DIKSHA BHALLA

CONSTITUTION OF INDIA
SECTION-B

 Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the form
and nature of the Indian government. The Structure of the Indian government can
be understood by the following flow chart:

India is a form of Parliamentary Government. It is a form of government in which

the executive is responsible and answerable to the legislative. It is also called the
Cabinet Government due to the concentration of executive powers in the
Cabinet. The Executive is a part of the Legislative.

If we dwell deep inside, we find further subdivision of the Executive Organs of the
State. These subdivisions are:

 The President (Article 52)

The first and foremost part of the Executive is the President. Article 52 states that
there shall be a President of India. The President is considered the Executive head

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of the country. All the Executive business of the country is carried out in the name
of the President.

 QUALIFICATIONS: ARTICLE 58

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:

 is a citizen of India;
 has completed the age of thirty-five years;
 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

 the Union of India or;

 the Government of any State or;
 under any local or other authority subject to the control of any
Government of India.

 ELECTION OF PRESIDENT: ARTICLE 54

It deals with provisions relating to the election of the President. It says that the
President must be elected by the members of an electoral college. The electoral
college consists of the elected members of both Houses of Parliament and the
state Legislative Assemblies.

Mode of Voting

As per Article 55(3) of the Constitution of India, the election of the President
should be held according to the system of proportional representation by means

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of a single transferable vote. The voting at the presidential election shall be by

secret ballot.

 TERM OF OFFICE OF THE PRESIDENT: ARTICLE 56

Article 56 defines the term of the office of the President to be of five years unless:

 A new President enters the office, the incumbent President shall hold it;
 President resigns before the expiry of the term by writing it to the Vice
President;
 The President is removed from his office, for violation of the
Constitution, by the process of impeachment provided under article 61.

The article also states that any resignation made by the President to the Vice
President must be communicated to the Speaker of the Lok sabha by the Vice
President himself.

 ELIGIBLITY FOR RE-ELECTION: ARTICLE-57

A person who holds or who has held office as president shall be eligible for the re-
election to that office. Example- Rajendra Prasad

 DISPUTES REGARDING THE ELECTION: ARTICLE 71

Article 71 deals matters relating to the election of the President. It states that any
dispute arising with respect to the election of the President will be adjudicated by
the Supreme court and its decision will be considered final.

 If the election of a person as President is declared void, acts done by him

in the exercise of the powers of the office of President will not be
considered invalid by reason of the order of the Supreme Court.
 Parliament can formulate any law regarding the election of a President
in consonance with the provisions of the Constitution.
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 The election of a person as President or Vice President shall not be called

in question on the ground of the existence of any vacancy for whatever
reason among the members of the electoral college electing him.

 TIME OF HOLDING THE ELECTION ON EXPIRY OF THE TERM

AND FILLING CASUAL VACANCIES

Article 62 provides for the filling up of the vacancy to the office of the President. It
defines the terms of office of the person filling the casual vacancy as well as the
time of holding elections to fill the vacancy.

It states that an election to fill the vacancies must be fulfilled before the
expiration of the term of the office of the President.

An election to fill the vacancies, occurring due to the death, resignation or

impeachment of the President, must be done as soon as possible. The elections,
in any case, must be conducted within a time period of six months from the date
of occurrence of the vacancy. The new person elected to the office of the
President will be subject to all the provisions of Article 56 and will hold his office
for a five-year term from the date of entering into the office.

 What is the procedure for impeachment of a President?

The President of India can be impeached under Article 61, for the violation of the
Constitution, on the basis of charges preferred by either House of Parliament.

A resolution with the proposal to prefer such charges must be signed by at least
one-fourth of the total members of the house. The resolution also needs to be
passed by at least two-thirds majority of the house.

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When the resolution is passed by one of the Houses, the other House must
investigate the charges. The President has been granted the right to be present or
to be represented in such investigations.

When the House investigating the charges passes the resolution by a two-thirds
majority and declares the charges as sustaining, it results in removing the
President from his office from the date of passing of the resolution.

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 POWERS OF THE PRESIDENT

EXECUTIVE POWERS

Article 53 of the Indian Constitution states that all the executive powers of the
Union will be vested in the President of India. President is allowed to exercise his
executive powers through officers subordinate to him, directly or indirectly, in
consonance to the provisions of the Constitution.

Under this article, the President has powers regarding:

 Appointment of the high authorities of the Constitution like the Prime

Minister and the Council of Ministers;
 Right of being informed about all the national affairs;
 Appointment of the judges of the constitutional courts(Supreme Court
and High Courts);

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 Appointment of the state Governors, the Attorney General, the

Comptroller, and Auditor General, the Chief Commissioner and members
of the Election Commission of India;
 Administration of Union territories and appointment of the Chief
Commissioners and Lieutenant Governor of the Centrally Administered
Areas;
 Removal of the Council of Ministers, the state Governors, the Attorney
General.

MILITARY POWERS

Article 53 also states that the President shall be the Supreme Commander of all
the Armed Forces of the Union of India. It also states that no specific provisions
can reduce the scope of this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has
powers regarding:

 Appointment of all the officers, including the appointment of the chiefs

of the forces;
 Wars are waged in the name of the President;
 Peace is concluded in the name of the President.

DIPLOMATIC POWERS

The President forms the face of Indian diplomacy and helps the nation to
maintain cordial relationships with countries across the globe.

 All the Ambassadors and high commissioners in foreign nations are his
representatives;
 He receives the credentials of the Diplomatic representatives of other
nations;

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 Prior to ratification by Parliament, the treaties and agreements with

other nations, are negotiated by the President.

LEGISLATIVE POWERS

The President also enjoys certain legislative powers like:

 During the budget session, the President is the first to address the
Parliament;
 The President is empowered to summon a joint session in order to break
the deadlock in the legislation process between the two Houses of the
Parliament;
 President sanction is mandatory in cases of provisions relating to:

1. creating a new state;

2. changes in the boundary of existing states;
3. a change in the name of a state.

 Legislative provisions relating to fundamental rights of the citizens of

India require the President’s consent;
 President’s consent is mandatory in cases of money bill originating in Lok
sabha;
 President’s consent is necessary for all the bills passed by the Parliament
to become a law;
 President is empowered to promulgate ordinances when the Parliament
is not in session;
 President also nominates the members of both the Houses.

ORDINANCE MAKING POWER OF THE PRESIDENT: ARTICLE 123

Article 123 talks about the presidential powers to promulgate ordinances. An

ordinance can be promulgated if:

 neither of the House of the Parliament is in session;

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 and the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect as
that of an act or law of the Parliament.

The essential conditions to be met by an ordinance are:

 It shall be presented before both the Houses of Parliament for passing

when it comes to the session;
 The ordinance shall cease to operate six weeks after the date of
reassembling of the parliament;
 The ordinance may also expire if the resolutions disapproving it are
passed by both the Houses of Parliament;
 It can be withdrawn at any time by the President;
 The ordinance must be in consonance to the Constitution of India else it
shall be declared void.

FINANCIAL ROLES

 President receives reports of the Finance Commission and acts on its

report.
 The Contingency Funds of India are at the disposal of the President.
 He also causes the presentation of audits in the Parliament.

JUDICIAL POWERS

The President enjoys the following privileges as his judicial powers:

 He can rectify the judicial errors;

 He exercises the power of grant of pardons and reprieves of
punishments;
 President can seek the advice of Supreme Courts on:

1. Legal matters,
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2. Constitutional matter,
3. Matters of national importance.

PARDONING POWER: ARTICLE 72

Article 72 provides for the provisions relating to the pardoning powers of the
President. President can grant pardons, respites, reprieves, and remissions of
punishments or remit suspend or commute the sentence given to a person by the
court in the following cases:

 When the sentence is granted through a court-martial;

 When the sentence or punishment is given for offense of violation of any
law relating to matters that fall in the ambit of Union’s executive
powers;
 When a death sentence is passed by a court.

EMERGENCY POWERS

Article 352 of the Constitution of India grants President, three kinds of emergency
powers as well:

 When a National Emergency is declared in case of external aggression or

internal armed rebellion, the President holds the powers to declare a
state of emergency. Thus the President’s rule gets established in the
country. However, the prime minister and the Council of Ministers must
recommend such an emergency;
 When there exists a constitutional or law and order breakdown situation
in a state, the President may declare a state of emergency in such cases.
The state would then come under Governor’s rule;
 Whenever the financial stability of the nation or any country is seriously
affected, the President has the right to intervene and direct the state to
check and maintain public expenditure.

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 POSITION OF THE PRESIDENT

The position of the President has changed, with respect to his discretion to use his
power, has changed since the inception of the Constitution. The two major
changes came through the 42nd and 44th Amendment Act of the Constitution.

Prior to the 42nd Amendment Act of 1976

Prior to the 42nd amendment to the Constitution, the President was free to make
decisions based on his wisdom. He may also consider the Council of Ministers for
their advice on the action. As the Constitution at that time talks about
constituting a Council of Ministers with a Prime Minister, as its head, to aid and
advise the President in carrying out his duties.

After the 42nd Amendment Act, 1976

Later, the Constitution was amended to add the phrase that the President shall
act on the aid and advice of the council of ministers. But the provision was still
ambiguous whether the advice given by the Council of Ministers is binding on the
president or not.

44th Amendment Act, 1978

This amendment was brought it to swipe off the ambiguity created by the 42nd
amendment. This provision said that:

 President can send back the advice to the Council of Ministers for
reconsideration once;
 If the same advice is sent again without modifications by the Council
then President is bound to accept it.

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 VICE –PRESIDENT

In India, Vice-President has the second-highest office in the country. Article 63 of

the Indian Constitution mentions the post of Vice-President.

 ARTICLE 63 : THE VICE-PRESIDENT OF INDIA

There shall be a Vice-President of India.

 ARTICLE 64 : THE VICE-PRESIDENT TO BE EX-OFFICIO CHAIRMAN OF THE

COUNCIL OF STATES
The Vice-President shall be ex-officio Chairman of the Council of States and shall
not hold any other office of profit:
Provided that during any period when the Vice-President acts as President or
discharges the functions of the President under article 65, he shall not perform
the duties of the office of Chairman of the Council of States and shall not be
entitled to any salary or allowance payable to the Chairman of the Council of
States under article 97.

 ARTICLE 65 : THE VICE-PRESIDENT TO ACT AS PRESIDENT OR TO DISCHARGE

HIS FUNCTIONS DURING CASUAL VACANCIES IN THE OFFICE, OR DURING THE
ABSENCE, OF PRESIDENT
(1) In the event of the occurrence of any vacancy in the office of the President by
reason of this death, resignation or removal, or otherwise, the Vice-President
shall act as President until the date on which a new President elected in
accordance with the provisions of this Chapter to fill such vacancy enters upon his
office.
(2) When the President is unable to discharge his functions owing to absence,
illness or any other cause, the Vice-President shall discharge his functions until
the date on which the President resumes his duties.
(3) The Vice-President shall, during, and in respect of, the period while he is so
acting as, or discharging the functions of, President have all the powers and
immunities of the President and be entitled to such emoluments, allowances and

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privileges as may be determined by Parliament by law and, until provision in that

behalf is so made, such emoluments, allowances and privileges as are specified in
the Second Schedule.

 ARTICLE 66 : ELECTION OF VICE-PRESIDENT

(1) The Vice-President shall be elected by the members of an electoral college
consisting of the members of both Houses of Parliament in accordance with
the system of proportional representation by means of a single transferable
vote and the voting at such election shall be by secret ballot.
(2) The Vice-President shall not be a member of either House of Parliament or of
a House of the Legislature of any State, and if a member of either House of
Parliament or of a House of the Legislature of any State be elected Vice-
President, he shall be deemed to have vacated his seat in that House on the
date on which he enters upon his office as Vice-President.

(3) No person shall be eligible for election as Vice-President unless he –

(a) is a citizen on India;
(b) has completed the age of thirty-five years; and
(c) is qualified for election as a member of the Council of States.

(4) A person shall not be eligible for election as Vice-President if he holds any
office of profit under the Government of India or the Government of any State or
under any local or other authority subject to the control of any of the said
Governments.

ARTICLE 67 : TERM OF OFFICE OF VICE-PRESIDENT

The Vice-President shall hold office for a term of five years from the date on
which he enters upon his office:
Provided that – (a) A Vice-President may, by writing under his hand addressed to
the President, resign his office;
(b) a Vice-President may be removed from his office by a resolution of the Council
of States passed by a majority of all the then members of the Council and agreed
to by the House of the People; but no resolution for the purpose of this clause
shall be moved unless at least fourteen days’ notice has been given of the

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intention to move the resolution;

(c) A Vice-President shall, notwithstanding the expiration of his term, continue to
hold office until his successor enters upon his office.

 PRIME MINISTER AND COUNCIL OF MINISTER

PRIME MINISTER
Article 75 of the Indian Constitution mentions that a Prime Minister is one who is
appointed by the President. There is no specific procedure for his election or
appointment. Article 74(1) states that there shall be a Council of Ministers with a
Prime Minister at the head to aid and advise the President. Thus, the Indian
Constitution itself recognizes a Council of Ministers.

 Appointment of Prime Minister

The Prime Minister of India is appointed by the President through provisions
under Article 84 and Article 75. Prime minister is the leader of the majority party
or coalition of parties of Lok sabha. When a party achieves majority the leader of
that party is called upon by the President to be the Prime Minister of the country.
He is considered as the real head of the country.
President of India appoints a person as the Prime Minister who is either the
leader of the party which holds a majority of seats in the Lok Sabha or is a person
who is able to win the confidence of the Lok Sabha by gaining the support of
other political parties. All other ministers are appointed by the President on the
advice of the Prime Minister.

 Who is eligible to be a Prime Minister?

To become an Indian prime minister one has to be

A citizen of India.


 A member of either Rajya Sabha or Lok Sabha

 He should have completed his 30 years if he is a member of the Rajya

Sabha or can be 25 years of age if he is a member of the Lok Sabha
COUNCIL OF MINISTER

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Two articles – Article 74 and Article 75 of the Indian Constitution deal with the
Council of Ministers. Where article 74 mentions that the council will be headed by
the Prime Minister of India and will aid and advise the President, article 75
mentions the following things:

 They are appointed by the President on the advice of Prime Minister

 They along with the Prime Minister of India form 15% of the total strength
of the lower house i.e. Lok Sabha. (The number cannot exceed 15%)
 91st Amendment Act provided for the disqualification of the minister when
he stands disqualified as a member of Parliament.
 A Minister ceased to exist as one if he is not a member of either house of
Parliament for six consecutive months.
 Parliament decides the salary and allowances of the council of ministers.

 INDIVIDUAL RESPONSIBILITY:

 This is the principle of article 75(2). It says that every Minister is responsible
for the acts of the officer of his department he cannot throw the
responsibility of his department either on his official or another member.
 If the manager has taken action with the approval of the cabinet the
principle of collective responsibility applies however if the Minister has
taken action without a cabinet approval the principle of individual
responsibility applies

 COLLECTIVE RESPONSIBILITY:

 The basic principle of parliament from of government is the principle of

collective responsibility
 Article 75 (3) provides that the council of the minister shall be collectively
responsible to the Lok Sabha.

 ATTORNEY GENERAL OF INDIA

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 The Attorney General (AG) of India is a part of the Union Executive. AG is

the highest law officer in the country.
 Article 76 of the Constitution provides for the office of AG of India.
 Appointment and Eligibility:

o AG is appointed by the President on the advice of the government.

o S/he must be a person who is qualified to be appointed a judge of
the Supreme Court, i.e. s/he must be a citizen of India and must have
been a judge of some high court for five years or an advocate of some
high court for ten years or an eminent jurist, in the opinion of the
President.
 Term of the Office: Not fixed by the Constitution.
 Removal: Procedures and grounds for the removal of AG are not stated in
the Constitution. S/he holds office during the pleasure of the President (may
be removed by the President at any time).
 Duties and Functions:

o To give advice to the Government of India (GoI) upon such legal matters,
which are referred to her/him by the President.
o To perform such other duties of a legal character that are assigned to
her/him by the President.

 To appear on behalf of the GoI in all cases in the Supreme Court or

in any case in any High Court in which the GoI is concerned.
 To represent the GoI in any reference made by the President to the
Supreme Court under Article 143 (Power of the President to consult
the Supreme Court) of the Constitution.
o To discharge the functions conferred on her/him by the Constitution or
any other law.
 STATE EXECUTIVE

 Introduction

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The State Executive consists of the Chief Minister, the Council of Ministers and
the Governor. It has the same Parliamentary pattern as followed by the Union
Government with the upper hand being given to the Union in certain matters.
This has been done to maintain the unitary spirit of the structure of the country.
The Governor plays the twofold role of being the constitutional head at the stage
level as well as being a link between the state government and the centre. He/She
acts on the advice of the Council of Ministers and all executive actions are taken
in his name.

 THE GOVERNOR

Article 153 of the Indian Constitution provides for every State to have a Governor.
Just like the President is the nominal head of the republic, the Governor is the
nominal head of a state. This means that he/she has powers and functions similar
to the President of India but operates at the state level, with the real power lying
in the hands of the State Chief Minister and his/her council of ministers. Further,
the 7th Constitution Amendment Act of 1956 has added a provision under Article
153 which provides for the same person to act as the Governor of two states
simultaneously. The term of office of the Governor is 5 years.
 Appointment, Tenure and Removal of a Governor
Appointment of a Governor is talked about under Article 155 and information
regarding his tenure and removal are provided under Article 156. It states that the
President appoints the Governor by warrant under his hand and seal i.e., bearing his
seal and signature. The Governor shall hold office as long as he/she enjoys the
pleasure of the President. The Governor may resign his office by writing under his
hand i.e., a written letter undersigned by him addressed to the President. In
accordance with the foregoing provisions of this article, the Governor’s term of office
shall be five years from the date on which he/she enters upon his office, provided that
the Governor shall continue to hold office until his/her successor enters upon his
office, notwithstanding the expiration of his term.

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

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 He/She should be an Indian citizen.

 He/She should have completed 35 years of age.

 CONDITIONS OF GOVERNOR’S OFFICE

Along with the above mentioned preliminary qualifications, there are a set of
other criteria which need to be met. These are stated under Article 158. They are:

 He/She should not be holding any office of profit.

 He/She should not be a member of the Parliament or any other State
Legislature. However, if someone holding these positions is appointed
Governor, he/she would have to vacant their previously held office.
 He/She is provided with such allowances, emoluments and privileges which
the Parliament provides by law and in case these provisions are absent,
they are provided to him/her as per Schedule II.
 The above mentioned allowances, emoluments and privileges would not be
diminished during his term. Further, if two states come under him/her,
such expenses would be shared between them in accordance with the
President’s decision.

 Powers of Governors
the position, power and functions of the Governor are analogous to that of the
President. His/Her powers are discussed below under four heads.

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Executive power
Under Article 154(1), the executive powers have been vested to the Governor and
he can choose to exercise them either directly himself or indirectly through his
Council of ministers.

 As such, the Governor makes important appointments of the state such as

the Chief Minister and Council of Ministers, Chairman and members of
State Public Service Commission, State election commissioner, Advocate
General, Chief Justice of the High Court, District judges and the Vice
chancellors of Universities.
 Under Article 356, the Governor can recommend the President for the
imposition of a State Emergency and during such emergency he/she enjoys
extensive executive powers as an agent of the President.

 He/She runs the state administration by extending control over the subjects
in the state list and deciding the policies and portfolios of the various
ministers.

Financial power

 A money bill cannot be introduced in the state legislature without prior

approval of the Governor.
 The state Contingency Fund is at his/her disposal and he/she can make
withdrawals out of it to meet unforeseen expenditures.
 He/She makes sure that the Annual state budget is discussed and put
before the State Legislature.

Legislative power

 The Governor has the power to summon and prorogue both houses of the
Legislature. He/She has to make sure that the maximum gap between the
two sessions of the houses is 6 months.
 Under Article 192, the Governor has the authority to disqualify any
legislator who fails to comply with the conditions given under Article 191.
 The Governor has to address the state legislature at the beginning of the
first session every year and after the state assembly elections.

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 The Governor can hold a bill and send it to the President for his
consideration. Other than this, the Governor can either give assent to a bill
or withhold it or send it back for reconsideration (except for money bills).

Pardoning power
According to Article 161, the Governor can grant pardons, reprieves, respites and
remissions of punishment or suspend, remit and commute the sentence of any
person convicted of any offence relating to matters under the state executive
power, exception being cases decided by a court martial. However, in cases where
a death penalty has been granted the Governor cannot pardon it.

 CHIEF MINISTER AND COUNCIL OF MINISTER

As a real executive authority, the Chief Minister is called the head of the
government. He is assisted by his council of ministers who are a part of state
executive along with Governor and Advocate-General of State. Similar to Prime
Minister who is the head of the government at the centre, the Chief Minister is
the head of the government at the state level.

Who is called a Chief Minister?

He is the head of the state government. While the governor is the nominal
executive of the state government, the person who becomes the chief minister is
the real executive of the government. The real executive is called ‘de facto’
executive that means, ‘in fact, whether by right or not.’

How is a Chief Minister appointed?

Just like the Prime Minister, provisions of whose appointment are not mentioned
in the Indian Constitution, Chief Minister’s appointment particulars are not
mentioned in the Constitution. According to Article 164 in the Indian Constitution,
Governor appoints Chief Minister. However, the Governor cannot appoint any
random person as the Chief Minister but has to follow a provision.
A leader of the party that has got the majority share of votes in the assembly
elections, is appointed as the Chief Minister of the state.

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What is the term of Chief Minister’s office?

Aspirants should clearly understand that the term of Chief Minister is not
fixed and he holds his office during the pleasure of the governor.
Note:

 Governor cannot remove him any time.

 Governor cannot even dismiss him till the time he enjoys the support of the
majority of the house.
 When CM loses his majority support, he has to resign and Governor
dismisses him then.

What is the main function of the Chief Minister?

The CM of the state performs functions in relation to the different categories of
people:

1. In relation to the Council of Ministers

2. In relation to the Governor
3. In relation to the State Legislature

Other than that, he also performs the following functions:

1. He chairs the State Planning Board

2. He is a vice-chairperson of the concerned zonal council by rotation, holding
that office for a period of one year at a time
3. He is a member of Inter-State Council and National Development Council
which are headed by the Prime Minister.

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