Union and State Executive | Legal Reasoning for CLAT PDF Download

Union Executive 

A few days ago, while helping my younger brother with his civics homework, I faced many questions, such as:  Why isn't the president considered the true leader? Why can’t all leaders be ministers? Why do we need party elections instead of allowing individuals to compete directly? I managed to answer several of his questions, but some made me really think hard.  The idea of the Parliament and the Union Executive seems straightforward, yet it has many complexities.  This prompted me to explore the rules and laws that govern the executive branch of our country. 
Now, let's examine these provisions to better understand how the executive branch of the government operates. 

Parliamentary form of Government

1. Parliamentary Government

• India has a Parliamentary Government where the executive is accountable to the legislature. This system is also known as Cabinet Government because executive powers are concentrated in the Cabinet. In this setup, the Executive is part of the Legislative. 

2. Reasons for Preference:

• Familiarity: The leaders were accustomed to this form of government. 
• Responsibility: It is considered more responsible as the executive is answerable to the legislature, which in turn is answerable to the citizens. 
• Prevention of Authoritarianism: This system helps prevent authoritarian rule. 
• Diverse Representation: It ensures representation from a diverse group of people. 
• Alternative Government: This system allows for the possibility of an alternate government. 

3. Roles:

• Head of State: In this system, the head of state, such as the President, holds a ceremonial position and is a nominal executive. 
• Real Executive: The Prime Minister is the real head of state and the actual executive. 

4. Characteristics:

• Majority Rule: There is a rule of the majority party. 
• Opposition: There is always a Parliamentary Opposition to check the actions of the ruling government. 
• Civil Servants: Civil servants are independent in this system. 

5. International Examples:

• This form of government is followed in countries like Japan, Canada, and Britain. India’s system was largely inspired by Britain. 

6. Comparison:

• Presidential System: The parliamentary system is the opposite of the presidential system, where the President is accountable to the citizens rather than the legislature. 

7. Subdivision of Executive Organs:

• Further, the Executive Organs of the State can be subdivided into various categories.

The President (Article 52)

Droupadi Murmu

• The most important part of the Executive is the President.
• Article 52 states that there must be a President of India.
• The President is viewed as the head of the Executive branch of the country.
• All the official actions of the country are conducted in the name of the President.
• A question arises: if the President is the head of the Executive and all actions are done in his name, can the Executive perform tasks that are not clearly stated in any specific laws?
• This question was addressed in the case of Ram Jawaya Kapoor v. the State of Punjab.
• In this case, the government asked authors to submit textbooks for approval.
• Once the textbooks were approved, the authors had to sign an agreement.
• According to this agreement, the copyright of these books belonged solely to the Government.
• The authors received only a 5% royalty from the sale of the textbooks.
• The Government took control of all rights related to publishing, printing, and selling the books.
• The Court decided that these actions were ultra-vires to the constitutional authority.
• The government, as an executive body, did not have the authority to engage in this type of business or activity without clear laws.
• No clear limits on the powers of the executive are stated in the Indian Constitution.
• The Court stated that the executive's role cannot be limited to just following laws.
• There is a strict separation of powers among different branches of government.
• However, there is not a strict separation of the functions that each branch performs.

Qualifications: Article 58

After knowing that President is the Executive Head of the entire nation, you might too aspire to become a president. So let’s analyze the eligibility and all the specific requirements, you would be needing to become the President of India?

Article 58 talks about the eligibility of a person to become President of India. It says that a person is eligible for election as President if he:

a)is a citizen of India;
b)has completed the age of thirty-five years;
c)is qualified for election as a member of the House of the People.

A person can be disqualified for election as President if he holds any office of profit under

a)the Union of India  or;
b)the Government of any State or;
c)under any local or other authority subject to the control of any Government of India.

Condition of President’s Office: Article 59

The eligibility to become the President may appear straightforward, but the rules for this position are quite strict.  Article 59 of the Indian Constitution outlines the requirements for the President's office. 

• The President cannot be a member of either House of Parliament or any other State Legislature. 
• If the President is already a member of either House of Parliament or a State Legislature, he must resign from that position on the day he takes office as President. 
• The President cannot hold any other job that provides a profit. 
• The President is allowed to use official residences without paying rent. 
• The President is entitled to salary, allowances, and benefits as decided by Parliament. 
• The President's salary and allowances cannot be decreased during his time in office. 

Official residence, emoluments, and allowances of President

• Apart from various responsibilities, being the President has its own benefits. The President of India enjoys certain allowances and privileges as the leading citizen of the nation.
• By law, the President of India is provided with:
  • Free medical facilities
  • Free accommodation
  • Lifetime free treatment
  • Official state car
• The salaryof the President has changed several times since India's independence. Here are some of the key changes:
  • In 1951, the President earned a salary of Rs. 10,000 with an allowance of Rs. 15,000.
  • In 1985, the salary increased to Rs. 15,000 with a Rs. 30,000 allowance.
  • In 1989, the salary rose to Rs. 20,000 with an allowance of Rs. 10,000.
  • In 1998, the salary was increased to Rs. 50,000.
  • In 2008, the salary went up to Rs. 1,50,000.
  • In 2016, the salary reached Rs. 5,00,000.
• The official residence of the President is known as Rashtrapati Bhavan. This grand building includes:
  • Reception halls
  • Guest rooms
  • Offices

Rashtrapati Bhavan is the largest residence of any head of state worldwide, showcasing the importance of the President in the largest democracy on the globe.

Election of President: Article 54

Who can vote for the President?

• The answer is found in Article 54 of the Constitution.
• This article explains how the President is elected.
• The election is conducted by a group called the electoral college.
• The electoral college includes the elected members from both Houses of Parliament and the state Legislative Assemblies.

How is the voting done?

• According to Article 55(3) of the Constitution of India:
• The election of the President uses a system called proportional representation with a single transferable vote.
• Voting in the presidential election is done by a secret ballot.

Disputes regarding the election: Article 71

• If people have concerns about your presidential elections, who will resolve the issues?
• Article 71 addresses issues related to the election of the President. It states that any disputes regarding the President's election will be handled by the Supreme Court and its decision will be final.
• If the election of someone as President is declared invalid, any actions they took while serving in that role will still be considered valid, despite the Supreme Court's ruling.
• The Parliament has the authority to create laws about the President's election as long as they align with the Constitution.
• The election of a person as President or Vice President cannot be challenged because of any vacant positions among the members of the electoral college that elects them.

Oath by the President: Article 60

• After being elected, the next step is to take an oath and learn about the term of office for the President.
• Anyone who becomes the President or performs the duties of the President must make an oath or affirmation before they start their role.
• This must be done in front of the Chief Justice of the country or the most senior judge of the Supreme Court.
• The oath is taken in the name of God and includes a promise to carry out the responsibilities of the President of India.
• The President must promise to preserve, protect, and defend the Constitution and the laws of India to the best of their ability.
• Additionally, the President vows to dedicate themselves to serving the people of India and ensuring their well-being.

Term of office of the President: Article 56

• Article 56 states that the President's term is five yearsunless: 
  • A new President takes office, allowing the current President to continue until then. 
  • The President decides to resign before the term ends by informing the Vice President in writing. 
  • The President is removed from office for breaking the Constitution through impeachment as outlined in Article 61. 
  • Any resignation from the President to the Vice President must also be reported to the Speaker of the Lok Sabha by the Vice President.  
• Article 62discusses how to fill the President's office when there is a vacancy. It specifies: 
  • Elections to fill the vacancy must happen before the current President's term ends. 
  • If the vacancy is due to the President's death, resignation, or impeachment, elections must occur as soon as possible. 
  • Elections should be conducted within six months from when the vacancy happens. 
  • The newly elected President will follow all rules from Article 56 and will serve a five-year term starting from their inauguration. 

Procedure for impeachment of the President: Article 61

• To remove the President of India through impeachment, it is done under Article 61 of the Constitution due to constitutional violations.
• Impeachment starts with charges made by either House of Parliament.
• A resolution proposing these charges must be signed by at least one-fourth of the members of that house.
• This resolution also needs to be approved by a two-thirds majority of the house.
• Once one house passes the resolution, the other house is responsible for investigating the charges.
• The President has the right to be present or to have someone represent them during this investigation.
• If the investigating house passes the resolution with a two-thirds majority and confirms the charges, the President will be removed from office.
• The removal takes effect from the date the resolution is passed.

Privileges of the President: Article 361

• As President, you have some level of immunity under Article 361. This means you are not required to answer to any court for:
  • Actions taken while performing your official duties.
  • Any acts you did or are claimed to have done while carrying out those duties.
• The behavior of the President can only be examined if either House of Parliament appoints a court, tribunal, or other body to investigate the allegations under Article 61.
• However, this does not prevent anyone from starting a valid case against the Governor or the Government of India.
• The Article protects the President from any kind of criminal proceedings during their time in office.
• No court can issue orders for the arrest or imprisonment of the President while they are in office.
• A civil case can be brought against the President during their time in office if:
  • The action was taken or claimed to have been taken before or upon entering the office, and it was in their personal capacity.
  • A two-month notice is given to the President or sent to their office, which must include:
    • The nature of the case.
    • The reason for the case.
    • Details about the other party, including their name, description, and address.
    • The compensation or relief requested by the other party.

Powers of the President

The President of India is provided with a wide range of power that we will discuss one by one. Let’s start with the most interesting and important power i.e. the executive powers.

Executive powers

• Article 53 of the Indian Constitution states that all executive powers of the Union are held by the President of India.
• The President can use these powers through subordinate officers, either directly or indirectly, following the rules of the Constitution.
• Under this article, the President has several important responsibilities, including:
  • Appointment of key officials in the Constitution, such as the Prime Minister and the Council of Ministers.
  • Being kept informed about all major national matters.
  • Appointment of judges for constitutional courts, which include the Supreme Court and High Courts.
  • Appointment of state Governors, the Attorney General, the Comptroller and Auditor General, as well as the Chief Commissioner and members of the Election Commission of India.
  • Overseeing the administration of Union territories and appointing the Chief Commissioners and Lieutenant Governors of these areas.
  • The ability to remove the Council of Ministers, state Governors, and the Attorney General.

Military powers

• Article 53 mentions that the President is the Supreme Commander of all the Armed Forces of the Union of India.
• It highlights that no specific rules can limit this general principle.
• As the Supreme Commander, the President has certain powers, which include:
  • Choosing all the officers, including the leaders of the armed forces.
  • Initiating wars in the name of the President.
  • Signing peace treaties in the name of the President.

Diplomatic powers

• The President represents India in international relations and works to keep good relationships with other countries.
• All Ambassadors and High Commissioners in foreign countries act as his representatives.
• He accepts the credentials from diplomatic representatives of other nations.
• Before any treaties and agreements with other countries are approved by Parliament, they are negotiated by the President.

Legislative powers

• During the budget session, the President is the first to speak to the Parliament.
• The President can call a joint session of both Houses to resolve disagreements in the legislative process.
• The President'sapproval is required for:
  • creating a new state;
  • changing the boundaries of existing states;
  • changing the name of a state.
• Any laws related to the fundamental rights of Indian citizens need the President's approval.
• The President's consent is essential for money bills that start in the Lok Sabha.
• The President's approval is necessary for all bills passed by the Parliament to become law.
• The President has the power to issue ordinances when the Parliament is not in session.
• The President also nominates members to both Houses of Parliament.

Ordinance making power of the President: Article 123

Presidential Powers to Promulgate Ordinances: An ordinance can be issued by the President if: 

• Neither House of Parliament is in session.
• The President believes immediate action is necessary.
• The ordinance issued by the President has the same power as a law passed by Parliament. 

Essential Conditions for an Ordinance:

• The ordinance must be presented to both Houses of Parliament for approval once they are back in session.
• It will expire six weeks after Parliament reconvenes.
• If both Houses pass resolutions against it, the ordinance will also end.
• The President can withdraw the ordinance at any time.
• The ordinance must comply with the Constitution of India; otherwise, it will be considered invalid.

Financial Roles of the President:

• The President receives reports from the Finance Commission and acts on those reports.
• The President has access to the Contingency Funds of India.
• The President is responsible for presenting audits to Parliament.

Judicial Powers: The President holds certain judicial privileges, including: 

• The ability to correct judicial mistakes.
• The power to grant pardons and reprieves from punishments.
• The President can seek advice from the Supreme Courton: 
  • Legal issues.
  • Constitutional matters.
  • National importance topics.

Pardoning power: Article 72

Article 72 outlines the President's ability to grant pardons, respites, reprieves, and remissions of punishment. This includes the power to suspend or change court sentences. The President can exercise this power in specific situations:

• When a sentence is handed down by a court-martial.
• For offenses related to laws that fall under the Union's executive powers.
• In cases where a death sentence is imposed by a court.

Pardoning Power is Not Unlimited

• The extent of the President's pardoning powers is a topic of significant discussion. The Supreme Court has established guidelines to regulate the use of these powers.
• In the case of Maru Ram Etc. Etc v Union of India, the Supreme Court ruled that the President must act on the advice of the Central Government, making this advice mandatory.
• This principle was reiterated in Dhananjay Chatterjee alias Dhana v State of West Bengal.

Nature of Pardoning Power

• Indian Presidents are known for generously granting pardons. A pardon is an act of mercy, not a right that anyone can claim.
• Pardons are granted by the executive as a group rather than solely by the President, as they act on the advice of the Council of Ministers.
• A full pardon completely clears an individual of guilt, making them innocent in the eyes of the law, as if they had never committed a crime.
• The power to grant pardons is a discretionary authority of the President. This practice is also seen in other countries, for example, the U.S. grants this power to its President, while in the United Kingdom, it is held by the Crown.

Pardoning Power: Subject to Judicial Review

• There is a question regarding whether the President's pardoning power can be reviewed by the courts. Can such decisions be challenged, and what would the grounds for such reviews be?
• In the case of Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors, the court determined that the President's pardoning powers under Article 72 could be examined based on the specific details of each case.
• The court has the authority of judicial review, even in matters exclusively assigned to the Executive by the Constitution.
• The landmark case of Kehar Singh And Anr. Etc Vs. Union of India And Anr.addressed the judicial review of the President's pardoning power based on its merit. The Supreme Court concluded that:
  • The history and wording of Article 72 show that its scope is very broad. The powers given under this article cannot be strictly defined or limited by specific rules.
  • The term pardon is inherently discretionary, meaning that the decision to grant or deny a pardon cannot be easily justified, and thus cannot be reviewed by the courts based on its merits.
• In the Epuru Sudhakar Case, where a Congress activist was sentenced to ten years for the murder of two individuals, the Governor of Andhra Pradesh remitted his sentence. Legal challenges were raised about the immunity of pardoning powers. The Supreme Court stated that the exercise of these powers is subject to judicial review, particularly in relation to maintaining the Rule of Law.
• While the decision to grant clemency is at the President's discretion, it is still bound by certain standards and is not merely a matter of privilege.
• In exercising these powers, the President must consider the impact of their decision on the victims' families, society, and the precedent it sets for future cases.
• This ruling clarified that the President cannot claim immunity from judicial review regarding the use or non-use of the pardoning power.

Articles 72 and 161 of Constitution

• Article 161 gives the Governor of a state the authority to suspend, reduce, or change the sentences of offenders in specific situations related to laws or rules that the state's executive power covers. 
• Article 72 and Article 161 both deal with the powers of pardon. 
• The President of India is granted power under Article 72. 
• The Governor of a state is given powers under Article 161. 
• The President's power is broader in its application. 
• The Governor's powers are more limited in comparison. 
• The President can grant pardons even in Court Martial cases. 
• The Governor does not have the ability to interfere with Court Martial cases. 
• The President can grant pardons in cases involving the death penalty. 
• The Governor is not allowed to grant pardons in cases involving the death penalty. 

Emergency Powers

• Article 352 of the Constitution of India provides the President with three types of emergency powers.
• If a National Emergency is declared due to external threats or internal rebellion, the President has the power to declare a state of emergency. This leads to the establishment of the President's rule in the country, but it must be recommended by the Prime Minister and the Council of Ministers.
• If there is a breakdown of constitutional or law and order in a state, the President can declare a state of emergency, which puts the state under the Governor's rule.
• If the financial stability of the nation or a state is significantly threatened, the President has the right to step in and guide the state to control and manage public spending.

Position of the President 

The role of the President has evolved regarding his ability to use power since the Constitution was first established.  Two key changes occurred through the 42nd Amendment and the 44th Amendment of the Constitution. 

Before the 42nd Amendment Act of 1976: 

• The President had the freedom to make decisions based on his own judgment.
• The President could also seek advice from the Council of Ministers, which is led by the Prime Minister, to help him perform his duties.

After the 42nd Amendment Act of 1976:

• The Constitution was updated to state that the President must act based on the aid and advice of the Council of Ministers.
• However, it was unclear whether the President was required to follow this advice or could choose not to.

44th Amendment Act of 1978:

• This amendment was introduced to clarify the confusion caused by the 42nd Amendment.
• It stated that the President has the right to return the advice to the Council of Ministers for a second look, but only once.
• If the Council sends the same advice again without any changes, the President must accept it.

The Vice President (Article 63)

Article 63 talks about the vice president of India.

Jagdeep Dhankar 

Functions of the Vice-President

• Chairman of Rajya Sabha: The Vice-President serves as the ex-officio Chairman of the Rajya Sabha, also known as the Council of States.
• Casting Vote: In the event of a tie in the Rajya Sabha, the Vice-President has the authority to cast the deciding vote.
• Ceremonial Representation: The Vice-President represents the Council of States at various ceremonial occasions.
• Protecting Rights: One of the duties of the Vice-President is to protect the rights and privileges of the members of the Rajya Sabha.
• Goodwill Missions: The Vice-President undertakes goodwill missions to foreign countries on behalf of India.

Role as Acting President:

• When the President is Unable to Perform: The Vice-President is responsible for performing the functions of the President in cases where the President is unable to do so due to absence, illness, or other reasons until the President resumes duties.
• Vacancy in the Presidency: If there is a vacancy in the office of the President due to resignation, removal, death, or other reasons, the Vice-President acts as President until a new President is elected.
• Maximum Extension Period: The period during which the Vice-President can act as President before a new President is elected can be extended for a maximum of six months.

The Council of Ministers 

Article 74 of the Indian constitution states that:

• Composition: The Council of Ministers is responsible for assisting and advising the President of India. It must include a Prime Minister who leads the council. 
• President's Role: The President is expected to perform functions and make decisions based on the advice provided by the Council of Ministers. 
• Reconsideration of Advice: If the President returns any advice for reconsideration, the Council of Ministers is obligated to review it. 
• Binding Advice: After reconsideration, the President is bound to act in accordance with the advice given by the Council of Ministers. 

Size of Ministries

• The executive authority in India is held by the Council of Ministers.
• This council is made up of various ministers, including cabinet ministers and junior ministers.
• Before the year 2003, there were no rules about how many ministers could be in a ministry, which led to confusion.
• With the introduction of the 91st Amendment Act in 2003, a limit was set on the size of the ministries.
• This amendment established that the number of members in the Council of Ministers cannot be more than 15% of the total members in the Lok Sabha or the relevant Legislative Assembly of the state.
• However, there are exceptions for smaller states such as Sikkim, Mizoram, and Goa, which have fewer than 40 members in their legislative assemblies.

Disqualification on defection on the ground of split in a political party

• Article 102(2) and Article 191(2) outline the Anti-Defection laws for members of the Lok Sabha. 
• A member of the House will be disqualified if: 
  • They voluntarily leave the political party they belong to. 
  • They vote or do not vote against the instructions given by their party or any authorized person or authority. 
• In both cases, the member must get prior approvalfrom the political party, person, or authority. 
  • This approval must be obtained within fifteen days from the date of voting or abstention. 
• If a member claims to represent a faction that has formed due to a split in their original party, they must meet the following condition: 
  • The faction should consist of one-third or more of the members of the original political party. 
• If this condition is met, the members of this faction cannot be disqualified under the Anti-Defection laws. 

A non-member can become a Minister

• Article 75 of the Constitution of India outlines how Union Ministers are appointed. 
• Initially, the President appoints the Prime Minister. 
• Following this, the President appoints other ministers based on the advice of the Prime Minister. 
• The rules specify that any minister who is not a member of either House of Parliament will stop being a minister after six months from their appointment date. 
• To remain a minister, a non-member must be elected to either House of Parliament within that six-month period. 

A convicted person cannot be appointed Chief Minister

• There was a question about whether a person who has been convicted can be appointed as Chief Minister.
• The Supreme Court made a ruling on this issue in the well-known case of B.R. Kapoor v State of Tamil Nadu, also referred to as the Ms. J. Jayalalitha Case.
• In this case, the court decided that anyone who is convicted of a crime and sentenced to imprisonment for two years or longer cannot be appointed as Chief Minister.
• This ruling is based on Article 164(1) of the Indian Constitution, which outlines the eligibility requirements for the position of Chief Minister in any state.

Dissolution of Parliament 

• In our country, the Lok Sabha has a term of five years, but it can be ended sooner than that. 
• According to Article 83(2) of the Indian Constitution, the Lok Sabha can be dissolved after five years from the date of its first meeting. 
• When this happens, an election is held to choose new Members of Parliament. 
• The President can also dissolve the Lok Sabha before the end of its term, based on the advice of the Prime Minister. 
• Additionally, the President has the power to dissolve the Lok Sabha if they believe that a stable government cannot be formed after a government has resigned or fallen apart. 

Principle of Collective Responsibility

• The principle of Collective Responsibility means that the Council of Ministers is responsible together for everything the government does or does not do.
• This principle indicates that all ministers in the government are united and must support one another in Parliament.
• The government is seen as a team of ministers rather than as individual leaders.
• Every minister is required to publicly back the decisions made by the cabinet, even if they have personal disagreements.
• This public support also includes voting in favor of government decisions in the legislature.

Minister’s Individual Responsibility

Ministerial Individual Responsibility refers to the principle that a cabinet minister is fully accountable for all the actions and decisions made by their ministry or department. This means that if something goes wrong within a minister's area of responsibility, it is the minister who must take the blame and be prepared to resign. 

• When a minister is individually responsible, their political party is not held accountable for the minister's failures. Instead, the minister alone faces the consequences and must take responsibility for their team's actions. 
• This principle emphasizes the idea that each minister is in charge of their department and must ensure that everything runs smoothly. If there are mistakes or issues, it is the minister's duty to own up to them and, if necessary, step down from their position. 

Appointment of Prime Minister

• The President of India appoints the Prime Minister based on the rules in Article 84 and Article 75. 
• The Prime Minister is the leader of the party or group of parties that has the most members in the Lok Sabha. 
• When a party wins enough seats to have a majority, the President invites the leader of that party to become the Prime Minister of India. 
• The Prime Minister is seen as the real leader of the country. 

Constitutional Duties of Prime Minister

• The Prime Minister suggests names to the President for appointing government Ministers.
• The Prime Minister can reorganize the Cabinet and decide how to divide responsibilities among different ministries.
• He leads the meetings of the Cabinet and has the authority to alter decisions made by it.
• The Prime Minister can recommend to the President that a minister should resign or be removed from the Cabinet.
• He also oversees and manages the work of the Ministers in the Cabinet.
• The Prime Minister has the option to resign at any time and can request the President to dissolve the Cabinet.
• He may advise the President to dissolve the entire Lok Sabha to hold new elections.
• If the Prime Minister resigns, the Cabinet ceases to operate, and it automatically dissolves if the Prime Minister passes away.

Rights and powers regarding Appointments:

Prime Minister can advise the President for the appointment of the following:

• Comptroller and Auditor General of India;
• Attorney General of India;
• Advocate General of India;
• Chairman and members of UPSC;
• Selection of Election Commissioners;
• Members and chairman of the Finance Commission.

Rights/Powers with regard to Parliament of India:

Prime Minister is the leader of the Lok sabha with rights to exercise the powers as follows:

• The prime minister decides the foreign policy of the country.
• He is the speaker of the Central Government.
• He is the leader of the majority party or coalition of parties in the Parliament.

The Prime Minister is also is the chairman of various organizations including:

• NITI Aayog;
• National Development Council;
• National Integration Council;
• Inter-state Council;
• National Water Resources Council.

He is also the head of the disaster management team during a political level emergency. He is also the political head of all the forces.

Dismissal of a Minister

The minister of the Lok sabha can be removed from his post under the following conditions:

• Upon the death of the minister;
• Upon self resignation from the minister;
• If the minister is dismissal by the President, for unconstitutional his acts as per Article 75(2);
• Article 75 of the constitution states that the minister holds the office at the pleasure of the President;
• Upon direction from the Court for committing the violation of any law;
• If the minister loses the eligibility to be a member of Parliament.

Dismissal of the Cabinet

The Cabinet of Minister dissolves if:

• The Prime Minister asks the President of India to dissolve the Cabinet;
• The Prime Minister advises the President to dissolve entire Lok Sabha to conduct fresh elections;
• If the Prime Minister resigns from his post;
• The cabinet automatically dissolves after the death of the Prime Minister.

The Attorney-General of India

Article 76 and Article 78 of the Indian Constitution pertain to the Attorney General of India, who is the highest legal officer in the country. 

R. Venkataramani

Term and Appointment

• The Attorney General is appointed by the President of India and serves at the President's pleasure. 

Qualification 

• To be eligible for the position, a person must be qualified to become a judge of the Supreme Court of India. 

Functions and Duties 

Article 76(2) outlines the functions and duties of the Attorney General: 

• The Attorney General can advise the Government of India on legal matters as assigned by the President. 
• He is responsible for performing other legal duties assigned by the President. 
• He must also carry out functions prescribed by the Constitution or other legislation. 

Article 76(3) specifies the Attorney General's role in legal proceedings: 

• He can represent the Government of India in the Supreme Court in cases involving the government. 
• He must appear on behalf of the government in references made by the President to the Supreme Court under Article 143. 
• He is also required to represent the government in High Court cases where the Government of India is a party. 

Wherefore, the Union Executive is one of the most important organs of the Indian democracy. It forms the soul of our Indian administrative system. Union executive act as the strong shoot for all the branches of administrative and executive bodies. The Constitution-makers have assembled together all the provisions needed to form a strong and responsible executive system for our nation. Thus, it makes it important for the citizens as well to coordinate with the executive for the better functioning of our Indian democratic system.

State Executive

• The State Executive is made up of the Chief Minister, the Council of Ministers, and the Governor.
• It follows a similar Parliamentary system as the Union Government, but the Union has more power in certain areas.
• This structure is designed to keep a unitary spirit in the country's framework.
• The Governorserves two main purposes:
  • As the constitutional head of the state.
  • As a link between the state government and the central government.
• The Governor acts based on the advice of the Council of Ministers.
• All executive actions are carried out in the Governor's name.
• This article looks closely at:
  • The relationships between different state officials.
  • How power is shared among them.
  • Their responsibilities and accountability.

The Governor

• According to Article 153 of the Indian Constitution, every state in India is required to have a Governor.
• The Governor acts as the nominal head of the state, similar to how the President is the nominal head of the country.
• While the Governor has powers and responsibilities similar to those of the President, these are exercised at the state level.
• However, in practice, the real authority rests with the State Chief Minister and their council of ministers.
• The 7th Constitution Amendment Act of 1956 introduced a provision under Article 153 that allows the same person to serve as the Governor of two states at the same time.
• The term of office for a Governor is five years.

Appointment, Tenure and Removal of a Governor

• Appointment: The Governor of a state in India is appointed by the President, as per Article 155 of the Constitution. The President issues a warrant under his hand and seal to make the appointment. 
• Tenure: The Governor holds office for a term of five years, starting from the date of assuming office. However, the Governor continues to hold office until a successor is appointed, even if the term expires. 
• Pleasure of the President: The Governor remains in office at the pleasure of the President, meaning the President can remove the Governor at any time. 
• Resignation: The Governor can resign from the position by submitting a written letter of resignation to the President. 

Qualifications

Article 157 states the two qualifications to be fulfilled for a person to be appointed Governor. The two provisions are:

• He/She should be an Indian citizen.
• He/She should have completed 35 years of age. 

Conditions of Governor’s Office

• Office of Profit: The individual should not be holding any office of profit at the time of appointment.
• Membership in Legislature: The individual should not be a member of the Parliament or any State Legislature. If a person holding such a position is appointed as Governor, they must vacate their previous office.
• Allowances and Emoluments: The Governor is entitled to allowances, emoluments, and privileges as determined by Parliament. If there are no specific provisions, these will be granted as per Schedule II.
• Protection of Allowances: The allowances, emoluments, and privileges cannot be diminished during the Governor's term. If a Governor oversees two states, the expenses will be shared between the states as per the President's decision.

Oath

Every Governor, before entering his office is bound to take an oath before the Chief Justice of the High Court or the senior most judge, in the former’s absence. This is mentioned under Article 159. The oath is as follows:

“I, A. B., do swear in the name of God that I will solemnly affirm faithfully execute the office of Governor (or discharge the functions of the Governor) of ………….(name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of..………(name of the State). ”

Can the governor be dismissed arbitrarily?

• According to Articles 155 & 156 of the Constitution, the Governor is appointed by the President and remains in office as long as he has the President's approval. 
• This means the Governor can serve a full term of 5 years if he continues to have the President's support. 
• Article 74 states that the President must act based on the advice of the Council of Ministers. 
• Therefore, when the President decides to remove the Governor, it is essentially a decision made by the Central Government. 
• In the case of B.P. Singhal vs UOI (2010), the constitutional bench of the Hon'ble Court ruled that while the Central Government has the authority to remove the Governor, this power cannot be used in an arbitrary manner. 
• The Central Government must provide valid reasons and evidence to justify the removal of the Governor. 
• Thus, a Governor cannot be removed simply because the Union government no longer trusts him or her. 

Powers of Governors

The role, power, and functions of the Governor are similar to those of the President. His or her powers can be categorized into four main areas. 

Executive Power

• According to Article 154(1), the executive powers are given to the Governor, who can exercise them directly or through the Council of Ministers. 
• The Governor makes significant appointments in the state, including: 
  • Chief Minister and Council of Ministers
  • Chairman and members of the State Public Service Commission
  • State Election Commissioner
  • Advocate General
  • Chief Justice of the High Court
  • District Judges
  • Vice Chancellors of Universities
• Under Article 356, the Governor can suggest to the President to impose a State Emergency. During this emergency, he or she has broad executive powers as the President's representative. 
• The Governor oversees state administration by managing subjects in the state list and determining policies and portfolios for various ministers. 

Financial Power

• A money bill cannot be introduced in the state legislature without the Governor's prior approval. 
• The state Contingency Fund is available to the Governor, allowing him or her to withdraw funds for unexpected expenses. 
• The Governor ensures that the Annual state budget is presented and discussed in the State Legislature. 

Legislative Power

• The Governor can summon and prorogue both houses of the Legislature, ensuring that there is no more than a six-month gap between sessions. 
• Under Article 192, the Governor can disqualify any legislator who does not meet the conditions outlined in Article 191. 
• The Governor must address the state legislature at the start of the first session each year and after state assembly elections. 
• The Governor has the power to hold a bill and send it to the President for consideration. Additionally, he or she can: 
  • Give assent to a bill
  • Withhold assent
  • Return it for reconsideration (except for money bills)

Pardoning Power

• According to Article 161, the Governor can grant pardons, reprieves, respites, and remissions of punishment. He or she can also suspend, remit, or commute sentences for offences related to state executive powers, except for cases decided by a court martial. 
• However, the Governor cannot grant a pardon in cases where the death penalty has been imposed. 

Ordinance making power of the Governor

• Under Article 213, the Government can create an ordinance if necessary, especially when both houses of the legislative assembly are not in session. 
• However, there are two situationswhere the Governor is not allowed to issue an ordinance: 
  • If the ordinance contains provisions that the Governor would have had to reserve for the President, as if it were a Bill. 
  • If the State Legislature already has a law with similar provisions, which would become invalid without the President's assent. 

Chief Minister 

The Chief Minister serves as the real executive and heads the state government, similar to the Prime Minister's role at the national level. 

Qualifications:

• A Chief Minister must be a citizen of India.
• They must be a member of the State Legislature.
• They should be at least 25 years old.
• If a person who is not in the legislature is appointed as Chief Minister, they must be elected to the State Legislature within six months. If they do not get elected, they will lose their position as Chief Minister.

Appointment:

• According to Article 164 of the Constitution, the process for appointing a Chief Minister is defined.
• The Governor appoints the leader of the largest party in the House or the leader chosen by the biggest coalition as the Chief Minister.
• If no party has a clear majority, the Governor can choose a leader who can prove they have majority support later on.
• If the Chief Minister passes away and there is no successor, the Governor can choose someone. However, if the ruling party nominates a person, the Governor must appoint that nominee.
• A non-legislative person can be Chief Minister for six months, during which they must win a seat in the State Legislature or they will lose the position.

Term of Office:

• The Chief Minister's term is not fixed and they serve at the will of the Governor.
• As long as the Chief Minister has the support of the majority in the Legislative Assembly, they cannot be dismissed by the Governor.
• A Chief Minister can be removed through a vote of no-confidence in the State Legislative Assembly.

Oath and Affirmation:

• Before starting their term, the Chief Minister takes an oath from the Governor.
• The oath includes promises to uphold the Constitution, protect India's sovereignty and integrity, carry out their duties responsibly, and administer justice fairly.

Salary and Allowances:

• Article 164(5) gives the State Legislature the authority to set the Chief Minister's salary and allowances through laws.
• The Chief Minister receives a salary, a sumptuary allowance, free accommodation, travel allowances, medical care, and other benefits.

The State Council of Ministers

The Council of Ministers is appointed by the Governor. Together with the Chief Minister, they hold the actual authority and carry out policies and regulations in the State. This group acts as the executive head of the State.

Maximum Size of Ministries

• The total number of ministers, including the Chief Minister, in the Council of Ministers of a State cannot exceed fifteen percent of the total members in the State's Legislative Assembly.
• However, the number of ministers, including the Chief Minister, must be no less than twelve.
• If a State had more than the allowed fifteen percent of ministers when the Constitution (Ninety-first Amendment) Act, 2003 began, the State must reduce the number of ministers to comply within six months.

Disqualification of Defection due to Split Abolished

• The Anti-defection law was created to maintain the integrity of democracy. It was introduced in the 10th schedule to combat issues like horse trading in politics.
• Initially, if one-third of party members agreed to leave, they could defect without penalty.
• This rule led to many defections, so it was changed in the 91st amendment to require two-thirds of party members to agree for a split.
• Under the new rules, a member will not be disqualified if:
  • They voluntarily resign from their original political party, or
  • They vote or do not vote in the House against the directions of their political party, and this action is not accepted by the party or authorized person within fifteen days.

Advocate-General 

• Article 165 of the Indian Constitution discusses the role of the Advocate-General for the State. 
• The Advocate-General is the main Law Officer of the State, and their duties are similar to those of the Attorney-General of India. 
• This position is appointed by the Governor of the state and the Advocate-General serves at the Governor's discretion. 
• The Governor also decides the salary of the Advocate-General. 
• To qualify for this role, an individual must be eligible to become a Judge of the High Court. 
• The Advocate-General has the right to attend and speak in the meetings of either House of the State Legislature, but they do not have the right to vote. 
• Additionally, the Advocate-General has the right to present cases in any court within the state. 

Protection of Governor 

• Article 361 outlines the rules for protecting the Governor. 
• The Governor is not accountable to any court for how he or she carries out official duties. 
• No criminal charges can be filed against the Governor while in office. 
• The Governor cannot be arrested during their time in office. 
• If someone wants to bring a civil lawsuit against the Governor, it must relate to actions taken in his or her personal capacity. 
• Such civil cases can only be filed in court while the Governor is still in office. 

The Indian Government’s structure is Quasi-Federal in nature. The President operates at the National Level, the Governor operates at the State Level. The Governor being the nominal head doesn’t possess any real power but does have some important discretionary functions. This distribution of power between the Governor and the Chief Minister helps maintain balance in a state and also to keep a check on the functioning of the individual machineries.