CL II Questions

1. State the qualifications required to be fulfilled in order to be the President of India.

Article 58(1)-Must be a citizen of India, completed 35 yrs of age, qualifies for election as member
of Lok Sabha.

2. How is the President of India elected?

President is indirectly elected by an electoral college comprising both houses of the Parliament of
India and the legislative assemblies of the states and territories, who themselves are all directly
elected.

3. What is the meaning of executive power? State the extent of executive power of the Union and
of the States.
Not defined in the Constitution

Scope explained by SC in Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549

“It may not be possible to frame an exhaustive definition of what executive function means and implies.
Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative
and judicial functions are taken away, subject to the provisions of the Constitution or of any law…

The executive function comprises both the determination of the policy as well as carrying it into execution, the
maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact,
the carrying on of the supervision of the general administration of the state.”

Article 73. - Extent of Executive Power of the Union

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend

(a) to the matters with respect to which Parliament has power to make laws; and Art 246

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by
virtue of any treaty or agreement:

Provided that the executive power referred to in subclause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in any State to matters with respect to which the
Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may,
notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has
power to make laws for that State such executive power or functions as the State or officer or authority
thereof could exercise immediately before the commencement of this Constitution.

4. Who all are members of the Electoral College under Art 54?

Elected members of both houses of the Parliament. Elected members of Legislative assemblies of
the State.

5. Who all are not members of the Electoral College under Art 54?

Legislative Council

6. When may the President exercise his clemency power?

Article 72:
 The President shall have the power to grant pardons, reprieves, respites, or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence-

A) In all cases where the punishment or sentence is by a court martial

B) In all cases where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends

C) In all cases where the sentence is a sentence of death.

7. What are the forms of clemency that may be granted by the President?

Pardon, Commutation, Remission, Respite, Reprieve

8. Define the various forms of clemency that may be granted by the President.

Pardon: It removes both the sentence and the conviction and completely absolves the convict
from all sentences, punishments and disqualifications.

Commutation: It denotes the substitution of one form of punishment for a lighter form. Eg. A death
sentence may be commutated to rigorous life imprisonment, which in turn may be commutated
to a simple imprisonment.

Remission: It implies reducing the period of sentence without changing its character. Eg. A
sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for 1
year.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some
special fact, such as the physical disability of a convict or the pregnancy of a woman offender.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a
temporary period. Its purpose is to enable the convict to have time to speak pardon or
commutation from the President.

9. What are the requirements that need to be observed both before and after issuing ordinances?

Pre fact-123(1)- Both or either of 1 house not in session.

President satisfied- circumstances creating an emergent requirement of a law. Any ordinance

which Parliament is not empowered to enact will be void. Restrictions same as parliament.

Post fact- 123(2)- Ordinance shall be laid before Parliament when session begins. Automatically
cease after 6 weeks of reassembly of Parliament. Both house pass resolution to disapprove
ordinance. Withdrawal by President.

10. What are the manners in which ordinances may be brought to an end?

11. What is collective responsibility?

Collective responsibility means ministerial accountability to the legislature. It has been laid down in Article
75(3). As a pre-condition, the government must maintain a majority in the Lok Sabha for its survival.
In Common Cause v. UOI, (1999) 6 SCC 667, the Supreme Court defined collective responsibility in the
following words:

“Collective Responsibility has two meanings: The first meaning which can legitimately be ascribed to it is that
all members of a government are unanimous in support of its policies and would exhibit that unanimity on
public occasions although while formulating the policies, they might have expressed a different view in the
meeting of the Cabinet. The other meaning is that Ministers who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally responsible for its success and failure.”
(Paragraph 31)

Collective responsibility ensures that all ministers stand or fall together in Parliament, and the government is
carried on as a unity; it ensures that the Cabinet’s decisions are joint decisions of all Ministers

12. What is individual responsibility?

Article 75(2) provides that the ministers shall hold office during the pleasure of the President. This article
incorporates ministers’ individual responsibility to the President. This means that the ministers bear the
responsibility of their ministry or department. Each minister is answerable for his ministry’s actions. All
decisions are not taken by the Cabinet: many decisions are taken by the ministers themselves without
reference to the Cabinet, or by officials in the department without reference to the ministers.

However, when a minister is guilty of some indiscretion, corruption, mala fides or a mistake of a personal
nature, he would have to go alone. In State of Karnataka v. Union of India, AIR 1978 SC 131, the Supreme Court
held that if an individual Minister uses his office as an occasion or pretence for committing acts of corruption,
he would be personally answerable for his unlawful acts and no question of collective responsibility of Council
of Ministers can arise in such a case.

13. What is the difference between ‘casual vacancy’ and ‘normal vacancy’ in office?

14. What is the meaning ascribed by the SC to the term ‘election’ under Art 71(1)? State the
appropriate case law.
Article 71(1) gives the Supreme Court the exclusive authority to decide all doubts and disputes connected
with or arising from the ‘election’ of President and Vice President. Here, ‘election’ means ‘entire election
process culminating in a candidate being declared elected.’

This was stated by the SC in N B Khare v. Election Commission of India, 1957 SCR 1081. In this case, the
election for the post of President was about to be conducted. It was challenged on ground of existence of
vacancy in the Electoral College due to the fact that elections were yet to be conducted in some seats of (then)
UT of Himachal Pradesh and State of Punjab. The Court declined to entertain the contentions because the
challenge was made prior to the culmination of election, making the petition premature.

14. When shall an election to fill the vacancy in office of President be conducted in case of
expiration of term?

An election to fill a vacancy caused by the expiration of the term of office of President shall be
completed before the expiration of the term.

16. When shall election to fill the vacancy in office of President be conducted in case of casual
vacancy in office of President?

Article 62(2): No case later than 6 months from the date of occurrence of vacancy.

17. What offices are excluded from the meaning of office of profit under Art 58?
18. What were the reasons given by the Court in President Poll re, (1974) 2 SCC 33 while holding
that the election to the office of President is not precluded due to the dissolution of Legislative
Assembly or Legislative Assemblies of any State of States?
In Presidential Poll re, (1974) 2 SCC 33, reference was made by President V V Giri under Article 143(1) with
one of the important questions being: whether dissolution of Legislative Assembly or Legislative Assemblies
of any State or States precludes the holding of election to the office of President?

The Court held that the election to the office of the President is not precluded due to the dissolution of
Legislative Assembly or Legislative Assemblies of any State or States. This was supported by four reasons:

1. The President is elected for a fixed term (Article 56 (1) and Article 62 (2)). The election to the post of
President shall be conducted within the time stipulated under Article 62. Both the provisions for the term of
Presidency and the time within which elections must be conducted is mandatory in nature.

2. Apart from being mandatory in nature there is no provision regarding extension of time within which
elections must be conducted to fill the vacancy. By way of contrast reference was made by court to Article 83
to substantiate this view.

3. Article 55 (1) shows that the words ‘as far as practicable’ indicate that in practice the scale of representation
may not be uniform because of the actual number of electors entitled at the date of election to cast their
votes. The actual number of electors at the date of the election of the President may not be equal to the total
number of electors in qualified to be in the Electoral College.

4. It will not only be undemocratic but also unconstitutional to deny the elected members of both the Houses
of Parliament as well as the elected members of the Legislative Assemblies of the States the right to elect the
President in accordance with the provisions of the Constitution only because the Assembly of a State is
dissolved.

19. How is the executive power of the Union and State over matters in the Concurrent List
managed by the Constitution?

20. What are the reasons behind granting clemency power to the President?

Article 72: It empowers the President to grant pardons, reprieves, respites or remissions of
punishment in all cases where the punishment is for an offence against any law to which the
executive power of the union extends. The same is also available against sentences of courts-martial
and sentences of death.

21. What are the grounds for substantive judicial review of clemency power? State with the
appropriate case.

22. What effect did the addition of fourth clause to Art 123 have on the exercise of judicial review
of ordinance making power?
Judicial review of satisfaction

RC Cooper v Union of India (1970) - space for judicial review of Presidential satisfaction affirmed; Presidential
satisfaction regarding existence of circumstances suitable for issuance of ordinances not final

38th Amendment, 1975 - clause (4) added to Art 123

“Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questionable in any court on any ground.”
44th Amendment, 1978 - clause (4) removed from Art 123

A K Roy v. Union of India, 1982 - court read the removal of clause (4) from Art 123 as a green signal to judicial
review of Presidential satisfaction; however burden of proof lies on the complainant to show that there could
not have been any circumstances necessitating the issuance of the ordinances before the burden can be cast
on the President to establish those circumstances

Krishna Kumar Singh v State of Bihar, 2017 - satisfaction of President not immune from judicial review; the
test is whether the satisfaction is based on some relevant materials; the court will not determine the adequacy
or sufficiency of the materials; it will scrutinise whether the satisfaction in a particular case constitutes a fraud
on the constitution or was actuated by an oblique motive.

23. What was the test devised by the Court in Krishna Kumar Singh to determine whether the
effect of the ordinance would outlive the ordinance?
Krishna Kumar Singh (2017) mandatory laying - effect needs to be construed acc to the test of public
interest and constitutional necessity.

24. What are factors that guide the appointment of the PM by the President? Is the President
bound by the advice of the CoM in the matters of appointment of the PM?

25. What is the distinction between Cabinet and Council of Ministers?

Council of Ministers Cabinet

Ministers are divided in 3 categories I.e. cabinet
ministers, ministers of state, and deputy
ministers.
It does not meet, as a body, to transact
government business. It has no collective
functions.
It includes the cabinet ministers hence it is a
part of the council of ministers.
It meets, as a body, frequently and usually once
in a week to deliberate and take decisions
regarding the transaction of the government
business. Thus, it has collective functions.

It is vested with all powers but in theory. It exercises, in practice, the powers of the COM
and thus acts for the latter.
Its function are determined by the cabinet. It directs the COM by taking policy decisions
when are binding on all ministers.

It is collectively responsible to the lower house It enforces the collective responsibility of the
of the Parliament. COM to the lower house of the Parliament.
Wider body consisting of 60 to 70 ministers of Smaller body consisting of 15 to 20 ministers.
the government.

26. What is the procedure for a special address by the President?

Article 87
 1) At the commencement of the first session after each general election to the House of the People
and at the commencement of the first session of each year the President shall address both
Houses of Parliament assembled together and inform Parliament of the causes of its summons.

2) Provision shall be made by rules regulating the procedure of either House for the allotment of
time for discussion of the matters referred to in such address.

27. What are the powers given to the Attorney General with respect to the Parliament?

Article 76 and 78-Attorney General has the right of audience in all Courts in India as well as the
right to participate in the proceedings of the Parliament, though not to vote.

He also represents the Government of India in any reference made by the President tothe
Supreme Court under Article 143 of the Constitution.

28. What is casting vote and who can exercise casting vote?

A casting vote is a vote that someone may exercise to resolve a deadlock. A casting vote is
typically by a presiding officer of a council, legislative body, committee, etc., and may only be
exercised to break a deadlock.

29. What is office of profit? How is it relevant to membership of Union and State Legislature?

The term is used in Article 102(1)(a) of the Constitution which bars a member of Indian
Parliament from holding an office that would give its occupant to gain a financial advantage or
benefit.

30. What is the procedure for joint sitting of both the Houses of Parliament?

31. What is quasi-federal constitution?

Quasi federalism means an intermediate form of state between a unitary state and a federation.
It combines the features of a federal government and features of a unitary government.

32. What are the features of the federal constitution?

1. Distribution of powers- federalism means distribution of powers of the state among the no. Of
coordinate bodies.

2. Supremacy of Constitution- federal state derives its existance from the constitution. Hence,
every power, executive, legislative or judicial whether it belongs to the nation or the individual
state is subordinate to and controlled by the constitution.

3. Written Constitution- it will be practically impossible to maintain the supremacy of the

constitution unless the terms of the constitution have been reduced into writing.

4. Rigidity- All the provisions of the Constitution concerning Union-State relations can be
amended only by the joint actions of the State Legislatures and the Union Parliament.

5. Authority of Courts

33. What do you mean by co-operative federalism?

Also known as Marble Cake federalism. Defined as a flexible relationship between the federal and
state governments in which both work together on a variety of issues and programs.