CONSTITUTIONAL LAW:

President as Head of Executive

and its relationship with council of members

SUBMITTED BY: SUBMITTED TO:

MIHIR SINGH DR. SANTOSH KUMAR
SHARMA
1120202174
ASSISTANT PROFESSOR OF
BBA LLB
LAW
3rd SEMESTER
HIMACHAL PRADESH
NATIONAL LAW
UNIVERSITY, SHIMLA.
 INDEX

SERIAL NO. CONTENT

1 Acknowledgement
2 Declaration
3 Introduction
4 The President
5 Election of the President
6 Qualifications
7 Authority
8 Nature and Extent of Executive Power of President
9 Position of President: Relation between President and Council of
Ministers
 ACKNOWLEDGEMENT

This project's progress and final result involved a lot of encouragement and support from
many people, and I am incredibly fortunate to have them during the completion of my
project. Everything I have done is solely because of such supervision and support, and I will
not fail to thank them.

I appreciate and thank Dr. Santosh Kumar Sharma for giving me the opportunity to do this
assignment and for providing us with all the support and encouragement that helped me to
duly complete the assignment. I am extremely grateful to her for giving such strong advice
and encouragement.

I am grateful and lucky enough to receive continuous motivation, support, and guidance from
my teacher to help me achieve our project work successfully. Thank you for your
encouragement!
 Declaration by Student

I hereby declare that the assignment entitled “President as Head of Executive and its
relationship with council of members” submitted by me to Himachal Pradesh National
Law University, Shimla is a record of Bonafede project work carried out by me, Mihir
Singh, under the guidance of Dr. Santosh Kumar Sharma. I further declare that the
work reported in this project has not been submitted and will not be submitted, either
in part or in full, for the award of any other degree or diploma in this institute or any
other institute or university.

Mihir Singh

Date: 15-11-2021
 INTRODUCTION

India's government is based on the Westminster system of government. The Union's

government is made up primarily of the executive, legislative, and judicial departments, with
powers delegated to the Prime Minister, Parliament, and the Supreme Court under the
Constitution. The executive power of the Union shall be vested in the President, who shall
execute it either directly or through officer’s subordinate to her in conformity with this
(Indian) Constitution, according to Article 53 of the Indian Constitution.1

The President's role in India looks to be similar to that of the monarch in the United
Kingdom. However, to preserve the country's democratic nature, the Constitution has put
several constraints and limitations on the President's use of powers, preventing the office of
the President from becoming totalitarian in nature. Article 74 of the Indian Constitution is
one such clause that has a significant impact on the President's ability to exercise his or her
free will.

Article 74(1) of the Indian Constitution states: There shall be a Council of Ministers, headed
by the Prime Minister, to assist and advise the President, who shall, in the exercise of his
functions, act in accordance with such advice: (Provided, however, that the President may
require the Council of Ministers to reconsider such advice, either generally or otherwise, and
the President shall act in accordance with the advice tendered after such reconsideration.) 2
The above-mentioned Article ensures that the President of India acts on the advice of the
citizens' elected representatives (Council of Ministers).

The scope, constraints, case laws, and other necessary information about the giving of aid and
advice to the President by the Council of Ministers in India will be examined in detail in the
following study.

The President

Article 52 of the Constitution of India provides for a President of the country. It reads,

“52. The President of India. – There shall be a President of India.’

1
The Constitution of India, 1950, Art. 53
2
Ins. By the Constitution (Forty-fourth Amendment) Act, 1978, S.11 (w.e.f. 20-6-1979)
Article 52 is the first article in Part V of the constitution and is the first under Union
Executive. This position within the text of the constitution, and the manner in which the
clause is drafted makes it clear and unequivocal that the President of India is a crucial cog in
the constitutional machinery and the structure of India.

Further, clauses (1) and (2) of Article 53 read,

“53. Executive power of the Union. – (1) The executive power of the Union shall be
vested in the President and shall be sexercised by him either directly or through
officer’s subordinate in accordance with this Constitution.

(2) Without prejudice to the generality of the foregoing provision, the supreme
command of the Defense Forces of the Union shall be vested in the President and the
exercise thereof shall be regulated by law.”

Article 53 serves to elucidate (to a short extent) the powers of the President, and thereby the
Union as a whole. But the term that it uses to signify those powers, namely ‘executive
powers’, is nowhere defined within the text of the constitution. Looking to Chapter 73, titled
“Extent of executive power of the Union” leaves us with an understanding of the matters that
executive powers may extend, but the executive powers themselves remain undefined.

As a result, we operate under the idea that executive powers, or executive powers, relate to
government functions that are not dealt with by either the judiciary or the legislature. As a
result, the President's power is limited to the formulation and implementation of policy. 3 This
could be interpreted to suggest that executive powers are limited to the enactment and
enforcement of laws, but it would be a narrow interpretation.

There is a plethora of executive responsibilities carried out by the executive branch without
any prior law on the subject. As stated in clause (1) of Article 53, the President's executive
powers are unrestricted as long as he acts within the confines of the constitution. In a similar
spirit, the executive is free to take any action in the execution of its powers as long as the
constitution does not delegate them to another authority. Entering trade agreements and
treaties, for example, are both executive authorities undertaken by the president and are not
based on existing legislation. Again, the above-mentioned areas of execution only apply to
actions that the president can take directly.

3
Wade and Bradley, Constitution and Administrative Law, (10th Edition 1985)
As previously stated, the president may exert his or her authority by indirect means, such as
through his or her subordinates. The President is the leader of the Union, and his position in
the government's day-to-day operations reflects that. While his signature is required to bring
legislation into effect, he is not the one who draughts the legislation. However, in practice
(and according to the Constitution), the President does not act alone and is the de jure leader
of the executive branch of the government.

Election of the President

The President is chosen by an electoral college using a single transferable vote by secret
ballot in accordance with the proportional representation system.' The Electoral College is
made up of the following members:

a) Members of both Houses of Parliament

b) Elected members of state legislatures (Art 54).

In this sense, there are two cardinal principles:

a) The vote of the States, in the aggregate, in the electoral college for the election of the
President, shall be equal to that of the people of the country as a whole (Art. 55)
b) There shall be uniformity of representation of the different States at the election and
parity between the States as a whole and the Union (Art. 55).

A person who has ten proposers and ten seconders on his or her proposal. The Presidential
and Vice-Presidential Elections Act of 1952 allows anybody to run for President. The
election of the President cannot be halted or postponed because of a vacancy in the electoral
college electing him, such as when a State Assembly has been dissolved under Art. 356 and
its members are unable to vote. The President's term is five years, and he is eligible for re-
election. In the absence of the Chief Justice of India, the senior-most Supreme Court judge
administers the oath or affirmation to the President.

Qualifications for Election as President

Both positive and negative qualifications are spelled down in the Constitution: Possessive
attributes. A person is required to

a) Has to be an Indian citizen who has reached the age of 35

b) Is eligible for election to the Lok Sabha.4

Negative Qualifications: A person should not:

a) Be a member of either House of Parliament or a House of the Legislature of any State,
b) hold any office of profit (other than that of the President and the Vice-President of
India, the Governor of a State or a Central or State Minister).

President's Authority

Executive Powers:

1. He exercises all executive powers himself or through subordinate officers.

2. He is the Defense Forces' ex-officio Supreme Commander and has the power to
declare war and make peace.
3. He appoints Governors, Lieutenant Governors, Chief Justice and Supreme Court
and High Court Judges, Prime Minister and Union Ministers, Chief Election
Commissioner, Comptroller and Auditor-General, Members of the U.P.S.C.,
Members of the Finance Commission and Inter-State Council, Commissioners of
SCs/STs/Backward Classes and Minorities, and others.
4. He establishes regulations for the more efficient transaction of government
business and distributes such business among Ministers.
5. All decisions made by the Council of Ministers must be communicated to him.
6. He has the authority to remove any of his Ministers, the Attorney-General of
India, a State Governor, the Chairman or Members of the Public Service
Commission (both Union and State), a Supreme Court or High Court Judge, or an
Election Commissioner.

Legislative Authority

4
Art. 58
 1. The President has the authority to call a meeting of Parliament, prorogue it, and
address it. He also calls for the Lok Sabha to be dissolved. In the event of an
impasse between the Houses of Parliament, President can call a joint session of
both.
2. He has the authority to transmit communications to either House of Parliament
regarding any Bill or other topic.
3. Laying Reports before the Parliament viz. Annual Financial Statement, Report of
the Comptroller and Auditor-General, Annual Report of the U.P.S.C., etc.
4. Without the President's signature, no bill can become law. Except for Money
Bills, he has the authority to return all other Bills to Parliament for
reconsideration. If, on the other hand, the two Houses pass the Bill again, with or
without revisions (as indicated by the President), and the Bill is given to the
President, he will be unable to refuse to sign it. As a result, the President's veto
authority is limited.
5. When Parliament is not in Session, he may promulgate Ordinances.
6. The President appoints 12 Rajya Sabha members from among those with specific
expertise of the arts, sciences, literature, or social services. In addition, if he
believes that the Anglo-Indian community is underrepresented in the Lok Sabha,
he nominates two Anglo Indian members.
7. There are certain Bills which cannot be introduced in the Parliament without the
previous sanction or recommendation of the President:
(1) Creation or reorganization of States
(2) Money Bill
(3) A Bill involving expenditure from the Consolidated Fund of India,
(4) A Bill affecting taxation in which States are interested, and
(5) A Bill imposing restrictions on freedom of trade and commerce.

Financial Powers

1) No Money Bill can be introduced in Parliament without President's previous sanction.

2) He can make advances out of the Contingency Fund of India to meet the unforeseen
expenditure (viz. on account of floods, droughts, war, etc.) pending approval of
Parliament.
3) He has the power to determine the State's share of proceeds of the income-tax and the
amount of yearly grants-in-aid to certain States.
4) He appoints the Finance Commission.
5) He causes to be laid before Parliament the Annual Financial Statement (Budget') at the
beginning of the financial year.

Judicial and Diplomatic Powers

1) The President is empowered to pardon offenders or to remit, reprieve, suspend or

commute their sentences.
2) He appoints the Ambassadors and receives the credentials of the foreign diplomatic
representatives.

Emergency Powers

1) When the security of the country is threatened, he can proclaim national emergency.
2) He also promulgates the President's rule in States.
3) He can also promulgate financial emergency.

Nature and Extent of Executive Power of President

The President, Vice-President, Council of Ministers, and Attorney General make up the
Union Executive. According to Article 52, India will have a President. The Union's executive
power will be vested in the President (Head of State). 5All executive functions are carried out
in the name of the President, and are validated in accordance with rules established by the
President.6

The President has extensive administrative (appoint and dismiss officers, ministers, and other
officials), military, diplomatic, and legislative capabilities. Article 73 states that the Union's
executive power extends to areas over which Parliament has legislative responsibility, as well
as the exercise of any rights, authority, or jurisdiction that the Government of India may
exercise under any convention or agreement.

As a result, executive and legislative functions of the Union are co-extensive. The following
was stated in Ram Jawaya Kapur v. State of Punjab7: "Normally, the executive power
5
Article 53
6
Art. 77
7
AIR 1955 SC 549
connotes the residue of governmental functions that remain after legislative and judicial
functions are removed." A thorough list of different types and categories of executive
functions is neither necessary nor attainable.
Executive power is not limited to enforcing existing laws; it also includes determining
governmental policy, initiating legislation, maintaining law and order, promoting social and
economic welfare, foreign policy, and so on, in short, carrying out the general administration
of the state.

Position of President: Relation between President and Council of Ministers

According to the Constitution, the President must execute his or her authorities. The
President may execute the executive power of the Union either directly or through officers’
subordinate to him, according to Art. 53(1). Ministers are considered officers under his
command for this purpose.

Article 74(1) establishes a Council of Ministers, headed by the Prime Minister, to assist and
advise the President in the performance of his duties. Art. 74(2) states that no court shall
enquire into whether any, and if so, what advice was given to the President by the minister.
As a result, the President's relationship with the Council of Ministers remains private. There
was no specific provision in the Constitution prior to the 42nd Amendment that the President
would be bound by ministerial advice.

The President is bound by the recommendation of the Council of Ministers, according to Art.
74 of the Constitution. The 44th Amendment, on the other hand, gives the President one
option to rescind his advice to the Council of Ministers. After such review, the President must
act in accordance with the advice given. According to Article 75(1), the President appoints
the Prime Minister, and the President appoints the other Ministers on the Prime Minister's
advice.

Ministers serve at the pleasure of the President, according to Article 75(2). The Lok Sabha is
collectively responsible for the Council of Ministers, according to Art. 75(3). The Council of
Ministers is accountable for the general conduct of the government's affairs as a body, which
is referred to as collective responsibility. The entire Council of Ministers must resign if a no-
confidence motion is passed against any one Minister.

The Constitution 91st Amendment (2003) inserted Clause (1A) to Art. 75(1), which states
that the size of the Council of Ministers, including the Prime Minister, must not exceed 15%
of the total number of Lok Sabha members.