Central executive

Types of governments
 Unitary constitution

 Dual constitution

Unitary Constitution
 Central government is supreme
 There may exist local governments with
certain assigned functions to discharge
 Local governments area of operation is
confined
 Their jurisdiction may be
curtailed, restricted and modified by the
Centre at its own will
 They are mere administrative agencies

Federal/dual constitution
 Units in the federation act under
constitution
 Their jurisdiction and duties are defined in
constitution
 It can be changed only through
amendment of the constitution i.e., by
constituent process
 Units in federation have their own identity
and personality
 They have their own separate functions

federalism
 Federalism constitutes a complex
governmental mechanism for governance
of a country
 It has been evolved to bind into one
political union several
autonomous, distinct, separate and
disparate political entities or administrative
units
 It seeks to draw a balance between the
concentration of power in the centre and
the state units which urge for dispersal of
power

 Unity with multiplicity
 Centralization with decentralization
 Nationalism with localism
 A federal constitution establishes a dual
polity i.e., two levels of governemnt
 Central government
 Regional governments
Citizen is subject to both governments

 Regional governments called as state
governments in USA, Australia, India
 Provincial Government in Canada

 Distribution of Centre and the state is
the most important characteristic of any
federal system

 A federal constitution envisages a
demarcation or division of government
functions and powers between the
centre and the regions by the sanction
of the constitution which is written and
rigid

 That means
 Any invasion by one level of government on
the area assigned to the other level of
government is a breach of constitution
 Breach of constitution is matter to be
determined by the courts

Constitution of India
 Dual polity
 Union government and state
government
 States are the regional administrative
units
 India is a union of states

Three pillars of Indian federal
system
 Strong central government
 Flexible federal system
 Co-operative federalism

 Strength of the centre lies in its large
legislative and financial powers and in
its emergency powers
 The flexibility of the Indian federalism
lies in the expedients adopted in the
constitution to mitigate the rigidity of a
federal system and to increase
temporarily the powers of the central
government if the contemporary
situation so demands

 Co-operative federalism has been
worked out in a number of constitutional
provisions and also through legislative
and administrative actions

Central & State Government
Art.52 to 367
 It may be resolved into three institutional
components
 Legislative as represented by Parliament
and Assembly
 Executive as represented by the President
and Council of Ministers headed by Prime
Minister, Governor and Council of Ministers
headed by Chief Minister
 Judicial as represented by the Supreme
Court of India and High court

Central & state executive
 Common pattern for both
 Most cases mutatis mutandis the same
for both
 Subject is divided into four heads
 Chief executive
 Council of Ministers
 Law officers
 Conduct of business

Central Executive 52 to 78
 Art.52 – There shall be a President of
India
 Art.53 – Executive power of the Union
 (1) the executive power of the Union
shall be vested in the President and
shall be exercised by him either directly
or through officers subordinate to him in
accordance with this constitution

 The central executive consists of the
President and the Council of Ministers
headed by the Prime minister
 Council of ministers is responsible to the
Lok Sabha
 The constitution formally vests many
functions in the President but he has no
function to discharge in his discretion or in
his individual judgment
 He acts on ministerial
advice, therefore, council of ministers
constitute the real and effective executive

 53(2) without prejudice to the generality
of the foregoing provision, the supreme
command of the Defence Forces of the
Union shall be vested in the President
and the exercise thereof shall be
regulated by law

 53(3):Nothing in this article shall-
 (a) be deemed to transfer to the
President any functions conferred by
any existing law on the Government of
any State or other authority; or
 Prevent Parliament from conferring by
law functions on authorities other than
the President

Election of president
 Art.54 : The president shall be elected
by the Members of an electoral college
consisting of –
 (1) the elected members of both Houses
of Parliament and
 (2) the elected members of the
Legislative Assemblies of the States
 Election is through indirect process

Manner of election
 Art.55 (1): As far as practicable, there shall
be uniformity in the scale of representation
of the different states at the election of the
president
 Art.55(2): for the purpose of securing such
uniformity among the States interse as well
as parity between the States as whole and
the Union, the number of votes which each
elected member of Parliament and of the
Legislative Assembly of each state is
entitled to cast at such elected shall be
determined in the following manner -

 55(2)(a) : every elected member of the
Legislative Assembly of a State shall have as
many votes as there are multiples of one
thousand in the quotient obtained by dividing
the population of the State by the total number
of the elected members of the Assembly

State Population 1
---------------------------------- x -------
Total number of elected 1000
Members in the State
Legislative Assembly

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

 55(2)(C): each elected member of either
House of Parliament shall have such
number of votes as may be obtained by
dividing the total number of votes assigned
to the members of the Legislative
Assemblies of the States under Sub clause
(a) and (b) by the total number of elected
members of both Houses of
Parliament, fractions exceeding one and
half being counted as one and other
fractions being disregarded

Total number of votes assigned to the
members of the State Legislative
Assemblies in the Electoral College
---------------------------------------------------
Total number of elected members of the
two Houses of Parliament

 55(3) : the election of the President shall
be held in accordance with the system
of proportional representation by means
of single transferable vote and the voting
at such election shall be by secret ballot
 Explanation : In this article, the
expression „population‟ means the
population as ascertained at the last
preceding census of which the relevant
figures have been published

 Provided that the reference in this explanation to the
last preceding census of which the relevant figures
have been published shall, until the relevant figures
for the first census taken after the year 2026 have
been published, be construed as a reference to the
1971 census
 The increase in state population after 1971 is not
going to increase its votes at the election of the
president S.2 of the constitution (Eighty-Fourth
Amendment Act, 2001)
 Art.81(2)(a) – allocation of seats to the seats in Lok
sabha also blocked basing on this same 2026
sensus by 1971

Term of office of President
 Art.56 :
 (1) five years from the date of his entering into office
 Provided that –
 (a) the President may, by writing under his hand
addressed to the VP, resign his office
 (b) the President may, for violation of the Constitution, be
removed from office by impeachment in the manner
provided in article 61
 (c) the President shall, notwithstanding the expiration of
his term, continue to hold office until his successor enters
upon his office
 (2) any resignation addressed to the VP under cl (a) of the
proviso to clause (1) shall forthwith be communicated by
him to the Speaker of the House of the People

Eligibility for re-election
 Art.57 : A person who holds, or who has
held, office as President shall, subject to
other provisions of this constitution, be
eligible for re-election to that office

Qualifications for election as
president
 58(1) : No person shall be eligible for election
as president unless he –
 (a) is a citizen of India
 (b) has completed the age of 35 yrs
 (c) is qualified for election as a member of the
House of people
 (2) A person shall not be eligible for election as
President if he holds any office of profit under
the GOI or the Govt of any State or under any
local or other authority subject to the control of
any of the said governments

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

 This restriction is broader than that
under Art.102
 Under Art.102, disqualification extends
only to the holding of an office of profit
under the CG or SG and not to the
holding of office of profit under local or
other authority

Conditions of President‟s office
 Art.59(1) : The President shall not be a
member of either house of parliament or
of a House of the Legislature of any
state, and if a member of either house of
Parliament or of a House of the
Legislature of any State be elected
President, he shall be deemed to have
vacated his seat in that house on the
date which he enters upon his office as
president

 59(2) : The president shall not hold any
other office of profit
 59(3) : The president shall be entitled
without payment of rent to the use of his
official residences and shall be also entitled
to such emoluments, allowances and
privileges as may be determined by
Parliament by law and, until provision in
that behalf is so made, such
emoluments, allowances and privileges as
are specified in the second schedule

2nd schedule
 Salary : 10,000/-
 Same allowances and privileges as
were payable to the governor-general of
India
 In case of vice-president acting as
president same emoluments and
privileges

Oath or affirmation by the
President
 60 : Every president and every person
acting as president or discharging the
functions of the president shall, before
entering upon his office, make and
subscribe in the presence of the CJ of
India or in his absence senior most
judge of SC available on oath or
affirmation in the following form, that is
to say -

 “ I, so and so, do swear in the name of
god/solemnly affirm that I will faithfully
execute the office of president (or
discharge the functions of the president)
of India and will to the best of my ability
preserve, protect and defend the
constitution and the law and that I will
devote myself to the service and well-
being of the people of India

Impeachment
 The president may be removed from his
office, before the expiry of his term, for
„violation of the constitution‟ by the
process of impeachment Art.56(1)(b)
 Procedure for impeachment is
mentioned in Art.61

Procedure for impeachment of
the President
 61 (1) : When a President is to be
impeached for violation of the
Constitution, the charge shall be
preferred by either house of
parliament

 61(2) : No such charge shall be
preferred unless –
 (a) the proposal to prefer such charge is
contained in a resolution which has
been moved after at least fourteen days
notice in writing signed by not less than
one-fourth of the total number of
members of the House has been given
of their intention to move the resolution
and

 (b) such resolution has been passed by
a majority of not less than two- thirds of
the total membership of the house
 (3) when a charge has been so
preferred by either house of
parliament, the other house shall
investigate the charge or cause of the
charge to be investigated and the
president shall have the right to appear
and to be represented at such
investigation

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

England
 Two distinct classes of public servants
can be impeached
 Those who hold political office
 Those who hold public office during good
behaviour

Considerations governing both classes are
distinct and seperate

 Before the development of ministerial
responsibility, impeachment was a
weapon enabling the Commons to call
to account ministers appointed by, and
responsible to, the Crown
 As per English constitutional theory, no
impeachment of the sovereign

 Political offenders has to face
 Impeachment
 Deprivation of office
 Other penalties

Royal prerogative does not extend to preventing
impeachment

Address to the Crown must originate is mandatory
condition before impeachment/ removal of
officer/judge
Procedure is judicial and the judge is entitled to be
heard

U.S.Scenario
 Impeachment is the ideology borrowed from
U.S. Constitution
 Art.II, section 4 of the U.S. Constitution, the
president can be removed from office on
impeachment for, and conviction
of, treason, bribery, or other high crimes
and misdemeanours
 According to Art.I, section 3, all impeachments
are tried solely by the senate and when the
president is being impeached, the CJ of SC is
to preside.
 To convict the president, concurrence of two-
thirds of the members present is needed

Indian scenario
 The president in India can be impeached
only for violation of the constitution and not
for any criminal offence
 Impeachment can be tried by either of the
two houses of parliament, and not
necessarily by the Upper house
 There is no provision for the CJI to preside
at such sittings of the house when the
charge against the president is being
investigated
 Votes of atleast 2/3 of the total membership
of the house is required

 Impeachment process was invoked
twice in USA
 Andrew Jhonson -1867 – high crimes and
misdemeanors – Justice Samuel Chase
 No legal definition for high crimes and
misdemeanors
 Justice Archibald of the Commerce Court, -
1913
 Judge Wright of Florida Court- 1936
 Bill Clinton

 President‟s power to pardon offences
does not extend to cases of
impeachment : Art.II, S.2, Cl.1

 Remote possibility of impeachment
because always president acts on the
advice of the council of ministers
 Even though president is immune from
parliamentary and judicial control – fear
of impeachment will always have an
impression on his working
 Acting independently without the advice
of council of ministers may drag such
situation of impeachment

Interpretation of the word
„violation of constitution‟
 It is a matter to be decided by the house
which tries the charge
 It can be interpreted in wider sense such
as a violation of conventions, usages
and spirit of the constitution
 Impeachment is a political instrument

Time of holding election to fill vacancy in the
office of president and the term of office of
person elected to fill casual vacancy
 62(1) An election to fill a vacancy
caused by the expiration of the term of
office of president shall be completed
before the expiration of the term

 (2) An election to fill a vacancy in the office
of president occurring by reason of his
death, resignation or removal, or otherwise
shall be held as soon as possible after, and
in nocase later than six months from, the
date of occurrence of the vacancy, and the
person elected to fill the vacancy
shall, subject to the provisions of the article
56, he entitled to hold office for the full term
of five years from the date on which he
enters upon his office

Part XIX – Miscellaneous
Art.361 : Presidential privileges
 361 (1) : the president, or the Governor
or Rajpramukh of a state, shall not be
answerable to any court for the exercise
and performance of the powers and
duties of his office or for any act done or
purporting to be done by him in the
exercise and performance of those
powers and duties

 No court can compel the president to
exercise or not to exercise any power, or to
perform or not to perform any duty, nor can
a court issue any writ in respect of the
president‟s official acts or omissions
 He is amenable to any mandate, writ or
direction from any court
 No court can compel him to show cause or
defend his action
 Absolute immunity is given to the President

 The immunity extends to acts or
omissions which may be incidental
to, as well as to any act purporting to be
done by the president
 Even though the act is outside, or in
contravention of, the constitution, the
president is protected so long as the act
is professed to be done in pursuance of
the constitution

 Provided further that nothing in this
clause shall be construed as restricting
the right of any person to bring
appropriate proceedings against the
GOI or the Govt of State

 Immunity is personal to the president
 Appropriate actions can be brought
against GOI
 He cannot be summoned to the court

Madhav Rao Scinida vs. UOI
AIR 1971 SC 530
 After independence Rulers of various States
were integrated with guarantee of payment of
some amount known as privy purse along with
'gaddi' of State
 After some time Order of 'derecognising' such
Rulers passed by President
 Validity of said Order challenged in Supreme
Court
 Petitioners contended that Order being violative
of Articles 291 and 362 unconstitutional and void
 It also violates Articles 19 (1) (f), 21 and 31 as
deprive Rulers from Privy Purse

 respondents contended petition on ground that
power of derecognising the Rulers is sovereign
power and can be exercised by him when he
wants
 Applicability of doctrine of paramountcy pleaded
 Supreme Court observed that President had no
power to withdraw recognition of persons as
Ruler
 Doctrine of paramountcy empowers President to
recognize Ruler but cannot be used to validate
illegal act of derecognisation of Rulers which
affect rights of citizen
 Right to receive privy purse is absolute right of
Rulers and Rulers cannot be deprived from same
 In present case right to receive privy purse taken
away by Order passed by President it can be said
that there is infringement of Articles 19 and 31 –
 Supreme Court held, Order unconstitutional and
void.

 According to Art. 77(1), all executive
actions of the CG to be expressed in the
name of the President
 Such orders cannot be interpreted as
order of the president personally
 It is on advise of the council of ministers
 No immunity to such orders under
art.361

Common cause, A registered society vs. UOI
AIR 1999 SC 2979
 The case is related to ministry of oil & Gas
 Relating to permission to petrol outlets
 According to Articles 77 and 361 of Constitution of India
Order issued in name of President does not become Order
of President passed by him personally
 but it remains essentially Order of Ministers on whose
advice President acts and passed that Order
 by virtue of Article 77 (1) all executive actions of
Government of India have to be expressed in name of
President
 Order passed by Ministers would be amenable to judicial
scrutiny
 authenticity, validity and correctness of such power can be
examined by Court inspite of Order having been passed in
name of President
 immunity available to President under Article 361 cannot be
extended to Orders passed in name of President under
Article 77.

 SC observed that
 As it is the order of the GOI, it is
subjected to judicial scrutiny
 Judicial review can be invoked
 Authenticity, validity and correctness of
the order can be examined

 If the president appoints a disqualified
person to a constitutional office, the
discretion of the president to do so cannot
be questioned because of Art.361
 That would confer no immunity on the
appointee
 His qualification to hold the office can be
challenged in writ of quo warranto
 If the appointment is contrary to the
constitutional provisions, it can be quashed

Kumar Padma Prasad vs. UOI
AIR 1992 SC 1213
 The appointment of Shri K.N.Srivastava
as a high court judge was challenged
through a writ petition moved in the
gauhati high court by a practising
advocate
 Shri K.N.Srivastava was a secretary
(Law and Justice), Mizoram government
 The Gauhati HC granted a stay on the
warrant of appointment

 Srivastava moved the SC against the
HC order and moved a transfer petition
of the writ petition from the HC to SC
 Issue : whether Srivastava had held a
judicial office for 10 years
 Judicial office has not been defined in
the constitution

 For the purpose of
Art.217(2)(a), according to court, holder
of judicial office means
 A person who exercises only judicial
functions, determines causes inter partes
and renders decisions in a judicial capacity
 He must belong to judicial service which as
a class free from executive control
 And is disciplined to hold the dignity, integrity
and independence of judiciary

 In view of the court, the expression
„judicial office‟ means an office which is
a part of judicial service as defined
under art.236(b)
 Judicial service means a service
consisting exclusively of persons
intended to fill the post of DJ and other
civil judicial posts inferior to the post of
district judge

 SC held that srivastava was not qualified
to be appointed as a high court judge as
he had held no judicial office in a judicial
service

Proviso to art.361 (1)
 Provided that the conduct of the
president may be brought under review
by any court, tribunal or body appointed
or designated by either house of
parliament for the investigation of a
charge under art.61

 361(2) No criminal proceedings
whatsoever shall be instituted or
continued against the president in any
court during his term of office
 361(3) : no process for the arrest or
imprisonment of the president shall
issue from any court during his term of
office
Thus, no criminal proceedings for the acts
done in his personal capacity

 361(4) : No civil proceedings in which relief is
claimed against the president, shall be
instituted during his term of office in any court
in respect of any act done or purporting to be
done by him in his personal capacity,
 Whether before or after he entered upon his
office as president
 Until the expiration of two months next after
notice in writing has been delivered to the
president or left at his office stating the nature
of proceedings, the cause of action
therefor, the name, description and place of
residence of the party by whom such
proceedings are to be instituted and relief
which he claims

 In civil cases, in respect of his official
acts, an absolute bar has been created
against court action (Art.361(1)
 In respect of his personal acts, there is
only a partial bar in so far as a two
months notice needs to be given to him
prior to the institution of civil
proceedings

Vice-President
 Art.63 : there shall be a VP
 64 : The VP to be ex-officio Chairman of
the Council of states (Rajya Sabha)
 The VP shall be the ex-officio chairman of the
council of states and shall not hold any other
office of profit;
 Provided that during any period when the VP
acts as president or discharges the functions of
the president under art.65 he shall not perform
the duties of the office of chairman of the council
of states and shall not be entitled to any salary
or allowance payable to the chairman of the
council of states under art.97

 U.S. – ex-officio Chairman of the
Second Chamber
 Is precluded from being a member of
either house of parliament (Art.63, 64
and 66(2)

 65: the VP to act as president or to
discharge his functions during casual
vacancies in the office, or during the
absence, of president
 (1) in the event of the occurrence of any
vacancy in the office of the president by
reason of his death, resignation or
removal, or otherwise, the vp shall act as
president until the date on which a new
president elected in accordance with the
provisions of this chapter to fill such
vacancy enters upon his office

 65(2) : when the president is unable to
discharge his functions owing to
absence, illness or any other cause, the VP
shall discharge his functions until the date on
which the president resumes his duties
 The VP shall, during, and in respect of, the
period while he is so acting as, or discharging
the functions of, president, have all the powers
and immunities of the president and be entitled
to such emoluments, allowances and
privileges as may be determined by the
parliament by law and until provisions in that
behalf is so made, such
emoluments, allowances and privileges as are
specified in the second schedule

Election of VP
 66 (1) : the VP shall be elected by the
members of an electoral college
consisting of the members of both
houses of parliament in accordance with
the system of proportional
representation by means of the single
transferable vote and the voting at such
election shall be by secret ballot

 66(2) : the VP shall not be a member of
either house of parliament or of a house
of the legislature of any state, and if a
member of either house of parliament
or of a house of the legislature of any
state be elected VP , he shall be
deemed to have vacated his seat in that
house on the date on which he enters
upon his office as VP

Eligibility for election as VP
 66(3) : no person shall be eligible for
election of VP unless he
 (a) is a citizen of India
 (b) has completed the age of 35 yrs and
 (c) is qualified for the election as a member
of the council of states

 66(4) : a person shall not be eligible for
election as VP if he holds any office of
profit under the GOI or the Govt of any
state or under any local or other authority
subject to the control of any of the said
governments
 Explanation: for the purposes of this
article, a person shall not be deemed to
hold any office of profit by reason only that
he is the president or VP of the Union or
the governor of any state or is a minister
either for the union or for any state

Term of office of VP
 67 : the VP shall hold office for a term of 5 yrs
from the date on which he enters upon his
office
 (a ) a VP may, by writing under his hand addressed
to the president resign his office
 (b) a VP may be removed from his office by a
resolution of the council of states passed by a
majority of all the then members of the council and
agreed to by the house of the people; but no
resolution for the purposes of this clause shall be
moved unless at least 14 days notice has been
given of the intention to move the resolution
 (c) a VP shall, notwithstanding the expiration of his
term, continue to hold office until his successor

 In rajya sabha, there should be an
absolute majority of the total
membership (excluding those seats
which are vacant) of the House
supporting the resolution to remove the
VP, a simple majority is sufficient in Lok
Sabha
 The VP can be removed on any ground
and without enquiry

Time of holding election to fill vacancy in the
office of VP and the term of office of person
elected to fill casual vacancy
 62(1) An election to fill a vacancy
caused by the expiration of the term of
office of VP shall be completed before
the expiration of the term

 (2) An election to fill a vacancy in the office
of VP occurring by reason of his
death, resignation or removal, or otherwise
shall be held as soon as possible after, and
in nocase later than six months from, the
date of occurrence of the vacancy, and the
person elected to fill the vacancy
shall, subject to the provisions of the article
67, he entitled to hold office for the full term
of five years from the date on which he

Oath or affirmation by the
VP
 60 : Every VP and every person acting
as president shall, before entering upon
his office, make and subscribe before
the President or some other person
appointed on behalf of him,an oath or
affirmation in the following form, that is
to say -

 “ I, so and so, do swear in the name of
god/solemnly affirm that I will bear true
faith, and allegiance to the constitution
of India as by law established and that I
will faithfully discharge the duty upon
which I am about to enter

 97 : As chairman of Rajya Sabha, the
VP is entitled to get such salary and
allowances as may be fixed by
Parliament by law, and until so fixed, as
specified in the second schedule to the
constitution
 No salary as vice president

Discharge of president‟s
functions in other contingencies
 70 : parliament may make such
provision as it thinks fit for the discharge
of the functions of the president in any
contingency not provided for in this
chapter
 Parliament enacted President
(Discharge of Functions) Act, 1969

President (Discharge of
Functions) Act, 1969
 It provides that when vacancies occur in
the offices of both president and the
VP, the CJ of India or, in his
absence, the senior most judge of the
SC available, is to discharge the
president‟s functions until a new
president or VP enters upon his office

Matters relating to or connected with
the election of President or VP
 71 (1) : all doubts and disputes arising out of
or in connection with the election of a
president or VP shall be inquired into and
decided by the SC whose decision shall be
final
 (2) : if the election of a person as president or
VP is declared void by the SC, acts done by
him in exercise and performance of the
powers and duties of the office of president or
VP, as the case may be, on or before the date
of the decision of the Supreme court shall not
be invalidated by reason of that declaration

N.B.Khare vs. Election
Commission AIR 1957 SC 694
 The SC held that it would not entertain
any petition challenging the presidential
election before the completion of the
election process and declaration of the
result
 Reason being the entire election may be
held up till after the expiry of the five
years term which will involve a non-
compliance with the mandatory
provisions of art.62

 (3) subject to the provisions of this
constitution, parliament may by law
regulate any matter relating to or
connected with the election of a
president or VP
 The Presidential and Vice-Presidential
Elections Act, 1952

The Presidential and Vice-
Presidential Elections Act, 1952
 The Act lays down that a candidate can
be nominated when at least 10 voters
propose him and ten voters second him
and he deposits a sum of Rs.2500
 It has nothing to do with the
qualifications mentioned in Art.58 & 66

 A petitioner must come within the four
corners of the Act to have locus standi to
challenge the presidential election and
to be able to maintain the petition
 Under section 14 of the presidential and
vice presidential elections Act, an
election can be called into question
either by a candidate at such election or
by 10 or more electors

Charan Lal Sahu vs. N.
Sanjeeva Reddy Air 1978 SC
499

N.B.Khare vs. Election
commission AIR 1958 SC 139
 Supreme court held that a person who is
neither a candidate nor an elector could
not file a petition to challenge the
presidential election

 71(4) : the election of a person as president or
VP shall not be called in question on the
ground of the existence of any vacancy for
whatever reason among the members of the
electoral college electing him

 In re Presidential Poll AIR 1974 SC
1682, the Supreme Court has ruled that the
election of the President can be held when a
State Assembly has been dissolved under Art.
356 and its members are unable to participate
in the election

 Art.71 has been substituted by the 39th
amendment Act, 1975 and the forty
fourth amendment Act, 1978

Council of ministers Art.74-
75
 74 & 75 deals with the composition and
status of the Council of Ministers in
general words
 The remaining matters left to the
conventions
 Importance of conventions was
discussed in U.N.R.Rao vs. Indira
Gandhi AIR 1971 SC 1002

 SC held that art.75(3) must be
interpreted to its own terms regardless
of conventions that prevail in UK
 If the words of the article are clear effect
should be given to the words
 As it is constitution not a general
law, one has to keep in mind while
interpreting the conventions prevalent at
the time the constitution was framed

Council of ministers to aid and
advise president
 74(1) : there shall be a council of
ministers with the prime minister at the
head to aid and advise the president
who shall, in the exercise of his
functions, act in accordance with such
advice

U.N.R. Rao vs. Indira Gandhi
AIR 1971 SC 1002
 the appellant contended that under the
Constitution as soon as the House of the
People is dissolved under Article 85(2) of
the Constitution the Council of
Ministers, i.e., the Prime Minister and other
Ministers, cease to hold office.
 According to him this follows plainly from
the wording of Article 75(3), which provides
that "the Council of Ministers shall be
collectively responsible to the House of the
People".

 How can the Council of Ministers be
responsible to the House of the People
when it has been dissolved under Article
85(2) ?
 According to him no void in the carrying out
of Government will be created because the
President can exercise the Executive
Power of the Union either directly or
through officers subordinate in accordance
with the Constitution as provided in Article
53(1) of the Constitution.

 Supreme Court has refused to accept the
contention of U.N.R.Rao that during the
dissolution of the Lok Sabha, there need
be no Council of Ministers and that the
President can rule with the help of advisers
 This argument was based on the
hypothesis that when there is no Lok
Sabha, the responsibility of the council of
ministers to this house cannot be enforced
and so there need be no Council of
Ministers when there is no house

 The SC rejected the argument that, in
the context, the word “shall‟ in Art.74(1)
should be read as „may‟
 It is part of collective responsibility
 If it is only directory the president would
be able to rule with the aid of advisors till
he is impeached
 The moto of parliamentary form of
government will die

 No legal action for non-compliance of
the provisions as he is immune from
judicial scrutiny
 Proviso Art.74(1) : Provided that the
President may require the Council of
Ministers to reconsider such
advice, either generally or
otherwise, and the President shall act in
accordance with the advice tendered
after such reconsideration

 74(2) : the question whether any, and if
so what, advice was tendered by
ministers to the president shall not be
inquired into in any court
 Only sanction available is the
political, i.e., impeachment

Non-justiciability of cabinet
advice
 What is the scope of the provision in
Art.74(2) which bars the courts from
embarking upon an inquiry as to
whether any, and if so what, advice was
tendered by the council of ministers to
the president
 Notings are also protected

 Courts can compel production of the
materials on which the decision of the
council of ministers is based as such
material does not form part of the advice

S.P.Gupta vs. UOI AIR 1982 SC
149
 controversy in case revolves round
letter written by Law Minister of India to
Chief Justices of various High Courts of
country
 letter contained instructions in form of
request to convince Judges working in
High Courts to be appointed in High
Court of another State
 advocates all around country filed
several writ petition against letter

 writ petition of advocates also
challenged some of transfers of
Judges and Chief Justices along with
letter
 all writ petitions transferred to
Supreme Court for collective decision
as cause of action in petition was
same

issues
 whether advocates can maintain
petition as having valid grievance
where letter neither written to them
nor contained any matter related to
them
 whether power of president with
respect to transfer Judges of High
Court under Article 222 absolute or
opinion of Chief Justice of India
binding on him

 any member of public having sufficient
interest can maintain action for judicial
redress for public arising from breach of
public duty or from violation of provisions
of Constitution
 where legal wrong or legal injury caused to
person or to determinate class of persons
and if such persons did not challenge such
injury any common citizen can approach
Court for challenging such legal injury
 any person has constitutional right to file
petition in public interest where injury is to
masses

 Court will not insist on regular writ
petition to be filed by public spirited
individual espousing their cause and
seeking relief to them
 petition in such cases would be treated
as public interest litigation under Article
32 and strict rule of procedure will not
be allowed to defeat sense of justice
 even letter written by common citizen
will be treated as public interest
litigation if desired so and contained
valid cause of action

 person approaching Court for public cause
must act bonafide and not otherwise
 transfer of Judges is question of policy
 question of policy matter entirely for
President to decide
 opinion of Chief Justice not binding on
President
 opinion of Chief Justice under Article 222
not condition precedent for affecting
transfer on part of President
 petitioners could not prove alleged
illegality of transfers
 letter of Law Minister only in form of
request and neither violate any
constitutional right nor inflict public injury

 SC held that no court is concerned with
what advice was tendered by the
minister to the president
 The court is only concerned with the
validity of the order and not with what
happened in the inner councils
 An order cannot be challenged on the
ground that it is not in accordance with
the advice rendered by the minister or
that it is based on no advice

 When the question relating to order is in
the court, the council of ministers has to
defend the order by disclosing the
material which formed the basis of the
act/order
 The court will not inquire whether such
material formed part of the advice to the
president or what advice or what
discussion took place

 The court has to look into the material
on the basis of which the requisite
satisfaction is formed and whether it is
relevant to the action taken
 Material is not advice
 Privilege in respect of presenting
documents is not available under
art.74(2) but under Sec.123 of IE Act

 Section 123 : Evidence as to affairs of State :
No one shall be permitted to give any
evidence derived from unpublished official
records relating to any affairs of State, except
with the permission of the officer at the head of
the department concerned, who shall give or
withhold such permission as he thinks fit.
 It is also necessary for arriving at a proper
interpretation of Section 123 to refer to Section
162 which says:
 Section 162. Production of documents -- A
witness summoned to produce a document
shall, if it is in his possession or power, bring it
to court, notwithstanding any objection which
there may be to its production or to its
admissibility. The validity of any such objection
shall be decided on by the court.

Doypack systems vs. UOI AIR
1988 SC 782
 SC held that it is duty of this court to
prevent disclosure where art.74(2) is
involved
 The court has also ruled that „the notings of
the official which lead to the cabinet note
leading to the cabinet decision formed part
of the advice tendered to the president
 Cabinet papers also include papers
brought into existence for the purpose of
preparing submission to the cabinet

 The courts are also barred from
compelling president to act according to
the cabinet advice

Appointment of PM
 75(1) : the PM shall be appointed by the
President and the other ministers shall
be appointed by the president on the
advice of the PM

 President has to perform his discretion in
appointment of PM without the advice of
the council of ministers
 But he has to follow conventions and few
constitutional provisions
 It is required that the appointee as PM
should enjoy the confidence of the Lok
Sabha
 The council of ministers shall be
collectively responsible to the Lok Sabha
Art.75(3(

 Britain system is followed
 There is no restriction that the PM
should be the member of Lok Sabha
 In 1966 Indira Gandhi, a member of
Rajya Sabha has been elected as PM
but soon after that she became the
member of Lok Sabha
 It is inevitable to run stable to strong
government the PM should be the
member of Lok Sabha

Appointment of ministers
 A minister should always be a member
of house of parliament
 Even a non-member may be elected but
sooner than later he should be come
member of house
 A non-member cannot hold office for
longer than six months without
becoming member of either house

 Art.88 : rights of ministers and attorney
general as respects houses
 Every minister and the attorney general
of india shall have the right to speak
in, and other wise to take part in the
proceedings of, either house, any joint
sitting of the houses, and any committee
of parliament of which he may be named
as a member, but shall not by virtue of
this article be entitled to vote

 Even for the appointment of PM, a non-
member may be appointed and even a
member SLA can be appointed
 75(5) : a minister who for any period of
six consecutive months is not a
shall at the expiration of that period
cease to be a minister

Harsharan Verma vs. UOI AIR
1987 SC 1969
 The term minister in 75(5) includes PM
 Appointment of Shri Sitaram Kesari was
challenged through writ on the ground
that he was not a member of either
house of parliament
 The petition was dismissed by reading
art.75(5) and 88 together

S.P.Anand vs. H.D.Deve
Gowda AIR 1997 SC 272
 Appointment of H.D.Deve Gowda as PM
was challenged becausee he was not a
 Sc held that „even if a person is not a
member of the house, if he has support
and confidence of the house, he can be
chosen to head the council of ministers
without violating the norms of democracy
and the requirement of being accountable
to the house would ensure the smooth
functioning of the democratic process‟

S.R.Chaudhari vs. state of
punjab AIR 2001 SC 2707
 The case arose in state of punjab under
art. 164(4) similar to 75(5)
 Issue was „a person who is not a member
of the house of parliament is appointed as
a minister. He resigns after six months, as
required by Art. 75(5), as he fails to
become a member of the house of
parliament within six months
 Can he be re-appointed as a member for
another term of six months
 Can a person be appointed repeatedly as a
minister

 SC held that the practice would be
clearly derogatory to the constitutional
scheme, improper, undemocratic and
invalid even though it is not barred
through any provision
 Art.75(5) is an exception to the general
rule that only members of parliament
can be appointed as ministers

 This exception is essentially required to
be used to meet very extraordinary
situation and must be strictly construed
and sparingly used
 So a non-member can be appointed as
minister only once

B.R.Kapur vs. state of TN
(2001) 7 SCC 231
 In this case SC ruled that under
Art.75(5) & 164(4), a person who is not
a member of the parliament/assembly
can be appointed as a the PM or a
minister only if he has the qualification
for membership of parliament as
prescribed in art.84 and 102

Ministerial tenure
 75(4) : before a minister enters upon his
office, the president shall administer to
him the oaths of office and of secrecy
according to the forms set out for the
purpose in the third schedule
 75(2) : the ministers shall hold office
during the pleasure of the president
 75 (3): The council of ministers shall be
collectively responsible to the Lok
Sabha

 75(6) : the salaries and allowances of
ministers shall be such as parliament
may from time to time by law determine
and until parliament so determines shall
be specified in second schedule

Working of the executive
 President – a titular head
 PM
 Cabinet
 Collective responsibility
 Minister‟s individual responsibility
 Minister‟s responsibility for his
subordinates


President – a titular head

 77: conduct of business of the GOI
 (1) : all executive action of the GOI shall be
expressed to be taken in the name of the
president
 (2) : orders and other instruments made and
executed in the name of the president shall be
authenticated in such manner as may be
specified in rules to be made by the
president, and the validity of an order or
instrument which is so authenticated shall not
be called in question on the ground that it is
not an order or instrument made or executed
by the president

 (3) : the president shall make rules for
the more convenient transaction of the
business of the GOI, and for the
allocation among ministers of the said
business
 Even though 77(1) & (2) are not
complied the order still can be
interpreted as the authenticated order if
it is made by the appropriate authority

Major E.G.Barsay vs. State of
Bombay AIR 1961 SC 1762
 An order issued by the Deputy secretary
to the government on behalf of the
central government was held valid
 Under the prevention of corruption Act, a
public servant can be prosecuted for
certain criminal offences only after the
central government gives its sanction for
the purpose

 In the instant case, the sanction was given
in the name of the central government by
its deputy secretary
 It was not an authenticated order but one
issued by the Deputy secretary in his own
right
 Although the order did not comply with
Arts.77(1) and 77(2), nevertheless, it was
held valid because the Deputy Secretary
was competent to accord sanction in his
own right

 The order was made by the Deputy
secretary on behalf of the central
government in exercise of the power
conferred on him under the rules of
business
 Executive power and executive action in
the context mean the power and action of
the executive
 All orders made by the executive, whether
administrative or legislative in nature, can
be authenticated under Art.77(2)

 Art.77(2) covers both executive orders
and legislative orders
 President‟s satisfaction in executive
orders doesn‟t mean personal
satisfaction
 In the sense of constitution, it is
satisfaction of the council of ministers

K.Anand Nambiar vs. Govt of
Madras AIR 1966 SC 657
 The supreme court ruled that in view of
Art.77, president‟s personal satisfaction
is not essential for issuing orders for
proclamation of emergency under
Art.359(1) and suspend the fundamental
rights
 In the instant case, though the orders
were issued in the name of president but
were signed by an additional secretary
of GOI

 SC held that a properly authenticated
order signed by the Additional secretary
to the GOI issued under Art.359(1) could
not be questioned on the ground that it
was not an order made and executed by
the president

 President rajendra prasad
 Controversy in 1960 – ili foundation
stone
 1967 – congress failed in certain states
– election of prime minister
 1976 – president has no active role
 42nd amendment 74(1) – shall
 44th amendment proviso to 74 (1)

Reconsideration clause 74(1)
proviso
 October 1997 IK gujral president –
president rule in up
 1998 BJP govt recommendation –
president rule in Bihar

Duties of the PM as respects the
furnishing of information to the president
etc.,
 78 : It shall be the duty of PM-
 (a) to communicate to the president all
decisions of the Council of ministers
relating to the administration of affairs of
the Union and proposals for legislation

 Prime Minister – Key stone of the
Constitution – Jennings
 All roads in the constitution lead to the
PM
 John Morley – Keystone of the cabinet
arch

 He can compel the resignation of a minister
and invoke the presidential power to
dismiss an unwanted Minister
 All ministers hold office at his discretion
 Principal spokesman of the cabinet
 He can obtain dissolution of the Lok Sabha
 Chairman of the cabinet and his
resignation amounts to resignation of all
council of ministers

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

K.M.Sharma vs. Devi Lal AIR
1990 SC 528
 Deputy Prime Minister – no post as such
 1990 VP singh government appointed
Devi lal as Deputy Prime Minister
 Devi lal took oath mentioning himself as
the Deputy PM
 Question was raised through a writ
petition before the Supreme Court
whether the oath taken by Devi Lal was
valid

 Court rejected the writ petition saying
that an oath has two parts – (i)
descriptive; (ii) substantial
 So long as the substantial part of the
oath is properly followed, a mere
mistake or error in the descriptive part
would not vitiate the oath
 SC held that even though Devi lal
described himself as a Deputy PM he is
also just like other council of minsiters

Cabinet
 Council of ministers consists of
 Cabinet minister
 Ministers of states (independent)
 Deputy ministers (ministers of states)
PM will determine the composition of the
cabinet
In the meetings of the cabinet, the deputy
ministers and ministers of state will come
and participate whenever the discussion is
relating to their ministry only

Collective responsibility
 75(3) and 78(c)
 78(c) if the president so requires, to
submit for the consideration of the
Council of ministers any matter on which
a decision has been taken by a minister
but which has not been considered by
the council

 Principle of collective responsibility may be
regarded as fundamental to the working of
the parliamentary government
 It means that the council of ministers is
responsible as a body for the general
conduct of the affairs of the government
 Rule ensures that the council of ministers
would work as a team, as a unit, and as a
body commands the confidence of the
House, and that Cabinet‟s decision are the
joint decisions of all ministers

 Decisions of cabinet is binding on

Common cause, A registered society vs. UOI
AIR 1999 SC 2979
 The case is related to ministry of oil &
Gas
 Relating to permission to petrol outlets

Relief sought
 (i) Pass an appropriate writ, order or orders
directing the Respondents to specifically
declare as to when the Union of India will now
bring before the Parliament an appropriately
drafted Bill for enactment of legislation for the
establishment of the institution of Lokpal, or a
suitable alternative system of the nature of
Ombudsman which is operating in a number of
other countries, for checking and controlling
corruption in public offices, inter alia, at the
political and bureaucratic levels,

 whether in the enactment of such
legislation they will take in to
consideration the suggestions that have
emanated from the Colloquium recently
organised under the auspices of Indian
Institute of Public Administration with the
participation of foreign and Indian
experts for examining various aspects of
the matter relating to establishment of
Ombudsman institution in this country;

 (ii) Pass an appropriate writ, order or orders
directing that the institutions and organisations
of the Comptroller and Auditor General of
India, Chief Vigilance Commissioner, and the
Central Bureau of Investigation should indicate
to the Hon'ble Court the specific steps which
they will take for effectively overcoming any
inadequacies and weaknesses in the
operations of these important institutions
which presently hamper effective and
efficacious check on prevalence of corrupt
practices in the country and to curb corruption
at all political and bureaucratic levels;

 (iii) Pass an appropriate writ, order or
orders appointing a Commission or
Commissioner to urgently undertake
comprehensive study of the present
inadequacies in the Prevention of
Corruption Act, 1947 for making specific
recommendations to strengthen this
enactment for achieving the objective of
curbing and checking corruption at the
political and bureaucratic levels in the
country.

 (iv) Pass an appropriate writ, order or orders
directing the State Governments Respondents to
indicate to the Hon'ble Court as to when they
propose implementing the specific suggestions
which have been made for strengthening and
improvement of the functioning of the system of
Lokayukta, including inter alia, the following:
a) To ensure expeditious establishment of the "
institution of Lokayukta and Upa-Lokayukta in every
State;
b) To achieve uniformity in the provisions of various
Lokayukta and Upa-Lokayukta Acts; and
c) To confer constitutional status on the institution of
Lokayukta.

 According to Articles 77 and 361 of Constitution
of India Order issued in name of President does
not become Order of President passed by him
personally
 but it remains essentially Order of Ministers on
whose advice President acts and passed that
Order
 by virtue of Article 77 (1) all executive actions of
Government of India have to be expressed in
name of President
 Order passed by Ministers would be amenable to
judicial scrutiny
 authenticity, validity and correctness of such
power can be examined by Court inspite of Order
having been passed in name of President

 immunity available to President
under Article 361 cannot be extended
to Orders passed in name of
President under Article 77.
 SC observed that as it is the order of
the GOI, it is subjected to judicial
scrutiny
 Judicial review can be invoked
 Authenticity, validity and correctness of
the order can be examined

 According to SC, collective responsibility
means
 „all members of a government are
unanimous in support of its policies and
would exhibit that unanimity on public
occasions although while formulating the
policies, they might have expressed a
different view in the meeting of the Cabinet”

Attorney General vs. Jonathan
Cape Ltd., [1976] QB 752
 Crossman was a Cabinet Minister for
nearly six years (1964-70)
 He maintained a detailed dairy about the
cabinet proceedings
 After he ceased to be a minister, he
began to collate his diaries with a view
to their eventual publication
 Crossman died in 1974

 After his death, his dairies were due for
publication
 The Attorney General brought an action
for injunction against Crossman‟s
executors for restraining them to publish
the diaries
 His contention was that the cabinet
proceedings and cabinet papers being
secret, these could not be publicly
disclosed

 The confidentiality of cabinet papers and
proceedings emanate from „the
convention of joint cabinet responsibility‟
„whereby any policy decision reached by
the cabinet has to be supported
thereafter by all members of the cabinet
whether they approve of it or not
, unless they feel obliged to resign‟

 In India also, the principle of collective
responsibility lays down that the
deliberations of the Cabinet are kept
secret and confidential because
preservation of a united front will be
difficult if disclosure is allowed
 The cabinet ministers are free to raise
their voice in in-house discussion

 A cabinet minister may lose his office if
he reveals the details of a cabinet
discussion to the press
 The secrecy may at times be released
partially when a minister resigns his
office
 He is entitled to make a statement in
parliament so that he may reveal the
reason for his resignation

 In Jonathan Cape case, the court ruled
that since the requirement of secrecy is
must in the matters of cabinet
affairs, the publication of which can be
restrained by the court when this is
clearly necessary in the public interest

Minister‟s Individual
Responsibility
 77(3) : envisages distribution of
business among several ministers
 Most of the decisions are taken by
officials in the department under the
minister according to the Rules of
Business
 Each minister is personally accountable
for his actions – individual responsibility

A.Sanjeevi vs. state of madras
AIR 1970 SC 1102
 Appellants are private stage carriage operators in the
state of TN
 They have been operating in various routes in that
State.
 Some of those routes are proposed to be
nationalised.
 A draft scheme of nationalisation has-been prepared
and published under Section 68 (C) of the Motor
Vehicles Act (Central Act IV of 1939)
 The validity of the draft scheme was challenged by
the appellants before the High Court of Madras
under Article 226 of the Constitution.
 Incidentally the validity of some of the provisions of
the amending Act XVIII of 1968 (Madras Act) also
came to be challenged in those petitions.

 A division bench of the Madras High
Court consisting of Anantanarayanan
C.J. and Natesan J. have dismissed
those petitions. As against the decision
of the High Court these appeals have
been brought on the strength of the
certificates issued by the High Court.

 The ground on which it is challenged is that the
opinion requisite under Section 68(C) of the Act was
not formed by the State Government but by the
Secretary to the government in the
Industries, Labour and Housing Department, acting
in pursuance of the powers conferred on him under
Rule 23(A) of the Madras Government Business
Rules
 The contention of the appellants is that the said rule
is ultra vires the provisions of the Constitution. There
is no dispute that if the rule in question is valid, the
challenge directed against the draft scheme must
fail. The High Court has opined that that rule is, a
valid rule. It is the correctness of that conclusion that
is primarily in issue in these appeals.

 3. Section 68(C) prescribes :
 Where any State transport undertaking is of opinion
that for the purpose of providing an
efficient, adequate, economical and properly co-
ordinate road transport service, it is necessary in the
public interest that road transport services in general
or any particular class of such service in relation to
any area or route or portion thereof should be run
and operated by the State transport
undertaking, whether to the exclusion, complete or
partial of other persons or otherwise, the State
transport undertaking may prepare a scheme giving
particulars of the nature of the services proposed to
be rendered, the area Or route proposed to be
covered and such other particulars respecting
thereto as may be prescribed, and shall cause every
such scheme to be published in the Official Gazette
and also in such other manner as the State
Government may direct.

 This section requires that the State transport undertaking
must form the opinion contemplated therein.
 In the State of Tamil Nadu, the State transport
undertaking is a department of the State government.
 Therefore the necessary opinion should have been
formed by the State government.
 It was urged on behalf of the appellants that under our
Constitutional set up, the requisite opinion could have
been formed either by the Council of Ministers or the
Minister to whom the business in question had been
allocated under the 'Rules'.
 The same could not have been formed by the Secretary
who is merely an official and that too by the Secretary
who is not the head of the department to which the
functions under the Act had been assigned.

 The contentions advanced on behalf of the
appellants proceed thus : The executive power of the
State vests in the Governor (Article 154).
 In the exercise of that power he has to be aided and
advised by the Council of Ministers with the Chief
Minister at the head (Article 163(1)) but the Governor
can make rules for more convenient transaction of
the business of the government of the State arid for
the allocation among Ministers of the said business
in so far as it is not business with respect to which
the Governor is by or under the Constitution required
to act in his discretion, (Article 166(3)).

 A Minister can only deal with the business that has
been allocated to him by the Governor under 'the
Rules'.
 He is not competent to deal with any other business.
Motor Vehicles Act has been allocated to the Home
Department.
 Mr. Karunanidhi, the Transport Minister was not in-
charge of the Home Department.
 Therefore his department could not have dealt with
functions arising under the Act.
 Further the Governor could into have allocated any
business to a Secretary. Hence in making Rule
23(A), the Governor exceeded the powers conferred
on him under Article 166(3).

 The SC held in the present appeal where
challenging scheme of nationalisation of
various routes of State has been filed that
where functions entrusted to Minister are
performed by official employed in
Minister's department there is in law no
delegation because Constitutionally act or
decision of official is that of Minister
 SC also held that ecretary validly
authorised under Rule 23-A to take
decision under Section 68 C for
nationalisation scheme.

 In every well planned administration, most of the
decisions are taken by the civil servants who are likely
to be experts and not subject to political pressure.
 The Minister is not expected to burden himself with the
day to day administration. His primary function is to lay
down the policies and programmes of his ministry while
the Council of Ministers settle the major policies and
programmes of the government.
 When a civil servant takes a decision, he does not do it
as a delegate of his Minister. He does it on behalf of
the government. It is always open to a Minister to call
for any file in his ministry and pass ordeRs.
 He may also issue directions to the officers in his
ministry regarding the disposal of government business
generally or as regards any specific case. Subject to
that over all power, the officers designated by the
'Rules' or the standing orders, can take decisions on
behalf of the government. These officers are the limbs
of the government and not its delegates.

 Each minister is personally liable and
collectively responsible for his actions
 A vote of no-confidence against one
minister may be treated as a vote of
non-confidence against the entire

 Krishna menon‟s resignation from the
ministry of defence because of the debacle
of the Indian arms in the face of the
Chinese aggression in 1962
 Though it was due to the late decision
making of the government, menon was
held responsible
 President venkataraman paid tribute to the
great personality by mentioning that his
efforts resulted in the success of war in
1965 and 71
 Krishna menon died in 1974

Misfeasance in office
 A tort of misfeasance in public office
 Malicious abuse of power, deliberate
maladministration and unlawful acts
causing injury to a person
 Common clause (I), the court held that
minister is responsible for misfeasance in
office
 Common cause (II), the court held that
minister is not responsible as malicious
intention is not there so the order was only
quashed by mentioning that it leads to
unlawfulness

Minister‟s responsibility for his
subordinates
 Principle of vicarious liability
 Chagla report in Madhura affair
 The principal finance secretary
negotiated the purchase of a large
number of shares from an individual
industrialist for the LIC
 Transaction was held against to rules of
business

 Accordin to chagla
 Minister is responsible for the acts of his
servants
 Servants has to work according to the
guidelines and the rules set for them

Interaction between executive
and parliament
 Minister must be a member of house of
parliament
 Ministers stay in office until they enjoy
support from Lok sabha
 Both houses of parliament discuss and
criticize in all opportunities the govt policy
 Executive cannot ignore and by-pass
parliament becausee the constitution
enjoins that not more than six months
should pass between the end of one
session and the beginning of another
session of parliament

 Many executive matters are having
involvement of parliament
 Fixation of emoluments, allowances and
privileges
 Impeachment
 Electoral college

Art.77(1) and (2)
 Provides that all executive action of the
Govt of India shall be expressed to be
taken in the name of the president, and
orders and other instruments made and
executed in the name of the president shall
be authenticated in such manner as may
be specified in the rules to be made by the
President
 Validity of an order or instrument
authenticated shall not be called in
question on the ground of President‟s
executive power

 No defintion in Indian Constitution for –
President‟s executive power
 Ram Jawaya Kapur vs. Punjab (1955) 2
SCR 225
 Nature of executive power :
Contention : the executive power of the
state did not extend to carrying on the
trade of printing, publishing and selling
text-books for schools, unless such
trade was authorized by law

 Judgment:
 Mukherjee CJ., -
○ “it may not be possible to frame an exhaustive
definition of what executive function means
and implies. Ordinarily, the executive power
connotes the residue of governmental
functions that remain after legislative and
judicial functions are taken away

 Indian constitution is modelled on the
British Parliamentary system
 Executive is deemed to have the
primary responsibility for the formulation
of governmental policy and its
transmission into law through the
condition precedent to the exercise of
this responsibility is its retaining the
confidence of the legislative branch of
the state

 If in pursuance of a policy, the Ministry
decided to undertake a trade, then, the
estimated expenditure required for such
trade, would be shown in the Annual
Financial statement, followed by an
Appropriation Act
 So long as the trade was carried on in
pursuance of the Ministry‟s policy, with the
tacit support of the majority in the
legislature, no objection that it was not
sanctioned by a law, could possibly be
raised

 Further adding, Justice Mukherjee urged
 Especially when encroaching upon the
private rights, specific legislation may indeed
be necessary if the Govt. require certain
powers in addition to what they undertake
otherthan ordinary course of trade

Functions and powers of
executive
 Judicial functions
 Legislative functions
 Executive functions

Judicial functions
 Appointment of judges of SC and HCs
 Disqualification of a member of house of
parliament
 Power of pardon

 72 (1) : president shall have the power to
grant pardons, reprieves, respites or
remissions of punishment or to
suspend, remit or commute the sentence of
any person convicted of any offence –
 (a) in all cases where the punishment or
sentence is by court martial
 (b) in all cases where the punishment or
sentence is for an offence against any law
relating to a matter to which the executive
power of the Union extends

 (c) in all cases where the sentence is a
sentence of death
 (2) Nothing in sub clause (a) of clause (1)
shall affect the power conferred by law on
any officer of the Armed forces of the Union
to suspend, remit or commute a sentence
passed by a court martial
 (3) Nothing in sub-clause (C) of clause (1)
shall affect the power to suspend, remit or
commute a sentence of death exercisable
by the Governor of a state under any law
for the time being in force

criticisms
 Does the president exercise any
personal discretion in the matter or does
he act merely as a constitutional head
 Should he give a personal hearing to the
convicted or his lawyer before disposing
of the matter
 Is the power to pardon subject to any
norms eg., art.14
 Is the exercise of this power subject to
judicial review

Maru ram vs. UOI AIR 1980
SC 2147
 Advice of council of ministers

Kuljeet Singh vs. Lt., Governor
AIR 1981 SC 2239
 Questioned regarding to norms and
standards for granting pardon

Kehar Singh vs. UOI AIR 1989
SC 653
 Right to hearing is subject to president‟s
discretion
 No need of specific guidelines
 Indira Gandhi assasination
 To what areas does the president‟s
power to scrutinize evidence extend in
exercising his power to pardon?

 President can examine the evidences

G.Krishna Goud vs. state of AP
(1976) 1 SCC 157
 No judicial review

Legislative functions
 Participation of the executive in
legislative process
 Power of rule-making under the
constitution
 Power to proclaim an emergency
 Power to make ordinances

participation
 Convene and prorogue parliament
 Dissolve loksabha
 Presentation of bills to parliament
 President‟s assent for conversion of bill
into act
 Art.3
 Art.117(1) : Money bill
 Art.117(3) : Consolidated fund of india
 Art.274 : tax affecting state interest

Rule making
 77(2) : authentication or orders and
instruments made and executed in the
name of president
 77(3) : rules for convenient transaction of
the govt‟s business and allocation of jobs
to the ministers
 148(5) : conditions of services etc., of Audit
and accounts department
 318 : Chairman and members of the union
and joint Public service commission

 98(3) : secretariat and staff of house of
parliament
 146(1) : consultation with UPSC regarding
officials of the SC
 101(2) : dual membership of parliament and
state legislature
 118(3) : procedure to be followed at the joint
sittings of the two houses of parliament
 309 : regulating the requirements and
conditions of service of persons appointed to
services and posts in connection with the
affairs of the Union

Art.123 Power of president to
promulgate ordinances during recess of
parliament
 (1) if any time, except when both houses
of parliament are in session, the
president is satisfied that circumstances
exist which render it necessary for him
to take immediate action, he may
promulgate such ordinance as the
circumstances appear to him to require

 (2) : an ordinance promulgated under this
article shall have the same force and effect
as an Act of parliament, but every such
ordinance-
 (a) shall be laid before both houses of
parliament and shall cease to operate at the
expiration of six weeks from the reassembly of
parliament, or, if before the expiration of that
period resolution disapproving it are passed by
both houses of parliament, upon the passing of
the second of those resolutions and
 (b) : may be withdrawn at any time by the
President

 Explanation : where the Houses of
parliament are summoned to reassemble
on different dates, the period of six weeks
shall be reckoned from the later of those
date for the purposes of this clause
 (3) if and so far as an ordinance under this
article makes any provision which
parliament would not under this constitution
be competent to enact, it shall be void

Ordinance making power
 In extraordinary circumstances, where
law is needed urgently president has
power to make ordinances
 Art.123 – (1) both houses of parliament
are not in session
 (2) he is satisfied that circumstances
exist which render it necessary for him
to take immediate action

 123(4) : 38th amendment : making
satisfaction of the President to issue an
ordinance is non-justiciable
 44th amendment : it was removed

A.K.Roy vs. UOI AIR 1982 SC
710
 National Security Ordinance, 1980
 ground to challenge is malafide
intention, corruption, bribery

 T.Venkata Reddy vs. state of AP (part
time village officers) and Nagaraj vs.
state of AP :
 No judicial review against executive‟s
action

Bommai case
 Proclamation under Art.356 for failure of
constitutional machinery in state is
subjected to judicial review only under
malafides or extraneous and irrelevant
grounds

RC cooper vs. UOI AIR 1970
SC564
 Banking Companies (Acquisition and
Transfer of Undertaking)
Ordianance, 1969
 President‟s satisfaction is subjective

Venkata reddy vs. state of AP
AIR 1985 SC 724
 Ordinance won‟t become void ab intio
when an Act in support of this was not
passed

Executive actions
 76(1) : power to appoint various high
officials like attorney general
 148(1) : comptroller and attorney
general
 155 : state governor
 315-323 : member of UPSC
 324(2) : election commissioners

 Inter state council: 263
 Finance commission : 280
 Commission for ST : 339(1)
 Backward classes : 340(1)
 Official language commission : 344(1)
 Power to enter into contracts 299
 Issue directions to states in certain
circumstances 256, 257, 339(2)

Attorney general of india
 76(1) : president shall appoint a person
who is qualified to be appointed a SC
Judge to be the Attorney-General for India
 (2) : it shall be the duty of the Attorney-
general to give advice to the GOI upon
such legal matters, and to perform such
other duties of a legal character, as may
from time to time be referred or assigned to
him by the president, and to discharge the
functions conferred on him by or under this
constitution or any other law for the time
being inforce

 (3) : in the performance of his duties the
Attorney-general shall have right to
audience inall courts in the territory of
india
 (4) : the attorney-general shall hold
office during the pleasure of the
president, and shall receive such
remuneration as the president may
determine

Central executive

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