UNION EXECUTIVE

Introduction

Article 52 of the Constitution says that there shall be a

President of India. He is the head of the Slate. The executive

power of the Union, Article 53 says, shall be vested in the

President and it shall be exercised by him in accordance with the

Constitution either directly or through officers subordinates to

him. It has been held in Emperor v. Sibnath Banerjee,' that the

expression ''officers subordinate to him" includes a minister also.

The expression 'executive power' is not defined in the

Constitution. Article 73, however, provides that the executive

power of the Union shall extend to the matters with respect to

which Parliament has power to make laws and includes the

exercise of such rights, authority and jurisdiction as are

execrable by the Government of India by virtue of any treaty of

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 a modern Stale is

not capable of any precise definition

But the executive power of the Union does not extend to a

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matter in the Concurrent List unless (1) expressly provided in

the Constitution e. g., Articles 256, 257. 258, 353 and 356, or (2)

expressly entrusted by a law made by Parliament. Clause (2) of

Art. 73 is an exception to the rule laid down in clause (1). This

clause 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

authorised to exercise before the commencement of the

Constitution. It should not, however, encroach upon any legal or

fundamental rights of citizens.

Qualifications.Article 58 lays down the qualifications which a

person must-possess for being elected to the office of the

President of India;

(a) He must be a citizen of India.

(b) He must have completed the age of 35 years.

(c) He must be qualified for election as a member of the House

of the People (i.e. he must be registered as a voter in any

Parliamentary Constituency),

(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.

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 But the following persons shall not be deemed to hold any

office or profit and hence qualified for being a candidate for

Presidentship. They are (a) the President and Vice-President of

the Union (b) the Government of any State, (c) the Minister of the

Union or of any State [Art. 58].

2. Condition of President's Office..-Article 59 says that

the President cannot be a member of either House of Parliament

or of a House of the 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. The President shall not hold any other office of profit.

3. Emoluments and allowances of President.The

President shall be entitled to use his official residence free of

rent. He is also entitled to such emoluments 'allowances and

privileges as may' be determined by Parliament bye law and until

provision in (hat behalf is so made, such emoluments,

allowances and privileges, as are specified in me Second

Schedule. By passing the president's emolument and pension

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(Amendment) Act, 3998 Parliament has raised the President's

monthly emolument from Rs. 20,000 to Rs. 50,000 per month-

The Act has also raised the President's pension from Rs. 1.20

Lakh to Rs. 3 Lakhs per annum. His salary and allowances

cannot be diminished during his term of office. He is permitted

to spend to total amount of Rs. 15,26,000 a year on travel-

entertainment, discretionary grants, staff, household expenses

and his own allowances.

Election of President.-The President of India is not directly

elected by the people'. An. 54 provides that the President shall be

elected by 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.

The Constitution (70th Amendment) Act, 1992 has added a

new explanation to Art. 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. As of the

National territory Delhi and the Union territory will be included

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in the electoral college of the President.

The nominated members of the above Houses at the Centre

and the States do not have voting rights in the election of the

President. The election of the President shall be held in

accordance with the system of proportional representation by

means of the single transferable vote [Art. 55 (3)]. The system

adopted for voting is secret ballot.

Every elected member of the Legislature Assembly of a State

shall have as many voles as there are multiples of 1000 in the

quotient obtained by dividing the population of the State by the

total number of the elected members of Assembly,

POWERS OF THE PRESIDENT

Executive powers-The Constitution has conferred

extensive executive power. on the President. The executive power

of the Union of India is vested in him. He is the head of the

Indian Republic. Ail 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 President (Art. 77). He has

power to appoint the Prime Minister and on his advice other

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Ministers of the Union, the Judges of the Supreme Court, and

the High Courts, the Governors of the States, the Attorney

General, the Comptroller and Auditor-General, the Chairman

and Members of the Public Service Commission, the Members of

the Finance Commission and Official Commissions, Special

Officer for Scheduled Castes and Scheduled Tribes, Commission

to report on the administration of Scheduled Areas, Commission

to investigate into the conditions of backward classes. Special

Officer for linguistic minorities. The above-mentioned officials

holds their office during the pleasure of the President- 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 hat he

has to exercise his executive powers on the advice of the Council

of Ministers

Military Powers.The President is the Supreme

Commander of the Defence 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

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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.As the head of the State, the

President sends and receives Ambassadors, and other diplomatic

representatives. All treaties and international agreements are

negotiated and concluded in the name of the President though

subject to ratification by Parliament.

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 of a joint session of a

Parliament.

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Ordinance-making power of the PresidentArt. 123

The most important legislative power of the President is his

Ordinance-making power. If at any time, when both Houses of

the Parliament arc 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 Ordinance as the

circumstances appear to him to require. The Ordinances issued

by him shall have the same force as an Act of Parliament-Such

Ordinances, however, must be laid before both Houses of

Parliament and shall cease to operate, at the expiry of six weeks

from the date of re-assembly of Parliament, unless a resolution

disapproving it is passed by both Houses before the expiration of

six weeks. The President may, if he likes, withdraw such an

Ordinance at any time. An Ordinance promulgated under Art.

123 is a law having the same force and effect as an Act of

Parliament. It cannot be treated as an executive action or an

administrative decision. The Ordinance-making power has been

vested in the President to deal with unforeseen or urgent

matters.

The Ordinance-making power is exercised by the President on

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his own 'satisfaction'. The court cannot inquire into the reasons

for the subjective satisfaction of the President or into the

sufficiency of those reasons. The existence of necessity for

promulgating the Ordinance is not Justifiable. The validity of an

Ordinance cannot be tested on grounds similar to those on

which an executive or judicial action is tested. The question

whether a statute is constitutional or not is always a question of

power of the Legislature concerned depending on the subject-

matter of the statute, the manner in which it is accomplished

and the mode of enacting it. The motive of the Legislature in

passing a statute is beyond the scrutiny of courts. The propriety,

expediency and necessity of a legislative act are for the

determination of the legislative authority and are not for

determination by the Courts. An Ordinance passed under Arts-

123 and 2-13 stands on the same footing. Thus the validity, of an

Ordinance cannot be challenged an the grounds of non-

application of mind, more so when it has been promulgated on

the basis of a policy decision taken by She government

An Ordinance can be issued only when both the Houses of il^

Par! lament are not in session. It follows from this that an

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Ordinance can be issued when only one House is in session

because a law cannot be passed by one House alone. It is to be

noted that the satisfaction is not the personal satisfaction of the

President- In reality, it is the satisfaction of the Cabinet on

whose advice the President exercises his Ordinance-making

power.

The Ordinance-making power of the President is co-extensive

with the legislative power of the Parliament, that is to say, that it

may be related to any subject in respect of which Parliament has

power to legislate. Hence, an Ordinance will be void in so far it

makes any provision which under the Constitution the

Parliament is not competent to make [Cl. (3)]. Thus an Ordinance

cannot violate the fundamental rights.

In case of D. C. Wadhwa v. State of Bihar furnishes a glaring

example of abuse of Ordinance-making power. The Court pointed

out that between 1967 arid 1981 the Bihar Governor

promulgated 256 Ordinances and all these were kept alive for

periods ranging from one to 14 years by re-promulgation from

time to time. Out of these 256, 69 were re-promulgated several

times with (he prior permission of the President of India- The

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Court called it a "subversion of die democratic process" and

"colourable exercise of powers" and held that this amounted to a

fraud on the Constitution and hence unconstitutional. The

Executive cannot usurp the function assigned to the legislature

under the Constitution. The matter was brought before the Court

by a professor who had carried a detailed research in the matter.

The Court directed the Bihar Government; to pay Rs. 10,000 to

the petitioner for expenses as a result of whose research work

the abuse of the Ordinance- making power by the Government

was brought to the knowledge of the Court.

Pardoning Power.Under Article 72 President has power

to grant pardons, reprises, 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 jaw relating to a matter to which the executive power

of the Union extends; or (3) in all cases in which the sentence is

one of death. The object of conferring the "judicial" power on the

President is to correct possible judicial errors, for no human

system of judicial administration can be free from imperfections.

pardon completely absolves the offender from all sentences and

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punishments and disqualifications and places him in the same

position as if he- had never committed the offence. Commutation

means exchange of one thing for another. Here it means

substitution of one form of punishment for another of a lighter

character, e. g., for rigorous imprisonment simple imprisonment.

Remission means reduction of the amount of sentence without

changing its character, e. g., a sentence of one year may be

remitted to six months. Respite means awarding a lesser

punishment on some special grounds, e. g., the pregnancy of a

woman offender. Reprieve means temporary-suspension of death

sentence, e.g., pending a proceeding for pardon or commutation.

Mode of voting.Under the Constitution, the election of

the President must be held in accordance with the system of

proportional representation by means of the single transferable

vole. The system adopted for voting is secret ballot

5. Disputes regarding the election.Article 71 provides that

all doubts and disputes arising out of or in connection with the

election of the President or Vice-President shall be 'inquired' into

and 'decided' by the Supreme Court, whose decision shall be

final. But if the election or the President of Vice-President is

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declared void by the Supreme 'Court acts done by President or

Vice President in the exercise of their powers before the date of

decision of the Supreme Court shall not be invalidated by

reason of that declaration. Under Art- 71 (3), Parliament may by

law regulate any matter relating to the election of the President

or Vice-President. An, 71 (4) makes it clear that the election of

the President or Vice-President cannot be challenged on the

ground of existence of any vacancy for whatever reason in the

electoral college electing him.

Oath by the President.According to. 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 Conciliation and

the law and to devote himself to the service, and well-being of the

people of India.

Term of office of the President 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 office until his successor enters

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upon his office. He is also eligible for re-election. He may be

elected for any number of terms. But in America after 22nd

Amendment to the U. S- A- Constitution a person cannot be

elected to the office of the President more than twice. The

President in India may, however, resign his office before the

expiry of his normal term of five years by writing to the Vice-

President. He may be removed from his office for the" violation

of the Constitution by the process of impeachment, Time of

holding election on expiry of term and filling casual vacancies.

Article 62 (1) provides that elections to fill the vacancy caused

by the expiry of die 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 occurrence of the vacancy.

The person so elected shall, subject to the provisions 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

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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 President

In in re Presidential Election case, the Supreme Court held

that the election to fill the vacancy m 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. 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 Jus office

Procedure for impeachment of the President

Article 61 of the Constitution lays down the procedure for

the impeachment of the President. The President can be removed

from his office by a process of impeachment for the 'violation of

the Constitution'. The impeachment charge against him may be

initiated by either House of Parliament. The charge must come in

the form of a proposal contained in a resolution signed by not

less than with of the total number of the members of the House

and moved after giving at least 14 days' advance notice. Such a

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resolution must be passed by a majority of not less than 2/3rd of

the total membership of the House. The charge is then

investigation by the other House. The President has right to

appear and to be represented at such investigation. If the other

House after investigation passes a resolution by 2/3rd majority

declaring that the charge is proved, such resolution shall have

the effect of removing the President from his office 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

Houses of Parliament for' the investigation of the charge in

impeachment proceedings. Thus the immunity afforded to

the President will not restrict the right of any person to

bring suit against the Government of India.

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(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 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 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.

44th Amendment Act, 1979: This amendment has

inserted the following proviso in clause (1) of Article 74:

Provided that the President may require the Council of the

Ministers to reconsider such advice, either generally otherwise

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and the President shall act in accordance with the advise

tendered after such reconsiderations.

Emergency Powers :

Part XVIII of the Constitution arms the President with

enormous emergency powers. The emergencies envisaged under

the Constitution are of three kinds: (1) emergency arising out of

war, external aggression or armed rebellion (2) emergency due to

failure of constitutional machinery in the State and (3) financial

emergency.

If the President is satisfied that the security of India is

threatened by foreign attack, armed rebellion or war (Artc. 352)

(1)) or if either on the receipt of report of the Governor of the

state or otherwise he is satisfied that a situation has arisen in

which the Government of state cannot be carried on in

accordance with the provisions of the constitution Art 356 (2) or

a situation has arisen whereby the financial stability of India is

threatened (Art 360)(1) he may proclaim an emergency. A

proclamation of emergency may be revoked by a subsequent

proclamation. Such a proclamation must be laid before each

House of Parliament and ceases to operate at the expiration of

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one month unless approved by the two Houses. The President

may, during the period of emergency suspend the right to move

the courts for the enforcement of fundamental rights (Art .359

(except arts 21 and 22). He may give directions to any state as to

the manner in which the state should exercise its executive

powers.

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 THE VICE-PRESIDENT

There shall be a Vice-President of India (Art.63). The Vice

President is elected by the members of both the houses of

parliament at a joint session by secret ballot in accordance with

the system of proportional representation by means of a single-

transferable vote.The qualifications of the Vice-President are the

same as those of the President except that he must be eligible for

election to the Rajya Sabha (Art.66 (3) ).The term of Vice-

President is five years. He may also be removed by a resolution of

the Rajya Sabha passed by a majority of all the members of the

House and agreed to by a majority of Lok Sabha. Such a

resolution can be moved only after giving 14 days notice of the

intention to move the resolution.( Art. 67).

FUNCTIONS OF THE VICE-PRESIDENT-The Vice-President of

India shall be ex-officio Chairman of the Rajya Sabha.(Art.64).

His normal function is to preside over the meeting of the Rajya

Sabha.But since he is not the member of the Rajya Sabha, he

has no right to vote. Art.75 provides that when a vacancy occurs

in the office of the President, he acts as a President, until a new

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President is elected. Art.75 provides that when a vacancy occurs

in the office of the President by reson of death, resignation or

removal or otherwise, the Vice-President shall acts as a President

until the date on which a new President is elected to fill a vacany.

THE COUNCIL OF MINISTERS

THE COUNCIL OF MINISTERS: the real executive authority of

Union is exercised by the council of Ministers.

Appointments : Prez appoints the PM. and the Prez on the

advice of the PM appoints other ministers {Art 75(1)}. There is no

bar on the appointment of a person from outside the legislature

as Minister, but he cannot continue as Ministers for more than

six months unless he secures seat in either House of Parliament

A minister who is member of one house has right to speak in

and to take part in the proceedings of the other House though

he has no right to vote in the House of which he is not

a member .

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Composition : the Cabinet of members is not specified in the

Constitution . While the constitution does not classify the

Council of Ministers into different ranks, it has been done

informally : @ the centre Cabinet Ministers and @ at state level

deputy ministers..

The Cabinet : it is the cabinet , an inner body within the council

which shapes the policy of the Government. Cabinet Ministers

hold charge of key portfolios.

Collective Responsibility : council of minister is collectively

responsible to the House of the People {Art 75(3)} . The Ministry,

as a body, is under a constitutional obligation to resign as soon

as it loses the confidence of the Loksabha. A vote of no

confidence against any Minister automatically, leads to the

resignation of the entire Council. The Ministry,

instead of resigning, can advise the Prez to dissolve the Lok

Sabha on the ground that the House does not represent the

views of the electorate faithfully. A corollary of the principal of

collective responsibility is that of intra- cabinet responsibility

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expressing the solidarity of the cabinet.

Individual Responsibility : the constitutional stipulation is

that the Ministers shall hold office during the pleasure of the

Prez. {Art 75(2)};i.e. though collectively responsible to the

Legislature, they are individually responsible to the Executive

and may be dismissed even if they enjoy the confidence of the

legislature.

Legal Responsibility : the system of legal responsibility of

minister is not prescribed inthe Indian Constitution. If a

Secretary to the Govt. of India authenticates the Prez.s act,

noMinister can be held legally responsible for it even though he

may have advised it.

Powers : The council minister formulates and implements the

policy of the country. Itintroduces most of the imp Bills and

resolutions in Parliament and steers them through. preparesand

present the budget to parliament for its approval; determine

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foreign policy of Govt. ; render advice to Prez. regarding

proclamation of emergency.

Prime Ministers Position : key stone of cabinet arch first

among the equals . Hisresign causes not merely a vacancy but

the dissolution of the council of minister; Hs a right tosupervise

all other departments.

Prime Minister And President : (Art78 ) : Duty of PMTo

communicate the Prez. All decisions of the council of the

ministers relating to administrationof the UnionTo furnish such

information relating to the administration of the union or

legislation may call for if the Prez so requires to submit for the

consideration of the council of Ministers any matter onwhich a

Minister has taken a decision but which has not been considered

by the Council

Constitutional duties of the Prime Minister: Article 78

provides that it shall be the Prime Minister (1) to communicate to

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the President all decisions of the Council of Ministers relating

to the administration of the affairs of the Union and proposal for

legislation, (2) to furnish such information relating to

administration of the affairs of the Union and proposals for

legislation as the President may call for and (3) 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 Cabinet.

The Attorney General of India

The Attorney General of India is appointed by the

President. The person to be appointed as Attorney General

must be qualified to be appointed as a judge of the Supreme

Court (Art. 76 93). He holds office during the pleasure of the

President. He shall get such remuneration as the President may

25
 PROJECT REPORT

ON

CONSTITUTION

TOPIC: UNION EXECUTIVE

26
SUBMITTED TO: SUBMITTED BY:
Mrs. Shruti Bedi Soumil Goyal
Roll no-97
BA.LLb 3rd sem

ACKNOWLEDGEMENT

I would like to express my special thanks of

gratitude to my teacher Mrs Shruti Bedi who gave
me the golden opportunity to do this wonderful
project on the topic Union Executive , which also
helped me in doing a lot of Research and i came to
know about so many new things I am really thankful
to them.

Secondly i would also like to thank my parents and

friends who helped me a lot in finalizing this project
within the limited time frame.

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 INDEX
SERIAL TITLE PAGE REMARKS
NO NO
1 Introduction 1
2 PRESIDENT 2
3 THE VICE PRESIDENT 16
4 COUNCIL OF 18
MINISTERS
5 ATTORNEY GENERAL 21
OF INDIA

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