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03-Page-169-262 MP JAIN
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CENTRAL EXECUTIVE
IndianIII
Central
Chap Constitutional
Executive Law
SYNOPSIS
169
170 Central Executive [Chap III
the method of direct election would have been very costly and energy consum-
ing. There was also the fear that a directly elected President may emerge, in
course of time, as a centre of power in his own right. Therefore, the framers of
the Constitution thought that it would be adequate to have the President elected
indirectly. On the other hand, the framers of the Constitution did not want the
President to be elected merely by Parliament alone as that would have been a
very narrow basis, and Parliament being dominated by one political party would
have invariably chosen a candidate from that party.4 In that case, the President
would not have commanded national consensus by an electoral college, consist-
ing of the elected members of both Houses of Parliament and of the State Legis-
lative Assemblies [Art. 54],5 in accordance with the system of proportional repre-
sentation by means of single transferable vote by secret ballot [Art. 55(3)].6 The
votes cast by all members of the electoral college are not of uniform value. Votes
are apportioned amongst them according to the following two principles:
(1) As far as practicable, there is uniformity in the scale of representation of
the different States at the presidential election [Art. 55(1)]. To achieve this result,
a member of the electoral college from a State Legislative Assembly has as many
votes as are obtained by the following formula [Art. 55(2)(a)]:
State Population 1
—————————————————— × ———
Total Number of elected members in the State 1,000
Legislative Assembly
This formula secures to a member of a State Legislative Assembly votes in the
ratio of the population of the State and, thus, a smaller State having a relatively
larger Legislature cannot swamp the votes of a larger State,7 having compara-
tively a smaller legislature.
(2) There is a parity of votes between the elected members of the Houses of
Parliament, and of the State Legislative Assemblies, so that the former command
the same number of votes in the electoral college as the latter. This result is
achieved by the following formula which gives the number of votes available to a
member of Parliament in the electoral college [Art. 552)(c)]:8
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
In its advisory opinion in In re, Presidential Poll,9 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.10
Article 71(4) protects President’s election from being challenged on the
ground of the existence of any vacancy for whatever reason among the members
of the electoral college electing him. The language of this provision is wide
enough to cover vacancies arising in the electoral college because a State As-
sembly is dissolved.
(b) DISPUTES CONCERNING PRESIDENTIAL ELECTION
All doubts and disputes arising in connection with the election of the President
are to be decided by the Supreme Court whose decision is final [Art. 71(1)].
The Supreme Court has held that it would not entertain any petition challeng-
ing the Presidential election before the completion of the election process and
declaration of the result.11 The reason for this stand is that if a doubt or dispute
arising in connection with the election of a President is brought before the Court
before the whole election process is concluded, then conceivably, “the entire
election may be held up till after the expiry of five years’ term which will involve
a non-compliance with the mandatory provisions of Art. 62.”12
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. The Supreme Court has therefore held that a person who is
neither a candidate nor an elector could not file a petition to challenge the Presi-
dential election.13
If the election of a person as President is declared void by the Supreme Court,
acts done by him in exercise and performance of the powers and duties of that
office before the Court’s decision are not invalidated [Art. 71(2)].
8. A fraction exceeding one-half is counted as one and a fraction less than one-half is to be
disregarded [Art. 55(2)(c)].
9. AIR 1974 SC 1682 : (1974) 2 SCC 33. For advisory opinion of the Supreme Court, see, in-
fra, Ch. IV, Sec. F.
10. For Art. 356, see, infra, Ch. XIII.
11. N.B. Khare v. Election Commission, AIR 1957 SC 694 : 1957 SCR 1081.
12. For Art. 62, see, infra, pp. 173, 174.
13. N.B. Khare v. Election Commission, AIR 1958 SC 139 : 1958 SCR 648.
For other challenges to the election of the President see, Babu Rao Patel v. Zakir Hus-
sain, AIR 1968 SC 904 : (1968) 2 SCR 133; S.K. Singh v. V.V. Giri, AIR 1970 SC 2097 :
(1970) 2 SCC 567.
Syn A] Admission to the Executive Organs 173
19. Until so prescribed, he will get the emoluments etc. as laid down in the Second Schedule to
the Constitution. Parliament has enacted the President’s Emoluments and Pension Act, 1951.
Syn A] Admission to the Executive Organs 175
itself or by some other agency as the House may direct. The President has the
right to appear and be represented at such investigation [Art. 61(3)].
If after investigation, the House passes a resolution by a majority of not less
than 2/3 of its total membership declaring that the charge preferred against the
President has been sustained, it would have the effect of removing the President
from his office from the date on which the resolution is so passed [Art. 61(4)].
There is however only a remote possibility of this provision being invoked be-
cause the President acts on the advice of his Ministers who are responsible to
Parliament.20 So long as he acts in this manner, the majority in Parliament need
not invoke the provision regarding impeachment as it can easily remove the
Council of Ministers. Nevertheless, the provision is salutary. Being otherwise
immune from parliamentary and judicial control—he has a fixed term of office;
his emoluments cannot be curtailed or diminished by Parliament during his term;
he has immunity from judicial process21 and the courts are barred from probing
into the relationship between the President and the Council of Ministers [Art.
74(2)],22 the fear that he may be impeached will keep the President within the
framework of the Constitution and he will not dare to violate it.
The power to impeach might possibly be invoked in the event of the President
acting independently of, or contrary to, ministerial advice, or for “treason, brib-
ery or other high crimes or misdemeanours.”23 Impeachment is a political instru-
ment; what constitutes ‘violation of the Constitution’ is a matter to be decided by
the House which tries the charge and the House is essentially a political organ.
There is no difficulty in the House interpreting the phrase ‘violation of the Con-
stitution’ in a wider sense and regard a violation of the conventions, usages and
spirit of the Constitution as violation of the Constitution. When forms are main-
tained and the spirit is sapped away the Constitution is violated.24
The idea of impeachment seems to have been borrowed from the U.S. Consti-
tution.25 According to 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 im-
peachments are tried solely by the Senate and when the President is being im-
peached, the Chief Justice of the Supreme Court is to preside. To convict the
President, concurrence of two-thirds of the members present is needed.26
Though the idea of impeachment has been borrowed from the U.S.A., it has
been given an entirely new orientation in India, as will be clear from the follow-
ing features:
(1) The President in India can be impeached only for violation of the
Constitution and not for any criminal offence.
20. See, infra, Sec. B(a), on this point.
21. See below under Presidential Privileges : Art. 361.
22. See, infra, Sec. B(a).
23. See, infra, under “President—A Titular Head”, Sec. B(a).
24. Also see infra, Ch. XIII; B.C. DAS, Impeachment of India's President: A Study of the Proce-
dure, V JCPS 245 (1971).
25. See, infra, Sec. F.
26. In the U.S.A., the process of impeachment of the President (Andrew Johnson) was invoked
in 1868 but it failed by one vote in the Senate. The procedure has been put into motion again
recently to impeach President Clinton, but, ultimately, it failed because of lack of 2/3 votes
in the Senate to convict the President.
176 Central Executive [Chap III
Government orders are issued in the name of the President as Art. 77(1) re-
quires29 all executive actions of the Central Government to be expressed in the
name of the President. But such an order does not become an order passed by the
President personally. It remains basically and essentially an order of the Minister
on whose advice the “President” acted and passed the order. That being so, the
order carries with it no immunity granted to the President under Art. 361. The
Supreme Court has observed on this point.30
“Being essentially an order of the Government of India, passed in exercise of
its executive functions, it would be amenable to judicial scrutiny and, therefore,
can constitute a valid basis for exercise of power of judicial review by this
court. The authenticity, validity and correctness of such an order can be exam-
ined by this court in spite of the order having been expressed in the name of the
President. The immunity available to the President under Art. 361 of the Con-
stitution cannot be extended to the orders passed in the name of the President
under Art. 77(1) or 77(2) of the Constitution.”
Further, it is now a very well settled proposition that 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. But that would confer no immunity
on the appointee himself. His qualification to hold the office can be challenged in
quo warranto proceedings.31 If the appointment is contrary to constitutional pro-
visions, it can be quashed.32
A House of Parliament is not debarred from calling into question any act of
the President in impeachment proceedings and for this purpose the House may
appoint any court, tribunal or other body to investigate into a charge against the
President [Proviso to Art. 361(1)].
No criminal proceeding whatsoever can be instituted against the President in
[Art. 361(2))], and no process for the arrest or imprisonment of the President can
issue from, any court during his term of office [Art. 361(3)]. Thus, no criminal
proceedings can be taken against the President even for acts done in his personal
capacity.
No civil proceedings claiming relief against the President in respect of any act
done or purporting to be done by him in his personal capacity can be instituted
during his term of office until a two months’ notice in writing has been served on
him stating the nature of the proceedings, the cause of action, the name, descrip-
tion and residence of the party taking legal proceedings and the relief claimed
[Art. 361(4)].
In civil cases, a distinction is drawn between the President’s official or per-
sonal acts. In respect of his official acts, an absolute bar has been created against
a court action; 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.
(ii) VICE-PRESIDENT
There is a Vice-President of India [Art. 63]. He is the ex-officio chairman of
the Rajya Sabha [Art. 64]. In case the office of the President falls vacant due to
death, resignation, removal or otherwise, the Vice-President acts as the President
till the new President-elect enters upon his office [Art. 65(1)]. The Vice-
President also discharges the functions of the President when he is unable to act
owing to illness, absence or any other cause until the President is able to resume
his duties [Art. 65(2)].
When the Vice-President acts as, or discharges the functions of, the President,
he enjoys all powers and immunities enjoyed by the President. He is entitled to
such emoluments, allowances and privileges as may be determined by Parliament
by law. Until such a law is made, he receives such emoluments, allowances and
privileges as are specified in the Second Schedule to the Constitution. [Art.
65(3)].
While acting as the President, the Vie-President ceases to act as the Chairman
of the Rajya Sabha and he is not entitled to any salary or allowance payable to
him in that capacity [Proviso to Art. 64].
Parliament is empowered to make such provisions as it thinks fit for the dis-
charge of the President’s functions in any other contingency not mentioned above
[Art. 70]. In pursuance of this provision, Parliament has enacted the President
(Discharge of Functions) Act, 1969. It provides that when vacancies occur in the
offices of both the President and the Vice-President, the Chief Justice of India or,
in his absence, the senior-most Judge of the Supreme Court available, is to dis-
charge the President’s functions until a new President or Vice-President enters
upon his office.
(a) HOW ELECTED?
The Vice-President of India is elected by the members of an electoral college
consisting of the members of both Houses of Parliament assembled in a joint
meeting in accordance with the system of proportional representation by means
of single transferable vote by secret ballot [Art. 66(1)].
The functions of the President extend both to the Central and the State spheres
and, therefore, State representatives participate in his election along with the
members of Parliament. The normal function of the Vice-President, on the other
hand, is to preside over the Rajya Sabha. Only rarely, and that, too, only tempo-
rarily he may officiate as the President. That being so, it was not thought neces-
sary by the framers of the Constitution to invite members of the State Legislative
Assemblies to participate in the Vice-Presidential election.33
Subject to the provisions of the Constitution, Parliament is empowered to en-
act legislation to regulate any matter relating to the election of the Vice-President
[Art. 71(3)].
All doubts and disputes arising out of, or in connection with, the election of
the Vice-President are to be decided by the Supreme Court whose decision is fi-
nal [Art. 71(1)]. The position in this connection is the same as discussed earlier in
relation to the election of the President [Art. 71(1)].34
The election of the Vice-President also cannot be called in question on the
ground that any vacancy exists in the electoral college electing him [Art. 71(4)].
If the Court declares the election of a person as Vice-President void, the acts
done by him while in office before the Court’s declaration are not invalidated
[Art. 71(2)].
A candidate for the Vice-President’s office should be a citizen of India, of at
least thirty-five years of age, and qualified to be elected as a member of the Rajya
Sabha [Art. 66(3)]. He should not be holding any office of profit under the Cen-
tral or State Government or under any local or other authority subject to the con-
trol of any such government [Art. 66(4)]. However, the President or the Vice-
President or a State Governor, or a Minister in the Central or a State Government,
is not disqualified to contest election to this office [Expl. to Art. 66(4)].
Election to fill the Vice-President’s office is to be completed before it falls va-
cant by efflux of the incumbent’s term [Art. 68(1)]. In case vacancy arises for any
other reason, election to fill the same is to be held as soon as possible after the va-
cancy occurs [Art. 68(2)]. The person thus elected is entitled to serve as Vice-
President for the full term of five years from the date on which he enters upon his
office [Art. 68(2)].
(b) OTHER CONDITIONS OF THE VICE-PRESIDENT’S OFFICE
Before entering upon his office, the Vice-President has to subscribe to, before
the President or someone appointed by him for this purpose, an oath or affirma-
tion in the prescribed form [Art. 69]. He cannot hold any other office of profit
[Art. 64]. He cannot be a member of any House of Parliament or of a State Leg-
islature and, if a member at the time of election, he automatically vacates his seat
on the date he enters upon his office [Art. 66(2)].
As Chairman of the Rajya Sabha, the Vice-President is entitled to get such sal-
ary and allowances as may be fixed by Parliament by law, and until so fixed, as
specified in the Second Schedule to the Constitution. [Art. 97]. He does not get
any salary as Vice-President.
(c) TENURE
The normal tenure of the Vice-President’s office is five years from the date on
which he enters upon his office [Art. 67]. He would however continue to hold
office even thereafter until his successor enters upon his office [Proviso (c) to
Art. 67].
He may resign his office by writing to the President [Proviso (a) to Art. 67].
He may also be removed from office by a resolution passed by a majority of all
the then members of the Rajya Sabha, and agreed to by the Lok Sabha. Such a
resolution can be moved only when at least fourteen days’ notice has been given
of the intention to move it [Proviso (b) to Art. 67].
The above provision means that while in the Rajya Sabha there should be an
absolute majority of the total membership (excluding those whose seats are va-
cant) of the House supporting the resolution to remove the Vice-President, a sim-
ple majority is sufficient in the Lok Sabha. Also, the resolution to remove the
Vice-President is to be passed in the Rajya Sabha first, and then it is to be agreed
to by the Lok Sabha. The preponderant voice in this matter has thus been given to
the Rajya Sabha, the reason obviously being that he is its Chairman and is thus
one of its officers.35
The procedure for removing the Vice-President is much simpler than that pre-
scribed for removing the President. The President is removable by impeachment,
but no such formal procedure is necessary to remove the Vice-President and only
a resolution of both Houses is sufficient. The President can be removed only for
violation for the Constitution, by a 2/3 vote in both Houses and after an enquiry
into the charges against him. The Vice-President, on the other hand, can be re-
moved on any ground, without a 2/3 vote in the two Houses, and without enquiry
into the charges against him.
(iii) COUNCIL OF MINISTERS
Articles 74 and 75 which deal with the composition and status of the Council
of Ministers are sketchy and very generally worded. The framers of the Indian
Constitution left these matters undefined so that these may be regulated by practices
and conventions.
The conventions operating in Britain, where a similar pattern of government
prevails, are very relevant to India and can be adapted suitably to meet the con-
ditions prevailing here. The Supreme Court has emphasized upon the importance
of conventions to interpret these constitutional provisions in the following
words:36
“It was said that we must interpret Article 75(3) according to its own terms
regardless of conventions that prevail in the United Kingdom. If the words of
an article are clear, notwithstanding any relevant convention, effect will no
doubt be given to the words. But it must be remembered that we are interpret-
ing a Constitution and not an Act of Parliament, a constitution which estab-
lishes a Parliamentary system of Government with a cabinet. In trying to un-
derstand one may well keep in mind the conventions prevalent at the time the
constitution was framed.”
According to Art. 74(1), there shall be a Council of Ministers with the Prime
Minister at its head to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice.
The provision that “there shall be a Council of Ministers” is mandatory and at
no point of time can the President dispense with this body. The Council of Min-
isters remains in office even when the Lok Sabha is dissolved.37 The Supreme
Court has refused to accept the contention in U.N.R. Rao that during the dissolu-
tion of the Lok Sabha, there need be no Council of Ministers and that the Presi-
dent 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 House38. The Su-
preme Court rejected the argument that, in the context, the word “shall’ in Art.
74(1) should be read as “may”. Just as Art. 52 (“there shall be a President of In-
dia”) is mandatory so is Art. 74(1).
The Constitutent Assembly did not choose the Presidential System of Gov-
ernment.39 Accepting the argument that Art. 74(1) is not mandatory would
change the whole concept of the Executive. It would mean that the President
need not have a Prime Minister and Ministers to aid and advise him in the exer-
cise of his functions. In the absence of the Council of Ministers, nobody would
be responsible to the Lok Sabha. The President would be able to rule with the aid
of advisors till he is impeached. Therefore, the Court ruled that the word “shall”
in Art. 74(1) sought to be read as meaning “shall” and not “may”. Accordingly,
“the President cannot exercise the executive power without the aid and advice of
the Council of Ministers.” It is thus clear that the President cannot function without
a Council of Ministers at any time.
It may be noted that the Supreme Court has emphasized upon the theme of re-
sponsible government in India in a number of cases.40 Thus, the Supreme Court
has made a sterling contribution towards the promotion and strengthening of par-
liamentary system of government in the country.
Functions are conferred on the President by constitutional and statutory provi-
sions. According to Art. 74(1) all these functions are to be discharged by the
President on the advice of the Council of Ministers.
Under Art. 53(1), executive powers vested in the President are to be exercised
by him either directly or through officers subordinate to him.41 When the Presi-
dent acts directly, he acts on the advice of the Council of Ministers. Instead of the
whole Council of Ministers, advice may be tendered to the President by one
Minister. Advice tendered by one Minister is regarded as advice tendered by the
Council of Ministers in view of the principle of collective responsibility42 of the
Council of Ministers. When a decision is taken by an official himself, he acts
under the Rules of Business framed by the President under Art. 77(3).
What is the legal sanction behind the provision making ministerial advice
binding on the President? Prima facie, the provision is cast in mandatory terms as
the use of the word “shall” act in accordance with the advice of Council of Min-
isters would seem to indicate. But, legalistically speaking, the provision is at best
merely of a directory nature because it is not legally enforceable through a court
action.
No action can be brought against the President personally because of the ban
placed on such legal actions by Art. 361.43 Further, according to Art. 74(2), the
38. On dissolution of Lok Sabha see, supra, Ch. II, Sec. I(c).
On the question of accountability of the Council of Ministers to the Lok Sabha, see, infra,
under “Collective Responsibility,” Sec. B(d).
39. For discussion on the Presidential System, see, infra, Sec. F.
40. Reference may be made to the following cases in this connection : Ram Jawaya v. State of
Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225; A. Sanjeevi Naidu v. State of Madras, AIR
1970 SC 1102 : (1970) 1 SCC 443; Samsher v. State of Punjab, AIR 1974 SC 2192 : (1974)
2 SCC 831; S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918.
41. Infra, Sec. B.
42. The principle of collective responsibility is discussed later in this book. See, infra, Sec. B.
43. Supra, under “Presidential Privileges,” Sec. A(i)(i)
182 Central Executive [Chap III
courts are barred from enquiring into what advice, if any, has been given by the
Ministers to the President.44 Whatever advice the Cabinet or a Minister has given
to the President is confidential, and the courts can neither take any cognisance
thereof nor enquire as to what advice has been given by the Ministers to the
President. The courts are, therefore, helpless in the matter in view of this consti-
tutional provision. Thus, the matter lies outside the purview of the courts and any
relief through the courts in such a situation does not seem to be possible.
The only sanction behind the provision would thus seem to be political, and,
ultimately, there is the fear of impeachment of the President if he violates Art.
74(1) on a crucial matter by not acting on ministerial advice.45 This may be re-
garded as “violation of the Constitution” in terms of Art. 56(b). But, as has al-
ready been discussed above, impeachment is a very complicated and cumber-
some procedure, and it can be resorted to only by a very strong government hav-
ing majority in one House and support of 2/3rd of total membership in another
House. The Constitution stipulates that to remove the President from office it is
necessary to pass the motion by not less than 2/3rd of the total membership of the
House.
For all these reasons, the only conclusion is that that part of Art. 74(1) which
makes the ministerial advice binding on the President is merely directory in na-
ture. In Britain, it is a convention that the monarch acts on the advice of the
Ministers. In India, an attempt has been made to codify this convention, but, in
effect, it still remains a convention, and does not become a legally enforceable
injunction.
(a) NON-JUSTICIBAILITY OF CABINET ADVICE
The next question is : 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.
The reasons which may have weighed with the Council of Ministers in giving
the advice also form part of the advice and so are protected from judicial scru-
tiny. The notings of the officials which lead to the cabinet note leading to the
cabinet decision also form part of the advice tendered to the President.46 All this
material is protected from disclosure under Art. 74(2).47 Thus, the courts would
be barred, because of Art. 74(2), from inquiring, for example, into the grounds
which might have weighed with the Council of Ministers in advising the Presi-
dent to issue a proclamation under Art. 356.48 However this rule has been whit-
tled away in subsequent decisions.49
But the 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 ad-
vice.50 Therefore, the correspondence between the Chief Justice of India, the
Chief Justice of the concerned High Court and the Central Government—which
constitutes the material forming the basis of the Central Government’s decision
to continue or discontinue a High Court Judge—falls outside the exclusionary
rule contained in Art. 74(2).51
The Supreme Court has clarified the implications of Art. 74 (2) in S.R. Bom-
mai v. Union of India52. 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 of the President and the
Minister. An order cannot be challenged on the ground that it is not in accor-
dance with the advice tendered by the Minister or that it is based on no advice. If,
in a given case, the President acts without, or contrary to, the advice tendered to
him, it may be a case warranting his impeachment, but so far as the court is con-
cerned, it is the act of the President.
Article 74(2) protects and preserves the secrecy of the deliberations between
the President and his Council of Ministers. Its scope is limited. It does not immu-
nize orders and acts done by the President in exercise of his functions. Art. 74(2)
cannot override the basic provisions of the Constitution relating to judicial re-
view. When any action taken by the President in exercise of his functions is
challenged, it is for the Council of Ministers to justify the same, since the Presi-
dent acts under Art. 74(1).
Article 74(2) does not mean that the Government need not justify the act of the
President taken in exercise of his functions. When act or order of the President is
questioned in a court, it is for the Council of Ministers to justify the same by dis-
closing the material which formed the basis of the act/order.
The Court will not inquire whether such material formed part of the advice
tendered to the President, or whether the material was placed before him, or what
advice was tendered to the President, what discussions took place between the
President and the Ministers and how was the ultimate decision arrived at. “The
court will only see what was the material on the basis of which the requisite satis-
faction is formed and whether it is relevant to the action taken”.
The Court will not go into the correctness or adequacy of the material. The
material placed before the President by a Minister does not become part of the
advice. Advice is what is based upon the said material. Material is not advice.
The material only because it was placed before the President in support of the
advice does not become advice itself. It is difficult to appreciate how does the
supporting material become part of the advice.53 The Court disagreed in this re-
spect with the reasoning of its own earlier decision in State of Rajasthan v. Union
50. Kartar Singh v. State of Punjab, JT (1994) 2 SC 423 : (1994) 3 SCC 569; R.K. Jain v. Union
of India, (1993) 4 SCC 119 : AIR 1993 SC 1769.
51. S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87, per BHAGWATI, J., at
230. This view overrules the view of GAJENDRAGADKAR, C.J., in State of Punjab v. Sodhi
Sukhdev Singh, AIR 1961 SC 493, giving a broad meaning to the parallel provision in Art.
163(3), infra, Ch. VII.
Also see, R.K. Jain v. Union of India, (1993) 4 SCC 119 : AIR 1993 SC 1769.
For discussion on S.P. Gupta, see, infra, Ch. VIII.
52. AIR 1994 SC 1918 : (1994) 3 SCC 1. For further discussion on this case, see, Ch. XIII, infra.
53. Ibid., at 2073. All other Judges participating in this decision substantially agreed with this
view.
184 Central Executive [Chap III
of India.54 The view expressed in Bommai’s case was affirmed and extended in
Rameshwar Prasad(VI) v. Union of India55 and the views to the contrary in State
54
of Rajasthan v. Union of India, were held to be no longer the law. The majority
held that Article 74(2) does not bar scrutiny by courts of the factual existence and
relevance of the material on the basis of which advice is given by the Ministers to
the President. The onus of proving the preconditions for the exercise of the Presi-
dent’s power was on the Union of India. The mere ipse dixit of the Governor’s
report would not do. The courts can also scrutinise the reasons for such advice.56
The Court, in Bommai’s case, also mentioned that while privilege in respect of
presenting documents in the court may not be claimed under the constitutional
provision in Art. 74(2), it may, nevertheless, be possible to claim privilege under
S. 123, Evidence Act.57 The field and purpose of S. 123 is entirely different and
distinct from Art. 74(2). Art. 74(2) and S. 123 cover different and distinct areas.
While justifying the government action in court, the Minister or the concerned
official may claim a privilege under S. 123 and the court will decide the claim on
its merits.58
This clause is designed to safeguard the confidentiality and secrecy of cabinet
deliberations as well as of the advice tendered to the President by the Cabinet.
The Supreme Court has ruled in Doypack59 that “it is duty of this court to prevent
disclosure where Art. 74(2) is involved.” The Court has also ruled that “the not-
ings of the officials which lead to the Cabinet note leading to the Cabinet deci-
sion 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.
This clause excluding the courts from the area of the President-Cabinet rela-
tionship also means that if the President refuses to act on the advice of the Cabi-
net in any particular instance, the courts are barred from compelling the President
to act according to the cabinet advice, because the courts are barred from com-
pelling production of the advice tendered by the Council of Ministers.
(b) APPOINTMENT OF PRIME MINISTER
The Prime Minister is appointed by the President [Art. 75(1)]. This is one act
which the President performs in his discretion without the advice of the Council
of Ministers or the Prime Minister. The question of appointment of a new Prime
Minister usually arises either after holding a fresh election to Lok Sabha, or when
the incumbent Prime Minister dies or resigns. In such a contingency, the Presi-
dent cannot act on the advice of any Prime Minister in the matter of selection and
appointment of the Prime Minister.
While the Constitution prima facie appears to confer an unfettered discretion
on the President to appoint whomsoever he likes as the Prime Minister, in prac-
tice, it is not so. A few conventions, and a few constitutional provisions indi-
rectly, restrict his choice of a Prime Minister.
54. AIR 1977 SC 1361 : 1977 (2) SCC 592.
55. (2006) 2 SCC 1 : AIR 2006 SC 980.
56. Ibid at pp. 119 and 124.
57. For discussion on S. 123, Evidence Act, see Jain & Jain, Principles of Adm. Law, Ch. XIX.
Also see, R.K. Jain v. Union of India, AIR 1993 SC 1769 : (1993) 4 SCC 119.
58. Also see, A.K. Kaul v. Union of India, AIR 1995 SC 1403, 1414-1415 : (1995) 4 SCC 73.
59. Doypack Systems v. Union of India, AIR 1988 SC 782 : (1988) 2 SCC 299.
Syn A] Admission to the Executive Organs 185
be the Prime Minister. In any case, a member of the Rajya Sabha on becoming
the Prime Minister should seek election to the Lok Sabha at the earliest opportu-
nity.
In the matter of appointment of the Prime Minister, the President thus enjoys
some marginal discretion his discretion being limited to choosing a person who is
qualified to be a member of Parliament under Article 84 and not disqualified un-
der Article 102, who is either a member of Parliament or has the potentiality to
be so elected within six months of his appointment and who can command the
support of the majority of the members of the Lok Sabha.63 In a recent decision,
the Supreme Court held that there was no requirement under the Constitution
which required a person elected to the Rajya Sabha to either be a voter or a resi-
dent in the State which the person is chosen to represent.64 At critical moments,
the choice of the Prime Minister by the President may prove to be extremely cru-
cial. When a party has a clear majority in the Lok Sabha, the President has to in-
duct the acknowledged leader of the party into the Prime Minister’s office, and
the President’s power in such a case is merely formal. If, however, the political
situation is not clear and no party has a clear majority, then the President will
have some scope to exercise his own judgment as to who amongst the several
aspirants to the office has the best chance of forming a stable Ministry and secure
confidence of the Lok Sabha.
But even here it may be desirable to have some agreed conventions for the
guidance of the President, e.g., that he may invite the leader of the largest party
in the Lok Sabha to form the government. In the ultimate analysis, however, the
President’s choice of a Prime Minister is controlled, in practice, by the will of the
majority in the Lok Sabha.
Even a minority government may remain in office for sometime with the par-
liamentary support of some other parties for its policies. For example, towards
the end of 1969, Indira Gandhi’s Government, though numerically in a minority
in the Lok Sabha remained in power for quite some time. There were several oc-
casions when the Gandhi Government was challenged on the floor of the House,
but the opposition motions were defeated with wide margins.
If two or more parties enter into a coalition and thus secure a majority in the
Lok Sabha, then again the President would have no option but to induct the ac-
knowledged leader of the coalition into the Prime Minister’s office. In 1977, the
Janata Party, a combination of several parties, secured a majority. The leader of
the Janata Party was appointed as the Prime Minister. After the break of this
party, in 1979, Chaudhury Charan Singh, leader of a faction of the Janata Party,
was appointed as the Prime Minister as he was being supported by the Congress
Party from outside, i.e. without participating in the Council of Ministers.
Although he did not command an absolute majority in the Lok Sabha, he, nev-
ertheless, enjoyed support of more members than Morarji Desai who had just
resigned as the Prime Minister.65 The President at the time expressed the wish
that “in accordance with the highest democratic traditions and in the interest of
establishing healthy conventions”, the Prime Minister should seek a vote of con-
63. Ashoke Sen Gupta v. Union of India, 1996 (II) CHN 292, 297.
64. Kuldip Nayar v. Union of India, (2006) 7 SCC 1 : AIR 2006 SC 3127.
65. To assess the support enjoyed by each leader in the House, the President asked them both to
submit lists of their supporters.
Syn A] Admission to the Executive Organs 187
fidence in the Lok Sabha at the earliest. Within a few days, the Congress Party
withdrew its support and Charan Singh was reduced to a minority in the Lok
Sabha. The House was then prorogued by the President on the advice of the new
Prime Minister. Charan Singh could not seek a vote of confidence from the
House. Incidentally, he was the only Prime Minister who remained in office for a
while without obtaining a vote of confidence from, and without ever facing, the
Lok Sabha.
A petition was moved in the Delhi High Court for the issuance of a writ of
quo warranto challenging the appointment of Charan Singh as the Prime Minis-
ter. The Court however rejected the petition.66 The Court rejected the argument
that it is only after a member of the Lok Sabha secures the vote of confidence of
the Lok Sabha that he should be appointed as the Prime Minister. The Court ar-
gued that to accept this contention would virtually amount to saying that it is not
the President but the Lok Sabha who should select the Prime Minister. Under the
Constitution, such a function is to be performed by the President.67 He has, of
course, to respect the constitutional conventions in choosing the Prime Minister.
The Court argued further that the existence of the Council of Ministers pre-
cedes, in order of time, the vote of confidence or no confidence in the Council of
Ministers by the Lok Sahba. It is not possible to expect the Council of Ministers
to seek the approval of the House immediately on appointment.68 The Court also
held it proper and constitutional in the circumstances to prorogue the House.69
The President exercised his discretion after considering the advice of the Council
of Ministers and in a difficult and extraordinary situation. The legal status of the
new government under Charan Singh as the Prime Minister being according to
the conventions and the Constitution, the President could accept its advice to pro-
rogue the House.
After some time, Charan Singh Ministry resigned and advised the President to
dissolve the House and hold fresh election to the Lok Sabha.70 The President,
accordingly, dissolved the House and asked the Ministry to remain in office till
other arrangements could be made. At this stage, another petition for quo war-
ranto71 was moved in the Calcutta High Court to show cause under what author-
ity the Prime Minister and his colleagues resolved to advise the President to dis-
solve the Lok Sabha and also to show cause as to why Charan Singh should not
be removed from the office of the Prime Minister.
After a review of the relevant cases72 and the conventions prevailing in Brit-
ain,73 the Court in Madan Murari v. Chaudhury Charan Singh,74 rejected the pe-
tition. The Court observed that despite the 42nd Amendment,75 the President acts
in his own discretion in choosing the Prime Minister. In making his assessment
66. Dinesh Chandra v. Chaudhuri Charan Singh, AIR 1980 Del. 114.
67. Supra, under “Council of Ministers”, Sec. A(iii).
68. Infra.
69. Supra, Ch. II, Sec. I(a).
70. Supra, Ch. II, Sec. I(c).
71. Infra, Ch. VIII, Sec. E.
72. Samsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974) 2 SCC 831; infra, Sec. B;
U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002 : (1971) 2 SCC 63; supra.
73. Supra, under “Council of Ministers”; infra, under “Collective Responsibility.”
74. AIR 1980 Cal 95.
75. Infra, Ch. XLII.
188 Central Executive [Chap III
as to who as the Prime Minister will enjoy the confidence of the Lok Sabha he is
not fettered in his choice except by his own assessment, and the court could not
sit in judgment on the political assessment of the President. Whether he was po-
litically justified or not in appointing the Prime Minister is not a matter for the
court to determine.
Thus, in the facts and circumstances of the case, the President was legally and
constitutionally justified in calling upon Charan Singh to form the Ministry. Once
the Ministry was formed it was competent constitutionally and legally to function
and aid and advise the President in terms of Art. 74(1) until the Cabinet resigned
on the 20th August, 1979.
It was constitutionally within the discretion of the President to accept the
Cabinet’s advice to dissolve the Lok Sabha. The President was not bound to ac-
cept that advice; he was free to accept or not to accept that advice. The President
did not act unconstitutionally in accepting that advice. After the Prime Minister
and the Council of Ministers tendered their resignation, their continuance in of-
fice until alternative arrangements could be made as directed by the President
was mandatory and an imperative obligation for them as they held their office
during President’s pleasure.
The Court however expressed the view that the government should now func-
tion only as a caretaker government and carry out only day to day administration
and defer all policy questions which could await disposal by a Council of Minis-
ters responsible to the Lok Sabha. This was so because the government had never
proved its responsibility to Parliament; it resigned before facing a vote of confi-
dence and it was an unprecedented situation that such a government should give
advice to the President which would be binding on him.
Accordingly, the President could refuse to accept any advice which went be-
yond the day to day administration. This no doubt would give powers to the
President not expressly conferred on him by the Constitution, but having regard
to the basic principle behind the Constitution, in the peculiar facts and circum-
stances of the case, that “is the only legitimate, legal and workable conclusion
that can be made.”
Needless to say, Chaudhury Charan Singh episode constituted an unprece-
dented situation. Here was a Council of Ministers which never faced the Lok
Sabha for a single day, never proved its responsibility to the House, which re-
signed before facing a vote of confidence, and which was aiding and advising the
President in the discharge of his functions. The whole episode cannot be regarded
as being in the best traditions of constitutionalism and the Parliamentary system.
In 1985, when Prime Minister Indira Gandhi was assassinated, the Congress
Party, which had a majority in the Lok Sabha, had no acknowledged leader. The
calling of a meeting of the Congress Legislature Party would have taken a few
days, but it was necessary to appoint the Prime Minister immediately. At this
critical moment, President Zail Singh immediately appointed her son Rajiv Gan-
dhi as the Prime Minister without waiting for his being formally elected as the
leader of the Congress Party. It was only after his appointment as the Prime
Minister that he was elected as the leader of the majority party.
In 1989, V.P. Singh was appointed as the Prime Minister even though his
party had no clear majority as the party had only 176 members in a House of 520.
Syn A] Admission to the Executive Organs 189
The BJP promised to support V.P. Singh from outside without itself participating
in the government. V.P. Singh succeeded in getting a vote of confidence from the
House.76 After some time, BJP withdrew support. Though V.P. Singh was re-
duced to minority in the House, yet the President did not ask him to vacate his
office immediately but gave him time to prove his majority in the House. V.P.
Singh resigned when he failed to secure the vote of confidence from the House.
In November, 1990, Chandra Sekhar was appointed as the Prime Minister.
Though he led a minority group, he was promised support from outside by the
Congress Party and was thus able to muster a majority support in the Lok
Sabha.77 After some time, the Congress Party withdrew support, and, conse-
quently, Chandra Sekhar resigned and recommended dissolution of the House
and holding of fresh elections.
In 1991, fresh elections were held for the House. Again, no party emerged
with a clear-cut majority in Lok Sabha. Narasimha Rao, leader of the Congress
Party, was appointed as the Prime Minister. Though he had no majority support,
he was the leader of the largest party. The party position in Lok Sabha at the time
was that the Congress Party had 251 members in a House of 528 members and,
thus, it was short by 14 members for a simple majority. No other party at the time
staked its claim to form the government. The President asked Rao to establish his
majority in the Lok Sabha in four weeks.78 Not only was Rao able to do so but, in
course of time, he succeeded in mustering a majority in the House and was thus
able to stay as the Prime Minister for a full five year term.
In 1996, Lok Sabha was dissolved at the end of its term of five years and gen-
eral elections held which resulted in a Parliament with no party having a majority
in the Lok Sabha. The Congress Party which was the ruling party before the
elections (1991-1996) could secure only 135 seats in a House having 520 mem-
bers. The Bhartya Janata Party (BJP) secured 162 seats. The United Front (Leftist
Parties along with Janta Dal and a few other regional parties) secured 178 seats
and the rest of the seats went to Independents and small groups. The President
invited the leader of the BJP which was the single largest party to form the gov-
ernment with the stipulation that it should secure a vote of confidence in the Lok
Sabha within 15 days. Prime Minister Atal Beharee Vajpayee having failed to
secure such a vote resigned just after 13 days.
The President then invited the leader of the United Front which had been
promised support from outside (without participation in the government) by the
Congress Party. The President appointed Deve Gowda, who was not a member
of either the Rajya or the Lok Sabha and did not belong to any political party but
had the support of the majority of the members. This Government lasted for
nearly two years (with a change of leadership in between). It resigned in Decem-
ber, 1997 when the Congress Party withdrew support.
76. The President had imposed a condition on him to get a vote of confidence from the Lok
Sabha. See, R. VENKATARAMAN, MY PRESIDENTIAL YEARS, 324 (1994).
77. When Chandra Shekhar was appointed as the Prime Minister, the President was satisfied
prima facie that he had the strength to form a viable government. Nevertheless, the President
stipulated that the Prime Minister should prove his majority in the Lok Sabha. See,
VENKATARAMAN, op. cit. 443.
78. Venkataraman, op. cit., 553.
190 Central Executive [Chap III
The House was dissolved and fresh elections were held in March, 1998.
Again, no majority party emerged in the Lok Sabha. Atal Behari Vajpayee, the
leader of the BJP (being the largest single party having 162 members as against
141 members belonging to the Congress Party), was able to form a coalition with
several small regional parties and having thus got a majority was invited to form
the government. Atal Behari Vajpayee became the Prime Minister again and was
able to win a vote of confidence in the Lok Sabha. In the general elections held in
2004 and 2009, the government in the centre was formed by the Congress, which
emerged as the largest single party, with the support of other political parties.
It is clear from the above events that the President seeks to put in office a
Prime Minister who is able to muster majority support in the House. This accords
with the view expressed by S.A. de Smith as regards Britain that when “no party
has an overall majority in the House”, the Queen will have to decide who has “a
reasonable prospect” of maintaining himself in office. “That person will nor-
mally, but not invariably, be the leader of the largest party in the House of Com-
mons”.
At times, a Deputy Prime Minister is appointed though no such office is cre-
ated by the Constitution. A question has been raised whether the taking of oaths
as the DPM is constitutionally valid as there is no separate oath prescribed for the
DPM. The Supreme Court has ruled that the DPM is just a Minister and he takes
the same oath as a Minister does. Though described as the DPM, such description
does not confer on him any of the powers of the Prime Minister.79
(c) APPOINTMENT OF MINISTERS
A Minister should, normally speaking, be a member of a House of Parliament.
It is a well established convention in all countries having the Parliamentary sys-
tem80 but not, an absolute rule; even a non-member may be appointed as a Min-
ister, but he must sooner than later become a member of a House.
In India, the same practice prevails. If, however, a non-member is appointed as
a Minister, he cannot hold the office for longer than six months without becom-
ing a member of a House of Parliament in the meantime. A Minister who for a
period of six consecutive months is not a member of a House of Parliament
ceases to be a Minister at the expiry of that period [Art. 75(5)].
This provision ought to be read along with Art. 8881 which permits a Minister
to participate in the proceedings of a House of which he is not a member. This
means that a Minister who is not a member of any House can speak in, and par-
ticipate in the proceedings of, any House, but he does not have a right to vote in
any House. Thus, the Minister can function effectively even though not a mem-
ber of any House.
The rule that Ministers should be members of Parliament is, indeed, essential
to the smooth and proper working of parliamentary form of government. Their
presence in Parliament makes a reality of their responsibility and accountability
79. K.M. Sharma v. Devi Lal, AIR 1990 SC 528 : (1990) 1 SCC 438.
80. SIR IVOR JENNINGS, CABINET GOVERNMENT, 60 (IIIrd ed.); WADE & BRADLEY, CONSTITU-
TIONAL AND ADMINISTRATIVE LAW, 268; PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA, 243
(4th ed.); State of South Wales v. Commonwealth of Australia, 108 ALR 577.
81. Supra, Ch. II, Sec. G(h).
Syn A] Admission to the Executive Organs 191
to Parliament, and facilitates co-operation and interaction between them and Par-
liament, both these features being vital to parliamentary government.
To appoint a non-member of the Parliament as a Minister does not militate
against the constitutional mechanism or democratic principles embodied in the
constitution. A non-member can remain a Minister only for a short period of six
months and as a minister he is collectively responsible to Lok Sabha. There are
several reasons for permitting a non-member to be appointed as a Minister for a
short duration. A person who may be competent to hold the post of a Minister
may be defeated in the election. There is no reason why he cannot be appointed
as a Minister pending his election to the House.
There is no condition that only a member of a House of Parliament can be ap-
pointed as the Prime Minister. A non-member, even a member of a State Legis-
lative Assembly, may be appointed as the Prime Minister. However, his ap-
pointment as the P.M. would remain valid if within six months, he becomes a
member of a House of Parliament and resigns his seat in the Legislative Assem-
bly.
Under Art. 75(5)82, a person who is not a member of any House of Parliament
can be appointed as a Minister. He has to become a member of either House
within six months otherwise he ceases to be the Minister. The term ‘Minister’ in
Art. 75(5) includes the Prime Minister. The Supreme Court has repudiated the
suggestion that appointment of a non-member as the Prime Minister is anti-
democratic. Only a person who, the President thinks, commands the confidence
of the Lok Sabha is appointed as the Prime Minister. The Council of Ministers of
which he is the head is collectively responsible to the Lok Sabha. Therefore, even
though the Prime Minister is not a member of Parliament, he is the one who
commands the support of a majority of members of the Lok Sabha and he be-
comes answerable and accountable to the House and this ensures the smooth
functioning of the democratic process.
Shri Sitaram Kesari was appointed as a Minister of State in the Central Cabi-
net. His appointment was challenged in a writ petition on the ground that he was
not a member of either House of Parliament at the time of his appointment and so
he could not be appointed as a Minister. The writ petition was dismissed as under
Art. 75(5), a person not being a member of a House could be appointed as a
Minister upto a period of six months.
Reading Arts. 75(5) and 88 together,83 the Supreme Court has reiterated in
Harsharan Verma v. Union of India:84
“The combined effect of these two Articles is that a person not being a mem-
ber of either House of Parliament can be a Minister up to a period of six
months. Though he would not have any right to vote, he woud be entitled to
participate in the proceedings thereof.”
Shri H.D. Deve Gowda, who was not a member of either House of Parliament
was appointed as the Prime Minister of India. His appointment was put in issue.85
82. Supra.
83. For Art. 88; see, supra, Ch. II, Sec. G(h). According to Art. 88, a Minister, even though a
non-member, can participate in the proceedings of a House without vote.
84. AIR 1987 SC 1969 : 1987 Supp SCC 310.
85. S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 : (1996) 6 SCC 734.
Also see, Janak Raj Jai (Dr.) v. H.D. Deve Gowda, (1997) 10 SCC 462.
192 Central Executive [Chap III
The Supreme Court upheld the appointment. The Court also repelled the argu-
ment that if a non-member is appointed as the Prime Minister, it would be against
national interest. Once appointed as the Prime Minister, he becomes responsible
and answerable to the House. The Court observed:
“Even if a person is not a member of the House, if he has support and confi-
dence 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.”
The Supreme Court has made a pronouncement of great constitutional signifi-
cance in S.R. Chaudhuri v. State of Punjab.86 The question which arose in the
instant case was as follows : a person who is not a member of a House of Parlia-
ment is appointed as a minister. He resigns after six months, as required by Art.
75(5), as he fails to become a member of a House of Parliament in the meantime.
Can he be re-appointed as a minister for another term of six months? Can a per-
son be appointed repeatedly as a minister for a period of six months at a time
even though he is not a member of a House of Parliament?
Although Art. 75(5) does not specifically bar such a practice, if a literal view
is adopted thereof, the Supreme Court has banned it in Chaudhuri characterising
it as “undemocratic”; it would be “subverting the Constitution” to allow such a
practice. The Court has observed further : “The practice would be clearly de-
rogatory to the constitutional scheme, improper, undemocratic and invalid.” Art.
75(5) is in the nature of an exception to the normal 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.”87 This means that within the life time of Parliament for five
years, a person who is not a member of a House of Parliament, can be appointed
as a minister only once and that too for a short period of six months.
The Chaudhuri case arose the State of Punjab under Art. 164(4) which applies
to the appointment of ministers in a State and is in pari materia with Art. 75(5).
Therefore, whatever is said in relation to Art. 164(4) applies to Art. 75(5) as well
and vice versa.88
In a very significant pronouncement, viz. B.R. Kapur v. State of Tamil Nadu,89
the Supreme Court has read a significant restriction in Art. 75(5). The Supreme
Court has ruled that under Art. 75(5), a person who is not a member of a House
of Parliament can be appointed as the Prime Minister or a Minister only if he has
the qualifications for membership of Parliament as prescribed by Art. 8490 and is
not disqualified from the membership thereof by reason of the disqualifications
set out in Art. 102.91
The Ministers are appointed by the President on the advice of the Prime Min-
ister [Art. 75(1)]. In effect, therefore, Ministers are the nominees of the Prime
Minister. The President depends entirely on the Prime Minister’s advice in this
matter; he does not have much of a choice in the matter and his function in this
respect is purely formal.
The Constitution does not contain any restriction on the Prime Minister’s
choice of his colleagues. In practice, his choice is governed by many considera-
tions, such as party standing, capacity, educational skill, willingness to carry out
a common policy, regional representation and representation of backward or
scheduled classes and minorities. However, since 2004, the total number of Min-
isters including the Prime Minister cannot exceed 15% of the total number of
members in the Lok Sabha [Article 75(1B)]1
The President administers to a Minister, before he enters upon his office, the
prescribed oaths of secrecy and office [Art 75(4)].
It is for Parliament to prescribe salaries and allowances of Ministers from time
to time by law [Art. 75(6)]. The Salaries and Allowances of Ministers Act, 1952,
has been passed for this purpose.
(d) MINISTERIAL TENURE
On this question, two constitutional provisions, viz., Art. 75(2) and 75(3) come
into play. Ex facie these provisions seem to be inconsistent with each other but,
in practice, it is not so and these provisions can be reconciled.
The Council of Ministers remains in office so long as it enjoys the confidence
of the Lok Sabha and a majority of members in that House back and support it. It
should resign when it is unable to command this confidence. This is the inevita-
ble result of Art. 75(3) which requires the Council of Ministers to be collectively
responsible to the Lok Sabha. The provision brings into existence responsible
government. It means that the tenure of the Ministry is determined by the House.
However, Art. 75(3) operates only when the Lok Sabha is not dissolved. When
the Lok Sabha is dissolved, the Council of Ministers naturally cannot enjoy the
confidence of the House.2
Another constitutional provision having a bearing on the question of ministe-
rial tenure is Art. 75(2), according to which, Ministers hold office during the
pleasure of the President. Prima facie it would mean that the ministerial tenure is
within the President’s discretion and that a Minister may legally be dismissed by
him as and when he likes. Ex facie, there appears to be an inconsistency between
Arts. 75(2) and 75(3), but, in practice, this is not so. Reading Arts. 75(2) and
75(3) together, the position seems to be that the President’s power to dismiss the
Ministry is subject to democratic controls.
The President’s power of dismissal is conditioned by the need to keep in office
a Ministry able to command the confidence of the Lok Sabha and, therefore, he is
not expected to dismiss a Ministry so long as it enjoys this confidence.3 The rea-
sons for the proposition are not difficult to discern. It is mandatory for the Presi-
1. Inserted by the Constitution (Ninety-first Amendment) Act, 2003 with effect from 2-1-2004.
2. U.N.R. Rao v. Indira Gandhi, supra, under “Council of Ministers”.
3. M. RAMASWAMY, “The Constitutional Position of the President of the Indian Republic,” 28
Can. B.R. 648 (1950); infra, Sec. B(d).
194 Central Executive [Chap III
dent to have a Council of Ministers. If, therefore, the President acts in a high
handed manner and dismisses from office a ministry enjoying the confidence of
the House, the alternative Ministry which he installs will be a minority Ministry.
Such a Ministry will find it practically impossible to carry on government be-
cause the majority in the House will not support it. The Ministry cannot carry out
its policy; legislation desired by it will not be passed and the House may even
refuse funds to it. The President’s position itself becomes vulnerable as the ma-
jority party whose Ministry has been dismissed by the President may even move
for his impeachment.4
In view of these dangers, it may be safely assumed that the power of the Presi-
dent to dismiss a Ministry is more formal than substantial. It is to be used by him
to throw a Ministry out of office, not when it enjoys, but when it forfeits, the con-
fidence of the Lok Sabha. Ordinarily, a Ministry losing the confidence of the
House will itself resign, or seek a dissolution of the House5. But in case it sits
tight and takes no action one way or the other, the President will use his power,
dismiss the Ministry and install into office another Ministry able to command the
confidence of the House.
The President’s power, therefore, is a reserve power to be used by him in case
of a clear manifestation of lack of Parliament’s confidence in the Ministry. This
power is to be used to support, and not to thwart, the Constitution and the institu-
tion of representative government in the country. ‘During pleasure’ does not
mean that the ‘pleasure’ shall continue notwithstanding the fact that the Ministry
has lost the confidence of the majority.
A President who dismisses Ministers would be regarded as the ally of the op-
position, and as such be made the subject of attack. His function is to see that the
Constitution functions in the normal democratic manner. It is for the electors and
not the President to decide between competing parties. The power of dismissal of
the Ministry is the ultimate weapon, a recourse of last resort “which is liable to
destroy its user.”6
This position is in accord with the conventions prevailing in Britain. A similar
power vested in the Crown in Britain has become practically obsolete. Since
1783, no Ministry enjoying the confidence of the Commons has been dismissed
in Britain.7 The scholarly opinion however is that the Monarch can dismiss the
Ministers if they are purporting to subvert the democratic basis of the Constitu-
tion, such as, prolonging the life of Parliament in order to avoid defeat at a Gen-
eral Election; obtaining majority by duress, or fraudulent manipulation of the poll
etc.
It may be worthwhile to take note of the dismissal of the Labour Government
in Australia in 1975 by the Governor-General. The Government had a majority in
the Lower House but not in the Senate. The Lower House passed the annual ap-
propriation bill but the Senate refused to approve the same making the running of
government difficult. In Australia, assent of the Senate to financial legislation is
required. There was a danger that the whole governmental machinery may come
4. Supra.
5. For discussion on Lok Sabha, see, supra, Ch. II.
6. DE SMITH, CONSTITUTIONAL & ADM. LAW, 102 (1977).
7. KEITH, BRITISH CABINET SYSTEM, 8 (1952); JENNINGS, THE CABINET GOVT., 403-412 (1969).
Syn B] Working of the Executive 195
to a halt if the appropriation bill was not passed, because no money could then be
withdrawn from the government treasury.
To resolve the crisis, the Governor-General dismissed the Government and
invited the leader of the opposition to form the new government. The new Prime
Minister who formed a minority government got the appropriation bill passed by
the Senate and then recommended to the Governor-General to dissolve the Par-
liament and hold fresh elections. This recommendation was accepted by the Gov-
ernor-General and both the Houses were dissolved and fresh elections to the
Houses were held. In the subsequent elections, this Government won a majority
in the Lower House. However, the action of the Governor-General gave rise to a
bitter public controversy in the country.
The President’s power of dismissal under Art. 75(2) may however be invoked
by the Prime Minister to get rid of a Minister who has lost his confidence. Since
a Minister is appointed on the advice of the Prime Minister, so he can get rid of
any Minister. Although, technically, the ministers hold office during the “pleas-
ure” of the President, the acknowledged democratic convention is that on the ad-
vice of the Prime Minister, the President has to dismiss the Ministers. If the
Prime Minister has the power to make his Ministers, it is also his constitutional
right to unmake them. The identity of the Ministers is not known without the
Prime Minister.
Ordinarily, a Minister whom the Prime Minister no longer wants in the Coun-
cil of Ministers will himself resign when asked by the Prime Minister to do so.
But in an extreme situation, when such a Minister ignores the wishes of the
Prime Minister, the latter may request the President to dismiss the undesirable
Minister from office. The President thus acts on the advice of the Prime Minister
and uses his power to maintain the integrity and solidarity of the government
without which the Council of Ministers cannot function effectively.8
Accordingly, President’s power to dismiss a Minister is only meant to be used
to keep the parliamentary form of government functioning smoothly, to promote
collective responsibility among Ministers,9 and to protect the Ministry from dis-
ruption. In a healthy democratic polity, where democratic traditions have taken
roots, the President’s power may never be called into action. It is only the ulti-
mate resort, to be invoked in an exceptional situation, and that, too, to uphold,
support and maintain democratic and parliamentary traditions.
The supreme command of the defence forces of the Union is vested in the
President but the exercise of the supreme command is to be regulated by law
[Art. 53(2)]. This provision seeks to bring the defence forces subject to the civil-
ian authority.
The executive power of the Union is vested in the President [Art. 53(1)]. This
power is to be exercised in accordance with the Constitution [Art. 53(1)]. Though
formally vested in the President, the idea could never be that he should person-
ally exercise this power, or take every decision himself. That would be a task
physically impossible for him to discharge. It will also be constitutionally unde-
sirable for in a parliamentary system effective powers vest in the Ministers. The
Constitution therefore seeks to create a mechanism by which the responsibility
for decision making may be passed from the President to others.
First, the Constitution provides that the President can exercise his functions
either directly or through officers subordinate to him [Art. 53(1)]. This provision
permits exercise of executive power vested in the President by the Ministers and
other officials. For this purpose, a Minister is regarded as an officer subordinate
to the President and, therefore, the President can exercise his executive authority
through the Ministers.10
Secondly, the President is to make Rules for the more convenient transaction
of the business of the Government of India and for the allocation of work among
the various Ministers [Art. 77(3)]. The Rules of Business confer power on the
Ministers to carry on the administration and take decisions in their departments.
When an order is made in accordance with the Rules of Business made under
Art. 77(3), it cannot be challenged on the ground that the President had not per-
sonally applied his mind to the matter.11
The idea underlying Art. 77(3) is that while the actual administration is run by
the Ministers, and not by the President who is a constitutional head, a Minister
cannot, in the very nature of things, take every decision by himself. A Minister is
not expected to burden himself with the day to day administration in his depart-
ment. Minister’s primary function is to lay down policies and programmes of his
Ministry. Therefore, under the Rules of Business, officials in the department can
take decisions and when a civil servant takes a decision, he does so on behalf of
the government. The officers designated by the Rules of Business or the standing
Orders12 can take decisions on behalf of the Government13.
Thirdly, Parliament may by law confer any function on authorities other than
the President [Art. 53(3)(b)]. When Parliament does so, the officer concerned can
act in his own name.
Fourthly, although, executive power of the Union is vested in the President,
actually, in practice, it is carried on by the Ministers and other officials and the
President’s personal satisfaction is not necessary in every case.14
There is however the over-all condition, viz., the executive power is to be ex-
ercised “in accordance with this Constitution”. This clause opens the way to judi-
10. King-Emperor v. Sibnath Banerji, AIR 1945 PC 163; S.N. Ghosh v. B.L. Cotton Mills, AIR 1959
Cal. 552.
For further discussion, see, infra, under “State Executive,”, Ch. VII.
11. For a detailed discussion on the scope and effect of the Rules of Business, see, M.P. JAIN, A Trea-
tise on Administrative Law, Vol. II, Ch. XXI.
For further discussion on Rules of Business, see, infra, Sec. E.
12. Standing Orders are made by the Minister for his department.
13. See, A. Sanjeevi Naidu v. State of Madras, AIR 1970 SC 1102 : (1970) 1 SCC 443; Laxim
Udyog Rock Cement Pvt. Ltd. v. State of Orissa, AIR 2001 Ori. 51.
Also see, Ch. VII, infra.
14. Bijoya Cotton Mills v. State of West Bengal, AIR 1967 SC 1145 : (1967) 2 SCR 406; A. Sanjeevi
v. State of Madras, AIR 1970 SC 1102 : (1970) 1 SCC 443; Samsher Singh v. State of Punjab, in-
fra, note 20.
For further discussion on this point, see, infra.
Syn B] Working of the Executive 197
cial review of executive action vis-à-vis the Constitution. The court can strike
down an unconstitutional act, i.e., an act infringing a constitutional provision.
“Any exercise of the executive power not in accordance with the Constitution
will be liable to be set aside”15
The formal vesting of executive power in the President does not also envisage
that he should personally sign all the executive and administrative orders passed by
the Central Government. The wheels of government would stop if it were to be
mandatory for the President to sign all such orders. In actual practice, the President
signs only a few crucial orders, and all other orders are promulgated by subordinate
officers without reference to him. This result is achieved by Article 77.
According to Art. 77(1), all executive action of the Central Government is to
be expressed to be taken in the name of the President.
Article 77(1) prescribes the mode in which executive action of the Central
Government is to be expressed. This provision is however merely directory and
not mandatory and its non-compliance does not render the order a nullity as it
does not preclude proof by other means that the order or instrument in question
was made by the President. This provision does not lay down how an executive
action of the Government of India is to be performed; it only prescribes the mode
in which such act is to be expressed.16 However, even if an executive action of
the Central Government is not formally expressed to have been taken in the name
of the President, it would not render the action invalid under Article 77. 17
Further, Art. 77(2) lays down the manner in which the order of the Central
Government is authenticated. Art. 77(2) says that orders and other instruments
executed in the President’s name are to be authenticated in such manner as may
be specified in the rules made by the President,18 and the validity of any docu-
ment so authenticated cannot be called into question on the ground that it is not
an order or instrument made or executed by the President.
This provision immunizes an order from being challenged on one ground only,
viz., that it has not been made by the President. It does not oust the jurisdiction of
the courts to examine the validity of the order on any other ground. Thus, the
correctness of the recitals in the order as to the facts which are essential for its
validity can be questioned.19 Nor can any policy decision be taken under Articles
77 or 162 which would contravene constitutional or statutory provisions. 20
15. U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002, 1004 : (1971) 2 SCC 63; supra, Sec.
A(iii).
Also, Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.
16. The terms of Art. 77(1) are equivalent to Art. 166(1) which operates in the State sphere.
For a detailed discussion on Art. 77(1), see, infra, Chapter VII.
17. Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277/ 312: AIR 2004
SC 187. The observation in Draupadi Devi v. Union of India, (2004) 11 SCC 425, 451: AIR
2004 SC 4684, to the effect that a decision not taken in the manner contemplated by Article
77,”would only mean that there was no decision” was made without reference to the decision
in Air India Cabin Crew Assn.
18. The President has promulgated the Authentication (Order and Other Instruments) Rules,
1958. Rule 2 thereof provides that orders and other instruments made and executed in the
name of the President shall be authenticated by the signatures of the Secretary, Joint Secre-
tary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India.
For a detailed discussion on Art. 77, see, supra, JAIN, footnote 11.
19. Supra, footnote 10.
20. Post Master General v. Tutu Das , (2007) 5 SCC 317, 322 : 2007 (6) JT 340.
198 Central Executive [Chap III
Article 77 gives effect to the provisions of Article 53 which permit the Presi-
dent to exercise his authority through others. When an order issued in the Presi-
dent’s name is duly authenticated by the authorised officer, it cannot be im-
peached on the ground that the matter has not been personally considered by the
President or that he has not applied his mind to it.
The implications of Arts. 77(1) and (2) are as follows : Arts. 77(1) and 77(2)
are only directory.21 If an order is issued in the name of the President, and is duly
authenticated in the manner prescribed by Art. 77(2), there is an irrebuttable pre-
sumption that the order is made or executed by the President. Even if an order is
not issued in strict compliance with the provisions of Art. 77(1), it can be estab-
lished by evidence aliunde that the order has been made by the appropriate
authority.
An order not in strict compliance with the provisions of Arts. 77(1) and (2), is
not invalid per se, but the irrebuttable presumption in its favour cannot be drawn.
The party concerned can prove by other evidence that, as a matter of fact, the
order has been made by the appropriate authority. For example, in Barsay,22 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), neverthe-
less, 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.23
The expressions “executive power” and “executive action” in the context
mean the power and action of the executive. Therefore, all orders made by the
executive, whether administrative or legislative in nature, can be authenticated
under Art. 77(2).24 It is not true to say that under Art. 77(2) only executive or-
ders, and not legislative orders, can be authenticated.
Before 1976, Art. 74(1) merely said that the Council of Ministers is to ‘aid and
advise’ the President in the exercise of his functions. Art. 74(2) declares that no
court can inquire into the question whether any, and if so what, advice was ten-
dered by the Ministers to the President.25 Art. 74(2) thus expressly makes advice
tendered by the Ministers to the President non-justiciable. Originally there was
no provision in the Constitution to make ministerial advice binding on the Presi-
dent, but , for all practical purposes, this was so. The position by and large had
crystallised before 1976 that the President was more or less a titular head of the
executive and was bound by the advice of the Ministers. The real head of the ex-
21. See, Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 : 1952 SCR 612.
For a further discussion on the point, see, Ch. VII, infra.
22. Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 : (1962) 2 SCR 195.
23. See, infra, Sec. E.
24. D.S. Sharma v. Union of India, AIR 1970 Del. 250.
25. Supra, Sec. A(iii).
Syn B] Working of the Executive 199
ecutive was the Prime Minister. This author had summed up the position as fol-
lows:26
“Whatever the formal constitutional provisions may be, in effect, however,
the totality of the executive power at the Centre vests not in the President
alone, but in the President and the Council of Ministers. The President is the
head of the State and only a formal executive. In all functions vested in him, he
acts on the advice of the Ministers. The President is more of a symbol used to
formalize the decisions arrived at by the Ministers and the Cabinet. The effec-
tive executive power lies with the Prime Minister and the Ministers who con-
stitute the real executive carrying on the entire burden of conducting the ad-
ministration of the Union.”
The Supreme Court had, in a number of decisions, expressly accepted this
constitutional position of the President. In Ram Jawaya v. State of Punjab,27
MUKHERJEA, C.J., speaking on behalf of the Supreme Court stated that our Con-
stitution has adopted the British system of a parliamentary executive, that the
President is only “a formal or constitutional head of the executive” and that “the
real executive power are vested in the Ministers or the Cabinet.” MUKHERJEA,
C.J., further observed:
“Our Constitution…. is modelled on the British Parliamentary system where
the executive is deemed to have the primary responsibility for the formulation
of governmental policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining the confidence of
the legislative Branch of the State... In the Indian Constitution, therefore, we
have the same system of Parliamentary executive as in England and the Coun-
cil of Ministers consisting, as it does, of the members of the legislature is like
the British Cabinet, ‘a hyphen which joins, a buckle which fastens’, the legis-
lative part of the State to the executive part. The cabinet enjoying, as it does, a
majority in the legislature concentrates in itself the virtual control of both leg-
islative and executive functions….”
In U.N.R. Rao v. Indira Gandhi,28 the Supreme Court emphasized that the
conventions operating in Britain governing the relationship between the Crown
and the Ministers are very pertinent to the Indian Constitution as well, and the
formal provisions of the Indian Constitution should be read in the light of those
conventions. The Court observed:
“The Constituent Assembly did not choose the Presidential system of Govern-
ment.”29
In R.C. Cooper v. Union of India,30 the Supreme Court said: “Under the Con-
stitution, the President being the constitutional head, normally acts in all matters
including the promulgation of an ordinance on the advice of his Council of
Ministers.”31
In Samsher Singh v. State of Punjab,32 the Supreme Court stated that it was not
correct to say that the President is to be satisfied personally in exercising the ex-
ecutive power. The President is only a formal or constitutional head who exer-
cises the power and functions conferred on him by or under the Constitution on
the aid and advice of his Council of Ministers. Whenever the Constitution re-
quires the ‘satisfaction’ of the President for the exercise by him of any power or
function, it is not his ‘personal satisfaction’, but, in the constitutional sense, the
‘satisfaction of the Council of Ministers’.
The President’s “opinion, satisfaction or decision is constitutionally secured
when his Ministers arrive at such opinion, satisfaction or decision.” “The deci-
sion of any Minister or officer under the Rules of Business [made under Art.
77(3)]33 is the decision of the President”.34 Any argument that an order could not
be made by a Minister without reference to the President is thus untenable. De-
scribing the nature of the government, the Court observed:35
“It is a fundamental principle of English constitutional law that Ministers
must accept responsibility for every executive act. In England, the sovereign
never acts on his own responsibility. The power of the sovereign is conditioned
by the practical rule that the Crown must find advisers to bear responsibility for
his action. Those advisers must have the confidence of the House of Commons.
This rule of English constitutional law is incorporated in our Constitution. The
Indian Constitution envisages a parliamentary and responsible form of Gov-
ernment at the Centre and in the States and not a Presidential form of Govern-
ment.”
The Court then said that whatever the function vested in the Presi-
dent/Governor, whether executive, legislative or quasi judicial in nature and
whether vested by the Constitution, or by a statute, may be discharged according
to the Rules of Business, unless the contrary is clearly provided for by such con-
stitutional or statutory provisions. The Court stated in this regard as follows:
“The President as well as the Governor is the Constitutional or formal head.
The President as well as the Governor exercises his powers and functions con-
ferred on him by or under the Constitution on the aid and advice of his Council
of Ministers, save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. Whenever the Constitu-
tion requires the satisfaction of the President or the Governor for any exercise
by the President or the Governor of any power or function, the satisfaction re-
quired by the Constitution is not the personal satisfaction of the President or
Governor but the satisfaction of the President or the Governor in the constitu-
tional sense in the cabinet system of government, that is, satisfaction of his
Council of Ministers on whose aid and advice the President or the Governor
generally exercises all his powers and functions. The decision of any Minister
or Officer under rules of business made under any of these two Articles 77(3)
and 166(3) is the decision of the President or the Governor respectively. These
Articles did not provide for any delegation. Therefore, the decision of Minister
32. AIR 1974 SC 2192 : (1974) 2 SCC 831. Pu Myllai Hlychhlo v. State of Mizoram , (2005) 2
SCC 92 : AIR 2005 SC 1537. Also see, infra, under State Executive, Ch. VII.
33. See, supra; infra, Sec. D(iii).
34. See, G.D. Zalani v. Union of India, AIR 1995 SC 1178 : (1995) Supp (2) SCC 512; B.L.
Wadehra v. Union of India, AIR 1998 Del. 436.
35. AIR 1974 SC at 2199 : (1974) 2 SCC 831.
Syn B] Working of the Executive 201
or officer under the rules of business is the decision of the President or the
Governor.”
Under Art. 352, the President of India can proclaim an emergency in the
country in certain situations.36 Thereafter, under Art. 359 (1), the President may
by order suspend the operation of any Fundamental Right.37 The proclamation of
emergency is issued in the name of the President under his own signature.38
In the instant case, orders suspending Arts. 14, 21 and 2239 were issued under
Art. 359(1) in the name of the President but were signed by an Additional Secre-
tary to the Government of India. Rejecting the argument that it could not be said
whether the President was personally satisfied about the orders or not, the Su-
preme Court ruled in Nambiar40 that in view of Art. 77, President’s personal sat-
isfaction is not essential for issuing such an order. A properly authenticated order
signed by the Additional Secretary to the Government of India issued under Art.
359(1) could not be questioned on the ground that it was not an order made and
executed by the President.
The National Mineral Development Corporation (NMDC) an autonomous
public sector undertaking transferred the mining lease of an iron mine to a joint
venture company. The transfer was approved by the Ministry of Steel. Under the
Memorandum and Articles of Association, the Corporation could transfer prop-
erty only with the sanction of the President.
The Delhi High Court ruled that the sanction given to the transfer by the Min-
ister was valid. It was not necessary for the President to personally give the sanc-
tion. In the cabinet system, the ‘satisfaction’ of the President does not mean his
‘personal satisfaction’ but the satisfaction of the President in the constitutional
sense, i.e. the satisfaction of the Council of Ministers on whose aid and advice
the President exercises all his powers and functions. The decision of a Minister or
an officer under the Transaction of Business Rules is regarded as the decision of
the President.41
Thus, the President/Governor does not exercise the executive functions per-
sonally. He acts on the aid and advice of the Council of Ministers in all matters
which vest in the executive whether those functions are executive or legislative in
character.
In Union of India v. Sripati Ranjan,42 the respondent was dismissed from
service by the Collector of Customs. He preferred an appeal to the President as
was provided for in the Service Rules. The Minister of Finance rejected the ap-
peal without any reference to the President. The question was whether the Min-
ister could have himself decided the appeal or should the President have decided
the matter personally because the rule in question said that the appeal lay to the
President.
The Supreme Court ruled that the appeal had been validly disposed of by the
Minister. The Court asserted that the Constitution ‘conclusively contemplates’ a
constitutional President and any reference to the President under any rule made
under the Constitution must need be to the President as the constitutional head
acting with the aid and advice of the Council of Ministers. Thus, in the instant
case, the principle laid down in Samsher Singh has been extended to a quasi-
judicial function as well vested in the President by a statutory provision.
It may be pointed out that Arts. 7443 and 7744 are in a way complimentary to
each other, though they may operate in different fields. Art. 74(1) deals with the
acts of the President done “in exercise of his functions”. Art. 77 speaks of the
executive action of the Government of India which is taken in the name of the
President of India. As regards the executive action of the Government of India, it
has to be taken by the Minister/Officer to whom the said business is allocated by
the Rules of Business under Art. 77(3). The allocation of business has been con-
strued as merely directory by the Bombay High Court.45 However, recently the
Supreme Court has taken a contrary view in NDMC v. Tanvi Trading and Credit
(P) Ltd.,46 Guidelines relating to the Lutyens’ Bungalow Zone in Delhi had been
issued by the Ministry of Urban Development at the instance and initiative of the
Prime Minister’s Office. The Court held that these guidelines cannot be ignored
by the Court and any relaxation in the guidelines under the Government of India
(Transaction of Business) Rules, 1961 would require the approval of the Prime
Minister’s Office. Therefore, although the subject-matter of the guidelines fell
within the scope of the Minister of Urban Development, a relaxation, without the
approval of the Prime Minister could not be granted by any other authority, other
than the Prime Minister’s Office.
An order issued in relation to the executive action of the government has to be
authenticated by the officer empowered under the Rules of Authentication under
Art. 77(2). Many such orders do not reach the President and so there is no occa-
sion in such cases for any aid and advice being tendered to the President by the
Council of Ministers. These acts though executed in the name of the President are
really the acts of the government. They are distinct from the acts of the President
“in the exercise of his functions” which he discharges on the aid and advice of
his Ministers.
The Constituent Assembly had consciously adopted the British pattern of gov-
ernment.47 Therefore, the relevant conventions operating in Britain governing the
relationship between the Crown and the Ministers are very pertinent to the Indian
Constitution as well. In Britain, following a centuries-old tradition, the formal
position is that the King, who had gradually lost legislative, judicial, and finally
executive powers, is still the supreme formal agency in whose name action is
taken. According to the British convention, the Sovereign has “the right to be
consulted, the right to encourage, the right to warn” the Ministers.48 The term
A question may be asked that if the framers of the Constitution were so defi-
nite in their minds regarding the constitutional status of the President, then why
did they not categorically incorporate any provision in the Constitution that the
President would be bound by ministerial advice? The Drafting Committee did
examine this question but dropped the idea of putting any such provision as it
thought it better to leave the matter to conventions. Such a provision could not
have been enforced legally and the remedy could only have been political and
that remedy exists even now. The relationship of the President with the Cabinet is
based on the system of responsible government functioning in Britain. There the
system of parliamentary government based on conventions has been working for
long and it could be expected that a similar system would also work reasonably
well in India.
Further, President’s part in assent of Bills has already been defined in the Con-
stitution.55 In matters of dissolution of the Lok Sabha,56 appointment of the Prime
Minister57 and dismissal of the Ministry,58 there may be a marginal use of discre-
tion by the President in certain grave and exceptional situations, and so in such
matters some flexibility appeared to be necessary to meet any unforeseen contin-
gencies. As conventions in Britain around the powers of the King in his relation-
ship with the Cabinet ‘are sufficiently strong’, there could be no danger of misuse
of these powers by the President.
No exact rules could be laid down for the exercise of these reserve powers as
threats to the Constitution may be infinite in variety and, therefore, it was not
possible to put in the Constitution precisely what the President must do in these
extremely exceptional situations or what the Prime Minister can ask him to do
and where the President can use his judgment.59
The power of the Prime Minister in Britain has been progressively increasing
and his advice is now regarded as paramount.60
Nor does the matter rest entirely on conventions. There are a few safeguards
woven into the fabric of the Constitution itself because of which critical situa-
tions may arise if the President ever ignores ministerial advice. The Council of
Ministers is responsible to the Lok Sabha and this principle necessarily leads to
the gravitation of effective power into the hands of the Prime Minister and the
Ministers.61
If the President ever takes it into his head to override the Ministry on any
matter, it may resign en bloc and thus create a constitutional crisis. It is obliga-
tory on the President to always have a Council of Ministers62 and so it follows
that when a Ministry resigns, the President must at once seek to have an alterna-
tive Ministry which may be capable of commanding the confidence of the House
and justifying to Parliament, and securing its approval of, the presidential action
in refusing the advice of the previous Ministry. The President may find this very
difficult in a situation where the previous Ministry enjoying the confidence of the
House had to resign due to his own conduct, as the majority of members, who
supported the previous Ministry, would refuse to support any other Ministry.
Parliament has supreme power of legislation, taxation and appropriation of
funds. No appropriations from the Consolidated Fund can be made, and no tax
can be levied by the Executive, without parliamentary sanction.63 President’s or-
dinance-making power is meant for use only for a short duration and is ultimately
subject to parliamentary control.64 The President cannot carry on the administra-
tion of the country without the co-operation of Parliament as no more than six
months could elapse between two parliamentary sessions.65 The President’s
power to declare an emergency is also subject to the approval of the two Houses
of Parliament.66
All the above-mentioned constitutional provisions lead inevitably to one result
: that there should be in office a Ministry which is in a position to secure parlia-
mentary approval, sanction and finance for its policies and programme. A Min-
istry lacking the confidence of the Lok Sabha will find it impossible to carry on
the administration with a non co-operative, or even hostile, House facing it. It is
therefore absolutely essential for the President to maintain in office a Council of
Ministers enjoying the confidence of the Lok Sabha and to act on its advice.
Further, if a Ministry having the solid support of the Lok Sabha is dislodged
by the President, the majority party may even move for his impeachment for
violation of the Constitution.67 The President may be impeached if he seeks to
disregard the rule of parliamentary government by ignoring the underlying basic
conventions, as the phrase ‘violation of Constitution’ in the constitutional provi-
sion relating to Presidential impeachment is flexible enough to include not only
the formal provisions of the Constitution but also the conventions operating
thereunder.68 This, therefore, should serve as a sanction to make the President
observe the convention of acting on the advice of the Council of Ministers.
On the other hand, the ‘activist’ theory of the President has many snags for the
President himself as well as for the Constitution. The President is not elected for
his political views or programme. It is the programme of the political party,
emerging as the majority party at the polls, which may be regarded as having
been endorsed by the electorate and the Council of Ministers is there to imple-
ment the same.
The ‘activist’ theory will result in the negation of the parliamentary system. If
the President vetoes a Bill passed by the two Houses, he will be setting himself
against the majority in Parliament. He will thus become controversial and parti-
san and be drawn into the vortex of political controversy and public criticism
which will do irreparable damage to the dignity, prestige and neutrality of the
President’s office.
An activist President is going to face sooner or later a confrontation with the
Cabinet. There is no way to hold the President responsible except the extreme
if the procedure by which the President was elected and was liable to be removed
or impeached introduced any difference, constitutionally speaking, between the
President and the British Monarch. The President also posed the wider question
as to how far the conventions of the unwritten British Constitution could be in-
voked and incorporated into the written Indian Constitution by interpretation.72
This speech naturally brought into forefront the question of President’s rela-
tionship with his Council of Ministers, but the matter was set at rest by Nehru
declaring at the Press Conference on December 15, 1960, that the President’s
remarks were only “casual,” and that politically and constitutionally, the Presi-
dent’s position conformed to that of the British Crown and that the President was
a constitutional head and had always acted as such.73
For the third time, a similar controversy was raised in 1967. As a result of the
Fourth General Elections held in March, 1967, the Congress monopoly of power
in the States was broken as in some States non-Congress governments took of-
fice. When the question of electing a new President arose in May, 1967, the par-
ties opposed to the Congress set up their candidate as against the Congress can-
didate, and one of the arguments that was put forth by these parties in soliciting
support for their candidate was that the President was not a figure-head and that
he had a constructive and meaningful role to play in the affairs of the country,
especially, that he should act as a sort of mediator between the Centre and the
States.
This last idea became rather important in the newly emerging political pattern
of some States being under non-Congress governments while the Centre was un-
der the Congress control, and, thus, seeds of Centre-State conflict, tensions and
stresses were inherent in this situation. But the controversy was laid at rest with
the election of the Congress candidate as the President, for the Congress Party
had fought the election specifically on the basis that the President was merely a
constitutional head and this was vindicated by the election of its candidate.74
Again, in 1969, the presidential election brought forth the same issue, but
again the issue was settled in favour of the view that the President is a constitu-
tional head and performs no activist role.
Thus, in 1976 the position was quite clear. Even without any words in the
Constitution making ministerial advice binding on the President, the President, in
effect, acted only as the titular head of the executive while the Prime Minister
was the real head. The phrase ‘aid and advice’ used in Art. 74(1) was a masterly
understatement of the real position enjoyed by the Council of Ministers for, in
practice, most of the decisions were made and implemented by the Ministers
themselves without reference to the President.
It was recognised that the Ministers and not the President bore the responsibil-
ity of the governmental action and in whatever matter the President acted, he in-
variably did so on ministerial advice. There was no aspect of his functioning
which was free of ministerial advice, and that the President exercised no discre-
tion himself except the marginal discretion in such matters as appointing the
Prime Minister etc. It was widely recognised that the Constitution embodied gen-
erally the parliamentary or the cabinet system on the British model where the
monarch never acts on his own responsibility; he has ministers to bear the re-
sponsibility for his actions and that the constitutional relationship existing be-
tween the President and the Council of Ministers was substantially analogous to
that subsisting between the British Crown and the Cabinet.
In spite of this, in 1976, by the Constitution (Forty-second Amendment) Act,
1978,75 Art. 74(1) was amended so as to state explicitly that the President shall
act in accordance with the advice of the Ministers in the exercise of his functions.
This amendment did not effect any real or significant change in the pre-
existing position of the President vis-a-vis the Council of Ministers but it did
make explicit what had been implicit at that time. The constitutional amendment
only reiterates the position as it had come to be by then. The purpose of the
amendment however was to remove any doubt on this point and clarify the posi-
tion once and for all.
The Forty-Fourth Constitution Amendment76 introduced a new proviso to Art.
74(1) authorising the President to require the Council of Ministers to reconsider
the advice given by it, and the President shall act in accordance with the advice
tendered after such reconsideration. And, further, 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” [Art. 74(2)].77
The present position therefore is that the President has to act on ministerial ad-
vice. The only right the President has is to ask the Council of Ministers to recon-
sider the matter. But the President is bound by the advice given thereafter [Pro-
viso to Art. 74(2)]; He must act in accordance with this advice. In 2006 a poten-
tial confrontation was avoided in connection with the “office of profit” amend-
ment.78
At times, the “reconsideration clause” may prove to be of crucial significance
and may result in avoidance of hasty action on the part of the Council of Minis-
ters. In October, 1997, the Gujral Government recommended imposition of the
President rule in Uttar Pradesh under Art. 356 of the Constitution,79 but the
President sent it back to the Cabinet for reconsideration. The reason was that the
U.P. Government had just won a vote of confidence in the Assembly. The Cabi-
net then relented and decided not to pursue the matter further.80
History repeated itself in 1998 when the B.J.P. Government recommended im-
position of the President’s rule in Bihar under Art. 356, but the President again
sent back the recommendation to the Cabinet for reconsideration, but the Cabinet
decided to keep the matter pending and not pursue it. This happended on Sep-
tember 25, 1998. But, on February 12, 1999, the Cabinet reconsidered the matter
and reiterated its earlier recommendation to impose President’s rule in Bihar and
this time the President accepted the Cabinet recommendation according to the
proviso to Art. 74(2).
More recently, while affirming that the satisfaction of the President under Ar-
ticle 356 to direct dissolution of the Legislative Assembly is the satisfaction of
the Council of Ministers, the Supreme Court set aside the order dissolving the
Assembly because the Council of Ministers had wrongly advised the President.81
In this connection, reference may also be made to Art. 78 which empowers the
President to be informed about the country’s affairs. Thus, the Prime Minister is
obligated to communicate to the President all decisions of the Council of Minis-
ters relating to the administration of the affairs of the Union and the proposals for
legislation [Art. 78(a)]. The Prime Minister is also under a duty to furnish such
information relating to the administration of the affairs of the Union and propos-
als for legislation as the President may call for [Art. 78(b)].
As the constitutional head of the Union Executive, he has at least the right to
be informed and to call for any information that he may desire. Further, the
President may require the Prime Minister to submit for the consideration of the
Council of Ministers any matter on which a decision has been taken by a Minister
alone without consulting the Council of Ministers [Art. 78(c)]. This provision is
designed in effect to enforce the principle of collective responsibility among the
Ministers.82 In all these matters, obviously, the President acts on his own respon-
sibility without any ministerial advice because no Ministry is going to advise the
President to seek information from it or ask it to reconsider its earlier decision.
From the phraseology of Art. 78(b), it becomes obvious that the right of the
President to seek information is not governed by Art. 74. Arts. 74 and 78 are not
mutually restrictive or contradictory. To call for information, the President does
not have to act on the advice of the Council of Ministers. Denial of information
to the President will amount to violation of the Constitution.
It is the duty of the Prime Minister to communicate the decision of the gov-
ernment to the President to enable him to know and to bring his influence to bear
on the working of the government. It is also the duty of the Prime Minister to
furnish such information relating to the administration of the affairs of the Union
as the President calls for. If the President feels that a decision taken by a Minister
requires reconsideration by the Council of Ministers, he can require the Prime
Minister to place it before the Council of Ministers. It will therefore be wrong to
assume that the President is merely a non-effective symbol.
In addition to what has been said above, the President can exercise a persua-
sive influence on the Ministers and help them with his advice and experience.
81. Rameshwar Prasad v. Union of India (UOI), (2006) 2 SCC 1 : AIR 2006 SC 980. For further
discussion see infra, Chapter VII.
82. On “Collective Responsibility”, see, infra.
210 Central Executive [Chap III
Like the British Sovereign, the role of the President is “to advise, encourage and
warn Ministers in respect of the recommendations which they make.”83
The influence of the President, however, depends on his personality. A man of
character and ability can really exert a potent influence on the affairs of the gov-
ernment with his advice, help and persuasion, by using his knowledge, experi-
ence and disinterestedness to arrive at sound decisions on matters affecting the
well-being of the people and not by his dictating any particular course of action
to his Ministers.
In the ultimate analysis, it is the Council of Ministers which will prevail and
not the President. His role is at best advisory; he may act as the guide, philoso-
pher and friend to the Ministers, but cannot assume to himself the role of their
master—a role which is assigned to the Prime Minister. The Constitution intends
that the President should be a centre from which a beneficent influence should
radiate over the whole administration, and not that he should be the focus or cen-
tre of any power.
While the new provision makes explicit what had generally been regarded as
already being the position, there may possibly arise some difficulties in practice
in some situations as a result of this explicit statement. Before 1976, in excep-
tional and abnormal situations, the President enjoyed some marginal discretion in
certain matters, as for example, appointment of the Prime Minister (when the
Lok Sabha is split with no majority party), or dissolution of the Lok Sabha, or the
removal of the Council of Ministers from office. What is the position in these
matters now after 1976? What is the impact of the new constitutional provision
on these matters? What happens when the Prime Minister’s party loses the elec-
tion and a new Prime Minister is to be appointed? Is the President to seek, and is
he bound by, the advice of the defeated Prime Minister regarding whom to ap-
point as the new Prime Minister or can he take his own decision in the matter?
Suppose the Council of Ministers is defeated on the floor of the House and the
Prime Minister seeks dissolution of the House even though it may be possible to
install an alternative ministry in office. Should the President automatically follow
the Cabinet advice and dissolve the House, or should he seek to find a new Prime
Minister and avoid fresh election? Or, again, the Prime Minister loses the confi-
dence of the Lok Sabha and the Prime Minister neither resigns nor seeks dissolu-
tion of the House to hold fresh elections? Is the President to watch the situation
helplessly because he cannot act without Prime Minister’s advice, or can he act
on his own and take suitable action? The crucial question is whether in such cru-
cial questions the President is left with any discretion?
The true position seems to be that in the crucial areas mentioned here, the
President has to depend on his own judgment. In the matter of appointment of the
Prime Minister, as the court cases concerning appointment of Chaudhary Charan
Singh as the Prime Minister clarify,84 the President is to depend on his own as-
sessment. He is not required to seek the advice of anyone in this matter.
Similarly, in matters of taking action when the Council of Ministers is de-
feated in the House, the President cannot be immobilisd merely because the
Prime Minister does not advise him to take any action. Perhaps the constitutional
provision binding the President to ministerial advice may be read as meaning that
the advice of the Ministers is binding on the President only so long as the Coun-
cil of Ministers enjoy the confidence of the House.85
It may be argued that Arts. 74(1) and 75(3) ought to be read together. Art.
74(1) comes into play so long as Art. 75(1) is being fulfilled, i.e., the Council of
Ministers retains the confidence of the Lok Sabha. Similarly, in the matter of dis-
solving the Lok Sabha, he may have to exercise his own judgment in some situa-
tions.86 In critical constitutional situations, any one of these matters may assume
great importance and the President’s decision may have a profound impact on the
country’s destiny and in spite of the amended Art. 74(1), it cannot be interpreted
so as to take away all discretion from the President to act suitably in difficult
situations. The President continues to have marginal discretion in these matters
although, in normal times, he acts on the advice of the Prime Minister even in
some of these matters.
In Rameshwar Prasad (VI) v. Union of India,87 the Supreme Court relied on
the recommendations of the Sarkaria Commission relating to the discretionary
powers of the Governor when faced with a fractured electoral mandate. Given the
element of subjectivity involved in the Governor’s taking decisions in controver-
sial circumstances, including the appointment of the Chief Minister, or in ascer-
taining the majority, or in dismissal of the Chief Minister or in dissolving the
legislative assembly, the Supreme Court emphasised that it was necessary to en-
sure that the decisions were objective and politically unbiased.
A question has been raised about the relation between the President and the
Council of Ministers which has resigned on losing majority support in the Lok
Sabha, but which remains in office pending alternative arrangements being made.
If the House is dissolved, then such a Ministry may remain in office for a few
months pending fresh elections to the Lok Sabha.88 This happened when Charan
Singh resigned in 1979, or when Chandra Sekhar resigned in 1991, or Gujral re-
signed in 1997. In each of these cases, the Ministry lost majority support in the
Lok Sabha, so it resigned. As no alternative Ministry could be formed, the Lok
Sabha was dissolved89 and fresh elections held. The question is: Is the President
bound to act on the advice of such a Ministry?
Article 74(1) draws no distinction between a Ministry enjoying confidence of
the House and the one which remains in office after losing confidence of the Lok
Sabha. Theoretically, therefore, it can be argued that the President remains bound
by the advice of such a Ministry. But, on the other hand, it may also be argued
that Art. 74(1) is pre-conditioned by Art. 75(2). However, a view has been ex-
pressed that such a Ministry should only act as a care-taker government and take
routine decisions and not policy decisions or make heavy financial commitments
binding the future government.90 This means that the President has to monitor
Cabinet decisions and refuse to accept any policy decision by a care-taker gov-
85. Reference may be made to what happended in Australia in 1975 : see, supra.
86. On dissolution of Lok Sabha, see, Ch. II, supra.
87. (2006) 2 SCC 1 : AIR 2006 SC 980.
88. This arrangement has been validated by the Supreme Court in U.N.R. Rao v. Indira Gandhi,
supra, Sec. A(iii).
89. On dissolution of Lok Sabha, see, supra, Ch. II, Sec. I(c)(d).
90. R. VENKATARAMAN (former President), Relations with the Cabinet, The Hindustan Times,
dated Feb. 24, 98, p. 13; VENKATARAMAN, MY PRESIDENTIAL YEARS, 504.
212 Central Executive [Chap III
91. This episode raises some serious questions having a bearing on the working of parliamentary
form of government in India. One, should a government in office be required to seek a vote
of confidence whenever a doubt arises about its majority support in Lok Sabha? The opposi-
tion parties always have at their disposal the technique of bringing a vote of no-confidence
against the government, especially when the Parliament is in session. Besides, many occa-
sions arise when the government majority can be tested on the floor of the House. Two, should
the opposition parties vote out a government in office when they themselves are not in a posi-
tion to form an alternative government? In the view of the author, the opposition parties owe to
the people that they should behave with a sense of responsibility.
In Britain, a minority government has remained in office when the opposition parties,
though in majority, are not in a position to form government. Why cannot this happen in In-
dia as well?
Syn B] Working of the Executive 213
1. See, Dinesh Chandra v. Chaudhuri Charan Singh, AIR 1980 Del. 114, supra, Sec. A(iii),
where the court has said that the President enjoys discretion in the matter of appointment of
the Prime Minister.
2. The question of the constitutional position of the President has been discussed too often in
India. See, for example, HENRY W. HOLMES JR., Powers of President : Myth or Reality, 12
J.I.L.I. 367 (1970); V.S. DESHPANDE, The President, His Powers and their Exercise, 13
J.I.L.I 326 (1971); HARISH KHARE, The Indian Prime Minister—A Plea for Institutionaliza-
tion of Powers, V JCPS 22 (1971).
3. Some time back, some letters exchanged between President Sanjeeva Reddy and Prime
Minister Indira Gandhi (period 1981) were released. It seems from these letters that the
President did communicate his views on urgent public matters to the Prime Minister and
urged her to take remedial action. Other Presidents have also adopted a similar course. Apart
from personal discussion, Presidents do use the vehicle of letters to communicate their views
to the Prime Ministers. See, CHALAPATI RAO & AUDINARAYANAN REDDY, FROM FARM
HOUSE TO RASHTRAPATI BHAWAN: BIOGRAPHY OF PRESIDENT SANJEEVA REDDY, (1989).
One will gather the same impression after reading the memories of the former President
of India, (1987-1992), R. VENKATARAMAN under the title MY PRESIDENTIAL YEARS, (1994).
4. S.A. DE SMITH, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 99 (III Ed. 1977).
5. On the question of appointment of the Prime Minister, see, supra, Sec. A(iii).
214 Central Executive [Chap III
6. JENNINGS, CABINET GOVT., 173 (1969). Also see, BYRAM CARTER, THE OFFICE OF PRIME
MINISTER; JENNINGS, PARLIAMENT, 73-79 (1970); MACKINOSH, THE BRITISH CABINET, 428-58
(1977).
7. Supra, p. 209.
8. Supra, Sec. A(iii).
9. Ibid.
10. Supra, Ch. II, Sec. (I)(c).
11. S.A. DE SMITH, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 146 et seq; LASKI, PARLIAMENTARY
GOVERNMENT IN ENGLAND, 228; A.H. BROWN, Prime Ministerial Power, 1968 Public Law,
228; O. HOOD PHILLIPS, CONSTITUTIONAL & ADM. LAW, 3-325 (1993).
In Britain, the position of the Prime Minister has been described in various ways. “The
Prime Minister”, said JOHN MORLEY, “is the keystone of the cabinet arch”. JENNINGS de-
scribes him as “the keystone of the Constitution”. IVOR JENNINGS in the CABINET GOV-
ERNMENT states that the Prime Minister is not merely the first among equals, he is not merely
a moon among lesser stars, he is rather “a sun around which planets revolve”.
NEHRU also underlined the primacy of the Prime Minister’s office: THE HINDUSTAN TIMES,
June 17, 1954, p. 5. Again, in a Press Conference on Nov. 7, 1958, he emphasized that the
whole basis of parliamentary system of government is based on a homogeneous Cabinet of
which the keystone is the Prime Minister and that if a Minister could not co-operate with
him, it was difficult for him to carry on—either the Prime Minister goes or he goes,’ and that
it would be rather absurd if Ministers functioned in a way opposed to the Prime Minister;
The Hindustan Times, Nov. 8, 1958, p. 1.
Similarly, the President of the ruling party, the Congress, stated that if after discussions
and consultation, the Ministers do not agree with the Prime Minister, he after assessing the
situation in the light of discussions may finally make it clear to his Ministers, his own view
and those who do not agree with him will have to decide whether they will vote with him or
against him. If they vote against him, then the Prime Minister would be justified in calling
for their resignations; THE HINDUSTAN TIMES, Jan. 19, 1959. p. 12.
Syn B] Working of the Executive 215
(c) CABINET
Cabinet is the nucleus of the Council of Ministers. The Council of Ministers is
usually a large body consisting of a number of Ministers of various ranks, e.g.,
Cabinet Minister, Ministers of State and Deputy Ministers. Within this large
body, there exists a smaller inner body known as the Cabinet which is really the
effective policy-making organ within the Council of Ministers.
Cabinet really is the driving and steering body responsible for the governance
of the country.17 It consists of the principal Ministers with whom rests the real
direction of policy. The Council of Ministers as a whole never meets formally.
In Britain, Cabinet is based on no legal sanction and has no legal status; it is an
organ of government which rests on understandings and conventions. Similar is
the case in India. The Constitution makes reference to the Council of Ministers
but makes no reference to the Cabinet. Cabinet is a conventional, an extra-
constitutional, body but it is the ultimate policy-making and decision-making
organ within the executive.
All members of the Council of Ministers are not members of the Cabinet. Its
composition is flexible. It is for the Prime Minister to determine from time to
time the composition of the Cabinet, though due to the relative importance of
certain departments, their Ministers are invariably its members. The Cabinet
Ministers are members of the Cabinet, while a Minister of State may attend a
Cabinet meeting when matters pertaining to his department are to be discussed.
Cabinet decides major questions of policy. Its decisions are binding on all
Ministers. The various government departments carry out the Cabinet’s policy
decisions by administering the law and devising measures for enactment as law
by Parliament. A Minister may himself dispose of routine matters without refer-
ence to the Cabinet, but in all matters of major policy or of real political impor-
tance, a Minister seeks guidance from the Cabinet.
Cabinet is the central directing instrument of government in legislation as
well as in administration. It coordinates administrative action and sanctions leg-
islative proposals. It is the Cabinet which controls Parliament and governs the
country. The primary function of the Cabinet is to formulate the policies of the
government for the governance of the country, have it accepted by the Legisla-
ture and carry on the executive function of the state as per the Constitution and
the laws.
In no other authority there is such a concentration of power and such a capac-
ity for decisive action as that possessed by the Cabinet, provided always that it
enjoys the support of majority in the House.18 The Cabinet can be said to be the
centre of gravity of the parliamentary system for the whole weight of government
is, in a very real sense, concentrated at that point. However, views have been ex-
pressed recently that the Cabinet government has become transformed into Prime
Ministerial government. This indicates the ascendancy of the Prime Minister at
the expense of the Cabinet.19
17. R.K. Jain v. Union of India, (1993) 4 SCC 119, 147 : AIR 1993 SC 1769; S.R. Bommai v.
Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918.
18. L.S. AMERY, The Nature of British Parliamentary Government, in PARLIAMENT—A SURVEY,
(ed. Lord CAMPION), 59; DAWSON, op, cit., 167-192.
19. WADE AND PHILLIPS, Op. Cit., 242, 246
Syn B] Working of the Executive 217
ter the parliamentary model, is one united whole. It has joint responsibility. Each
member of the government has to support the others so long as he remains in the
government. The Minister has to support his other Ministers and the other Min-
isters have to support each other and the Chief Minister. It is quite absurd for any
Minister to oppose or give even the impression of opposing a colleague of his.
Opinions may be freely expressed within the Cabinet. Outside, the government
should have only one opinion. There is no question of a member of government
being neutral in a controversial issue in which the government is concerned, ex-
cept in the rare cases which we may consider as matters of conscience, where
freedom is given.”23
Collective responsibility envisages that each Minister assumes responsibility
for cabinet decisions and action taken to implement the same. The policies and
programmes of the Cabinet have to be supported by each Minister. Even if there
may be differences of opinion within the Cabinet, once a decision has been taken
by it, it is the duty of every Minister to stand by it and support it both within and
outside the Legislature.
The decisions of the Cabinet are regarded as the decisions of the whole Coun-
cil of Ministers and binding on all Ministers. A Minister cannot disown responsi-
bility for any Cabinet decision so long as he remains a Minister. He cannot both
remain a Minister and criticise or oppose a Cabinet decision or even adopt an
attitude of neutrality, or oppose a colleague in public. A Minister who disagrees
with a Cabinet decision on a policy matter, and is not prepared to support and
defend it, should no longer remain in the Council of Ministers and should better
resign.
There have been a number of resignations in the past because of differences
with the Cabinet. Dr. Mathai resigned as a Finance Minister because he disagreed
with the Cabinet on the question of scope and powers of the Planning Commis-
sion which was proposed to be set up then. C.D. Deshmukh resigned because he
differed from the Cabinet on the issue of re-organisation of States, especially on
the question of Bombay. On September 5, 1967, Foreign Minister Chagla re-
signed because of his differences with the Government’s language policy, espe-
cially the place of English. Several other Ministers have resigned from the Cen-
tral Council of Ministers owing to their differences with the Cabinet.24 There is,
however, a convention that a resigning Minister may, if he so wishes, may state
the nature of his disagreement with the Cabinet in his letter of resignation and
make a resignation speech in Parliament.
The principle of collective responsibility does not mean that every Minister
must take an active part in the formulation of policy, or that he should be present
in the committee room whenever a policy decision is taken. This is not possible
because of the large size of the present-day Council of Ministers. The effective
decision-making body is the Cabinet and not the entire Council of Ministers and,
therefore, the obligations of a Minister may be passive rather than active when
the decision does not relate to matters falling within his own sphere of responsi-
bility.
25. Karnataka v. Union of India, AIR 1978 SC 131. For further discussion on this case, see, infra,
Ch. XIII, Sec. B.
26. 1996 (6 ) SCC 734 : AIR 1997 SC 272.
27. U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002 : (1971) 2 SCC 63; supra, Sec. A(iii).
28. Dattaji Chirandas v. State of Gujarat, AIR 1999 Guj. 48, 59.
29. Common Cause—A Regd. Society v. Union of India, AIR 1999 SC 2979 at 2992 : (1999) 6
SCC 667.
30. WADE AND PHILLIPS, op. cit., 100.
31. DAWSON, op. cit., 185.
220 Central Executive [Chap III
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 reasons for his resignation.
How far can an ex-Cabinet Minister be legally obligated not to reveal Cabinet
discussion? This question has been answered in Britain in Attorney-General v.
Jonathan Cape Ltd.32 Crossman was a Cabinet Minister for nearly six years
(1964-1970). He maintained a detailed diary about the Cabinet proceedings. Af-
ter 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 diaries 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 there-
after by all members of the Cabinet whether they approve of it or not, unless they
feel obliged to resign”.
The Court laid down the proposition that “when a Cabinet Minister receives in-
formation in confidence the improper publication of such information can be re-
strained by the Court”. The Court pointed out that the “Cabinet is at the very centre
of national affairs and must be in possession at all times of information which is
secret or confidential”. To identify the Ministers who voted one way or another in a
Cabinet meeting would undermine the doctrine of joint responsibility”.
The Court, therefore, ruled that “the expression of individual opinions by Cabi-
net Ministers in the course of Cabinet discussion are matters of confidence, the
publication of which can be restrained by the court when this is clearly necessary in
the public interest”. The Court also agreed that “the maintenance of the doctrine of
joint responsibility within the Cabinet is in the public interest, and the application
of that doctrine might be prejudiced by premature disclosure of the views of indi-
vidual Ministers”. But in the instant case, the Court refused to grant injunction be-
cause what was sought to be revealed was ten years old, as the Cabinet discussions
held during the period 1964-1966 were sought to be published in 1975, and there
would be no damage to public interest by the said publication.
As earlier noted, coalition governments have now become the order of the day
in India, especially at the Centre. A number of disparate political parties come
together to form the government as no single party has majority in the House.
Experience has shown that inherently such governments are unstable as any con-
stitutional party forming such a coalition government can withdraw its support
anytime, thus, reducing the government to a minority. Another casualty of such
an arrangement is the principle of collective responsibility, the reason being that
the various parties lack a common programme and a common approach to na-
tional issues and so they speak in different voices. Further, the various parties
constituting the government are more interested in pursuing their own party pro-
gramme rather than a common national agenda. The coalition governments ad-
versely affect the homogeneity and solidarity of the Cabinet.
domestic servants out of the discretionary quote without following any policy or
criteria was held by the Supreme Court to be “wholly arbitrary, mala fide and
unconstitutional.”
MISFEASANCE IN OFFICE
In course of time, a tort of misfeasance in public office has also come into ex-
istence.
The tort has been defined as “malicious abuse of power, deliberate maladmin-
istration and unlawful acts causing injury” to a person. The tort arises when there
is deliberate abuse of power. The tort imposes, liability on a public officer who
does an act which to his knowledge amounts to an abuse of his office and which
causes damages. The element of “bad faith or malice” is the decisive factor in
such a tort.45 In Common Cause I (1996), the Supreme Court held that the Min-
ister for Petroleum had committed the tort of “malfesance in public office” and
imposed on him exemplary damages of Rs. 50 lacs payable to the Central Ex-
change. But, then, in Common Cause II (1999), the Court revised its earlier
judgment and held that the Minister had not committed any such tort. The Min-
ister’s order was held to be simply “unlawful” and so it was quashed.46
(f) MINISTER’S RESPONSIBILITY FOR HIS SUBORDINATES
A Minister’s responsibility extends not only to his own actions but also covers
the actions of his subordinates who work under him.
A Minister cannot attend to every business in his department. Most of the de-
cisions in the department are taken by civil servants at various levels. The func-
tion of the Minister is to lay down broad policies and programmes of his Ministry
while the Council of Ministers settle the major policies and programmes of the
government. A Minister is not expected to burden himself with day to day ad-
ministration.47
An important convention followed in Britain is that a Minister is responsible for
the acts of his subordinate civil servants in his Ministry. By tradition, individual
civil servants are not the target for parliamentary criticism: for their shortcomings
and mistakes the Minister must accept responsibility. For what an unnamed offi-
cial does, or does not do, his Minister alone must answer in Parliament. A Minister
is responsible for his department and is accountable for departmental errors even
though the individual fault is to be found in his subordinates.
Again, the Supreme Court has pointed out that the functions of the government
are carried out in the name of the President by the Prime Minister, Ministers and
Civil Service. “Since the functions of the government are carried on by the Ex-
ecutive in the name of the President on the advice of the Ministers, they alone are
answerable to the Parliament. The Civil Service as such has no constitutional
personality or responsibility separate from the duly constituted government.”48
45. Dunlop v. Woolahara Municipal Council, [1981] 2 WLR 693; Northern Territory v. Mengel,
(1995) 69 Aus LJ 527; Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 :
(1994) 1 SCC 243.
46. For further discussion on this tort, see, JAIN, A TREATISE ON ADM. LAW, II.
47. A. Sanjeevi v. State of Madras, AIR 1970 SC 1102 : (1970) 1 SCC 443.
48. Common Cause, A Regd. Society v. Union of India, AIR 1999 SC 2979 at 2989 : (1999) 6
SCC 667.
Syn B] Working of the Executive 225
This principle has two advantages. First, the official who cannot defend him-
self publicly, is thus protected from attack. Secondly, it prevents the Minister
from trying to evade criticism of his own actions by shifting the responsibility on
to the subordinates. It would be a dangerous constitutional doctrine if a Minister
were to shield himself by blaming the officials for the failure of his policies. No
Minister can absolve himself by passing on the blame to someone else or saying
that what was done had not been authorised by him. This positive liability of a
Minister is essential if Parliament is to perform effectively its role of critic of the
executive. In Britain, the classic case defining ministerial responsibility is the
Crichel Down case in which the Minister of Agriculture resigned because of cer-
tain controversial transactions by his department without his personal knowl-
edge.49
The principle of Minister’s individual responsibility for the acts of his subor-
dinate was reiterated in India rather dramatically in what is known as the Mund-
hra affair. The principal Finance Secretary in the Ministry of Finance negotiated
the purchase of a large number of shares from an individual industrialist for the
Life Insurance Corporation. This transaction was later found to be improper and
against business principles. Dealing with the question whether the Finance Min-
ister was in any way responsible for the acts of his Secretary, Justice Chagla en-
quiring into the transaction observed: “In any case, it is clear that constitutionally
the Minister is responsible for the action taken by his Secretary with regard to
this transaction. It is clear that a Minister must take the responsibility for actions
done by his subordinates. He cannot take shelter behind them, nor can he disown
their actions.”
Further, Justice Chagla observed: “The doctrine of ministerial responsibility
has two facets. The Minister has complete autonomy within his own sphere of
authority. As a necessary corollary, he must take full responsibility for the ac-
tions of his servants. It is true that this may throw a very great burden on the
Minister because it is impossible to expect that in a highly complicated system of
administration which we have evolved the Minister could possibly know, leave
alone give his consent to, every action taken by his subordinates. But it is as-
sumed that once the policy is laid down by the Minister, his subordinates must reflect
that policy and must loyally carry out that policy. If any subordinate fails to do so, he
may be punished or dismissed, but, however vicariously, the responsibility of his
action must be assumed by the Minister”.
In conclusion, Justice Chagla held that in the instant case the Minister must
fully and squarely accept the responsibility for what the Secretary did and “if the
transaction is improper although the Secretary be actually responsible for the
transaction, constitutionally the responsibility is that of the Minister.”50
The convention of a Minister’s responsibility for the acts of his subordinates
was thus established in India. Writing to the Finance Minister, while accepting
his resignation as a sequel, Prime Minister Nehru observed, “Whoever might be
responsible for this ......... according to our conventions, the Minister has to as-
sume responsibility, even though he might have had little knowledge of what
others did and was not directly responsible for any of these steps.”
ment of the electoral college for electing the President; the Vice-President may
be removed from his office by a resolution of the Rajya Sabha agreed to by the
Lok Sabha; the Vice-President is elected by the members of both Houses of Par-
liament. Powers of the Executive to issue ordinances and declare an emergency
are subject to parliamentary control.57
In the modern set up, however, in effect, more than Parliament controlling the
Executive, it is the other way round, viz. the Executive controlling the Parlia-
ment.58 Summoning, prorogation and dissolution of Houses lie in the hands of the
Executive. The Executive also has a veto on legislation enacted by the Houses
and, in financial matters, the executive plays a very important role. Practically,
all legislation is sponsored by the Ministers. The Cabinet is in complete control
of the Houses and virtually monopolises business therein.
The dominant role now played by the Cabinet in parliamentary affairs is the
result of the emergence of party governments. There are well organised and dis-
ciplined political parties which solicit votes. The party securing majority in the
lower House forms the Council of Ministers which consists of practically all the
leading members of the party. The party members follow the lead given by the
party leaders. The party members do not vote against the party Ministry.
Further, defeat of a Ministry in the House often leads to the dissolution of the
Lower House resulting in a general election.59 The power to dissolve the House is
a potent weapon in the hands of the Prime Minister which he wields to control
the House, for the M.Ps. do not want to undergo the ordeal of a general election
until it is absolutely essential. For one thing, it is a very costly proposition to
contest an election; for another, no one can be sure of the result of an election
and it is possible that political power may pass to the opposing political party
which no one likes. A modern election cannot possibly be contested without the
support of a party. Therefore, a member of the majority party supports the gov-
ernment while in Parliament lest he should offend the party leaders and make it
difficult for him to get the party nomination at the time of the next election.
The threat to dissolve results in promoting cohesion and discipline within the
party. Not only this, the Cabinet’s power of dissolution instils responsibility
even in its political opponents who cannot create a crisis on every issue by de-
feating the Ministry, for they know that in that case the Ministry may appeal to
the electorate and seek its verdict. The opposition has thus to select the issue very
carefully to defeat the Ministry, for it should be such on which the risks and haz-
ards of a general election are well worth taking.60
All these circumstances place an enormous amount of power in the hands of
the Cabinet and the Prime Minister. Rarely will a Ministry lose office by an ad-
verse vote so long as it holds its majority in Lok Sabha. The result is that while in
57. For discussion on the power to issue ordinances, see, infra, Sec. D(ii)(d); for emergency
provisions, see, Ch. XIII, infra.
58. LORD HAILSHAM describes the British system as follows: “To a great and greater degree Par-
liament is becoming the House of Commons, the House of Commons is becoming the gov-
ernment majority and the government majority is a rubberstamp for government”.
The Dilemma of Democracy, 107 (1978).
This is also true of India.
59. On dissolution of Lok Sabha, see, supra, Ch. II, Sec. I(c).
60. JENNINGS, PARLIAMENT, 7, 135, 136; KEETON, THE PASSING OF PARLIAMENT, 56-63 (1954);
PARLIAMENT—A SURVEY, 89-120; BOWIE AND FRIEDRICH, STUDIES IN FEDERALISM, 15, 16.
Syn D] Functions and Powers of Executive 229
The Central Executive exercises very broad and varied functions. It exercises
not only ‘executive’ functions but also, in a limited way, judicial and legislative
functions as well.
(i) JUDICIAL FUNCTIONS
The Central Executive appoints the Judges of the Supreme Court61 and the
High Courts.62 Whether a member of a House of Parliament has become subject
to a disqualification or not is decided formally by the President, though, in effect,
by the Election Commission.63
POWER OF PARDON
Article 72 empowers the President to grant pardon, reprieve, respite or remis-
sion of punishment, or to suspend, remit or commute the sentence of any person
convicted of any offence in all cases—
(a) where the punishment or sentence is by a court martial;
(b) where the punishment or sentence is for an offence against a law relating
to a matter to which the Union’s executive power extends; and
(c) of a death sentence.64
This, however, does not affect the power conferred by law on any officer of
the Union armed forces to suspend, remit or commute a sentence passed by a
court martial, as well as the power exercisable by the State Executive to suspend,
remit or commute a death sentence.65
The President acts in this matter on the advice of the Home Minister.
The offences relating to currency and coinage included in Ss. 489-A to 489-D
of the Indian Penal Code are matters exclusively within the legislative compe-
tence of Parliament and the executive power of the Central Executive extends to
these matters.66 Accordingly, the Central, and not the State, Government is the
appropriate Government competent to remit the sentence passed in relation to
such offences.67
The question whether the power of pardon can be exercised when the Court
has sentenced the contemnors to imprisonment or imposed any other penalty has
not yet been decided. It is arguable that since the power of the Courts to punish
for contempt is derived from the Constitution,68 the phrase “offence against any
law relating to a matter to which the Executive power of the Union extends” in
Article 72 (1), would not cover such punishments.69
The scope of the power conferred on the President by Art. 72 is very exten-
sive. It extends to the whole of India. The power to grant pardon may be exer-
cised either before conviction by amnesty to the accused or under-trial prisoner
or after conviction.70
This power is practically similar to that in America or Britain. The American
President has power to grant reprieves and pardons for offences committed
against the United States except in cases of impeachment. In Britain, the Crown
enjoys a prerogative to grant a pardon to any criminal; but the prerogative is ex-
ercised on ministerial advice.
As regards the nature of the power of pardon vested in the President by Article
72, the Supreme Court has propounded the American, rather than the British,
view. In Britain, the power is regarded as the royal prerogative of pardon exer-
cised by the Sovereign. It is regarded as an act of grace issuing from the Sover-
eign. On the other hand, in the U.S.A., a pardon by the President is regarded not
as a private act of grace but as a part of the constitutional scheme.71 The Supreme
Court of India, in Kehar Singh v. Union of India,72 has preferred to adopt the
view propounded by HOLMES, J., in the context of India. PATHAK, CJ, has ob-
served on behalf of a unanimous Court:
“The power to pardon is a part of the constitutional scheme, and we have no
doubt, in our mind, that it should be so treated also in the Indian Republic. It has
been reposed by the people through the Constitution in the Head of the State, and
enjoys high status. It is a constitutional responsibility of great significance, to be
exercised when occasion arises in accordance with the discretion contemplated by
the context.”
The reason for taking this view is, as explained by PATHAK, CJ., earlier in the
judgment that ‘to any civilized society, there can be no attributes more important
than the life and personal liberty of its members’. In most civilised societies, ‘the
deprivation of personal liberty and the threat of the deprivation of life by the ac-
tion of the State’ is regarded seriously, and, therefore, recourse is provided to the
judicial organ for its protection. But there is always remaining the possibility of
‘fallibility of human judgment’ even in ‘the most trained mind’, and it has been
considered appropriate that in the matter of life and personal liberty, ‘the protec-
tion should be extended by entrusting power further to some high authority to
scrutinise the validity of the threatened denial of life or the threatened or contin-
ued denial of personal liberty. The power so entrusted is a power belonging to the
people and reposed in the highest dignitary of the State’.
In Kehar Singh, the fact situation was as follows: Kehar Singh was convicted
under S. 120B read with S. 302, IPC, for the assassination of Indira Gandhi, the
then Prime Minister of India, and was sentenced to death. His appeal to the Su-
preme Court was dismissed. His son then presented a petition before the Presi-
dent of India for grant of pardon to his father under Art. 72. The President re-
jected the petition. Kehar Singh’s request for a personal hearing was rejected by
the President on the ground of not being in conformity with the “well established
practice in respect of consideration of mercy petitions”. In response to a commu-
nication by the counsel on behalf of Kehar Singh, the President stated that “he
cannot go into the merits of a case finally decided by the highest court of the
land”.
Thereafter, Kehar Singh’s son filed a writ petition in the Delhi High Court
seeking an order restraining the Central Government from executing the death
sentence on Kehar Singh. On this petition being dismissed by the High Court, a
special leave appeal under Art. 136 was filed in the Supreme Court. A Bench of
five Judges considered the matter and the judgment of the Court was delivered by
PATHAK, C.J.
The most significant question considered by the Court was : To what areas
does the President’s power to scrutinise evidence extend in exercising his power
to pardon? On this question, again, the Court exhibited the most liberal view. The
Court expressed the view that it is open to the President in the exercise of the
pardon power vested in him by Article 72 ‘to scrutinise the evidence on the rec-
ord of the criminal case and come to a different conclusion from that recorded by
the Court in regard to the guilt of, and sentence imposed on, the accused’. Ex-
plaining the matter, the Court observed:73
“In doing so, the President does not amend or modify or supersede the judi-
cial record. The judicial record remains intact, and undisturbed. The President
acts in a wholly different plane from that in which the Court acted. He acts un-
der a constitutional power, the nature of which is entirely different from the ju-
dicial power and cannot be regarded as an extension of it. And this is so, not-
withstanding that the practical effect of the Presidential act is to remove the
stigma of guilt from the accused or to remit the sentence imposed on him.”
Thus, the Court took the view that in exercising his power of pardon, the
President can go into the merits of the case notwithstanding the fact that it has
been judicially concluded by the court. The President can examine the record of
evidence of the criminal case and determine for himself whether the case is one
deserving the grant of the relief falling within that power. As regards the pleni-
tude of power conferred by Article 72 on the President, the Court observed:74
“... The power under Article 72 is of the widest amplitude, can contemplate
a myriad kinds and categories of cases with facts and situations varying from
case to case, in which the merits and reasons of state may be profoundly as-
sisted by prevailing occasion and passing time. And it is of great significance
that the function itself enjoys high status in the constitutional scheme.”
The Court asserted that ‘the question as to the area of the President’s power
under Article 72 falls squarely within the judicial domain and can be examined
by the court by way of judicial review’. The Court asserted that the function of
determining whether the act of a constitutional or statutory functionary falls
within the constitutional or legislative conferment of power, or is vitiated by self
denial on an erroneous appreciation of the full amplitude of the power, is a matter
for the court. In view of this clarification, the Court ruled in Kehar Singh that the
petition of the petitioner invoking power under Art. 72 “shall be deemed to be
pending before the President to be dealt with and disposed of afresh.” After re-
consideration of the matter in the light of Supreme Court’s observations, Kehar
Singh’s mercy petition was again rejected by the President.
The exercise of this power over time has not been free from controversy. A
number of questions have cropped up before the courts as regards the exercise of
the power of pardon, as for example—
(i) Does the President exercise any personal discretion in the matter or does he
act merely as a constitutional head?
(ii) Should he give a personal hearing to the convicted or his lawyer before
disposing of the matter?
(iii) Is the power to pardon subject to any norms, e.g., Art. 14?75
(iv) Is the exercise of this power subject to any judicial review?
It has now been judicially clarified that though the power to pardon is formally
vested in the President, he exercises this power, as he exercises any other power,
as per Art. 74(1)76, on the advice of the concerned Minister, i.e., the Home Min-
ister. The Supreme Court clarified in Maru Ram v. Union of India77 that it is not
open to the President to take an independent decision or to direct release or refuse
release of any one of his own choice. “It is fundamental to the Westminister sys-
tem that the Cabinet rules and the Queen reigns being too deeply rooted as foun-
dational to our system…..” “The President is an abbreviation for the Central
Government.”
In Kehar Singh, the Supreme Court has denied that there is any right in the
condemned person to insist on an oral hearing before the President on his petition
invoking his powers under Art. 72. The matter lies within the discretion of the Presi-
dent and it is for him to decide how he will deal with the case. The proceeding before
the President is of an executive character78 and when the petitioner files his petition it
is for him to submit with it all the requisite information necessary for the disposal of
the petition.
From time to time, the Supreme Court has considered the question whether
there should be some guidelines for the exercise of power to pardon by the Presi-
dent. In Maru Ram, the Court expressed a view in favour of laying down some
guidelines for the purpose of exercising power under Art. 72 in order to avoid
any allegation of arbitrary exercise of power. The Court observed:
“The proper thing to do, if the Government is to keep faith with the founding
fathers, is to make rules for its own guidance in the exercise of the pardon
power keeping, of course, a large residuary power to meet special situations or
sudden developments. This will exclude the vice of discrimination such as may
arise where two persons have been convicted and sentenced in the same case
for the same degree of guilt but one is released and the other refused, for such
irrelevant reasons as religion, caste, colour or political loyalty.”
The matter again cropped up before the Court in Kuljeet Singh v. Lt. Gover-
nor,79 In a writ petition, it was argued before the Supreme Court that under Art.
72, President’s power is coupled with a duty and that it must be exercised fairly
and reasonably. Has the Government formulated any uniform standard or guide-
lines by which the exercise of the constitutional power under Art. 72 is intended
to be or is in fact governed? The Court said that the question was of far-reaching
importance and that it was necessary that it be examined with care.
But, then, later the Court did not really examine this question and left it open
and dismissed the writ petition on the ground that, in view of the circumstances
in which murder was committed by the accused in the instant case, the only sen-
tence which could possibly be imposed on him was death and there was no rea-
son to interfere with that sentence. In the instant case, the Court opined that in
refusing to commute the death sentence to a lesser sentence, the President did not
in any manner transgress his discretionary power under Art. 72.80 The question,
therefore, of standards and guidelines for the exercise of the power under Art. 72
(as well as Art. 161)81 remained an open one.
But in Kehar Singh, the Court has given a very broad ambit to this power and
has also changed its stance on the question of laying down any guidelines. The
Court has said that “there is sufficient indication in the terms of Art. 72 and in the
history of the power enshrined in that provision as well as existing case-law, and
specific guidelines need not be spelled out.” In fact, the Court has now realised
that it may not be possible to lay down any “precise, clearly defined and suffi-
ciently channelised guidelines” as Art. 72 has very wide amplitude and contem-
plates “a myriad kinds and categories of cases with facts and situations varying
78. The Court has characterized the power to pardon as “executive” for two reasons : (i) There is
no inherent right in the petitioner to claim an oral hearing; (2) the President acts in this mat-
ter on the advice of the concerned Minister. The author has however characterised the power
as ‘Judicial’ because the power does involve interference with the Judicial process.
79. AIR 1981 SC 2239.
80. Kuljeet Singh v. Lt. Governor, AIR 1982 SC 774 : (1982) 1 SCC 417.
81. See, infra, Ch. VII, Sec. C.
234 Central Executive [Chap III
from case to case, in which the merits and reasons of state may be profoundly
assisted by prevailing occasion and passing time.”82
A significant question which has cropped up before the Supreme Court several
times has been whether there can be any judicial review of the exercise of the
power of pardon by the President. The Court considered this question as early as
1976 in G. Krishna Goud v. State of Andhra Pradesh.83 Two persons were sen-
tenced to death for committing murder in implementing their ideology of social
justice through terrorist technology. The President refused to commute the death
sentence. Before the Supreme Court, it was argued on their behalf that their
crime was of a political nature which merited different considerations. Rejecting
the petition, the Supreme Court described the nature of the power as follows:
“Article 72 designedly and benignantly vest in the highest executive the
humane and vast jurisdiction to remit, reprieve, respite, commute and pardon
criminals—on whom judicial sentences may have been imposed. Historically,
it is a sovereign power; politically, it is a residuary power; humanistically, it is
in aid of intangible justice where imponderable factors operate for the well-
being of the community, beyond the blinkered court process.”
But the Court pointed out that all public power—‘all power, however, majestic
the dignitary weilding it, shall be exercised in good faith, with intelligent and
informed care and honestly for the public weal’. In the instant case, the Court had
not been shown any demonstrable reason or glaring ground to consider the re-
fusal of commutation’ as ‘motivated by malignity or degraded by abuse of
power’.
In Maru Ram,84 the Supreme Court insisted that although the power of pardon
is very wide, ‘it cannot run riot’. The Court emphasized that no constitutional
power is to be exercised arbitrarily. Public power vested on a high pedestal has to
be exercised justly. ‘All public power, including constitutional power, shall
never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair
and equal execution are guarantors of the valid play of power’. On this aspect,
the Court stated further:
“Article 14 is an expression of the egalitarian spirit of the Constitution and is
a clear pointer that arbitrariness is anathema under our system. It necessarily
follows that the power to pardon, grant remission and commutation, being of
the greatest moment for the liberty of the citizen, cannot be a law unto itself but
must be informed by the finer canons of constitutionalism.”85
Although considerations for the exercise of power under Art. 72 (and the same
goes for Art. 161)86, may be “myriad and their occasion protean”, and best be left
to the government, yet, if in any case, the power to pardon, commute or remit is
exercised on irrational, irrelevant, discriminatory or mala fide considerations, the
courts could examine the case and intervene if necessary. There may be grounds,
such as, political vendetta or party favouritism which may make the actual exer-
82. Also see, Ashok Kumar v. Union of India, AIR 1991 SC 1792 : (1991) 3 SCC 498. In this
case, the Court has reiterated the Kehar Singh ruling on the question of laying down guide-
lines for exercising power under Art. 72.
83. (1976) 2 SCR 73 : (1976) 1 SCC 157. Also see, Kuljeet Singh v. Lt. Governor, AIR 1982 SC
774 : (1982) 1 SCC 417.
84. AIR 1980 SC 2147 : (1981) 1 SCC 107.
85. For discussion on Art. 14, see, infra, Ch. XXI, Sec. B.
86. Infra, Ch. VII, Sec. C.
Syn D] Functions and Powers of Executive 235
cise of the constitutional power vulnerable. ‘The order which is the product of
extraneous or mala fide factors will vitiate the exercise’ and likewise ‘capricious
criteria will avoid the exercise’. Thus, the power under Article 72 is not to be
exercised on ‘wholly irrelevant, irrational, discriminatory or mala fide’ consid-
erations. ‘Only in these rare cases will the Court examine the exercise.’ The
Court then went on to suggest:
“The proper thing to do, if the Government is to keep faith with the founding
fathers, is to make rules for its own guidance in the exercise of the pardon
power keeping, of course, a large residuary power to meet special situations or
sudden developments. This will exclude the vice of discrimination such as may
arise where two persons have been convicted and sentenced in the same case
for the same degree of guilt but one is released and the other refused, for such
irrelevant reasons as religion, caste, colour or political loyalty.”
But the Court resiled from the above approach in Kehar Singh87 with the fol-
lowing observation :
“It seems to us that there is sufficient indication in the terms of Art. 72 and in
the history of the power enshrined in that provision as well as existing case
law, and specific guidelines need not be spelled out.”
The Court went on to say that it may indeed not be possible to lay down any
“precise, clearly defined and sufficiently channelised guidelines”, for the power
under Art. 72 “is of the widest amplitude”, and it can contemplate “a myriad
kinds of and categories of cases with facts and situations varying from case to
case, in which the merits and reasons of state may be profoundly assisted by pre-
vailing occasion and passing time. And it is of great significance that the function
itself enjoys high status in the constitutional status.”
The Court later explained away the apparent contradiction between Maru Ram
and Kehar Singh in a later case88 by saying that what was said in Maru Ram was
“a mere recommendation and not a ratio decidendi having a binding effect.” In
Satpal v. State of Haryana,89 the Governor’s order granting pardon was set aside
on the ground that the Governor had not been advised properly with all the rele-
vant materials.
In Kehar Singh, the Supreme Court has accepted the proposition laid down in
Maru Ram as regards the exercise of pardon power by the President. The Court
has expressed the view that the order of the President cannot be subjected to judi-
cial review on its merits except within the strict limitations defined by the Court
in Maru Ram. The Court has observed:
“The function of determining whether the act of a constitutional or statutory
functionary falls within the constitutional or legislative conferment of power,
or is vitiated by self-denial on an erroneous appreciation of the full amplitude
of the power is a matter for the court.”
It will thus be noted from Kehar Singh and Maru Ram that while the Supreme
Court has conceded to the President a wide plenitude scope to consider all facets
of the matter to exercise his power, the President’s power is not absolute and
completely beyond judicial purview. Of course, the courts will interfere only if
the power is exercised mala fide or in an arbitrary or discriminatory manner.90
In Epuru Sudhakar v. Govt. of A.P.,91 KAPADIA J.in a concurring judgment, held
that considerations of religion, caste or political loyalty are irrelevant and prohibited.
It was also held that the power of executive clemency is not only for the benefit of
the convict, but while exercising such a power the President or the Governor, as the
case may be, has to keep in mind the effect of the decision on the family of the victim
and society and the precedent it sets for the future.92
The U.S. Supreme Court has justified the existence of the power of clemency
in the executive in Grossman93 in the following words:
“Executive clemency exists to afford relief from undue harshness or evident
mistake in the operation or enforcement of the criminal law. The administra-
tion of justice by the courts is not necessarily always wise or certainly consid-
erate of circumstances which may properly mitigate guilt. To afford a remedy,
it has always been thought essential in popular Governments, as well as in
monarchies, to vest in some authority other than the court, power to ameliorate
or avoid particular judgments…Our Constitution confers this discretion on the
highest office in the nation in confidence that he will not abuse it.”
The Law Commission of India has also justified the existence of the preroga-
tive of mercy in the executive.94 The Commission has observed in this connec-
tion:
“There are many matters which may not have been considered by the courts.
The hands of the court are tied down by the evidence placed before it. A sen-
tence of death passed by a court after consideration of all the materials placed
before it may yet require reconsideration because of: (i) facts not placed before
the court; (ii) facts placed before the court but not in the proper manner; (iii)
facts discovered after the passing of the sentence; (iv) events which have de-
veloped after the passing of the sentence, and (v) other special features. Nor
can one codify and select these special features which would be too numerous
to lend themselves to codification. For these reasons, we do not recommend
any change in the scope of these powers”.
The Supreme Court has ruled in State of Punjab v. Joginder Singh95 that the
power under Art. 72 “is absolute and cannot be fettered by any statutory provi-
sion such as Ss. 432, 433 and 433A of the Criminal Procedure Code. This power
cannot be altered, modified or interfered with in any manner whatsoever by any
statutory provisions or Prison Rules.”. A decision of the President of India on a
petition under Art. 72 is subject to judicial review but on very limited grounds.96
Under Art. 161, a parallel power to grant pardon vests in the State Governors.
There have been cases where the exercise of the power by the Governors has
90. See Bikas Chatterjee v. Union of India, (2004) 7 SCC 634 : (2004) 10 Scale 190.
91. (2006) 8 SCC 161 at 163 : AIR 2006 SC 3385.
92. Ibid at pp. 190-191. For further discussion see under Note Chapter VII (infra).
93. Ex parte, Grossman, 267 US 87 (1925).
94. Report on Capital Punishment, 317-18 (1967).
95. AIR 1990 SC 1396, 1400 : (1990) 2 SCC 661. Also, Ashok Kumar v. Union of India, AIR
1991 SC 1792 : (1991) 3 SCC 498; State Government of NCT of Delhi v. Premraj, (2003) 7
SCC 121: (2003) 8 JT 17.
96. Bikas Chatterjee v. Union of India, (2004) 7 SCC 634 : (2004) 10 Scale 109.
Syn D] Functions and Powers of Executive 237
been quashed by the Supreme Court on the ground of misuse of power by the
concerned Governor.1
(ii) LEGISLATIVE FUNCTIONS
Legislative power of the Central Executive can be discussed under the fol-
lowing heads:
(1) participation of the Executive in the legislative process;
(2) power of rule-making under the Constitution;
(3) power to proclaim an emergency; and (4) power to make ordinances.
(a) PARTICIPATION
The Council of Ministers being an integral part of Parliament participates in-
timately in the legislative process, and discharges several important functions in
relation to Parliament. This concept is underlined by making President a compo-
nent part of Parliament.2
The Executive’s power to convene and prorogue Parliament, to dissolve Lok
Sabha,3 presentation of Bills to Parliament and the requirement of Presidential
assent for transforming a Bill passed by the two Houses into an Act,4 are some of
the indicia which denote the intimate role played by the Executive in relation to
the legislative process.
Because the government enjoys majority support in Lok Sabha, no bill is
passed by the House unless the government supports it. Therefore, a private
members’s bill has no chance of getting through the House without government
support. In practice, government monopolises legislative process in Parliament.
Practically, all bills passed by the House of Parliament are those presented by the
government.
Then, the Central Executive also participates, to some extent, in the legislative
process in the States. Its consent is needed for certain types of State legislation:
in some cases, before a Bill is introduced in the State Legislature, like a Bill im-
posing restrictions on freedom of trade, commerce and intercourse within the
State,5 and in some cases, after a Bill is passed by a State Legislature.6 Thus,
State Bills falling under Art. 288(2) do not become law unless approved by the
Central Executive.7
Besides, as already stated, the President may address any or both Houses of
Parliament,8 and send messages to either House with respect to a Bill pending in
Parliament or otherwise.9
32. Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 248.
33. Ibid, at 588.
34. Ibid, at 644.
35. See, infra, Ch. XLII.
36. State of Rajasthan v. Union of India, AIR 1977 SC 1361 : 1977 (2) SCC 592 : 1978 (1) SCR
1; see, infra, Ch. XIII.
37. See, infra, Ch. XLII.
38. AIR 1982 SC 710 : (1982) 1 SCC 271.
242 Central Executive [Chap III
In these cases, the Supreme Court seems to have gone too far in immunizing
an ordinance from judicial review. In the view of the author, it does not seem to
be correct to treat an ordinance on all fours with an Act passed by Parliament.
While it is one thing to say that a validly made ordinance has the same effect as
an Act of Parliament, the two—an ordinance and an Act—are not the same in all
respects. The essential difference between the two is that while legislation
through Parliament, an elected body, is open and transparent and is subjected to
criticism on the floor of the House and even outside the House, making and
promulgating an ordinance is purely an executive decision, neither transparent
nor open nor subject to any open discussion in any forum.
It is the legislative act of the executive but not the act of the legislature. There-
fore, challenging the executive decision on the ground of mala fides should al-
ways remain a possibility so that the executive is deterred from using its power to
issue an ordinance in an improper manner.
Recently the Constitutional Bench of the Supreme Court44 has disapproved the
view expressed in State of Rajasthan v. Union of India (supra) and reaffirmed the
ratio in Bommai’s case that the subjective satisfaction of a Constitutional author-
ity including the Governor, is not exempt from judicial review. It was said that “
it is open to the Court, in exercise of judicial review, to examine the question
whether the Governor's report (recording his satisfaction) is based upon relevant
material or not; whether it is made bona fide or not; and whether the facts have
been duly verified or not”. No doubt the opinion was expressed in connection
with executive action under Article 356 which was not legislative in character,
nevertheless it indicates an assertion that unless specifically barred every execu-
tive action is subject to judicial review.
The Delhi High Court has observed on this point :45
“It is settled law that it is for the petitioner to make out a prima facie case
that there could not have existed any circumstances whatsoever necessitating
the issuance of ordinances before the Government could be called upon to dis-
close the facts which are within its knowledge. Every casual challenge to the
existence of such circumstances would not be enough to shift the burden of
proof to the Executive to establish those circumstances.”
A single Judge of the Karnataka High Court in Hasanahba46 declared an ordi-
nance promulgated by the State Governor as being mala fide. The learned Judge
maintained that “an ordinance is an emergency or a stop gap measure and the
power is required to be used for purposes of sub-serving conserving and enhanc-
ing the constitutional process and should not be and cannot be used for purposes
of bypassing it.” He also referred to the Bommai case in support of his approach.
But, on appeal, a bench of two judges reversed the single judge’s judgment and
ruled that the power to make an ordinance being legislative in nature, the concept
of mala fides cannot apply thereto.47 The court said that mala fides cannot be at-
tributed to the legislature as a body and the governor acts as the substitute of the
Legislature while making the ordinance. The court said :
44. Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 : AIR 2006 SC 980.
45. Gyanendra Kumar v. Union of India, AIR 1997 Del 58, 61.
46. B.A. Hasanahba v. State of Karnataka, AIR 1998 Kant. 91.
47. State of Karnataka v. B.A. Hasanahba, AIR 1998 Kant 210.
244 Central Executive [Chap III
“The mala fides in making the law or passing the ordinance could not make
such law unconstitutional”.
The Court depended on Nagaraj for support and did not at all refer to Bommai.
This author commends the approach of the single judge mentioned above rather
than the division bench approach which has taken recourse to a mythical argu-
ment in preference to a realistic argument. It is beyond comprehension as to how
can an executive body be treated as a “substitute” for the legislature. This
amounts to taking recourse to a fiction in preference to reality.
An ordinance cannot be promulgated when both Houses of Parliament are in
session. [Art. 123(1)]. Accordingly, an ordinance made when the two Houses are
in session is void. It may, however, be made when only one House is in session,
the reason being that a law can be passed by both Houses and not by one House
alone, and, thus, it cannot meet a situation calling for immediate legislation and
recourse to the ordinance-making power becomes necessary.
The House in session may, however, regard it as a discourteous act on the part
of the government if it promulgates an ordinance without consulting it. What,
therefore, may be done in such a situation is that a Bill embodying the necessary
provisions may be got passed by the House in session and the same may then be
promulgated as an ordinance. The Bill as passed by one House may later be
passed by the other House and the ordinance revoked. This was done in 1957
when the Central Government servants threatened to go on strike. The Lok Sabha
but not the Rajya Sabha was in session. A Bill was passed by the Lok Sabha to
provide for maintaining essential services and the Essential Services Mainte-
nance Ordinance was then issued embodying the provisions thereof.
The executive’s ordinance-making power is not unrestrained. An ordinance
can remain in force only for a short duration and is brought under the parliamen-
tary scrutiny at the earliest possible opportunity. The scheme of Art. 123 is to
place the ordinance-making power subject to the control of Parliament rather
than that of the courts.
The ordinance is to be laid before each House of Parliament when it recon-
venes after the making of the ordinance [Art. 123(2)(a)]. The ordinance shall
cease to operate at the expiry of six weeks from the assembly of Parliament [Art.
123(2)(a)]. When the two Houses of Parliament assemble on different dates, the
period of six weeks is to be reckoned from the later of the two dates.48 It means
that Parliament must pass a law to replace the ordinance within six weeks of its
assembling. Thus, the maximum duration for which an ordinance may last is 7½
months as under Art. 85, six months cannot intervene between two sessions of
Parliament, and the ordinance would cease to operate six weeks after the Parlia-
ment meets.
An ordinance may cease to have effect even earlier than the prescribed six
weeks, if both Houses of Parliament pass resolution disapproving it [Art.
123(2)(a)]. It may be withdrawn by the Executive at any time [Art. 123(2)(b)].
Parliament’s control over the Central Executive’s ordinance-making power is
thus ex post facto, i.e. it is exercised after the ordinance has been promulgated
and not before.
To ensure that the Executive uses the ordinance-making power only when cir-
cumstances are such as admit of no delay, rules of both Houses provide that a
Bill seeking to replace an ordinance should be introduced in the House along
with a statement explaining the circumstances which made immediate legislation
by an ordinance necessary.
If the provisions made through the ordinance are to continue even after the or-
dinance comes to an end, Parliament has to enact a law incorporating the provi-
sions made through the ordinance. Since the government enjoys majority in the
Lok Sabha, there is no difficulty in the House passing the Act. But situation in
Rajya Sabha may be different. If the government does not have majority in that
House, passage of the Act by that House may become a problem.
The normal democratic legislative process involves the people’s representa-
tives in the two Houses openly enacting a law after a full consideration and dis-
cussion. An ordinance seeks to circumvent this process for it is drafted secretly in
government chambers and is promulgated without an open discussion. The ordi-
nance-making power should therefore be invoked not lightly but only when it is
absolutely necessary to do so, and the situation cannot otherwise be met effec-
tively. However, an ordinance partakes of legislative character; it is made in ex-
ercise of legislative power and is subject to the same limitations as an Act passed
by Parliament.49
The Supreme Court has held that the power to make ordinance is not anti-
democratic even though the power is vested in the Executive and not the legisla-
ture. An ordinance is promulgated on the advice of the Council of Ministers
which remains answerable to the Parliament. If the executive misuses or abuses
its power, the House of Parliament may not only disapprove the ordinance but
may also pass a vote of no confidence against the Council of Ministers.50
An ordinance has the same force and effect as an Act of Parliament [Art.
123(2)]. An ordinance comes to an end in the following situations—
(a) Resolutions disapproving the ordinance are passed by both Houses of Par-
liament;
(b) if the ordinance is not replaced by an Act within the stipulated period;
(iii) the executive lets it lapse without bringing it before the Houses of Parlia-
ment;
(iv) if it is withdrawn by the Government at any time.
The power of the President to issue ordinances is co-extensive with the legis-
lative power of Parliament.51 The President’s power to promulgate ordinances is
no higher and no lower than the power of Parliament to make laws.52 An ordi-
nance cannot make a provision which Parliament is not competent to enact [Art.
123(3)]. Conversely, an ordinance can make any provision which Parliament can
enact, except that an appropriation from out of the Consolidated Fund cannot be
made by an ordinance [Art. 114(3)].53 Thus, an ordinance may make provision
with respect to a matter in Lists I and III, but not in List II, except when procla-
of the said Ordinance by enacting the Central Vigilance Commission Act, 2003.
The selection process adopted by the Central Government in appointing the Di-
rector was challenged on the ground that the same was contrary to and inconsis-
tent with the directions of the Court in Vineet Narain’s case (supra). The court
negatived the submission holding that the 1996 Rules being subordinate legisla-
tion ceased to exist as soon as the Ordinance came into force and that the direc-
tions issued by the Court were to operate only till legislation was passed in that
regard.
At times, the government may misuse its ordinance-making power by repeat-
edly reissuing an ordinance over and over again without placing it before the
legislature. This aspect of the ordinance-making power was brought to the notice
of the Supreme Court in Wadhwa, as regards the State of Bihar.62 The Court tren-
chantly criticised this practice characterising it as anti-democratic. The Court in-
sisted that the government cannot by-pass the legsilature and keep ordinances
alive indefinitely without enacting their provisions into Acts of legislature. Wad-
hwa’s case has been taken note of in the discussion on the ordinance-making
power of the State Governments [Art. 213] which is on all fours with the ordi-
nance-making power of the Centre.
In Gyanendra,63 a similar situation was presented to the Delhi High Court
concerning the Central Government. Several ordinances had been reissued over
and over again during the period Oct. 95 to March, 96 without being brought be-
fore Parliament. For example, the Industrial Disputes (Amendment) Ordinance,
was issued on 11/10/95; it was re-issued on 5/1/96 and again on 27/3/96. Ordi-
narily, such a practice would be characterised as unconstitutional within the
Wadhwa ruling, but in the instant case the court desisted from declaring the ordi-
nances invalid accepting the government plea that Parliament had been very busy
with urgent and emergent public business and so it could not find sufficient time
to enact the laws to replace the ordinances. In such a situation, repromulgation of
the ordinance could not be regarded as unconstitutional or illegal. In fact, in
Wadhwa, the Supreme Court has itself recognised such a contingency.64
The ordinance comes into effect as soon as it is promulgated. If later the ordi-
nance comes to an end for any reason, the ordinance does not become void ab
initio. It was valid when promulgated and whatever transactions have been com-
pleted under the ordinance cannot be reopened when the ordinance comes to an
end.
In Venkata Reddy,65 in 1984, the State Government promulgated an ordinance
abolishing posts of part-time village officers in the State. The ordinance was not
replaced by an Act of the Legislature though it was succeeded by 4 ordinances. It
was argued that the ordinance having lapsed as the Legislature did not pass an
Act in its place, the posts which had been abolished should be deemed to have
been revived and the issue of successive ordinances, the subsequent one replac-
ing the earlier one did not serve any purpose. The Supreme Court rejected the
argument. The Court argued that an ordinance comes into effect as soon as it is
promulgated. If later the ordinance comes to an end for any reason, the ordinance
does not become void ab initio. It is valid when promulgated and whatever trans-
action has been completed under the ordinance cannot be reopened when the ordi-
nance comes to an end. Art. 123 or 213 does not say that the ordinance shall be
void from the commencement on the Parliament/State Legislature disapproving it.
It says that it shall cease to operate. It only means that the ordinance should be
treated as being effective till it ceases to operate.
The ordinance in question in the instant case abolished the posts of part-time
village officers. Therefore, because of the ordinance, all posts of part-time village
officers stood abolished and these officers ceased to be employees of the State
Government. This was an accomplished matter. Therefore, even if the ordinance
ceased to operate later, what had been accomplished became irreversible. The
abolition of the posts having become completed events, “these is no questions of
their revival.”
Elections were held for the Cuttack Municipality and 27 councillors were de-
clared elected. A defeated candidate challenged these elections and the High
Court voided them on the ground that the electoral roll had not been prepared
according to law. Apprehending that on this ground, elections to municipalities
other than those of the Cuttack Municipality, might also be declared void, the
State Government promulgated an ordinance validating the electoral rolls, and all
elections held on the basis of these rolls were declared to be valid “notwith-
standing any judgment to the contrary.” Later, the ordinance lapsed and no Act
was enacted to replace it.
Thereafter, a writ petition was filed questioning the elections. It was argued
that the ordinance being temporary in nature, the invalidity in the elections stood
revived as soon as the ordinance lapsed. But the Supreme Court rejected the ar-
gument in Orissa v. Bhupendra Kumar Bose.66 The Court ruled that the valida-
tion of the elections was not intended to be temporary in nature and the same did
not come to an end as soon as the ordinance expired. Having regard to the object
of the ordinance, and to the rights created by its provisions, “it would be difficult
to accept the contention that as soon as the ordinance expired, the validity of the
elections came to an end and their invalidity was revived.”
An ordinance was promulgated by the President in 1996 declaring a section of
the population of Assam as Scheduled Tribes. The same ordinance was repeated
several times and ultimately it lapsed without Parliament passing an analogous Act.
The High Court of Gauhati ruled in Maitreyee Mahanta v. State of Assam67 that as
Parliament did not pass the necessary law, the ordinance would lapse and, accord-
ingly, the rights vested in the communities by the ordinance would also lapse.
A few provisions in the Constitution confer on the President, i.e., the Central
Executive, some specific executive powers, such as inter alia:
(i) the power to appoint various high officials like the Attorney-General [Art.
76(1)]69, Comptroller and Auditor-General [Art. 148(1)],70 a State Governor [Art.
155],71 Members of the Union Public Service Commission [Arts. 315-323],72
Election Commissioners [Art. 324(2)],73 etc.; The Constitutional scheme, is that
when a Constitutional post is required to be filled up by a person having the
qualification specified therefor, he alone would perform the duties and functions,
be it Constitutional or statutory, attached to the said office. The Constitution does
not envisage that such functions be performed by more than one person. The of-
fice of the Advocate General is a public office. He not only has a right to address
the Houses of Legislature under Art. 177 but also is required to perform other
statutory functions in terms of Section 302 of Cr. P.C.
The question of interpretation of a Constitution would arise only in the event
the expressions contained therein are vague, indefinite and ambiguous as well as
capable of being given more than one meaning. If by applying the golden rule of
literal interpretation, no difficulty arises in giving effect to the constitutional
scheme, the question of application of the principles of interpretation of a statute
would not arise. Thus the state in exercise of its jurisdiction under Article 162 is
competent to appoint a lawyer of its choice and designate him in such manner as
it may deem fit and proper. Once it is held that such persons who are although
designated as Additional Advocates General are not authorised to perform any
constitutional or statutory functions, indisputably, such appointments must be
held to have been made by the State in exercise of its executive power and not in
exercise of its constitutional power.74
(ii) the power to appoint Commissions, like Inter-State Council [Art. 263],75
Finance Commission [Art. 280],76 Commission for Scheduled Tribes [Art.
339(1)];77, and Backward Classes [Art. 340(1)];78 Official Language Commission
[Art. 344(1)];79
(iii) power to enter into contracts on behalf of the Indian Union [Art. 299];80
(iv) power to issue directions to the States in certain circumstances.81
Besides the above, Art. 53 confers executive power on the President in a gen-
eral way. Thus, under Art. 53, the Central Executive has a large unspecified res-
ervoir of powers and functions to discharge. The Constitution makes no attempt
to define ‘executive power’, or to enumerate exhaustively the functions to be ex-
ercised by the Executive, or to lay down any test to suggest as to which activity
or function would legitimately fall within the scope of the executive power. The
truth is that the executive power of a modern state is not capable of any precise
or exhaustive definition.
The government in exercise of its executive power is charged with the duty
and the responsibility of carrying on the general administration of the state. The
scope of the executive power may be said to be residual, that is to say, any func-
tion not assigned to Parliament or the Judiciary may be performed by the Execu-
tive82, or governmental functions that remain after the legislative and judicial
functions are taken away.83
The Supreme Court has observed in Madhav Rao : “The functions of the state
are classified as legislative, judicial and executive; the executive function is the
residue which does not fall within the other two functions.”84 To the same effect
is the following observation of MUKHERJEA, C.J., in Ram Jawaya:85
“It may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes the resi-
due of governmental functions that remain after legislature and judicial func-
tions are taken away.”
A primary function of the Executive is to administer and execute the laws en-
acted by Parliament and maintain law and order. But executive function is not
limited only to this. A modern state does not confine itself to a mere collection of
taxes, maintaining law and order and defending the country from external aggres-
sion. It engages in multifarious activities. The Executive operates over a very
large area and discharges varied and complex functions.
In a parliamentary type government, the Council of Ministers enjoys a major-
ity support in the Legislature, and even controls the same to a large extent. It di-
rects foreign policy; it enters into treaties with foreign countries;86 it carries on
and supervises general administration; promotes socio-economic welfare of the
people. It formulates and executes policies, and changes policies from time to
time to suit changing circumstances;87 it initiates legislation. In such a context,
the Executive is not confined to discharging only those functions which have
been specifically conferred on it by the Legislature or the Constitution.
Nor can it be said that before the Executive can act there ought to be a law to
back it and that it cannot do anything except administering the law. So long as
the Executive enjoys the majority support in the Legislature, it can go on dis-
charging its policies and no objection can be taken on the ground that a particular
policy has not been sanctioned by legislation. This, however, is subject to some
limitations, e.g., the Executive cannot ignore a constitutional prohibition or pro-
vision.88 Executive power must be exercised in accordance with the Constitu-
tion.89 Thus, it cannot spend money from the Consolidated Fund without an Ap-
82. Jayantilal Amarathlal v. F.N. Rana, AIR 1964 SC 648 : (1964) 5 SCR 294.
83. Chandrika Jha v. State of Bihar, AIR 1984 SC 322 : (1984) 2 SCC 41.
84. Madhav Rao Scindia v. Union of India, AIR 1971 SC 530, 565 : (1971) 1 SCC 85.
85. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225.
86. Maganbhai v. Union of India, AIR 1969 SC 783 : (1970) 3 SCC 400; Satwant Singh v. Asstt.
Passport Officer, AIR 1967 SC 1836 : (1967) 3 SCR 525.
87. A.S. Sangwan v. Union of India, AIR 1981 SC 1545 : 1980 Supp SCC 559.
88. Wazir Chand v. State of Himachal Pradesh, AIR 1954 SC 415 : (1955) 1 SCR 408.
89. U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002 : (1971) 2 SCC 63.
Syn D] Functions and Powers of Executive 251
propriation Act,90 or impose a tax without law: it cannot encroach upon the
sphere assigned to any other instrumentality like Parliament or the Judiciary.91
The Executive cannot act against a statute or exceed its statutory powers;92 if
there exists a law on a particular matter, the Executive must act in accordance
with it.93 Also, the Executive cannot infringe the rights of private individuals
without legal sanction. Where rights of a private person are affected prejudi-
cially, executive action could be taken only if supported by law. Thus, a restric-
tion requiring a person to reside in a specified place cannot be imposed merely by
an executive order without the backing of the law.94
The State of Uttar Pradesh amended Section 24 of the Code of Criminal Pro-
cedure so that the State was not required to consult the High Court before ap-
pointing a Public Prosecutor for the High Court. The amendment was made on
the ground that similar provisions exist in the Legal Remembrancer Manual. The
Supreme Court held that the Legal Remembrancer Manual is merely a compila-
tion of executive orders and is not a 'law' within the meaning of Article 13 of the
Constitution of India and that “a law cannot be substituted by executive instruc-
tions which may be subjected to administrative vagaries”.95
If to pursue a policy, the Executive needs some additional powers over what it
already possesses generally under the prevailing law or the Constitution, then a
specific law will be needed for the purpose. But, apart from such matters, it can-
not be said that in order to undertake any function, such as, entering into any
trade or business, the Executive must obtain prior legislative sanction.
This question regarding the scope of the executive power has been elaborately
discussed by the Supreme Court in Ram Jawaya v. State of Punjab.96 The recog-
nised schools in Punjab used only such text books as were prescribed by the Edu-
cation Department. In 1950, the Government embarked on the policy of nation-
alising text books and, thus, took over the work of printing and publishing them.
The author of the book selected by the Government for the purpose by contract
vested the copyright of the book in the Government in lieu of royalty. The
scheme was challenged on the ground, inter alia, that the Executive could not
engage in any trade or business activity without any law being passed for the
purpose.
The Supreme Court negatived the contention saying that the expenses neces-
sary to carry on the business of publishing text books had been approved by the
Legislature in the Appropriation Act. The Government required no additional
power to carry on the business as whatever was necessary for that purpose, it
could secure by entering into contracts with authors and other people. No private
right was being infringed as the publishers were not being debarred from pub-
lishing books. In the circumstances, the carrying on of the business of publishing
text books without a specific law sanctioning the same was not beyond the com-
petence of the Executive.1
Following Ram Jawaya, the Supreme Court has held that the government can
prescribe text books for schools in the exercise of its executive power so long as
it does not infringe the rights of any one.2
In a number of cases, courts have reiterated the principle that the Executive
can engage in several activities in exercise of its executive powers without any
prior legislation. In fact, the Executive is competent to represent the State in all
matters international and may by agreement, convention or treaties incur obliga-
tions which in international law are binding on the State. But the obligations are
not by their own force binding upon Indian nationals. In 1969, the Supreme
Court, in keeping with the classical dualist view, said “[I]n India the making of a
law by Parliament is necessary when the treaty or agreement operates to restrict
the rights of citizens or modifies the laws of the State.”3
That the Government can engage in trading activities, is made clear by Article
298.4 By virtue of Art. 298, the executive power also includes—(a) the carrying
on of trading opera-tions; (b) the acquisition, holding and disposing of property;
and (c) the making of contracts for any purpose.5
The Government can make appointments under its executive power without
there being a law or rule for that purpose.6 However, if rules have been made un-
der Art. 309, then the government can make appointments only in accordance
with the rules. Having made the rules, the executive cannot then fall back upon
its general executive power under Art. 73.7
The Government can also issue administrative directions to regulate promo-
tions to selection grades.8 The Government cannot amend or supersede statutory
rules, if any, by administrative instructions, but if the rules are silent on any par-
ticular point, the Government can fill up the gaps and supplement the rules and
issue instructions not inconsistent with the rules already framed.9 “The executive
power could be exercised only to fill in the gaps but the instructions cannot and
should not supplant the law but would only supplement the law.”
In Union of India v. Naveen Jindal10 the prohibition to fly the National flag
under the Flag Code was held to be unconstitutional on two grounds. First, the
field was already occupied by The Emblems and Names (Prevention of Improper
1. Also see, Sarkari Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, AIR 1981 SC 2030 :
(1981) 4 SCC 471; Bishambar v. State of Uttar Pradesh, AIR 1982 SC 33 : (1982) 1 SCC
39.
2. Naraindas Indurkhya v. State of Madhya Pradesh, AIR 1974 SC 1232 : (1974) 2 SCC 788.
3. Maganbhai v. Union of India, (1970) 3 SCC 400 : AIR 1969 SC 783. See also Union of In-
dia v. Azadi Bachao Andolan, (2004) 10 SCC 1, 23 : AIR 2004 SC 1107.
4. Infra, Ch. XII, Sec. C. Also see, Jayantilal v. Rana, AIR 1964 SC 648 : (1964) 5 SCR 294.
5. See, infra, Ch. XXXIX, Sec. C.
6. B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 : (1966) 3 SCR 682. Also see, infra,
Ch. XXXIV.
7. J.K. Public Service Commission v. Narinder Mohan, AIR 1994 SC 1808 : (1994) 2 SCC 630.
8. Sant Ram v. State of Rajasthan, AIR 1967 SC 1910 : (1968) 1 SCR 111.
9. Fernandez, G.J. v. State of Mysore, AIR 1967 SC 1753 : (1967) 3 SCR 636.
Also see, infra, under Mandamus, Ch. VIII, Sec. E and Ch. XXXVI, Sec. B.
For a detailed discussion on directions, see, JAIN & JAIN, Principles of Administrative
Law, Ch. III.
10. (2004) 2 SCC 510 : AIR 2004 SC 1559.
Syn E] Rules of Business 253
Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971and
could not be supplanted by the Flag Code which only contains the executive in-
structions of the Central Government and second, the right to fly the National
flag was a fundamental right under Article 19(1)(a); the Flag Code is not a law
within the meaning of Article 13(3)(a) of the Constitution of India for the pur-
pose of Clause (2) of Article 19 and as such could not restrictively regulate the
free exercise of the right of flying the National Flag.
Thus, it is not always necessary to have a law before the Executive can func-
tion nor are its powers limited merely to the carrying out of the laws. However,
once a law is passed to cover any area of the activities of the Executive, the ex-
ecutive power can then be exercised only in accordance with such a law insofar
as it goes.
Article 73 defines the extent of the executive power of the Centre. “Subject to
the provisions of the constitution”, the executive power of the Centre extends
to—
(i) the matters with respect to which Parliament has power to make laws;
(ii) the exercise of such rights, authority and jurisdiction as are exercisable
by the Government of India by virtue of any treaty or agreement.
The principle underlying (i) above is that executive power is co-extensive with
legislative power. So, the extent of the executive power of the Centre is co-
extensive with Parliament’s legislative power. But in the concurrent area, where
both Parliament as well as the State Legislatures can make laws, Centre’s execu-
tive power extends to this area only when either the Constitution or a law made
by Parliament expressly provides for.11 The expression “agreement’ in the second
clause of Article 73 has been held as referable to Article 299.12
It may not be out of place to mention here that to-day, by law, multifarious
functions of all types—administrative, quasi-judicial, legislative—are being con-
ferred on the executive-administrative organs, and such is the plethora of func-
tions exercised by these organs that a whole branch of law, known as the Ad-
ministrative Law, has now come into existence. The primary purpose of this
newly developing jurisprudence is to study the functions of the Executive, the
manner in which, and subject to what controls, are these exercised, and what
safeguards are available to those whose rights may be infringed by administrative
action.13
E. RULES OF BUSINESS
RulesE of Business
Syn
11. The matter has been discussed further in Ch. XII, infra.
12. Sharma Transport v. Govt. of A.P., (2002) 2 SCC 188 : AIR 2002 SC 322.
13. M.P. JAIN, A TREATISE ON ADMINISTRATIVE LAW; M.P. JAIN, CASES AND MATERIALS ON INDIAN
ADMINISTRATIVE LAW.
254 Central Executive [Chap III
14. Sanjeevi v. State of Madras, AIR 1970 SC 1102, 1106 : (1970) 1 SCC 443.
15. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225; Samsher
Singh v. State of Punjab, AIR 1974 SC 2192 : (1974) 2 SCC 831; G.D. Zalani v. Union of
India, AIR 1995 SC 1178, 1189 : 1995 Supp (2) SCC 512; Common Cause, A Regd. Society
v. Union of India, AIR 1999 SC 2979, 2990 : (1999) 6 SCC 667.
16. Common Cause, ibid., at 2991.
Syn F] Indian v. U.S. Forms of Government 255
When a minister puts his signature with the endorsement file returned, such
signature meant his approval.17
When a decision is taken by such an authorised officer, it becomes the deci-
sion of the government. The validity of any such decision taken cannot be chal-
lenged on the ground that it is not the decision of the Minister. As the Supreme
Court has emphasized in Sanjeevi:18 “When those officials discharge the func-
tions allotted to them, they are doing so as limbs of the Government and not as
persons to whom the power of the Government had been delegated”. Similarly, in
Samsher,19 the Court has stated that the decision of any Minister or officer under the
rules of business made under Art. 77(3) is the decision of the President for these rules
do not provide for any delegation.
These rules have statutory force and are binding. Therefore, sanction for
prosecution of an employee of the Central Government under the Prevention of
Corruption Act was held not valid when it was granted by a Ministry other then
the one authorised to do so under the Rules of Business.20
Under the Rules of Business of the Maharashtra Government, both the Home
Secretary and the Home Minister can deal with a matter of preventive detention.
The order of detention was made by the Secretary, but the representation of the
detenu was considered and rejected by the Home Minister. There was nothing
wrong in this as both the Secretary and the Minister could act on behalf of the
State Government.21
The Supreme Court has ruled in State of Haryana v. P.C. Wadhwa22 that the
Business Rules cannot override a provision made by an Act or by any statutory
rule.23
The functionary at the head of the Indian Union, like that of the U.S.A., is
called the President, but India’s form of government is very different from that of
the U.S.A. India has parliamentary, and not presidential, form of government.
India’s form of government differs substantially from that of America. Beyond
the identity of names between the Indian and the American Presidents, there is
not much in common between them.
The position of the President of India is more akin to the British monarch
rather than the American President. He is the head of the state and only a formal,
not an effective, head of the Executive. The effective repository of the executive
power is the Council of Ministers. On the other hand, the U.S. President is both
17. Tafcon Projects (I) (P) Ltd. v. Union of India, (2004) 13 SCC 788 : AIR 2004 SC 949.
18. Sanjeevi, supra, footnote 14, at 1107.
19. Samsher v. State of Punjab, AIR 1974 SC 2194, 2198, 2202 : (1974) 2 SCC 831.
20. State of Rajasthan v. A.K. Datta, AIR 1981 SC 20.
21. Raverdy Marc Germain Jules v. State of Maharashtra, AIR 1982 SC 311 : (1982) 3 SCC 135.
Also, Smt. Masuma v. State of Maharashtra, AIR 1981 SC 1753 : (1981) 3 SCC 566; Kavita v.
State of Maharashtra, AIR 1981 SC 1641 : (1981) 3 SCC 558; Sanwal Ram v. Addl. District
Magistrate; AIR 1982 Raj 139 : (1987) 2 SCC 602; R.J. Singh v. Delhi, AIR 1971 SC 1552 :
(1970) 3 SCC 451; infra, Chs. VII and XXVII.
22. AIR 1987 SC 1201 : (1987) 2 SCC 602. See also Union of India v. Naveen Jindal, 2004 (2)
SCC 510 : AIR 2004 SC 1559.
23. For further discussion on the Rules of Business, see, infra, Ch. VII, Sec. B.
256 Central Executive [Chap III
the head of the state as well as the effective head of the Executive. The system is
known as the presidential form of government because the President is the chief
executive. The administration of the country is vested in him.
The U.S. Constitution makes the President responsible for ensuring that the
laws of the country are faithfully executed. He alone is vested with the power to
appoint and remove executive officers and, thus, can effectively control the gov-
ernment departments.
The President has under him Secretaries of State in charge of different executive
departments who are appointed by him and who are his personal advisers. He is not
bound to accept the advice tendered by them; he enjoys ultimate power of decision
and therefore, has complete political responsibility for all executive action. The
President dominates the Cabinet completely as the Secretaries of State hold their
offices entirely at his pleasure and are accountable to him. They are merely the in-
struments through whom the President’s policy is carried out. As has been aptly
said, “The cabinet is not a device for sharing responsibility among a group; it is a
necessary result of the President’s inability to supervise all affairs directly.”24
The Indian President, on the other hand, acts generally on the advice of the
Ministers. The U.S. President is free to dismiss any of his Secretaries as and
when he likes. The President of India has a formal power to that effect but exer-
cises it on the advice of the Prime Minister, or when the Cabinet has forfeited the
confidence of the Lok Sabha. The Secretaries of State in the U.S.A., on the other
hand, are neither responsible to Congress, nor are its members, nor do they func-
tion on the basis of collective responsibility. This is very different from the un-
derlying principles on which the Executive functions in India.
The truth of the matter is that America hardly has a Cabinet corresponding to the
classic idea of a Cabinet in the parliamentary form of government. “Because of his
unfettered power of removal over them and the fact that his tenure of office is not in
any way dependent upon the effect which his dismissal of the Cabinet members may
have upon the Congress, the President is able to dominate his Cabinet to an extent
which would be almost impossible in the case of a Prime Minister.”25
The presidential form of government is based on the principle of Separation of
Powers between the executive and the legislative organs. The doctrine of Separa-
tion of Powers, ascribed to Montesquieu, a Frenchman, exercised a potent influ-
ence on the public mind in the 18th century when the American Constitution was
drafted. It envisaged that the legislative, executive and judicial functions in a
state ought to be kept separate and distinct from each other. There ought to be
separate organs for each, working together, but none of them should be depend-
ent on, and discharge the function belonging to, the other, as for example, the
Executive should have no legislative or judicial power.26
The thesis underlying the doctrine is that the merger of all powers in one body
will lead to autocracy and negation of individual liberty. Basing itself on this
doctrine, the American Constitution vests the executive power in the President
who is elected for a fixed term of four years; legislative power is vested in the
Congress, and the judicial power is vested in a system of courts with the Supreme
Court at the apex.
An implication of the doctrine of Separation is that each of the three branches
of government ought to be composed of different persons. Neither the President
nor any of his Secretaries of State can be a member of the Congress. A member
of the Congress can join the government only after resigning his membership
therein.
While basically the U.S. Constitution is designed on the basis of the principle
of Separation of Powers, the framers of the U.S. Constitution also introduced, to
some extent, the principle of checks and balances. The framers adopted both
these strategies with a view to ensure a weak government so that the government
may not act in an arbitrary manner. The doctrine of Separation weakens the gov-
ernment by dividing its powers, for a divided government is intrinsically weaker
than a government having all powers concentrated therein.
The principle of checks and balances further limits government power. The
underlying idea is that if one organ of government is left free to exercise the
power assigned to it without any control, it may run amok with its power and act
arbitrarily in exercising its assigned power. For example, if the Congress is left
free to make any law it likes, it may make harsh or unjust laws. Therefore, the
doctrine of checks and balances envisages that one organ of government be con-
trolled, to some extent, by the other two organs. For example, the President may
veto a bill passed by the two Houses of Congress and, thus, the President controls
the Congress so that it may not pass arbitrary or discriminatory legislation. But
President’s veto may be overridden by the two Houses passing the bill in ques-
tion again by a 2/3 vote in each House. Also, the Supreme Court has power to
declare an Act passed by the Congress as unconstitutional, but the Judges of the
Supreme Court are appointed by the President with the consent of the Senate.
The Congress through its committees continuously probes into the functioning
of the government departments. Similarly, the Secretaries of State are appointed
by the President with the consent of the Senate. In the U.S.A., the Executive and
Legislative organs are kept separate from each other.27
The parliamentary system, on the other hand, is based on an intimate contact, a
close liaison, or co-ordination, between the Executive and the Legislative wings.
India recognises no doctrine of Separation between them. As the Supreme Court
has stated, there may be in India a differentiation and demarcation of functions
between the Legislature and the Executive, and, generally speaking, the Consti-
tution does not contemplate that one organ should assume the functions belong-
ing essentially to the other organ, yet, nevertheless, there is no separation be-
tween them in its absolute rigidity.28
27. Also see, Delegation of Legislative Powers, supra, Ch. II, Sec. N.
28. Ram Jawaya v. State of Punjab, supra, footnote 15. Also see, In re, Delhi Laws Act, 1912,
AIR 1951 SC 332 : 1951 SCR 747; supra, Ch. II, Sec. N.
258 Central Executive [Chap III
Executive is assessed by the electorate once in four years when election is held
for the Presidential office. In India, on the other hand, the responsibility of the
Executive is assessed daily by the Legislature through resolutions, questions, de-
bates, etc., and periodically by the electorate through general elections.
Though the Executive in the U.S.A. is constitutionally not directly accountable
to the Legislature, yet it will be wrong to suppose that the Legislature has abso-
lutely no control over the Executive. The Congress can bring indirect pressure
over the Executive through its powers to levy taxes, make appropriations for
government expenses, enact legislation, investigate executive work and policies
through its committees and the Senate’s power to confirm treaties and appoint-
ments. On the other hand, the President also is not completely powerless in rela-
tion to Congress. Though he cannot dissolve the Congress yet he does exercise
some influence over it through his power to send messages and veto legislation;
the efficacy of his veto, however, is limited as it can be overridden by the vote of
2/3rd members in each House of Congress. On the whole, therefore, legislative
control over the Executive and vice versa is much weaker in the U.S.A. than it is
in India where the Legislature and the Executive can dissolve each other.
The executive-legislative relation is one of co-ordination in a parliamentary
government.31 All Ministers are members of Parliament and this creates an inti-
mate relationship between the two organs. The Executive is in a strong position
to carry the Legislature along with it in its programmes and policies. The execu-
tive-legislative conflict or deadlock is resolved soon, for in that case either the
Cabinet must resign, or, the House be dissolved and fresh elections held. By its
power to dissolve the lower House and submit the issue to the electorate, the Ex-
ecutive exercises a substantial check on frivolous disagreements amongst its own
party members as well as those in the opposition. This power is an essential
counter-weight to the power of the Legislature to force the resignation of the
Cabinet. The Ministers effectively influence the deliberations of the Legislature;
in fact, the Cabinet acts as an effective leader of the Legislature.
The position in the U.S.A. is entirely different where due to the doctrine of
Separation of Powers,32 formal means of co-ordination between the Executive
and the Legislature are lacking. No member of the Executive participates imme-
diately in the legislative process in the Congress. Party discipline in Congress is
loose and members enjoy considerable freedom to oppose or support any pro-
posal even though it may be a part of the President’s programme. President’s
leadership of the Congress is much looser than that of the Prime Minister in a
parliamentary system mainly because the President has no power to dissolve the
Congress or to participate in legislative deliberations. He rarely has at his disposal
the almost automatic legislative majority which is available to the government in a
parliamentary system. He does not have the means available to the Prime Minister to
enforce disciplined voting along party lines.
The President, unlike the Prime Minister, cannot directly ensure that the
measures which he desires will be enacted by the Congress. This may happen
even when the President and the majority in the Congress belong to the same po-
litical party. But lack of co-ordination between the Executive and the Legislature
in the U.S.A. may be heightened if the President and the majority in the Houses
31. BROGAN in PARLIAMENT—A SURVEY, (ed. Campion) 74-75; SCHWARTZ, op. cit., 98.
32. See, supra, pp. 256-257 for discussion on this doctrine.
260 Central Executive [Chap III
belong to different political parties as happens quite often. Sometimes the impasse
between the President and the Congress can be resolved only when fresh elections
are held in due course of time.33
In the Constituent Assembly some members advocated presidential form of
government for India. Their hypothesis was that the presidential form of govern-
ment leads to a strong and stable government while a parliamentary government
constitutes a weak, unstable and vaccilating government, the reason being that
the Ministers depend on their party members for support. Ultimately, however,
the choice was made in favour of the parliamentary form, mainly because Indians
were somewhat familiar with the system as in some form or other, such a system
had been in operation in the country during the pre-Constitution era.
Further, as Ambedkar emphasized, in combining stability with responsibility,
the Constitution-makers preferred the system of daily assessment of responsibil-
ity to the other system of periodic assessment. They also wanted to avoid the
Legislative-Executive conflicts and friction such as arise in the presidential sys-
tem. The framers of the Constitution thought that an infant democracy could not
afford to take the “risk of a perpetual cleavage, feud or conflict or threatened
conflict” between the Executive or Legislative organs. They preferred a system
where the Executive being a part of the Legislature is in a position to give guid-
ance to it and where both co-operate with each other. There is ‘confusion of re-
sponsibility’ and ‘not necessarily a clear direction of policy’34 in the U.S.A., but
this is not so in a parliamentary system.35
Should India adopt the Presidential system instead of the present-day Parlia-
mentary system? This question has been debated from time to time. India is pres-
ently undergoing a phase of coalition governments at the Centre because no sin-
gle party has a majority in the Lok Sabha, and a number of disparate parties have
to come together to form a coalition to form the Cabinet.
With the advent of the phase of coalition governments, the trend of govern-
mental instability has set in. A coalition government is intrinisically unstable be-
cause of contradictory policies of the parties coming together to form the coali-
tion. During 1995-1998, three governments fell at the Centre. The parties do not
have a common outlook and it becomes a herculean task for the Prime Minister
to arrive at a consensus on any point. Frequent elections to Lok Sabha are also
not possible in the context of India with its huge population. In this context, it has
been suggested that India should opt for the presidential system.
It is indeed a very difficult choice as both systems have their advantages and
disadvantages. A liberal and democratic presidential system (such as prevails in
the U.S.A.) has the advantage of enabling the President to appoint experts as his
Ministers; he can select persons of competence and integrity as his Ministers
without political considerations for he will not be bound to appoint only members
of Parliament as Ministers as happens in the parliamentary system. The Prime
Minister has an extremely limited choice in the matter of appointing Ministers as
33. ALLEN, LAW AND ORDERS, 19; BERMAN, The Legislative Process in the U.S. Congress, II(2).
JI of Constitution & Parl. Studies, 34 (1968).
34. GHOSH, supra; IV CAD, 544, 573, 580, 635, 968, 984 and 985; VII CAD, 32, 33, 243, 263,
266, 295; MORRIS-JONES, op. cit., 117; AUSTIN, THE INDIAN CONSTITUTION, 116.
35. LASKI, PARL. GOVT. IN ENG., 224 (1959).
Syn G] Attorney-General for India 261
he can only appoint members of Parliament as Ministers and there may not be
many experienced and expert members in Parliament.
The presidential system may also be an answer to the present-day constitution-
ally and politically immoral system of defections to serve personal interests,36
since in a presidential system the life of the Cabinet no longer depends on par-
liamentary majority. The President is elected directly by the people and holds
office for a fixed tenure. This results in stability of the government.
In the presidential system, the President enjoys a fixed tenure and he does not
depend on majority support in the Legislature, and this results in government sta-
bility. The President may be freer to adopt policies on their merits rather than
adopt populist measures. The Legislature also has more say in the governance of
the country and may have more control over the administration.
However the presidential system as it prevails in the U.S.A. has its own prob-
lems, the major problem being lack of co-ordination between the Executive and
the Legislature resulting in fragmented policies. Also, in a Parliamentary system,
different interests may have an opportunity to participate in the government.
The general public opinion (and even of political parties) by and large does
not favour a change from parliamentary to the presidential system. If India seeks
to adopt the presidential system, the system will have to be so devised as to pro-
mote better co-ordination between the Executive and the Legislature than what
exists in the U.S.A. This means that the system has to incorporate some features
of both the presidential and parliamentary systems. Then, there is another big
problem to consider : should the presidential system be adopted at the Centre
only or in the States as well?
Thus, before a change can be thought of, there are many delicate issues to be
considered. A thorough study needs to be made of the various models of the
presidential system functioning in the U.S.A., France, Switzerland and Sri Lanka.
The touchstone should be to promote better, more effective and moral govern-
ment, but less afflicted by narrow and parochial vested interests.
preme Court under Art. 143.38 The Government of India may also require him to
appear in any High Court in any case in which the Government of India is con-
cerned.
In the performance of his duties, the Attorney-General has the right of audi-
ence in all courts in India [Art. 76(3)]. He has the right to take part in proceed-
ings of either House of Parliament, or their joint sitting, and any parliamentary
committee of which he may be named as a member, but he does not have a right
to vote under this provision [Art. 88].39 He enjoys all the privileges which are
available to a member of Parliament.40
In Britain, the appointment of the Attorney-General is ‘political’ in nature in
the sense that it is conferred on a successful barrister who is a supporter of the
party in power. He has sometimes been a member of the Cabinet though “it is
generally regarded as preferable that he should remain outside the Cabinet as the
Government’s chief legal adviser.”41 O. Hood Phillips observes :42
“The better opinion is that the Attorney-General should not be in the Cabinet
because of his quasi-judicial functions with regard to prosecutions, and also
because it is desirable to separate the giving of advice from those who decide
whether to act on the advice. Indeed it must be open to question in view of his
unfettered discretion to refuse to initiate proceedings and his power to termi-
nate criminal proceedings whether the appointment should be non-political”.
According to the practice followed in India so far, the Attorney-General is ap-
pointed on the basis of professional competence and not on political considera-
tions. He is a non-party man, is appointed because of his competence as a lawyer
and he is not a member of the Cabinet.