Chapter 16

The Union executive

(Articles 52-78)

(A) the President

Article 52. The President of India

Who is the executive head of the State?

There shall be a President of India.

The central executive consists of the President and the Council of Ministers headed by the Prime Minister. It is of the
parliamentary type insofar as the Council of Ministers is responsible to the Lok Sabha. The President is the Head of the
State and the formal executive. All executive action at the centre is expressed to be taken in his name. The office of
the President came into existence immediately after the Constitution was adopted on 26th November, 1949.

Article 53. Executive power of the union

What are the executive powers of the union?

(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with this Constitution.

(2) Without prejudice to the generality of the foregoing provision, the supreme command for the Defence Forces of the
Union shall be vested in the President and the exercise thereof shall be regulated by law.

(3) Nothing in this article shall-

(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any
State or other authority; or

(b) prevent Parliament from conferring by law functions on authorities other than the President.

Rai Sahib Ram Jawaya Kapur v. State of Punjab, MANU/SC/0011/1955 : AIR 1955 SC 549: 1955 SCJ 504: (1955) 2 SCR
225. Executive functions comprises both determination of policy as well as carrying it into execution. This evidently
includes 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. Executive
function embraces the direction of general policy.

Jayantilal Amritlal Shodhan v. F.N. Rana, MANU/SC/0046/1963 : AIR 1964 SC 648: (1964) 2 SCA 284: (1964) 5 SCR 294.
The executive now exercises the powers of subordinate legislation and of administrative justice. It cannot be assumed
that the legislative functions are exclusively performed by the legislature, executive functions by the executive and
judicial functions by the judiciary alone.

Article 54. Election of President

Define the process and manner of election of President

The President shall be elected by the members of an electoral college consisting of-

(a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States.

Explanation.-In this article and in article 55, 'State' includes the National Capital Territory of Delhi and the

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 Union Territory of Pondicherry.

Article 55. Manner of election of President

(1) As far as practicable, there shall be uniformity in the scale of the 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 which each elected member of Parliament and of the Legislative Assembly of
each State is entitled to cast at such election shall be determined in the following manner-

(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples
of one thousand in the quotient obtained by dividing the population of the State by the total number of the
elected members of the Assembly;

(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote
of each member referred to in sub-clause (a) shall be further increased by one;

(c) each elected member of either House of Parliament shall have such number of votes as may be obtained by
dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under
sub-clauses (a) and (b) by the total number of the elected members of both Houses of Parliament, fractions
exceeding one-half being counted as one and other fractions being disregarded.

(3) The election of the President shall be held in accordance with the system of proportional representation by means of
single transferable vote and the voting at such election shall be by secret ballot.

Explanation.-In this article, the expression 'population' means the population as ascertained at the last
preceding census of which the relevant figures have been published:

Provided that the reference in this Explanation to the last preceding census of which the relevant
figures have been published shall, until the relevant figures for the first census taken after the year
2026 have been published, be construed as a reference to the 1971 census.

In Re, Presidential Election, 1974, AIR 1974 SC 1682: (1974) 2 SCC 33: (1975) 1 SCR 504. The Supreme Court has ruled
that the election of the President can be held when a State Assembly has been dissolved under article 356 and its
members are unable to participate in the election.

Article 56. Term of office of President

Define terms, eligibility and qualification for election as President

(1) The President shall hold office for a term of five years from the date on which he enters upon his office:

Provided that-

(a) the President may, by writing under his hand addressed to the Vice-President, resign his office;

(b) the President may, for violation of the Constitution, be removed from office by impeachment in the
manner provided in article 61;

(c) the President shall, notwithstanding the expiration of his term, continue to hold office until his
successor enters upon his office.

(2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be
communicated by him to the Speaker of the House of the People.

Article 57. Eligibility for re-election

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 A person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution, be
eligible for re-election to that office.

Article 58. Qualification for election as President

(1) No person shall be eligible for election as President unless he:-

(a) is a citizen of India,

(b) has completed the age of thirty-five years, and

(c) is qualified for election as a member of the House of the People.

(2) A person shall not be eligible for election as President if he holds 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
Government.

Explanation.-For the purposes of this article, a person shall not be deemed to hold any office of profit by reason
only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either
for the Union or for any State.

This article lays down the qualification which a person must possess for being elected to the office of the President of
India. The person must be a citizen of India and of 35 years of age, and must be qualified for election as a member of
the House of the People. Thus, a person contesting for the office of the President must be a voter in any Parliamentary
constituency.

Article 59. Conditions of President's office

(1) The President shall not be a member of either House of Parliament or a House of the Legislature of any State, and if
a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be
deemed to have vacated his seat in that House on the date on which he enters upon his office as President.

(2) The President shall not hold any other office of profit.

(3) The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled
to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that
behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.

(4) The emoluments and allowances of the President shall not be diminished during his term of office.

The President's salary has been raised to Rs. 1,50,000 per month from Rs. 50,000 per month. His salary and allowances
cannot be diminished during his term of office.

Article 60. Oath or affirmation by the President

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 seniormost 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 faithfully execute the office of President (or discharge the functions of the President) of
India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will
devote myself to the service and well-being of the people of India."

Before entering upon his office, the President has to make and subscribe to an oath or affirmation in the prescribed form
in the presence of the Chief Justice of India or, in his absence, the seniormost judge of the Supreme Court available. In
his oath, the President undertakes to protect and defend the Constitution and the law and to devote himself to the

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 service and well-being of the people.

Article 61. Procedure for impeachment of the President

What is the procedure for impeachment of the President?

(1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either
House of Parliament.

(2) No such charge shall be preferred unless-

(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen
days notice in writing signed by not less than one-fourth of the total number of members of the House has been
given of their intention to move the resolution, and

(b) such resolution has been passed by a majority of not less than two-thirds of the total membership of the
House.

(3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or
cause the charge to be investigated and the President shall have the right to appear and to be represented at such
investigation.

(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total
membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge
preferred against the President has been sustained, such resolution shall have the effect of removing the President from
his office as from the date on which the resolution is so passed.

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. 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 misdemeanours.

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.

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

(1) An election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the
expiration of the term.

(2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or
otherwise shall be held as soon as possible after, and in no case later than six months from the date of occurrence of
the vacancy; and the person elected to fill the vacancy shall, subject to the provisions of article 56, be entitled to hold
office for the full term of five years from the date on which he enters upon his office.

In re Presidential Election case, AIR 1974 SC 1982: (1974) 2 SCC 33: (1975) 1 SCR 504. The Supreme Court held that
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 62(1), 54 and 55 of the Constitution. Article 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.

Article 361. Protection of President

Define Vice-President and also explain election, terms and qualification required for Vice-President

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 (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 and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed
or designated by either House of Parliament for the investigation of a charge under article 61:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring
appropriate proceeding against the Government of India.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President in any court during his term
of office.

(3) No process for the arrest or imprisonment of the President shall issue from any court during his 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 or purporting to be done by him in his personal capacity, whether before or after he
entered upon his office as President, until the expiration of two months next after notice in writing has been delivered to
the President or left at his office stating the nature of the proceedings, the cause of action, the name, description and
place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

The ambit of this immunity is very extensive. No court can compel the President to exercise or not to exercise any
power, or to perform or not to perform any duty nor can a court issue any writ in respect of the President's official acts
or omission. He is not amenable to any mandate, writ or direction from any court. No court can compel him to show
cause or defend his action. In the case of official acts, an absolute immunity from the process of the court is given to
the President. When any official act of the President is challenged on the ground of mala fide, the immunity under article
361 extends to him and he cannot be called upon personally to defend himself against such an allegation. Nevertheless,
the validity of the act can be questioned and the Government has to defend it.

(B) the Vice-President

Article 63. The Vice-President of India

There shall be a Vice-President of India.

Article 64. The Vice-President to be ex-officio Chairman of the Council of States

The Vice-President shall be ex-officio Chairman of the Council of States and shall not hold any other office of profit.

Provided that during any period where the Vice-President acts as President or discharges the functions of the
President under article 65, he shall not perform the duties of the office of Chairman of the Council of States and
shall not be entitled to any salary or allowance payable to the Chairman of the Council of States under article 97.

Article 65. The Vice-President to act as President or to discharge his functions during casual vacancies in the office, or
during the absence of President

(1) In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or
removal, or otherwise, the Vice-President shall act as President until the date on which a new President elected in
accordance with the provisions of this Chapter to fill such vacancy enters upon his office.

(2) 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 duties.

(3) The Vice-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 is so made, such emoluments,

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 allowances and privileges as are specified in the Second Schedule.

Article 66. Election of Vice-President

(1) The Vice-President shall be elected by the members of an electoral college consisting of the members of both Houses
of Parliament in accordance with the system of proportional representation by means of the single transferable vote and
the voting at such election shall be by secret ballot.

(2) 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 House of Parliament or of a House the Legislature of any State be elected Vice-
President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as
Vice-President.

(3) No person shall be eligible for election as Vice-President unless he-

(a) is a citizen of India;

(b) has completed the age of thirty-five years; and

(c) is qualified for election as a member of the Council of States.

(4) A person shall not be eligible for election as Vice-President if he holds 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.

Explanation.-For the purposes of this article, a person shall not be deemed to hold any office of profit by reason
only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either
for the Union or for any State.

Dr. Ambedkar, Chairman of the Drafting Committee, said:

"The President is the head of the State and his power extends both to the administration by the centre as well
as to the States. It is necessary that in his election, not only members of Parliament should play their part, but
the members of the State legislatures should have a voice, but when we come to the Vice-President, his normal
functions are to preside over the Council of States.

Article 67. Terms of office of Vice-President

The Vice-President shall hold office for a term of five years from the date on which he enters upon his office:

Provided that-

(a) a Vice-President may, by writing under his hand addressed to the President, resign his office;

(b) a Vice-President may be removed from his office by a resolution of the Council of States passed by a
majority of all the then members of the Council and agreed to by the House of the People; but no
resolutions for the purpose of this clause shall be moved unless at least fourteen days' notice has been
given of the intention to move the resolution;

(c) A Vice-President shall, notwithstanding the expiration of his term continue to hold office until his
successor enters upon his office.

The normal tenure of office of the Vice-President is five years from the date he enters upon his office. He may,
however, resign his office before the expiry of the term by writing to the President. He may also be removed from office
by a resolution of the Council of States passed by a majority of all the then members of the House and agreed to by the
House of the People.

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Article 68. Time of holding election to fill vacancy in the office of Vice-President and the term of office of person
elected to fill casual vacancy

Vice-President and the term of office of person elected to fill casual vacancy.-An election to fill a vacancy caused by
the expiration of the term of office of Vice-President shall be completed before the expiration of the term. An election to
fill a vacancy in the office of Vice-President occurring by reason of his death, resignation or removal, or otherwise shall
be held as soon as possible after the occurrence of the vacancy, and the person elected to fill the vacancy shall be
entitled to hold office for the full term of five years from the date on which he enters upon his office.

Article 69. Oath or affirmation by the Vice-President

Every Vice-President shall, before entering upon his office, 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 that I will bear true faith and allegiance to the Constitution of India as by law established and that I
will faithfully discharge the duty upon which I am about to enter".

Article 70. Discharge of President's functions in other contingencies

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.

Article 71. Matters relating to, or connected with, the election of a President or Vice-President

(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 powers and duties of the office of President or Vice-President, as the case may be,
on or before the date of the decision of the Supreme Court shall not be invalidated by reason of that declaration.

(3) Subject to the provisions of this Constiution, 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.

Charan Lal Sahu v. Neelam Sanjeeva Reddy, MANU/SC/0401/1978 : AIR 1978 SC 499: 1978 UJ (SC) 134: (1978) 2 SCC
500: 1978 (2) SCJ 51. Under section 14 of the Presidential and Vice-Presidential Election Act, 1952, the petitioner
challenged the election of Sh. Reddy as President of India at the Presidential election held on July 19, 1977. A question
was raised whether the petitioner had locus standi to maintain the petition in view of sections 5B and 5C of the Act and
whether he could challenge the validity of these sections. It was held by the Supreme Court that the petitioner was not
duly nominated nor was one who could claim to be so nominated and that his nomination paper was rightly rejected by
the returning officer as required under the Act.

Indira Nehru Gandhi v. Raj Narain, (1976) 2 SCR 347: MANU/SC/0304/1975 : AIR 1975 SC 2299: 1975 Supp SCC 1. In this
case, the Supreme Court struck down article 329A

clause (4) of the Constitution on the ground that it violated the basic structure of the Constitution. Clause (3) of article
71 did not affect the basic structure.

Dr. Narayan Bhaskar Khare v. Election Commission of India, MANU/SC/0022/1957 : AIR 1957 SC 694: 1957 SCC 344:
1957 SCJ 663. Clause (4) of this article was introduced by the Constitution (Eleventh Amendment) Act, 1961 to
foreclose any challenge of the kind made in this case that the Presidential election should be stayed till all vacancies in
Parliament and State legislature are filled.

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Powers of the President

What are the powers of the President?

Executive Powers of President

(a) Powers as head of the State.-According to article 53, the executive power of the Union vests in the
President, and according to article 77 executive actions of the Government of India are to be taken in his name.
In foreign countries, he represents the nation. He sends and receives ambassadors and other diplomatic agents.
All treaties and international agreements are made in his name though their implementation may require legislation
by Parliament. He can declare a State of war with any country or that a state of war with any country ended.

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

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

(d) Powers in relation to Council of Ministers.-The President appoints Prime Minister and other members of the
Council of Ministers and they hold their offices during the pleasure of the President. Article 77(3) empowers the
President to make rules for some convenient transaction of the business of the Government of India and for
allocation of such business among the members.

(e) Power to grant Pardon.-Under clause (1) of article 72 - The President shall have the power to grant pardons,
reprieves, respite or remission of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence-

(a) in all cases where the punishment or sentence is by a court-martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the
executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

Clause (2) of article 72 provides that nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on
any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a court-martial.

Clause (3) of article 72 provides that nothing is sub-clause (c) of clause (1) shall affect the power to suspend, remit or
commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

Explain the pardoning power of President with the help of decided case laws

Pardon.-Pardon means to foregive a person of his offence. A pardon is an act of grace. It cannot be demanded as a
matter of right. A pardon not only removes the punishment but places the offender in the same position as if he had
never committed the offence. It is a purely executive act.

Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, AIR 1981 SC 2239. It was contended that President cannot exercise
his discretion arbitrarily, particularly in case of death sentence. A pardon may be absolute or conditional. A pardon is
conditional where it does not become operative until the grantee has performed some specified act, or where it becomes
valid when some specified event happens.

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 Pardon can be granted at any stage after the commission of the offence, before legal proceedings are taken, during
pendency of proceedings or after the conviction.

Reprieve.-Reprieve means temporary suspension of punishment fixed by law e.g., where he files a mercy petition or a
woman pleads pregnancy.

Respite.-Respite means postponement of the execution of sentence to a future date.

Commute.-Commute means to change the nature of punishment e.g., to commute a death penalty into life imprisonment
or rigorous imprisonment into a simple one.

Remit.-Remit means to reduce the amount of punishment without changing the nature of the punishment e.g., to reduce
10 years' imprisonment to that of 5 years.

K.M. Nanavati v. State of Bombay, MANU/SC/0063/1960 : AIR 1961 SC 112: (1961) 1 Cr LJ 173: (1961) 1 SCA 54:
(1961) 1 SCR 497: 1961 (2) SCJ 100. It was held that the power to suspend a sentence is subject to the rules made by
the Supreme Court with respect to cases which are pending before it in appeal.

Kehar Singh v. Union of India, MANU/SC/0240/1988 : (1989) 1 SCC 204: 1989 Cr LJ 941: JT 1988 (4) SC 693:
MANU/SC/0240/1988 : (1989) 1 SCC 204: 1989 (1) Crimes 238: 1989 SCC (Cri) 86. Article 72 is of the widest amplitude,
can contemplate myriad kinds and categories of cases with facts and situations varying from case-to-case, in which the
merit and reasons of State may be profoundly assisted by prevailing occasion and passing time.

The Court observed in this case that article 72 falls squarely within the Judicial domain and can be examined by the
court by way of judicial review.

Legislative Power of the President

Explain the ordinance making power of President

(a) Participation of the Executive in the Legislative Process.-The Council of ministers being an integral part of Parliament
participates intimately in the legislative process, and discharges important functions in relation to Parliament. This
concept is underlined by making President a component part of Parliament. The executive's power to convene and
prorogue Parliament, to dissolve Lok Sabha, presentation of Bills to Parliament and the requirement of Presidential assent
for transforming a Bill passed by the two Houses into an Act are some of the factors which denote the intimate role
played by the executive in relation to the legislative process.

President may address any or both Houses of Parliament and send message to either House with respect to a Bill pending
in Parliament or otherwise. There are several provisions in the Constitution which require prior recommendation of the
President for introducing legislation or some matters in a House of Parliament. As for example-

(i) President's recommendation is required to introduce in either House a Bill for the formation of new States or
alteration of areas, boundaries or names of existing States (Article 3).

(ii) A money Bill cannot be introduced without the recommendation of the President [Article 117(1)].

(iii) President's recommendation is required for consideration by a House of a Bill involving expenditure from the
Consolidated Fund of India [Article 117(3)].

(iv) Prior recommendation of the President is required for introducing in either House of Parliament any Bill
affecting any tax in which States are interested (Article 274).

(b) Rule-Making Powers.-Several Constitutional provisions confer rule-making powers on the Central Executive enabling it
to prescribe detailed provisions for several matters, as for example:

(a) authentication of orders and instruments made and executed in the name of the President [Article 77(2)];

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 (b) the more convenient transaction of the government's business [Article 73(3)];

(c) conditions of services etc., of Audit and Account Department [Article 148(5)] Chairman and Members of the
Union Public Services Commission [Article 318], secretariat and staff and House of Parliament [Article 98(3)];

(d) consultation with the UPSC regarding appointment of officials of the Supreme Court [Article 146(1)];

(e) dual membership of Parliament and State Legislatures [article 101(2)].

(f) procedure to be followed at the joint meeting of the two Houses of Parliament [Article 118(3)];

(g) regulating the requirement and conditions of service of person appointed to services and posts in connection
with the affairs of the Union [Proviso to Article 309].

(c) Ordinance making powers.-(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exists which render it necessary for him to take immediate action, he may promulgate such
ordinance as the circumstances appears to him to require.

(2) An Ordinance promulgated by the President under article 123 shall have the same force and effect as an Act of
Parliament, but every such Ordinance-

(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from
the re-assembly of Parliament; or if before the expiration of that period resolution disapproving it are passed by
both Houses, upon the passing of the second of those resolutions; and

(b) may be withdrawn at any time by the President.

Explanation: Where the Houses of Parliament are summoned to re-assemble on different dates, the period
of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) if and so far as an ordinance under the article makes any provision while Parliament would not under this Constitution
be competent to enact, it shall be void.

R.C. Cooper v. Union of India, MANU/SC/0011/1970 : AIR 1970 SC 564: (1970) 3 SCR 530: (1970) 1 SCC 248. The
constitutional validity of the Banking Companies (Acquisition and Transfer of Undertaking) Ordinance, 1989, was
challenged. By the Ordinance, the Central Government nationalised a number of private banks. It was argued that the
Ordinance was invalid because the condition precedent to the exercise of the power under article 123 does not exist.
The Government's argument was that the condition of satisfaction of the President is "purely subjective" and the
Government was under no obligation to disclose to existence of, or to justify the circumstances.

The Court ruled that the satisfaction of the President is subjective and the only way in which the exercise of power by
the President can be challenged is by establishing 'bad faith or mala fide and corrupt motive.

A.K. Roy v. Union of India, MANU/SC/0051/1981 : AIR 1982 SC 710: 1982 Cr LJ 340: (1982) 1 SCC 27: 1982 SCC (Cri)
152: 1982 (2) SCJ 68. The Supreme Court has emphasized that an Ordinance is law and is a product of exercise of
legislative power. It is 'law' for the purposes of article 21.

Emergency Power of President.-If the President is satisfied that a grave emergency exists whereby security of India or
any part thereof is threatened, emergency may be proclaimed by him under article 352. During the period the
proclamation is in force. President may make modifications in distribution of revenues between Union and States and
suspend enforcement of fundamental rights when on report of the Governor or otherwise, he is satisfied that
Government of State cannot be carried on in accordance with the provisions of the Government. During financial
emergency under article 360, President is empowered to issue necessary directions requiring Money Bills or other Bills of
State to be reserved for his consideration and reduction of salaries of persons serving under the Union or States.

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Article 73. Extent of executive power of the Union

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extends-

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority, jurisdiction as are exercisable by the Government of India by virtue
of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not save as expressly provided in
this Constitution or in any law made by Parliament, extend in any State to matters with respect to which
the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding
anything in this article continue to exercise in matters with respect to which Parliament has power to make laws for that
State such executive power or functions as the State or officer or authority thereof could exercise immediately before
the Commencement of this Constitution.

(c) Council of Ministers

Define the election of Prime Minister and other Ministers

Article 74. Council of Ministers to aid and advice President

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in
the exercise of his functions, act in accordance with such advice:

Provided that the President may request the Council of Minsters to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(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.

Article 75. Other provisions as to Ministers

Explain in detail the S.R. Bommai case

(1) The Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the
advice of the Prime Minister.

(1A) 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.

(1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of
that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause
(1) 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 declared elected whichever is earlier.

(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to the House of the People.

(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy
according to the forms set out for the purpose in the Third Schedule.

(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the

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expiration of that period cease to be a Minister.

(6) The salaries and allowances of Ministers shall be such as Parliament may from time-to-time by law determine and,
until Parliament so determines, shall be as specified in the Second Schedule."

According to article 53 the executive power of the union is vested in the President and is exercisable by him in
accordance with the Constitution. Article 74 expressly provideds for a Council of Ministers with a Prime Minister at the
head to aid and advice the President in the exercise of his functions. The President is only a constitutional head and
acts on the aid and advice of the Council of Ministers.

Articles 74 and 75 which deal with the composition and status of the Council of Ministers are sketchy and very generally
warded. The framers of the Indian Constitution left these matters undefined so that these may be regulated by
practices and conventions.

U.N. Rao v. Indira Gandhi, MANU/SC/0059/1971 : AIR 1971 SC 1002: (1971) 1 Civ Ap J (SC) 176: 1971 (Supp) SCR 46.
The Supreme Court held that even after the dissolution of Lok Sabha, the Council of Ministers does not cease to hold
office. Article 74(1) is mandatory one and, therefore, the President cannot exercise the executive power without the aid
and advice of the Council of Ministers. Any exercise of executive power without such aid and advice will be
unconstitutional in view of article 75(1).

Samsher Singh v. State of Punjab, MANU/SC/0073/1974 : AIR 1974 SC 2192: 1974 Serv LR 701: 1974 SCC (Lab) 550:
(1975) 1 SCR 814. The Supreme Court held that the President and the Governor are only "constitutional or formal
heads". They exercise their powers and functions under the Constitution only with the aid and on the advice of the
Council of Ministers. The Court said that our Constitution embodies generally the Parliamentary or cabinet system of
Government on the British Model, both for the Union and the States.

In article 74, the proviso was added by the 44th Amendment Act, 1978 which intended to prevent the recurrence of the
situation which arose in 1975 when the President had to sign the Emergency Proclamation only on the advice of the then
Prime Minister, Indira Gandhi, without consulting her cabinet colleagues.

S.R. Bommai v. Union of India, MANU/SC/0444/1994 : AIR 1994 SC 1918: 1994 AIR SCW 2946: JT 1994 (2) SC 215:
MANU/SC/0444/1994 : (1994) 3 SCC 1: (1994) 2 SCR 644. The Supreme Court has clarified the implications of article
74(2) and observed that no court is concerned with what advice was tendered by the Minister to the President. The
court is only concerned with the validity of the order. An order cannot be challenged on the ground that it is not in
accordance with the advice tendered by the Minister or that it is not based on an advice.

Article 74(2) protects and preserves the secrecy of the deliberations between the President and his Council of Ministers.
Its scope is limited. It does not immunize orders and acts done by the President in exercise to his functions. Article
74(2) cannot override the basic provisions of the Constitution relating to judicial review when any action taken by the
President in exercise of his functions is challenged, it is for the Council of Ministers to justify the same, since the
President acts under article 74(1).

The Prime Ministers appointed by the President under article 75(1). This is one act which the President performs in his
discreation without the advice of the Council of Ministers or the Prime Minister. Clause (1A) and (1B) of article 75 was
added by the 91st Amendment Act, 2003. The new clause (1A) provides that the total number of Ministers, include the
Prime Minister, in the Council of Ministers shall not exceed 15% of the total number of members of the House of the
people.

The new clause (1B) of article 75 provides that a member of either House of Parliament belonging to any political party
who is disqualified for being a member of that House on the ground of defection under paragraph 2 of Tenth Schedule
shall also be disqualified to be appointed as a Minister under

clause (1) of 75, till he is again elected.

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 The Council of Ministers consists of three categories of Ministers Minister of Cabinet Rank, Minister of State and Deputy
Ministers. The Cabinet is the smaller body of the Council of Ministers. The Cabinet is the supreme policy making body. All
senior most Ministers are the Members of the Cabinet.

Removal of Ministers.-Clause (2) lays down that Ministers hold office during the pleasure of the President. Each Minister
holds his office at the President's pleasure indicates that his office is at all time at the Prime Minister's disposal. The
President acts on the advice of the Prime Minister. Clause (2) only applies to the dismissal of Ministers. It does not apply
to the dismissal of the Council of Ministers.

Collective Responsibility.-Clause (3) provides the basic principle of Parliamentary Government is the collective
responsibility of Minister to a statutory form. The Council of Ministers are responsible to the Lok Sabha or the House of
the People not as individuals alone, but collectively also.

Common Cause, A Registered Society v. Union of India, (1996) 6 SCC 667. The Supreme Court observed that collective
responsibility has two meanings: The first meaning which can legitimately be ascribed to it that all members of a
Government are unanimous in support of its policies and would exhibit that unanimity in public occasions although while
formulating the policies.

The Council of Ministers work as a team and all decisions taken by the Cabinet are the joint decisions of all its members.
No matter whatever be their personal differences of opinion within the cabinet, but once a decision has been taken by
it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside.

Article 78. Duties of Prime Minister as respects the furnishing of information to the President etc

What are the duties of Prime Minister in respect of President?

It shall be the duty of the Prime Minister-

(a) 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;

(b) to furnish such information relating to the administration of the affairs of the Union and proposal for legislation as the
President may call for; and

(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a
decision has been taken by a Minister but which has not been considered by the Council.

Clause (a) makes it clear that though the President takes no part in the formal deliberations of Ministers, he is
constitutionally entitled to criticise the conduct of the executive, and for these purposes decisions of the Council of
Ministers relating to the administration of the affairs of the Union are communicated to the President. Under clause (b),
it is the duty of the Prime Minister to furnish such information relating to the Union administration and legislative
proposals as the President may call for. Clause (c) expressly affirms the doctrine of collective responsibility. It shall be
the duty of the Prime Minister, if the President so requires, to submit for reconsideration 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 of Ministers.

(d) Attorney-General For India

Explain the Attorney-General of India

Article 76. Attorney-General

(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-
General for India.

(2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and
to perform such other duties of a legal character, as may from time-to-time be referred or assigned to him by the

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 President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time
being in force.

(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of
India.

(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as
the President may determine.

In England office of the Attorney-General is regarded as political. He is a member of the Ministry. In India, Attorney-
General is not a member of Council of Ministers. There is distinct past of Minister who is member of the Council of
Ministers. According to article 88, every Minister and Attorney-General for India shall have the right to speak and
otherwise take part in the proceedings of either House of Parliament or any joint sitting of both Houses and any
committee of which he may be named as a member but he shall not be entitled to vote.

The appointment of Attorney-General is made on the basis of professional competence and not on political
considerations. He is non-party man, is appointed because of his competence as a lawyer and he is not a member of the
cabinet.

Article 77. Conduct of business of the Government of India

(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.

Rai Sahib Ram Jawaya Kapur v. State of Punjab, MANU/SC/0011/1955 : AIR 1955 SC 549: 1955 SCA 577: 1955 SCJ 504:
(1955) 2 SCR 225. The decision taken by the officers authorised under the rules of business is regarded as the decision
of the Government of India. The wheels of the Government will stop if all decisions were required to be taken by the
President or even by the Ministers.

A. Sanjeevi Naidu v. State of Madras, MANU/SC/0381/1970 : AIR 1970 SC 1102: (1970) 2 SCJ 582: (1970) 2 Andh WR
(SC) 98. These rules have statutory force and are binding. Therefore, sanction for prosecution of an employee of the
Central Government under the Prevention of Corruption Act, was held not valid when it was granted by a Ministry other
than the one authorised to do so under the rules of business.

Union of India v. Naveen Jindal, MANU/SC/0072/2004 : AIR 2004 SC 1559: 2004 AIR SCW 705: JT 2004 (2) SC 1:
MANU/SC/0072/2004 : (2004) 2 SCC 510: (2004) 1 SCALE 677: 2004 (1) Supreme 880: 2004 (2) UJ (SC) 955. Business
rules cannot overside a provision made by an Act or by any statutory rules.

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 © Universal law Publishing Co.

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