Constitutional Position of the President and relation with the Council of Ministers | Law Optional Notes for UPSC PDF Download

Introduction

In the complex and intricate web of India's constitutional framework, the positions and powers of the President and Governors of states hold a significant place. Both roles play a crucial role in the functioning of the Indian government, and understanding their constitutional position in relation to the Council of Ministers is paramount.

Election of the President

The President is elected by an electoral college, in accordance with the system of proportional representation by means of the single transferable vote by secret ballot.' The Electoral College consists of:

• Elected members of both Houses of Parliament, and
• elected members of Legislative Assemblies of States (Art 54).

Two fundamental principles govern this election

• Uniform Representation: There must be uniformity in the representation of different states in the election.
• Parity: Parity between the states collectively and the Union must be maintained in the electoral college.

To be eligible as a candidate for the President's election, one needs ten proposers and ten seconders. The Presidential and Vice-Presidential Elections Act, 1952, outlines the nomination process. It's worth noting that the President's election cannot be hindered or suspended due to vacancies in the electoral college, even if a state assembly has been dissolved under Article 356, and its members cannot participate in the election.
The President's term of office spans five years, and they are eligible for re-election. The oath or affirmation of office is administered by the Chief Justice of India or, in their absence, the senior-most Judge of the Supreme Court.

Qualifications for Election as President

The Constitution specifies eligibility criteria for presidential candidates. To run for the presidency, a person must:

• Be an Indian citizen.
• Be at least 35 years old.
• Qualify for election as a member of the Lok Sabha (the lower house of India's Parliament).

There are also certain restrictions

• The candidate should not hold any office of profit, except for the President, Vice-President, Governor of a State, or Central or State Minister.
• The candidate should not be a member of either House of Parliament or a State Legislature.

Powers of the President

The President holds significant powers in various domains:

• Executive Powers:
  • Directly or through subordinate officers, the President exercises executive authority.
  • As the Supreme Commander of the Defense Forces, the President can declare war and make peace.
  • The President appoints key officials like Governors, Chief Justice and Judges of the Supreme Court and High Courts, Prime Minister, Union Ministers, Chief Election Commissioner, and others.
  • Rules for the efficient functioning of the government are made by the President, and responsibilities are allocated among ministers.
  • The President must be informed about all decisions made by the Council of Ministers.
  • Union Territories are administered by the President through Administrators or Lieutenant Governors.
  • The President has the authority to remove various officials, including ministers, judges, and election commissioners.
• Legislative Powers:
  • The President can summon, prorogue, and address Parliament. Additionally, the President can dissolve the Lok Sabha.
  • Messages can be sent by the President to either House of Parliament regarding bills or other matters.
  • Various reports, such as the Annual Financial Statement and reports from the Comptroller and Auditor-General, are presented by the President to Parliament.
  • Certain bills require the President's prior sanction or recommendation, such as those related to the creation or reorganization of states, Money Bills, and bills affecting taxation or trade and commerce. No bill can become law without the President's signature.
• Financial Powers:
  • Money Bills cannot be introduced in Parliament without the President's prior approval.
  • The President can make advances from the Contingency Fund of India to cover unforeseen expenditures.
  • Determining the state's share of income tax proceeds and yearly grants-in-aid to certain states falls under the President's jurisdiction.
  • The President appoints the members of the Finance Commission and presents the Annual Financial Statement (Budget) to Parliament at the start of each fiscal year.
• Judicial and Diplomatic Powers:
  • The President can grant pardons, reprieves, suspensions, or commutations of sentences for offenders.
  • Diplomatic representatives, including Ambassadors, are appointed by the President, and foreign diplomatic representatives present their credentials to the President.
• Emergency Powers:
  • The President can declare a national emergency when the country's security is at risk.
  • The President can impose President's rule in states.
  • Financial emergencies can also be proclaimed by the President.

Nature and Extent of Executive Power of President

• The executive branch of the Union in India comprises the President, Vice-President, Council of Ministers, and Attorney General. Article 52 establishes the position of the President of India, and Article 53 states that the President holds the executive authority of the Union, serving as the Head of State. All executive actions are conducted in the President's name and are authenticated according to rules established by the President (Article 77).
• The President possesses significant administrative powers, including the authority to appoint and remove officers, ministers, and others. The President also holds military, diplomatic, and legislative powers. Article 73 specifies that the Union's executive power extends to matters for which Parliament has the authority to create laws, and it encompasses the exercise of rights, authority, and jurisdiction granted to the Government of India through treaties or agreements. Consequently, the executive power aligns with the Union's legislative authority.
• In the case of Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549), it was noted that executive power generally refers to the functions of government that remain after legislative and judicial functions are excluded. It is not necessary or feasible to provide an exhaustive list of executive functions. Executive power is not limited to the administration of existing laws but also involves shaping governmental policies, initiating legislation, maintaining law and order, advancing social and economic well-being, conducting foreign policy, and managing the overall administration of the State.

Position of President: Relation between President and Council of Ministers

• The President is required to exercise their powers in accordance with the Constitution. Article 53(1) states that the President can exercise executive power either directly or through subordinate officers, with Ministers being considered as such subordinate officers.
• Article 74(1) mandates the existence of a Council of Ministers with the Prime Minister as its head, whose role is to assist and advise the President in carrying out their functions.
• Article 74(2) emphasizes that the question of what advice was given by the Ministers to the President cannot be scrutinized by any court. This highlights the confidential nature of the relationship between the President and the Council of Ministers. Prior to the 42nd Amendment, there was no explicit provision in the Constitution stating that the President was bound by ministerial advice.
• The 42nd Amendment altered Article 74 to make it clear that the President is bound by the advice of the Council of Ministers. However, the 44th Amendment allowed the President to send back advice to the Council of Ministers for reconsideration, but ultimately, the President must act in accordance with the advice after such reconsideration.
• Article 75(1) states that the President appoints the Prime Minister, and other Ministers are appointed by the President on the advice of the Prime Minister.
• Article 75(2) specifies that Ministers hold office at the pleasure of the President, meaning they can be dismissed by the President.
• Article 75(3) establishes that the Council of Ministers is collectively responsible to the Lok Sabha. This implies that the entire body of the Council of Ministers is accountable for the overall governance of the country. If a vote of no-confidence is passed against any individual Minister, the entire Council of Ministers must resign.
• Additionally, the 91st Amendment to the Constitution in 2003 introduced clause (1A) to Article 75(1), limiting the size of the Council of Ministers, including the Prime Minister, to not exceed 15 percent of the total number of members in the Lok Sabha.

President's Discretion: A Limited One According to Dr. Ambedkar

• Dr. Ambedkar emphasizes that the President's discretionary powers in India are quite limited. In the draft Constitution, the President's role is similar to that of the English King. The President serves as the ceremonial head of state but not the executive head. While representing the nation, the President does not govern it. Instead, the President's function is mainly symbolic, serving as a seal through which the nation's decisions are announced. The President cannot act against the advice of the Council of Ministers and is entirely dependent on their guidance.
• Alladi Krishna Ayyar, a member of the Constituent Assembly's Drafting Committee, contends that the term "President" in the Constitution essentially refers to the Union Council of Ministers, which is collectively responsible to the Lok Sabha. In most cases, the President cannot exercise discretion; their actions are bound by the advice of the Council of Ministers. The President's authority is limited to specific situations.
• Regarding the appointment of the Prime Minister, the President's discretion is minimal. When a single party holds an absolute majority and has a recognized leader, the President's choice of Prime Minister is essentially a formality. Similarly, if the ruling party selects a new leader after the death or resignation of the Prime Minister, the President is obliged to appoint that individual as Prime Minister. However, in the case of a hung parliament or coalition government, the President can exercise some discretion in selecting a leader who can command majority support in the Lok Sabha.
• The dismissal of a Minister or Cabinet is primarily governed by the principle of collective responsibility. Ministers serve at the President's pleasure, but the President is obligated to act according to the Prime Minister's advice. This ensures that the Council of Ministers remains collectively responsible to the Lok Sabha for the government's overall conduct.
• Dr. Ambedkar also emphasizes the principle of individual responsibility of each Minister to Parliament, where each Minister must answer questions regarding their department's affairs. However, when a Minister's action is taken with Cabinet approval, collective responsibility applies, and the entire Cabinet should support and defend that action. If the Cabinet does not support a Minister who acted without Cabinet approval, it is the Minister who must resign, not the entire Cabinet.
• The President's power to dismiss a Ministry that has lost the confidence of the Lok Sabha is clear. However, there is a question of whether the President can dismiss a Ministry that, despite enjoying Lok Sabha's confidence, has lost the support of the people. Dr. Ambedkar suggests that the President can dismiss such a Ministry if there are reasonable grounds to believe that it has lost the people's support, as the will of the people must ultimately prevail.
• Regarding the dissolution of the Lok Sabha, as long as the Prime Minister and their Cabinet enjoy confidence, the President is bound to dissolve the Lok Sabha only when advised by the Prime Minister. However, in specific circumstances where the Prime Minister loses majority support or faces a vote of no confidence, the President may need to consider alternatives.
• Effective communication between the President and Prime Minister is crucial for the principle of collective responsibility. The Prime Minister is duty-bound to inform the President of Cabinet decisions, provide requested information, and submit matters for the Cabinet's consideration. While there can be some discretion regarding the extent of information shared, mutual confidence and cooperation between the two are essential.
• In practice, since 1950, it has been established that the President in India serves as a nominal, constitutional, or formal Head, while the real executive power resides with the Council of Ministers.

Supreme Court's Views

• The Supreme Court has consistently taken the view that position of President (and Governors) under the Constitution is similar to the position of Crown under the British Parliamentary system. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. The power of the sovereign (or king) is conditioned by the practical rule that Crown must find advisers to bear responsibility for his action.
• This rule of English law is incorporated in our Constitution also. It is the essence of Parliamentary Government that the real executive powers should be exercised by the Council of Ministers responsible to Lok Sabha. The Council of Ministers enjoying a majority in the legislature concentrated in itself the virtual control of both executive and legislative functions.
• Ram Jaway v. State of Punjab (AIR 1955 SC 549), Shamsher Singh v. State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard. Wherever the Constitution requires the satisfaction of President or Governor, for example Article 213, 311(2)(c), 356,360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government. It is the satisfaction of Council of Ministers on whose aid and advice the President or Governor generally exercises all his powers.
• Whether the functions exercised by the President are the functions of the Union or the functions of the President, they have equally to be exercised on the aid and advice of the Council of Ministers except those which he has to exercise in his discretion (Shamsher Singh v. State of Punjab AIR 1974 SC 2192).
• These few well-known exceptions (according to Krishna Iyer, J. in his separate concurring opinion in the aforesaid case) relate to:
  • the choice of Prime Minister (or Chief Minister) restricted by the consideration that the Prime Minister (or Chief Minister) should command a majority in the House;
  • the dismissal of a government which has lost the majority in the House but refuses to quit office; and
  • the dissolution of the House where an appeal to the country has become necessary, though the better course may be to act in this regard on the advice of the Prime Minister or Chief Minister.
• The motivation for taking such an action must be compelled by the peril to democracy, and the appeal to the House or to the country must become blatantly obligatory. In U.N. Rao v. Indira Gandhi (AIR 1971 SC 1002), the Apex Court held: Art. 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers.
• Any exercise of executive power without such aid and advice (even after the President has dissolved the legislature) will be unconstitutional in view of Art. 74(1) and Arts. 75(2)-(3). In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed that although the executive power is vested in President or Governor, it is actually carried on by Ministers. The President or Governor means the President or Governor aided and advised by Ministers.'

Conclusions

• India has a President but not a Presidential form of Government, as found in America. Indian President is head of the State but not the Executive. He represents the nation but does not rule the nation, as India has a Parliamentary system of Government. The Supreme, Court has consistently taken the view that position of President (and Governors) under the Constitution is similar to the position of Crown under the British Parliamentary system. It is the essence of Parliamentary Government that the real executive powers should be exercised by the Council of Ministers responsible to Lok Sabha.
• Ram Jawaya v. State of Punjab (AIR 1955 SC 549), Shamsher Singh v. State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard.
• According to Dr. Jain:
  • the Constitution envisages not a dictatorial but a democratic President who uses his judgment to keep the democratic and representative government functioning and not to thwart or to subvert the same (Dr. M.P.Jian).
• Our Constituent Assembly was deeply concerned about concentrating political power in a single office. With no shortage of despotic regimes wherever they turned, Assembly members wanted desperately to avoid paving the way for a future dictator.
• According to Dr. Ambedkar, an ideal executive must be both stable as well as responsible to the people who elected it. There was no political system in vogue that satisfied both objectives equally. The American and Swiss presidencies offered greater stability, while British Cabinet. Government seemed-more accountable to the people. The Assembly ultimately settled for accountability over stability i.e. British pattern. It is, however, submitted that it would have never been the intention of the framers of Constitution to make the President a puppet or a passive spectator. In view of the oath which he takes... to preserve, protect and defend the Constitution and law, and that:
• ....devote myself to the service of people of India', he is duty bound to advise, to guide and exert his influence on decisions taken by the Prime Minister\ Thus the President can exercise a persuasive influence. His role is at best advisory. However, the President can exercise a persuasive influence. His role is at best advisory.
• The 44th Amendment recognized this limited but essential role of the President. Being impartial and above the party politics, he exerts his influence on the decisions of Prime Minister. Mr. Nehru, the first Prime Minister of the country observed:
• We did not want to make the President just a mere figurehead ... we did not give him any real power but we have made his position one of great authority and dignity. He is also the Commander-in-Chief of the defence forces...
• President R. Venkataraman in his autobiography My Presidential Years on page 446 has expressed the view that advice of the cabinet violative of the constitutional provisions is not binding on the President.
• Judicial Scrutiny of Advice of Council of Ministers [Art. 74(2)] Art. 74(2) lays down that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
• Thus, according to Art. 74(2), the courts are barred from enquiring into what advice has been given by the Cabinet to the President. The advice given by the Cabinet or a Minister is confidential and the courts can neither take cognizance thereof nor enquire as to what advice has been given to the President. That would also imply that if the President refuses to act on the advice of the Cabinet, the courts are barred from compelling the President to act according to Cabinet advice. The reasons (or grounds) which may have weighed with the Council of Ministers in giving advice also form part of the advice and are protected from judicial scrutiny.
• The notings of the officials which lead to the cabinet note and thus decision also form part of the advice tendered' to the President. The immunity from disclosure to courts, however, is restricted to the actual advice tendered to the President. Art. 74(2) is no bar to the production of all the material (viz. files, records) on which the ministerial advice is based (S.P. Gupta v. President of India Judges Transfer Case, AIR 1982 SC 149). For instance, the correspondence between the Chief Justice of India, the Chief Justice of the concerned High Court and the Central Government (which constitutes the decision to continue or discontinue a High Court Judge) could be inquired into by courts.
• If the court decides that the disclosure of documents relating to the advice is not against the public interest of the State interest and orders for disclosure, the order will be binding and its non-compliance will amount to contempt of court (R.K. Jain v. UOI (1993) 4 SCC 119).
• Whether Non-member of Either House can be Appointed Minister/Prime Minister.
• A well-established convention in all countries having the Parliamentary system of government is that a Minister should normally be a member of either House of Parliament. This is so because their presence in Parliament makes a reality of their responsibility and accountability to Parliament, and, facilitates co-operation and interaction between them and Parliament. But, it is not an absolute rule. In India, even a non-member may be appointed as a Minister but he cannot hold the office for longer than six months without becoming a member of a House of Parliament in the meantime [Art. 75(5)]. The Minister can function effectively even though not a member of any House.
• In Harsharan Verma v. UOI, 1987 Supp. SCC 310, the Court upheld the appointment of a non-member as a Minister under Art. 75(5) of the Constitution read with Art. 88 thereof, which article, inter alia, conferred on every Minister the right to speak in, and otherwise to take part in the proceedings of, either House, in joint sitting of the Houses, and in a Committee of Parliament of which he may be named a member, though not entitled to vote. To appoint a non-member of Parliament as a Minister did not militate against the constitutional mechanism nor did it militate against the democratic principles embodied in the Constitution (Harsharan Verma case).
• A nonmember can remain a Minister only for a short period of six months and as a Minister he is collectively responsible to Lok Sabha. Further, a person who may be competent to hold the post of a Minister may be defeated in the election. There is no reason why he cannot be appointed as a Minister pending his election to the House. However, if he fails to become a member of the House in the stipulated time, he has to resign.
• Then, he cannot be re-appointed as a Minister for another term of six months. Such a practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. It would be subverting the Constitution to allow such a practice (S. R. Chaudhari v. State of Punjab AIR 2001 SC 2707). In this case, it was held that a non-member cannot be repeatedly' appointed as a Minister for a term of 6 consecutive months without getting himself elected in the meanwhile. Art. 164(4) is in the nature of an exception to the normal rule of only members of the legislature being Ministers, restricted to a short period of 6 months.
• This exception must be strictly construed. This is only a one-time privilege. The non-member Minister even during the period of six months' does not have the right to vote or the legislatiye immunity as provided by Art. 494(2), He also cannot draw the benefits of an MLA. The will of the people cannot be permitted to be subordinated to political expediency of the Prime Minister or the Chief Minister.
• It may be noted that there is neither any specific provision in the Constitution nor a mandatory convention debarring a member of the Rajya Sabha from becoming the Prime Minister.
• For example, Mrs. Indira Gandhi, a Rajya Sabha member, became the Prime Minister in 1966. But she was elected to the Lok Sabha soon thereafter. It is desirable that the Prime Minister should belong to the Lok Sabha because Rajya Sabha lacks contact with the contemporary public opinion as one-third of its members are indirectly elected every two years. Thus, a member of the Rajya Sabha on becoming the Prime Minister should seek election to the Lok Sabha at the earliest opportunity.
• Disqualified Member Cannot be Appointed Prime Minister/Chlef Minister In (B.R. Kapoor v State of Tamil Nadu, 2001 (6) SCALE 309), the Supreme Court held that a person convicted of criminal offence and sentenced to more than two years of imprisonment cannot be appointed as Chief Minister. Smt. Jayalalitha despite being disqualified to contest the election (in view; of conviction under the Prevention of Corruption Act) was elected as the leader of her party after the party has gained absolute majority in the Assembly elections The Governor of Tamil Nadu appointed her as the Chief Minister. The Court held that her appointment as a Chief Minister was violative of Art. 164(4) and, therefore, unconstitutional and invalid.
• A nonmember who does not possess the qualifications prescribed by Art. 173 or has been disqualified under Art. 191 of the Constitution cannot be appointed as Chief Minister or Minister. Thus, in this case, the Apex Court has read a significant restriction in Art. 75(5) [corresponding to Art. 164(4)] i.e. a person who is not a member of a House of Parliament can be appointed as the Prime Minister or a Minister only if he has the qualifications for membership of Parliament as prescribed in Art. 84 and is not disqualified from the membership thereof by reason of the disqualifications sec out in Art. 102.

Privileges/ Immunities of President (Art. 361)

• President shall not be answerable to any court for the exercise of power and duties of his office, except when the President has been placed under impeachment proceedings. Immunity attached to the President will not restrict the right of any person to bring suit against the Government of India.
• No criminal proceeding whatsoever can be instituted against the President, during the term of his office.
• No process for the arrest or imprisonment of President shall be issued from any court, during the term of his office.
• No civil proceeding can be instituted in which relief is claimed against the President during the term of his office, in respect of any act done by him, until:
  • a notice given to the President,
  • 2 months have passed after the notice, and,
  • notice states the nature of proceeding, cause of action, description of party, etc.

Resignation/ Impeachment of President

The President can resign his office before the expiry of his tenure by writing under his hand addressed to the Vice-President. This resignation is required to be communicated by the Vice-President to the Speaker of the Lok Sabha (Art. 56). The President may be removed from his office before the expiry of his term, by the process of impeachment (Art. 56).

The grounds for impeachment are:

• Violation of the express provisions of the Constitution as well as violation of convention, usage and spirit of the Constitution by the President.

Art. 61 lays down the procedure for the impeachment of the President as follows:

• The charge against the President can be preferred by either House of Parliament via a resolution preceded by at least 14 days written notice. The notice should be signed by not less than l/4th of total number of members of the House and passed by a majority of not less than 2/3rd of the total membership of the House. When one House prefers a charge the other House shall investigate it. The President has a right to appear and be represented at such investigation.
• If after investigation, the House finds the President guilty and passes a resolution by a majority of not less than 2/3rd of its total membership declaring that the charge preferred against the President has been sustained, it would have the effect of removing the President from his office from the date on which the resolution is so passed.

Vice President

The Constitution provides for a Vice President who is elected by members of the two houses of Parliament in accordance with the system of proportional representation by means of a single transferable vote and secret ballot.
A candidate for the office of Vice-President must:

• be a citizen of India;
• be more than 35 years of age;
• possess the qualifications prescribed for membership of the Rajya Sabha;
• not be member of either House of the Parliament or State Legislature;
• not be person of unsound mind or insolvent; and
• not hold any office of profit under the Union or State Government or local authority.

The Vice President holds office for a term of five years from the date on which he enters office. He is eligible for re-election. His term can be cut short if he resigns or is removed by the Rajya Sabha through a resolution passed by a two-third majority of its members and likewise agreed to by the Lok Sabha. The Vice-President as the ex-officio Chairman of the Rajya Sabha is entitled to the same salary and allowance which are paid to the Speaker of the Lok Sabha.

Powers

• The Vice-President is the ex-officio Chairman of the Rajya Sabha and presides over it meetings. All bills, resolutions, motions or questions can be taken up by the Rajya Sabha only with his consent. He is the chief spokesman of the Rajya Sabha before the President as well as the Lok Sabha. He discharges the functions of the office of the President in case that post falls vacant on account of the death, resignation or removal of the President.
• The Vice-President can act as President for a maximum period of six months because fresh elections for the office of President must be held within six months of the occurrence of vacancy. Similarly, if the President is unable to discharge his functions for some reasons (casual vacancy) or remains absent, the Vice-President discharges all his functions. When he does so, he ceases to perform the functions of the Chairman of the Rajya Sabha.

Prime Minister

• He is the leader of the majority party in the Lok Sabha. According to Art. 74(1), he is the head of the Council of Ministers. He is primes inter pares (First among Equals') in Council of Ministers. His main function is to aid and advise the President in the exercise of his functions.
• In this way, he is the real or chief executive. The Prime Minister's office is his personal secretariat. Under the Allocation of Business Rules, 1961, it occupies the status of a department of the Government of India. Cabinet is the core of the Council of Ministers. The Prime Minister is the Chairman of the Planning Commission. Recently, he has been made the Chairperson of the Tiger Conservation Authority.

A question arises:

Whether a person who is not a member of either House of Parliament (i.e. not an elected representative of the people) be sworn in as the Prime Minister of India. It was held by the Supreme Court: By a parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Art. 164(4) for 6 months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same duration.

Deputy Prime Minister

The post of Deputy Prime Minister is not prescribed in the Constitution. However, seven Deputy Prime Ministers have been made so far (e.g. Sardar Patel - first; L.K. Advani - last). Such appointment depends on the discretion of the Prime Minister and the communication is sent to the President of India. He occupies the position of Prime Minister in assisting him in his absence. His office is meant to reduce the workload of the Prime Minister.

The Governor and Chief Minister

• The executive power of the State is vested in the Governor (constitutional Head of the State) and the State Council of Ministers. Art. 153 provide that there shall be a Governor for each State. But the Constitution (7th Amendment) Act, 1956, makes it possible to appoint the same person as the Governor of two or more States, and under this provision, the Governor of Assam has been appointed Governor of Nagaland, Meghalaya, Manipur.
• He holds office for a term of five years from the date on which he enters upon his office. He also continues to hold office until his successor enters upon his office. He can be reappointed after his tenure as Governor of the same State or of another State.

The qualifications for appointment of Governor are:

• He must be a citizen of India, and
• He must have completed the age of 35 years. There is no bar to the selection of a Governor from among the Members of a legislature but if a Member of a legislature is appointed Governor, he ceases to be a Member immediately upon such appointment. The normal term of the Governor can be terminated earlier by
  • dismissal by the President, or
  • resignation.

The grounds upon which a Governor may be removed by the President are not laid down in the Constitution. Art 156 (1) provides that the Governor holds office during the pleasure of the President. The expression of displeasure of the President is not justiciable. In the event of death of the Governor, the Chief Justice of the High Court becomes the acting Governor' in the State.

Executive Powers

• Art. 162 says that executive power of State extends to matters with respect to which legislature of State has power to make laws. Art. 166 say that executive functions shall be authenticated in manner specified in the rules made by Governor. Clause (3) of Art. 166 provide that the Governor is authorized to make rules for the more convenient transaction of the business of government of State and for its allocation among ministers.
• In Shamsher Singh v. State of Punjab (AIR 1974 SC 2192), held that wherever the Constitution requires the satisfaction of President or Governor, for example, in Articles 123, 213, 311(2)(c), 356, 360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government.
• In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed the President or Governor means the President or Governor aided and advised by Ministers. The allocation of business is the decision of President or Governor on the aid and advice of Ministers, and allocation is not delegation. The decision of any Minister or officer under Rules of Business made under Art. 77(3) and 166(3) is the decision of President or Governor.

The executive powers of the Governor are:

• The Governor appoints the Chief Minister. He also appoints the Council of Ministers on the advice of the Chief Minister. He appoints the members of the State Public Service Commission and Advocate General. The Ministers as well as the Advocate-General hold office during the pleasure of the governor. Although appointed by the Governor, the members of State Public Service Commission cannot be removed by him.
• The Governor has the power to nominate members of the Anglo-Indian community to Legislative Assembly of his State, if they are not adequately represented in the Assembly. The Governor has the power to nominate members having special knowledge or practical experience in matters such as literature, science, art and social service, to the Legislative Council of the State.

Legislative Powers

• Governor is a part of the State Legislature. He has a right of addressing and sending messages to and of, summoning, proroguing the State Legislature and dissolving the lower House. All bills passed by the legislature have to assented to by him before becoming law. He can withhold his assent to the Bill passed by legislature and send it back for reconsideration. If the Bill is again passed with or without modification, the Governor has to give his assent.
• He may reserve any Bill passed by the State Legislature for the assent of the President. He has the power of causing to be laid before the State Legislature the Annual Financial Statement and of making demands of grant and recommending Money Bills. The Governor may issue an ordinance when the legislature is not in session.

Governor's Veto

• When a Bill passed by the State Legislature is presented to the Governor for his assent, he may reserve the Bill for the reconsideration of the President. In some cases this is mandatory for the Governor, for example, when a Bill affected the powers of the High Court's (Art. 200).
• This gives the Governor and the President a real veto' on the Bill. When such a Bill is reserved for the assent of the President, he may either declare his assent, withhold his assent or return the Bill to State Legislature with a message. The State Legislature has to reconsider the Bill within six months. Even if the Bill has been passed again with or without modifications, it is not obligatory on the part of the President to signify his assent. Thus, once a Bill is reserved for consideration of the president it cannot become a law unless it is assented to by him.

Relation between Governor and Council of Ministers

• It is same as that between the President and his Ministers, except that the Constitution authorizes Governor to exercise powers in his discretion'. Art. 163 (1) says that there shall be a Council of Ministers with Chief Minister at the head to aid and advice Governor except in cases where Governor can act in his discretion. In order that the Central Government performs its duty imposed by the Constitution (Arts. 256, 257, 356, 365), it must have to have its agent in the States, who may act independently, in his discretion, not to be advised by the State Executive, so far as his duty to watch the interests of his masters extends.
• The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371A(l)(b), 371A(l)(d) and 371A(2)(b) and 371A(2)(f). Art. 200 requires the Governor to reserve for consideration of the President any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution. Here the Governor may act irrespective of any advice from the Council of Ministers.
• The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in various Articles. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.
• Where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State. Thus, the Constitution vests the Governor with discretionary powers. This departure from the strict principle of parliamentary system was justified in the Constituent Assembly on the ground that the Governor is conferred with dual capacity.
• He is not merely the head of the State Government but is also an agent of the Central Government in the State. He is said to serve as the eyes and ears of the Centre and so far to act in his discretion. Article 163(2) says that if any question arises whether any matter... as regards which Governor is to act in his discretion, the decision of Governor shall be final, and the validity of anything done by Governor shall not be called into question.
• Though, Constitution doesn't specially mentions discretionary powers, except special responsibility of governor regarding administration of tribal areas in Assam, and when governor also appointed administrator of a Union Territory, there are certain circumstances where the governor will be called upon to exercise his discretion:
  • Chief Minister (Art. 164)(1):
    when no political party has an absolute majority in the legislature. However, Governors hasn't followed any uniform practice, and it is a matter of great controversy. In Anil Kumar Jha case (2005) 3 SCC 150, the exercise of power under Art. 164(1) by the Governor was in issue.
    The Governor of Jharkhand appointed the leader of party/political alliance, not commanding support of majority of legislators, as Chief Minister. The Supreme Court held it to be an arbitrary and mala fide exercise of the power by the Governor, which is a fraud on the Constitution.
    The court proposed the floor test to determine primacy between contending political alliances and issued other directions to ensure fairness of the floor test. Speaker of the Assembly was directed to have proceedings of floor test video-recorded and a copy thereof sent to Supreme Court.
  • Dismissal of a Ministry (Art. I64)(2) - lays down that Minister shall hold office during the pleasure of Governor, but this pleasure is exercisable only on Chief Minister's advice. This follows from clause (3) which says that Council of Ministers shall be collectively responsible to Legislative Assembly.
    This means that so long as a Ministry enjoys the confidence of majority in legislature, Governor can't dismiss it. However, the dismissal of Ministry by Governor, on the assumption that it has lost majority in legislature have aroused great controversy e.g. Ministry dismissed without testing their majority in Assembly.
    In Mahabir Prasad v. Profulla Chandra (AIR 1969 Cal. 189), held that this power of Governor is absolute. The Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner. Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government [in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156]. Art. 156 (1) provides that the Governor holds office during the pleasure of the President. The expression of displeasure of the President is not justiciable.
    In Jagdambika Pal v. Union of India (AIR 1998 SC 998), the Chief Minister of the State of U.P. was dismissed and another person sworn in as Chief Minister without holding of floortest. A petition was filed by the dismissed Chief Minister. The Supreme Court directed the convening of special session of Assembly and to have a composite floor-test between the contending parties. The order of the Court was directed to be treated as a notice to all MLAs.
    In Anil Kumar Jha v. UOI (2005) 3 SCC 150, the exercise of power under Art. 164(1) by the Governor was in issue. The Governor of Jharkhand appointed the leader of party/political alliance, not commanding support of majority of legislators, as Chief Minister. The Supreme Court held it to be an arbitrary and mala fide exercise of the power by the Governor, which is a fraud on the Constitution.
    The court pre-poned the floor test to determine primacy between contending political alliances and issued other directions to ensure fairness of the floor test. The Chief Secretary and Director General of Police were directed to see that all elected MLAs attended the Assembly freely, safely and securely without let or hindrances. Pro tern Speaker of the Assembly was directed to have proceedings of floor test videorecorded and a copy thereof sent to Supreme Court.
  • Dissolution of Legislative Assembly: Where Ministry has lost majority and no alternative stable Ministry is possible.
  • Emergency power i.e. Advising President under Art. 356 for the imposition of President's rule in the State. Whenever the Governor is satisfied that a situation has arisen in his State whereby the administration of the State cannot be carried on according to the provisions of the Constitution, he can report the fact to the President. On receipt of such report, the President may assume to himself the powers of the State Government and may reserve for the Parliament the powers of the State Legislature.
    Thus, the Governor has been given wider discretionary powers than the President. However, the Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner. Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government [in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156].
    In M.P. Special Police Establishment v State of M.P. (2004) 8 SCC 788, the independent or discretionary powers of the Governor (Art. 163) Were in issue. On facts, the advice of Council of Ministers in relation to the non-granting of sanction for prosecution' of certain ministers was biased and vitiated due to non-consideration of relevant factors. It was held that though in such matters the Governor is normally required to act on aid and advice of the Council of Ministers but where a bias is inherent and/or manifest in the advice of Council of Ministers or, where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right to act in his own discretion and grant sanction.
• In Rameshwar Prasad v. UOI (Bihar Assembly Dissolution Case) (AIR 2006 SC 980), the question as to the criteria for appointment of Governors came up. It was observed by the majority that the criteria suggested in the Sarkaria Commission Report should be followed. However it was also recorded that these criteria were observed rather in their total breach by all political parties. However the matter was left to the wisdom of political parties to arrive at a national policy with some common minimum parameters applicable and acceptable to all major political parties.
• On the question as to the proper mode and manner of the discharge of the powers and duties, especially the discretionary powers, of the Governor a State, it was held by the majority that the expression required in Art. 163(1) was stated to signify that Governor could exercise his discretionary powers only if there was a compelling necessity to do so. The Governor could not, in exercise of his discretion or otherwise, do anything which was prohibited to be done. It was for the MLAs or the appropriate functionary to decide and not for the Governor to assume disqualification and thereby prevent staking of claim, by recommending dissolution.

Legislative Powers of the Executive (Arts. 123 and 213)

• The most important power of President is his ordinance making power (Art. 123). It is the power to legislate, when both Houses of Parliament are not in session, thus it is not possible to have a Parliamentary enactment. The Governor possesses such power under Art. 213 in relation to State legislation. The ambit of this power is co-extensive with legislative powers of Parliament i.e. it may relate to any subject (which Parliament can legislate) and is subject to same constitutional limitations, as the legislation by Parliament. President can withdraw an ordinance at any time.
• This power is to be exercised by President (and Governor) on the advice of Council of Ministers (R.C. Cooper v. Union of India AIR 1970 SC 564). The ordinance must be laid before the Parliament when it reassembles and cease to operate at the end of six weeks from the date on which Parliament reassembles; if both Houses pass resolution disapproving of it before the expiry of six weeks, the ordinance ceases to operate on the day of passing of such resolution (Parliamentary safeguards).

Validity of Ordinance Making Power

• The President cannot promulgate an ordinance unless he is satisfied that there are circumstances which render it necessary for him to take immediate action. But, President himself determine whether such a situation has arisen and a court cannot enquire into it i.propriety, expediency, necessity, and motive (behind) of legislative Act. While an executive act can be struck down on the ground of non-application of mind or mala fides, an Act or Ordinance cannot. An Ordinance can be invalidated only on the grounds of contravention of constitutional limitations (test of vagueness, arbitrariness, reasonableness, and public interest).
• The validity of Ordinance had been challenged at times and the court has upheld its constitutionality in majority of cases (R K. Garg v. Union of India AIR 1981 SC 2138). An Ordinance stands on the same footing as an Act passed by the Legislature. It cannot be treated as an executive action or an administrative decision. An ordinance has been held to be a law' under Art. 21 of the Constitution (A.K. Roy's case). As the Legislature can repeal an existing enactment or amend it, so also, the President by an ordinance can repeal or amend an existing legislation.
• Abuse - In no country, except India, the Executive is vested with legislative power. Such power may be abused by a minority government to enact a measure for a temporary period as not being sure of support in Parliament; by a majority government in order to avoid debate in Parliament and possible amendment, and advising the President to prorogue Parliament at any time having this specific object in mind (mala fides).
• The case of D.C. Wadhawa v. State of Bihar (AIR 1987 SC 579) furnishes a glaring example of abuse of ordinance power. 256 ordinances promulgated in the State, and all of these kept alive by re-promulgation without being brought before the Legislature, between 1976-81. The court called it a subversion of democratic process' and colourable exercise of powers' and held that this amounted to a fraud on the Constitution. The Executive cannot usurp the function assigned to the legislature under the Constitution.
• Parliamentary safeguards - Besides passing resolutions disapproving of ordinance, Parliament gets a chance to review the measure if government seeks to replace an ordinance by a Bill; and when government seek so, a statement explaining circumstances which necessitated immediate action by ordinance must accompany such Bill. However, no debate on above statement is allowed.
• Peculiarity of Governor's power - In comparison to President's power, the Governor can't make ordinance without instructions from the President if:
  • Ordinance contains provisions which would require sanction of the President for introduction in State legislature,
  • Governor would have deemed it necessary to reserve a Bill containing the same provision for consideration of President,
  • An Act of State legislature containing the same provision would be invalid without assent of President (when Bill reserved for President's consideration).

Suggestions for Improvement of Governor's Role

• The Governor is the linchpin of the constitutional apparatus of the State', reported the Sarkaria Commission in 1988. His role has emerged as one of the key issues in Union-State relations', and has been criticized for want of impartiality and sagacity' and for being used by the Central Government for its own political ends.
• Twenty years previously the Administrative Reforms Commission had expressed the view that the President's authority to appoint and remove Governors departed from the federal principle. Regarding the appointment of Governors, the Sarkaria Commission suggested that effective consultation between the Centre and Chief Ministers should be prescribed by amending Art. 155. Further, a Governor be eminent, come from outside the State of his appointment, be not too intimately connected' with its politics, and not recently have taken too great a part in politics generally.
• A politician of the party governing in New D should not be appointed to a State governed by another party. The Sarkaria Commission recommended that the Governor's five-year term should not be disturbed except very rarely and that too, for some extremely compelling reasons. Should a Governor be transferred or his tenure terminated, the Central Government may lay an explanatory statement before Parliament. The Commission also took note of the various inducements (besides pressures) by the Central Government that might affect the independence of Governors (e.g. offers of post governorship jobs in government, such as heading a Commission).
• To prevent this, the Administrative Reforms and Sarkaria Commission recommended that an ex-governor should not take part in politics, although the latter thought that a former Governor might run for Vice-President or President. The Commission recommended that incumbent Governors be promised reasonable retirement benefits' to strengthen their capacity to act with due objectivity and impartiality and independence. It is perceived by many State Governments that reservation of Bills by the Governor for Presidential assent' amounted to Central interference in State affairs. The Administrative Reforms Commission said that only in special circumstances' such as patent unconstitutionality' should the Governor act in his discretion.
• The Sarkaria Commission declared its view to be that Art. 200 did not invest the Governor... with a geherardiscretion' in reserving Bills. Only in extremely rare cases should the Governor reserve a Bill in his discretion;, and not merely personally, he does not like the policy embodied in the Bill.
• To reduce delays in Presidential decision- Commission advocated a series of streamlining procedures such as Presidential disposition of Bills sent for consideration within four months of their receipt.
• The President of India appointed a Committee of Governors to study and formulate norms on the role of Governors; its recommendations are:
  • The test of confidence in the Ministry should normally be left to a vote in the Assembly. The Governor should have waited till the Ministry had been voted out of the office by House itself.
  • A Governor has right to dismiss a Ministry if Chief Minister shirks his primary responsibility of facing the Assembly within the shortest time to test the confidence of legislature in him.
  • A Chief Minister's refusal to test strength... can well be interpreted as a prima facie proof of his no longer enjoying the confidence in Assembly.
  • If an alternative Ministry can be formed which in Governor's view can command a majority in Assembly, he must dismiss ministry in power and install alternative ministry. If formation of such alternative Ministry is not possible, then President's rule is to be imposed.
  • So far as question of majority is concerned, it does not make any difference whether the coalition partner withdraws support or the majority party government is reduced to minority by defections. The loss of majority by reason of dissolution of coalition should not be equated by Governor with loss of support of a majority in House.
• This is a question which was only to be decided in House. Even after this Report, which had laid certain norms, the Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner.
• Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government (in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156.) Not only the prestige of office has declined, but politics in States became yet more unstable and unprincipled. Improvements - Healthy traditions must be created, with Union government playing a more responsible role. Governors need greater independence vis- i-vis the Centre. He must be an impartial person, capable of holding balance between national and regional interests.
• Judicial Powers of the President and Governor Respectively (Arts. 72 and 161) Under Art. 72, the President has power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence to any person convicted of an offence:
  • in cases where the punishment is by Court Martial,
  • for offences against laws made under Union and Concurrent Lists - matters to which executive power of Union extends,
  • for death sentences. Art. 72 further lays down that the power conferred on the President, however, does not affect the power conferred by any law on any officer of the Armed Forces to suspend, remit, or commute a sentence passed by Court Martial, and also the power exercisable by the Governor of State under any law to suspend, remit, or commute a death sentence.
• It may be noted that the British King and the U.S. President also possess such judicial powers. Under Art. 161, the Governor has such power only for offences relating to matters to which executive power of State extends; he cannot pardon for (i) and (iii) above. In respect of suspension, remit or to commute death sentence, both President and Governor have concurrent power.
• The object of conferring this judicial power (mercy jurisdiction)... is to correct possible judicial errors, for no human system of judicial administration can be perfect.
• While exercising his pardoning powers, the President can scrutinize the findings/witnesses on the reco type=""rd and come to a different conclusion both on the guilt of the accused and the sentence imposed on him. In doing so, the President did not amend/modify/supersede the judicial record which remained intact (Kehar Singh's case).
• A Pardon - rescinds both the sentence and conviction, and absolves offender from all punishments.
• Commutation - from harder to lighter punishments e.g. from death to rigorous imprisonment.
• Remission - reduction of amount of sentence without changing its character e.g. from 1 year to 6 months.
• Respite - awarding a lesser punishment on special grounds e.g. pregnancy.
• Reprieve - a stay or suspension of execution of death sentence e.g. pending a proceeding for pardon or commutation.
• The pardoning power can be exercised before, after or during the trial. The power is exercised, on the advice of Council of Ministers. The power cannot be exercised when the matter is sub judice in the Supreme Court.
• In Kuljeet Singh v. Lt. Governor of Delhi (AIR 1982 SC 774), held that the exercise of President's power would have to be examined' from case to case. It is submitted that to examine case-to-case implies court's judicial review on a matter which has been vested by Constitution solely in the executive. The question of standards and guidelines for the exercise of the, power by the President under Art. 72 however, were left open by the Court.
• In Kehar Singh v. UOI (AIR 1989 SC 653), regarding the assassination of Prime Minister Indira Gandhi, the President rejected the petition on advice of Union government without going into the merits of Supreme Court's decision of death sentence. The court held that a pardon is an act of grace and therefore it can't be demanded as a matter of right. The Court need not spell out specific guidelines for the exercise of power... because this power is of the widest amplitude and can contemplate a myriad kinds of cases with varying facts. The order of President cannot be subjected to judicial review on its merits.
• In Epuru Sudhakar v Govt, of Andhra Pradesh (AIR 2006 SC 3385), the Apex Court has held that the pardoning powers of the President under Art. 72, and, the Governors under Art. 161 are subject to judicial review. Pardoning power cannot be exercised arbitrarily on the basis of caste or political reasons. It held that if the pardoning power has been exercised on the ground of political reasons, caste and religious considerations it would amount to violation of the Constitution and the Court will examine its validity.
• Pardoning/Clemency; Power not Unbridled In State of Haryana v. Jagdish (AIR 2010 SC 1690), the Apex Court observed and held: The power under Arts. 72 and 161 was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction.
• It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets the benefit of a liberalised policy.
• The power of the sovereign to grant remission is within its exclusive domain and this responsibility was cast upon executive through the constitutional mandate to ensure fulfilment of some public purpose by grant of remission in appropriate cases.
• In Narain Dutt v. State of Punjab (AIR 2011 SC 1216), the Apex Court set aside the order of the Governor of Punjab granting pardon in a case of murder along with other offences, and remanded it for reconsideration. The Court noted that the Governor's order did not contain any reference to the order of conviction and sentence imposed on the accused persons. The Court held that there is limited scope of judicial review on the exercise of power by the Governor under Art. 161.
• It is axiomatic that before the power of the Governor under Art. 161 is invoked by any person, the condition precedent is that such person or persons must be convicted of any offence against any law and will be subjected to undergo a sentence. The order of the Governor was therefore really of no consequence.
• The Court further noted that the Governor's order also did not contain any reference to the appeals pending against the order of conviction and sentence before he could pass the order. The Court held that probably all relevant facts were not placed before the Governor. The Court then noted that there were some observations in the order of Governor about the guilt or innocence of the accused persons. The Court held that it is well settled that to decide on innocence or otherwise of the accused persons is within the exclusive domain of the Court of law which is essentially a judicial function.
• A Governor's power of granting pardon is an exercise of executive function and independent of the court's power to pronounce on the innocence or guilt of the accused. The power of a Court of law in a criminal trial and subsequent right to appeal up to the Supreme Court and that of the President/ Governor operate in totally different arenas and the nature of these two powers are totally different from each other. In the present case, the Governor has exceeded the permissible constitutional limits in exercise of powers.

Privileges of President (Article 361) (Legal Immunities or Protection)

• President shall not be answerable to any court for the exercise of power and duties of his office, except when the President has been placed under impeachment proceedings. Immunity attached to the President will not restrict the right of any person to bring suit against the Government of India.
• No criminal proceeding whatsoever can be instituted against the President, during the term of his office.
• No process for the arrest or imprisonment of President shall be issued from any court, during the term of his office.
• No civil proceeding can be instituted in which relief is claimed against the President during the term of his office, in respect of any act done by him, until (a) a notice given to the President, (b) 2 months have passed after the notice, and, (c) notice states the nature of proceeding, cause of action, description of party, etc.

Judicial Review over Immunity to President/Governor

• In Rameshwar Prasad v. UOI (AIR 2006 SC 980), the scope of the immunity granted to Governors and the President under Art. 361 was discussed. It was held that there was a complete bar to the impleadment or issuance of notice to the President or Governor in their personal capacity as they were not answerable to any court for the exercise and performance of the powers and duties of their offices, or for any act done or purported to be done in exercise and performance of those powers and duties. The words purported to be done in Art. 361 were of wide amplitude, and the immunity extended even to charges of mala /ides.
• However, the personal immunity provided under Art. 361, did not bar challenges that might be made to their actions. Under law, such actions including those actions where challenges were based on allegations of mala fides, were required to be defended by the Union of India or the State Government, as the case may be. Even in cases where personal mala fides were alleged and established, the Governments could not urge that the same could not be satisfactorily answered because of the immunity granted.
• In such eventuality, it was for the respondent State defending the action to satisfy the Court either on the basis of material on record or even by the filing of an affidavit of the Governor/ President. Art. 361 did not bar the filing of an affidavit if Governor or President wished to do so. The bar was only against the power of the court to issue notice to or making the President or Governor answerable.