Union Executive

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The Union Executive consists of the President, the Vice President, the Prime Minister, the Council of Ministers, and the Attorney General of India.

# President

PRESIDENT

The President is the Head of the State, the first citizen of India.

• Article 52 – There shall be a President of India.
• Article 53 – Executive Power of the Union shall be vested in President;
  • Power exercised directly or through offices subordinate.
• Article 74 – Council of Ministers to aid and advice the President.
  • President shall Act in Accordance with Such Advice; 42^nd CAA made this advice binding on the President; 44^th CAA – President can send back the bills for reconsideration once.
  • Thus, President is the Nominal Executive; Real Executive – CoM’s headed by PM.
• Article 56 – Term of Office: 5 Years
  • Resignation addressed to Vice-President; Vice-President to communicate to speaker
• Removal by Impeachment (Article 61)
• Eligible for re-election (Article 57).
• Article 58 – Qualification for election as President
  • Citizen of India.
  • Completed 35 year of age.
  • Qualified tor election to Lok Sabha.
  • Not to hold office of profile.
    • Office of President; Vice-President; Governor; Minister of states or union- Exempted from Office of Profit.
  • Article 59 – Conditions of the Office of the President
    • Not to be MP or MLA.
    • No office of Profit.
    • Entitled to official Residence emoluments and allowance.
    • Emoluments allowance no to be diminished.

• • • Article 60 – Oath administered by the Chief Justice of India (or senior most Supreme Court judge in his absence)
    • Election of the President
    • Electoral College
      • Elected members of both houses of Parliament
      • Elected members of legislative Assemblies of the state.
      • Proportional representation by means of single transferable vote; voting by secret ballot
      • Population Based on the 1971 census till 1st census after 2026 (84th CAA).
      • Value of Vote of an MLA=(Total population of the state )/(Number of Elected MLA in the state Legislative Assembly ) x 1/1000
      • Value of Vote of an MP=(Total value of votes of all Elected MLAs of all states)/(Total Numbers of Elected Member of Parliament )

This implies that:

• Value of vote of MLA of different state is different.
• Value of vote of MP is greater than MLA (of any State)
• Value of vote MP (LS) = MP (RS)
• Cumulative value of vote LS (MP) is greater than RS (MP)
• Article 71 – Supreme Court  has original and exclusive jurisdiction over Election dispute of President; Prior acts in the capacity of President will not be Invalidated, Vacancy of Electoral college is not a ground for dispute.
• Article 61 – Impeachment of President
  • Only for Violation of the constitution.
  • Procedure – Resolution has to be moved in either house of Parliament (14 days prior notice to the President)
  • Resolution has to be supported by 1/4th of members before Introduction.
  • Has to be passed by 2/3rd of total membership of the house.
  • 2^nd house shall investigate the charge (President has the right to represent his case).
  • If passed with 2/3rd majority (President stands impeached)
  • Nominated members of both houses can participate.
  • State legislatures although involved in election of president, are not involved in impeachment.
• Vacancy of the Office of President
  • Due to expiry of the term – Election to be completed before such expiry
  • Death
  • Resignation
  • Impeachment
  • Otherwise –Example: Election is declared void.
  • Except in case of expiry of term – Vice-President will act as the president; Election to be held as soon as possible; within not more than 6 Months.

Power and Function of the President

• President is executive head (Article 53)
• Act on Aid and advice of Council of Ministers (Article 74)
• All executive action taken in his name; make rules tor convenient transaction of business of Government of India (Article 77)
• Power of appointment and removal of various dignitaries. Example: Comptroller and auditor General of India; Chief Election Commissioner and Election Commissioners; Attorney Generals; members of Union Public Service Commission; Joint Public Service Commission; Judges of Supreme Court and High Courts etc…
• Administers Union Territories directly (Article239)
• Enjoys special powers with regard to administration of scheduled areas.

Legislative Power

• Integral Part of Parliament; Bill will become Act only after his Assent.
• Sessions of parliament, prorogation and Dissolution (Article 85)
• Right of the President to Address and Send message to House (Article 86).
• Special address by President (Article 87)
• Power of Nomination of members of the house.
  • Lok Sabha – 2 members from Anglo Indian Community (Article 331).
  • Rajya Sabha – 12 members (Art; Science; literature and Social Service) (Article 80)
• Prior Sanction for Introduction of Certain Legislature.Example:
  • Bill for creation of new states (Article 3).
  • Introduction of certain Financial Bills (Article 117).
• Power of president to Assent Legislations (Article 111).
  • Give Assent
  • Withhold the Assent
  • Return for reconsideration.
• Type of veto: Absolute; Qualified; Suspensive; Pocket.
  • Indian President: Absolute; Suspensive and Pocket.
• President Veto power with regards to Bills Passed by State Legislature. (Art.201).
• Governor’s power to Assent (Article 200).
  • Give Assent
  • Withhold the Assent
  • Send for Reconsideration.
  • Reserve Bill for Consideration of the President.
• Reserving bill for Consideration of President (Article 201 – Options with the President)
  • Give Assent
  • Withhold the Assent
  • Send for Reconsideration (State Legislature to pass it again within 6 months).
  • If sent again for reconsideration, it is not mandatory for President to give his assent.
• President Shall Convene Joint Sitting (Article 108)
• Ordinance Making power of President and Governor (Art.123 and 213)
  • Legislative Power in the hands of Executive (Conditions) :
  • Recess of the parliament,
  • Any one House is not in Session.
  • Temporary in nature; (6 month and 6 weeks – Max.)
  • Not parallel powers of legislation; Coextensive with legislative Power of Parliament; no Constitutional Amendment.
  • Borrowed from GoI Act 1935; Aid and Advice of Council of Ministers’.
  • Subject to judicial Review on malafide Grounds. (R.C. Cooper Case 1970)
  • 38th CAA; president satisfaction final and beyond judicial Review.
  • 44th CAA, 1978 Repealed the above Permission.
  • Present position: Subject to the judicial review on malafide grounds. [D.C wadhwa case (1987)].
    • Re-promulgation of ordinance is a fraud and Violation of the Constitution.
    • Exceptional powers to be sparingly used (No Substitute for Legislative Power)
  • Supreme Court reiterated the same in Krishna Kumar case, 2017.
  • Governor enjoys similar powers under Article 213 except – on certain legislations where prior approval of president is required, prior instruction may be taken from President before passing the ordinance.

Pardoning Power of the President

• President under Article 72 (pardon; Commute; Remit; Reprieve and Respite)

• In cases of:
  • Court martial,
  • Prosecuting agency is Central Govt. (Executive power of union extends)
  • All cases where punishment is the sentence of death.
• President power under Article 72 is Subject to limited power of Judicial review (Maru Ram case 1980)
• Exercised based on Aid and Advice of CoM’s (Devinder Pal Singh Case, 2013)
• Powers to be exercised within a reasonable time frame. (V. Sriharan case 2014)
• Remission power are also available UNDER ARTICLE 432 and 433 of CrPC irrespective of Article 72 and Article 161 (V. Sriharan Case, 2015)
• No right to oral hearing (Kehar Singh case 1989)
• Governor has powers of (Pardon, Commute; Remit; Reprieve and respite) in all Case where the prosecuting agency is the state authorities
  • No power with regard to court martial.
  • No power to pardon capital punishment (where the presenting agency is central government)

# Vice- President

VICE PRESIDENT

• • Article 63 – There shall be a Vice President.
  • Ex officio chairman of Rajya Sabha.

• Acts as President during death, resignation removal (or) otherwise of the incumbent President (Article 65)
• Vice President may also discharge the duties of the President during his absence, illness or any other cause (Article 65)
• Election of Vice President (Article 66)
  • Electoral college; proportional representation single Transferable vote; secret ballet
  • Electoral College – Member of both houses of the parliament (elected and nominated)
  • Eligibility Criteria – similar to that of President
  • Exception: He should be qualified to be one elected to RS.
• Oath to be administered by the President (or) any person appointed in that behalf by the president.
• Term of Office of Vice President (Article 67)
  • 5 Year
  • Resignation to President
  • Removed by resolution introduced only RS; 14 days prior notice; effective majority.
  • Continue to hold office until his successor assume office (on expiration)
• Vacancy to Office of Vice President (Article 68)
  • Expiry of term – Vacancy to be filled before such expiration
  • Death
  • Resignation
  • Removal
  • Otherwise

Note – Election in case of vacancy other than the end of term shall be held as soon as possible (and not within 6 months). Newly elected Vice-President occupies Office for full 5 years term.

# Prime Minister

PRIME MINISTER

President of India appoints a person as the Prime Minister who is either the leader of the party which holds a majority of seats in the Lok Sabha or is a person who is able to win the confidence of the Lok Sabha by gaining the support of other political parties.

• To become an Indian prime minister one has to be:
  • A citizen of India.
  • A member of either Rajya Sabha or Lok Sabha
  • He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of age if he is a member of the Lok Sabha

Prime Minister of India serves the country by following various functions. He performs his functions taking responsibilities as:

• The leader of Country: The Prime Minister of India is the Head of the Government of India.
• Portfolio allocation: The Prime Minister has the authority to assign portfolios to the Ministers.
• Chairman of the Cabinet: The Prime Minister is the chairman of the cabinet and presides the meetings of the Cabinet. He can impose his decision if there is a crucial opinion difference among the members.
• Official Representative of the country: Prime minister represents the country for high-level international meetings
• The link between the President and the Cabinet: The Prime Minister acts as the link between President and cabinet. He communicates all decisions of the Cabinet to the President which is related to the administration of the affairs of the Union and proposals for legislation.
• The Prime Minister is the head of Nuclear Command Authority, NITI Aayog, Appointments Committee of the Cabinet, Department of Atomic Energy, Department of Space and Ministry of Personnel, Public Grievances and Pensions.
• Chief Advisor: He acts as the chief advisor to the President
• Article 74 – Mentions how Prime Minister and President are both connected with council of ministers. The Council with PM as head advise President on various issues.
• Article 75 – Mentions three things:
  • President appoints PM and other ministers are appointed by the President on the advice of the PM.
  • Ministers hold their office during the pleasure of the President.
  • Council of Ministers is collectively responsible to the Lok Sabha.
• Article 78 – PM communicates all decisions made by the council of members to the President. President can also refer issues for the consideration of the council of members.

# Council of Ministers

COUNCIL OF MINISTERS

• They are appointed by the President on the advice of Prime Minister
• They along with the Prime Minister of India form 15% of the total strength of the lower house i.e. Lok Sabha. (The number cannot exceed 15%)
• 91st Amendment Act provided for the disqualification of the minister when he stands disqualified as a Member of Parliament. (Difference between Lok Sabha and Rajya Sabha can be referred to in the linked article).
• A Minister ceased to exist as one if he is not a member of either house of Parliament for six consecutive months.
• Parliament decides the salary and allowances of the council of ministers.
• A  Council of Ministers (CoM) may be chosen from either house of the Parliament. A CoM who is member of one house, has the right to speak in and take part in proceedings of other house without any right to vote if he is not the member of that house.

Principle of Collective Responsibility and Individual Responsibility

• Basic principle of parliamentary or cabinet form of government is principle of collective responsibility.
• COMs is collectively responsible to Lok Sabha for the policies and decisions of the government, even though a decision taken may pertain to a single ministry
• Once a decision is taken by the cabinet, it becomes joint decision of COMs. If a minister does not agree with the decision of cabinet, he has no option but to resign from COMs.
• If a decision of a particular ministry on a political matter is defeated in Lok Sabha, it is not the ministry who resigns, but the whole COMs resigns, But if a minister has implemented a decision without the approval of cabinet and it is defeated in Lok Sabha, minister concerned only has to resign, not the whole cabinet.

All ministers are individually responsible to the President. Ministers hold office during the pleasure of the President and can be removed from COMs by the President at any time but only on the advice of PM. Hence, this power is mainly exercised by the PM.

# Attorney General

ATTORNEY GENERAL

• The Attorney General (AG) of India is a part of the Union Executive. AG is the highest law officer in the country.
• Article 76 of the Constitution provides for the office of AG of India.

Appointment and Eligibility:

• AG is appointed by the President on the advice of the government.
• He must be a person who is qualified to be appointed a judge of the Supreme Court.
• Term of the Office: Not fixed by the Constitution. (Holds office during the pleasure of the President); May quit office by resigning to the President
• Removal: Procedures and grounds for the removal of AG are not stated in the Constitution. He holds office during the pleasure of the President (may be removed by the President at any time).
• Duties and Functions:
  • To give advice to the Government of India upon legal matters referred by the President and to perform other duties of legal character assigned by the President.
  • To appear on behalf of the Government of India (GoI) in all cases in the Supreme Court or in any case in any High Court in which the GoI is concerned.
  • To represent the GoI in any reference made by the President to the Supreme Court under Article 143 (Power of the President to consult the Supreme Court) of the Constitution.
  • To discharge the functions conferred on her/him by the Constitution or any other law.
• Rights and Limitations:
  • Has the right to speak and to take part in the proceedings of both the Houses of Parliament or their joint sitting and any committee of the Parliament of which s/he may be named a member, but without a right to vote.
  • Enjoys all the privileges and immunities that are available to a MP.
  • Does not fall in the category of government servants. Not debarred from private legal practice.
  • However, he should not advise or hold a brief against the Government of India.
• Solicitor General of India and Additional Solicitor General of India assist the AG in fulfillment of the official responsibilities.
• Corresponding Office in the States: Advocate General (Article 165).