A PROJECT REPORT ON

“THE UNION EXECUTIVE”

“THE CONSTITUTIONAL LAW”

Submitted to: Dr. Shruti Bedi Submitted By: Mayank Mohit

B.com. LL.B (Hons)

166/17

3rd semester

Section C

2018-19
 ACKNOWLEDGEMENT
I would like to express a deep sense of thanks and gratitude to my project guide Dr. Shruti
Bedi mam for guiding me immensely through the course of the project. She always evinced
keen interest in my work. Her constructive advice and constant motivation have been
responsible for the successful completion of this project.

My sincere thank goes to Dr. Rattan Singh our director sir, for his co-ordination in
extending every possible support for the completion of this project.

I also thanks to my parents for their motivation and support. I must thanks to my classmate
for their timely help and support for the completion of this project.

Last but not least, I would like to thanks all those who had helped directly or indirectly
towards the completion of this project.

- Mayank Mohit

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 Table of Contents
Sr. No. Title Page. No.
1 Table of Cases 4

2 Introduction 5
3 The President of India 6-16

4 Powers of President 17-22

5 The Vice-President of India 23-27

6 Prime minister of India 28-30

7 Council of Ministers 31-39

8 The Attorney General for India 40-41

9 Conduct of government Business 41

10 Conclusion 42

11 Webography 43

12 Bibliography 44

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 Table of Cases

Sr. No. Name of Cases

1. D.C. Wadhwa v. State of Bihar, 1987

2. Dr. N.B. Kharee v. Election Commission of India, 1957
3. Dinesh Chandra v. Chaudary Charan Singh, 1980
4. Emperor v. Sibnath Banarjee
5. Kuljeet Singh v. Lt. Governor of Delhi, 1982
6. Madan Murari v. Chaudhary Charan Singh, 1980
7. Maru Ram v. Union of India, 1980
8. Narayan Dutt v. State of Punjab, 2011
9. Ram Jawaya Kapoor v. State of Punjab, 1955
10. R.C. Cooper v. Union of India, 1970
11. Shatrughan Chauhan v. Union of India, 2014
12. U.N. Rao v. Indira Gandhi, 1971
13. Re-Presidential Election case, 1974

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 UNION EXECUTIVE
(Articles 52 to 78 and 123)

Introduction
In India, the constitution establishes a parliamentary form of government as distinguished
from the American Presidential type of government. The essence of the parliamentary type of
government is that the head of the state is the constitutional head and the real executive
powers are vested in the council of ministers. The Prime Minister is the head of the Council
of Ministers. The council of ministers is responsible to the House of the People. Though the
executive power is vested in the president but he exercises this power with the aid and advice
of the council of ministers. The members of the council of ministers are all elected by the
people and they are members of the legislature.

The executive of government is the one that has sole authority and responsibility for the daily
administration of the state bureaucracy. The division of powers into separate branches of
government is central to the republican idea of the separation of powers. The union executive
consists of the president, vice-president, the council of ministers and the attorney general1.

1
In Common Cause, a Registered society v. Union of India, AIR 1999 SC 2979, the supreme court said that “the
executive consists of the prime ministers and ministers who are members of the Cabinet; Ministers who are not
of cabinet rank; and the civil service”

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 THE PRESIDENT OF INDIA

(Article 52)

The President – the Head of Union Executive

Article 52 of the constitution says that there shall be a President of the India. He is the head of
the state. The Executive power of the Union. Article 53(1) declares that President to be the
head of the Union Executive. It provides that 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 “2. However, he shall exercise this power in accordance with the
provisions of the constitution.

In the case law Emperor v. Sibnath Banerjee 3, the privy council held that the expression
“officers subordinate to the president “ would include Ministers. Thus, the president may
exercise the executive power of the union either directly or through the members of the union
council of ministers.

Executive Power of the Union – Article 53

(1) The executive power of the union shall be vested in the president and shall be
exercised by him either directly or through officers subordinates to him in accordance
to him in accordance with this constitution.
(2) Without prejudice to the generally of the foregoing provision, the supreme command
of the defense forces of the union shall be vested in the president and the exercise
thereof shall be regulated by law.
(3) Nothing in this article shall ----
(a) be deemed to transfer to the president any functions conferred by any existing law
on the government of any state or other authority; or
(b) Prevent parliament from conferring by law functions on authorities other than the
president.

2
Emperor v. Sibnath, AIR 1945 PC 163.
3
AIR 1954 SC 156 at p. 163.

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The expression “executive power” is not defined in the constitution. The expression came to
be interpreted by the Supreme Court, in Ram Jawaya Kapoor v. State of Punjab4, commonly
known as book-sellers case, in pursuance of its policy of nationalizing text books used in the
recognized schools in the state, the Punjab government issued an executive order acquiring
the copyright in selected books from the authors and undertaking itself the printing,
publishing and sale of those books. Private publishing houses were thus ousted from the text
book business. This order was challenged by the petitioner on the ground that executive
power of the state did not extend to undertaking trading activities without a legislative
sanction. It was, however, held that the executive power was not confined to matters on
which legislations had already been passed.

Wherein the court held that in the exercise of its executive power, the state could carry on a
trade or business activity even without a legislative sanction. Even the Supreme Court also
finds it difficult to explain the context of the executive power.

The court has observed, “It may not be possible to frame an exhaustive definition of what
executive functions mean and imply. Ordinarily, the executive power connotes the residue of
government functions that remain after the legislative and judicial functions are taken away.”

The executive function, the court held, comprised both the determination of the policy as well
as carrying it into execution. This included the initiation of legislation, the maintenance of
order , 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 . The executive
power may be such as is given to the executive or is implied, ancillary or inherent. It must,
thus, include all powers that may be needed to carry into effect the aims and objects of the
constitution. It must mean more than merely executing laws.

Executive May Act Without a Law

The executive Government can never go against the provisions of the constitutions or of any
law, but, it does not follow that in order to enable the executive to function, there must be a
law already in existence and that the powers of the executive are limited merely to the
carrying out of these laws.

4
AIR 1955 SC 549. See also M/s. Bishambar Dayal Chandra Mohan v. State of U.P., AIR 1882 SC 33.

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The Government in the exercise of its exercise of its executive power cannot legislate, which
power is vested with the legislature. It has been held to be a known fact of the constitutional
law that the legislative power of the state is distinct from its executive power. The executive,
therefore, cannot amend or repeal any statute enacted by the legislature by issuing a
notification5 .

Extend of Union’s Executive Power (Article 73)

Article 73(1) provides that the executive power of the union extends to the matters with
respect to which parliament has power to make laws. It extends to the exercise of such rights,
authority and jurisdiction as are exercised by the government of India by virtue of any treaty
or agreement. Thus the executive power of the union which is exercisable by the president is
co-extensive with the legislative powers of the union.

The executive power of the union, does not extend to a matter in the concurrent list of the
seventh schedule unless –

(1) Expressly provided in the constitution e.g. 256, 257, 258, 353 and 356 or
(2) Expressly entrusted by a law made by parliament6 .

Article 73(2) is an exception to the rule laid down in clause (1). This provides that until
otherwise provided by parliament, a state may continue to exercise executive power on
matters (now included in the union or concurrent list) which it was authorized to exercise
before the commencement of the constitution. It should not, however, encroach upon any
legal or fundamental rights of citizens.

Notes on Article 53

The following propositions are worth noting:-

5
See Smt. Rashmi v. State of Jharkhand, AIR 2003 NOC 168. See also centre for public interest litigation v.
Union of India, AIR 2003 SC 3277, wherein the court held that a new public sector co. created with the
approval of Parliament, could not be dismantled without some kind of Parliamentary mandate.
6
Provison to Clause (1) of Article 73.

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 (a) Executive Power must be exercised in accordance with the constitution – including, in
particular, the provisions of article 14.
(b) Executive power as long as it does not violate the constitution or the law) may be
exercised without prior legislative support.
(c) Executive power is the residue of functions of government, which are not legislative
or judicial.

Election of president – Article 54

The president shall be elected by the member of Electoral College consisting of –

(a) The elected members of both the houses of parliament ; and

(b) The elected members of the legislative assemblies of the states.
( Explanation – In this article and article 55 ,”state” includes the National Capital
Territory of Delhi and the Union Territory of Pondicherry. )

Article 54 thus provides for the constitution of an Electoral College for the election of the
president.

The Constitution ( 70th amendment )Act, 1992 has added a new explanation to article 54
which provides that the word “State” includes the National Capital Territory of Delhi and the
Union Territory of Pondicherry. This means that the M.L.A’s of the national territory Delhi
and the union territory will be included in the electoral college of the president.

It may be noticed that only elected members of the house of parliament and that of the
Legislative Assemblies of the states are the members of the Electoral College. The nominated
members7 do not take part in the election of the president.

Manner of Election of President – Article 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.
(2) For the purpose of securing such uniformity among the states inter se as well
as parity between the states as a whole and the union , the number of votes

7
For nominated members see, infra, Articles 80, 331, 171, 333.

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 which each elected member of parliament and of the legislative assembly of
each state is entitled to cast at such election shall be determined in the
following manner :-
(a) Every elected member of the legislative assembly of a state shall have as
many votes as there are multiples of one thousand in the quotient obtained
by dividing the population of the state by the total number of the elected
members of the assembly8 ;
(b) If, after taking the said multiples of one thousand , the remainder is not
less than five hundred, then the vote of each member referred to in sub
clause (a) shall be further increased by one ;
(c) Each elected member of either house of parliament shall have such number
of votes as may be obtained by dividing the total number of votes assigned
to the members of the legislative assemblies of the states under sub-clause
(a) and (b) by the total number of the elected members of both houses of
parliament, fractions exceeding one-half being counted as one and other
fractions being disregarded9.
(3) The election of the president shall be held 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.

Article 55 contains the formula to be adopted at the election of the president for determining
the number of votes which each member of the Electoral College shall be entitled to cast. The
formula provided is that every elected member of the legislative assembly of a state shall
have as many votes as there are multiples of one thousand obtained by dividing the
population of the state by the total number of the elected members of the assembly.

When the votes, which the elected members of all the state legislative assemblies are entitled
to cast, are calculated, then the votes to be cast by the elected members of the parliament
shall be determined.

The Drafting Committee of the constituent Assembly explained the formula. The number
of votes which every elected member of the legislative assembly of the state is entitled to cast
at the election of the president shall be –

8
See Article 55(2) (a)
9
See Article 55(2) (c)

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 Value of vote of a single M.L.A = Population of the state / Total number of the elected
members of all the legislative assemblies of the states ÷ 1000

Referring to article 55, the number of votes which each elected member of either house of
parliament is entitled to cast shall be –

Value of vote of a single M.P = Total votes of a member of all state legislative assembly /
Total number of elected members of both the house of parliament

Article 55 (3) provides that the election of the president shall be held in accordance with the
system of proportional representation by means of the single transferable vote. The object for
adopting this system is to elect that candidate who is found to be more popular among the
electors. This system is adopted when there are more than two candidates in the election of
the president. In such a case, if simple majority rule is applied , then a candidate getting less
than 50% of votes cast in the election, would be declared elected. While according to the
system of proportional representation, the candidate to be declared successful would be that
who obtains an absolute majority votes10. Under this system a quota of valid votes is fixed, to
be obtained by the candidate, to be declared elected.

Term of Office of President – Article 56

Article 56 says that the president shall hold office for a term of five years from the date on
which he enters upon his office. Even after the expiry of his term he shall continue to hold the
office until his successor enters upon his office. He is also eligible for re-election. He may be
elected for any number of terms. However, he may, by writing under his hand and addressed
to the vice-president, resign his office at any time before the completion of his term of five
years. The president may also be removed for the violation of the constitution, by
impeachment, in the manner provided in article 61.

Eligibility for Re-Election – Article 57

Article 57 says that, a person who holds, or who has held, office as president, shall be eligible
for re- election to that office. The constitution thus does not place any bar on the re-election
of the same person to the office of the president. Same president can be formed any number
of times, while in U.S.A., it can be only two times after the 22nd amendment to U.S.A.
constitution.

10
See CAD, 4, 880. See also Lalit Mohan Pandey v. Pooran Singh, 2004(5) SCALE 267.

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Qualification for Election as President – Article 58

Article 58 lays down the qualification which a person must possess for being eligible for
election as president:

(a) He must be a citizen of India ;

(b) He must have completed the age of thirty-five years ;
(c) He must be qualified for election as a member of the houses of the people.
He must, therefore, be registered as a voter in any parliamentary
constituency11.
(d) He must not hold any office of profit under the government of India or the
government of any state or under any local or other authority subject to the
control of any of the said governments.
But the following person shall not be deemed to hold any office or profit
and hence qualified for being a candidate for President ship. They are (a)
the president and the vice-president of the union, (b) the government of
any state, (c) the minister of the union or of any state.

Conditions of President’s Office – Article 59

Article 59 lays down the following conditions for the office of the president --

(a) The president cannot be a member of either house of parliament or

house of legislature of any state. If a member of either house of
parliament or of a state legislature is elected president he shall be
deemed to have vacated his seat in that house on the date on which he
enters upon his office as president.
(b) The president shall not hold any other office of profit.
(c) The president shall not be entitled without payment of rent to the use
of his official residence, which is commonly known as Rashtrapati
Bhawan.
(d) The president shall be entitled to such emoluments, allowances and
privileges as may be determined by parliament by law12. His

11
See section 4 of the Representation of People Act, 1951
12
Till provision in that behalf was made by parliament, the president was to get such all things as are specified
in the second scheduled of the constitution. See article 59(d)

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 emoluments at present are fixed at Rs. 50,000/- per month13. The
emoluments and allowances of the president cannot be diminished to
his disadvantage during the term of his office.

Oath or Affirmation by the President – Article 60

Before entering upon his office, the president has to take an oath or an
affirmation in the presence of the Chief Justice of India, or, in his absence, the senior most
judge of the Supreme Court available, to preserve, protect, and defend the constitution and
the law and to devote himself to the service and well-being of the people of India.
The president shall take oath swearing in the name of god that he will faithfully execute the
office of the president of India and will, to the best of his ability.

Procedure for Impeachment of the President – Article 61

Article 56(1)(b) provides that the president may be removed from the office for the violation
of the constitution by impeachment in the manner provided in article 61. The only ground on
which the president can be removed from his office is the violation of the constitution. The
procedure contained in Article 61, to be followed for the impeachment of the president, is as
follows –

(a) the proposal to prefer a charge against the president for violating the constitution may
be preferred or initiated in either house of parliament ,
(b) the proposal to prefer such charge must be contained in the form of a resolution,
(c) the resolution can be moved in either house of the parliament only after the expiry of
a notice of 14 days . The notice must be in writing and signed by not less than one-
fourth of the total number of members of the house in which the resolution is to be
moved. The notice must express the intention to move such a resolution ,
(d) such resolution must be passed by the house in which it is initiated by a majority of
not less than two-thirds of the total membership of the house,

13
See the President’s Emoluments and Pension (Amendments) Act, 1998

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 (e) when the resolution is passed by the house in which the charge has been preferred, the
other house shall investigate the charge or cause the charge to be investigated. During
this investigation , the president shall have the right to appear and to be represented,
(f) if after such investigation, the, house, in which the charge against the president is
investigated, passes a resolution by a majority of not less than two-thirds of the total
membership of the house, 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 is so passed.

Privilege of the President

Article 361 of the constitution guarantees the following privileges to the president:-

(1) The president 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 of those powers and duties. However, the conduct of the president may
be brought under review by any court, tribunal or body appointed or designed by
either house of the parliament for the investigation of the charge in impeachment
proceedings.
(2) No criminal proceedings whatsoever shall be instituted and continued against the
president in any court during the term of office.
(3) No process for the arrest or imprisonment of the president shall be issued from any
court during the term of office.
(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 by him in his personal
capacity whether before or after he had entered upon his office until –
(a) a notice in writing has been given to the president,
(b) two months have passed after the service of such notice , and
(c) the notice states the nature of proceeding, the cause of action, the name, residence
and description of the party taking the proceedings and the relief claimed.

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Time of holding election to fill vacancy in the office of president
and the term of office of person elected to fill casual vacancy –
Article 62

Article 62(1) provides that elections to fill the vacancy caused by the expiry of the term of
office of the president must be completed before the expiration of the term.

According to Article 62(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 and
in no case later than six months from the date of the occurrence of the vacancy. The person so
elected shall, subject to the provision of art. 56, hold office for the full term of five years
from the date on which he assumes his office.

If any vacancy occurs in the office of the president the vice-president shall act as the
president. If the vice-president is not available for any of the above reasons, the chief justice
of India and the senior most judge of the Supreme Court available will be in the line of
succession to discharge function of the president14.

Re Presidential Election case15 – 1974

In the state of Gujarat, there was in office minority government run by the congress party. On
the demand made by the opposition parties, the legislative assembly of the state was
dissolved and the state was brought under the president’s rule. The Presidential Election,
1974 was approaching. It was demanded at various quarters that election of the president
should be postponed until the elections to constitute the new legislative assembly in the state
of Gujarat were completed. The matter was so precipitated, that the president made a
reference of the question. The question referred to was – whether the election of the president
held before constituting the legislative assembly of the state of Gujarat , would
constitutionally valid.

It was contended that if the election was held without completing the Electoral College by
electing a new legislative assembly in the state of Gujarat, it would be unconstitutional. The
Supreme Court held that the election to fill the vacancy in the office of the president must be
completed before the expiration of the term of the president having regard to articles of the
14
President’s Succession Act, 1969.
15
AIR 1974 SC 1982

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constitution. Art. 56(1)( c ) applies to a case where a successor has not entered in his office
and only in such circumstances can a president whose term has expired continue in his office.

Dr. N.B. Khare v. Election Commissioner of India16 – 1957

The petitioner challenged the holding of the election on the ground that since the general
election in certain parts of Punjab and Haryana had not taken place and the Electoral College
as envisaged by art. 54 and 55 for that purpose would be incomplete; therefore the election of
the president should be postponed until the completion of Electoral College by election in the
state. The court held that the election of the president could only be challenged after the
completion of the election, i.e., after the candidate is declared elected.

The court referred to section 14 of the Presidential and Vice-Presidential Elections Act, 1952
which provided that an election of the president could be questioned either by a candidate or
ten or more electors joined together in a petition. Thus, Mr. Khare was neither a candidate at
the election nor could he procure ten electors joining him in the petition, he had no right to
challenge the constitutionally of the election.

16
AIR 1957 SC 694

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 Power of the President
The constitution confers very vast powers on the president. However, these powers have to be
read and interpreted in the light of the parliamentary system of government which is adopted
under the constitution . This subject is to be discussed under the heading position of the
president . The powers of the president are discussed below –

(1) Executive powers

(2) Military powers
(3) Diplomatic powers
(4) Legislative powers
(5) Judicial powers / pardoning powers

Executive powers –

The constitution has conferred extensive executive powers on the president. The executive
power of the union of India is vested in him. He is the head of the Indian Republic. All
executive functions are executed in the name of the president, authenticated in such manner
as may be prescribed by rules to be made by the president17 (Art.77). He has power to appoint
the Prime Minister and on his advice other ministers of the union, the judges of the Supreme
Court and the High Courts, the governors of the states, the attorney general 18, the comptroller
and auditor general19, the chairman and members of the public service commission20, the
members of the finance commission and official commission, special officer for scheduled
castes and scheduled tribes, commission to report on the administration of scheduled areas
etc. The above mentioned officials hold their office during the pleasure of the president21.
This means that he has the power to remove them from their post. This power is, however, to
be exercised subject to the procedure prescribed by the constitution. It is however, to be noted
that he has to exercise his executive powers on the advice of the Council of Ministers.

Military Powers –

17
Under article 77 see state of maharastra v. basantilal, AIR 2003 SC 4688.
18
Article 75(2)
19
See infra, 526-27
20
Article 148
21
Article 316

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The president is the supreme commander of the defense forces of the country. He has powers
to declare war and peace. However the exercise of these powers by the president is “regulated
by law”. The Parliament is empowered to regulate or control the exercise of the military
powers by the president. The military power of the president is thus subordinate to his
executive power which is exercisable by him on the advice of the cabinet.

Diplomatic Powers –

The President is the head of the state. It is he who sends the diplomatic representatives and
the High Commissioners of India to other countries. Again, it is he who receives the
diplomatic representatives of a foreign country to India. All treaties and agreements with
foreign states are entered into, in the name of the president.

Legislative Powers –

The President of India is a component part of the union parliament. In theory he possesses
extensive legislative powers. He has power to summon and prorogue the parliament and he
can dissolve the Lok Sabha. Article 85(1), however, imposes a restriction on his power. The
president is bound to summon parliament within six months from the last sitting of the former
session. If there is a conflict between the two houses of parliament over an ordinary bill he
can call a joint sitting of both houses, to resolve the deadlock (Art.108). At the
commencement of each session the president addresses either house of parliament he outlines
the general policy and Programme of the government. His speech is like that of the king in
English and is prepared by the Prime Minister. He may send message to either houses of
parliament (Art. 86)

Every Bill passed by both houses of parliament is to be sent to the president for his assent
(Art. 111). He may give his assent to the bill, or without his assent or in the case of a bill
other than a money-bill, may return it to the house for reconsideration on the line suggested
by him. If the bill is again passed by both the houses of the parliament with or without
amendment, he must give his assent to it when it is sent to him for the second time.

President can nominate 12 members to the Rajya Sabha, president possesses veto power, and
he can nominate two members in the Lok sabha belonging to the Anglo Indian community.

Ordinance – making power of the President

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 The most important legislative power of the president is his ordinance making power.
If at any time, when both houses of the parliament are not in session and the president
is satisfied that circumstances exist which render it necessary for him to take
immediate action, he may issue such ordinances as the circumstances appear to him to
require. Such ordinances, however, must be laid before both houses of parliament
before the expiration of six weeks. The president may, if he likes, withdraw such an
ordinance at any time. An ordinance promulgated under Article 123 is a law having
the same force and effect as an Act of parliament. The ordinances making power has
been vested in the president to deal with unforeseen or urgent matters. The court
cannot inquire into the reasons for the subjective satisfaction of the president or into
the sufficiency of those reasons. An ordinance can be issued only when both the
houses of the parliament are not in session.
D.C. Wadhwa v. State of Bihar22 –
This case furnishes a glaring example of abuse or ordinance-making power. The court
pointed out that between 1967 and 1981, the Bihar Governor promulgated 256
ordinances and all these were kept alive for periods ranging one to 14 years by re-
promulgation from time to time. Out of these 256, 69 were re-promulgated several
times the prior permission of the president of India. The court held that this amounted
to a fraud on the constitution and hence unconstitutional. The court observed that the
executive could not usurp the functions assigned to the legislature under the
constitution.
R.C. Cooper v. Union of India23 –
The Banking Companies Ordinance, 1969 was challenged on the ground that the
president had not satisfied himself as regards the urgency of the circumstances. The
Supreme Court, however, held that under the constitution, the president being the
constitutional head, normally acts, in all matters, including the promulgation of an
ordinance, on the advice of his council of ministers. The ordinance is promulgation on
the advice of his council of ministers and on their satisfaction. It has been held that an
ordinance passed under Article 123 stands on the same footing as an Act passed by
the legislature. It cannot be treated as an executive action or an administrative
decision.

22
AIR 1987 SC 579. It was a case decided under article 123 which confers similar ordinance making power on
the governor of the state.
23
AIR 1970 SC 564

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Power to Grant Pardons –

Under Article 72 President has power to grant pardon , reprieves, respites or remissions of
punishment or to suspend , remit or commute the sentence of any person convicted of any
offence –

(1) By court martial

(2) An offence against any law relating to a matter to which the executive power of the
union extends
(3) In all cases in which the sentence is one of death.

A Pardon completely absolves the guilt of the offender. When a convict is granted pardon,
he is completely absolved from the punishment imposed on him.

Reprieve means temporary suspension of death sentence, for example, pending a proceeding
for pardon or communication.

Respite means awarding a lesser punishment on some special ground, for example,
pregnancy of a women offender.

Commutation means the exchange of one form of punishment for another. For example,
rigorous imprisonment is commuted to simple imprisonment.

Remission means reduction of the amount of sentence without changing its character.

Kuljeet Singh v. Lt. Governor of Delhi 24

In this case, the petitioners, Ranga and Billa, were convicted for committing murder of two
innocent children and were awarded death sentence by the session court, which was
confirmed by the High Court. Their petition for special leave under Art. 136, against the
judgement of the High Court, were dismissed by the Supreme Court. Thereafter, they
presented a mercy petition to the president for the grant of pardon, which was also rejected by
him, without assigning any reason. On this, petitioners invoked the jurisdiction of the
Supreme Court by a writ petition and contended that power conferred on the president by
Article 72 to grant pardons, etc. was coupled with a duty to act fairly and reasonably.

24
AIR 1982 SC 774 (Chopra children case)

20 | P a g e
The Supreme Court admitted the petition and by a general order stayed the execution of all
those convicts whose mercy petitions, against the death sentence, were rejected by the
president or governors of the state. The court further said that even the most liberal use of the
power under this article could not have persuaded the president to impose anything less than
a sentence of death in the president case and more so, in view of the consideration taken by
the court in its judgment while confirming their death sentence.

Maru Ram v. Union of India25

In this case, a constitutional Bench of Supreme Court had observed that the power of pardon,
commutation and release, under article 72 and 161, though very wide, could not run riot. The
court said, “all public power, including constitutional power, shall never be exercisable
arbitrarily or mala fide and ordinarily guidelines for fair and equal execution are guarantors
of valid play of power”. The bench stressed the point that the power to pardon, grant
remission and commutation, being of the greatest moment, could not be a law unto itself but
it must be informed by the finer canons of constitutionalism.

Narayan Dutt v. State of Punjab 26

The question related to the power of the governor under Article 161. The appellant accused
alongwith other accused, convicted under section 148, 302,323, 149, 324, 325 and 326 on
various counts, sentenced to life imprisonment, and had appealed before the High court of
Punjab and Haryana. During the pendency of the appeals, they had petitioned under Article
161 before the governor. Expressing his belief as to the innocence of the petitioners, the
governor granted pardon to three of the seven accused and directed them to be released
immediately.

The court held that the Governor’s power of granting the pardon under Article 161 being an
exercise of executive function is independent of the court’s power to pronounce on the
innocence or guilt of the accused. In the instant order, the governor has exceeded the
permissible constitutional limits under article 161. So, we cannot approve the order of the
governor.

25
AIR 1980 SC 2147
26
AIR (2011) 4 SCC 353

21 | P a g e
Shatrughan Chauhan v. Union of India27

The issue relates to the issuance of a writ of declaration declaring that execution of sentence
of death pursuant to the rejection of the mercy petitions by the president of India is
unconstitutional and to set aside the death sentence imposed upon them by commuting the
same to imprisonment for life. Further, it is also prayed for declaring the order passed by the
Governor/President of India rejecting their respective mercy petitions as illegal and
unenforceable.

The court held the constitution validity of the death sentence in India over the span of
decades. The constitution framers did not stipulate any outer time limit for disposing the
mercy petition .

27
AIR(2013 ) 3 SCC 1

22 | P a g e
 The Vice-President of India

(Article 63)

Article 63 provides that there shall be a vice-president of India. Article 64 declares vice-
28
president to be the ex officio chairman of the council of states29. In the event of the
occurrence of any vacancy in the office of the president, by the reason of his death,
resignation or removal, or otherwise ,the vice-president shall act as the president until the
date on which the new president , elected in accordance with the provisions of the
constitution to fill such vacancy, enters upon his office30. Again, when the president is unable
to discharge his functions owing to absence, illness or any other cause, the vice-president
shall discharge his functions until the date on which the president resumes his duties31.

The Vice-President to act as President or to discharge his functions

during casual vacancies in the office, or during the absence, of
president. – Article 65

(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 vice president shall
act as president until the date on which a new president elected in accordance with
the provision of this chapter to fill such vacancy enters upon his office.
(2) When the president is unable to discharge his functions owing to absence , illness
or any cause , the vice-president shall discharge his functions until the date on
which the president resume his duties.
(3) The vise president 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 parliament by law and until provision in that behalf if is so
made , such emoluments , allowances and privileges as are specified in the second
schedule.

28
An ex officio appointment means that the appointment is by virtue of the office , without any other warrant
or appointment than that resulting from the holding of a particular office.
29
Article 64
30
Article 65(1)
31
Clause (2) of article 65

23 | P a g e
Election of Vice-President – Article 66

The Vice-President is 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 single transferable vote and the voting at such election is done by
secret ballot32. The Presidential and Vice-Presidential Elections Act, 1997, provides that there
should be 20 proposers and 20 seconders to support the candidature of a person in the
election of the Vice-President.

Qualification for the office of Vice-President –

Article 66(3) lays down that a person to be eligible for the office of the vice-president, must
possess the following qualification-

(a) He must be a citizen of India.

(b) He must have completed the age of thirty-five years.
(c) He must be qualified for election as a member of the Rajya Sabha. It requires that he
must be registered as a voter in any Parliamentary Constituency33.
(d) He must not hold any office of profit under the Government of India or the
Government of any state or under any local or other authority subject to the control of
any of the said Governments.

Time for holding Election - Article 68

Article 68 provides that an election to fill a vacancy caused by the expiration of the term of
Vice-President shall be completed before the expiration of the term of the earlier Vice-
President. While an election to fill a vacancy occurring by reason of his death, resignation or
removal or otherwise, shall be held as soon as possible after the occurrence of the vacancy34,
and the person elected to fill the vacancy shall subject to the provision of article 67, be
entitled to hold office for the full term of five years from the date on which he enters upon his
office.

32
Article 66(1)
33
See the Representation of people act, 1951
34
Clause 2 of article 68

24 | P a g e
Term of Office of the Vice-President - Article 67

Article 67 lays down that the Vice-President holds office for a term of, five years from the
date on which he enters upon his office. He shall continue in his office even after the
expiration of his term of five years until his successor enters upon his office. The Vice
President may, by writing under his hand, addressed to the President, resign his office.

Removal of Vice-President

According to the Article 67(b), the Vice-President may be removed from his office by a
resolution of the Rajya Sabha passed by a majority of all the members of the Rajya Sabha and
agreed to by the Lok Sabha. However, no resolution for the removal of the Vice-President
shall be moved in the Rajya Sabha unless at least fourteen days’ notice has been given of the
intention to move the resolution.

It may be noticed that the Constitution does not prescribe any on which a resolution for the
removal of Vice-President can be moved.

Oath of Office - Article 69

Article 69 says that the Vice-President, before entering upon his on shall make and subscribe
before the President or some person appointed in that behalf by him, an oath or affirmation
in the following form, that is to say-

"I, A.B., 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 1 am about to enter."

Conditions of Office [Article 66(2), 64 and 65(3) ]

(1) The Vice-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 of such House is elected as

25 | P a g e
 the Vice-President then, he shall be deemed to have vacated his seat in that House on
the date on which he enters upon his office as Vice-President35.
(2) The Vice-President shall be ex officio Chairman of the Rajya Sabha and shall not
hold any other office of profit36. During any period when the Vice-President acts as
'resident or discharges the functions of the President under Article 65, he shall not
perform the duties of the office of Chairman of the Rajya Sabha37. During such
period, he shall have all the powers and immunities of the President and be 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 to the Constitution38.
It may be noticed that the Constitution does not provide the salary, allowances or the
privileges to which the Vice-President is entitled to as Vice-President. He, therefore,
does not receive any salary or allowance as Vice-President. When he is acting as
President or discharging his functions, the Vice-President is entitled to such salary
and allowances as are payable to the President. And, when he is not so acting, he shall
be ex-officio Chairman of the Rajya Sabha and shall be entitled to such salary and
allowances as are determined under Article 97 for the Chairman of the Rajya Sabha.
At present, the Vice-President receives Rs. 1,25,000/ per month as salary and
allowance. After scanning the provisions relating to the office of the Vice-President,
may be noticed that not much importance is given to this office. The office is created
for the purpose of providing for an event, when there is a vacancy in the office of the
President or when the President is unable to discharge pig functions owing to absence,
illness or any other cause. The normal function of the Vice-President on the other
hand, is to preside over the Rajya Sabha.

Discharge of President’s functions in other contingencies –

Article70

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.

35
Clause 2 of article 66
36
Article 64
37
Proviso to article 64
38
Clause 3 of article 65

26 | P a g e
Matters relating to, or connected with, the election of a President
or Vice-President – Article 71

(1) All doubts and disputes arising out of or in connection with the election of a president
or vice-president shall be inquired into and decided by the Supreme Court whose
decision shall be final.
(2) If the election of a person as president or vice-president is declared void by the
supreme court, acts done by him in the exercise and performance of the power and
duties of the office of president or vice-president, as the case maybe, on or before the
date of the decision of the supreme court shall not be invalidated by reason of that
declaration.
(3) Subject to the provision of this constitution, parliament may by law regulate any
matter relating to or connected with the election of a president or vice-president.
(4) The election of a person as president or vice-president 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.

Notes on Article 72

The effect of a series of decisions of the Supreme court (and of some high courts) is as
under:-

(a) The exercise of the power by the president under Article 72 is primarily a matter for
this discretion and the courts would not interfere with his actual decision on the
merits.
(b) But courts exercise a very limited power of judicial review, to ensure that the
president considers all relevant materials before coming to his decision.
(c) The president can, in the exercise of this power, examine the evidence afresh. In
doing so, he is not sitting as a court of appeal. His power is independent of the
judiciary. He can, therefore, afford relief not only from a sentence which he regards as
unduly harsh, but also from an evident mistake.
(d) The president is not bound to hear a petitioner for mercy before he rejects the petition.

27 | P a g e
 The Prime Minister of India

(Articles 74 & 75)

Article 74(1) provides: "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".

Article 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.

Appointment of the Prime Minister - Article 75 (1)

The Prime Minister is the head of the Union Council of Ministers39. He is appointed by the
President40. This power of the President must be read in the light of the requirement
contained in Clause (3) of Article 75 which provides: "The Council of Ministers shall be
collectively responsible to the House of the People". The Constitution, thus, incorporates the
principle of Responsible Government" according to which, the executive is, made
answerable, for every act it does in relation to the administration of the affairs of the country,
to the popular House of the Legislature. In this regard, the framers of the Constitution of
India have adopted the British Cabinet System41. Therefore, the conventions operating under
the English Constitution, in regard to the relationship between the Crown and the Ministers,
are relevant in the interpretation of the Indian constitution as well.

One of the well-established conventions operating in England is that the Crown shall invite
the leader of the majority party in the popular house to be the Prime Minister and to form the
Government. So, interpreted, the President of India must invite the leader of the majority
party in the Lok Sabha to form the Government. However, if a person is not a member of the
House, if he has the support and confidence of the House, he can we chosen to head the
Council of Ministers without violating the norms of democracy and the requirement of
Article 75. Likewise, a person, who is a member of a House of State Legislature, can be
appointed Prime Minister for the said period of six months42. But, such a person must possess

39
Clause 1 of article 74
40
Clause 1 of article 75
41
Granville Austin, The Indian Constitution ; cornerstone of a nation, 1966,116-143
42
S.P.Anand v. H.D. Deve Gowada, AIR 1997 SC 272

28 | P a g e
the necessary qualifications and not be disqualified for being a member of the Legislature43.
The Prime Minister has been described as "the keystone of the Cabinet arch, which is central
to its formation, central to its life, and central to its death.44 “ Therefore, he must be a person
who can secure colleagues, and with his colleagues he must be sure of the support of the
popular House of Parliament. The system of Parliamentary Government requires that the
Prime Minister, along with his colleagues, not only be responsible to the lower House, but
that he shall be able to justify his policy in Parliament45.

Under normal circumstances, when a political party has attained absolute majority in the Lok
Sabha, the President has no choice or discretion but to the recognized leader of the party and
appoint him the Prime Minister. In case of death or resignation of the Prime Minister, the
ruling party elects a new leader. In such a case also the President shall appoint the new leader
the Prime Minister.

But, in the case of multi-party system as is prevailing in India, and when none of these parties
has secured absolute or workable majority in the lower House, the President can exercise his
personal discretion in selecting the Prime Minister. However, his discretion is conditioned by
the requirement that he must choose the person who can command the support of the majority
in the Lok Sabha. The President must explore the possibility of finding a person who can
form a stable government.

In such situations also the President s discretion is guided by certain Conventions. A

Convention operating in England is followed when the ruling party is defeated in the lower
House or when the Prime Minister has submitted resignation of his Government. According
to this Convention, the President should invite the leader of the opposition to explore the
possibility of forming a stable ministry. It was done by the President, Shri N. Sanjeeva
Reddy, by inviting Shri Y.B. Chavan, the leader of the opposition, to form the Government
after Shri Morarji Desai tendered his resignation in 1979. However, after four days of hectic
activities, Shri Chavan informed the President of his inability to form the Government.
Where none of the parties has attained absolute majority in the Lok Sabha, the President may
invite the leader of the single largest party to form the Government. Sarkaria Commission
also recommended the same. This was the case, when, after the Lok Sabha elections in May,

43
B.R. Kapoor v. State of Tamil Nadu, AIR 2001 SC 3435
44
Laski, Parliamentary Government in England, 228, quoted in jain, supra note 28, 100
45
Sir Ivor Jennings, Cabinet Government, 1959, 21.

29 | P a g e
1991, the President invited Shri Narasimha Rao, the leader of the Congress Party, which was
the single largest party, to form the Government. Again, the President appointed Shri A.B.
Vajpayee the leader of the B.J.P., the single largest party in the twelfth Lok Sabha, alter the
1996 general elections. This Convention has been followed by the Governors of the States in
constituting State Ministries.

If two or more parties form a coalition before the election and secure absolute majority in the
election, the acknowledged leader of such a coalition should be invited to form the
Government. This practice was followed in India 1977 and again in 1989. In 1977, Shri
Morarji Desai, the leader of the Janta Party, a coalition of several parties, who fought election
on the common platform, formed the Government. In 1989, Shri V.P. Singh, the leader of the
Janata Dal (a National Front, consisting of several local and national parties), was invited to
form the Government. Instances are there when the leader of the coalition or alliance formed
after the election, was invited to form the Government.

Instances are there when the leader of the coalition or alliance formed after the election, was
invited to form the government. For instance, Shri H.D. Deve Gowda, who was elected the
leader of the United Front, constituting 13 parties, formed after the 1996 general elections to
Lok Sabha, was invited and appointed the Prime Minister by the President.

It may be stated that the appointment of the Prime Minister by the President is not amenable
to scrutiny in a Court of Law. The Madras High Court rejecting a writ petition by Mr. M.R.
Parthasarthy, held that the President had to use his own criteria when appointing the Prime
Minister46.

Deputy Prime Minister

The Constitution does not provide for the office of Deputy Prime Minister. Describing a
person as Deputy Prime Minister, there ore, is descriptive only and such description does not
confer on him any powers of Prime Minister. He is for all purposes only a Minister. His
taking the oath as Deputy Prime Minister, however, does not invalidate his appointment, nor
the oath taken as such, is invalid.47" '

46
See the tribune, nov. 11, 1997
47
K.M.Sharma v. Shri Devi Lal, AIR 1990 SC 528

30 | P a g e
 COUNCIL OF MINISTERS

(Article 75)

Article 75(1) provides that the other Ministers of the Union Council of Ministers are to be
appointed by the President on the advice of the Prime Minister. It is because of the reason
that it is the Prime Minister, who must have a government, which can work together like a
team, and which can secure the support of the House of the People. Ordinarily, the Members
of the Houses of Parliament are appointed as the Ministers. A Member, who is appointed a
Minister or the Prime Minister, need not vacate his seat in the House. It is because of the fact
that our Constitution has followed the Parliamentary system of democracy as in England48.
But, even a non-Member can be included in the Council of Ministers. The only constitutional
requirement is that such a non-Member must get elected to either House of Parliament within
six months of entering upon his office as a Minister49. For instance, Shri Manmohan Singh,
when appointed as the Finance Minister in Shri Narasimha Rao’s Government, was not a
Member of either House and get elected to Rajya Sabha afterwards. The appointment of a
non-Member as a Minister is the recognition by the Constitution-makers of the possibility of
paucity of requisite talent among its Members. It does not militate against the Constitutional
mechanism and does neither militate against the democratic. Principles embodied in the
Constitution. A Minister who is not a member of either House of Parliament under Article 75
(5), includes a person who is a member of either House of State Legislature or not a member
of any House at the State or Union.

However, it has been ruled that a non-Member can be inducted into the of Ministers provided
he possesses necessary qualifications and is not disqualified for being a Member of the
Legislature under the Constitution.

Again, a Member of Parliament, who is disqualified for being a Member of the House under
Paragraph 2 of the Tenth Schedule, shall also be disqualified to be appointed as a Minister,
for duration of the period commencing from the date of his disqualification till the date on
which the term of his office as such Member would expire or where he contests any election
to either House of Parliament before the expiry of such period, till the date on which he is

48
See J. Bharat v. Government of India, AIR 2004 All. 427
49
See clause 5 of article 75

31 | P a g e
declared elected, whichever is earlier50. Again, it has been ruled that a non-Member, who has
failed to get himself elected in six consecutive months, cannot be re-appointed as Minister.
Repeatedly appointing a non- Member as Minister, the Court observed, would defeat the
basic principle of representative and responsible government51.

Article 75(2) provides that the Ministers hold office during the pleasure of the President.
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 to
the Constitution. The salaries and allowances of the Ministers shall be such as Parliament
may from time to time determine, by law52.

Oversized Council of Ministers – Prohibited

The Constitution (Ninety-first Amendment) Act, 2003 has inserted Clause (l-A) after
Clause(1) of Article 75 to the effect that the total number of Ministers, including the Prime
Minister, in the Council of Ministers, shall not exceed fifteen per cent of the total number of
Members of the House of the People. This change is incorporated, to do away with the jumbo
size Ministries, as recommended by the National Commission to Review the Working,
reported on March 31, 2002.

When should the person invited to form the Government prove his
majority in the Lok Sabha

After the resignation of the Ministry headed by Shri Morarji Desai in 1979, Shri Charan
Singh was sworn in as the Prime Minister and he constituted his Ministry. On the advice of
the Union Council of Ministers, the Lok Sabha was prorogued by the President. Soon,
thereafter, a Session of the Lok Sabha was summoned to enable the new Government to seek
a vote of confidence.

It was contended in Dinesh Chandra v. Chaudhary Charan Singh53, that the vote of
confidence should have been sought by the new government either before taking office or
simultaneously with it. The petitioner based his contention on Clause (3) of Article 75. It was
also contended that the de jure status of the new Government being doubtful, the President

50
See clause(1-B) inserted in article 75 by the constitution act, 2003
51
See S.R.Chaudary v. State of Punjab, AIR 2001 SC 2707
52
Clause 4 and clause 6 of article 75.
53
AIR 1980 Del 114.

32 | P a g e
should not have accepted the advice of such Government to prorogue the Lok Sabha. The
Delhi High Court, however, rejected the contentions and held that the Constitution did not
require that a person must prove or establish his majority in the Lok Sabha before he was
invited to be the Prime Minister. The Order in which the Clauses of Article 75 were arranged,
the Court said, showed that the Council of Ministers preceded in time the Legislature in the
process of Government. The Court thus held that the appointment of Shri Charan Singh as the
Prime Minister, before he had obtained the confidence of the Lok Sabha was constitutional.
Thus, the President may first invite a person and appoint him the Prime Minister and then ask
him to prove his majority or seek a vote of confidence in the Lok Sabha within a reasonable
time. Since the Council of Ministers headed by Shri Charan Singh was validly appointed, the
action of the President in proroguing the Lok Sabha on the advice of the new Council of
Ministers and giving them time to seek a vote of confidence was not only proper but entirely
constitutional and unobjectionable in view of Articles 75 and 85.

Madan Murari v. Chaudhury Charan Singh54

the Calcutta High Court held that the continuance of Shri Charan Singh as a caretaker Prime
Minister even after he had tendered his resignation was not unconstitutional. The Court
further said that when the Council of Ministers tendered their resignations, they did not
become ineffective unilaterally and their further continuance until alternative arrangements
were made, was not a question of re appointment and therefore, no question of taking fresh
oath of office and secrecy, arose.

Dissolution of Lok Sabha –

Article 85 (2) (b) provides that the President may dissolve the Lok Sabha before the
expiration of its term of five years. Though, formally vested, the power of dissolution must be
and is, in fact, exercised by the President, When advised by the Prime Minister. . In this
connection reference to the British constitutional Convention is relevant. In England, a well-
established Convention is that the King is bound to dissolve the House when advised by the
Prime Minister. O. Hood Phillps55 explains that in normal circumstances, the Sovereign
should dissolve Parliament when advised by the Prime Minister to do so. That, the Sovereign
should not dissolve Parliament unless advised to do so. Further, that the Prime Minister has

54
AIR 1980 Cal 95
55
Constitutional and Administrative Law, 1967,144

33 | P a g e
the power to choose the time of dissolution. If the Government is defeated in the House on a
question of policy, the government must either ask for dissolution or resign. For instance, Mr.
James Callagham defeated in the House of Commons in a no-confidence motion, advised the
Queen to dissolve the House and it was accepted. this regard, the position in India is that so
long as, the Prime Minister and his Council enjoys confidence of the Lok Sabha, the
President is bound to dissolve the Lok Sabha, when advised to do so by the Prime Minister
Opinions are expressed that the President is not bound to dissolve the House, when advised
by the Prime Minister, under the following circumstances 56–

(a) When the Prime Minister has lost majority support in the Lok Sabha;
(b) When he is unable to prove his majority when called upon aiter he is appointed as the
Prime Minister;
(c) When a vote of no-confidence is passed against his Government; or
(d) When the President is satisfied with proof that the ruling party does not have a
majority in the House.

It is said that in the above circumstance, the President may try to find out whether any
alternative Ministry, can be possible and that the mid-term poll be avoided. In this
respect, Dr. Ambedkar explained57 :

The President of Indian Union will test the feeling of the House whether the House
agrees that there should be dissolution or whether the House agrees that the affairs should
be carried on with some other leader without dissolution.

It is thus clear that the framers of the Constitution intended to repose in the President, as
the head of the State, the discretion whether or not to dissolve the Lok Sabha, particularly
under exceptional circumstances. The country had to face such a situation in 1979, when
Shri Charan Singh, the Prime Minister, who did not at any time, either had the mandate
from the people or enjoyed the majority confidence in the Lok Sabha, advised the
President to dissolve Lok Sabha. The fact that, after so advised by the Prime Minister,
President carried on discussion for a number of days with political leaders and legal
experts, established that the President did not hold him bound by the advice so tendered.
In 1991, the Janta Dal (S) Government headed by Shri Chandra Shekhar fell, the Prime

56
See sir ivor Jennings, cabinet government, 1959, 412-426; Keith, A.B., The british cabinet system, 279-309;
Anson, Law and Customs of the constitution.
57
CAD,8TH , 32-3

34 | P a g e
 Minister tendered his resignation and recommended dissolution of Lok Sabha. The
President accepted the advice of the Prime Minister and dissolved the Lok Sabha. Again,
on 3-12-1997, the United Front Government headed by Shri I.K. Gujaral, having lost
confidence in Lok Sabha, recommended to the President, the dissolution of the 11th Lok
Sabha. The President having made his own independent appraisal of the situation by the
process of "legal and political consultations " passed order under Article 85(2) (b),
dissolving the Eleventh Lok Sabha and directed the constitution of the new Lok Sabha by
the 15th March, 1998. Active application of mind by the President, apart from advice
tendered by the Council, was apparent. The decision of the President, having reached
after considering the pros and cons from all angles, which had coincided with the advice
tendered by the Council of Ministers, could not be faulted on the ground of irrationality or
arbitrariness.
U.N. Rao v. Indira Gandhi58

A Constitution Bench of the Supreme Court rejected the contention that the Council of
Ministers which having regard to the turn of events became incapable of fulfilling its role
of collective responsibilities could not tender any advice to the President and that such
advice had no legal sanctity. It would be futile to contend, the Court said, that the
President should not go by the advice of the Council of Ministers, which had become
incapable of being accountable to the House of People, The advice of such Council, the
Court said, had legal sanctity59

Dismissal of Ministry -

It is an established Convention in England that a Ministry that has lost confidence of the
popular House of Legislature, must resign. It is also required, when the Constitution
adopts, the Parliamentary Form of Government. Under such a circumstance, if the
Ministry insists on remaining in office, the President would be within his power to
dismiss the Government.

There may be a situation when a Ministry though enjoys the confidence of the Lok Sabha
but has lost the support of the people. Can the President dismiss such Ministry? Professor

58
AIR 1971 SC 1002
59
See D.S.N.V. Prasad Babu v. Union of India, AIR 1998 AP 141

35 | P a g e
 A.V. Dicey held that the King could dismiss such a Ministry60. On the other hand, Dr.
Ivor Jennings61 says that the King has no right to dismiss a Ministry so long as it enjoys
confidence of the House of Commons. But, he explains that "the King would be justified
in refusing to assent to a policy which subverted the democratic basis of the Constitution
by unnecessary or indefinite prolongation of the life of Parliament by gerrymandering
with the Constitution in the interest of one Party or by fundamental modifications of the
electoral system to the same end".

Dr. V.N. Shukla referred to the above views and observed that it would be a violation of
the democratic basis of the Constitution if Ministers wanted to remain in office when the
people had lost faith in their policies. The will of the people must in the end, prevail. He
explained that "the President Will be violating the Constitution if he allows a discredited
ministry to continue in office only because it has succeeded in managing to keep the
members of the legislature in its favour.

There are, however, difficulties in finding out that the ruling party has lost the support of
the people and in view of these difficulties, there is an amount of risk involved in such an
action if taken by the President.

Collective Responsibility

Clause (3) of Article 75 lays down that "the Council of Ministers shall be collectively
responsible to the House of People". This Clause incorporates the principle of "Collective
Responsibility". The principle of collective responsibility means that the Council
of Ministers is a body, responsible to the popular House of the Legislative for the general
conduct of the affairs of the Government. The principle requires the Council of Ministers
to work as a team and all decisions taken in the Council are deemed to be the decisions of
all its members. No matter, whatever be their personal differences of opinion within the
Council, but once the Council takes a decision, it becomes the duty of each and every
member of the Council, to stand by it and support it both in the Legislature and
outside62.”

60
Law of constitution, 1956, 601-2
61
Cabinet government , 1959, 300-01.
62
See Common Cause, a Regd. Society v. Union of India, AIR 1999 SC 2979.

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 The principle of collective responsibility is a fundamental principle of English
Constitutional Law63, the essential characteristic, the very basis of the Parliamentary form
of Government. It is a political concept. It requires the Executive to be answerable to the
Legislature for anything or everything done by it in the affairs of the administration of the
country. The principle is explained by Lord Salisbury” as follows:
For all that passes in the Cabinet every member of it who does not resign is absolutely
and irretrievably responsible and has no right afterwards to say that he agreed in one
sense to a compromise while in another he was persuaded by his colleagues...

According to Hartley and Griffith, collective responsibility" means that Cabinet

decisions bind all Ministers even if they argued in opposite directions in Cabinet. But, this
is to say no more than a Cabinet Minister who finds himself in minority must either
accept the majority view or resign. The team must not be weakened by some of its
members making clear in public that they disapprove of the government policy...

The only alternative with a Minister, who does not agree to and defend the decision of the
Council, is, to resign from the Council. In England, the principle of collective
responsibility operates as a well-established Convention.

In India, the British Convention has been incorporated as an express

provision of the Constitution under Articles 75(3) and 164(2). There have been many
instances when a Minister resigned for his disagreement with the Council. Dr. Mathai, the
then Finance Minister in Shri Nehru’s Ministry, resigned from the Council because he
disagreed with the Cabinet on the question of scope and powers of the Planning
Commission. On September 5, 1967, the then Foreign Minister Shri M.C. Chagla
resigned from the Cabinet because of his differences with the Government’s language
policy. Shri Arif Mohammed opposed the Muslim Women (Protection of Rights on
Divorce) Act, 1986 and for the reason, he resigned from Shri Rajiv Gandhi’s Ministry.

The object behind the principle of collective responsibility is to make the whole body of
persons holding ministerial office collectively or vicariously responsible for such acts of
others as are preferable to their collective volition so that even if an individual may not be

63
P.Myllai Hlychho v. State of Mizoram, 2005 (2) SCC 92.

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 personally responsible for it, yet he will be deemed to share the responsibility with those
who may actually be responsible for it. The whole Council of Ministers, thus, on issues
involving matters of policy, will have to be treated as one entity, so far as its
answerability to the Legislature is concerned. It is the Prime Minister who enforces this
principle amongst the Ministers by his ultimate power to remove a Minister from the
Council. It is an effective weapon in his hand to maintain unity in the government.

However, the principle of collective responsibility contained in Article 75(3) or Article

164 (2) does not operate as a bar against the institution of inquiries by Commissions set
up under the Commissions of Enquiry Act, 1952. Again, that, if any matter is not raised
on the floor of Lok Sabha, judicial review thereof, under Article 32, cannot be denied on
ground of collective responsibility.

It may be noticed from the past experience, that the concept of collective responsibility
has become virtually extinct in the days of coalition polities.

Individual Responsibility of Ministers

Along with the principle of "collective responsibility’ there operates the principle of
"individual responsibility". The principle of individual responsibility of Ministers
explains that if any Minister takes a decision, of his own initiative, and, without the
previous approval of the whole Council, it is only that Minister who is responsible for that
decision. He cannot throw the responsibility for that decision on his deputies or officials.
However, if such a decision is approved ex post facto by the Whole Council, it becomes
the decision of the Council for Which the principle of collective responsibility would
apply.

Duties of Prime Minister towards the President (Article 78)

Article 78 lays down the following duties of the Prime Minister towards the President -

(1) duty to communicate to the President all decisions of the Council of Ministers
relating to the administration of the affairs of the Union and proposals for legislation;
(2) duty to furnish such information relating to the administration of the affairs of the
Union and proposals for legislation as the President may call for;

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 (3) duty 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. The President may require the Prime Minister to do so. It is to ensure that the
principle of collective responsibility operates effectively.
Thus, Article 78 explains that the President, though a nominal head of the State, has at
least the right to be informed of the affairs relating to the administration of the
country. He must also be kept informed of the proposals for legislation.

The expression “affairs of the Union" in Article 78, means those matters with respect
to which the executive power of the Union extends. These may be found under
Article73 read with Article 246.

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 The Attorney - General Of India
(Article 76)

Appointment of Attorney-General
Article 76(1) provides that the President shall appoint a person who is qualified to be
appointed a Judge of the Supreme Court to be Attorney-General for India64.
Clause (4) provides that the Attorney-General holds office during the pleasure of the
President and receives such remuneration as the President may determine.

Duties of the Attorney-General

Article 76(2) lays down the following duties of the Attorney-General for India -
(a) to give advice to the Government of India upon such legal matters referred the
President;
(b) to perform such other duties of a legal character as the President, from time to
time, may assign to him;
(c) to discharge the functions conferred on him by the Constitution or any other law
for the time being in force.

The following Rules are framed for the Attorney-General for India –

(1) He shall appear in all cases in the Supreme Court in which the Government of
India is a party. The Government of India may require the Attorney-General to
appear in any High Court in any case in which the Government of India is a
party.
(2) He shall not advise or hold a brief against the Government of India.
(3) He shall not defend the accused persons in criminal proceedings.
(4) He shall not accept appointment as Director in any Company without the
previous permission of the Government of India.
(5) He has the right to speak in either House of Parliament. In that case, he is
entitled to the privileges and immunities of a member of the Parliament, but he
has no right to vote in parliament.

64
For qualification, see article 124(3)

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There was a move to combine the office of Law Minister and that of the Attorney-Genera1,
however, the move was abandoned.

The office of the Attorney-General originated in England. The reason was that the Crown
could not appear in his own Courts to support his interests in person, but was represented by
his Attorney, who bore the title of his Majesty‘s Attorney-General. The original function of
the Attorney-General was to represent the Crown. It was inevitably extended to the giving of
legal advice to the Crown. He is the chief adviser of the Crown.

It may be noticed that the advice tendered by the Attorney General, in discharge of .his duties
and constitutional obligations, itself, cannot be judicially reviewed by the Court, for, it would
not be in public interest, to raise and create controversies regarding the protected
communications between the State and its counsel65.

In England, the office of the Attorney-General is regarded as a political once. He is a member

of the popular Ministry and comes in and goes out with it. He is a member of the House of
Commons, but he is not included in the Cabinet.

In America, Australia and New Zealand, the Attorney-General is a Member of the Council of
Ministers.

Conduct of business of the Government of India – Article 77

(1) All executive action of the government of India 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 government of India, and for the allocation among ministers of the said business.

65
See Government of A.P v. Pushpendara Kaur, AIR 2004 AP 42; A.M. Mathur v. Pramod Kumar Gupta, AIR
1990 SC 1737.

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 Conclusion

It would, however, be wrong to say that the president under the Constitution of
India is merely a non-entity or an ineffective symbol. He does have marginal
discretion in exceptional and abnormal circumstances in some matters. Without
being dogmatic these matters are appointment of the Prime Ministers, dismissal of
the Council of Ministers, dissolution of the Lok Sabha. Being the head of the state,
the president is empowered to be informed of the affairs of the country. Article 78
expressly imposes a duty on the Prime Ministers, to keep the president informed of
the matters relating to the administration of the affairs of the union and proposals
for legislation. The president may call for any information relating to these matters
and the Prime Ministers shall be duty bound to furnish these to the president.
The executive branch is responsible for the implementation of regulations and
plans enacted by the legislature; primarily it looks after the regular management of
government operations. Hence, the executive organ of the country is made up of
council of ministers, elected by the parliament, involving the president and the
prime ministers.

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 Webography
1. www.Indiankanoon.org
2. www.legalcrystal.com
3. www.gktoday.in
4. www.indianconstitution.in
5. www.brainly.in
6. www.livelaw.in
7. www.casemine.com
8. www.scribd.com
9. www.presidentofindia.nic.in

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 Bibliography

 STATUTES:
 The Constitution of India

.
 BOOKS:
 Bakshi, P. M.(2006). The Constitution of India. New Delhi:
Universal Law Publishing Co.
 Kumar, Narendra (2008). Constitutional Law of India. Delhi:
Allahabad Law Agency.
 Kumar, Narendra (2016). Constitutional Law of India. Delhi:
Allahabad Law Agency.
 Pandey, J.N. (2005). Constitutional Law of India. Allahabad:
Central Law Agency.

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