POWERS AND FUNCTIONS OF THE PRESIDENT

UNDER THE CONSTITUTION

A DISSERTATION SUBMITTED TO AMITY UNIVERSITY IN PARTIAL

FULFILLMENT OF THE AWARD OF DEGREE OF MASTERS IN LAW (LL.M)

SUBMITTED BY:
HARISH.G
A0342614014

AMITY INSTITUTE OF ADVANCED LEGAL STUDIES

AMITY UNIVERSITY, SECTOR 125,
UTTAR PRADESH

CONTENTS
I.

PRESIDENT OF INDIA AN OUTLINE

Background
Significance

II.

ELIGIBILITY, ELECTION AND TERM OF OFFICE

Election, manner of election, term of office and qualification
Conditions of Presidents office

III.

RESIGNATION, REMOVAL AND IMPEACHMENT PROCEDURES

Procedure for resignation and removal of the President
Procedure for impeachment of the President

IV.

POWERS, RIGHTS AND FUNCTIONS OF THE PRESIDENT

Right to address and convey messages to Houses
Power to appoint various posts like Attorney General, Chairman and members of
Public Service Commission, Chief Commissioner, Chief Justice and other Judges of
Supreme Court and High Court, Comptroller and Auditor-General, Governors of
States, Lieutenant Governors and etc.
Power to appoint Prime Minister and the Council of Ministers
Power to assent of Bills, amending the Constitution etc.,
Power to promulgate Ordinances
Power to issue Proclamation of Emergency
Power to grant pardons etc. and to suspend, remit or commute sentences
Power to summon, prorogue and dissolve Parliament
Immunity of the President from Court proceedings

V.

COMPARATIVE ANALYSIS
Constitution of United States of America
Constitution of United Kingdom

VI.

CONCLUSION

CHAPTER 1
PRESIDENT OF INDIA AN OUTLINE
1. INTRODUCTION
On the 15th August 1947, the renaissance of India began with Pandit Jawaharlal Nehru
heralding the birth of the nation. He gave the grand vision of the independent India effectively
emerging out of the shackles of the empire. He envisioned India free from the stratification of
class, caste, creed, religion and gender inequality. The battle continues, as the process of
reinventing the social and political ethos in the globalized context keeps evolving and the nation
continues its journey of self-discovery.
India is a federal state with unitary spirit; the configuration of Indian democracy is
erected on the structure of its numerous diversities - linguistic, social-cultural, religious,
geographical etc. To value India, one must be part of the palpable vibrancy of its diversity. The
head of this largest democratic republic of the world, the President of India, is to be both
objective and impartial, keeping with the secular fabric of the nation. The office of the President
also demands to uphold the Constitution and take care of the integrity and dignity of the spirit
and ethos of democracy.
The head of the Indian State, the President of India is a significant Constitutional post.
Occupants of this post, however, remain largely outside the public gaze with their role assuming
great importance during periods of crises and national debate. Unfortunately the knowledge that
most students and Indians have about their Presidents remains sketchy at its best. This is largely
because, unlike the Prime Minister, the President is not elected by direct popular mandate.
Instead our head of State is brought into power through electoral colleges consisting of
legislators from the centre and States.

2. BACKGROUND
The President is the Head of the Executive of the State. This is not a new concept to
India. In ancient times, citizens regarded the King as a Head of the State and all the executive

actions were taken in Kings name. This system can be found ages ago from now and it is
ubiquitous in India as the President is the Head of the nation/state as all the executive actions are
taken in his name.
In Presidential form of Government (e.g., that of the United States of America), the
President is the real executive, he is also the head of the State and head of the Executive whereas
in Parliamentary form of Government (e.g., that of United Kingdom and India), the President is
nominal executive and the cabinet is the real executive.

3. MEANING OF THE TERM PRESIDENT

President is a title held by many leaders of various organizations or universities and even
the head of the State in few countries is called as President. The expression President is derived
from the Latin term Prae which means before and Sedere meaning to sit. Initially this term
was used and referred to the presiding officer of a ceremony or a meeting, but today it is most
commonly referred to an official with executive powers1.

4. HISTORY OF THE PRESIDENT

The word President prima facie became popular in the United States of America, now
we can see it in quite a lot of Republican countries but in 1789, for the first time, the United
States of America formed a post of President who will be the Head of the State and slowly but
surely this was accepted by the people in rem. In addition to this, the year 1848 marked its
presence as the first European President in France and first South African President in Liberia
came into being. Another major development took place in the year 1912 wherein the first Asian
President in China took place and now the present situation is that, most of the countries have
their own President.
In India, the President is regarded as the first citizen as he is the Head of the State and he
holds the utmost position enshrined in the Constitution.

5. ROLE OF THE PRESIDENT

The role of a President differs drastically according to the nature of the political structure,
a Presidents power can move towards those of an imperial ruler only in an autocracy, that is, a
system, that so values the authority of Government that suppresses the representation of
particular interests by competing political parties and pressure groups. By contrast, a President is
almost a bystander in a system of Government that so values the representation of particular
demands that it provides hardly any institution to make collective decisions.
Making the authority of Government responsive to popular demands began in the 17th
century in England, a century later on the continent of Europe with the revolution of French. In
proportional standpoint the American structure stands out because it capitalizes on politics. The
founding fathers depicted the American system of governance as a system of checks and
balances2.

6. PROVISIONS RELATING TO STATUS OF PRESIDENT

UNDER CONSTITUTION OF INDIA
Articles 52 to 78 of the Constitution of India deal with the Central Executive. The
President is the Head of the State and the Formal Executive, all the Executive action at the
Centre is expressed to be taken in his name.
Article 53(1) of Constitution of India says: The executive power of the Union shall
be vested in the President and shall be exercised by him directly or through officers
subordinate to him in accordance with this Constitution.
The President of India unlike many other countries is not just a Ceremonial Head of the
State, though he acts based on the aid and advice of the Council of Ministers the President can
take decisions based on his own convictions (i.e., discretionary powers) if the situation prompts
him to do so. The President is also vested with numerous VETO powers over the bills present in
the Parliament and can even summon the Prime Minister for explanation on certain matters. The
powers of President can be generally classified into six different types:

i.

Legislative;

ii.

Executive/Appointment Powers;

iii.

Judicial Powers;

iv.

Financial Powers;

v.

Pardoning Powers; and

vi.

Emergency Powers.
All the supra powers of the President of India shall be discussed in detail in the ensuing

chapters.

REFERENCES
1. Subodh.S.Patil, Advocate, Supreme Court of India, in his article STATUS OF
PRESIDENT UNDER CONSTITUTION: PROBLEMS AND PERSPECTIVES.

2. Jagdish Swarups Constitution of India by Dr. L.M. Singhvi, Revised by G.P. Mathur,
(3rd Ed., Vol.2) page. 1941

CHAPTER 2
ELIGIBILITY, ELECTION AND TERM OF OFFICE
In the preamble to the Constitution, India is declared to be a Sovereign, Socialist,
Secular, democratic, Republic. Being a republic, there can be no hereditary monarch as the head
of the State in India, hence the institution of the President.
The President is elected not directly by the people, but by the method of indirect election.
The constitution-makers were faced with the question whether the President should be elected
directly by the people or not. Ultimately, they chose the indirect elective procedure so as to
emphasize the ministerial character of the executive that the effective power resides in the
Ministry and not in the President as such.
It would have been anomalous to have the President elected by adult suffrage directly by
the people and not to give him any real and substantive power. Also the method of direct election
would have been very costly and energy consuming. There was also the fear that a directly
elected President may emerge, in course of time, as a centre of power in his own right.
Therefore, the framers of the Constitution thought that it would be adequate to have the President
elected indirectly. On the other hand, the framers of the Constitution did not want the President
to be elected merely by Parliament alone as that would have been a very narrow basis and
Parliament being dominated by one political party would have invariably chosen a candidate
from that party1. In that case the President would not have commanded national consensus by an
electoral college consisting of the elected members of both Houses of Parliament and of the State
Legislative Assemblies (originally, the elected members of the Legislative Assemblies of Union
Territories were not included in the electoral college to elect the President. In S.K.Singh v/s.
V.V.Giri, AIR 1970 SC 2097, the Supreme Court had ruled that the term State in Article 54 did
not include Union Territories. After the above pronouncement, the Constitution (Seventieth
Amendment) Act, 1992, added an explanation to Article 54 saying that the term State in
Articles 54 and 55 includes the National Capital Territory of Delhi and the Union Territory of
Puducherry. Thus, the elected members of the Legislative Assemblies of Delhi and Puducherry
now have become a part of the electoral college), in accordance with the system of proportional

representation by means of single transferable vote by secret ballot (the system of proportional
representation ensures that the successful candidate is returned by an absolute majority of votes.
If there are more candidates than two, it may be that by simple majority rule, the person getting
less than 51 percent of votes cast in the election may be declared elected; whereas on the
principle of proportional representation by the system of transferring votes, a candidate is finally
declared elected by an absolute majority: IV Constitutional Assembly Debates, 880.
I.

ELIGIBILITY FOR THE OFFICE OF THE PRESIDENT OF INDIA

Article 58 of the Constitution of India sets the code and core qualifications that one must
meet to be eligible to the office of the President.

A candidate for the Presidents office should be a citizen of India of at least 35 years of
age and qualified to be elected as member of the Lok Sabha [Article 58(1)];

He should not be holding any office of profit under the Central or State Government or
under any local or other authority subject to the control of any of these governments. In
order to be an office of profit, the office must carry various pecuniary benefits or must be
capable of yielding pecuniary benefits (Purno Agitok Sangma v/s Pranab Mujherjee, AIR
2013 SC 372 : (2013) 2 SCC 319; Gajanan Samadhan Lande v/s Sanjay Shamrao
Dhotre, AIR 2012 SC 486 : (2012) 2 SCC 64.

The President shall not be a member of the either of House of Parliament or of a House of
the Legislature of any State [Article 59(1)].

A person who is or has been the President is eligible for re-election to that office if he
fulfills the necessary conditions for this purpose.

II.

ELECTION TO THE OFFICE OF PRESIDENT OF INDIA

Every elected member of the Legislative Assembly of a State shall have as many votes as
there are multiples of 1000 in the quotient obtained by dividing the population of the State by the
total number of the elected members of Assembly.
If by this division the remainder is 500 or more it will be counted as one and the vote of each
member is increased by one. Thus the number of votes which a Member of Legislative Assembly
is entitled to cast in the Presidential election is based on the ratio of population of the State.

The number of votes which each elected member of Parliament is entitled to cast shall be
obtained by dividing the total number of votes of the Legislative Assemblies of all the States
obtained under the above formula by the total number of the elected members of both Houses of
Parliament. If by this division the remainder exceeds one-half it will be counted as one. This
formula secures parity of votes between the members of Parliament and of the Legislative
Assemblies of the States.
The illustration given below will make the above formula clear2. Thus suppose the
population of Bombay is 208,49,840. The total number of elected members of the Bombay
Legislative Assembly is 208 (one member representing one lakh of population). Now to obtain
the number of votes which every member of a Legislative Assembly is entitled to cast at the
Presidential election is to divide 208,49,840 (population of Bombay) by 208 (total number of
elected members of the State) and then to divide the quotient by 1000, i.e.

208,49,840
208

1000 =

100,239
1000

= 100 (rejecting the remainder 239 being less than 500).

Thus each member of Bombay Legislative Assembly (MLA) will get 100 votes and the

total votes cast by Bombay Legislative Assembly would be: - 100 x 28 = 20,800.
Now suppose the total number of votes elected Members of Legislative Assemblies of all
States in accordance with the above calculation is 74,940 and the total of elected member of both
the Houses of Parliament is 750. The number of votes each member of Parliament (MP) is
entitled to cast would be

74,940
750

23

= 99 25 (since the fraction

23
25

exceeds one-half it will be

counted as one), and will be added to the total numbers, i.e. 99 + 1 = 100.
MODE OF VOTING: Under the Constitution, the election of the President must be held
in accordance with the system of proportional representation by means of the single transferable
vote. The system adopted for voting is secret ballot. The voting system works in the following
manner:
Let us suppose that there are 4 candidates A, B, C and D. The total number of valid votes
1500. A candidate must secure at least 7,501 first preference votes that is, more than half the
valid votes to be declared elected. In the count A, B, C and D have polled as follows:

A 5250
B 4800
C 2700

Total 15,000

D 2250
Here no candidate has secured a minimum of 7501 votes. In this case D having obtained
the least number of votes would be the first to be eliminated and the second preference votes
recorded in his favor will be transferred to the remaining candidates A, B and C. suppose that the
second preference votes recorded in the votes of D are as follows: - A 300, B 1050 and
C 900. These would be transferred and added to the first preference votes in favor of A, B and
C as follows:
A 5250 + 300

5550

B 4800 + 1050

5850

C 2700 + 900

3600

Even in the second count no candidate could secure a minimum of 7501. Here C having
obtained the least number of votes is eliminated and the third preference votes recorded in his
favor will once again be transferred to A and B. Suppose the third preference votes on the ballot
paper recorded in favor of A and B are 1700 and 1900 respectively. The result of this second
transfer would be as follows:
A 5550 + 1700

7250

B 5850 + 1900

7750

In this illustration, B having obtained the maximum votes, that is, more than half of the
valid votes, will be a successful candidate though he had secured fewer first preference votes
than A.3 This process will be repeated again and again till a candidate secures more than half the
valid votes.
Until the relevant figures for the first census taken after the year 20264 have been
published the reference to the last preceding census be construed as a reference to the 1971
census. The expression population in this Article means the population as ascertained at the
previous census that is 1971 census.

PROCESS OF FILING NOMINATIONS: In the case of Presidential Elections,

nomination should be subscribed by at least 50 electors as proposers and at least 50 more
seconding the nomination
SECURITY DEPOSIT: The amount of security deposit for contesting Presidential
election is Rs. 15,000/- which the candidate has to deposit in the Reserve Bank of India. The
security deposit is liable to be forfeited in case the candidate fails to secure one-sixth of the votes
polled.
THE PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTIONS ACT, 1952: The
Parliament has enacted the Presidential and Vice-Presidential Elections Act, 1952 to carry out
the purposes of Article 71(1) of the Constitution of India. The Act of 1952 and the Rules framed
thereunder regulate all matters relating to or connected with the election to the offices of the
President and Vice-President of India. The Act of 1952 was amended in 1974 and 1997 to make
certain changes therein in the light of the experience gained during the elections held earlier.
Similarly, the Presidential and Vice-Presidential Election Rules, 1952 were also revised. The
main requirements of the Act are:
i.

A nomination paper for election to the office of President of India should be

completed in the prescribed form, subscribed by the candidates as assenting to the
nomination and also by at least fifty electors as proposers and at least fifty
electors as seconders. Before 1997, the number of proposers and seconders
required was only ten each. The requirement was held to be in order because
Article 58 provided only the qualification for eligibility and not the requirements
for a valid nomination (Charan Lal Sahu v/s. N. Sanjeeva Reddy, AIR 1978 SC
499).

ii.

Each nomination paper should be accompanied by a certified copy of the entry

relating to the candidate in the electoral roll for the Parliamentary constituency in
which the candidate is registered as an elector.

WHEN TO HOLD PRESIDENTIAL ELECTIONS: Elections to the Presidents office

must be held before the expiry of the tenure of the President in office [Article 62(1)]. If the office
falls vacant by death, resignation or removal or otherwise, then election to fill the vacancy

should be held within six months from the date of the occurring of the vacancy. The person so
elected as the President is entitled to remain in office for the full term of five years from the date
he assumes charge of his office [Article 62(2)].
DISPUTES CONCERNING PRESIDENTIAL ELECTIONS: All doubts and disputes
arising in connection with the election of the President are to be decided by the Supreme Court
whose decision is final [Article 71(1)]. Under section 14 of the Presidential and Vice-Presidential
Elections Act, 1952, an election can be called into question either by a candidate at such election
or by 10 or more electors. The Supreme Court has therefore held that a person who is neither a
candidate nor an elector could not file a petition to challenge the Presidential election5.
A petitioner must come within the four corners of the Act to have locus standi to
challenge the Presidential elections and to be able to maintain the petition6.
The facts of the case of P.A.Sangma v/s. Pranab Mukherjee [Election Petition no.1 of
2012], the election to the office of President were notified on 16th June 2012, Sangma and
Mukherjee filed nominations on 28th June. The date of poll was 19th July and counting took place
on 22nd July 2012. Mukherjee won 7,13,763 votes to Sangmas 3,15,987. P.A.Sangmas petition
challenged the election of Pranab Mukherjee as President on the grounds that he had held an
office of profit on the day he filed nomination and the post of Leader of the Lok Sabha. The
decision was in a 3-2 majority ruling, the Chief Justice of India Altamash Kabir (as he then was)
said: The office of Chairman of the Indian Statistical Institute, Kolkata did not provide for any
of the amenities nor could it yield any profit or pecuniary gain. The constitutional bench of
Supreme Court held that the instant petition was not maintainable and also held that no further
enquiry was necessary as the post of Indian Statistical Institute. Kolkata was purely an honorary
post. Senior Advocate Ram Jethmalani argued the matter for P.A.Sangma while Harish Salve
appeared for Pranab Mukherjee and Attorney General G.E.Vahanvati assisted the Court under
relevant Supreme Court rules and supported Mukherjees version.
OTHER CONDITIONS OF THE PRESIDENTS OFFICE: Article 60 of
Constitution says: Every President and every person acting as President or discharging the
functions of the President shall, before entering upon his office, make and subscribe in the

presence of the Chief Justice of India, or in his absence, the senior most Judge of the Supreme
Court available, an oath or affirmation in the following form, that is to say
"I, A.B., do

that I will faith fully execute the office of

President (or discharge the functions of the President) of India and will to the
best of my ability preserve, protect and defend the Constitution and the law and
that I will devote myself to the service and well-being of the people of India.
III.

TERM OF OFFICE OF THE PRESIDENT OF INDIA

The normal tenure of the President is five years from the date on which he enters upon

his office [Article 56(1)] but he continues to hold office even thereafter till his successor enters
upon his office [Article 56(1)(c)].

REFERENCES
1. IV Constitutional Assembly Debates, 713, 733-736; AUSTIN, The Indian Constitution,
121 (1966)

2. Illustration is given by Drafting Committee. Draft Constitution of India, p.17

3. The Hindustan Times, 1969

4. Substituted by the Constitution (84th Amendment) Act, 2001

5. N.B.Khare v/s. Election Commission, AIR 1958 SC 139 : 1958 SCR 648
6. Charan Lal Sahu v/s. N. Sanjeeva Reddy, AIR 1978 SC 499 : (1978) 2 SCC 500

CHAPTER 3
RESIGNATION, REMOVAL AND IMPEACHMENT
PROCEDURES
I. PROCEDURE FOR RESIGNATION AND REMOVAL OF THE PRESIDENT:
The President of India may be removed much before the expiration of his term in either of two
ways:
i)

By resignation in writing under his hand addressed to the Vice-President of India; and

ii)

By removal for violation of the Constitution by the process of impeachment. The only
ground for impeachment specified in Article 61(1) of Constitution of India is
violation of the constitution.

II. PROCEDURE OF IMPEACHMENT OF THE PRESIDENT: The President may be

removed from his office, before the expiry of his term, for violation of the Constitution by the
process of impeachment as enshrined in Article 56(1)(b) and Article 61(1) of the Constitution of
India. The procedure for impeachment is as follows:
i)

For impeachment, the charge against him may be preferred by either House of
Parliament [Article 61(1)];

ii)

The proposal to prefer the charge is to be put in the form of a resolution of the House.
Such a resolution can be moved only after giving at least fourteen days written notice
signed by not less than 14 of the total number of members of the House [Article

61(2)(a)]. The resolution must be passed by a majority of not less than 23 of the total
membership of the House [Article 61(2)(b)];
iii)

When one House thus prefers a charge, it becomes incumbent on the other House to
investigate the same. Investigation may be made either by the House itself or by some
other agency as the House may direct. The President has the right to appear and be
represented at such investigation [Article 61(3)];

iv)

If after investigation, the House passes a resolution by a majority of not less than 23
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 [Article 61(4)].
There is however only a remote possibility of this provision being invoked because the
President acts on the advice of his Ministers who are responsible to parliament. So long as he
acts in this manner, the majority in parliament need not invoke the provision regarding
impeachment as it can easily remove the Council of ministers. Nevertheless, the provision is
salutary. The power to impeach might possibly be invoked in the event of the President acting
independently of, or contrary to ministerial advice or for treason, bribery or other high crimes or
misdemeanors. Impeachment is a political instrument; what constitutes violation of the
Constitution is a matter to be decided by the House which tries the charge and the House is
essentially a political organ. There is no difficulty in the House interpreting the phrase violation
of the Constitution in a wider sense and regard a violation of the conventions, usages and spirit
of the Constitution as violation of the Constitution. When forms are maintained and the spirit is
sapped away the Constitution is violated1.

REFERENCES
1. B.C.Das, Impeachment of Indias President: A Study of the Procedure, V JCPS 245
(1971)

CHAPTER 4
POWERS, RIGHTS AND FUNCTIONS OF THE
PRESIDENT
PRESIDENT - A TITULAR HEAD
The supreme command of the defence forces of the Union is vested in the President but
the exercise of the supreme command is to be regulated by law [Article 53(2)]. The President is
the formal head of the legislative, executive and the judiciary and as stated supra he is also the
Commander-in-Chief of the Indian Armed Forces. The President is must in the Constitutional
scheme and structure of India. There is no exception to this rule. Therefore, the operation of the
constitutional scheme or structure cannot be envisaged even for a short while without a President
of India being in office.
The powers and functions of the President of India are colossal. Yet he is intended to
stand in relation to the Union administration substantially in the same position as does the King
under the English Constitution. He is the nominal or constitutional head of the government. The
Supreme Court has consistently taken the view that the powers of the President are similar to the
powers of the Crown under the British Parliamentary system.
The executive power primarily means the execution of the laws enacted by the
legislature but the business of the Executive in a modern state is not as simple as it was in the
days of Aristotle. Owing to the manifold expansion of the functions of the state, all residuary
functions have practically passed into the hands of the Executive. The executive power may
therefore be shortly defined as the power of carrying on the business of government or the
administration of the affairs of the state, excepting functions which are vested by the
Constitution in any other authority. The ambit of the executive power has been thus explained by
our Supreme Court1
It may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes the residue

of governmental functions that remain after legislative and judicial functions are
taken away, subject, of course, to the provisions of the Constitution or of any
law
The executive function comprises both the determination of the policy as well as
carrying it into execution, the maintenance of order, and the promotion of social
and economic welfare, the direction of foreign policy in fact, the carrying on or
supervision of the general administration of the state
Firstly, the Constitution provides that the President can exercise his functions either
directly or through officers subordinate to him [Article 53(1)]. This provision permits exercise of
executive power vested in the President by the Ministers and other officials. For this purpose, a
Minister is regarded as an office subordinate to the President and therefore the President can exercise his executive authority through the Ministers2.
Secondly, the President is to make rules for the more convenient transactions of the
business of the Government of India and for the allocation of work among the various Ministers
[Article 77(3)]. The rules of business confer power on the Ministers to carry on the
administration and take decisions in their departments. When an order is made in accordance
with the rules of business made under Article 77(3), it cannot be challenged on the ground that
the President had not personally applied his mind to the matter3.
Thirdly, although executive power of the Union is vested in the President, actually in
practice it is carried on by the Ministers and other officials and the Presidents personal
satisfaction is not necessary in every case4.
It may be said, accordingly, that the powers of the President will be the powers of his
Ministers in the same manner is the prerogatives of the English Crown have become the
privileges of the people5. The various powers that are included within the comprehensive
expression executive power in a modern state have been classified by political scientists under
the following heads:
a)

Administrative power i.e., the execution of the laws and the administration of the
departments of government.

b)

Military power i.e., the command of the armed forces and the conduct of war.

c)

Legislative power i.e., the summoning, prorogation etc., of the legislature,

initiation of and assent to legislation and the like.

d)

Judicial power i.e., granting of pardons, reprieves, etc., to persons convicted of

crime.

The various rights of the President of India are discussed briefly hereunder:
I.

RIGHT TO ADDRESS AND CONVEY MESSAGES TO HOUSES

The President shall at the commencement of the first session of Parliament, whether after the
general elections to the Lok Sabha or every year addresses both Houses of Parliament assembled
together and informs Parliament of the causes of its summons [Article 87(1)] 6.
The Presidents address fulfils two functions. First, it underlines responsibility of the
Government to Parliament for it consists of the Governments review of the international and
internal situation and a statement of its general policy together with an indication of its
legislative programme for the ensuing session. Secondly, it provides a solemn yet simple
ceremony with which the session of a House begins.
The practice of the President addressing Parliament has been adopted in India from Britain
where the Monarch addresses a new session of Parliament7.
1. HOW DOES PARLIAMENT TAKE IT UP?
The address is followed by a motion of thanks moved in each house by Members of
Parliament of the ruling party followed by discussions that last up to three or four days and
conclude with the Prime Minister replying to the points raised during the discussion. On an
average, the discussion takes up to 12 hours in each House and about 80 Members of Parliament
in the Lok Sabha and 40 in the Rajya Sabha participate.
After the Prime Ministers reply, Members of Parliament vote on the motion of thanks and
some may move amendments to the address. The amendments may emphasize or add issues
addressed by the President or highlight those that did not find mention. Changes proposed by the

Members of Parliament are not passed amendments proposed by Members of Parliament have
been passed during the vote on the address, all in the Rajya Sabha.
II.

POWER TO APPOINT CONSTITUTIONAL POSTS

A.

ATTORNEY-GENERAL OF INDIA

The Attorney-General of India is appointed by the President. The person to be appointed as

Attorney-General must be qualified to be appointed as a Judge of the Supreme Court. He holds
office during the pleasure of the President. He shall get such remuneration as the President may
determine [Article 76(4)].
FUNCTIONS OF ATTORNEY-GENERAL: The Attorney-General is one of the offices
placed on a special footing by the Constitution. He is the First Law Officer of the Government of
India and as such the Attorney-Generals duty shall be to give advice to the Government of India
upon such legal matters as may from time to time be referred or assigned to him by the President.
He performs such other duties of a legal character which may be assigned to him by the
President from time to time. He has also to discharge the functions conferred on him by the
Constitution or by any other law [Article 76(2)].
According to the rules8 made by the President under this Article the Attorney-General is
required to appear on behalf of the Government of India in all cases in the Supreme Court in
which the Government of India is concerned. He may also be required to appear in any High
Court in any case in which the Government of India is concerned. He shall neither advise nor
hold a brief against the Government of India in cases in which he is called upon to advise the
Government of India. Nor defend accused persons for criminal prosecutions without permission
of the Government of India. He is prohibited to take appointment as a Director in any company.
In the performance of his duties he has right of audience in all Courts in the territory of India.
He has right to speak and take part in proceedings of either of House of Parliament without a
right to vote [Article 88]. He is entitled to all the privileges and immunities as a Member of
Parliament [Article 105(3)].
The office of Attorney-General in England and few other countries is a Political Office. He is
member of the Cabinet and comes and goes with the ministry. But the practice in India is

different. The Attorney-General of India is not, as in England a member of the Cabinet. There is
a Minister of Law in the Cabinet to deal with legal affairs at the Government level.
B.

CHAIRMAN AND MEMBERS OF PUBLIC SERVICES COMMISSION

1. UNION PUBLIC SERVICE COMMISSION

For proper and efficient working of a democracy, it is very necessary that civil service be
free of political pressures and personal patronage. It is therefore necessary to ensure that the best
available person be selected for appointment to a post so as to avoid arbitrariness and nepotism
in the matter of appointment. This objective can be achieved if civil servants are appointed solely
on the basis of merit without any favoritism or nepotism or political pressures. A difficult task in
any country, it becomes all the more difficult in a multi-lingual, multi-religious country like
India which has a number of minority groups and backward classes and where the state is the
most significant employer and government service has a prestige of its own.
This role and objectives are reflected in the opinion of Supreme Court to the effect that
Public Service Commissions are institutions of utmost importance created by the Constitution
and for efficient functioning of a democracy it is imperative that such Commissions are manned
by people of the highest skill and irreproachable integrity, so that selections to various public
posts can be immunized from all sorts of extraneous factors like political pressure or personal
favoritism and are made solely on considerations of merit. It was also held that since Public
Service Commissions are a constitutional creation, principles of service law that are ordinarily
applicable in instances of dismissal of government employees cannot be extended to proceedings
for removal and suspension of Public Service Commission members9.
To achieve these objectives, the constitution creates Public Service Commission which are
autonomous bodies and are immunized from various pressures so that they can function
independently, fairly and impartially. Being a constitutional authority, it cannot be by passed by
way of circular or otherwise10.
The Union Public Service Commission consists of a Chairman and a number of members
who are appointed by the President who of course acts in this matter as in all other matters on the
advice of the concerned Minister [Articles 315(1) and 316(1)].

No qualifications are prescribed for the Commissions membership except that, as nearly as
may be, one-half of the members should be persons who have held offices for at least ten years
either under the Government of India or that of a State [Proviso to Art. 316(1)]. This provision
envisages that such persons as are well versed in the internal exigencies of the public service are
given adequate representation on the commission, so that suitable, experienced and fit persons
may be appointed to the civil services.
The President may appoint an acting Chairman of the Commission if the office of the
Chairman falls vacant or if the Chairman is unable to discharge his functions due to absence or
some other reason. The acting Chairman functions till the Chairman is able to resume his duties,
or the person appointed as Chairman enters on the duties of the office [Article 316(1-A)].
The constitution does not fix the number of members of the commission. This task has been
left to the Central Government. This according to Article 318 the President may by regulations
determine the number of members of the Commission and their conditions of service. The power
of the Central Government to determine the conditions of service of a member of the
Commission is, however, subject to the restriction that they cannot be varied to the disadvantage
of a member after his appointment.
A member of the Commission is to hold office for six years from the date he takes charge of
his office, or until he attains the age of sixty-five years, whichever is earlier [Article 316(2)]. A
member may however resign from his office by writing to the President [Article 316(2)(a)].
1.1.

REMOVAL OF A MEMBER

Provisions exist in the Constitution for the removal of the Chairman or a member before the
expiry of his term [Articles 316(2)(b) and 317]. He can be removed only by the order of the
President on the ground of misbehavior. Such an order can be passed after 1) The President
makes a reference to the Supreme Court and 2) The Court after holding an inquiry, reports to the
President that the person concerned ought to be removed from office [Articles 317(1)]. These
procedural safeguards envisaged in Article 317 are to protect Public Service Commission
members from undue political pressures or personal favoritism and vendetta, so that a Public
Commissions is able to discharge their constitutional obligations in full measure11.

The President may suspend the chairman or a member in respect of whom a reference has
been made to the Supreme Court until he passes final orders [Article 317(2)]. The issuance of
suspension orders is as per the procedure established by law and not in derogation of the same.
Further the President is empowered to remove a member or the Chairman of the Commission
[Article 317(3)], without reference to the Supreme Court if he 1) is adjudged an insolvent; or
2) engages during his term of office in any paid employment outside the duties of his office; or
3) is in the opinion of the President, unfit to continue in office by reason of infirmity of mind and
body [Article 317(3)].
2. STATE PUBLIC SERVICE COMMISSION
The Constitution establishes a Public Service Commission in each State [Article 315(1)]. It is
possible for two or more States to have a Joint Public Service Commission [Article 315(2)].
The basic policy of the Constitution is that each State should have its own public Service
Commission but if for administrative or financial reasons it is not possible for each State to have
a Commission of its own two or more State may have a Joint Public Service Commission.
A Joint Commission for several States may be established by Parliament by law if a
resolution to that effect is passed by each State Legislature concerned [Article 315(2) and (3)].
Even the Union Public Service Commission, if requested by a State Governor to do so, may with
the approval of the president agree to serve all or any of the needs of a State [Article 315(4)].
The composition of the State Commissions is governed by the same constitutional provisions
as apply to the Union Commission. Thus, a State Commission consists of a Chairman and
several members who are appointed by the Governor [Article 316(1)]. In case of a Joint
Commission, the President makes these appointments [Article 316(1)]. Like the Union Public
Service Commission as nearly as may be one half of the members of a State Commission should
be persons who have held a government office for at least ten years at the date of their
appointment to the commission [Proviso to Article 316(1)].
The Governor of the State (the President in case of a Joint Commission) may by regulations
determine the number of members of the Commission and their conditions of service [Article

318]. The conditions of service of a member cannot be varied to his disadvantage after his
appointment [Proviso to Article 318].
All provisions regarding the tenure of a member of the Union Commission apply mutatis
mutandis to a member of a State Commission except with the following differences:
a)

The age of retirement of a member of a State Commission is 62 years instead of 65

years as in the case of a member of the Union Public Service Commission.

b)

To resign, a member of a State Commission writes to the Governor and a member of

a Joint Commission to the President [Articles 316 and 317].

Under Article 317(1), the President makes a reference to the Supreme Court the question of
misbehavior committed by the Chairman or a member of the State Public Service Commission
for inquiry and report. If the Court reports that he should be removed from office on any such
ground, then the President shall remove him. An interesting point concerning the State Public
Service Commission may be noted. While appointment of the Chairman or members of the State
Commission is made by the Governor of the State [Article 316(1)], the power to remove any of
these persons on the ground of misconduct vests in the President and not the Governor. It is the
President who makes a reference to the Supreme Court under Article 317(1).
C.

CHIEF ELECTION COMMISSIONER

To ensure free, impartial and fair elections and to protect the elections from being
manipulated by the politicians, the Constitution sets up an autonomous Election Commission to
supervise and conduct elections to Parliament and State Legislatures.
The Election Commission is set up as a permanent body under Article 324(1). It is an allIndia body having jurisdiction over elections to Parliament, State Legislatures, offices of the
President and Vice-President. The reason for having an all-India body to supervise and conduct
elections, rather than separate bodies to organize elections in each State, is that some States have
a mixed population, as there are the native people as well as others who are racially,
linguistically or culturally different from the native people.

The Election Commission consists of the Chief Election Commissioner (CEC) and such
number of Election Commissioners (ECs), if any as the President may fix from time to time. All
these commissioners are appointed by the President subject to the provisions of any law enacted
by Parliament for the purpose.
The Chief Election Commissioner acts as the Chairman of the Election Commission in
case any other Election Commissioner besides him is appointed. In S.S.Dhanoa v/s. Union of
India12, the Supreme Court has laid down an important proposition regarding the composition of
the Election Commission. Until 1989, the Election Commission consisted of only the Chief
Election Commissioner. In 1989, the Central Government changed tracks and sought to appoint
Election Commissioners. The underlying purpose of this move seems to be to curb the powers of
the Chief Election Commissioner who was single handedly exercising the powers of the Election
Commission. In 1989, by a notification issued under Article 324(2), the number of Election
Commissioners (besides the Chief Election Commissioner) was fixed at two. By another
notification, the President appointed the petitioner and one other person as Election
Commissioners as such. The rules made by the President under Article 324(5) fixed the tenure of
these Commissioners at 5 years or until reaching the age of 65 years.
It is clear from these constitutional provisions that the Election Commission consists of
the ECE and the Election Commissioners as and when appointed by the President. The office of
the Chief Election Commissioner is envisaged to be a permanent fixture, but that cannot be said
for the Election Commissioners as their appointment is optional with the Central Executive.
There cannot be an Election Commission without the Chief Election Commissioner but same is
not the case with the Election Commissioners. Their number can vary from time to time. Article
324(2) contemplates a statute to define the conditions of service of the Chief Election
Commissioners and the Election Commissioners.
The President may appoint after consultation with the Election Commission, such
Regional Commissioners as the President may consider necessary to assist the Election
Commission in the discharge of its functions. The Regional Commissioners may be appointed
before each general election to the Lok Sabha and the State Legislative Assemblies and also
before the biennial elections to the State Legislative Councils [Article 324(4)].

As the Regional Commissioners are appointed by the President in consultation with the
Commission to assist it to perform its functions, the Election Commissioners are placed on a
higher pedestal than the Regional Commissioners. While the Election Commissioners are
members of the Election Commission, the Regional Commissioners are not its members.
The President may make rules to determine the conditions of service and tenure of office
of the Election Commissioners and the Regional Commissioners. This however is subject to any
law made by Parliament [Article 324(5)].
D.

CHIEF JUSTICE AND OTHER JUDGES OF SUPREME COURT AND

HIGH COURTS

1. SUPREME COURT OF INDIA

In any country, the Judiciary plays the important role of interpreting and applying the law
and adjudicating upon controversies between one citizen and another and between a citizen and
the state. It is the function of the Courts to maintain the rule of the law in the country and to
assure that the government runs according to law. In a country with a written Constitution,
Courts have the additional function of safeguarding the supremacy of the Constitution by
interpreting and applying its provisions and keeping all authorities within the constitutional
framework.
Article 124(1) establishes the Supreme Court of India. The Chief Justice of the Court is
designated as the Chief Justice of India. According to Article 124(2), the judges of the Supreme
Court are appointed by the President. While appointing the Chief Justice, the President has
consultation with such of the judges of the Supreme Court and the High Courts as he may deem
necessary. In case of appointment of other judges, the President if required to consult the Chief
Justice of India though he may also consult such other judges of the Supreme Court and the High
Courts as he may deem necessary.
The President can appoint a Supreme Court Judge as the acting Chief Justice in case the
office falls vacant or the Chief Justice is unable to perform his duties due to absence or otherwise
[Article 126]. However, the Chief Justice of India with the previous consent of the President may
request any retired Supreme Court Judge to sit and act as a Judge of the Court. If he agrees to do

so, then while so sitting and acting, he is entitled to such allowances as may be determined by an
order of the President. He will also enjoy all the jurisdiction, powers and privileges of a Supreme
Court Judge but shall not otherwise be deemed to be a Judge of the Court.
2. HIGH COURTS
The State Judiciary consists of a High Court and a system of subordinate Courts. The high
Court is at the apex of the State judicial system. The High Courts come below the Supreme
Court in Indias judicial hierarchy. At present, each State in India has a High Court [Article 214].
Parliament may, however, establish by law a common High Court for two or more States [Article
231(1)]. The Gauhati High Court is the common High Court of seven States of North East India,
namely Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram13 and Arunachal Pradesh14.
Bombay High Court has jurisdiction over the State of Goa and the Union Territory of Daman,
Diu, Dadra and Nagar Haveli15. Similarly, Calcutta High Court is the High Court for the Union
Territory of the Andaman and Nicobar Islands16. The States of Punjab and Haryana have a
common High Court which is also the High Court for the Union Territory of Chandigarh.
Besides these four, there are at present 17 other High Courts.
The High Court Judges are appointed by the President after consulting the Chief Justice of
India, the Governor of the State concerned17 and in case of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court to which the appointment is to be made
[Article 217(1)].
As mentioned above, the constitutional provision [Article 217(1)] says that the President
appoints these Judges after consulting the Chief Justice of India, the State Governor and the
Chief Justice of the High Court concerned. The Central Executive and the State Executive
provide the political input in the process of selection of the Judges.
The President may appoint one of the Judges of the High Court as its acting Chief Justice in
case the office falls vacant, or the Chief Justice is unable to perform his duties by reason of
absence or otherwise [Article 223]. The acting Chief Justice has all the powers of the Chief
Justice without any limitation, although it is a rule of prudence not to take any major decisions
which could await the decision of the would Chief Justice18.

The President may appoint duly qualified persons as additional Judges of a High Court for a
period not exceeding two years, when it appears to him that because of temporary increase in
business or arrears of work therein, the number of Judges of that Court should be increased
[Article 224(2)].
A duly qualified person may also be appointed as an acting Judge of a High Court when any
of its Judges other than the Chief Justice is unable to perform his duties due to absence or
otherwise or when a permanent Judge of the High Court is appointed as its acting Chief Justice.
An acting Judge holds office until the permanent Judge resumes his duties [Article 224(2)].
The Chief Justice of a High Court may with the previous consent of the President request a
retired High Court Judge to sit and act as a Judge of the High Court. While so sitting and acting,
he is entitled to such allowance as the President may by order determine. He has all jurisdiction,
powers and privileges of a High Court Judge but is not regarded as a Judge of the High Court for
any other purpose [Article 224A]
E.

COMPTROLLER AND AUDITOR-GENERAL

The Comptroller and Auditor-General (C.A.G) is appointed by the President, i.e., the central
Executive [Article 148(1)]. He takes a prescribed oath before assuming his office [Article
148(2)]. His salary and other conditions of service have now been prescribed in an Act of
Parliament19.
The President may make rules after consultation with Comptroller and Auditor-General,
regulating the conditions of service of persons serving in the Indian Audit and Account
Department. This rule-making power is, however subject to the Constitution and any law made
by Parliament [Article 148(5)]. Interpreting the scope of the rule-making power, the Supreme
Court has ruled that these rules cannot be made with retrospective effect20.
The Comptroller and Auditor-General perform a very useful function. He secures the
accountability of the Executive to Parliament in the field of financial administration. He helps in
making legislative control over the Executive more effective by a sort of retrospective, an ex post
facto, examination of the expenses incurred. It is because of the great importance of his functions
that the Comptroller and Auditor-General have been given a status comparable to that of a Judge

of the Supreme Court. He submits his reports to the President or the Governor in case of the
central or State accounts respectively. These reports are placed before Parliament or the
concerned State Legislature [Article 151].
F.

GOVERNORS OF STATES

The Governor of a State plays a multifaceted role. He is a vital link between the Centre and
the State. It is his duty to keep the Centre informed of the affairs of the State. This helps the
Centre to discharge its constitutional functions and responsibilities towards the State.
Each State has a Governor, but two or more States may have a common Governor [Article
153]. The Governor is formally appointed by the President [Article 155]. The President appoints
the State Governor on the advice of the Prime Minister with whom, therefore, the effective
power lies in this regard21.
The Constituent Assembly fully debated the merits and demerits of an elected v/s. nominated
Governor and finally opted for the system of Presidential nomination rather than direct election
of the Governor because of several reasons22: For example
(1) A nominated Governor would encourage centripetal tendencies and thus promote all
India unity. On the other hand, it was apprehended that an elected Governor would to
some extent encourage that separatist provincial tendency more than otherwise. There
will be far fewer links with the Centre23.
(2) In a Parliamentary system the head should be impartial, but a Governor elected by the
direct vote of the people would have to be a partyman. On this point, it was stated in the
Constituent Assembly:
He should be a more detached figure acceptable to the province, otherwise he
could not function and yet may not be a part of the party machine of the province.
On the whole, it would probably be desirable to have people from outside,
eminent in something, education or other fields of life who would naturally
cooperate fully with the Government in carrying out the policy of the Government
and yet represent before the public something above politics.

(3) Conflicts might arise between the Governor and the Chief Minister if both were to be
elected by the people, for the former might claim to arrogate power to himself on the plea
of his having been elected by the whole State as against the latter who would be elected
only in a constituency which would be a small part of the State. It was stated in the
Constituent Assembly:24
When the whole of the executive power is vested in the Council of Ministers, if
there is another person who believes that he has go the backing of the province
behind him and therefore at his discretion he can come forward and intervene in
the governance of the province, it would really amount to a surrender of
democracy.
(4) The Governor being only a symbol, a figurehead, there would be no point in spending
money in having elected.25
The Governor holds his office during the pleasure of the President under Article 156. The
Governor may resign at anytime by writing to the President [Article 156(3)]. In a contingency for
which the Constitution makes no provision such as death of the Governor, the President may
make such provision as he thinks fit for discharge of the functions of the Governor of a State
[Article 160]. Thus, the Chief Justice of the High Court can be appointed temporarily to
discharge the functions of the Governor of the State.26
While there exist provisions in the Constitution for impeachment of the President, no such
provisions exist concerning the Governor. The reason being that as he holds his office during the
pleasure of the President, the Central Government can always recall him if the circumstances so
require. A Governor is a political appointee and when an appointment is made by the
government on political considerations, it can also be terminated on political considerations.27
G.

LIEUTENANT GOVERNORS OF UNION TERRITORIES

There exist a few centrally administered units which do not form part of any State but have
been kept as separate and distinct entities because of several historical, cultural or political
reasons. These administrative units are designated as Union Territories. At present, there are 7
Union Territories:

(1) Delhi;
(2) The Andaman and Nicobar Islands;
(3) Lakshadweep;
(4) Dadra and Nagar Haveli;
(5) Daman and Diu;
(6) Pondicherry (known as Puducherry w.e.f. 1st October 2006); and
(7) Chandigarh
A Union Territory is administered directly by the Central Executive. A Union Territory is to
be administered by the President acting, to such extent as he thinks fit through an Administrator
to be appointed by him with the designation of Lieutenant Governor. But this does not mean that
the Union Territories become merged with the Central Government. Although they are
independent entities, they are centrally administered. Any instruction of directive issued by the
Central Government or the President28 is binding on the administration of the Union Territory29.
Parliament may by law provide otherwise [Article 239(1)]. A Governor of a State may also
be appointed as the Administrator of a Union Territory adjoining to that State. In that capacity,
the Governor is to act independently of his Council of Ministers [Article 239(2)].
It has been held by the Supreme Court that the Administrator or the Lieutenant Governor of a
Union Territory is not a purely constitutional functionary. His position is somewhat different
from that of a State Governor30. The Administrator or the Lieutenant Governor is a delegate of
the President. His position is wholly different from that of a State Governor. He cannot thus be
equated with a State Governor. After differing with his Council of Ministers, the Administrator
or the Lieutenant Governor may act under orders of the President, which means the Central
Government31. The Administrator or the Lieutenant Governor is not a purely constitutional
functionary.
III.

POWER TO APPOINT PRIME MINISTER & THE COUNCIL OF

MINISTERS

The Prime Minister is appointed by the President [Article 75(1)]. This is one act which the
President performs in his discretion without the advice of the Council of Ministers or the Prime
Minister. The Constitution prima facie appears to confer an unfettered discretion on the President

to appoint whomsoever he likes as the Prime Minister, in practice, it is not so. A few conventions
and a few constitutional provisions indirectly restrict his choice of a Prime Minister.
It is essential that the President appoints a person as the Prime Minister who has the support
and confidence of a majority of the members of the Lok Sabha, otherwise he will not be in a
position to form a stable Ministry and carry the House with him in his policies and programmes
and the government cannot function. This means that the leader of the majority party in the Lok
Sabha should invariably be invited to become the Prime Minister. This is the principal limitation
in practice on the Presidents choice. As IVOR JENNINGS has asserted in the context of Britain:
If a party secures a majority and that party has a leader, that leader must become Prime
Minister.
In the matter of appointment of the Prime Minister, the President thus enjoys some marginal
discretion, his discretion being limited to choosing a person who is qualified to be a member of
Parliament under Article 84 and not disqualified under Article 102 who is either a member of
Parliament or has the potentiality to be so elected within six months of his appointment and who
can command the support of the majority of the members of the Lok Sabha32. At critical
moments, the choice of the Prime Minister by the President may prove to be extremely crucial.
When a party has a clear majority in the Lok Sabha, the President has to induct the
acknowledged leader of the party into the Prime Ministers office and the Presidents power in
such a case is merely formal. If, however, the political situation is not clear and no party has a
clear majority, then the President will have some scope to exercise his own judgment as to who
amongst the several aspirants to the office has the best chance of forming a stable Ministry and
secure confidence of the Lok Sabha.
But when it comes to appointment of Ministers, the President must be conscious that a
Minister should, normally speaking be a member of a House of Parliament. It is a well
established convention in all countries having the Parliamentary system33 but not an absolute
rule; even a non-member may be appointed as a Minister but he must sooner than later become a
member of a House.
The Ministers are appointed by the President on the advice of the Prime Minister [Article
75(1)]. In effect, therefore, Ministers are the nominees of the Prime Minister. The President

depends entirely on the Prime Ministers advice in this matter; he does not have much of a
choice in the matter and his function in this respect is purely formal. The President administers to
a Minister before he enters upon his office, the prescribed oaths of secrecy and office [Article
75(4)].
Another constitutional provision having a bearing on the question of ministerial tenure is
Article 75(2), according to which, Ministers hold office during the pleasure of the President.
Prima facie it would mean that the ministerial tenure is within the Presidents discretion and that
a Minister may legally be dismissed by him as and when he likes. Ex facie, there appears to be an
inconsistency between Articles 75(2) and 75(3), but in practice this is not so. Reading Articles
75(2) and 75(3) together, the position seems to be that the Presidents power to dismiss the
Ministry is subject to democratic controls.
Accordingly, Presidents power to dismiss a Minister is only meant to be used to keep the
parliamentary form of government functioning smoothly, to promote collective responsibility
among Ministers and to protect the Ministry from disruption. In a healthy democratic polity,
where democratic traditions have taken roots, the Presidents power may never be called into
action. It is only the ultimate resort to be invoked in an exceptional situation and that too, to
uphold, support and maintain democratic and parliamentary traditions.
IV.

POWER TO ASSENT OF BILLS AND AMENDING THE CONSTITUTION

1.

ASSENT OF BILLS

Making laws is Parliaments major pre-occupation. Changing and complex socio-economic

problems constantly demand new laws and thus parliament spends good deal of its time on
legislative activity.
In the area of ordinary legislation, the two houses of Parliament enjoy co-ordinate power. A
Bill has to be passed by the two Houses in an identical form before it can be submitted to the
President for his assent [Article 107(2)]. It may however happen at times that the two Houses do
not agree on a Bill and a deadlock may ensue between them. Such a deadlock is resolved through
a joint session of the two Houses. The President may summon a joint session of both the Houses
[Article 108(1)]. While reckoning the period of six months, no account is to be taken of any

period during which the House to which the Bill has been sent is prorogated or adjourned for
more than four consecutive days [Article 108(2)].
Parliament cannot legislate without the concurrence of all its parts and therefore in addition
to the two Houses assent of the President is also required for a Bill to become law, for the
President is a part of Parliament [Article 79]. When a Bill is passed by both Houses is sent to the
President for assent
(1) He may either give or withhold his assent therefrom [Article 111]; or
(2) May send it back to the Houses for reconsideration and for considering the desirability of
introducing such amendments as he may suggest [Proviso to Article 111].
Thus if the President refuses to give his assent to a Bill in the first instance, there is no way to
override his veto and the Bill is dead. If however he does not veto the Bill but refers it to the
Houses for reconsideration, his power of veto is gone.
From the point of view of parliamentary procedure, the Constitution distinguishes between
Money Bill, Financial Bill and an Ordinary Bill involving expenditure. A Money Bill is a Bill
which contains only provisions dealing with the following matters:
(1) The imposition, abolition, remission, alteration or regulation of any tax;
(2) The regulation of the borrowing of money or the giving of any guarantee by the
Government of India or the amendment of the law with respect to any financial
obligations undertaken by that Government;
(3) The custody of the Consolidated Fund or the Contingency Fund of India, the payment of
moneys therein or withdrawal of moneys therefrom;
(4) The appropriation of money out of the Consolidated Fund of India;
(5) The declaring of any item of expenditure as being a charge on the Consolidated Fund of
India or increasing any such amount;
(6) The receipt of money on account of the Consolidated Fund of India or the Public Account
of India or the custody or issue of such money or the audit of the accounts of India or of a
State; or
(7) Any matter incidental to any of the matters specified above and not [Article 110(1)].

A Bill is a Money Bill when it deals only with the matters specified above and not with any
other extraneous matter. Thus, a notification issued by the Ministry of Environment and Forests
in exercise of the powers conferred by sub-section (3) of Section 3 of the Environment
(Protection) Act, 1986 constituting an authority for the purpose of management of money
received towards compensatory afforestation and other monies recoverable by the Central
Government for non-forestry uses of forest land is not a Money Bill under either Article 110 or
Article 19934.
A Bill which makes provisions for any of the above-mentioned matters and additionally with
any other matter is called a Financial Bill [Article 117(1)]. A Financial Bill is thus really a
Money Bill to which some other matter has also been tacked on.
Further, a Bill is neither a Money Bill nor a Finance Bill if it deals only with (i) the
imposition of fines or other pecuniary penalties; or (ii) the demand of payment of fees for
licences or fees for services rendered, or (iii) imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local purposes [Articles 110(2) and
117(2)]. The last clause excludes all municipal taxation from the scope of a Money or Financial
Bill35.
A Money Bill originated in Lok Sabha only; it cannot be introduced in Rajya Sabha [Article
109(1)]. It cannot be introduced or moved except on the recommendation of the President
[Article 117(1)]. However, Presidential recommendation is not necessary for moving an
amendment providing for reduction or abolition of any tax. Presidential assent is necessary to
make a Money Bill or a Financial Bill legally effective after its passage in the two Houses. The
position in this context is much the same as in case of an Ordinary Bill, except that the President
has no power to refer a Money Bill back to the Houses for reconsideration [Article 111].
It has been contended that the President cannot withhold assent from a Money Bill36. But this
opinion does not appear to be sound in view of the phraseology of Article 111.
2.

AMENDING THE CONSTITUTION

Times are not static. Times change and therefore the life of a nation is not static but dynamic,
living and organic; its political, social and economic conditions change continuously. Social

mores and ideals change from time to time creating new problems and altering the complexion of
the old ones. It is therefore quite possible that a Constitution drafted in one era and in a particular
context may be found inadequate in another era and another context. The ideas upon which a
Constitution is based in one generation may be spurned as old fashioned in the next generation. It
thus becomes necessary to have some machinery, some process by which the Constitution may
be adapted from time to time in accordance with contemporary national needs.
Different degrees of rigidity attach to different portions of the Constitution depending on
their importance and significance. The Constitution accordingly provides for the following three
classes of amendments of its provisions:
(1) Constitutional provisions of comparatively less significance can be amended by the
simple legislative process as is adopted in passing ordinary legislation in Parliament;
(2) Those provisions which are material and vital are made relatively stable as these can be
amended only by following the rule of special majority as laid down in Articles 368;
(3) There are certain constitutional provisions relating to the federal character which may be
characterized as the entrenched provisions, which need for their amendment in addition
to the passage of the amending Bill by the special majority in the two Houses of
Parliament, ratification by half of the State Legislatures. This procedure is also laid down
in Article 368.
CATEGORY (1)
Several Articles of the Constitution make provisions of a tentative nature and Parliament has
been given power to make laws making provisions different from what these Articles provide
for. Such a law can be made by the ordinary legislative process and is not to be regarded as an
amendment of the Constitution and is not subject to the special procedure prescribed in Article
368. In most of the cases, the constitutional text remains intact but Parliament makes different
provisions. These Articles of the Constitution are as follows:
(1) When Parliament admits a new State under Article 2, it can effect consequential
amendments in Schedules I and IV defining territory and allocating seats in the Rajya
Sabha amongst the various States respectively.

(2) Under Article 11, Parliament is empowered to make any provision for acquisition and
termination of and all other matters relating to citizenship in spite of Articles 5 to 10.
(3) Article 73(2) retains certain executive powers in the States and their officers until
Parliament otherwise provides.
(4) Articles 59(3), 75(6), 97, 125(2), 148(3), 158(3) and 221(2) permit amendment by
Parliament of the Second Schedule dealing with salaries and allowances of certain
officers created by the Constitution.
(5) Article 105(3) prescribes parliamentary privileges until it is defined by Parliament.
(6) Article 124(1) prescribes that Supreme Court shall have a Chief Justice and seven
Judges until Parliament increases the strength of the Judges.
(7) Article 133(3) prohibits an appeal from the judgment of a single Judge of the High
Court to the Supreme Court unless Parliament provides otherwise.
(8) Article 135 confers jurisdiction on the Supreme Court (equivalent to the Federal Court)
unless Parliament otherwise provides.
(9) Under Article 137, Supreme Courts power to review its own judgments is subject to a
law made by Parliament.
(10) Article 171(2) states that the composition of the State Legislative Council as laid down
in Article 170(3) shall endure until Parliament makes a law providing otherwise.
(11) Article 334(3) provides that Parliament may by law provide for the use of English even
after 15 years as prescribed in Article 343(2).
(12) Article 348(1) establishes English as the language to be used in the Supreme Court and
the High Courts and of legislation until Parliament provides otherwise.
(13) Schedules V and VI deal with administration of the Scheduled Areas and Scheduled
Tribes and Tribal Areas in Assam which may be amended by Parliament making a law.
There are certain other Articles in the Constitution which make tentative provisions until a
law is made by the Parliament by following the ordinary legislative process but before
Parliament can act, the States have to take some action. Thus Article 3 provides for the reorganization of the States, Parliament may pass a law for the purpose and effect consequential
amendments in the I and IV Schedules. Before doing so, however, it is necessary to ascertain the
views of the States concerned.

Under Article 169, Parliament may abolish a State Legislative Council or create one in a
State not having it, if the State Legislative Assembly passes a resolution to that effect by a
majority of its total membership and by a majority of not less than 23 of the members present

and voting. The Parliamentary law enacted for the purpose may contain such provisions
amending the Constitution as may be necessary to give effect to it, and it is not to be regarded as
an amendment of the Constitution for the purposes of Article 368.
Corresponding to Articles 75(6) and 105(3), there are Articles 164(5) and 194(3) which
make tentative provisions until a State Legislature makes other provisions. They relate
respectively to salaries of Ministers in a State and privileges of the Houses. These are the only
Articles in the Constitution which enable a State Legislature to make provisions different from
what the Constitution prescribes in the first instance.
CATEGORIES (2) AND (3)
The process to amend and adapt other provisions of the Indian Constitution is contained in
Article 368. The phraseology of Article 368 has been amended twice since the inauguration of
the Constitution. However, the basic features of the amending procedure have remained intact in
spite of these changes. These basic features are:
(i)

An amendment of the Constitution can be initiated only by introducing a Bill for the
purpose in either House of Parliament.

(ii)

After the Bill is passed by each House by a majority of its total membership and a
majority of not less than 23 of the members of that House present and voting and

after receiving the assent of the President, the Constitution stands amended in
accordance with the terms of the Bill.
(iii)

To amend certain constitutional provisions relating to its federal character,

characterized as the entrenched provisions, after the Bill to amend the Constitution
is passed by the Houses of Parliament as mentioned above, but before being presented
to the President for his assent, it has also to be ratified by the legislators of not less
than one-half of the States by resolutions.

The entrenched provisions which are given this additional safeguard are:
(a) The manner of lection of the President: Articles 54 and 55
(b) Extent of the executive power of the Union and the States: Articles 73 and 162
(c) The Supreme Court and the High Courts: Articles 124-147 and 214-231
(d) The scheme of distribution of legislative, taxing and administrative powers between the
Union and the States: Articles 245-255
(e) Representation of the States in Parliament
(f) Article 368 itself
There are several landmark cases that have been decided by the Supreme Court since 1951
on the scope of the constitutional amending process contained in Article 368. Few of them are:
i.

Shankari Prasad Singh v/s. Union of India, AIR 1951 SC 458, this was the first case on
amendability of the Constitution (First Amendment) Act, 1951, curtailing the right to
property guaranteed by Article 31 was challenged.

ii.

For the next 13 years following Shankari Prasad, the question of amendability of the
Fundamental Rights remained dormant. The same question was raised again in 1964 in
Sajjan Singh v/s. State of Rajasthan, AIR 1965 SC 845, when the validity of the
Constitution (Seventeenth Amendment) Act, 1964 was called in question. This
amendment yet again adversely affected the right to property.

iii.

This case was based on HIDAYATULLAH. Js argument of non-amendability of

Fundamental Rights. The question whether any of the Fundamental Rights could be
abridged or taken away by Parliament in exercise of its power under Article 368 was
raised again in L.C.Golak nath v/s. State of Punjab, AIR 1967 SC 1643 : 1967 (2) SCR
762. Again, the constitutional validity of the Constitution (Seventeenth Amendment) Act,
1964 was challenged in a very vigorous and determined manner. Eleven Judges
participated in the decision and they divided 6 to 5.

iv.

Amendment of Article 368 (24th Amendment): To neutralize the effect of Golak Nath,
Nath Pai, M.P., introduced a private members Bill in the Lok Sabha on April 7, 1967 for
amending Article 368, so as to make it explicit that any constitutional provision could be
amended by following the procedure contained in Article 368. The proposed Bill was

justified as an assertion of the Supremacy of Parliament which principle implied the

right and authority of parliament to amend even the Fundamental Rights.
The constitutional validity of both the Amendments, viz., 24th and 25th was challenged in

v.

the Supreme Court through Article 32 writ-petition in Kesavananda Bharati v/s. State of
Kerala, AIR 1973 SC 1461.
vi.

The next case in which the Supreme Court had occasion to apply the Kesavananda
Bharati ruling regarding the non-amendability of the basic features of the Constitution
was Indira Nehru Gandhi v/s. Raj Narain, AIR 1975, SC 2299. The question involved
here was the validity of clause (4) of the Constitution (39th Amendment) Act, 1975.
Amendment of Article 368 (42nd Amendment): The Central Government did not relish

vii.

the Supreme Courts pronouncement in the Indira Nehru Gandhi case declaring clause
(4) of the Constitution (39th Amendment) Act, 1975 invalid. The Government very much
desired to ensure that never in future; the courts should have the power to pronounce a
constitutional amendment invalid. Accordingly, Article 368 was again amended by the
42nd Amendment enacted in 1976,
viii.

In Minerva Mills Ltd., v/s. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625, the
scope and extent of the doctrine of basic structure was again considered by the Supreme
Court. The Court again reiterated the doctrine that under Article 368, Parliament cannot
so amend the Constitution as to damage the basic or essential features of the Constitution
and destroy its basic feature.

The modes of adapting the constitution from time to time to new circumstances may either be
informal or formal. Informal methods are judicial interpretations and conventions (cases that are
evident as discussed above) and the formal method is the constituent process (wherein the last
say will lie ultimately in the hands of the President).
V.

POWER TO PROMULGATE ORDINANCES

The Central Executive has power to issue ordinances and thus promulgate laws for a short
duration. The technique of issuing an ordinance has been devised with a view to enabling the
Executive to meet any unforeseen or urgent situation arising in the country when Parliament is
not in session and which it cannot deal with under the ordinary law.

Ordinarily, under the Constitution, the President is not the repository of the legislative power
of the Union. This power belongs to Parliament. But, with a view to meet extraordinary situation
demanding immediate enactment of laws, the constitution makes provision to invest the
President with legislative power to promulgate ordinances.
Article 123 empowers the president to promulgate such ordinances as the circumstances
appear to him to require when
(1) Both Houses of Parliament are not in session; and
(2) He is satisfied that circumstances exist which render it necessary for him to take
immediate action.
The provision confers the power formally on the president but as already states, he acts in
this matter as he does in other matters on the advice of the Council of Ministers and therefore the
ordinance-making power is vested effectively in the Central Executive. As the Supreme Court
has stated: The Ordinance is promulgated in the name of the President and in a constitutional
sense on his satisfaction: it is in truth promulgated on the advice of his Council of Ministers and
on their satisfaction37.
The power to issue an ordinance is legislative power. An ordinance issued by the President
partakes fully of the legislative character and is made in the exercise of legislative power38.
The power of the President to issue ordinances is co-extensive with the legislative power of
Parliament39. The Presidents power to promulgate ordinances is no higher and no lower than the
power of Parliament to make laws. An ordinance cannot make a provision which Parliament is
not competent to enact [Article 123(3)]. Conversely, an ordinance can make any provision which
Parliament can enact, except that an appropriation from out of the Consolidated Fund cannot be
made by an ordinance [Article 114(3)]. Thus, an ordinance may make provision with respect to a
matter in Lists I and III but not in List II, except when proclamation of emergency is in
operation. Further, like a law made by Parliament an ordinance is also subject to Fundamental
Rights.
For instance, an ordinance was promulgated by the President in 1996 declaring a section of
the population of Assam as Scheduled Tribes. The same ordinance was repeated several times

and ultimately it lapsed without Parliament passing an analogous Act. The High Court of
Gauhati ruled in Maitreyee Mahanta v/s. State of Assam40 that as Parliament did not pass the
necessary law, the ordinance would lapse and accordingly the rights vested in the communities
by the ordinance would also lapse.
VI.

POWER TO ISSUE PROCLAMATION OF EMERGENCY

A notable feature of the Indian Constitution is the way in which the normal peace-time
federalism can be adapted to an emergency situation. The framers of the Constitution felt that in
an emergency, the Centre should have overriding powers to control and direct all aspects of
administration and legislation throughout the country,
The Constitution envisages three types of emergencies:
i) Emergency arising from a threat to the security of India;
ii) Breakdown of constitutional machinery in a State;
iii) Financial emergency.
Under Article 352(1), if the President is satisfied that a grave emergency exists whereby the
security of India or any part thereof is threatened, whether by war or external aggression or
armed rebellion, he may, by proclamation make a declaration to that effect. Such a proclamation
may be made in respect of the whole of India or such part of the Indian Territory as may be
specified in the proclamation.
Article 352 has been invoked three times so far. A proclamation of emergency was issued
under Article 352 for the first time on October 26, 1962, in the wake of conflict with China. It
remained in force during the Indo-Pakistan conflict in 1965 and was revoked only in January,
1968.
Emergency was proclaimed again in December, 1971, as a result of the Indo-Pakistan dispute
on the ground of external aggression. While the 1971 proclamation was still effective, another
proclamation was issued on June 26, 1975. This time the proclamation was issued on the ground
of Internal disturbance threatening the security of India. Both these proclamations were
revoked in March, 1977. Thus, from June 26, 1975 to March, 1977, two emergency
proclamations were in force simultaneously.

Articles 356 and 357 provide for meeting a situation arising from the failure of the
constitutional machinery in a State41. If the President on receipt of a report from the Governor of
a State or otherwise is satisfied that a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of the Constitution, the President may by
proclamation
(a) Assume to himself all or any of the functions of the State Government or the powers of
the Governor or any body or authority in the State other than the State Legislature;
(b) Declare that the powers of the State Legislature are to be exercised by Parliament;
(c) Make such incidental provisions as may appear to him to be necessary or desirable for
giving effect to the provisions of the proclamation; the President may even suspend in
whole or in part the provisions of the Constitution relating to any body or authority in the
State [Article 356(1)].
The normal operative period for the proclamation is six months from the last of the days on
which the Houses pass resolutions approving the same. The life of the proclamation may be
extended by six months each time by both Houses passing resolutions approving its continuance.
In this way, each time Parliament ratifies the proclamation; its life is extended for another six
months42.
Article 360 makes provisions concerning financial emergency. If the President is satisfied
that a situation has arisen whereby the financial stability or credit of India or any part thereof, is
threatened, he may by a proclamation make a declaration to that effect [Article 360(1)].
When such a proclamation is in operation, the Centre can give directions to any State to
observe such canons of financial propriety as may be specified in the directions. It may also give
such other directions as the President may deem necessary and adequate for the purpose [Article
360(3)]. Any such directions may provide for the reduction of salaries and allowances of all or
any class of persons serving in the State [Article 360(4)(a)(ii)].
The Centre may require that all Money Bills or Financial Bills or those which involve
expenditure from the State Consolidated Fund shall be reserved for the Presidents consideration
after being passed by the State Legislature [Article 360(4)(a)(i)].

A proclamation issued under Article 360(1) may be revoked or varied by a subsequent

proclamation [Article 360(2)(a)] and has to be laid before each House of Parliament [Article
360(2)(b)]. The proclamation ceases to have effect after two months unless in the meantime is it
approved by resolutions of both Houses of Parliament [Article 360(2)(c)]. If at the time, the
proclamation under Article 360(1) is issued, Lok Sabha is dissolved it may be approved by the
Rajya Sabha and then approved by the Lok Sabha after elections within thirty days from its first
sitting. If not so approved, the proclamation ceases to exist [Proviso to Article 360(2)(c)].
By the 38th Amendment of the Constitution, the Presidential satisfaction in Article 360(1)
was declared to be final and conclusive and not questionable in any court on any ground.
VII.

POWER TO GRANT PARDONS ETC., AND TO SUSPEND, REMIT OR

COMMUTE SENTENCES

Article 72 empowers the President to grant pardon, reprieve, respite or remission of

punishment, or to suspend, remit or commute the sentence of any person convicted of any
offence in all cases
(a) Where the punishment or sentence is by a court martial;
(b) Where the punishment or sentence is for an offence against a law relating to a matter to
which the Union s executive power extends; and
(c) Of a death sentence43
The President acts in this matter on the advice of the Home Minister. The scope of the power
conferred on the President by Article 72 is very extensive. It extends to the whole of India. The
power to grant pardon may be exercised either before conviction by amnesty to the accused or
under-trial prisoner or after conviction44. The power to grant pardons is purely an executive
function. In Balmukund v/s. King Emperor, the Judicial Committee said:
The tendering of advice to His Majesty as to the exercise of the prerogative of pardon is
a matter for the executive Government and is outside their Lordships province.
In Kehar Singh v/s. Union of India45, the Court has unanimously held: It seems to us that
there is sufficient indication in the terms of Article 72 and in the history of the power enshrined
in that provision as well as existing case-law and specific guidelines need not be spelled out.

Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently
channelized guidelines, for we must remember that the power under Article 72 is of the widest
amplitude, can contemplate myriad kinds and categories of cases with facts and situations
varying from case to case, in which the merits and reasons of State may be profoundly assisted
by prevailing occasion and passing time.
JUDICIAL REVIEW OF PARDONING POWER
In Maru Ram v/s. Union of India46, the Supreme Court expressly stated that the power of
pardon, commutation and release under Article 72 (also under Article 161) cannot run riot and
must keep sensibly to a steady course and that public power shall never be exercisable
arbitrarily or mala fide and ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power.
In Epuru Sudhakar v/s. Government of Andhra Pradesh47, the Supreme Court held that
considerations of religion, caste or political loyalty are irrelevant and prohibited. It was also held
that the power of executive clemency is not only for the benefit of the convict but while
exercising such a power the President or the Governor, as the case may be, has to keep in mind
the effect of the decision on the family of the victim and society and the precedent it sets for the
future.
The Court also unambiguously declared that the right to life and liberty (guaranteed under
Article 21) which Parliament may not abridge or take away, is of paramount importance in
adjudging the constitutionality of the Presidents or Governors power to grant pardon. The
power of clemency is the power of the people which has been delegated to them and should only
be exercised on the advice of the Council of Ministers. The Court also introduced several new
checks and balances in the process for executing death sentence. These are:
(a) Every convict should be given a chance to seek mercy. Execution will take place only
after 14 days from the date the convict and his family are intimated in writing about the
rejection of his mercy plea. A prisoner can be sent to the gallows only after facilitating
his meeting with relatives and friends. A mandatory health check will be done before the
execution and the noose can be tightened only after medical clearance, covering both
physical and mental aspects.

(b) Going further, the Court mandated post-mortem examination of the bodies of every
person hanged to ensure that the execution was conducted with decency and decorum
without involving degradation or brutality of any kind. Hanging should only result in
dislocation of the cervical vertebrae which causes least pain before death not in painful
strangulation, it explained.
PROCEDURE TO GRANT CLEMENCY
The President has the power to grant clemency under Article 72 of the Constitution. This
power is, however, not subject to any time-frame.
Once a death sentence is passed by either a session court, special court or any other court, the
trial judge must send the case to the High Court for confirmation of the sentence.
If the High Court confirms the sentence, the convict can appeal to the Supreme Court
If the Supreme Court too upholds the sentence, the convict then has the option of pleading for
mercy to the Governor of the State or President of India
A plea made to the President of India is first routed to the Union Home Ministry for a
thorough examination
The Union Home Ministry seeks the help of respective State Government to study the case
The State Government gathers all details of the case and returns the file to the Home Ministry
The Home Ministry further examines the case and forwards the file to the Presidents
Secretariat
Presidents Secretariat then forwards the file to the President of India for a final decision in the
matter; there is no time-frame for the President of India to take a final decision
If mercy is denied the
sentence is on the last
mile to being carried
out

If the President grants

a pardon, the convict
usually returns to
serving a life term

The Presidents Secretariat can

return the file to the Home
Ministry for further details or
re-examination

VIII. POWER TO SUMMON, PROROGUE AND DISSOLVE PARLIAMENT

1.

SUMMONING

The power to summon a House of Parliament to meet is formally vested in the President
[Article 85(1)]. In actual practice, however, the decision to convene a House is taken by its
leader in consultation with his cabinet colleagues, the Speaker and probably the leaders of the
opposition groups48.
A notification convening a House is issued under the Presidents signature in the Official
Gazette and summons to individual members are issued by its Secretary.
Each House is to meet in such a way that six months do not intervene between its last sitting
in once session and its first sitting in the next session [Article 85(1)]. This means that Parliament
must meet at least twice a year. However, the period of six months does not apply in the event of
premature dissolution of the Lok Sabha49.
2.

POWER TO SEND MESSAGES

The President can send messages to a House whether with respect to a Bill pending in
Parliament or otherwise [Article 86(2)]. The House to which any such message is sent is
obligated to consider with all convenient dispatch any matter required by the message to be taken
into consideration.
But the purpose of the provision enabling the President to send messages to Parliament in
India is not clear because the President acts on the advice of the Ministers who are always
present in the House and can, therefore say whatever is necessary for the Government to say.
A view has, however been exercised that the founding fathers intended this power to be
an instrument whereby the President could carry out his constitutional duty to see that the
Constitution is obeyed and that the kind of Government it contemplates is continued that he
should be able when given advice that he cannot in conscience accept to appeal to Parliament
and incidentally to the nation. The possibility and the threat of such action by the President is
calculated to deter Ministers from tendering improper advice.

3.

PROROGATION

Prorogation puts an end to a session of the House but not to its existence and the same House
meets again after prorogation. Prorogation only means that the House ceases to function for a
particular period of time.
The power to prorogue a House is vested formally in the President [Article 85(2)(a)] but he
acts in this matter on the advice of the Prime Minister. A Bill or any other business, whether
pending in the House or pending the assent of the President, does not lapse by the prorogation of
the House [Article 107(3)].50
4.

DISSOLUTION

Dissolution puts an end to the life of the House. It leads to the election of a new House.
Rajya Sabha is a continuing chamber it never comes to an end; it is not subject to dissolution and
1 of its members rotate every two years [Article 83(1)]. Lok Sabha on the other hand is not a
3
continuing chamber. Its normal life is five years from the date of its first meeting after the
general elections and the expiry of this period ipso facto operates to dissolve the House [Article
83(2)].
The power to dissolve Lok Sabha is vested formally in the President [Articles 83(2) and
85(2)(b)]. This is a significant power, for, by virtue of this power, a new House can be brought
into being which may even result in a change of Government. When, on what considerations and
under what circumstances can the power to dissolve Lok Sabha be exercised? These questions
are of great importance, but, on these points, the Constitution is silent and lays down no norms.
The framers of the Constitution thought it better to leave the matter open and lay down no rigid
rules so that as and when the question of dissolution arises, it might be decided in accordance
with the circumstances prevailing at that time and the constitutional conventions operative in the
countries with the Parliamentary form of government.
IX.

IMMUNITY OF THE PRESIDENT FROM COURT PROCEDDINGS

The President shall not be answerable in ant court for the exercise and performance of the
powers and duties or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties. (It is only when the President is impeached that his

conduct may be brought under review of any court, tribunal or body appointed by either House
of Parliament for the investigation of the charge). No criminal proceedings whatever shall be
instituted or continued against the President in any Court during his term of office. No process
for arrest or imprisonment of the President shall issue from any court during an elaborate
provision is made. The party seeking to institute any civil proceedings for an act done by the
President in his personal capacity whether before or after he entered upon his office as President
must first deliver a notice in writing to the President. The notice must state clearly the nature of
proceedings, the cause of the action therefore, the name, description and the place of residence of
the party by whom the proceedings are to be instituted and the relied claimed. After the
expiration of two months from the date of the notice, the proceedings may be instituted in the
proper court.
No writ can be issued by any court to the President of India. This protection is available not
only for acts of the President which are done by him in the exercise of his function but also for
acts purporting to be done by the President in exercise of his powers.
These provisions are also applicable in the case of Governor. This immunity is conferred on
the President and the Governors because they have to exercise their powers in accordance with
the advice of the Council of Ministers. This protection, however, does not mean that there are no
remedies against the State. A person can bring appropriate proceedings against the Government
of India or the Government of a State. Under the Government of India Act, 1935 no sort of writ
could be issued against the Government by the High Courts for the enforcement of the rights of
the people. This lacuna is now removed. The Government of India may sue or be sued in the
name of the Union of India and the Government of a State may sue or be sued in the name of the
State in relation to their respective affairs51.

REFERENCES
1.

Ram Jawaya v/s. State of Punjab, (1955) 2 SCR 225 (238-39)

2.

King-Emperor v/s. Sibnath Banerji, AIR 1945 PC 163

3.

M.P.Jain, A Treatise on Administrative Law, Vol. II, Ch. XXI

4.

Bijoya Cotton Mills v/s. State of West Bengal, AIR 1967 SC 1145 : (1967) 2 SCR 406

5.

DICEY, Law of the Constitution, 10th Ed., p. 468

6.

Ramdas Athawale v/s. Union of India, AIR 2010 SC 1310 (1314) : (2010) 4 SCC 1
(The words first session of the year employed in Article 87(1) has no reference to
resumption of the adjourned session).

7.

Shri. R. VENKATARAMAN (former President of India) in his memoires criticizes the

practice of Presidential address in the following words:
I had always held the view that the address by the President and Governors
at the commencement of the first session of the legislature every year was a
British anachronism. First, the address was prepared by the government and
contained only its views and the President and the Governors were mere
mouth pieces. While this is a fact, very often the President or Governors were
criticized on the contents of the address, creating a wrong public impression
about these dignitaries. Further, disorderly behavior during these addresses
marred the dignity of the high officesDuring Rajiv Gandhis time, I had
written to him to amend the Constitution deleting this meaningless formality
R.VENKATARAMAN, MY PRESIDENTIAL YEARS, 476

8.

Notification No. F. 43-50F, dated January 26, 1950. Gazette of India, Extraordinary,
Vol. VII, p. 33-34.

9.

Ram Kumar Kashyap v/s Union of India, (2009) 9 SCC 378

10. State of Uttaranchal v/s. Alok Sharma, (2009) 7 SCC 647, 657 ; (2009) 6 JT 463
11. Ram Kumar Kashyap v/s. Union of India, (2009) 9 SCC 378
12. AIR 1991 SC 1745 : (1991) 3 SCC 567
13. State of Mizoram Act, 1986
14. State of Arunachal Pradesh Act, 1986
15. Goa, Daman and Re-organization Act, 1987

16. Calcutta High Court (Extension of Jurisdiction) Act, 1953

17. In case of a common High Court for two or more States, the Governors of all the States
concerned are consulted; Article 231(2)

18. Ashok Tanwar v/s State of Himachal Pradesh, (2005) 2 SCC 104 : AIR 2005 SC 614
19. The Comptroller and Auditor-General (Duties, Powers and Conditions of Service) Act,
1971, fixes his salary equal to that of a Supreme Court Judge. The tenure of his office is
fixed at six years.

20. Accountant-General v/s S.Doraiswamy, AIR 1981 SC 783 : (1981) 4 SCC 93

21. IV Constitutional Assembly Debates, 588-607
22. VIII Constitutional Assembly Debates, 455
23. Ibid.
24. VII Constitutional Assembly Debates, 455
25. VIII Constitutional Assembly Debates, 12, 424-556
26. Arun Kumar v/s. Union of India, AIR 1982 Raj 67
27. It has been held judicially that the appointment of a political appointee can be
terminated without much formality as it is done purely on political considerations. Om
Narain Agarwal v/s. Nagar Palika, Shahjahanpur, AIR 1993 SC 1440 : (1993) 2 SCC
242; Dattaji Chirandas v/s. State of Gujarat, AIR 1999 Guj 48

28. S.Pushpa v/s. Sivachanmugavelu, (2005) 3 SCC 110 : AIR 2005 SC 1038
29. Chandigarh Administration v/s. Surinder Kumar, (2004) 1 SCC 530 : AIR 2004 SC
992

30. Devji Vallabhbhai v/s. Administrator, Goa, Daman, Diu, AIR 1982 SC 1029 : (1982) 2
SCC 222

31. Goa Sampling Employees Association v/s. G.S.Co., AIR 1985 SC 357 : (1985) 1 SCC
206; Express Newspapers v/s. Union of India, AIR 1986 SC 872 : (1986) 1 SCC 133;
Andaman Wood Products India Pvt. Ltd. v/s. Union of India, AIR 2001 Cal 61

32. Ashoke Sen Gupta v/s. Union of India, 1996 (II) CHN 292, 297
33. SIR IVOR JENNINGS, CABINET GOVERNMENT, 60 (IIIrd ed.); WADE &
BRADLEY, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 268; PETER

W.HOGG, CONSTITUTIONAL LAW OF CANADA, 243 (4th ed.); State of South Wales
v/s. Commonwealth of Australia, 108, ALR 577

34. T.N.Godavarman Thirumulpad (87) v/s. Union of India, (2006) 1 SCC 1 at page 28 :
AIR 2005 SC 4256

35. Corporation of Calcutta v/s. Liberty Cinema, AIR 1965 SC 1107 : (1965) 2 SCR 477
36. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 834
37. R.C.Cooper v/s. Union of India, AIR 1970 SC 564, 587 : (1970) 1 SCC 248
38. A.K.Roy v/s. Union of India, AIR 1982 SC 710 : (1982) 1 SCC 271
39. Satpal & Co., v/s. Lt. Governor of Delhi, AIR 1979 SC 1550
40. AIR 1999 Gau. 32
41. SHETTY, Presidents Power under Art. 356 of the Constitution Theory and Practice,
in ILI, CONSTITUTIONAL DEVELOPMENTS SINCE INDEPENDENCE, 335
(1975), ILI, PRESIDENTS RULE IN THE STATES; REPORT OF THE SARKARIA
COMMISSION

42. The 42nd Amendment had raised the period of six months to one year. Thus, once
approved by the two Houses, the proclamation could remain in force for one year. The
44th Amendment again reduced this period to six months.

43. Reprieve means stay of the execution of sentence; respite denotes postponement of
execution of a sentence; pardon means to forgive, to excuse; remission reduces the
amount of a sentence without changing its character and commutation is changing the
sentence to a higher penalty of a different form.
A pardon is an act of grace which releases a person from punishment for some
offence. A pardon may be full, limited or conditional. A full pardon wipes out the
offence in the eyes of law; a limited pardon relieves the offender from some but not all
the consequences of the guilt and a conditional pardon imposes some condition for the
pardon to be effective.

44. In re Channugadu, AIR 1954 Mad 511; BALAKRISHNA, Presidential Power of

Pardon, 13 J.I.L.I, 103

45. AIR 1989 SC 653

46. (1981) 1 SCC 107

47. (2006) 8 SCC 161 at 163 : AIR 2006 SC 3385

48. KAUL AND SHAKDHAR, PRACTICE AND PROCEDURE OF PARLIAMENT, (ed.
G.C.Malhotra, V Ed.); SUBHASH KASHYAP, PARLIAMENTARY PROCEDURE,
(2000)

49. In re Special Reference No. 1 of 2002 : (2002) 8 SCC 237, 284 : AIR 2003 SC 87
50. Purushottam Nambudri v/s. State of Kerala, AIR 1962 SC 694 : (1962) Supp (1) SCR
753. In the matter of Special Reference No. 1 of 2002 (Gujarat Assembly Election
matter) : AIR 2003 SC 87, (2002) 8 SCC 237, 284. However, all pending notices other
than those for introducing Bills, lapse on prorogation.

51. T.K.TOPES, Constitutional Law of India, 3rd Ed., p. 501, 502

CHAPTER 5
COMPARATIVE ANALYSIS
1. CONSTITUTION OF INDIA AND THE UNITED STATES OF AMERICA
In this respect the Indian Parliament corresponds with the American Congress. Each country
has a written Constitution which is the fundamental law of the land. Each is a federation and in
each Fundamental Rights has been guaranteed to the people. This, the American Congress, like
the Indian Parliament cannot enact a law which is against the Bill of Rights or which contravenes
the scheme of distribution of powers or other constitutional provisions. The written Constitution
is supreme and therefore a law made by the Congress in order to be valid must be in conformity
with its provisions. If it is not so, the courts will intervene and declare the law to unconstitutional
and void. In practice, however, it is only rarely that the courts in India or the United States of
America would hold a statutory provision to be unconstitutional.
The functionary at the head if the Indian Union like that of the United States of America is
called the President but Indias form of government is very different from that of the United
States of America. India has parliamentary and not presidential form of government. Indias
form of government differs substantially from that of America. Beyond the identity of names
between the Indian and the American Presidents there is not much in common between them.
The position of the President of India is more akin to the British monarch rather than the
American President. He is the head of the State and only a formal not an effective head of the
Executive. The effective repository of the executive power is the Council of Ministers. On the
other hand, the US President is both the head of the State as well as the effective head of the
Executive. The system is known as the presidential form of government because the President is
the Chief Executive. The administration of the country is vested in him.
The US Constitution makes the President responsible for ensuring that the laws of the
country are faithfully executed. He alone is vested with the power to appoint and remove
executive officers and thus can effectively control the government departments.

The President has under his Secretaries of State in charge of different executive departments
who are appointed by him and who are appointed by him and who are his personal advisers. He
is not bound to accept the advice tendered by them; he enjoys ultimate power of decision and
therefore has complete political responsibility for all executive action. The President dominates
the cabinet completely as the Secretaries of State hold their offices entirely at his pleasure and
are accountable to him. They are merely the instruments through whom the Presidents policy is
carried out. As has been aptly said, The cabinet is not a device for sharing responsibility among
a group; it is a necessary result of the Presidents inability to supervise all affairs directly1.
The Indian President on the other hand, acts generally on the advice of the Ministers. The
United States of Americas President is free to dismiss any of his Secretaries as and when he
likes. The President of India has a formal power to that effect but exercises it on the advice of the
Prime Minister or when the cabinet has forfeited the confidence of the Lok Sabha. The
Secretaries of State in the Unites States of America on the other hand are neither responsible to
Congress not are its members nor do they have function on the basis of collective responsibility.
This is very different from the underlying principles on which the Executive functions in India.
The truth of the matter is that America has a Cabinet corresponding to the classic idea of a
Cabinet in the parliamentary form of government. Because of his unfettered power of removal
over them and the fact that his tenure of office is not in any way dependent upon the effect which
his dismissal of the Cabinet members may have upon the Congress, the President is able to
dominate his Cabinet to an extent which would be almost impossible in the case of a Prime
Minister2.
The presidential form of government is based on the principle of Separation of Powers
between the executive and the legislative organs. The doctrine of Separation of Powers ascribed
to Montesquieu, a Frenchman, exercised a potent influence on the public mind in the 18th century
when the American Constitution was drafted. It envisaged that the legislative, executive and
judicial functions in a state ought to be kept separate and distinct from each other. There ought to
be separate organs for each, working together but none of them should be dependent on and
discharge the function belonging to the other, as for example, the Executive should have no
legislative or judicial power3.

The thesis underlying the doctrine of Separation is that each of the three branches of
government ought to be composed of different persons. Neither the President nor any of his
Secretaries of State can be a member of the Congress. A member of the Congress can join the
government only after resigning his membership therein.
While basically the United States of Americas Constitution is designed on the basis of the
principle of Separation of Powers, the framers of the US Constitution also introduced to some
extent, the principle of checks and balances. The framers adopted both these strategies with a
view to ensure a weak government so that the government may not act in an arbitrary manner.
The doctrine of Separation weakens the government by dividing its powers for a divided
government is intrinsically weaker than a government having all powers concentrated therein.
The principle of checks and balances further limits government power. The underlying idea
is that if one organ of government is left free to exercise the power assigned to it without any
control, it may run amok with its power and act arbitrarily in exercising its assigned power. For
example, if doctrine of checks and balances envisages that one organ of government is controlled
to some extent, by the other two organs. For example, the President may veto a Bill passed by
the two Houses of Congress and thus the president controls the Congress so that it may not pass
arbitrary or discriminatory legislation. But Presidents veto may be overridden by the two
Houses passing the Bill in question again by a 23 vote in each House. Also, the Supreme Court

has power to declare an Act passes by the Congress as unconstitutional but the Judges of the
Supreme Court are appointed by the President with the consent of the Senate.
The Congress through its committees continuously probes into the functioning of the
government departments. Similarly, the Secretaries of State are appointed by the President with
the consent of the Senate. In the United States of America., the Executive and legislative organs
are kept separate from each other
The parliamentary system, on the other hand, is based on an intimate contact, a close liaison

or co-ordination between the Executive and the Legislative wings. India recognizes no doctrine
of Separation between them. As the Supreme Court has stated, there may be in India a
differentiation and demarcation of functions between the Legislature and the Executive and
generally speaking the Constitution does not contemplate that one organ should assume the

functions belonging essentially to the other organ, yet, nevertheless, there is no separation
between them in its absolute rigidity4.
The Indian Constitution itself does not indicate a separation of powers as is commonly
understood. There is, to a large extent, a parallelism of power with hierarchies between the three
organs in particular fields. It is this balance of hierarchies which must be maintained by each
organ subject to checks by the other two. Where there is inaction even by the executive for
whatever the reason, the judiciary can step in and in exercise of its obligations to implement the
Constitution provide a solution till such as the legislative or the executive orders to cover the
field5.
The US Executive does not depend for its survival on a majority in the Congress as the
President has a fixed tenure of four years. He cannot be dismissed before the expiry of his term
by an adverse vote in the Congress. He can be removed only by rare process of impeachment.
Correspondingly, the President has no power to dissolve the Congress. The House of
Representatives has a fixed term of two years. The American system produces a stable
government having a fixed tenure because it is independent of the legislative whim. It has
happened often that the President may belong to one political party, but the majority in either
House or both Houses, may belong to another political party.
Members of Congress enjoy a good deal of freedom to oppose or support the programme and
policies proposed by the President even when the majority in the Houses of Congress may
belong to the same party as the President. On the other hand, the distinctive feature of the
parliamentary system is that the Cabinet depends on the majority in the Lok Sabha and holds
office so long as it enjoys the confidence of the majority in the House which can depose the
Cabinet at its pleasure but the Cabinet has the corresponding right to dissolve the House. In a
parliamentary system, the government has no fixed tenure as it may have to go out any moment
the majority in Parliament withdraws its support.
The American Executive is not being directly accountable to the Legislature, tends to become
less responsible to it than the parliamentary government which has constantly to seek the
majority support. In America, the responsibility of the Executive is assessed by the electorate
once in four years when election is held for the Presidential office. In India, on the other hand,

the responsibility of the Executive is assessed daily by the Legislature through resolutions,
questions, debates etc., and periodically by the electorate through general elections.
The position in the United States of America is entirely different where due to the doctrine of
Separation of Powers, formal means of co-ordination between the Executive and the Legislature
are lacking. No member of the Executive participates immediately in the legislative process in
the Congress. Party discipline in Congress is loose and members enjoy considerable freedom to
oppose or support any proposal even though it may be a part of the Presidents programme.
Presidents leadership of the Congress is much looser than that of the Prime Minister in a
parliamentary system mainly because the President has no power to dissolve the Congress or to
participate in legislative deliberations. He rarely has at his disposal the almost automatic
legislative majority which is available to the government in a parliamentary system. He does not
have the means available to the Prime Minister to enforce disciplined voting along party lines.
The President unlike the Prime Minister cannot directly ensure that the measures which he
desires will be enacted by the Congress. This may happen even when the President and the
majority in the Congress belong to the same political party. But lack of co-ordination between
the Executive and the Legislature in the United States of America may be heightened if the
President and the majority in the Houses belong to different political parties as happens quite
often. Sometimes the impasse between the President and the Congress can be resolved only
when fresh elections are held in due course of time6.
In the Constituent Assembly some members advocated presidential form of government for
India. Their hypothesis was that the presidential form of government leads to a strong and stable
government while a parliamentary government constitutes a weak, unstable and vacillating
government, the reason being that the Ministers depend on their party members for support.
Ultimately, however, the choice was made in favor of the parliamentary form, mainly because
Indians were somewhat familiar with the system as in some form or other; such a system had
been in operation in the country during the pre-Constitution era.
Further, as Ambedkar emphasized in combining stability with responsibility, the Constitution
makers preferred the system of daily assessment of responsibility to the other system of periodic
assessment. They also wanted to avoid the Legislative-Executive conflicts and friction such as

arise in the presidential system. The framers of the Constitution thought that an infant democracy
could not afford to take the risk of a perpetual cleavage, feud or conflict or threatened conflict
between the Executive or Legislative organs. They preferred a system where the Executive being
a part of the Legislature is in a position to give guidance to it and where both co-operate with
each other. There is confusion of responsibility and not necessarily a clear direction of policy7
in the United Stated of America, but this is not so in a parliamentary system8.
A liberal and democratic presidential system (such as prevails in the United States of
America) has the advantage of enabling the President to appoint experts as his Ministers; he can
select persons of competence and integrity as his Ministers without political considerations for
he will not be bound to appoint only members of parliament as Minister as happens in the
parliamentary system. The Prime Minister has an extremely limited choice in the matter of
appointing Ministers as he can only appoint members of Parliament as Ministers and there may
not be many experienced and expert members in Parliament.
The presidential system may also be an answer to the present-day constitutionally and
politically immoral system of defections to serve personal interests, since in a presidential system
the life of the Cabinet no longer depends on parliamentary majority. The President is elected
directly by the people and holds office for a fixed tenure. This results in stability of the
government.
In the presidential system, the President enjoys a fixed tenure and he does not depend on
majority support in the Legislature and this results in government stability. The President may be
freer to adopt policies on their merits rather than adopt populist measures. The Legislature also
has more say in the governance of the country and may have more control over the
administration.
2. CONSTITUTION OF INDIA AND THE UNITED KINGDOM
The United Kingdom's form of government is a constitutional monarchy with a
parliamentary system; it is a type of constitution where the fundamental rules of government take
the form of customs, usage, precedent and a variety of statutes and legal instruments.

There is no written constitution or comprehensive Bill of Rights; Britains constitution is to

be found partly in conventions and customs and partly in statute. The Act known as the Bill of
Rights, 1689 deals with the exercise of the royal prerogative and succession to the Crown.
The keystone, the dominant characteristic of the British Constitution is the doctrine of
sovereignty or supremacy of Parliament. This means that Parliament has the right to make or
unmake any law whatever, that it can legally legislate on any topic whatever which in the
judgment of Parliament, is a fit subject for legislation, that no person or body in Britain has a
right to override or set aside a law of Parliament, that courts have no jurisdiction to declare an
Act of Parliament void, ultra vires or unconstitutional and that there is no power which under
the English Constitution can come into rivalry with the legislative sovereignty of Parliament9.
Parliament is not regarded as a delegate of the people and it is not legally bound by any mandate.
The British Constitution is not written and there is nothing like fundamental law of the country.
Therefore, the power of Parliament to legislate is legally unrestricted and it can change even a
constitutional principle by the same ordinary process as it enacts an ordinary law.
The Indian Parliament differs from its British counterpart in a substantial manner. Politically
speaking, the Indian and British Parliaments are both subject to similar restraints as both have
parliamentary form of government. But legally speaking, whereas the power of the British
Parliament is undefined that of the Indian Parliament is defined, fettered and restrained. Indias
Constitution is written; it is the fundamental law of the land; its provisions are enforceable by the
courts and it cannot be changed in the ordinary legislative process. The Indian Parliament has
therefore to function within the constraints of the Constitution from which its legislative powers
emanate.
The Indian Parliament is the creature of the Constitution. Therefore, a parliamentary law to
be valid must conform in all respects with the Constitution. It is for the courts to decide whether
an enactment is constitutional or not and they have the power to declare a parliamentary
enactment void if it is inconsistent with a provision of the Constitution. The courts would refuse
to give effect to any unconstitutional law. There are procedures laid down in the Constitution
through which courts may be invited to scrutinize legislation and ascertain if a constitutional
restriction has been transgressed by Parliament in enacting a law.

The British legal system provides some remedies to deal with human rights abuses. For
instance, the remedy of habeas corpus secures the individuals right to freedom from any
unlawful or arbitrary detention.
Parliament, however, has power to enact any law and change any previous law. There is no
fundamental distinction between public law and private law. Any person can take proceedings
against the Government or a local government authority to protect his or her legal rights and to
obtain a remedy for any injury suffered.
Britain has not generally codifies its law and courts adopt a relatively strict and literal
approach to the interpretation of statutes. The ratification of a treaty or international convention
does not make it automatically part of the domestic law. Where necessary, the Government
amends domestic law to bring it in live with the convention. Because of Britains membership of
the European Community, community law is part of British law and takes precedence in the
event of conflict between the two10.
Characteristics or features of the U.K. constitution:
(1) The Constitution is not written in the sense having a single document defining the powers

of government and rights of individuals. Nevertheless, many sources of Constitutional

law are written and these together with the non-legal rules makes up the British
Government
(2) The constitution is flexible and based on continuity of development.
(3) In the absence of a written constitution having the status of fundamental or higher law,

the concept of parliamentary sovereignty or legislative supremacy represents the

cornerstone of the constitution.
(4) There is no strict separation of powers between the executive, legislature and judiciary,

although a separation of functions exists and the concept retains importance under the
constitution.
(5) The United Kingdom has a constitutional monarchy.
(6) The United Kingdom is a unitary, as opposed to a federal state.
(7) The legislature is bicameral in nature.
(8) The judiciary is independent.

Whereas the constitution of India was framed by the Constituent Assembly, set up in 1946
under the provisions of cabinet mission plan. Dr. Rajendra Prasad was the President of
Constituent assembly and Dr. B.R. Ambedkar was the Chairman of the seven member Drafting
Committee which drafted the Constitution.
The Indian constitution is the lengthiest and most detailed written constitution in the world.
Though most of the features of our constitution are substantially borrowed from others, the
framers gathered the best features of each of the existing constitutions and modified them
according to the existing needs and conditions of the country.
The preamble of the constitution declares India a sovereign, Socialist, Secular, and
democratic republic. It highlights justice, liberty, equality and fraternity as objectives of the
constitution11.
In the Constitution of United Kingdom, the Queen is the head of State and an important
symbol of national unity. She is:
(1) Head of the executive:
(2) An integral part of the legislature;
(3) Head of the judiciary;
(4) Commander-in-Chief of all the Armed Forces of the Crown; and
(5) The Supreme Governor of the established Church of England
The Queen acts on the advice of her Ministers. Britain is governed by Her Majestys
Government in the name of the Queen. In international affairs the Queen, as head of the State has
the power to declare war and make peace to recognize foreign States and Governments to
conclude treaties and to annex or cede territory.
Three elements make up the Parliament of the United Kingdom the Queen, the House of
Lords and the elected House of Commons. The agreement of all three is normally required for
legislation. As there are no legal restraints imposed by a written constitution, Parliament can
make or change any law. It can even prolong its own life beyond the normal period without
consulting the electorate. In practice, however, Parliament does not assert its supremacy in this
way.

According to the procedures followed by the United Kingdom, the Prime Minister is
appointed by the Queen and all other Ministers are appointed by the Queen on the
recommendation of the Prime Minister. Most Ministers are members of the Commons, although
the Government is fully represented by Ministers in the Lords. The Lord Chancellor is always a
member of the House of Lords.
The Prime Minister is by tradition, First Lord of the Treasury and Minister for the Civil
Service. Ministers in charge of Government departments are usually in the Cabinet; they are
known as Secretary of State or Minister or may have a special title as in the case of the
Chancellor of the Exchequer12.
In England, Cabinet is based on no legal status and has no legal status; it is an organ of
government which rests on understandings and conventions. Similar is the case in India. The
Constitution makes reference to the Council of Ministers but makes no reference to the Cabinet.
Cabinet is a conventional, an extra-constitutional, body but it is the ultimate policy-making and
decision-making organ with the executive.

REFERENCES
1. BOWIE AND FRIEDRICH, STUDIES IN FEDERALISM, 65
2. SCHWARTZ.

AMERICAN

CONSTITUTIONAL

LAW,

111;

Corwin,

THE CONSTITUTION & WHAT IT MEANS TO-DAY, 111-60 (1973); CORWIN,

THE PRESIDENT, OFFICE AND POWERS

3. JENNINGS, LAW AND THE CONSTITUTION., App. 1., 280-304 (1959);

FINKELMAN, SEPARATION OF POWERS, 2 Toranto L.J., 313; VANDERBITT,
THE DOCTRINE OF SEPARATION OF POWERS; ILBERT, PARLIAMENT, 193,
ROSSITER, AMERICAN PRESIDENCY

4. Ram Jawaya v/s State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225; Shamsher Singh
v/s. State of Punjab, AIR 1974 2192 : (1974) 2 SCC 831

5. Articles 32 and 226: Vineet Narain v/s. Union of India, (1998) 1 SCC 226 : AIR 1998 SC
889, to fill the void in the absence of suitable legislation to cover the field.. [i]t is the
duty of the executive to fill the vacuum by executive ordersand where there is inaction

even by the executive for whatever the reason, the judiciary must step in, in exercise of
its constitutional obligationsto provide a solution till such time as the legislature acts to
perform its role by enacting proper legislation to cover the field.

6. ALLEN, LAW AND ORDERS, 19; BERMAN, The Legislative Process in the U.S.
Congress, II(2). JI of Constitution & Parliamentary Studies, 34 (1968)

7. IV Constitutional Assembly Debates, 544, 573, 580, 635, 968, 984 and 985; VII
Constitutional Assembly Debates, 32, 33, 243, 263, 266, 295; MORRIS-JONES, op. cit.,
117; AUSTIN, THE INDIAN CONSTITUTION, 116

8. LASKI, PARLIAMENTARY GOVERNMENT IN ENGLAND., 224 (1959)

9. DICEY: LAW AND THE CONSTITUTION, 39-40, 70 (1965); JENNINGS, LAW AND
THE CONSTITUTION, 57, 144 (1959); HEUSTON, ESSAYS IN CONSTITUTIONAL
LAW, 1 (1964); SCHWARTZ, AMERICAN CONSTITUTIONAL LAW, 49 (1965), WADE
and

PHILLIPS,

op.

cit.,

65-83;

DE

SMITH,

CONSTITUTIONAL

AND

ADMINISTRATIVE LAW, 63-93 (1977)

10.M.V.PYLEE, Constitutions of the World, 3rd Ed., Vol. 2

11.http://www.upscsuccess.com/sites/default/files/documents/%28Notes%29_Comparison_o
f_Indian_Constitution.pdf (accessed on 21/04/2015 at 2030 hrs)

12.M.V.PYLEE, Constitutions of the World, 3rd Ed., Vol. 2

CHAPTER 6
CONCLUSION
As we have discussed the powers, functions and rights of the President under the Indian
Constitution, its quite easy to form an opinion by taking cue of the above chapters. The
President of India is undoubtedly the head of State of the Republic of India. The President is the
head of the nation but he does not govern the country.
According to the Constitution of India, all the executive actions are taken in the name of
President of India. The Constitution empowers the President to appoint various posts like
Attorney General, Comptroller and Auditor General, Chief Justice and Judges of Supreme Court
and High Court, Prime Minister and the Council of Ministers, the list goes on and on, yet he is
only the nominal head of the State.
The President takes pleasure in exercising diplomatic powers. He has the power to
appoint diplomatic representatives of India. He represents India in intercontinental dealings and
he also has the authority to terminate the treaties with the foreign States.
As discussed in the preceding chapters, the President of India is vested with vast powers
like executive, legislative, judicial, diplomatic and emergency. Thus, the position of the
President has immense clout and poise. The Supreme Court through its several decisions has
enlightened the position of the President that he is a constitutional head nonetheless, this does not
mean that the President is a exceptional naught or a marionette or a mere rubber stamp. In India
where exists coalition politics, few grey areas do exists wherein the President has to make
judicious use of his astuteness, acumen and perspicacity. In a few circumstances the position of
the President may become vital and significant; nevertheless, the President shall be fee from all
the political affiliations. The only look out is that the President must act with absolute
constitutional righteousness and fairness. To cut a long story short, the President of India is a
symbol of national harmony, magnet of faithfulness and trustworthiness and machinery of
ceremony.

BIBLIOGRAPHY
BOOKS:
1. BOWIE AND FRIEDRICH, Studies in Federalism
2. Constitutional Assembly Debates
3. Corwin, The Constitution & What It Means To-day
4. CORWIN, The President, Office and Powers
5. DICEY, Law of the Constitution
6. FINKELMAN, Separation of Powers
7. HEUSTON, Essays in Constitutional Law
8. Jagdish Swarups Constitution of India by Dr. L.M. Singhvi, Revised by G.P. Mathur
9. JENNINGS, Law and the Constitution
10. KAUL AND SHAKDHAR, Practice and Procedure of Parliament
11. LASKI, Parliamentary Government in England
12. M.P.Jain, A Treatise on Administrative Law
13. M.P.Jain, Indian Constitutional Law, 7th Edition
14. M.V.PYLEE, Constitutions of the World, 3rd Edition
15. PETER W.HOGG, Constitutional Law of Canada
16. PRESIDENTS RULE IN THE STATES; Report of the Sarkaria commission
17. SCHWARTZ. American Constitutional Law
18. SEERVAI, Constitutional Law of India
19. SHETTY, Presidents Power under Art. 356 of the Constitution Theory and Practice
20. SIR IVOR JENNINGS, Cabinet Government
21. SUBHASH KASHYAP, Parliamentary Procedure
22. T.K.TOPES, Constitutional Law of India, 3rd Edition
23. VANDERBITT, The doctrine of Separation of Powers
24. WADE & BRADLEY, Constitutional and Administrative Law

CASE LAWS:
1. A.K.Roy v/s. Union of India, AIR 1982 SC 710 : (1982) 1 SCC 271
2. Accountant-General v/s S.Doraiswamy, AIR 1981 SC 783 : (1981) 4 SCC 93
3. Andaman Wood Products India Pvt. Ltd. v/s. Union of India, AIR 2001 Cal 61
4. Arun Kumar v/s. Union of India, AIR 1982 Raj 67
5. Ashok Tanwar v/s State of Himachal Pradesh, (2005) 2 SCC 104 : AIR 2005 SC 614
6. Ashoke Sen Gupta v/s. Union of India, 1996 (II) CHN 292, 297
7. Balmukund v/s. King Emperor
8. Bijoya Cotton Mills v/s. State of West Bengal, AIR 1967 SC 1145 : (1967) 2 SCR 406
9. Chandigarh Administration v/s. Surinder Kumar, (2004) 1 SCC 530 : AIR 2004 SC 992
10. Charan Lal Sahu v/s. N. Sanjeeva Reddy, AIR 1978 SC 499
11. Corporation of Calcutta v/s. Liberty Cinema, AIR 1965 SC 1107 : (1965) 2 SCR 477
12. Dattaji Chirandas v/s. State of Gujarat, AIR 1999 Guj 48
13. Devji Vallabhbhai v/s. Administrator, Goa, Daman, Diu, AIR 1982 SC 1029 : (1982) 2
SCC 222
14. Epuru Sudhakar v/s. Government of Andhra Pradesh, (2006) 8 SCC 161 at 163 : AIR
2006 SC 3385
15. Express Newspapers v/s. Union of India, AIR 1986 SC 872 : (1986) 1 SCC 133
16. Gajanan Samadhan Lande v/s Sanjay Shamrao Dhotre, AIR 2012 SC 486 : (2012) 2 SCC
64
17. Goa Sampling Employees Association v/s. G.S.Co., AIR 1985 SC 357 : (1985) 1 SCC
206
18. In re Channugadu, AIR 1954 Mad 511
19. In re Special Reference No. 1 of 2002 : (2002) 8 SCC 237, 284 : AIR 2003 SC 87
20. Indira Nehru Gandhi v/s. Raj Narain, AIR 1975, SC 2299
21. Kehar Singh v/s. Union of India, AIR 1989 SC 653
22. Kesavananda Bharati v/s. State of Kerala, AIR 1973 SC 1461
23. King-Emperor v/s. Sibnath Banerji, AIR 1945 PC 163
24. L.C.Golak nath v/s. State of Punjab, AIR 1967 SC 1643 : 1967 (2) SCR 762
25. Maitreyee Mahanta v/s. State of Assam, AIR 1999 Gau. 32
26. Maru Ram v/s. Union of India, (1981) 1 SCC 107

27. Minerva Mills Ltd., v/s. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625
28. N.B.Khare v/s. Election Commission, AIR 1958 SC 139 : 1958 SCR 648
29. Om Narain Agarwal v/s. Nagar Palika, Shahjahanpur, AIR 1993 SC 1440 : (1993) 2 SCC
242
30. Purno Agitok Sangma v/s Pranab Mujherjee, AIR 2013 SC 372 : (2013) 2 SCC 319
31. Purushottam Nambudri v/s. State of Kerala, AIR 1962 SC 694 : (1962) Supp (1) SCR
753
32. R.C.Cooper v/s. Union of India, AIR 1970 SC 564, 587 : (1970) 1 SCC 248
33. Ram Jawaya v/s. State of Punjab, (1955) 2 SCR 225 (238-39)
34. Ram Kumar Kashyap v/s Union of India, (2009) 9 SCC 378
35. Ram Kumar Kashyap v/s. Union of India, (2009) 9 SCC 378
36. Ramdas Athawale v/s. Union of India, AIR 2010 SC 1310 (1314) : (2010) 4 SCC 1
37. S.K.Singh v/s. V.V.Giri, AIR 1970 SC 2097
38. S.Pushpa v/s. Sivachanmugavelu, (2005) 3 SCC 110 : AIR 2005 SC 1038
39. S.S.Dhanoa v/s. Union of India, AIR 1991 SC 1745 : (1991) 3 SCC 567
40. Sajjan Singh v/s. State of Rajasthan, AIR 1965 SC 845
41. Satpal & Co., v/s. Lt. Governor of Delhi, AIR 1979 SC 1550
42. Shamsher Singh v/s. State of Punjab, AIR 1974 2192 : (1974) 2 SCC 831
43. Shankari Prasad Singh v/s. Union of India, AIR 1951 SC 458
44. State of Uttaranchal v/s. Alok Sharma, (2009) 7 SCC 647, 657 ; (2009) 6 JT 463
45. T.N.Godavarman Thirumulpad (87) v/s. Union of India, (2006) 1 SCC 1 at page 28 : AIR
2005 SC 4256
46. Vineet Narain v/s. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889
ARTICLES:
1. Subodh.S.Patil, Advocate, Supreme Court of India, STATUS OF PRESIDENT UNDER
CONSTITUTION: PROBLEMS AND PERSPECTIVES.
WEBSITES:

1. http://www.upscsuccess.com/sites/default/files/documents/%28Notes%29_Comparison_o
f_Indian_Constitution.pdf (accessed on 21/04/2015 at 2030 hrs)