THE CONSTITUTION OF INDIA

and
PROFESSIONAL ETHICS

CIP 81

The Executive

Class # 08 Week :Mar 10-17

 Theory of separation of powers

Organs of State

Executive Legislature Judiciary

• Not rigid separation

• Doctrine of Constitutional Trust
 Advantages of Presidential Systems
• Stability:
• Faster decision making
• Role of Experts
• Party divisions are not prominent
• Separation of legislative and executive powers.
Parliamentary form of Democracy
Westminister model
Cabinet is part of Parliament.
Parliament provides the cabinet. No person can continue to be a minister
for > 6 months unless he is a member of the Parliament (either house}.
Control over the cabinet; Daily answerability; Financial control; Law
making functions; Vigilance.
Cabinet is responsible to the Lok Sabha
 The Executive
PRESIDENT
OF INDIA

Executive
PARLIAMENT
Council of Ministers

RAJYA SABHA LOK SABHA

MAX 250 Nos Max 552 Nos

State ≤ 530
ELECTED 236 NOMINATED 12 ≤ 20 UT
≤ 2 Anglo (Nomi)
 The Executive
• Art 52: There shall be President of India.
(Head of the State and also Govt.).
of not only political system but also of the National
life.
The executive authority of the Union is vested in the
President of India
• Who exercises it directly or through the officers
subordinate to him.

• Art 53:All Executive Power are vested in him.

Exercises this power directly or subordinate
officers.
Real & not notional Executive.
Cabinet advises him. He is not bound by their advises
 The Executive
• Art 54: ELECTION OF THE PRESIDENT (Indirect
Election)
Electoral college : College of elected members
Elected Members of both the Houses of Parliament.
Elected Members of Legislative Assemblies of the
States.
Except Nominated members and members of
Legislative councils.
55(3) Proportional representation by means of a single
transferable vote----secret ballot.
‘transferable vote’ = excess votes( after quota) of a
candidate is distributed amongst the rest of the
candidates.
 The Executive
• 70th Amendment 1995, members of National capital of Delhi and
UT of Pondicherry
• Art 55: Manner of election of President.

Total number of valid votes cast

Quota = +1
Number of seats + 1
State Population 1
Value of 1 elected MLA Vote = X
Total num elected members in the L. Assy 1000
Toal number of votes allotted to all the MLAs
Value of 1 elected MP Vote =
Total number of elected MPs
• Ex: say Karnataka has 50,00,00,000 population And 250
elected
members in Legislative assembly.
Value of 1 MLA vote=50.00,00,000/(250x1000)=2000
Total value of MLA votes in Karnataka =250x2000=500,000
 The Executive
• The President shall not be a member of either of the
houses of the Parliament.
• If an MP becomes President, he is deemed to have
vacated his MP seat and the seat becomes vacant on
the day he enters office as President.
• The emoluments and the allowances of the President as
decided by the Parliament and can not be decreased
during his term of office.
• Rs. 50,000 per month as salary. Rs. 3,00,000 as annual
pension (1998).
President’s Term of office
• Art.56: 5 years from the date he enters office.
• President, is eligible to be re-elected any number of
times under the constitution.
• He can resign at any time by addressing the resignation
letter to the Vice President.
 Art. 58: Qualifications
Any person who:
(i) is a citizen of India,
(ii) has completed the age of 35 years,
(iii) is qualified for election as a member of Lok- Sabha,
(iv) does not hold office of profit under Government of
India or Government of any State or under any local
authority,
can contest election for the office of the President of
India.
• However, President, Vice President, the Governor of any
State or a Cabinet Minister, whether at the Centre or the
State, is not debarred from becoming a
• candidate for contesting the election for the office of the
President.
 Art 60: oath of office

“to devote himself to the service and well

being of the people of India.”
compels him “to preserve, protect & defend the
Constitution.”
Securing the supremacy of the Constitution.

• Before entering upon his office, the President is

required to take an oath in a prescribed form in the
presence of Chief Justice or
• the senior most Judge of the Supreme Court of India.
 Art.61: Procedure for his Removal (Impeachment)
• He can be removed at any time from his office through
the process of impeachment for violation of the
Constitution.
For this purpose a charge must be leveled
in either House of the Parliament.
It must be in the form of a resolution
signed by at least one fourth of the total number
of members of that House and
moved only after giving a clear notice of fourteen days.
If the resolution is passed by a majority of not less than
two-thirds of the total membership of that House, the
matter goes to the other House that investigates it.
IMPEACHMENT OF THE PRESIDENT

PRESIDENT
IF VIOLATES CONSTITUTION

notice of
fourteen days

HOUSE 1 HOUSE 2
>25% SIGN RESOUTION INVESTIGATES
__ PRESIDENT HAS RIGHT TO BE PRESENT
OR TO BE REPRESENTED
PASS RESOLUTION -----------------------------------------------
WITH 2/3 MAJORITY 2/3 MAJORITY PASS RESOLUTION
PRES STANDS TO BE IMPEACHED
 Art.61: Procedure for his Removal (Impeachment)
• The President shall have the right to appear or
to be represented at such an investigation.

• If, as a result of such investigation, a

resolution is passed by a majority of not less
than two-thirds of the total membership of that
House (which investigated the charges),
stating that the charge has been sustained,
then the President stands removed from his
office from the date on which such a resolution
has been passed.
•
 •Execution of laws
Administrative
power •Administration of
Departments of
Government

•Command of the
Military
Executive armed forces
power •Conduct of war
power of
president •Summoning,
prorogation etc. of the
Legislative legislature
• President is the head power
•Initiation and assent to
of the executive and
legislation etc.
administration
• He appoints the PM •Granting of pardon,
and other ministers on Judicial reprieves etc. to
the advice of PM persons convicted of
power crime
 Executive Powers
• All the executive functions of the Union
government are carried on in the name
of the President.
It is he who appoints the Prime Minister.
According to the Constitution
he can appoint
only such person to the post about whom
he feels that he would be able to command the
confidence of the majority of the members of Lok
Sabha.
 Executive Powers
ART.77(1): All the executive functions of the Union
government are carried on in the name
of the President.
ART.77(2): The President can make rules specifying the
matter in which the orders and other instruments
made and executed in his name shall be authenticate.
The validity of an order or instrument which is so
authenticated shall not be called in questionon the
ground that it is not an order executed by the
President. ART.77(2):
ART.77(3): The President shall make rules for more
convenient transaction of business of the
Government of India, and for allocation among the
Ministers, of the said business.
 Executive Powers
. Appoints the
Prime Minister and council of Ministers.
Attorney-General of India, and determines his
remuneration.
Attorney-General holds the office during the pleasure
of the President.
Comptroller and Auditor-General of India,
Chief Election Commissioner,
Other Election Commissioners,
Chairman and members of UPSC
Governors of State,
Chairman and members Finance Commission etc.
 Executive Powers
Art. 78(a):
can seek from the PM information relating to the
administration of affairs of the GOI.
and proposal for legislation
Art. 78(a):
can require the PM to submit for consideration of the
council of Ministers, any matter on which a decision
has been taken by a minister but the council has not
considered
Art. 338:
Can appoint a commission to investigate into the
condition of SC’s & ST’s and other backward
classes.
 Executive Powers
Can appoint
a inter-state council to promote Center-State and
inter-state co-operation.
Art. 239:
Directly administers the Union Territories.
 Legislative Powers

President being integral part of the Parliament

2) Art 80:
Nominates 12 members to Rajya sabha.
Special knowledge or practical experience in
Literature Science Art & Social service
2) Art 331:
Nominates 2 members to Lok sabha from Anglo-Indian
community, if he is of the opinion that they are not
adequately represented in the house.
3) Art 80:
The President can from time to time summon or
prorogue either house of the Parliament and
dissolve Lok sabha.
 Summon or prorogue (Art.85)
• Summon: It is a process to call upon the members
of the house to the session.
• Prorogue: The act of bringing a session of
Parliament or other Legislative Assembly to an end.
4) Art:86(1)
May address either House of Parliament or
Summon the joint sitting of both Houses of
Parliament which is presided over by the Speaker of
the Lok Sabha.
5) Art:86(2)
May send message to either House of Parliament,
whether with respect to a bill pending in the
Parliament or otherwise
 Legislative Powers (contd.)

6) Art 87:
May address either House of the Parliament at the
commencement of the FIRST session after each
general election and at the commencement of the
FIRST session each YEAR.
7) Art 91:
May appoint any member of the Rajya Sabha to preside
over its proceeding when both offices of the
Chairman and Deputy Chairman falls vacant.
(vice-president is the ex-officio Chairman of Rajya
Sabha)
(deputy chairman elected by members of Rajya Sabha)
 Legislative Powers (contd.)

8) Art 95:
May appoint any member of the Lok Sabha to preside
over its proceeding when both offices of the Speaker
and Deputy Speaker falls vacant.
9) Art 103:
The President has the power to decide on the
questions as to disqualification of members of
Parliament, in consultation with Election
commission and the DECISION of the President is
FINAL.
 Legislative Powers (contd.)
10) Art.111:
When a bill has been passed by both the Houses of the
Parliament, it shall be presented to the President,
the President can
i) Give assent to the bill, or
ii) withhold his assent to the bill (veto power), or
iii) Return the bill (if it is not money bill) for
reconsideration of the Parliament.
11) Art.123:
Can promulgate ordinances when Parliament is not in
session and if he is satisfied that circumstances so
exist which demands immediate action.
 Legislative Powers (contd.)
However such ordinances must be approved by the
Parliament within six weeks from its reassembly.
He is also empowered to withdraw such ordinances at
any time.
12) Lays the report of the Comptroller and Auditor-
General, UPSC, Finance commission and others
before the Parliament.
Comptroller : A person in charge of accounts
-- official in charge of NATIONAL Audit Office,
whose duty is to examine the accounts of ministries
and Government departments , and to advice the
Public Accounts Committee.
 Financial Powers
Art.112:
Every financial year the Finance Minister, on behalf of
the President, lays an Annual Financial Statement
(estimated receipts and expenditure of GOI) before
both the Houses of Parliament.
Art.117:
A Money Bill cannot be introduced or
moved in Lok Sabha except on the recommendation
of the President.
Art.113(3):
No demand for a grant can be made except on the
recommendation of the President.
Art.267:
A Bill involving expenditure from the Consolidated
Fund of India cannot be passed by either House of
Parliament unless President has recommended for it
to that House.
 Financial Powers
Art.148:
Appoints Comptroller and Auditor-
General of India, to examine the
accounts of Union and State Govt.s

Art.280:
The President constitutes a Finance
Commission after every five years to
recommend the distribution of taxes
between the Centre and State.
 The Judicial Powers
Art.124(2):
The President appoints the Chief Justice and other
Judges of the Supreme Court.
Art.126:
The President may appoint an acting chief Justice
when the office of the chief Justice of India is vacant
or he is absent or otherwise unable to perform the
duties of office.
Art.143:
The President can seek advice from the Supreme Court
on any question of law or fact. Such advice is not
binding on the President.
 The Judicial Powers
Art.72:
The President shall have power to grant
Pardons: (sets free a person from all punishment
imposed on him by a court of law for some offence.)
Reprieves: (stay of execution of a sentence for a
temporary period )
Respites : (awarding a lesser sentence instead of the
penalty prescribed law, )
Remissions (reducing the amount of sentence without
changing its character )
of punishment , or to suspend , remit or commute the
sentence of any person convicted of any offence…..
 The Judicial Powers (……..contd,)
• In all cases where the punishment or sentence is
by Court Martial.
• In all cases where the punishment or sentence is
for an offence against any law relating to matter to
which the executive power of the Union extends.
• In all cases where the sentence is sentence of
death.
The Military Powers
Is the Supreme Commander of the defense forces of
India.
1) In this capacity, he appoints Chief of Army, Navy and
Air-force.
2) Can declare war or conclude peace treaties subject
to the approval of the Parliament.
 Diplomatic Power / Powers regarding Foreign Affairs
• President is the FIRST CITIZEN of India.
• All the diplomatic business is conducted in the name
of the President.
• He appoints ambassadors and other diplomatic
agents of India accredited to other countries.
(sends and receives Diplomatic Reps)
• Diplomatic agents accredited to India present their
credentials to the President.
• All international treaties and agreements are also
conducted in his name but they are to be ratified
by the Parliament later on.
 Emergency Powers
President can Proclaim
• National Emergency (Art 352)
• State Emergency (Art 356)
• Financial Emergency (Art360)
Powers of the President during National Emergency
• Art.353 : President can give directions to any state,
with regard to the manner in which its executive
power is to be exercised.
• Art.354 : The President can modify the pattern of
distribution of Financial Resources between the
union and the States.
 Powers of the President during National
Emergency
• (Art.358) When proclamation is made on the
ground of war or external aggression right
to six freedoms can be suspended
• (Art.358) The President Can suspend the
Fundamental rights of citizens except the
right to life to personal liberty (Art.21) and
The right to protection of convictions for
offences(Art.20).
 Powers of President during State Emergency
• The President may assume to himself all or any of
the functions of the State Govt and all or any of the
powers vested in or exercisable by the Governor or
any body or authority in State other than the
Legislature of the State [Art.356(a)]
• The President can declare that the Powers of the
State Legislature shall be exercisable by or under
the authority of the Parliament [Art.356(b)].
• Parliament can confer on the President the State
Legislature to make laws [Art.357(a)].
 Powers of President during State Emergency
• The President can authorise , when the LokSabha
is not in session, expenditure from the
Consolidated Fund of the State, pending the
sanction of such expenditure by the Parliament.
[Art.357(c)]
Powers of President during Financial Emergency
• The President can give directions to the State to
observe the canons of financial propriety
[Art.360(3)]
• The President can issue directions for the
reduction of salaries and allowances of all or any
class of persons. [Art.360(4)(a)(i)]
 Powers of President during Financial Emergency

• The President can require that all money bills and

other financial bills passed by the State to
Legislature be reserved for his consideration
[Art.360(4)(a)(ii)]
• The President can issue directions for the
reduction of salaries and allowances of all or any
class of persons serving in connection with the
affairs of the Union, including the judges of the
Supreme Court and the High Court. [Art.360(4)(b)]
No financial emergency declared so far in India.
 THE VICE-PRESIDENT
• Similarities of the office of the President and
Vice-president.
Qualification for Election:
Must be a citizen of India.
Must have completed the age of 35 years.
Must not hold any office of profit under the GOI or of
a State of any other authority under the control of
either of the Governments.
Election:
System of Proportional representation by means of
single transferable vote.
Term of office: 5 years
Re-election : any number of times.
 THE VICE-PRESIDENT
Dis-Similarities of the office of the
President and Vice-president.

President Vice-president.
Qualification Must be qualified for Must be qualified for
for Election: election of House of election of House of
People (LokSabha) People (Rajya Sabha)

Election: • Both Houses of Both Houses of

Electoral Parliament Parliament
College • Legislative
Assemblies of
States
Removal Impeachment Resolution passed by
Council of state (RS)
Majority and agreed by
House of People (LS)
 THE VICE-PRESIDENT
Dissimilarities of the office of the President and Vice-president.

President Vice-president.
Functions Executive power of No special
the Union vested in functions
him and he exercise Acting
it, on the advice of President
the Council of Acts as ex-
Ministers of the officio
Union Chairman of
Council of
States (Rajya
Sabha)
 Central Council of Ministers
Art 74(1):
The Constitution provides for a Council of Ministers,
with Prime Minister as its head, to aid and advise the
President. The President is required to act according
to its advice.
PM shall be at the head of Council Of Ministers–
head of Union Government
Art 75(1):
The Prime Minister shall be appointed by the President
first the and the other Ministers shall be appointed
by the President on the advice of the Prime Minister.
Art.75(2):
Ministers shall hold office during the pleasure of the
President.
Art.75(3):
The COM shall be collectively responsible to the LS.
(even if some members may be from RS)
 Central Council of Ministers
Art 75(4):
Before a Minister enters upon his office, the President
shall administer him the Oath of office and of
secrecy according to the forms set out for the
purpose in the THIRD SCHEDULE.
Art 75(5):
A minister who for any period of six consecutive
months is not a member of either House of
Parliament shall at the expiry of that period shall
cease to be a Minister.
The President appoints such a person as Prime
Minister about whom he feels that he would be
able to get support of the majority of members of
Lok Sabha.
If a party commands absolute majority in Lok Sabha
and elects its own leader, the President has to
appoint him as the Prime Minister.
 Council of Ministers.
If no party commands absolute majority but
two or more than two parties combine
together and form an alliance with a common
programme
and that alliance is able to command absolute
majority in Lok Sabha, the leader of such an
alliance is called upon by the President to
assume the office of Prime Minister.
The President then asks the Prime Minister to
give a list of persons whom he would like to
appoint as members of the Council of
Ministers.
 Council of Ministers.
• The President has to appoint such persons as
Ministers, who have been so recommended
by the Prime Minister.
• There are three categories of Ministers–
Cabinet Ministers,
Ministers of State and
Deputy Ministers.
Cabinet is a small body of Ministers who occupy a
prominent position in the party and hold
important portfolios. Hold weekly meetings
It meets off and on and takes all important policy
decisions of the government.
 Council of Ministers.
A Cabinet Minister is the head of one or more
departments.
The Ministers of State, again, are of two categories.
Some Ministers of State have an independent charge
of their Ministry while others act
under the supervision of a Cabinet Minister.
Sometimes they may be called to attend meetings of
the Cabinet when an important issue pertaining to
their department is discussed.
Deputy Ministers work under the supervision
of either a Cabinet Minister or a Minister of State.
Their main function is to assist the Cabinet Minister or
Minister of State, as the case may be, in performing
their functions.
 MINISTRIAL RESPONSIBILITIES
• Individual Responsibility: Art.75(2):
Ministers shall hold office during the pleasure
of the President.
Ministers are individually responsible to the
Executive Head and shall be liable to dismissal
even when they may have the confidence of
the Legislature.On the advice of PM of course.
2) Responsibility: Art.75(3):
The COM shall be collectively responsible to the
LS. (even if some members may be from RS)
COM has Constitutional Obligation to resign on
losing the confidence of the house.
Art.74(1):PM shall be at the head of Council Of
Ministers– head of Union Government
 POWERS AND FUNCTIONS OF COUNCIL OF MINISTERS
• LEGISLATIVE FUNCTIONS: The COUNCIL OF
MINISTERS Controls the Legislature of the Union
Government.
It formulates, submits and explains the policy of the
Parliament for approval. Ministers
introduce the Legislative Bills before Parliament.
2) Financial Powers: Controls the Financial Policy.
Finance Ministers submits the Budget before the
Parliament.
3) Executive Powers: COM is the Executive of the Union.
Ministers– preside over various depts. of the Govt.
and give directions.
Cabinet – co-ordinate & settle conflicts
-- formulate defence and foreign policies of the country.
-- execute 5 Year Plans.
• It may be that an individual Minister may differ on a
particular decision but he cannot express it publicly
unless he first submits his resignation from the
Council of Ministers.
The Council of Ministers is collectively responsible to
the Lok Sabha. It implies that a censure
motion against one Minister amounts to no
confidence against the whole Ministry in which case
all the members including the Prime Minister have to
go out of office.
• The members of both the Houses of Parliament keep
control over Ministers by asking questions and
supplementary questions and by moving
adjournment motions, call : attention notices, and by
appointing various
various committees such as
Public Account Committee,
Estimates Committee,
Committee on Government Assurances,
Committee on Public Undertakings,
Committee on Privileges, Committee on
Subordinate Legislation etc.
• The Council of Ministers takes policy decisions on all
matters of administration.
• It supervises the execution of all policy decisions.
It prepares Bills and pilots them in the two
Houses of Parliament so that they become
laws.
It prepares the Budget and regulates income
and expenditure of the Union Government.
It formulates foreign policy and conducts its
affairs with other countries.
 Position of The Prime Minister
President is the Head of the STATE, while the Prime
Minister is the Head of the Government.
Art 74(1): The Constitution provides for a Council of
Ministers, with Prime Minister as its head, to aid
and advise the President.
The President is required to act according to its
advice.
PM shall be at the head of Council Of Ministers–
head of Union Government.
Lord Morely: ‘Primus inter pares’(First among
Equals)
Sir William Vernon:
‘Stellas luna minores’ (“Moon among Stars”).
Harold Laski: “The pivot of the whole system of
government.”
 Position of The Prime Minister
• As a result of these considerations, the choice of
the Ministers for the Prime Minister becomes very
limited.
• By and large, it can be stated that about half
the members of Council of Ministers are there
because the Prime Minister wants them,
but about half the members are there because the
Prime Minister has no other alternative.
• It is because of these things that the Prime
Minister is called primus inter pares which means
that he is first amongst the equals.
• The Council of Ministers meets very rarely.
• It is the Cabinet that meets frequently.
• The Cabinet takes all the major policy decisions.
• But the Council of Ministers takes the
responsibility for those decisions.
 Position of The Prime Minister
• The Prime Minister occupies a unique position in
the Council of Ministers. It is he who chooses
other Ministers.
• Whenever there is a conflict between a Minister
and the Prime Minister, the Minister has to give
way to the Prime Minister.
• The Prime Minister may ask any Minister to
resign from his post.
If he does not do so, the President may remove
him from Council of Ministers on the advice of
the Prime Minister.
• The Prime Minister presides over meetings of
Council of Ministers.
 Powers & Functions The Prime Minister
Art (78): In relation to President
(principle channel of communication)
PM communicates to the President all decisions of
the Council of Ministers relating to administrative
affairs of the Union & proposals for Legislations.
• -do- when President calls for it.
Art. 78(a):
If President requires the PM to submit for consideration
of the council of Ministers, any matter on which a
decision has been taken by a minister but the council
has not considered
• Whenever the President wants to communicate to the
Council of Ministers, he does so through the Prime
Minister.
In relation to Parliament: PM is Leader of LokSabha.
• can Recommend dissolution of LS to president
• As chief of the Govt. announces policies of the Govt.
 Powers & Functions The Prime Minister
on the floor of the House.

• It appears from the above that the Prime Minister is very

powerful but actually it is not so.
• While forming his Council of Ministers he has to take a
number of considerations such as representation of
different sections of society, different geographical
regions, different ideological groups in the party etc.
In relation to Council of Ministers:
1. Recommends persons to be appointed as ministers by
the President.
2. Allocates & reshuffles various portfolios to ministers.
3. Can ask a minister to resign or advise President to
dismiss him.
4. PM presides over meetings of Council of Ministers &
influences its decisions.
 Powers & Functions The Prime Minister
In relation to Council of Ministers:
5. He guides, directs, controls and co-ordinates the
activities of all ministers.
6. He can bring about the collapse of he Council of
Ministers by resigning from office.
Miscellaneous Powers:
1. Chairman of Planning Commission, NDC-National
Development Council, National Integration Council, and
Inter-State Council.
2. He plays significant role in shaping the foreign policy of
the country.
3. He is the chief spokesman of the government.
4. He is the crisis manager-in-chief at the political level
during emergencies.
5. As a leader of the Nation, PM meets various sections of
people in different states and receives memoranda from
them regarding their problems, and so on.
 Powers & Functions The Prime Minister
Miscellaneous Powers (…contd):
6. Leader of the Party in Power.
7. He is the Political head of State.