELECTIONS: Elections to the Presidents office

must be held before the expiry of the tenure of the President in office [Article 62(1)]. If the office

falls vacant by death, resignation or removal or otherwise, then election to fill the vacancy

should be held within six months from the date of the occurring of the vacancy. The person so

elected as the President is entitled to remain in office for the full term of five years from the date

he assumes charge of his office [Article 62(2)].

DISPUTES CONCERNING PRESIDENTIAL ELECTIONS: All doubts and disputes

arising in connection with the election of the President are to be decided by the Supreme Court

whose decision is final [Article 71(1)]. Under section 14 of the Presidential and Vice-Presidential

Elections Act, 1952, an election can be called into question either by a candidate at such election

or by 10 or more electors. The Supreme Court has therefore held that a person who is neither a

candidate nor an elector could not file a petition to challenge the Presidential election5.

A petitioner must come within the four corners of the Act to have locus standi to

challenge the Presidential elections and to be able to maintain the petition6.

The facts of the case of P.A.Sangma v/s. Pranab Mukherjee [Election Petition no.1 of

2012], the election to the office of President were notified on 16th June 2012, Sangma and

Mukherjee filed nominations on 28th June. The date of poll was 19th July and counting took place

on 22nd July 2012. Mukherjee won 7,13,763 votes to Sangmas 3,15,987. P.A.Sangmas petition

challenged the election of Pranab Mukherjee as President on the grounds that he had held an

office of profit on the day he filed nomination and the post of Leader of the Lok Sabha. The

decision was in a 3-2 majority ruling, the Chief Justice of India Altamash Kabir (as he then was)

said: The office of Chairman of the Indian Statistical Institute, Kolkata did not provide for any

of the amenities nor could it yield any profit or pecuniary gain. The constitutional bench of

Supreme Court held that the instant petition was not maintainable and also held that no further

enquiry was necessary as the post of Indian Statistical Institute. Kolkata was purely an honorary

post. Senior Advocate Ram Jethmalani argued the matter for P.A.Sangma while Harish Salve

appeared for Pranab Mukherjee and Attorney General G.E.Vahanvati assisted the Court under

relevant Supreme Court rules and supported Mukherjees version.

OTHER CONDITIONS OF THE PRESIDENTS OFFICE: Article 60 of

Constitution says: 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 Chief Justice of India, or in his absence, the senior most Judge of the Supreme

Court available, an oath or affirmation in the following form, that is to say

"I, A.B., do

that I will faith fully 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.

III. TERM OF OFFICE OF THE PRESIDENT OF INDIA

The normal tenure of the President is five years from the date on which he enters upon

his office [Article 56(1)] but he continues to hold office even thereafter till his successor enters

upon his office [Article 56(1)(c)].

REFERENCES

1. IV Constitutional Assembly Debates, 713, 733-736; AUSTIN, The Indian Constitution, 121 (1966)

2. Illustration is given by Drafting Committee. Draft Constitution of India, p.17 3. The Hindustan Times, 1969

4. Substituted by the Constitution (84th Amendment) Act, 2001 5. N.B.Khare v/s. Election Commission, AIR 1958 SC 139 : 1958 SCR 648 6. Charan Lal Sahu v/s. N. Sanjeeva Reddy, AIR 1978 SC 499 : (1978) 2 SCC 500

CHAPTER 3

RESIGNATION, REMOVAL AND IMPEACHMENT

PROCEDURES

I. PROCEDURE FOR RESIGNATION AND REMOVAL OF THE PRESIDENT: The President of India may be removed much before the expiration of his term in either of two

ways:

i) By resignation in writing under his hand addressed to the Vice-President of India; and ii) By removal for violation of the Constitution by the process of impeachment. The only

ground for impeachment specified in Article 61(1) of Constitution of India is

violation of the constitution.

II. PROCEDURE OF IMPEACHMENT OF THE PRESIDENT: 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 enshrined in Article 56(1)(b) and Article 61(1) of the Constitution of

India. The procedure for impeachment is as follows:

i) For impeachment, the charge against him may be preferred by either House of Parliament [Article 61(1)];

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 fourteen days written notice

signed by not less than 1 4 of the total number of members of the House [Article 61(2)(a)]. The resolution must be passed by a majority of not less than 2 3 of the total membership of the House [Article 61(2)(b)];

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

other agency as the House may direct. The President has the right to appear and be

represented at such investigation [Article 61(3)];

iv) If after investigation, the House passes a resolution by a majority of not less than 2 3 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 [Article 61(4)].

There is however only a remote possibility of this provision being invoked because the

President acts on the advice of his Ministers who are responsible to parliament. So long as he

acts in this manner, the majority in parliament need not invoke the provision regarding

impeachment as it can easily remove the Council of ministers. Nevertheless, the provision is

salutary. The power to impeach might possibly be invoked in the event of the President acting

independently of, or contrary to ministerial advice or for treason, bribery or other high crimes or

misdemeanors. Impeachment is a political instrument; what constitutes violation of the

Constitution is a matter to be decided by the House which tries the charge and the House is

essentially a political organ. There is no difficulty in the House interpreting the phrase violation

of the Constitution in a wider sense and regard a violation of the conventions, usages and spirit

of the Constitution as violation of the Constitution. When forms are maintained and the spirit is

sapped away the Constitution is violated1.

REFERENCES

1. B.C.Das, Impeachment of Indias President: A Study of the Procedure, V JCPS 245 (1971)

CHAPTER 4

POWERS, RIGHTS AND FUNCTIONS OF THE

PRESIDENT

PRESIDENT - A TITULAR HEAD

The supreme command of the defence forces of the Union is vested in the President but

the exercise of the supreme command is to be regulated by law [Article 53(2)]. The President is

the formal head of the legislative, executive and the judiciary and as stated supra he is also the

Commander-in-Chief of the Indian Armed Forces. The President is must in the Constitutional

scheme and structure of India. There is no exception to this rule. Therefore, the operation of the

constitutional scheme or structure cannot be envisaged even for a short while without a President

of India being in office.

The powers and functions of the President of India are colossal. Yet he is intended to

stand in relation to the Union administration substantially in the same position as does the King

under the English Constitution. He is the nominal or constitutional head of the government. The

Supreme Court has consistently taken the view that the powers of the President are similar to the

powers of the Crown under the British Parliamentary system.

The executive power primarily means the execution of the laws enacted by the

legislature but the business of the Executive in a modern state is not as simple as it was in the

days of Aristotle. Owing to the manifold expansion of the functions of the state, all residuary

functions have practically passed into the hands of the Executive. The executive power may

therefore be shortly defined as the power of carrying on the business of government or the

administration of the affairs of the state, excepting functions which are vested by the

Constitution in any other authority. The ambit of the executive power has been thus explained by

our Supreme Court1

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, subject, of course, to the provisions of the Constitution or of any

law

The executive function comprises both the determination of the policy as well as

carrying it into execution, the maintenance of order, and the promotion of social

and economic welfare, the direction of foreign policy in fact, the carrying on or

supervision of the general administration of the state

Firstly, the Constitution provides that the President can exercise his functions either

directly or through officers subordinate to him [Article 53(1)]. This provision permits exercise of

executive power vested in the President by the Ministers and other officials. For this purpose, a

Minister is regarded as an office subordinate to the President and therefore the President can -

exercise his executive authority through the Ministers2.

Secondly, the President is to make rules for the more convenient transactions of the

business of the Government of India and for the allocation of work among the various Ministers

[Article 77(3)]. The rules of business confer power on the Ministers to carry on the

administration and take decisions in their departments. When an order is made in accordance

with the rules of business made under Article 77(3), it cannot be challenged on the ground that

the President had not personally applied his mind to the matter3.

Thirdly, although executive power of the Union is vested in the President, actually in

practice it is carried on by the Ministers and other officials and the Presidents personal

satisfaction is not necessary in every case4.

It may be said, accordingly, that the powers of the President will be the powers of his

Ministers in the same manner is the prerogatives of the English Crown have become the

privileges of the people5. The various powers that are included within the comprehensive

expression executive power in a modern state have been classified by political scientists under

the following heads:

a) Administrative power i.e., the execution of the laws and the administration of the departments of government.

b) Military power i.e., the command of the armed forces and the conduct of war. c) Legislative power i.e., the summoning, prorogation etc., of the legislature,

initiation of and assent to legislation and the like.

d) Judicial power i.e., granting of pardons, reprieves, etc., to persons convicted of crime.

The various rights of the President of India are discussed briefly hereunder:

I. RIGHT TO ADDRESS AND CONVEY MESSAGES TO HOUSES

The President shall at the commencement of the first session of Parliament, whether after the

general elections to the Lok Sabha or every year addresses both Houses of Parliament assembled

together and informs Parliament of the causes of its summons [Article 87(1)] 6.

The Presidents address fulfils two functions. First, it underlines responsibility of the

Government to Parliament for it consists of the Governments review of the international and

internal situation and a statement of its general policy together with an indication of its

legislative programme for the ensuing session. Secondly, it provides a solemn yet simple

ceremony with which the session of a House begins.

The practice of the President addressing Parliament has been adopted in India from Britain

where the Monarch addresses a new session of Parliament7.

1. HOW DOES PARLIAMENT TAKE IT UP?

The address is followed by a motion of thanks moved in each house by Members of

Parliament of the ruling party followed by discussions that last up to three or four days and

conclude with the Prime Minister replying to the points raised during the discussion. On an

average, the discussion takes up to 12 hours in each House and about 80 Members of Parliament

in the Lok Sabha and 40 in the Rajya Sabha participate.

After the Prime Ministers reply, Members of Parliament vote on the motion of thanks and

some may move amendments to the address. The amendments may emphasize or add issues

addressed by the President or highlight those that did not find mention. Changes proposed by the

Members of Parliament are not passed amendments proposed by Members of Parliament have

been passed during the vote on the address, all in the Rajya Sabha.

II. POWER TO APPOINT CONSTITUTIONAL POSTS

A. ATTORNEY-GENERAL OF INDIA

The Attorney-General of India is appointed by the President. The person to be appointed as

Attorney-General must be qualified to be appointed as a Judge of the Supreme Court. He holds

office during the pleasure of the President. He shall get such remuneration as the President may

determine [Article 76(4)].

FUNCTIONS OF ATTORNEY-GENERAL: The Attorney-General is one of the offices

placed on a special footing by the Constitution. He is the First Law Officer of the Government of

India and as such the Attorney-Generals duty shall be to give advice to the Government of India

upon such legal matters as may from time to time be referred or assigned to him by the President.

He performs such other duties of a legal character which may be assigned to him by the

President from time to time. He has also to discharge the functions conferred on him by the

Constitution or by any other law [Article 76(2)].

According to the rules8 made by the President under this Article the Attorney-General is

required to appear on behalf of the Government of India in all cases in the Supreme Court in

which the Government of India is concerned. He may also be required to appear in any High

Court in any case in which the Government of India is concerned. He shall neither advise nor

hold a brief against the Government of India in cases in which he is called upon to advise the

Government of India. Nor defend accused persons for criminal prosecutions without permission

of the Government of India. He is prohibited to take appointment as a Director in any company.

In the performance of his duties he has right of audience in all Courts in the territory of India.

He has right to speak and take part in proceedings of either of House of Parliament without a

right to vote [Article 88]. He is entitled to all the privileges and immunities as a Member of

Parliament [Article 105(3)].

The office of Attorney-General in England and few other countries is a Political Office. He is

member of the Cabinet and comes and goes with the ministry. But the practice in India is

different. The Attorney-General of India is not, as in England a member of the Cabinet. There is

a Minister of Law in the Cabinet to deal with legal affairs at the Government level.

B. CHAIRMAN AND MEMBERS OF PUBLIC SERVICES COMMISSION

1. UNION PUBLIC SERVICE COMMISSION

For proper and efficient working of a democracy, it is very necessary that civil service be

free of political pressures and personal patronage. It is therefore necessary to ensure that the best

available person be selected for appointment to a post so as to avoid arbitrariness and nepotism

in the matter of appointment. This objective can be achieved if civil servants are appointed solely

on the basis of merit without any favoritism or nepotism or political pressures. A difficult task in

any country, it becomes all the more difficult in a multi-lingual, multi-religious country like

India which has a number of minority groups and backward classes and where the state is the

most significant employer and government service has a prestige of its own.

This role and objectives are reflected in the opinion of Supreme Court to the effect that

Public Service Commissions are institutions of utmost importance created by the Constitution

and for efficient functioning of a democracy it is imperative that such Commissions are manned

by people of the highest skill and irreproachable integrity, so that selections to various public

posts can be immunized from all sorts of extraneous factors like political pressure or personal

favoritism and are made solely on considerations of merit. It was also held that since Public

Service Commissions are a constitutional creation, principles of service law that are ordinarily

applicable in instances of dismissal of government employees cannot be extended to proceedings

for removal and suspension of Public Service Commission members9.

To achieve these objectives, the constitution creates Public Service Commission which are

autonomous bodies and are immunized from various pressures so that they can function

independently, fairly and impartially. Being a constitutional authority, it cannot be by passed by

way of circular or otherwise10.

The Union Public Service Commission consists of a Chairman and a number of members

who are appointed by the President who of course acts in this matter as in all other matters on the

advice of the concerned Minister [Articles 315(1) and 316(1)].

No qualifications are prescribed for the Commissions membership except that, as nearly as

may be, one-half of the members should be persons who have held offices for at least ten years

either under the Government of India or that of a State [Proviso to Art. 316(1)]. This provision

envisages that such persons as are well versed in the internal exigencies of the public service are

given adequate representation on the commission, so that suitable, experienced and fit persons

may be appointed to the civil services.

The President may appoint an acting Chairman of the Commission if the office of the

Chairman falls vacant or if the Chairman is unable to discharge his functions due to absence or

some other reason. The acting Chairman functions till the Chairman is able to resume his duties,

or the person appointed as Chairman enters on the duties of the office [Article 316(1-A)].

The constitution does not fix the number of members of the commission. This task has been

left to the Central Government. This according to Article 318 the President may by regulations

determine the number of members of the Commission and their conditions of service. The power

of the Central Government to determine the conditions of service of a member of the

Commission is, however, subject to the restriction that they cannot be varied to the disadvantage

of a member after his appointment.

A member of the Commission is to hold office for six years from the date he takes charge of

his office, or until he attains the age of sixty-five years, whichever is earlier [Article 316(2)]. A

member may however resign from his office by writing to the President [Article 316(2)(a)].

1.1. REMOVAL OF A MEMBER

Provisions exist in the Constitution for the removal of the Chairman or a member before the

expiry of his term [Articles 316(2)(b) and 317]. He can be removed only by the order of the

President on the ground of misbehavior. Such an order can be passed after 1) The President

makes a reference to the Supreme Court and 2) The Court after holding an inquiry, reports to the

President that the person concerned ought to be removed from office [Articles 317(1)]. These

procedural safeguards envisaged in Article 317 are to protect Public Service Commission

members from undue political pressures or personal favoritism and vendetta, so that a Public

Commissions is able to discharge their constitutional obligations in full measure11.

The President may suspend the chairman or a member in respect of whom a reference has

been made to the Supreme Court until he passes final orders [Article 317(2)]. The issuance of

suspension orders is as per the procedure established by law and not in derogation of the same.

Further the President is empowered to remove a member or the Chairman of the Commission

[Article 317(3)], without reference to the Supreme Court if he 1) is adjudged an insolvent; or

2) engages during his term of office in any paid employment outside the duties of his office; or

3) is in the opinion of the President, unfit to continue in office by reason of infirmity of mind and

body [Article 317(3)].

2. STATE PUBLIC SERVICE COMMISSION

The Constitution establishes a Public Service Commission in each State [Article 315(1)]. It is

possible for two or more States to have a Joint Public Service Commission [Article 315(2)].

The basic policy of the Constitution is that each State should have its own public Service

Commission but if for administrative or financial reasons it is not possible for each State to have

a Commission of its own two or more State may have a Joint Public Service Commission.

A Joint Commission for several States may be established by Parliament by law if a

resolution to that effect is passed by each State Legislature concerned [Article 315(2) and (3)].

Even the Union Public Service Commission, if requested by a State Governor to do so, may with

the approval of the president agree to serve all or any of the needs of a State [Article 315(4)].

The composition of the State Commissions is governed by the same constitutional provisions

as apply to the Union Commission. Thus, a State Commission consists of a Chairman and

several members who are appointed by the Governor [Article 316(1)]. In case of a Joint

Commission, the President makes these appointments [Article 316(1)]. Like the Union Public

Service Commission as nearly as may be one half of the members of a State Commission should

be persons who have held a government office for at least ten years at the date of their

appointment to the commission [Proviso to Article 316(1)].

The Governor of the State (the President in case of a Joint Commission) may by regulations

determine the number of members of the Commission and their conditions of service [Article

318]. The conditions of service of a member cannot be varied to his disadvantage after his

appointment [Proviso to Article 318].

All provisions regarding the tenure of a member of the Union Commission apply mutatis

mutandis to a member of a State Commission except with the following differences:

a) The age of retirement of a member of a State Commission is 62 years instead of 65 years as in the case of a member of the Union Public Service Commission.

b) To resign, a member of a State Commission writes to the Governor and a member of a Joint Commission to the President [Articles 316 and 317].

Under Article 317(1), the President makes a reference to the Supreme Court the question of

misbehavior committed by the Chairman or a member of the State Public Service Commission

for inquiry and report. If the Court reports that he should be removed from office on any such

ground, then the President shall remove him. An interesting point concerning the State Public

Service Commission may be noted. While appointment of the Chairman or members of the State

Commission is made by the Governor of the State [Article 316(1)], the power to remove any of

these persons on the ground of misconduct vests in the President and not the Governor. It is the

President who makes a reference to the Supreme Court under Article 317(1).

C. CHIEF ELECTION COMMISSIONER

To ensure free, impartial and fair elections and to protect the elections from being

manipulated by the politicians, the Constitution sets up an autonomous Election Commission to

supervise and conduct elections to Parliament and State Legislatures.

The Election Commission is set up as a permanent body under Article 324(1). It is an all-

India body having jurisdiction over elections to Parliament, State Legislatures, offices of the

President and Vice-President. The reason for having an all-India body to supervise and conduct

elections, rather than separate bodies to organize elections in each State, is that some States have

a mixed population, as there are the native people as well as others who are racially,

linguistically or culturally different from the native people.

The Election Commission consists of the Chief Election Commissioner (CEC) and such

number of Election Commissioners (ECs), if any as the President may fix from time to time. All

these commissioners are appointed by the President subject to the provisions of any law enacted

by Parliament for the purpose.

The Chief Election Commissioner acts as the Chairman of the Election Commission in

case any other Election Commissioner besides him is appointed. In S.S.Dhanoa v/s. Union of

India12, the Supreme Court has laid down an important proposition regarding the composition of

the Election Commission. Until 1989, the Election Commission consisted of only the Chief

Election Commissioner. In 1989, the Central Government changed tracks and sought to appoint

Election Commissioners. The underlying purpose of this move seems to be to curb the powers of

the Chief Election Commissioner who was single handedly exercising the powers of the Election

Commission. In 1989, by a notification issued under Article 324(2), the number of Election

Commissioners (besides the Chief Election Commissioner) was fixed at two. By another

notification, the President appointed the petitioner and one other person as Election

Commissioners as such. The rules made by the President under Article 324(5) fixed the tenure of

these Commissioners at 5 years or until reaching the age of 65 years.

It is clear from these constitutional provisions that the Election Commission consists of

the ECE and the Election Commissioners as and when appointed by the President. The office of

the Chief Election Commissioner is envisaged to be a permanent fixture, but that cannot be said

for the Election Commissioners as their appointment is optional with the Central Executive.

There cannot be an Election Commission without the Chief Election Commissioner but same is

not the case with the Election Commissioners. Their number can vary from time to time. Article

324(2) contemplates a statute to define the conditions of service of the Chief Election

Commissioners and the Election Commissioners.

The President may appoint after consultation with the Election Commission, such

Regional Commissioners as the President may consider necessary to assist the Election

Commission in the discharge of its functions. The Regional Commissioners may be appointed

before each general election to the Lok Sabha and the State Legislative Assemblies and also

before the biennial elections to the State Legislative Councils [Article 324(4)].

As the Regional Commissioners are appointed by the President in consultation with the

Commission to assist it to perform its functions, the Election Commissioners are placed on a

higher pedestal than the Regional Commissioners. While the Election Commissioners are

members of the Election Commission, the Regional Commissioners are not its members.

The President may make rules to determine the conditions of service and tenure of office

of the Election Commissioners and the Regional Commissioners. This however is subject to any

law made by Parliament [Article 324(5)].

D. CHIEF JUSTICE AND OTHER JUDGES OF SUPREME COURT AND HIGH COURTS

1. SUPREME COURT OF INDIA

In any country, the Judiciary plays the important role of interpreting and applying the law

and adjudicating upon controversies between one citizen and another and between a citizen and

the state. It is the function of the Courts to maintain the rule of the law in the country and to

assure that the government runs according to law. In a country with a written Constitution,

Courts have the additional function of safeguarding the supremacy of the Constitution by

interpreting and applying its provisions and keeping all authorities within the constitutional

framework.

Article 124(1) establishes the Supreme Court of India. The Chief Justice of the Court is

designated as the Chief Justice of India. According to Article 124(2), the judges of the Supreme

Court are appointed by the President. While appointing the Chief Justice, the President has

consultation with such of the judges of the Supreme Court and the High Courts as he may deem

necessary. In case of appointment of other judges, the President if required to consult the Chief

Justice of India though he may also consult such other judges of the Supreme Court and the High

Courts as he may deem necessary.

The President can appoint a Supreme Court Judge as the acting Chief Justice in case the

office falls vacant or the Chief Justice is unable to perform his duties due to absence or otherwise

[Article 126]. However, the Chief Justice of India with the previous consent of the President may

request any retired Supreme Court Judge to sit and act as a Judge of the Court. If he agrees to do

so, then while so sitting and acting, he is entitled to such allowances as may be determined by an

order of the President. He will also enjoy all the jurisdiction, powers and privileges of a Supreme

Court Judge but shall not otherwise be deemed to be a Judge of the Court.

2. HIGH COURTS

The State Judiciary consists of a High Court and a system of subordinate Courts. The high

Court is at the apex of the State judicial system. The High Courts come below the Supreme

Court in Indias judicial hierarchy. At present, each State in India has a High Court [Article 214].

Parliament may, however, establish by law a common High Court for two or more States [Article

231(1)]. The Gauhati High Court is the common High Court of seven States of North East India,

namely Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram13 and Arunachal Pradesh14.

Bombay High Court has jurisdiction over the State of Goa and the Union Territory of Daman,

Diu, Dadra and Nagar Haveli15. Similarly, Calcutta High Court is the High Court for the Union

Territory of the Andaman and Nicobar Islands16. The States of Punjab and Haryana have a

common High Court which is also the High Court for the Union Territory of Chandigarh.

Besides these four, there are at present 17 other High Courts.

The High Court Judges are appointed by the President after consulting the Chief Justice of

India, the Governor of the State concerned17 and in case of appointment of a Judge other than the

Chief Justice, the Chief Justice of the High Court to which the appointment is to be made

[Article 217(1)].

As mentioned above, the constitutional provision [Article 217(1)] says that the President

appoints these Judges after consulting the Chief Justice of India, the State Governor and the

Chief Justice of the High Court concerned. The Central Executive and the State Executive

provide the political input in the process of selection of the Judges.

The President may appoint one of the Judges of the High Court as its acting Chief Justice in

case the office falls vacant, or the Chief Justice is unable to perform his duties by reason of

absence or otherwise [Article 223]. The acting Chief Justice has all the powers of the Chief

Justice without any limitation, although it is a rule of prudence not to take any major decisions

which could await the decision of the would Chief Justice18.

The President may appoint duly qualified persons as additional Judges of a High Court for a

period not exceeding two years, when it appears to him that because of temporary increase in

business or arrears of work therein, the number of Judges of that Court should be increased

[Article 224(2)].

A duly qualified person may also be appointed as an acting Judge of a High Court when any

of its Judges other than the Chief Justice is unable to perform his duties due to absence or

otherwise or when a permanent Judge of the High Court is appointed as its acting Chief Justice.

An acting Judge holds office until the permanent Judge resumes his duties [Article 224(2)].

The Chief Justice of a High Court may with the previous consent of the President request a

retired High Court Judge to sit and act as a Judge of the High Court. While so sitting and acting,

he is entitled to such allowance as the President may by order determine. He has all jurisdiction,

powers and privileges of a High Court Judge but is not regarded as a Judge of the High Court for

any other purpose [Article 224A]

E. COMPTROLLER AND AUDITOR-GENERAL

The Comptroller and Auditor-General (C.A.G) is appointed by the President, i.e., the central

Executive [Article 148(1)]. He takes a prescribed oath before assuming his office [Article

148(2)]. His salary and other conditions of service have now been prescribed in an Act of

Parliament19.

The President may make rules after consultation with Comptroller and Auditor-General,

regulating the conditions of service of persons serving in the Indian Audit and Account

Department. This rule-making power is, however subject to the Constitution and any law made

by Parliament [Article 148(5)]. Interpreting the scope of the rule-making power, the Supreme

Court has ruled that these rules cannot be made with retrospective effect20.

The Comptroller and Auditor-General perform a very useful function. He secures the

accountability of the Executive to Parliament in the field of financial administration. He helps in

making legislative control over the Executive more effective by a sort of retrospective, an ex post

facto, examination of the expenses incurred. It is because of the great importance of his functions

that the Comptroller and Auditor-General have been given a status comparable to that of a Judge

of the Supreme Court. He submits his reports to the President or the Governor in case of the

central or State accounts respectively. These reports are placed before Parliament or the

concerned State Legislature [Article 151].

F. GOVERNORS OF STATES

The Governor of a State plays a multifaceted role. He is a vital link between the Centre and

the State. It is his duty to keep the Centre informed of the affairs of the State. This helps the

Centre to discharge its constitutional functions and responsibilities towards the State.

Each State has a Governor, but two or more States may have a common Governor [Article

153]. The Governor is formally appointed by the President [Article 155]. The President appoints

the State Governor on the advice of the Prime Minister with whom, therefore, the effective

power lies in this regard21.

The Constituent Assembly fully debated the merits and demerits of an elected v/s. nominated

Governor and finally opted for the system of Presidential nomination rather than direct election

of the Governor because of several reasons22: For example

(1) A nominated Governor would encourage centripetal tendencies and thus promote all India unity. On the other hand, it was apprehended that an elected Governor would to

some extent encourage that separatist provincial tendency more than otherwise. There

will be far fewer links with the Centre23.

(2) In a Parliamentary system the head should be impartial, but a Governor elected by the direct vote of the people would have to be a partyman. On this point, it was stated in the

Constituent Assembly:

He should be a more detached figure acceptable to the province, otherwise he

could not function and yet may not be a part of the party machine of the province.

On the whole, it would probably be desirable to have people from outside,

eminent in something, education or other fields of life who would naturally

cooperate fully with the Government in carrying out the policy of the Government

and yet represent before the public something above politics.

(3) Conflicts might arise between the Governor and the Chief Minister if both were to be elected by the people, for the former might claim to arrogate power to himself on the plea

of his having been elected by the whole State as against the latter who would be elected

only in a constituency which would be a small part of the State. It was stated in the

Constituent Assembly:24

When the whole of the executive power is vested in the Council of Ministers, if

there is another person who believes that he has go the backing of the province

behind him and therefore at his discretion he can come forward and intervene in

the governance of the province, it would really amount to a surrender of

democracy.

(4) The Governor being only a symbol, a figurehead, there would be no point in spending money in having elected.25

The Governor holds his office during the pleasure of the President under Article 156. The

Governor may resign at anytime by writing to the President [Article 156(3)]. In a contingency for

which the Constitution makes no provision such as death of the Governor, the President may

make such provision as he thinks fit for discharge of the functions of the Governor of a State

[Article 160]. Thus, the Chief Justice of the High Court can be appointed temporarily to

discharge the functions of the Governor of the State.26

While there exist provisions in the Constitution for impeachment of the President, no such

provisions exist concerning the Governor. The reason being that as he holds his office during the

pleasure of the President, the Central Government can always recall him if the circumstances so

require. A Governor is a political appointee and when an appointment is made by the

government on political considerations, it can also be terminated on political considerations.27

G. LIEUTENANT GOVERNORS OF UNION TERRITORIES

There exist a few centrally administered units which do not form part of any State but have

been kept as separate and distinct entities because of several historical, cultural or political

reasons. These administrative units are designated as Union Territories. At present, there are 7

Union Territories:

(1) Delhi; (2) The Andaman and Nicobar Islands; (3) Lakshadweep; (4) Dadra and Nagar Haveli; (5) Daman and Diu; (6) Pondicherry (known as Puducherry w.e.f. 1st October 2006); and (7) Chandigarh

A Union Territory is administered directly by the Central Executive. A Union Territory is to

be administered by the President acting, to such extent as he thinks fit through an Administrator

to be appointed by him with the designation of Lieutenant Governor. But this does not mean that

the Union Territories become merged with the Central Government. Although they are

independent entities, they are centrally administered. Any instruction of directive issued by the

Central Government or the President28 is binding on the administration of the Union Territory29.

Parliament may by law provide otherwise [Article 239(1)]. A Governor of a State may also

be appointed as the Administrator of a Union Territory adjoining to that State. In that capacity,

the Governor is to act independently of his Council of Ministers [Article 239(2)].

It has been held by the Supreme Court that the Administrator or the Lieutenant Governor of a

Union Territory is not a purely constitutional functionary. His position is somewhat different

from that of a State Governor30. The Administrator or the Lieutenant Governor is a delegate of

the President. His position is wholly different from that of a State Governor. He cannot thus be

equated with a State Governor. After differing with his Council of Ministers, the Administrator

or the Lieutenant Governor may act under orders of the President, which means the Central

Government31. The Administrator or the Lieutenant Governor is not a purely constitutional

functionary.

III. POWER TO APPOINT PRIME MINISTER & THE COUNCIL OF MINISTERS

The Prime Minister is appointed by the President [Article 75(1)]. This is one act which the

President performs in his discretion without the advice of the Council of Ministers or the Prime

Minister. The Constitution prima facie appears to confer an unfettered discretion on the President

to appoint whomsoever he likes as the Prime Minister, in practice, it is not so. A few conventions

and a few constitutional provisions indirectly restrict his choice of a Prime Minister.

It is essential that the President appoints a person as the Prime Minister who has the support

and confidence of a majority of the members of the Lok Sabha, otherwise he will not be in a

position to form a stable Ministry and carry the House with him in his policies and programmes

and the government cannot function. This means that the leader of the majority party in the Lok

Sabha should invariably be invited to become the Prime Minister. This is the principal limitation

in practice on the Presidents choice. As IVOR JENNINGS has asserted in the context of Britain:

If a party secures a majority and that party has a leader, that leader must become Prime

Minister.

In the matter of appointment of the Prime Minister, the President thus enjoys some marginal

discretion, his discretion being limited to choosing a person who is qualified to be a member of

Parliament under Article 84 and not disqualified under Article 102 who is either a member of

Parliament or has the potentiality to be so elected within six months of his appointment and who

can command the support of the majority of the members of the Lok Sabha32. At critical

moments, the choice of the Prime Minister by the President may prove to be extremely crucial.

When a party has a clear majority in the Lok Sabha, the President has to induct the

acknowledged leader of the party into the Prime Ministers office and the Presidents power in

such a case is merely formal. If, however, the political situation is not clear and no party has a

clear majority, then the President will have some scope to exercise his own judgment as to who

amongst the several aspirants to the office has the best chance of forming a stable Ministry and

secure confidence of the Lok Sabha.

But when it comes to appointment of Ministers, the President must be conscious that a

Minister should, normally speaking be a member of a House of Parliament. It is a well

established convention in all countries having the Parliamentary system33 but not an absolute

rule; even a non-member may be appointed as a Minister but he must sooner than later become a

member of a House.

The Ministers are appointed by the President on the advice of the Prime Minister [Article

75(1)]. In effect, therefore, Ministers are the nominees of the Prime Minister. The President

depends entirely on the Prime Ministers advice in this matter; he does not have much of a

choice in the matter and his function in this respect is purely formal. The President administers to

a Minister before he enters upon his office, the prescribed oaths of secrecy and office [Article

75(4)].

Another constitutional provision having a bearing on the question of ministerial tenure is

Article 75(2), according to which, Ministers hold office during the pleasure of the President.

Prima facie it would mean that the ministerial tenure is within the Presidents discretion and that

a Minister may legally be dismissed by him as and when he likes. Ex facie, there appears to be an

inconsistency between Articles 75(2) and 75(3), but in practice this is not so. Reading Articles

75(2) and 75(3) together, the position seems to be that the Presidents power to dismiss the

Ministry is subject to democratic controls.

Accordingly, Presidents power to dismiss a Minister is only meant to be used to keep the

parliamentary form of government functioning smoothly, to promote collective responsibility

among Ministers and to protect the Ministry from disruption. In a healthy democratic polity,

where democratic traditions have taken roots, the Presidents power may never be called into

action. It is only the ultimate resort to be invoked in an exceptional situation and that too, to

uphold, support and maintain democratic and parliamentary traditions.

IV. POWER TO ASSENT OF BILLS AND AMENDING THE CONSTITUTION

1. ASSENT OF BILLS

Making laws is Parliaments major pre-occupation. Changing and complex socio-economic

problems constantly demand new laws and thus parliament spends good deal of its time on

legislative activity.

In the area of ordinary legislation, the two houses of Parliament enjoy co-ordinate power. A

Bill has to be passed by the two Houses in an identical form before it can be submitted to the

President for his assent [Article 107(2)]. It may however happen at times that the two Houses do

not agree on a Bill and a deadlock may ensue between them. Such a deadlock is resolved through

a joint session of the two Houses. The President may summon a joint session of both the Houses

[Article 108(1)]. While reckoning the period of six months, no account is to be taken of any

period during which the House to which the Bill has been sent is prorogated or adjourned for

more than four consecutive days [Article 108(2)].

Parliament cannot legislate without the concurrence of all its parts and therefore in addition

to the two Houses assent of the President is also required for a Bill to become law, for the

President is a part of Parliament [Article 79]. When a Bill is passed by both Houses is sent to the

President for assent

(1) He may either give or withhold his assent therefrom [Article 111]; or (2) May send it back to the Houses for reconsideration and for considering the desirability of

introducing such amendments as he may suggest [Proviso to Article 111].

Thus if the President refuses to give his assent to a Bill in the first instance, there is no way to

override his veto and the Bill is dead. If however he does not veto the Bill but refers it to the

Houses for reconsideration, his power of veto is gone.

From the point of view of parliamentary procedure, the Constitution distinguishes between

Money Bill, Financial Bill and an Ordinary Bill involving expenditure. A Money Bill is a Bill

which contains only provisions dealing with the following matters:

(1) The imposition, abolition, remission, alteration or regulation of any tax; (2) The regulation of the borrowing of money or the giving of any guarantee by the

Government of India or the amendment of the law with respect to any financial

obligations undertaken by that Government;

(3) The custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys therein or withdrawal of moneys therefrom;

(4) The appropriation of money out of the Consolidated Fund of India; (5) The declaring of any item of expenditure as being a charge on the Consolidated Fund of

India or increasing any such amount;

(6) The receipt of money on account of the Consolidated Fund of India or the Public Account of India or the custody or issue of such money or the audit of the accounts of India or of a

State; or

(7) Any matter incidental to any of the matters specified above and not [Article 110(1)].

A Bill is a Money Bill when it deals only with the matters specified above and not with any

other extraneous matter. Thus, a notification issued by the Ministry of Environment and Forests

in exercise of the powers conferred by sub-section (3) of Section 3 of the Environment

(Protection) Act, 1986 constituting an authority for the purpose of management of money

received towards compensatory afforestation and other monies recoverable by the Central

Government for non-forestry uses of forest land is not a Money Bill under either Article 110 or

Article 19934.

A Bill which makes provisions for any of the above-mentioned matters and additionally with

any other matter is called a Financial Bill [Article 117(1)]. A Financial Bill is thus really a

Money Bill to which some other matter has also been tacked on.

Further, a Bill is neither a Money Bill nor a Finance Bill if it deals only with (i) the

imposition of fines or other pecuniary penalties; or (ii) the demand of payment of fees for

licences or fees for services rendered, or (iii) imposition, abolition, remission, alteration or

regulation of any tax by any local authority or body for local purposes [Articles 110(2) and

117(2)]. The last clause excludes all municipal taxation from the scope of a Money or Financial

Bill35.

A Money Bill originated in Lok Sabha only; it cannot be introduced in Rajya Sabha [Article

109(1)]. It cannot be introduced or moved except on the recommendation of the President

[Article 117(1)]. However, Presidential recommendation is not necessary for moving an

amendment providing for reduction or abolition of any tax. Presidential assent is necessary to

make a Money Bill or a Financial Bill legally effective after its passage in the two Houses. The

position in this context is much the same as in case of an Ordinary Bill, except that the President

has no power to refer a Money Bill back to the Houses for reconsideration [Article 111].

It has been contended that the President cannot withhold assent from a Money Bill36. But this

opinion does not appear to be sound in view of the phraseology of Article 111.

2. AMENDING THE CONSTITUTION

Times are not static. Times change and therefore the life of a nation is not static but dynamic,

living and organic; its political, social and economic conditions change continuously. Social

mores and ideals change from time to time creating new problems and altering the complexion of

the old ones. It is therefore quite possible that a Constitution drafted in one era and in a particular

context may be found inadequate in another era and another context. The ideas upon which a

Constitution is based in one generation may be spurned as old fashioned in the next generation. It

thus becomes necessary to have some machinery, some process by which the Constitution may

be adapted from time to time in accordance with contemporary national needs.

Different degrees of rigidity attach to different portions of the Constitution depending on

their importance and significance. The Constitution accordingly provides for the following three

classes of amendments of its provisions:

(1) Constitutional provisions of comparatively less significance can be amended by the simple legislative process as is adopted in passing ordinary legislation in Parliament;

(2) Those provisions which are material and vital are made relatively stable as these can be amended only by following the rule of special majority as laid down in Articles 368;

(3) There are certain constitutional provisions relating to the federal character which may be characterized as the entrenched provisions, which need for their amendment in addition

to the passage of the amending Bill by the special majority in the two Houses of

Parliament, ratification by half of the State Legislatures. This procedure is also laid down

in Article 368.

CATEGORY (1)

Several Articles of the Constitution make provisions of a tentative nature and Parliament has

been given power to make laws making provisions different from what these Articles provide

for. Such a law can be made by the ordinary legislative process and is not to be regarded as an

amendment of the Constitution and is not subject to the special procedure prescribed in Article

368. In most of the cases, the constitutional text remains intact but Parliament makes different

provisions. These Articles of the Constitution are as follows:

(1) When Parliament admits a new State under Article 2, it can effect consequential amendments in Schedules I and IV defining territory and allocating seats in the Rajya

Sabha amongst the various States respectively.

(2) Under Article 11, Parliament is empowered to make any provision for acquisition and termination of and all other matters relating to citizenship in spite of Articles 5 to 10.

(3) Article 73(2) retains certain executive powers in the States and their officers until Parliament otherwise provides.

(4) Articles 59(3), 75(6), 97, 125(2), 148(3), 158(3) and 221(2) permit amendment by Parliament of the Second Schedule dealing with salaries and allowances of certain

officers created by the Constitution.

(5) Article 105(3) prescribes parliamentary privileges until it is defined by Parliament. (6) Article 124(1) prescribes that Supreme Court shall have a Chief Justice and seven

Judges until Parliament increases the strength of the Judges.

(7) Article 133(3) prohibits an appeal from the judgment of a single Judge of the High Court to the Supreme Court unless Parliament provides otherwise.

(8) Article 135 confers jurisdiction on the Supreme Court (equivalent to the Federal Court) unless Parliament otherwise provides.

(9) Under Article 137, Supreme Courts power to review its own judgments is subject to a law made by Parliament.

(10) Article 171(2) states that the composition of the State Legislative Council as laid down in Article 170(3) shall endure until Parliament makes a law providing otherwise.

(11) Article 334(3) provides that Parliament may by law provide for the use of English even after 15 years as prescribed in Article 343(2).

(12) Article 348(1) establishes English as the language to be used in the Supreme Court and the High Courts and of legislation until Parliament provides otherwise.

(13) Schedules V and VI deal with administration of the Scheduled Areas and Scheduled Tribes and Tribal Areas in Assam which may be amended by Parliament making a law.

There are certain other Articles in the Constitution which make tentative provisions until a

law is made by the Parliament by following the ordinary legislative process but before

Parliament can act, the States have to take some action. Thus Article 3 provides for the re-

organization of the States, Parliament may pass a law for the purpose and effect consequential

amendments in the I and IV Schedules. Before doing so, however, it is necessary to ascertain the

views of the States concerned.

Under Article 169, Parliament may abolish a State Legislative Council or create one in a

State not having it, if the State Legislative Assembly passes a resolution to that effect by a

majority of its total membership and by a majority of not less than 2 3 of the members present and voting. The Parliamentary law enacted for the purpose may contain such provisions

amending the Constitution as may be necessary to give effect to it, and it is not to be regarded as

an amendment of the Constitution for the purposes of Article 368.

Corresponding to Articles 75(6) and 105(3), there are Articles 164(5) and 194(3) which

make tentative provisions until a State Legislature makes other provisions. They relate

respectively to salaries of Ministers in a State and privileges of the Houses. These are the only

Articles in the Constitution which enable a State Legislature to make provisions different from

what the Constitution prescribes in the first instance.

CATEGORIES (2) AND (3)

The process to amend and adapt other provisions of the Indian Constitution is contained in

Article 368. The phraseology of Article 368 has been amended twice since the inauguration of

the Constitution. However, the basic features of the amending procedure have remained intact in

spite of these changes. These basic features are:

(i) An amendment of the Constitution can be initiated only by introducing a Bill for the purpose in either House of Parliament.

(ii) After the Bill is passed by each House by a majority of its total membership and a

majority of not less than 2 3 of the members of that House present and voting and after receiving the assent of the President, the Constitution stands amended in

accordance with the terms of the Bill.

(iii) To amend certain constitutional provisions relating to its federal character, characterized as the entrenched provisions, after the Bill to amend the Constitution

is passed by the Houses of Parliament as mentioned above, but before being presented

to the President for his assent, it has also to be ratified by the legislators of not less

than one-half of the States by resolutions.

The entrenched provisions which are given this additional safeguard are:

(a) The manner of lection of the President: Articles 54 and 55 (b) Extent of the executive power of the Union and the States: Articles 73 and 162 (c) The Supreme Court and the High Courts: Articles 124-147 and 214-231 (d) The scheme of distribution of legislative, taxing and administrative powers between the

Union and the States: Articles 245-255

(e) Representation of the States in Parliament (f) Article 368 itself

There are several landmark cases that have been decided by the Supreme Court since 1951

on the scope of the constitutional amending process contained in Article 368. Few of them are:

i. Shankari Prasad Singh v/s. Union of India, AIR 1951 SC 458, this was the first case on amendability of the Constitution (First Amendment) Act, 1951, curtailing the right to

property guaranteed by Article 31 was challenged.

ii. For the next 13 years following Shankari Prasad, the question of amendability of the Fundamental Rights remained dormant. The same question was raised again in 1964 in

Sajjan Singh v/s. State of Rajasthan, AIR 1965 SC 845, when the validity of the

Constitution (Seventeenth Amendment) Act, 1964 was called in question. This

amendment yet again adversely affected the right to property.

iii. This case was based on HIDAYATULLAH. Js argument of non-amendability of Fundamental Rights. The question whether any of the Fundamental Rights could be

abridged or taken away by Parliament in exercise of its power under Article 368 was

raised again in L.C.Golak nath v/s. State of Punjab, AIR 1967 SC 1643 : 1967 (2) SCR

762. Again, the constitutional validity of the Constitution (Seventeenth Amendment) Act,

1964 was challenged in a very vigorous and determined manner. Eleven Judges

participated in the decision and they divided 6 to 5.

iv. Amendment of Article 368 (24th Amendment): To neutralize the effect of Golak Nath, Nath Pai, M.P., introduced a private members Bill in the Lok Sabha on April 7, 1967 for

amending Article 368, so as to make it explicit that any constitutional provision could be

amended by following the procedure contained in Article 368. The proposed Bill was

justified as an assertion of the Supremacy of Parliament which principle implied the

right and authority of parliament to amend even the Fundamental Rights.

v. The constitutional validity of both the Amendments, viz., 24th and 25th was challenged in the Supreme Court through Article 32 writ-petition in Kesavananda Bharati v/s. State of

Kerala, AIR 1973 SC 1461.

vi. The next case in which the Supreme Court had occasion to apply the Kesavananda Bharati ruling regarding the non-amendability of the basic features of the Constitution

was Indira Nehru Gandhi v/s. Raj Narain, AIR 1975, SC 2299. The question involved

here was the validity of clause (4) of the Constitution (39th Amendment) Act, 1975.

vii. Amendment of Article 368 (42nd Amendment): The Central Government did not relish the Supreme Courts pronouncement in the Indira Nehru Gandhi case declaring clause

(4) of the Constitution (39th Amendment) Act, 1975 invalid. The Government very much

desired to ensure that never in future; the courts should have the power to pronounce a

constitutional amendment invalid. Accordingly, Article 368 was again amended by the

42nd Amendment enacted in 1976,

viii. In Minerva Mills Ltd., v/s. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625, the scope and extent of the doctrine of basic structure was again considered by the Supreme

Court. The Court again reiterated the doctrine that under Article 368, Parliament cannot

so amend the Constitution as to damage the basic or essential features of the Constitution

and destroy its basic feature.

The modes of adapting the constitution from time to time to new circumstances may either be

informal or formal. Informal methods are judicial interpretations and conventions (cases that are

evident as discussed above) and the formal method is the constituent process (wherein the last

say will lie ultimately in the hands of the President).

V. POWER TO PROMULGATE ORDINANCES

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.

Ordinarily, under the Constitution, the President is not the repository of the legislative power

of the Union. This power belongs to Parliament. But, with a view to meet extraordinary situation

demanding immediate enactment of laws, the constitution makes provision to invest the

President with legislative power to promulgate ordinances.

Article 123 empowers the president to promulgate such ordinances as the circumstances

appear to him to require when

(1) Both Houses of Parliament are not in session; and (2) He is satisfied that circumstances exist which render it necessary for him to take

immediate action.

The provision confers the power formally on the president but as already states, he acts in

this matter as he does in other matters on the advice of the Council of Ministers and therefore the

ordinance-making power is vested effectively in the Central Executive. As the Supreme Court

has stated: The Ordinance is promulgated in the name of the President and in a constitutional

sense on his satisfaction: it is in truth promulgated on the advice of his Council of Ministers and

on their satisfaction37.

The power to issue an ordinance is legislative power. An ordinance issued by the President

partakes fully of the legislative character and is made in the exercise of legislative power38.

The power of the President to issue ordinances is co-extensive with the legislative power of

Parliament39. The Presidents power to promulgate ordinances is no higher and no lower than the

power of Parliament to make laws. An ordinance cannot make a provision which Parliament is

not competent to enact [Article 123(3)]. Conversely, an ordinance can make any provision which

Parliament can enact, except that an appropriation from out of the Consolidated Fund cannot be

made by an ordinance [Article 114(3)]. Thus, an ordinance may make provision with respect to a

matter in Lists I and III but not in List II, except when proclamation of emergency is in

operation. Further, like a law made by Parliament an ordinance is also subject to Fundamental

Rights.

For instance, an ordinance was promulgated by the President in 1996 declaring a section of

the population of Assam as Scheduled Tribes. The same ordinance was repeated several times

and ultimately it lapsed without Parliament passing an analogous Act. The High Court of

Gauhati ruled in Maitreyee Mahanta v/s. State of Assam40 that as Parliament did not pass the

necessary law, the ordinance would lapse and accordingly the rights vested in the communities

by the ordinance would also lapse.

VI. POWER TO ISSUE PROCLAMATION OF EMERGENCY

A notable feature of the Indian Constitution is the way in which the normal peace-time

federalism can be adapted to an emergency situation. The framers of the Constitution felt that in

an emergency, the Centre should have overriding powers to control and direct all aspects of

administration and legislation throughout the country,

The Constitution envisages three types of emergencies:

i) Emergency arising from a threat to the security of India; ii) Breakdown of constitutional machinery in a State; iii) Financial emergency.

Under Article 352(1), if the President is satisfied that a grave emergency exists whereby the

security of India or any part thereof is threatened, whether by war or external aggression or

armed rebellion, he may, by proclamation make a declaration to that effect. Such a proclamation

may be made in respect of the whole of India or such part of the Indian Territory as may be

specified in the proclamation.

Article 352 has been invoked three times so far. A proclamation of emergency was issued

under Article 352 for the first time on October 26, 1962, in the wake of conflict with China. It

remained in force during t