CONSTITUTION ASSIGNMENT On The Union Executive

THE UNION EXECUTIVE
University Institute of Legal Studies

Panjab University
CONSTITUTION ASSIGNMENT
“The Union Executive”
Submitted By- Mudit Gupta Submitted To- Dr. Shruti Bedi
Roll No. – 168/17
B.Com. LL.B
Section- C
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Acknowledgement
I would like to express my special thanks of gratitude to my teacher, Dr. Shruti Bedi who
gave me the golden opportunity to do this wonderful assignment on the topic “The 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 her.
Secondly I would also like to thank my seniors and friends who helped me a lot in
finalizing this assignment within the limited time frame.
Mudit Gupta
(Student’s Signature)
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INDEX
ACKNOWLEDGEMENT………………………………………………………………..2
TABLE OF CASES………………………………………………………………………5
INTRODUCTION………………………………………………………………………..6-7
PART V, THE UNION…………………………………………………………….…….8-9
THE PRESIDENT AND VICE PRESIDENT…………………………………….……10-33
THE PRESIDENT OF INDIA……………………………………………..……10-29
Election Of The President
Term Of Office Of President
Eligibility For Re-Election
Conditions Of President’s Office
Oath Or Affirmation By The President
Procedure For Impeachment Of The President
Doubts And Disputes In Respect Of The Election Of The President And Vice-President
Powers Of The President
THE VICE-PRESIDENT OF INDIA………………………………………………29-33
Qualifications For The Office Of Vice-President
Election Of The Vice-President
Time For Holding Election
Term Of Office Of The Vice-President, Resignation
Removal Of The Vice-President
Oath Of Office
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Conditions Of Office
COUNCIL OF MINISTERS………………………………………………………………33-37
The Prime Minister Of India
Deputy Prime Minister
Council Of Ministers
Duties Of Prime Minister Towards The President
THE ATTORNEY-GENERAL FOR INDIA……………………………………………..38-39
Appointment Of The Attorney-General
Duties Of The Attorney-General
CONCLUSION…………………………………………………………………………….40
BIBLIOGRAPHY & WEBLIOGRAPHY………………………………………………….41
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Table of Cases
1. Ram Javaya Kapur v. State of Punjab, AIR 1995 SC 549.

2. Jayantilal Amritlal Shodhan v. F.N. Rana AIR 1964 SC 648, 655: (1964) 5 SCR 294
3. Medical Association v. Union of India, AIR 2011 SC 2365
4. Lalit Mohan Pandey v. Pooran Singh, 2004 (5) SCALE 267

5. Charan Lal Sahu v. Neelam Sanjeeva Reddy, (1978) 2 SCC 500: AIR 1978 SC 499.
6. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: (1976) 2 SCR 347.
7. Presidential Poll, Re, (1974) 2 SCC 33: AIR 1974 SC 1682
8. J. & K. Public Service Commission v. Narinder Mohan, AIR 1994 SC 1808.
9. State of J. & K. v. M/s Trehen, AIR 2005 J. & K., 13
10. Union of India v. Central Information Commission, AIR 2013 (NOC) 119 (DEL)
11. Mohinder Singh v. State of Punjab, AIR 2013 SC 3622

12. State of Haryana v. Jagdish, AIR 2010 SC 1690
13. D.I.G. v. Rajaram, AIR 1960 A.P. 259.
14. Kuljit Singh. V Lt. Governor of Delhi, AIR 1982 SC 774
15. State (Govt. of NCT Oof Delhi) v. Prem Raj, (2003) 7 SCC 121
16. Ram Deo Chauhan v. State of Assam , AIR 2001 SC 2231
17. Budh Singh v. State of Haryana, AIR 2013 SC 2386
18. Kehar Singh v. Union of India, AIR 1989 SC 653
19. State of Punjab v. Joginder Singh, AIR 1990 SC 1396
20. Devneder P.S. Bhullar v. State, AIR 2013 SC 1975
21. Maru Ram v. Union of India, AIR 1980 SC 2147 1 SCC 107
22. State of Punjab v. Joginder Singh, AIR 1990 SC 396 2 SCC 661
23. Triveniben v. State o Gujarat, (1989) 30 Guj LR 923
24. D.C. Wadhwa v. State of Bihar, AIR 1978 SC 579
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INTRODUCTION
India is a democratic republic with a parliamentary form of government. The government at the
Central level is called ‘Union Government’ and at the State level it is known as ‘State
Government’. The Union Government has three organs – the Executive, the Legislature and the
Judiciary. The President, the Prime Minister and his Council of Ministers collectively constitute
the Union Executive1.
When the Constitution of India was written, India already had some experience of running the
parliamentary system under the Acts of 1919 and 1935. This experience had shown that in the
parliamentary system, the executive can be effectively controlled by the representatives of the
people. The makers of the Indian Constitution wanted to ensure that the government would be
sensitive to public expectations and would be responsible and accountable. The other alternative
to the parliamentary executive was the presidential form of government. But the presidential
executive puts much emphasis on the president as the chief executive and as source of all
executive power. There is always the danger of personality cult in presidential executive. The
makers of the Indian Constitution wanted a government that would have a strong executive
branch, but at the same time, enough safeguards should be there to check against the personality
cult. In the parliamentary form there are many mechanisms that ensure that the executive will be
answerable to and controlled by the legislature or people’s representatives. So the Constitution
adopted the parliamentary system of executive for the governments both at the national and State
levels. According to this system, there is a President who is the formal Head of the state of India
and the Prime Minister and the Council of Ministers, which run the government at the national
level. At the State level, the executive comprises the Governor and the Chief Minister and
Council of Ministers. The Constitution of India vests the executive power of the Union formally
in the President. In reality, the President exercises these powers through the Council of Ministers
headed by the Prime Minister2.
1
http://download.nos.org/srsec317newE/317EL10.pdf
2
http://www.ncert.nic.in/ncerts/l/keps204.pdf
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Executive is the branch of government responsible for the implementation of laws and policies
adopted by the legislature. The executive is often involved in framing of policy. The official
designations of the executive vary from country to country. Some countries have presidents,
while others have chancellors. The executive branch is not just about presidents, prime ministers
and ministers. It also extends to the administrative machinery (civil servants). While the heads of
government and their ministers, saddled with the overall responsibility of government policy, are
together known as the political executive, those responsible for day to day administration are
called the permanent executive3.
In a parliamentary system, the prime minister is the head of government. Most parliamentary
systems have a president or a monarch who is the nominal Head of state. In such a system, the
role of president or monarch is primarily ceremonial and prime minister along with the cabinet
wields effective power. Countries with such system include Germany, Italy, Japan, United
Kingdom, Portugal as well as India4.
3
Ibid
4
Ibid
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PART V, THE UNION
Chapter The Union Executive

I
The President and Vice-President
52 There shall be a President of India.
53 The executive power of the Union
54 Election of President
55 Manner of election of President
56 Term of office of President
57 Eligibility for re-election
58 Qualifications for election as President
59 Conditions of President’s office
60 Oath or affirmation by the President
61 Procedure for impeachment of the President
62 Time of holding election to fill vacancy in the office of President and the term of
office of person elected to fill casual vacancy
63 The Vice-President of India
64 The Vice-President to be ex officio Chairman of the Council of States
65 The Vice-President to act as President or to discharge his functions during casual
vacancies in the office, or during the absence, of President
66 Election of Vice-President
67 Term of office of Vice-President
68 Time of holding election to fill vacancy in the office of Vice-President and the term
of office of person elected to fill casual vacancy
69 Oath or affirmation by the Vice-President
70 Discharge of President’s functions in other contingencies
71 Matters relating to, or connected with, the election of a President or Vice-President
72 Power of President to grant pardons, etc., and to suspend, remit or commute
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sentences in certain cases

73 Extent of executive power of the Union
Council of Ministers
74 Council of Ministers to aid and advise President
75 Other provisions as to Ministers
The Attorney-General for India
76 Attorney-General for India
Conduct of Government Business
77 Conduct of business of the Government of India
78 Duties of Prime Minister as respects the furnishing of information to the President,
etc.
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THE PRESIDENT AND VICE PRESIDENT
THE PRESIDENT OF INDIA (ARTICLE 52)
Article 52 of the constitution of India provides that there shall be a President of India.
Article 53 talks about the executive powers of the Union
Article 53 (1) declares that “the executive power of the Union shall be vested in the President
and shall be exercised by him either directly or through officers subordinate to him.” However,
he shall exercise his powers in accordance with the provisions of the constitution.
Article 73 defines the matters with respect to which the executive authority of the Union
extends. The executive authority can be said to be the authority to carry out the executive
function of the government. Ordinarily, executive function connotes the residue of the
governmental functions that remain after legislative and judicial functions are taken away. Thus
it shall include the initiation of legislation, the maintenance of order, and promotion of social and
economic welfare, the direction of foreign policy; in fact the carrying on of supervision of the
general administration of the state.5
The executive power of the Union does not extend to a matter enumerated in the Concurrent List
of the Seventh Schedule, unless expressly provided in the Constitution or expressly entrusted by
a law made by Parliament6.
Shah, J. in Jayantilal Amritlal Shodhan v. F.N. Rana7 Said that, “it cannot, however, be assume
that the legislative functions are exclusively performed by the legislature, executive functions by
the executive and judicial functions budget by the judiciary alone. The Constitution has not made
absolute or regional divisions of function between the three agencies of the state. To the exact
executive exercise of functions legislative or judicial are often entrusted. For instance, power to
frame rules, regulations and notifications which are essentially legislative in character is
5
Ram Javaya Kapur v. State of Punjab, AIR 1995 SC 549.
6
Provison to Clause (1) of Article 73
7
AIR 1964 SC 648, 655: (1964) 5 SCR 294
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frequently entrusted to the executive. Similarly judicial authorities also interested by legislation
to the executive authority.” 8
Referring to the provision Article 162, a Division Bench of the Supreme Court in Indian
Medical Association v. Union of India,9 observed that the State Executive had the power to
make any regulation or order which would have the effect of law so long as it did not contravene
any legislation by the State Legislature already covering the field.
Article 53 (2) vests the supreme commander of the defence forces in the President. There are
two important limitations in clause (2) which shall be noted. Firstly, this function of the
President is exercisable “without prejudice to the generality of the foregoing provision”10 this
means the military power of the President is subject to the general executive power of the
President vested in him by the clause (1) and which is exercisable in accordance with the
Constitution. Military power is thus subordinate to civil power. Secondly, the exercise of
supreme command can be regulated by law. “Law” here obviously means Acts of Parliament.
Clause (1), it will be seen, conditions the executive powers to be exercised in accordance with
The Constitution whereas clause (2) subjects it to laws made by Parliament. Thus, war power
vested in Parliament would enable it to give directions to the President as to the exercise of the
power commander of the defence forces and the power to carry on military campaign.11
ELECTION OF THE PRESIDENT

Qualifications for Election as President (Article 58)
Article 58 lays down the following qualifications which a person must possess for being eligible
for election as president
1. he must be citizen of India.

2. he must have completed the age of 35 years.
8
Shukla, V. N., & Singh, M. P. (1990). V.N. Shukla's Constitution of India. Lucknow: Eastern Book Co.
9
AIR 2011 SC 2365
10
Article 53(1)
11
Supra Note 8
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3. he must be qualified for election as a member of the house of the people. He must
therefore be registered as a voter in any parliamentary constituency.
4. he must not hold any office of profit under the command of India or the government of
any state or under any local or other authorities and take the control of any of the said
government.
Explanation attached to the article 58 declares that for the purpose of article 58, 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 he is a minister leader for the union or for any State.
The expression office of profit is not defined in the Constitution. But by a series of
decisions, the Supreme Court has laid down the following test for finding out with whether the
office in question is an office of profit under the government:
 whether the government makes and the appointment;

 whether the government has the right to remove dismiss the holder;
 whether the government pays their remuneration;
 whether the functions of the holder? Does he perform them for the government? and
 does the government exercise any control over the performance of those functions?
The question is to be judged in each case in the light of the previous provisions of the relevant
law.12
Who Elects the President – Electoral College (Article 54)

The President of India is not directly elected by the people. Article 54 provides that the President
shall be elected by the 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.
12
Kumar, Narender. Constitutional Law of India, Ninth Edition, 2015 , Allahabad Law Agency at P.540
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The Constitution (70th Amendment) Act,1992 has added a new explanation to Article 54
which provides that the word “State” includes the National Capital Territory of Delhi and the
Union Territory of Pondicherry. This means that the M.L.A.’s of the National territory Delhi and
Pondicherry will be included in the electoral college of the President.13
It may be noticed that only elected members of the House of Parliament and that of the
Legislative Assemblies of the States are the members of the Electoral College. The Nominated
Members do not take part in the election of President.14
Manner of Election [Article 55 (1) & (2)]
As provided by Article 55, the President will be indirectly elected by the members of an
Electoral College. The article prescribes the manner of voting in the Electoral College. With a
view to having the uniformity in the scale of representation among the states inter se, as well the
parity between the states as a whole and the Union, the votes of the electors at the Presidential
election are weighted in the manner described in sub-clauses (a) & (b) of clause (2). The formula
adopted in clause (2) seeks to secure to a member of a state legislative assembly votes in the ratio
of the population of the state which he represents in the assembly and thereby to prevent the
swamping of votes of a larger State by those of a similar State having relatively a larger
legislature. The formula also seeks parity of votes between the elected members of the Houses of
Parliament on the one hand and those of the state legislative assemblies on the other. It so works
out that the total number of votes commanded by the two Houses of Parliament in Electoral
College is equal to that commanded by the members of the state legislative assemblies.15
The formula provided is that every elected member of the Legislative Assembly of a state
shall have as many votes as there are multiples of one thousand in the quotient obtained by
dividing the population of state by the total number of the elected members of the assembly.16
When the votes, which the elected members of all the State Legislative Assemblies are
entitled to cast, are calculated, then the votes to be case by the elected members of the Parliament
shall be determined. Article 55 provides that 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 by the total number of the
13
Pandey, J.N. (2007) Constitutional Law of India, Faridabad, Allahabad Law Agency
14
Supra note 12 at P. 541
15
16
Article 55 (2) (a)
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elected members of both the Houses of Parliament. Fraction exceeding one-half shall be counted
as one and other fractions would be disregarded.17
The Drafting Committee of the Constituent Assembly explained the formula by

following illustration-18
Suppose the population of a state is 2,08,49,840, and the total number of elected members of the
legislative members of the state is 208.
The number of votes which each elected member of the State legislature is entitled to case at the
election of the president shall be-
Population of the state ÷ 1000

Total number of the elected members of all the Legislative Assemblies of all the States
= 2,08,49,840 × 1___
208 1000
= 100239
1000
=100 (the remainder 239 being less than 500 is ignored)
By applying the above formula for each state separately, the total number of
votes assigned to all the elected members of the Legislative Assemblies of all the states are
found. Now, suppose it comes to 74,940. Again suppose, the total number of elected members of
the elected members of the both the houses of Parliament, at the time of the election of the
President is 750. Referring to Article 55, the number of votes which each elected member of
either House of Parliament is entitled to cast shall be-
Total number of votes assigned to all the elected members of all the Legislative Assemblies
Total number of elected members of both the Houses of the Parliament
= 74,940 = 99 23/25
750
= 100 (the fraction 23/25 being more than one-half is counted as one)
Thus, each elected member of the Parliament is entitled to cast 100 votes.19
17
Article 55 (2) (c)
18
See Draft Constitution, 17
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System of Election [Article-55(3)]
Clause (3) of Article 55 provides that the election of the President shall be held in accordance
with the system of proportional representation by means of the single transferable vote.
The object for adopting this system is to elect that candidate who is found to be more
popular among electors. This system is adopted when there are more than two candidates in
the election of the President.20 In such a case, if simple majority rule is applied, then a
candidate getting less than 50 percent of the votes cast in the election, would be declared
elected. While according to the system of proportional representation, the candidate to be
declared successful would be that who obtains an absolute majority votes.21
TERM OF OFFICE OF PRESIDENT (Article 56)
(1) The President shall hold office for a term of five years from the date on which he enters
upon his office.
Provided that-
(a) The President may, by writing under his hand addressed to the Vice-President, resign
his office;
(b) The President may, for violation the Constitution, be removed from office by
impeachment in the manner provided in the Article 61;
(c) The President shall, notwithstanding the expiration of his term, continue to hold
office until his successor enters upon his office.
(2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause
(1) shall forthwith be communicated by him to the speaker of the House of the People.
19
20
Lalit Mohan Pandey v. Pooran Singh, 2004 (5) SCALE 267
21
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Article 56 provides that the president shall hold office for a term of five years from the
date on which he enters upon his office. His office may be terminated earlier than five years if he
resigns or is removed on impeachment for violation of the Constitution. However, he may, by
writing under his hand and addressed to the Vice-President, resign his office at any time before
the completion of his term of five years who shall forthwith communicate to the speaker of the
House of the People.
Article 56 (1) (c) provides that the President shall continue in his office even after the
expiration of his term of five years until his successor enters upon his office. It thus says of the
extension of the tenure of the president.
In Re, Presidential Poll22, a reference was made by the President under Article 143(1) for
the opinion of the Supreme Court on the question as to whether the election to fill the vacancy
caused on the expiration of the term of the office of President must be completed before the
expiry of the term of office of the President must be completed before the expiry of the term of
office notwithstanding the fact that the legislative assembly of Gujarat was dissolved. The
opinion of the Supreme Court was unanimously in the affirmative. According to R.C. Jay,
speaking for the Court, the election to fill the vacancy in the office of the President is to be held
and completed having regard to the Articles 62(1), 54, 55 and the Presidential and Vice-
Presidential Elections Act, 1952. Article 56(1) (c) applies to case where a successor has not
entered on his office and only in such circumstances can a President whose term has expired
continue.23
ELIGIBILITY FOR RE-ELECTION (Article 57)
Article 57 says that, a person who holds, or who has held, office as President shall, subject to the
other provisions of the Constitution, be eligible for re-election to that office.
Our Constitution not place any bar on the re-election of the same person to the office of
the President. He may be elected for any number of terms. The Irish Constitution prohibits re-
22
(1974) 2 SCC 33; AIR 1974 SC 1682
23
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election for more than two terms. The Constitution of the United States of America, as originally
enacted, said nothing about re-election of the terms of the President, though until the Second
World War under a well-established convention one person did not hold more than two terms.
But the convention was broken when President Roosevelt was re-elected for the third term
during World War II.24 Now the U.S. Constitution expressly bars the election of the same person
more than twice to the office of the President. Though Article 57 prescribes no limit on the re-
election of the President, after the first President of India, Dr. Rajendra Prasad, who was elected
twice, all other Presidents have been elected only for one term.
CONDITIONS OF PRESIDENT’S OFFICE (Article 59)
(1) The President shall not be a member of either House of Parliament or a House of the
Legislature of any state, and if a member of either House of Parliament or of a House of
the Legislature of any State, and if member of either House of Parliament or of a House
of the Legislature of any State be elected President, he shall deemed to have vacated his
seat in that House on the date on which he enters upon his office as President.
(2) The President shall not any hold any other office of profit.
(3) The President shall be entitled without payment of rent to the use of his official
residences25 and shall be entitled to such emoluments, allowances and privileges as are
specified in second Schedule
(4) The Emoluments and allowances of the President shall not be diminished during the term
of his office.
Explanation- The preceding article lays down the qualifications which a person must
possess to be eligible for the President’s office. This Article specifies conditions which are
attached to the office of the President, viz., he will not be a member of any legislature in the
country nor will hold any other salaried appointment either under the State or under any other
non-governmental authority.
24
The 22nd Amendment to the Constitution of the U.S.A.
25
Rashtrapati Bhawan
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He gets any official residence for rent. He is entitled to such emoluments, allowances and
privileges as may be determined by Parliament. The emoluments and allowances of the President
shall not be diminished during his term of office.26
OATH OR AFFIRMATION BY THE PRESIDENT (Article 60)
Article 60 provides for the manner in which the president shall take oath before entering upon his
office.
Every President and every person acting as President or discharging the functions of the
President shall, before entering upon his office, make and subscribe in the presence of the Chief
Justice of India or, in his absence, the seniormost Judge of the Supreme Court available, an oath
or affirmation in the following form, that is to say-
“I A.B., do swear in the name of God / solemnly affirm that I will execute the office of
the 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.”27
PROCEDURE FOR IMPEACHMENT OF THE PRESIDENT

(Article 61)
(1) When a President is impeached for violation of the Constitution, the charge shall be
preferred by either House of Parliament.
(2) No such charge shall be preferred unless-
(a) The proposal to prefer such charge is contained in a resolution which has been
moved after at least fourteen days’ notice in writing signed by not less than one-
26
MP Jain
27
Article 60
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fourth of the total number of members of the House has been given of their intention
to move the resolution, and
(b) Such resolution has been passed by a majority of not less than two-thirds of the total
membership of the House.
(3) When a charge has been so preferred by either House of Parliament the other House shall
investigate the charge or cause the charge to be investigated and the President shall have
the right to appear and to be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less than two-
thirds of the total membership of the House by which the charge was investigated or
caused to be investigated, declaring that the charge preferred against the President has
been sustained, such resolution shall have the effect of removing the President from his
office as from the date on which the resolution is passed.
Explanation- Under Article 56, we have seen that the President can be removed from his office
for violation of the Constitution by impeachment. Article 61 describes the procedure for
impeachment. It embodies the following provisions-
(i) The motion to prefer a charge against the President for violating the Constitution may
be initiated in either House of Parliament;
(ii) The motion must have the support of not less than one-fourth of the total number of
members of the House;
(iii) Fourteen days’ notice of the intention to move the motion should have given;
(iv) The motion must be passed by a majority of not less than two-thirds of the total
membership of the House;
(v) The House which passes the motion to prefer a charge against the President shall not
be entitled to investigate the charge; the charge shall be investigated by the other
House; and
(5) The House which has investigated the charge, if it finds the President guilty, must pass a
resolution to that effect by a majority of two-thirds of the total membership of the House.
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The resolution shall have the effect of removing the President from his officer from the
date on which the resolution is passed.28
DOUBTS AND DISPUTES IN RESPECT OF THE ELECTION OF

THE PRESIDENT AND VICE-PRESIDENT (Article 71)
(1) All doubts and disputes arising out of or in connection with the election of a President or
Vice-President shall be inquired into and decided by the Supreme Court whose decision
shall be final.
(2) If the election of a person as President or Vice-President is declared void by the Supreme
Court, acts done by him in exercise and performance of power and duties of the office of
President or Vice-President as case may be, on or before the date of the decision of the
Supreme Court shall not be invalidated by the reason of the declaration.
(3) Subject to the provisions of the Constitution, Parliament may by law regulate any matter
relating or connected with the election of President or Vice- President.
To this the Constitution (Eleventh Amendment) Act, 1961 had added clause (4) which
read:
(4) “The election of a person as President or Vice-President shall not be called in question on
the ground of the existence of any vacancy for whatever reason among the members of
the electoral college electing him.”
Under his article the Supreme Court has been given the exclusive authority to decide all doubts
and disputes connected with the election of the President or the Vice-President. Subject to this
and any other provision of the Constitution, Parliament may by regulate any matter connected
with the election of the President or the Vice-President. By the Constitution (Thirty-Ninth
Amendment) Act,1975 clause (1) was replaced by what in now clause (3) and a new clause (2)
was inserted which authorised Parliament to provide by law for any authority to decide the
doubts and disputes about the election of the President or the Vice-President. The then existing
clause (3) was replaced by a new clause (3) which gave immunity to the law of Parliament
28
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referred to in clause (1) as well as to the decision of the authority envisaged under such law from
challenge in any court. After this amendment in Charan Lal Sahu v. Neelam Sanjeeva Reddy29,
under Section 14 of the Presidential and Vice-Presidential Elections Act, 1952, the petitioner
challenged the election of Shri Neelam Sanjeeva Reddy as President of India at the Presidential
election held on July19, 1977. A question was raised whether the petitioner had locus standi to
maintain the petition in view of Sections 5-B and 5-C of the Act30 and whether he could
challenge the validity of these sections. It was held by Supreme Court that the petitioner was not
duly nominated nor was one who could claim to be so nominated and that his nomination paper
was rightly rejected by the returning officer as required under the Act. It was pointed out by Beg,
C.J. that, unlike in Indira Gandhi case31 where the Supreme Court struck down Article 329-A
clause (4) of the Constitution on the ground that it violated the basic structure of the Constitution
, clause(3) of the Article 71 did not affect the basic structure. It was held in that case that in the
exercise of the powers of the amendment of the Constitution under Article 368, Parliament could
not exercise judicial powers for decisions of election disputes pending before the Supreme Court.
In the present case impugned amendment only refers to a law by which Parliament may regulate
matters connected with the Presidential election include those relating to the election disputes
arising out of such an election. It does not take away the jurisdiction of the Supreme Court to
decide any matter which may be pending before it. All it does is to provide that the validity of
any law falling under clause (1) of this article will not be called in question in tribunal before
which election of the President could be questioned. The effect of clause (3) of this article is only
to give effect to the general principle that a court or tribunal functioning or exercising its
jurisdiction under an enactment will not question the validity of that very enactment which is the
source of its power. The Constitution (Forty-Fourth Amendment) Act, 1978 has restored original
position w.e.f. 20-6-1979.
Clause (4) of this article further provides that the election of a person as President or Vice-
President shall not be called in question on the ground of the existence of any vacancy for
whatever reason among the members of the Electoral College electing him. This clause was
introduced by the Constitution (Eleventh Amendment) Act, 1961 to foreclose any challenge of
29
(1978) 2 SCC 500: AIR 1978 SC 499.
30
Presidential and Vice-Presidential Elections Act, 1952
31
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: (1976) 2 SCR 347.
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the kind made in N.B. Khare v. Election Commission32 that the Presidential election should be
stayed till all vacancies in Parliament and State Legislatures are filled. Though the challenge was
rejected by the Supreme Court, the clause put the matter beyond any doubt. Manifestly this
provision is of wide amplitude, i.e., existence of any vacancy for any reason whatsoever among
the members of the college shall not be a reason to question the validity of the election. If, as a
result of dissolution of the legislative assembly of a State, the State will not have any elected
member of the Legislative Assembly of a State, the State will not have any elected member of
the State Legislative Assembly to qualify for the Electoral College.33
POWERS OF THE PRESIDENT
The Constitution confers very vast powers on the President. However, these powers have to be
read and interpreted in the light of the Parliamentary System of Government which is adopted
under the Constitution. This subject is to be discussed under the heading position of the
President. This powers of the President are discussed below:-
Powers in Relation to the Executive-
Article 53(1) declares that the executive power of the Union shall be vested in the
President. He may exercise this power either directly or through officers subordinate to him.
Article 73 provides that the executive powers of the Union shall extend to the matters with
respect to which Parliament has power to make laws. It is, however, subject to the provisions of
the Constitution. Thus, the executive power of the President is co-extensive with the legislative
power of the Parliament.34
Article 77 requires that every executive action of the Union35 shall be expressed to be
taken in the name of the President. Orders and other Instruments so executed shall be
authenticated shall not be called in question on the ground that that it is not an Order or
32
AIR 1957 SC 694
33
Presidential Poll, Re, (1974) 2 SCC 33: AIR 1974 SC 1682
34
J. & K. Public Service Commission v. Narinder Mohan, AIR 1994 SC 1808.
35
Advice given by the Council of Ministers does not crystallise into action of the Union till that advice is accepted
by the President. In J.P. Bansal v. State of Rajasthan, AIR 2003 SC 1405
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Instrument made or executed by the President. The President is further empowered to make rules
for the more convenient transaction of the business of the Government of India and for allocation
of said business among the Ministers. The decision of a Minister or Officer, under the Rules of
Business, is the decision of the President or the Governor, as the case may be.36
In the exercise of his executive powers, the President makes a number of appointments. It
is the President who appoints the Prime Minister and other members of the Council of Ministers.
All the members of the Union Council of Ministers, hold office during the pleasure of the
President.37 Article 76 confers power on the President to appoint the Attorney General for India.
The Governors of the States38, the Comptroller and Auditor-General for India39, the Chairman
and Members of the Union Public Service Commission40, the Chief Election Commissioner and
other Election Commissioners41, are appointed by the President. The Judges of the Supreme
Court42, and the Judges of the High Courts43, are also appointed by the President in the exercise
of his executive power. In the exercise of his executive power, the President also appoints
various commissions.
The President is entitled to be informed of the affairs of the Union and all proposals for
legislation. He may require the Prime Minister to furnish information relating to the
administration of the affairs of the Union and proposals for legislation. The President may
further require the Prime Minister to place before the Council of Ministers, but which has not
been considered by the Council.
It may be stated that “the question whether any and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any Court.”44 There is a complete
bar under Article 74(2) as to the advice tendered by the Ministers to the President Central.
45
In Union of India v. Central Information Commission, the respondent had sought
copies of correspondence between the President and the Prime Minister held during the period
36
State of J. & K. v. M/s Trehen, AIR 2005 J. & K., 13.
37
Article 75(2)
38
Article 155
39
Article 148
40
Article 316
41
Article 324
42
Article 124
43
Article 217
44
Article 74 (2)
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28th February, 2002 to 15th March, 2002, relating to the Gujarat riots. Holding that such
correspondence construed as advice tendered by President to the Council of the Ministers,
enjoyed complete immunity under Article 74(2), the Delhi High Court.46
Legislative Powers-
The President of a component part of the Union Parliament47.He nominates 12 persons,

eminent in literature, art, science, or social service to the Rajya Sabha.48 He may also nominate
2 persons belonging to Anglo-Indian community to the Lok Sabha., if in his opinion that
community is not adequately represented in the House.49
If any question arises as to whether a member of either House of Parliament has become
subject to a disqualification mentioned in Article 102, the question is referred for the decision of
the President, whose decision is declared to be final50.
It is the President who is vested with the power to summon the Sessions of the House of
Parliament. The time and place of holding the Session is to be determined by him. Again, it is the
President who has the power to prorogue the Sessions of the House of Parliament. The President
may dissolve the Lok Sabha before the expiration of its term of five years.51
The President may address either House of Parliament or both Houses assembled
together, and for that purpose, he may require the attendance of the members.52 He may send
messages to either House of Parliament with respect to a bill then pending in the House. The
President address both Houses of Parliament assembled together after every general election and
at the commencement of the first session of each year.53
Every Bill passed by both Houses of Parliament, is sent to the President for his assent and
become an Act only when it is assented to by him. He may give his assent or withhold his assent.
45
AIR 2013 (NOC) 119 (DEL)
46
Supra note 12 at P-552
47
Article 79
48
Article 80
49
Article 331
50
Article 103
51
Article 85(2)(b)
52
Article 86 (1)
53
Article 87
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In respect of a non-money Bill, he may also return it for being reconsidered by the Houses with a
message thereon.54 A Bill providing for the formation of new States or alteration of the areas,
boundaries, or the name of the existing States, can be introduced in either House of Parliament
only with prior recommendation of the President.55 His recommendation are needed for
introducing in the Houses of the State Legislature, a Bill providing for imposing restrictions on
the freedom of trade or commerce.56 Every year, the President causes to be laid before both
Houses of the Parliament, the Annual Financial Statement (the Annual Budget),57 the Audit
Reports, the recommendations of the Finance Commission58, and Reports of the Union Public
Service Commission.
All Money Bills and Financial Bills can be introduced in the Lok Sabha, only with prior
recommendation of the President. All measures involving expenditure from the Consolidated
Fund of India, must have his recommendations.59
Power to Grant Pardons (Article 72) –
Article 72 confers power on the President “to grant pardons, reprieves, respites or remission of
punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence
in the following cases-
(a) In all cases where punishment or sentence is by a Court Martial;

(b) In all cases where the punishment or sentence is for an offence against any law relating
to which the executive power of Union extends;
(c) In all cases where the sentence is a sentence of death”60
However, the power conferred under Article 72 is a Constitutional Power61 and is absolute and
cannot be fettered by any statutory provision such as Section 432, 433 and 433A of the Code of
Criminal Procedure, 197462
54
Article 111
55
Article 3
56
Article 304
57
Article 112(1)
58
Article 281
59
Article 113
60
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A pardon completely absolves the guilt of the offender. When a convict is granted
pardon, he is completely absolved from the punishment imposed on him from all penal
consequences and such disqualifications as disentitle him from following his occupation and as
are concomitant of the conviction.63
Reprieve means temporary suspension of death sentence, for example, pending a

proceeding for pardon or commutation.
Respite means awarding a lesser punishment on some special ground.64 In view of the
fact that the accused has no previous convictions.65 For example pregnancy of a woman
offender.66
Commutation of sentence- The power of the President to commute any sentence is not
subject to constitutional or judicial restrains except that it cannot be used to enhance the
sentence.67 It is intended to afford relief from undue harshness of evident mistake.
“Commutation” is the essence of alteration of a sentence of one kind into a sentence of

less severe kind. The powers of commutation exclusively vests with the appropriate government
which means the Central/State government to whose executive power the sentence of order
relates.68
For example, Rigorous imprisonment is commuted to Simple imprisonment.69
Remission means reduction of the amount of sentence without changing its character. An
order of remission does not, in any way, interfere with the order of the Court. A remission of
sentence, therefore, does not mean acquittal70
61
The power is also known as prerogative power and the Executive function. In Mohinder Singh v. State of Punjab,
AIR 2013 SC 3622
62
State of Haryana v. Jagdish, AIR 2010 SC 1690
63
D.I.G. v. Rajaram, AIR 1960 A.P. 259.
64
65
66
67
Kuljit Singh. V Lt. Governor of Delhi, AIR 1982 SC 774
68
State (Govt. of NCT Oof Delhi) v. Prem Raj, (2003) 7 SCC 121
69
70
Ram deo Chauhan v. State of Assam , AIR 2001 SC 2231
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An order of remission has the effect of wiping out that part of the sentence of
imprisonment which has not been served out and thus in practice to reduce the sentence of the
period already undergone. In law, the order of remission merely means the rest of the sentence
need not to be undergone, leaving the order of conviction by the Court and sentence passed by it,
untouched.71
Exercise of the power- 1. Being an executive power, the power of the President is to be
exercised on the advice tendered by Council of Ministers.
2. Subject to the above, the President may scrutinise the evidence on record of the’ criminal case
and come to a different conclusion from that recorded by the Court. In doing so the President
does not amend or modify or supersede the judicial record. The President acts in a wholly
different plan. He acts under a constitutional power, and is entitled to go into the merits of the
case.72 If he takes a different view it would not amount to supersession of judicial verdict.
3. Again, the proceedings before the President being, of an executive character, the petitioner has
no right to insist on presenting an oral argument. The manner of consideration of the petition lies
within the discretion of the President.73
4. It is an absolute power, conferred by the Constitution and is not subject to any statutory
provision.74
Judicial Review of Mercy Petition
It has been consistently held that the Court’s power of judicial review of decision taken by the
President under Article 72 or by the Governor under Article 161 as the case may be, is very
limited. The Court can neither sit in appeal nor can exercise the power of review. The Court,
may, however, interfere if it is found that the decision taken without application of mind to the
71
Budh Singh v. State of Haryana, AIR 2013 SC 2386
72
Kehar Singh v. Union of India AIR 1989 SC 653
73
Basu, Durga Das, Introduction To The Constitution Of India, 2016, Lexis Nexis, Noida, 22nd Ed.
74
State of Punjab v. joginder singh AIR 1990 SC 1396
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relevant factors or the same is founded irrelevant considerations or in vitiated due to mala fide or
patent arbitrariness.75
1. Since the President’s power under Article 72 is a constitutional and is an executive

power76 unlike the Court’s statutory and judicial power under ss.432 and 433(a) of the Cr.
P.C., the order of the President under Article 72 cannot be subjected to judicial review
and its merits.77 The power is of the widest amplitude and the Court cannot even suggest
guideline.78
2. It follows that-
(a) It must be presumed that the President acted properly and carefully after an objective
consideration of all aspects of the matter.79
(b) No court can ask for the reasons why a mercy petition has been rejected.80
3. But the court has submitted the judicial review on some specified grounds e.g.-
(a) To determine the scope of President’s power under Article 7281
(b) The Court can interfere where the President’s exercise of power is vitiated by self-
denial on erroneous appreciation of full amplitude of the power conferred by the
Article 72, e.g., where the President rejected a mercy petition on the erroneous
ground that he could go behind the final decision of highest Court of the land, or
where the President’s decision is irrelevant to Article 72, or arbitrary, discriminatory
or mala fide.82
4. While an earlier mercy petition has been dismissed by the President, the convict cannot
obtain an order of staying execution of the death sentence by submitting repeated mercy
petition.83
5. The absence of any obligation to convey the reasons does not mean that there should not
be legitimate or relevant reasons for passing the order. Since there is a power of judicial
75
Devneder P.S. Bhullar v. State AIR 2013 SC 1975
76
Maru Ram v. Union of India AIR 1980 SC 2147 1 SCC 107
77
78
Ibid
79
Maru Ram v. Union of India AIR 1980 SC 2147 1 SCC 107
80
State of Punjab v. Joginder Singh AIR 1990 SC 396 2 SCC 661
81
82
Supra Note 73
83
Triveniben v. State o Gujarat (1989) 30 Guj LR 923
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review, however, limited, it may be the same can be rendered to be exercise in futility in
absence of reasons...
6. A pardon obtained by fraud or granted by mistake or granted for improper reasons would
invite judicial review. The prerogative power is the flexible power and its exercise can
should be adapted to meet circumstances of particular case.84
Power to Promulgate Ordinances
Except when both Houses of Parliament are in session, the President may promulgate such
Ordinances as the circumstances appear to him to require (Article 123). Such an ordinance
can have the same force and effect of an Act of Parliament. Such an ordinance shall cease to
operate unless passed by both Houses of Parliament within the stipulated period. A.K. Roy
vs. Union of India (1982) illustrates the proposition that the satisfaction of the President must
be as to the existence of a situation which makes it necessary for the President to promulgate
such on Ordinance.85
In D.C. Wadhwa v. State of Bihar,86 it was observed by the Hon’ble Supreme Court of India
that the Executive could not usurp the functions assigned to the legislature under the
Constitution.
Emergency Powers of the President
The constitution of India empowers the President to proclaim three kinds of Emergencies:
1. National Emergency (Art. 352);

2. Emergency for failure of Constitutional Machinery in a State (Art. 356);
3. Financial Emergency (Art. 360)
When there is a failure of the constitutional machinery in a state, he can assume to

himself all, or any of the functions of the government of that state. The President can proclaim
emergency in the country if he is satisfied that a grave emergency exists, whereby security of
India or any part of its territory is threatened, whether by war or external aggression or armed
rebellion.
84
Supra Note 73
85
https://www.importantindia.com/11839/powers-and-functions-of-president-in-india/
86
AIR 1978 SC 579
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THE VICE-PRESIDENT OF INDIA (Article 63)

Article 63 provides that there shall be a Vice-President of India. The Vice-President is declared
to be the ex officio Chairman of the Rajya Sabha87 In the event of the occurrence of any
vacancy in the office of the President, by reason of his death, resignation or removal, or
otherwise, the Vice-President shall act as the President until the date on which the new
President, elected in accordance with the provisions of the Constitution to fill such vacancy,
enters upon his office.88 Again, when the President is unable to discharge his functions owing
to absence, illness or any other cause, the Vice-President shall discharge his functions until the
date on which the President resumes his duties.
QUALIFICATIONS FOR THE OFFICE OF VICE-PRESIDENT

[ARTICLE 66(3) & (40)]
Clause (3) of Article 66 lays down that a person to be eligible for the office of the
Vice-President, must possess the following qualifications-
(a) He must be a citizen of India.
(b) He must have completed the age of thirty-five years.
(c) He must be qualified for election as a member of the Rajya Sabha. It requires that he
must be registered as a voter in any Parliamentary Constituency.69
(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.
87
Article 64
88
Article 65 (1)
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ELECTION OF THE VICE-PRESIDENT [ARTICLE 66 (1)]

The Vice-President is elected by the members of an Electoral College consisting of the
members of both Houses of Parliament in accordance with the system of proportional
representation by means of single transferable vote and the voting at such election is done by
secret ballot.89 The Presidential and Vice-Presidential Elections Act, 1997, provides that there
should be 20 proposers and 20 seconders to support the candidature of a person in the election
of the Vice-President.
TIME FOR HOLDING ELECTION (ARTICLE 68)

Clause (1) Article 68 provides that an election to fill a vacancy caused by the expiration
of the term of Vice-President shall be completed before the expiration of the term of the earlier
Vice-President. While an election to fill a vacancy occurring by reason of his death, resignation
or removal or otherwise, shall be held as soon as possible after the occurrence of the vacancy.90
TERM OF OFFICE OF THE VICE-PRESIDENT,

RESIGNATION (ARTICLE 67)
Article 67 lays down that the Vice-President holds office for a term of five years from the
date on which he enters upon his office. He shall continue in his office even after the expiration
of his term of five years until his successor enters upon his office. 91 The Vice-President may, by
writing under his hand, addressed to the President, resign his office.92
REMOVAL OF THE VICE-PRESIDENT [ARTICLE 67 (b)]

The Vice-President may be removed from his office by a resolution of the Rajya Sabha
passed by a majority of all the members of the Rajya Sabha and agreed to by the Lok Sabha.
89
Article 66 (1)
90
Article 68 (2)
91
Article 67 (c)
92
Article 67 (a)
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However, no resolution for the removal of the Vice-President shall be moved in the Rajya
Sabha unless at least fourteen days' notice has been given of the intention to move the
resolution.93
It may be noticed that the Constitution does not prescribe any ground on which a
resolution for the removal of Vice-President can be moved.
OATH OF OFFICE (ARTICLE 69)

Article 69 says that the Vice-President, before entering upon his office, shall make and subscribe
before the President or some person appointed in that behalf by him, an oath or affirmation in the
following form, that is to say—
"I, A.B., do swear in the name of God/solemnly affirm that I will bear true faith and
allegiance to the Constitution of India as by law established and that I will faithfully
discharge the duty upon which I am about to enter."
CONDITIONS OF OFFICE [ARTICLES 66(2), 64 & 65 (3)]

(1) The Vice-President shall not be a member of either House of Parliament or of a
House of the Legislature of any State, and if a member of either of such House is elected as the
Vice-President then, he shall be deemed to have vacated his seat in that House on the date on
which he enters upon his office as Vice-President.
(2) The Vice-President shall be ex officio Chairman of the Rajya Sabha and shall not
hold any other office of profit. During any period when the Vice-President acts as President or
discharges the functions of the President under Article 65, he shall not perform the duties of the
office of Chairman of the Rajya Sabha. During such period, he shall have all the powers and
immunities of the President and be entitled to such emoluments, allowances and privileges as
may be determined by Parliament by law and, until provision in that behalf is so made, such
emoluments, allowances and privileges as are specified in the Second Schedule to the
Constitution.
93
Article 67 (b)
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It may be noticed that the Constitution does not provide the salary, allowances or the
privileges to which the Vice-President' is entitled to as Vice-President. He, therefore, does not
receive any salary or allowance as Vice-President. When he is acting as President or discharging
his functions, the Vice-President is entitled to such salary and allowances as are payable to the
President. And, when he is not so acting, he shall be ex-offcio Chairman of the Rajya Sabha and
shall be entitled to such salary and allowances as are determined under Article 97 for the
Chairman of the Rajya Sabha. As present, the Vice-President receives Rs. 1,25,000/- per month
as salary and allowances.
After scanning the provisions relating to the office of the Vice-President, it may be
noticed that not much importance is given to this office. The office is created for the purpose of
providing for an event, when there is a vacancy, in the office of the President or when the
President is unable to discharge his functions owing to absence, illness or any other cause. The
normal function of the Vice-President on the other hand, is to preside over the Rajya Sabha.
COUNCIL OF MINISTERS
THE PRIME MINISTER OF INDIA

(Articles 74 & 75)
Article 74(1) provides: "There shall be a Council of Ministers with the prime Minister at the head
to aid and advise the President who shall, in the exercise of his functions, act in accordance with
such advice".
Appointment of the Prime Minister [Article 75 (1)]
The Prime Minister is the head of the Union Council of Ministers. He is appointed by the
President.94 This power of the President must be read in the light of the requirement contained in
Clause (3) of Article 75 which/ provides: "The Council of Ministers shall be collectively
94
Article 75 (1)
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responsible to the House of the People". The Constitution, thus, incorporates the principle of
“Responsible Government” according to which, the executive is, made answerable, for every
act it does in relation to the administration of the affairs of the country, to the popular House of
the Legislature. In this regard, the framers of the Constitution of India have adopted the British
Cabinet System. Therefore, the conventions operating under the English Constitution, in regard to
the relationship between the Crown and the Ministers, are relevant in the interpretation of the
Indian Constitution as well.
One of the well-established conventions operating in England is that the Crown shall
invite the leader of the majority party in the popular House to be the Prime Minister and to form
the Government. So, interpreted, the President of India must invite the leader of the majority
party in the Lok Sabha to form the Government. However, if a person is not a member of the
House, if he has the support and confidence of the House, he can be chosen to head the Council
of Ministers without violating the norms of democracy and the requirement of Article 75.
Likewise, a person, who a member ok a House of State Legislature, can be appointed Prime
Minister, for the said Period of six months. But, such a person must possess the necessary
qualifications and not be disqualified for being a member of the Legislature.
The Prime Minister has been described as "the keystone of the Cabinet arch, who is
central to its formation, central to its life, and central to its death." Therefore, he must be a
person who can secure colleagues, and with his colleagues he must be sure of the support of the
popular House of Parliament. The system of Parliamentary Government requires that the Prime
Minister, along with his colleagues, not only be responsible to the lower House, but that he shall
be able to justify his policy in Parliament.
Under normal circumstances, when a political party has attained absolute majority in the
Lok Sabha, the President has no choice or discretion but to invite the recognised leader of the
party and appoint him the Prime Minister. In case of death or resignation of the Prime Minister,
the ruling party elects a new leader. In such a case also the President shall appoint the new
leader as the Prime Minister.
But, in the case of multi-party system as is prevailing in India, and when none of these
parties has secured absolute or workable majority in the lower House, the President can
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exercise his personal discretion in selecting the Prime Minister. However, his discretion is
conditioned by the requirement that he must choose the person who can command the support
of the majority in the Lok Sabha. The President must explore the possibility of finding a person
who can form a stable government.
In such situations also the President's discretion is guided by certain Conventions. A

Convention operating in England is followed when the ruling party is defeated in the lower
House or when the Prime Minister has submitted resignation of his Government. According
to this Convention, the President should invite the leader of the opposition to explore the
possibility of forming a stable ministry. It was done by the President, Shri N. Sanjeeva
Reddy, by inviting Shri Y.B. Chavan, the leader of the opposition, to form the Government
after Shri Morarji Desai tendered his resignation in 1979. However, after four days of hectic
activities, Shri Chavan informed the President of his inability to form the Government.
Where none of the parties has attained absolute majority in the Lok Sabha, the
President may invite the leader of the single largest party to form the Government. Sarkaria
Commission also recommended the same. This was the case, when, after the Lok Sabha
elections in May, 1991, the President invited Shri Narasimha Rao, the leader of the Congress
Party, which was the single largest party, to form the Government. Again, the President
appointed Shri A.B. Vajpayee the leader of the B.J.P., the single largest party in the twelfth
Lok Sabha, after the 1996 general elections. This Convention has been followed by the
Governors of the States in constituting State Ministries.
If two or more parties form a coalition before the election and secure absolute majority in
the election, the acknowledged leader of such a coalition should be invited to form the
Government. This practice was followed in India in 1977 and again in 1989. In 1977, Shri
Morarji Desai, the leader of the Janta Party, a coalition of several parties, who fought
election on the common platform, formed the Government. In 1989, Shri V.P. Singh, the
leader of the Janata Dal (a National Front, consisting of several local and national parties),
was invited to form the Government.
Instances are there when the leader of the coalition or alliance formed after the
election, was invited to form the Government. For instance, Shri H.D. Deve Gowda, who
was elected the leader of the United Front, constituting 13 parties, formed after the 1996
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general elections to Lok Sabha, was invited and appointed the Prime Minister by the
President.
It may be stated that the appointment of the Prime Minister by the President is not
amenable to scrutiny in a Court of Law. The Madras High Court rejecting a writ petition by
Mr. M.R. Parthasarthy, held that the President had to use his own criteria when appointing the
Prime Minister.
DEPUTY PRIME MINISTER

The Constitution does not provide for the office of Deputy Prime Minister. Describing
a person as Deputy Prime Minister, therefore, is descriptive only and such description does not
confer on him any powers of Prime Minister. He is for all purposes only a Minister. His taking
the oath as Deputy Prime Minister, however, does not invalidate his appointment, nor the oath
taken as such, is invalid.
COUNCIL OF MINISTERS
(Article 75)
Article 75(1) provides that the other Ministers of the Union Council of Ministers are to be
appointed by the President on the advice of the Prime Minister. It is because of the reason that it
is the Prime Minister, who must have a government, which can work together like a team, and
which can secure the support of the House of the People.
Ordinarily, the Members of the Houses of Parliament are appointed as the Ministers. A
Member, who is appointed a Minister or the Prime Minister, need not vacate his seat in the
House. It is because of the fact that our Constitution has followed the Parliamentary system of
democracy as in England. But, even a non-Member can be included in the Council of Ministers.
The only constitutional requirement is that such a non-Member must get elected to either House
of Parliament within six months of entering upon his once as a Minister. For instance, Shri
Manmohan Singh, when appointed as the Finance Minister in Shri Narasimha Rao's Government,
was not a Member of either House and got elected to Rajya Sabha afterwards. The appointment
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of a non-Member as a Minister is the recognition by the Constitution-makers of the possibility of

paucity of requisite talent among its Members. It does not militate against the Constitutional
mechanism and does neither militate against the democratic principles embodied in the
Constitution. “A Minister who is not a member of either House of Parliament.”
However it has been ruled that a non-member can be inducted to the Council of
ministers provided he possesses the necessary qualifications and not disqualified for being a
member of the Legislature under the Constitution. Such non-member if fails to re-elect himself
elected in six consecutive months cannot be reappointed as a minister.
DUTIES OF PRIME MINISTER TOWARDS THE PRESIDENT

(Article 78)
Article 78 lays down the following duties of the Prime minister towards the president. It
shall be the duty of the Prime Minister—
(a) to communicate to the President all decisions of the Council of Ministers relating to the
administration of the affairs of the Union and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the consideration of the Council of Ministers any
matter on which a decision has been taken by a Minister but which has not been considered by
the Council.
Thus, Article 78 explains that the President, though a nominal head of the State, has at
least the right to be informed of the affairs relating to the administration of the country. He must
also be kept informed of the proposals for legislation.
The expression "affairs of the Union" in Article 78, means those matters with respect to
which the executive power of the Union extends. These may be found under Article 73 read with
Article 246.
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THE ATTORNEY-GENERAL FOR INDIA (Article 76)
APPOINTMENT OF THE ATTORNEY-GENERAL

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

Article 76(2) lays down the following duties of the Attorney-General for India—
a) to give advice to the Government of India upon such legal matters referred to him by
the President;
b) to perform such other duties of a legal character as the President, from time to time,
may assign to him;
c) to discharge the functions conferred on him by the Constitution or any other law for the
time being in force.
The following Rules are framed for the Attorney-General for India—
1. He shall appear in all cases in the Supreme Court in which the Government of India
is a party. The Government of India may require the Attorney-General to appear in
any High Court in any case in which the Government of India is a party.
2. He shall not advise or hold a brief against the Government of India. (3) He shall not
defend the accused persons in criminal proceedings.
3. He shall not accept appointment as Director in any Company without the previous
permission of the Government of India.
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THE UNION EXECUTIVE
4. He has the right to speak in either House of Parliament. In that case, he is entitled to
the privileges and immunities of a member of the Parliament, but he has no right to
vote in Parliament.
There was a move to combine the office of Law Minister and that of the Attorney-
General, however, the move was abandoned.
The office of the Attorney-General originated in England. The reason was that the
Crown could not appear in his own Courts to support his interests in person, but was
represented by his Attorney, who bore the title of His Majesty's Attorney-General. The original
function of the Attorney-General was to represent the Crown. It was inevitably extended to It
may be noticed that the advice tendered by the Attorney General, in discharge of his duties and
constitutional obligations, itself, cannot be judicially reviewed by the Court, for, it would not be
in public interest, to raise and create controversies regarding the protected communications
between the State and its counsel.95
In England, the office of the Attorney-General is regarded as a political office. He is a

member of the popular Ministry and comes in and goes out with it. He is a member of the
House of Commons, but he is not included in the Cabinet.
In America, Australia and New Zealand, the Attorney-General is a Member of the

Council of Ministers.
95
Govt. of A.P. v. Pushpendra Kaur, AIR 2004 AP 41
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THE UNION EXECUTIVE
CONCLUSION
The Union executive consists of the President, the Vice-President, and the Council of Ministers
with the Prime Minister as the head to aid and advise the President.
Executive power of the Union is vested in The President, and is exercised by him either directly
or through officers subordinate to him.
Supreme command of defence forces of the Union also vests in him.
The President summons, prorogues, addresses, sends messages to Parliament and dissolves the
Lok Sabha, promulgates Ordinances, makes recommendations for introducing financial and
money bills and gives assent to bills, grants pardons, reprieves, respites or remission of
punishment or suspends, and remits or commutes sentences in certain cases.
The Vice-President is ex-officio Chairman of the Rajya Sabha and acts as President when the
latter is unable to discharge his functions due to absence, illness or any other cause, or till the
election of a new President (to be held within six months when a vacancy is caused by death,
resignation or removal or otherwise of President). While so acting, he ceases to perform the
function of the Chairman of the Rajya Sabha.
There is a Council of Ministers headed by the Prime Minister to aid and advise the President
in exercise of his functions. The Prime Minister is appointed by the President, who also appoints
other ministers on the advice of Prime Minister. The Council is collectively responsible to the
Lok Sabha. It is the duty of the Prime Minister to communicate to the President all decisions of
Council of Ministers relating to administration of affairs of the Union and proposals for
legislation and information relating to them.
The Council of Ministers comprises Ministers who are members of Cabinet, Ministers of State
(independent charge), Ministers of State and Deputy Ministers.
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THE UNION EXECUTIVE
Bibliography & Webliography

1. Jain, M.P. (2005) Indian Constitutional Law, Lexis Nexis, Noida
2. Pandey, J.N. (2007) Constitutional Law of India, Faridabad, Allahabad Law Agency.
3. Kumar, Narender. Constitutional Law of India, Ninth Edition, 2015 , Allahabad Law
Agency.
4. Shukla, V. N., & Singh, M. P. (1990). V.N. Shukla's Constitution of India. Lucknow:
Eastern Book Co.
5. Basu, Durga Das, Introduction To The Constitution Of India, 2016, Lexis Nexis, Noida,
22nd Ed
6. http://download.nos.org/srsec317newE/317EL10.pdf
7. http://www.ncert.nic.in/ncerts/l/keps204.pdf
8. https://www.importantindia.com/11839/powers-and-functions-of-president-in-india/
41 | P a g e

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THE UNION EXECUTIVE

University Institute of Legal Studies

“The Union Executive”

Submitted By- Mudit Gupta Submitted To- Dr. Shruti Bedi

Roll No. – 168/17

PART V, THE UNION…………………………………………………………….…….8-9

THE PRESIDENT AND VICE PRESIDENT…………………………………….……10-33

THE PRESIDENT OF INDIA……………………………………………..……10-29

Election Of The President

Term Of Office Of President

Eligibility For Re-Election

Conditions Of President’s Office

Oath Or Affirmation By The President

Procedure For Impeachment Of The President

Powers Of The President

THE VICE-PRESIDENT OF INDIA………………………………………………29-33

Qualifications For The Office Of Vice-President

Election Of The Vice-President

Time For Holding Election

Term Of Office Of The Vice-President, Resignation

Removal Of The Vice-President

The Prime Minister Of India

Deputy Prime Minister

Duties Of Prime Minister Towards The President

THE ATTORNEY-GENERAL FOR INDIA……………………………………………..38-39

Appointment Of The Attorney-General

Duties Of The Attorney-General

BIBLIOGRAPHY & WEBLIOGRAPHY………………………………………………….41

1. Ram Javaya Kapur v. State of Punjab, AIR 1995 SC 549.

4. Lalit Mohan Pandey v. Pooran Singh, 2004 (5) SCALE 267

11. Mohinder Singh v. State of Punjab, AIR 2013 SC 3622

PART V, THE UNION

Chapter The Union Executive

sentences in certain cases

THE PRESIDENT AND VICE PRESIDENT

THE PRESIDENT OF INDIA (ARTICLE 52)

Article 53 talks about the executive powers of the Union

ELECTION OF THE PRESIDENT

1. he must be citizen of India.

 whether the government makes and the appointment;

Who Elects the President – Electoral College (Article 54)

(a) The elected members of both houses of Parliament and

Manner of Election [Article 55 (1) & (2)]

The Drafting Committee of the Constituent Assembly explained the formula by

Population of the state ÷ 1000

System of Election [Article-55(3)]

TERM OF OFFICE OF PRESIDENT (Article 56)

ELIGIBILITY FOR RE-ELECTION (Article 57)

CONDITIONS OF PRESIDENT’S OFFICE (Article 59)

OATH OR AFFIRMATION BY THE PRESIDENT (Article 60)

PROCEDURE FOR IMPEACHMENT OF THE PRESIDENT

DOUBTS AND DISPUTES IN RESPECT OF THE ELECTION OF

POWERS OF THE PRESIDENT

Powers in Relation to the Executive-

The President of a component part of the Union Parliament47.He nominates 12 persons,

Power to Grant Pardons (Article 72) –

(a) In all cases where punishment or sentence is by a Court Martial;

Reprieve means temporary suspension of death sentence, for example, pending a

“Commutation” is the essence of alteration of a sentence of one kind into a sentence of

For example, Rigorous imprisonment is commuted to Simple imprisonment.69

Judicial Review of Mercy Petition

1. Since the President’s power under Article 72 is a constitutional and is an executive

Power to Promulgate Ordinances