The Executive: Union and State notes — Unit 1

Part V (Articles 52 to 78) of the Constitution deals with the Union Executive. At the apex sits the President of India, who is the formal head of the executive, the first citizen of India, and the Supreme Commander of the Armed Forces.

⇒1.1 Election of the President (Article 54 & 55)

The President is not elected directly by the people, but by an Electoral College. This college consists strictly of:

• 1. The elected members of both Houses of Parliament (Lok Sabha and Rajya Sabha).
• 2. The elected members of the Legislative Assemblies of the States.
• 3. The elected members of the Legislative Assemblies of Delhi and Puducherry (added by the 70th Amendment).
• (Crucial Note: Nominated members, and members of State Legislative Councils, DO NOT vote).

Method of Election (Art 55): The election is held in accordance with the system of proportional representation by means of the single transferable vote, and the voting is by secret ballot.

The President can only be removed from office before the expiry of their term through a highly rigorous process called Impeachment. This ensures the independence of the office.

⇒2.1 The Grounds and Procedure

• The Only Ground: 'Violation of the Constitution'. (However, the Constitution does not define what this actually means).
• Initiation: The charge can be initiated by either House of Parliament (Lok Sabha or Rajya Sabha).
• The Notice: A 14-day prior notice must be given, signed by at least 1/4th of the total members of the initiating House.
• First House Vote: The resolution must be passed by a special majority of not less than 2/3rds of the total membership of the initiating House.
• Investigation: The other House then investigates the charges (or sets up a tribunal). The President has the right to appear and defend himself.
• Final Vote: If the second House also passes the resolution by a 2/3rds majority of its total membership, the President stands removed from that exact date.

Article 53 declares: 'The executive power of the Union shall be vested in the President.' However, India follows the British Westminster model of parliamentary democracy. The President is merely a constitutional (nominal) head, while the real power lies with the Prime Minister.

⇒3.1 Article 74: The Aid and Advice Clause

Article 74(1) states: 'There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.'

⇒Landmark Case: Shamsher Singh v. State of Punjab (1974)

A 7-judge bench of the Supreme Court conclusively held that the President (and Governors) are formal heads. Wherever the Constitution says 'satisfaction of the President', it actually means the satisfaction of the Council of Ministers. The President cannot act independently.

The President possesses the judicial power to grant pardons. This is not an act of grace, but a constitutional duty to correct judicial errors or provide relief from undue harshness.

⇒4.1 Scope of Article 72

The President can pardon:

• Offences against Union laws.
• Offences tried by Court Martial (Military courts).
• All cases where the sentence is a Death Penalty (Even if it's a state law). The Governor (Art 161) cannot pardon a death sentence.

⇒4.2 Forms of Pardon

• Pardon: Completely wipes out both the guilt and the sentence.
• Commutation: Substituting a harsher punishment with a lighter one (e.g., Death penalty to Life Imprisonment).
• Remission: Reducing the period of sentence without changing its character (e.g., 2 years rigorous imprisonment to 1 year rigorous imprisonment).
• Respite: Awarding a lesser sentence due to a special fact (e.g., pregnancy of a female offender).
• Reprieve: A temporary stay on the execution of the sentence (usually pending a mercy petition).

Can the Supreme Court overturn the President's decision to grant or refuse a pardon? This was the subject of intense litigation.

⇒Kehar Singh v. Union of India (1989)

Kehar Singh was sentenced to death for the assassination of Indira Gandhi. The President rejected his mercy petition without granting an oral hearing. The SC held:

• The convict has no right to an oral hearing before the President.
• The power under Article 72 is an executive power (exercised on the advice of the Council of Ministers), not a judicial power.
• The President can scrutinize the evidence on record and come to a different conclusion than the courts.

⇒Epuru Sudhakar v. Govt of AP (2006)

The SC laid down the exact grounds for judicial review of pardons. The Court CAN strike down a pardon if it was granted:

• 1. Without application of mind.
• 2. For political or religious considerations (mala fide).
• 3. Based on wholly irrelevant considerations.
• 4. Through arbitrary exercise of power.

Ordinance making is the most extraordinary legislative power of the Executive. It allows the President to bypass Parliament and enact laws instantly.

⇒6.1 Conditions for Promulgation

• Parliament not in session: An ordinance can only be issued when at least one House of Parliament is not in session (because a law requires both Houses to pass it).
• Immediate Action: The President must be satisfied that circumstances exist which render it necessary for him to take immediate action.
• Equal force of law: An ordinance has the exact same force and effect as an Act of Parliament. It can even amend tax laws. However, it cannot amend the Constitution.

⇒6.2 Lifespan of an Ordinance

An ordinance must be laid before Parliament when it reassembles. It automatically expires 6 weeks from the reassembly of Parliament. Since the maximum gap between two sessions of Parliament is 6 months, the absolute maximum theoretical life of an ordinance is 6 months and 6 weeks.

Governments often abuse the ordinance power to rule by executive decree, completely bypassing the legislature.

⇒D.C. Wadhwa v. State of Bihar (1987)

The Scam: Between 1967 and 1981, the Governor of Bihar promulgated an astonishing 256 ordinances. When an ordinance was about to expire (after 6 weeks of assembly), the legislature was prorogued (suspended), and the exact same ordinance was re-promulgated. Some ordinances were kept alive like this for 14 years without ever being debated in the assembly!

The Supreme Court Judgment:

• Chief Justice P.N. Bhagwati struck down this practice, calling it a 'Fraud on the Constitution'.
• The power to make ordinances is an emergency power to deal with unforeseen situations. It cannot be used as a substitute for the normal legislative process.
• Re-promulgation of ordinances without placing them before the legislature is a subversion of the democratic process and is unconstitutional.

Articles 153 to 167 deal with the State Executive. The Governor is the chief executive head of the state. However, unlike the President, the Governor is not elected but appointed by the President (under the advice of the Union Cabinet).

⇒8.1 Dual Role of the Governor

The Governor plays a highly controversial dual role in the Indian federal setup:

• 1. Constitutional Head of State: Bound by the advice of the State Council of Ministers (Article 163).
• 2. Agent of the Centre: A representative of the Union Government monitoring the state administration (crucial for Article 356 - President's Rule).

⇒8.2 Removal (The Pleasure Doctrine)

Under Article 156, the Governor holds office 'during the pleasure of the President'. There is no impeachment process. The Centre can sack a Governor at any time without giving a reason.

In B.P. Singhal v. Union of India (2010), the SC ruled that while the President can remove a Governor without reason, the removal cannot be arbitrary, mala fide, or simply because a new political party came to power at the Centre. However, proving mala fide is practically impossible.

Unlike the President (who has no explicit discretionary power mentioned in the Constitution), the Governor has vast explicit and situational discretionary powers. Article 163(2) states that the Governor's decision on whether a matter falls under his discretion is final, and cannot be questioned in court.

⇒9.1 Explicit Constitutional Discretion

• Reserving Bills for the President (Article 200): If the Governor thinks a state bill endangers the High Court, he must reserve it. He may reserve any other bill.
• Recommending President's Rule (Article 356): Sending a report to the Centre stating that the state government cannot be carried on in accordance with the Constitution.
• Administering Scheduled Areas: Discretionary powers regarding tribal areas in Assam, Meghalaya, Tripura, and Mizoram (6th Schedule).

⇒9.2 Situational Discretion

• Hung Assembly: Choosing the Chief Minister when no single party gets a clear majority in the elections.
• Dismissal of Ministry: Dismissing a Council of Ministers that loses the confidence of the legislative assembly but refuses to resign.
• Dissolving Assembly: Dissolving the legislative assembly if the Chief Minister advises it after losing the majority.

⇒Summary of Master Concepts

• President: Elected by Electoral College (no nominated members). Impeached by Parliament (no state assemblies).
• Article 74: The President is a constitutional head bound by the advice of the Cabinet (42nd and 44th Amendments; Shamsher Singh case).
• Pardoning Power (Art 72): An executive act subject to limited judicial review for arbitrariness (Epuru Sudhakar).
• Ordinances (Art 123): Emergency legislative power. Re-promulgation is a constitutional fraud (D.C. Wadhwa).
• Governor: Agent of the Centre holding office during the pleasure of the President. Has vast discretionary powers unlike the President.

⇒University Exam Tips for this Unit (Premium Advice)

• The Rubber Stamp Question: If asked 'Is the President a mere rubber stamp?', trace the history. Start with the original text, explain the Shamsher Singh judgment, detail the iron-clad restriction of the 42nd Amendment, and conclude with the slight breathing room (the power to send back once) given by the 44th Amendment.
• Ordinance Abuse: Never explain Article 123 without dedicating half a page to the D.C. Wadhwa 'Ordinance Raj' in Bihar. Examiners heavily penalize students who only write the bare text of Article 123.
• Pardon vs Commutation: Be precise with the terminology under Article 72. Commutation changes the character of punishment (Death to Life), Remission changes only the amount (10 years to 5 years).