LL.B.

(HONS): THREE YEARS DEGREE COURSE (Ist SEMESTER)

Constitutional Law I - Unit I - Part 2

Union and State Executive

1. Introduction
• Overview of the Union and State Executive roles in governance.
• Importance in the context of the political system.

2. Union Executive
The President
• Powers and functions.
• Election process.
• Role in government formation.

The Vice President

• Role and responsibilities.
• Succession to the presidency.

The Prime Minister

• Appointment and powers.
• Role in policy-making and administration.

The Council of Ministers

• Composition and functions.
• Collective responsibility.

3. State Executive
The Governor
• Appointment and powers.
• Role in state administration.

The Chief Minister

• Selection and powers.
• Role in state policy-making.

The State Council of Ministers

• Composition and functions.
• Relationship with the state legislature.

4. Comparison between Union and State Executives

• Similarities and differences in roles and powers.
• Interaction and balance between the two.

1|Page
 5. Case Studies
• Historical examples of significant decisions made by the Union and
State Executives.
• Analysis of their impact on governance.

6. Current Issues and Challenges

• Contemporary challenges facing the Union and State Executives.
• Discussion on recent political developments.

7. Conclusion
• Summary of key points.
• The significance of the Union and State Executives in the democratic
process.

Introduction
India's political framework is unique, being a sovereign, socialist, secular, and democratic
republic. At its heart is a federal structure that consists of the Union government at the
center, and the State governments. This arrangement is crucial as it allows a balance of
power, accommodating the diverse and multifaceted needs of our vast nation.

Now, let's delve into what we mean by 'Executive'. In the realm of governance, the
Executive is one of the three pillars, alongside the Legislature and the Judiciary. Its
primary role is to implement laws and policies. In India, this Executive power is
bifurcated into two levels: the Union Executive, which operates at the national level, and
the State Executive, which operates at the regional level. Each of these has distinct roles
and responsibilities, yet they are interdependent in many ways.

The Union Executive includes the President, Vice President, Prime Minister, and the
Council of Ministers. They play a pivotal role in national governance, shaping policies that
affect the entire country. On the other hand, the State Executive, which comprises the
Governor, Chief Minister, and the State Council of Ministers, is integral to regional
governance. They cater to the state-specific needs and play a key role in the federal
structure of our country.

Union Executive

1. The President :
The President of India holds a position of great significance in the Indian political system.
As the ceremonial head of state, the President's role is enshrined in the Constitution of
India, primarily in Articles 52 to 78.

Election Process:
• One of the key functions of the President is to embody the unity of the
nation.

2|Page
 • The President is elected not by direct public vote, but through an electoral
college system, comprising elected members of both houses of Parliament
and the legislative assemblies of the states. This indirect election method
ensures a balance between the Union and the states in the President's
election.
• A significant case in point is 'Indira Nehru Gandhi v. Raj Narain (1975)',
where the political crisis led to the declaration of Emergency by then-
President Fakhruddin Ali Ahmed, under advice from the Prime Minister,
showcasing the President's crucial role.

Role and Powers:

The President of India is not just a ceremonial head of state, but also plays a
crucial role in the functioning of the government. According to Article 53 of the
Indian Constitution, the executive power of the Union is vested in the President.

The President's powers are broadly categorized into legislative, executive, and
judicial capacities. In the legislative domain, the President has the authority to
summon and prorogue the sessions of both houses of Parliament and to dissolve
the Lok Sabha. They also possess the power to promulgate ordinances when
Parliament is not in session, under Article 123 of the Constitution.

In the executive realm, the President appoints the Prime Minister and, on their
advice, the Council of Ministers. They also appoint the judges of the Supreme
Court and the High Courts, the Governor of states, and other key officials of the
Indian government. The President is responsible for ensuring that the
Constitution is upheld and can seek advice from the Supreme Court on legal
matters.

The President's role in times of crisis or political instability is particularly

noteworthy. Under Article 356, known as 'President's Rule', the President can take
over the governance of a state if it is deemed that the state government cannot be
conducted according to the provisions of the Constitution. This power, however, is
subject to judicial review, as established by the landmark S.R. Bommai case.

The President also has a unique diplomatic role, representing India in

international forums and engaging in diplomatic relations with other countries.
They are the face of India's sovereignty and play a crucial part in foreign policy
decisions.

For instance, Dr. A.P.J. Abdul Kalam, known as the 'People's President' was unique
in his approach and often went beyond the ceremonial role. One notable instance
was his return of the Office of Profit Bill to Parliament for reconsideration, a rare
instance of presidential assertiveness in India.

3|Page
Pardoning Powers of the President of India:

1. Constitutional Basis
• The pardoning powers of the President are enshrined in Article 72 of the
Indian Constitution. This article gives the President the power to grant
pardons, reprieves, respites, or remissions of punishment or to suspend,
remit, or commute the sentence of any person convicted of any offence.

2. Types of Pardoning Powers

• Pardon: Completely absolves the offender from all sentences and
punishments, and disqualifications.
• Commutation: Substituting one form of punishment for a lighter form.
• Remission: Reducing the period of the sentence without changing its
character.
• Respite: Awarding a lesser sentence in place of one originally awarded due
to a special fact like pregnancy.
• Reprieve: A stay on the execution of a sentence, especially that of death,
for a temporary period.

3. Scope and Limitations

• These powers can be exercised in cases where the punishment is for an
offence against a Union Law, a death sentence, or in cases where the
sentence is a court-martial.
• However, the President cannot exercise these powers independently. They
must act on the advice of the Council of Ministers as per Article 74(1) of the
Constitution.

4. Judicial Review
• The exercise of pardoning power by the President is subject to judicial
review. The Supreme Court of India, in various judgments, has held that
while the power of pardon is a constitutional privilege, it should not be
exercised arbitrarily or whimsically.

5. Key Case Laws

• Kehar Singh v. Union of India (1989): In this case, the Supreme Court
held that the power of pardon is an act of grace and cannot be claimed as a
matter of right. The court can interfere if the presidential pardon is
exercised irrationally or malafide.
• Maru Ram v. Union of India (1980): This case involved the question of
the scope of pardoning powers. The court held that the power under Article
72 is to be exercised on the advice of the Central Government and not by
the President on their own.

4|Page
6. Comparative Analysis
• In comparison to the President, the Governor of a state also has similar
powers under Article 161 of the Constitution. However, the Governor
cannot pardon a death sentence.

7. Importance in the Indian Judicial System

• The pardoning power of the President represents the humanitarian
character of the Indian legal system. It provides a mechanism to correct
possible judicial errors and acts as a safeguard against miscarriages of
justice.

E. Purushudakar and Others vs State Of Andhra Pradesh and Others (2006)

Background of the Case:

• This case concerned the pardoning powers of the Governor under Article
161 of the Indian Constitution, which is similar in nature to the President's
powers under Article 72.

Key Aspects of the Judgment:

• Judicial Review: The Supreme Court reinforced the principle that the
exercise of pardoning power by the Governor is subject to limited judicial
review. This is consistent with the principles applied to the President's
pardoning powers.
• Reasons for Pardon: The court observed that while the Governor or the
President can exercise these powers without a ministerial advice, they
should ideally provide reasons for their decisions, especially in cases where
they overrule the advice of the Council of Ministers.
Significance:
• Consistency in Constitutional Interpretation: The E. Purushudakar case
is significant because it aligns the interpretation of the Governor's
pardoning powers with that of the President's, maintaining consistency in
the constitutional framework.
• Transparency and Accountability: By suggesting that reasons should be
provided for such decisions, the judgment aimed at enhancing
transparency and accountability in the exercise of these constitutional
powers.

Kehar Singh v. Union of India (1989)

Background of the Case:

• Kehar Singh was implicated and later convicted in the assassination of
Prime Minister Indira Gandhi. He was sentenced to death. After his mercy
petition was rejected by the President of India, Kehar Singh's son
approached the Supreme Court, questioning the constitutional power of the
President to pardon.

5|Page
Key Aspects of the Judgment:

Scope of Judicial Review:

• The Supreme Court clarified that the power of pardon under Article 72 is
an act of grace and cannot be claimed as a matter of right. The court held
that it is beyond its power to review the President’s decision on a mercy
petition. However, the exercise of this power by the President can be
challenged on the grounds of procedural irregularities or if it is based on
irrelevant or extraneous considerations.

Presidential Discretion:
• The court noted that while exercising the pardoning power, the President
does not act on their own discretion. Rather, they are guided by the advice
of the Council of Ministers. This was significant in defining the nature of the
President’s power as not being discretionary, but rather a part of the
executive action.

Nature of the Power:

• The judgment emphasized that the President's power is of the widest
amplitude and covers a variety of situations. The power includes
pardoning, reprieving, respiting, remitting, and commuting sentences.

Role of Mercy Petitions:

• The court observed that mercy petitions provide a ray of hope and are a
constitutional privilege. They are essentially a discretionary remedy and
form a part of the constitutional scheme.

Significance of the Judgment:

• Clarification of Constitutional Powers: The Kehar Singh case is pivotal in
clarifying the extent and limits of the President's pardoning power. It sets a
precedent on how these powers are to be exercised and interpreted.

• Balance of Judicial and Executive Powers: The judgment balances the

President's authority in granting pardons with the judiciary's role in ensuring
that this power is not exercised arbitrarily.

The Kehar Singh case thus highlights the nuanced interplay between constitutional
discretion, executive power, and judicial review, providing a foundational understanding
of this aspect of the Indian legal system.

Maru Ram v. Union of India (1980)

Background of the Case:
• The case arose from the context of life imprisonment sentences and the
power of remission granted to the President under Article 72 and the

6|Page
 Governor under Article 161 of the Constitution. The petitioners were life
convicts seeking remission of their sentences.

Key Aspects of the Judgment:

Scope of Pardoning Power:

• The Supreme Court held that the power under Article 72 and Article 161
includes the power to commute, pardon, remit, and suspend sentences.
This power is discretionary and can be exercised at any time.

Constitutional Power vs. Statutory Provisions:

• A significant aspect of the judgment was the discussion on the clash
between the constitutional power of pardon and the statutory minimum
punishments prescribed by law. The Court held that the constitutional
power of pardon under Articles 72 and 161 overrides any statutory
provision, meaning that the President or Governor can grant pardon or
reduce the sentence even if the law prescribes a minimum sentence.

Exercise of Power:
• The judgment clarified that the exercise of these powers by the President
or the Governor is not to be based on the personal whims of the incumbent
but is an exercise of constitutional power. As such, the power is to be
exercised on the advice of the relevant government, following a fair and
reasonable procedure.

Checks and Balances:

• While acknowledging the wide amplitude of the pardoning power, the
Court emphasized that it should not be exercised arbitrarily. It suggested
that reasons should be provided for the exercise of this power, promoting
transparency and accountability.

Significance of the Judgment:

• Interplay of Constitutional and Legal Provisions: Maru Ram vs. Union of
India highlights how constitutional provisions can supersede statutory laws in
certain cases, particularly in the context of pardoning powers.
• Guidelines for Exercise of Power: The judgment provided much-needed
clarity on how and when the pardoning powers should be exercised, setting a
precedent for subsequent cases and interpretations.
• Balance of Power: It reinforced the idea that while the President and
Governor have wide powers, they are subject to the principles of natural
justice and must not act arbitrarily.
-------------------------------------------------------------------------------------------------
The Maru Ram case is essential for understanding the pardoning powers in India,
especially in terms of their scope, limitations, and the appropriate exercise of these

7|Page
powers. It's a key case that underscores the balance between constitutional authority and
the need for fairness and transparency in the exercise of executive powers.

The ordinance-making power of the President of India is an important legislative power,

allowing for immediate legislative action in certain situations. This power is enshrined in
the Constitution of India and has specific conditions and limitations.

Ordinance Making Power of the President:

1. Constitutional Provision:
• The ordinance-making power of the President is granted by Article 123 of
the Indian Constitution. This power allows the President to promulgate
ordinances when either of the two Houses of Parliament is not in session,
and hence immediate legislative action is necessary.

2. Conditions for Issuing Ordinances:

• Circumstances of Urgency: The President can issue an ordinance only
when urgent action is required, and it is not feasible to wait for the
Parliament to convene.
• Parliament Not in Session: An ordinance can only be promulgated when
either the Lok Sabha or the Rajya Sabha or both are not in session. This is
crucial because the primary legislative power rests with the Parliament.

3. Procedure and Limitations:

• Approval by Parliament: An ordinance must be approved by both Houses
of Parliament within six weeks of reassembly. If not approved, the
ordinance ceases to operate.

• Duration: Ordinances have the same force and effect as laws passed by
Parliament but are temporary. They will lapse if not approved within the
stipulated time frame after the Parliament reconvenes.

• Re-promulgation: The practice of re-promulgating ordinances has been a

subject of debate and criticism. The Supreme Court of India, in the D.C.
Wadhwa case, held that the re-promulgation of ordinances is
constitutionally impermissible and a fraud on the Constitution.

4. Judicial Review:
• The Supreme Court of India has the power to review the ordinance on the
grounds of its constitutionality and the satisfaction of requirements under
Article 123. This includes examining whether there was an actual necessity
to promulgate the ordinance and if the conditions stipulated were met.

8|Page
5. Criticisms and Concerns:
• Bypassing Legislative Process: The ordinance-making power is
sometimes criticized as a tool to bypass the legislative process of
Parliament, especially when used to pass controversial laws.

• Overuse and Misuse: Concerns have been raised about the potential
misuse of this power, particularly when ordinances are frequently
promulgated or re-promulgated without sufficient justification.

6. Key Case Laws:

• D.C. Wadhwa vs. State of Bihar: This case challenged the frequent re-
promulgation of ordinances in Bihar. The Supreme Court held that the
power to promulgate ordinances is not an alternative legislative power but
a tool to be used sparingly and only in cases of urgency.

The ordinance-making power of the President is an essential aspect of the Indian

legislative process, designed to allow for immediate legal measures in urgent situations.
However, this power must be exercised responsibly and within the constitutional
framework, ensuring that it complements rather than circumvents the legislative process
of the Parliament.

D.C. Wadhwa vs. State of Bihar (1987)

Background of the Case:

• Dr. D.C. Wadhwa, a professor at the Gokhale Institute of Politics and
Economics in Pune, challenged the practice of the Government of Bihar of
repeatedly re-promulgating ordinances, bypassing the legislative process
of the state assembly.

Key Issues and Arguments:

• Issue: The primary issue was the constitutional validity of the frequent re-
promulgation of ordinances by the Governor of Bihar.
• Arguments: Dr. Wadhwa and other petitioners argued that the continuous
re-promulgation of ordinances without placing them before the state
legislature was a violation of the Constitution and a subversion of the
democratic process.

Judgment and Principles Established:

Judicial Scrutiny of Ordinance-Making Power:

• The Supreme Court held that the power of the Governor to
promulgate ordinances is not an alternative legislative power but a
measure to be used in extraordinary situations requiring immediate
action.

9|Page
 • The court asserted that this power should not be used to bypass the
legislative authority of the state assembly.

Constitutional Impropriety of Re-Promulgation:

• The Court ruled that the repeated re-promulgation of ordinances is
a fraud on the Constitution and a subversion of democratic
legislative processes.
• It was emphasized that ordinances, being temporary laws, should be
used sparingly and only in urgent situations.

Validity and Duration of Ordinances:

• The judgment clarified that ordinances must be limited in their
operation and cannot be perpetually re-promulgated.
• The ordinances must be placed before the legislature for conversion
into laws or they would cease to operate.

Significance of the Judgment:

• Checks and Balances on Executive Power:
The D.C. Wadhwa case is significant as it puts a check on the
executive's power to bypass the legislative process through the
ordinance mechanism.

• Upholding Democratic Principles:

The judgment reinforced the principle that law-making is primarily
the domain of the elected legislature and should not be usurped by
the executive through repeated ordinances.

• Guidelines for Future Ordinances:

This case serves as a precedent and guideline for both the Union and
State Governments in India on the proper use of ordinance-making
powers.

The D.C. Wadhwa case is a cornerstone in Indian constitutional law regarding the limits
of executive power in the context of ordinance-making. It upholds the sanctity of the
legislative process and democratic principles, ensuring that the ordinance-making power
is used responsibly and constitutionally.

Krishna Kumar Singh v. State of Bihar (2017)

Background of the Case:

• This case revisited the issue of ordinance-making power, particularly
focusing on the re-promulgation of ordinances. The case concerned a series
of ordinances promulgated by the Government of Bihar relating to the
taking over of 429 Sanskrit schools by the state.

10 | P a g e
Key Issues and Arguments:
• Issue: The primary issue was the constitutional validity of the practice of
re-promulgation of ordinances by the state government.
• Arguments: The petitioners argued that the repeated re-promulgation of
ordinances was a violation of constitutional principles and amounted to a
fraud on the Constitution.

Judgment and Principles Established:

Reaffirmation of D.C. Wadhwa Judgment:
• The Supreme Court reaffirmed its earlier judgment in D.C. Wadhwa v.
State of Bihar, holding that the re-promulgation of ordinances is
constitutionally impermissible and amounts to a subversion of the
legislative process.

Detailed Guidelines on Ordinance-Making Power:

• The Court provided comprehensive guidelines on the ordinance-making
power, stating that the executive cannot circumvent the legislative
process through repeated re-promulgation without adequate
justification.
• It was emphasized that ordinances are meant to address urgent issues
and should not be a tool for ordinary law-making.

Constitutional Morality and Separation of Powers:

• The judgment highlighted the importance of constitutional morality and
the separation of powers between the executive and the legislature. It
stressed that the executive should respect the domain of the legislature
in law-making.

Legality and Effects of Ordinances:

• The Court also discussed the legal and procedural implications of
ordinances, including the necessity for legislative approval and the
consequences of lapsing of ordinances.

Significance of the Judgment:

• Strengthening Legislative Authority: The Krishna Kumar Singh case

further strengthened the authority of the legislature in the law-making
process and placed stringent checks on the executive's ordinance-making
powers.

• Clarifying Constitutional Provisions: The judgment provided a clearer

understanding of the constitutional provisions regarding ordinances,
particularly in the context of their re-promulgation.

11 | P a g e
 • Upholding Democratic Values: The case is significant for upholding
democratic values and preventing the misuse of executive powers in
bypassing the elected legislature.

The Krishna Kumar Singh v. State of Bihar case is another landmark judgment that serves
as a crucial reference point in understanding the constitutional limits and proper use of
the ordinance-making power in India. It reinforces the principles of constitutional
governance and the supremacy of the legislative process.

The pocket veto is a unique aspect of the President's legislative powers in India. Unlike in
some other countries like the United States, where the term 'pocket veto' has a specific
constitutional basis and definition, in India, the concept is more informal and arises from
the President's ability to withhold assent to a bill.

Pocket Veto of the President of India

1. Concept and Constitutional Basis:

The Indian Constitution does not explicitly mention 'pocket veto'. However, it
arises from Article 111, which allows the President to withhold assent to a bill
passed by Parliament.

Unlike the U.S. President, the Indian President does not have a constitutionally
defined time frame within which they must return a bill for reconsideration or
give assent. This effectively allows the Indian President to exercise a 'pocket veto'
by simply not taking action on the bill.

2. Use of Pocket Veto:

Notable Instance: One of the most famous instances of a pocket veto in India was
by President Zail Singh. In 1986, he effectively used the pocket veto by not giving
assent to the Indian Post Office (Amendment) Bill. This bill, which sought to give
extensive powers to the government for intercepting postal communications, was
controversial and seen as infringing on civil liberties.

• President Singh neither returned the bill to Parliament for reconsideration nor did
he sign it into law, effectively exercising his pocket veto power.

3. Case Laws:

• There haven't been significant judicial cases in India specifically dealing with the
President's pocket veto. However, the Supreme Court has, in various cases,
examined the extent and limits of the President's legislative powers, including
their power to withhold assent.

12 | P a g e
 • Relevant Case: In the case of R. Bommai v. Union of India, the Supreme Court
discussed at length the scope of the President's powers under the Constitution,
although not specifically addressing the pocket veto.

4. Interesting Anecdotes:

• Zail Singh's Discretion: The use of the pocket veto by President Zail Singh is
often cited in discussions about the discretionary powers of the Indian President.
It demonstrated a rare instance where the President of India played a more active
role in the legislative process, using discretion in a politically significant manner.

• Contrast with American Pocket Veto: It's interesting to note the contrast with
the U.S. system, where the President must return a bill with objections within 10
days, excluding Sundays, or it automatically becomes law. The absence of such a
time frame in the Indian Constitution gives the Indian President a unique form of
veto power.

The concept of pocket veto in the Indian context underscores the discretionary powers of
the President, especially in situations where a bill might raise significant constitutional or
ethical concerns. While not frequently used, it serves as an important check in the
legislative process, ensuring that the President has the means to withhold assent to
legislation in extraordinary circumstances.

Dr. Rajendra Prasad and Dr. A.P.J. Abdul Kalam, both Presidents of India, are notable for
their use of the presidential discretion, particularly in the context of the pocket veto,
although in different manners and contexts.

Dr. Rajendra Prasad

Use of Discretionary Power:

• Dr. Rajendra Prasad, the first President of India, exercised his discretionary
powers cautiously but firmly, especially in interpreting the Constitution in the
early years of the republic.
• While there is no widely cited instance of Dr. Rajendra Prasad using the 'pocket
veto' as it is understood today, he did express his reservations and sought
clarifications on various bills. His approach was more about ensuring
constitutional compliance rather than outright withholding assent.

Significant Contributions:
• Dr. Prasad was instrumental in shaping the role of the President of India. He set
precedents on how the President should interact with the Prime Minister and the
Cabinet, and how to approach the legislative role, including assent to bills.
• His tenure helped define the largely ceremonial yet constitutionally significant
role of the President in India's parliamentary democracy.

13 | P a g e
Dr. A.P.J. Abdul Kalam

Instance of Pocket Veto:

• Dr. A.P.J. Abdul Kalam, known as the 'People's President', is often remembered for
his use of the presidential discretion in a manner akin to a pocket veto.
• The most notable instance was with the Office of Profit Bill in 2006. Dr. Kalam did
not give his assent to the bill nor did he return it to Parliament. Instead, he held
onto the bill, effectively exercising a form of pocket veto. He later returned the bill
to Parliament with his recommendations.

Impact and Significance:

• Dr. Kalam's action was significant as it was one of the rare instances where an
Indian President actively used discretionary powers in dealing with legislation.
• This act demonstrated that the President of India, while largely playing a
ceremonial role, can still exert influence and ensure that the legislative process is
more reflective and considerate of constitutional norms.

Both Dr. Rajendra Prasad and Dr. A.P.J. Abdul Kalam, in their respective tenures,
illustrated the nuanced exercise of presidential powers in India. While their approaches
differed, both upheld the dignity and constitutional importance of the office of the
President. Their actions, particularly in the context of legislative assent, are often cited in
discussions about the balance of power and the role of the President in India's
democratic framework.

Dr. A.P.J. Abdul Kalam's decision to effectively use a pocket veto on the Office of Profit Bill
in 2006 was a significant move that demonstrated his commitment to upholding
constitutional propriety and ethical governance.

Background of the Office of Profit Bill

The Office of Profit Bill aimed to exempt several positions from disqualification under the
'office of profit' clause of the Indian Constitution. According to this clause, Members of
Parliament (MPs) are not allowed to hold any office that would give them financial gain
or advantages, to prevent any conflict of interest in their duties as MPs. The bill proposed
to retrospectively legalize the holding of certain offices by MPs, which would have
protected them from disqualification.

Reasons for Dr. Kalam's Pocket Veto

1. Concerns Over Constitutional Ethics:

• Dr. Kalam had reservations about the ethical implications of the bill. The
retrospective effect of the bill, which aimed to protect MPs who were
already holding such offices, was seen as potentially compromising the
integrity of the parliamentary process.

14 | P a g e
 2. Public Interest and Transparency:
• The bill was controversial and drew public criticism for seemingly
protecting the interests of politicians over public interest and
transparency. Dr. Kalam, sensitive to public opinion and the overarching
principles of democratic accountability, might have viewed the bill as
undermining these values.

3. Seeking Wider Consultation:

• By withholding assent and not returning the bill, Dr. Kalam sought to
encourage a wider debate and reconsideration of the bill's provisions. His
action was a call for a more thorough examination and discussion of the bill
in Parliament.

4. Upholding Constitutional Duties:

• As President, Dr. Kalam was responsible for ensuring that the laws passed
adhered to the spirit of the Constitution. His use of the pocket veto in this
context can be seen as an exercise of his constitutional duty to protect the
sanctity of the Constitution and the parliamentary process.

Outcome:

• After Dr. Kalam's pocket veto, the bill was eventually revisited and passed with
modifications, addressing some of the concerns that were raised.
Dr. Kalam's action in this instance was an example of the President using his
powers to ensure that legislation is thoroughly scrutinized and is in the best
interest of the country's democratic principles. It was a rare but significant
instance where the President of India actively engaged in the legislative process
beyond the traditional ceremonial role.

The Vice President

Role and Responsibilities:

• The Vice President of India has a dual role: they are the ex-officio
chairperson of the Rajya Sabha and the direct successor to the
President. The Vice President's role is defined under Article 63 of the
Constitution.
• Their primary function is to act as the President in case of the latter's
death, resignation, or removal. However, the Vice President's role in the
Rajya Sabha is equally significant, where they oversee proceedings and
maintain order.

Succession to Presidency:
• The process of succession is straightforward. In case of a vacancy in the
President's office, the Vice President steps in. This ensures a seamless
transition and stability in governance.

15 | P a g e
The Prime Minister
Appointment and Powers:
• The Prime Minister is the real powerhouse in the Indian political
system, playing a central role in forming the government. They are
appointed by the President and hold office during the President's
pleasure.
• The Prime Minister leads the Council of Ministers and drives the
legislative agenda. They also represent the country in various
international forums.

Policy-making and Administration:

• A great example to illustrate the Prime Minister's influence is the
economic reforms of 1991 initiated by then Prime Minister P.V.
Narasimha Rao. These reforms transformed India's economy and are a
testament to the significant policy-making role of the Prime Minister.

The Council of Ministers

Composition and Functions:
• The Council of Ministers, led by the Prime Minister, is responsible for
aiding and advising the President. They are collectively responsible to
the Lok Sabha, as per Article 74 of the Constitution.
• They play a key role in decision-making at the Union level. The Council
of Ministers is divided into various ranks: Cabinet Ministers, Ministers
of State, and Deputy Ministers, each with specific portfolios.

Collective Responsibility:
• The principle of collective responsibility is fundamental to the
functioning of the Council of Ministers. It means that the decisions and
policies of the Cabinet are binding on all members, and they must stand
united in their support.

State Executive :

1. The Governor
Appointment and Powers:
• The Governor is the head of a State in India and is appointed by the President
for a term of five years. This appointment is often a subject of debate, as it's
influenced by the Union government.
• The Governor's powers mirror those of the President at the state level, but
with notable differences. They can make rules regarding the state's
administration, appoint the Chief Minister, and even reserve certain bills for
the President's consideration.

16 | P a g e
 • A key aspect of the Governor's role is their discretionary power. In certain
situations, like when there's no clear majority in the state assembly, the
Governor's discretion becomes crucial.

Controversies and Case Laws:

• The S.R. Bommai case is a landmark judgment that outlines the Governor's
role in case of hung assemblies and the imposition of President's Rule in states.
This case set significant precedents regarding federalism and the autonomy of
state governments.

2. The Chief Minister

Selection and Powers:

• The Chief Minister is the real executive authority in a state's governance. They
are appointed by the Governor and usually the leader of the majority party in
the state assembly.
• The Chief Minister plays a crucial role in the formulation and execution of state
policies. They lead the state's Council of Ministers and have a significant
influence in the state's legislative assembly.

Policy-making:
• For instance, the response to natural disasters like the Kerala floods in 2018
showcases the proactive role of the Chief Minister. Their leadership in
coordinating relief efforts and rehabilitation is a testament to the importance
of their position.

3. The State Council of Ministers

Composition and Functions:

• Similar to the Union Council of Ministers, the State Council of Ministers assists
the Chief Minister in governance. They are collectively responsible to the state
legislative assembly.
• Their functions include making decisions on state policies, overseeing their
implementation, and managing various state departments.

Interplay with State Legislature:

• The Council of Ministers must maintain a harmonious relationship with the
state legislature, ensuring that their policies and actions are in line with
legislative approval and oversight.

The State Executive plays a vital role in regional governance, balancing the Union's power
and catering to state-specific needs. This section gives a clear picture of their structure
and function.

The S.R. Bommai Case: A Detailed Analysis

17 | P a g e
Background of the Case
• The S.R. Bommai case arose from several instances where state governments
were dismissed under Article 356 of the Indian Constitution, and President's
Rule was imposed. Article 356 allows the President to dismiss a state
government if they believe that the government cannot function according to
the constitutional provisions. This provision was often criticized for being
misused for political gains.

S.R. Bommai vs. Union of India (1994)

• S.R. Bommai was the Chief Minister of the Karnataka state government. His
government was dismissed under Article 356, and President's Rule was
imposed in 1989.
• Bommai challenged this dismissal, arguing that it was arbitrary and motivated
by political bias.

Key Judgments and Principles Established

Test of Majority in the Assembly:

• The Supreme Court held that the power of the President to dismiss a state
government is not absolute. The Court stated that the majority enjoyed by the
Council of Ministers shall be tested on the floor of the house.
• This means that the decision to proclaim President's Rule should not be based
on subjective notions of the Governor or the President but on objective
material.
Judicial Review:
• A significant outcome of the case was the assertion that the imposition of
President's Rule is subject to judicial review. This was a departure from the
earlier belief that the President's satisfaction was beyond judicial scrutiny.
• The Court stated that if the proclamation is malafide or is based on irrelevant
or extraneous grounds, it can be struck down by the judiciary.
Federal Balance:
• The judgment emphasized the importance of federal balance and the
autonomy of state governments, acknowledging that the central government
cannot undermine state governments that are functioning within the bounds
of the Constitution.
Use of Article 356:
• The Supreme Court laid down strict guidelines for the use of Article 356,
making it clear that this provision should be used sparingly and only as a last
resort.
Impact of the Judgment
• The Bommai case put a check on the arbitrary dismissal of state governments
and misuse of Article 356.

18 | P a g e
 • It reinforced the federal structure of the Constitution and protected state
governments from politically motivated central interventions.
• This case is often cited in discussions regarding center-state relations and the
misuse of constitutional provisions for political purposes.

The S.R. Bommai case remains a cornerstone in Indian constitutional law, particularly in
the context of federalism and the autonomy of state governments. It significantly
curtailed the misuse of Article 356 and reinforced the principle of judicial review in such
matters.

Other Landmark Judgements:

Kesavananda Bharati v. State of Kerala (1973)

• Significance: This case is fundamental to Indian constitutional law. It established
the basic structure doctrine, which states that certain basic features of the
Constitution cannot be altered or destroyed by amendments.
• Relevance: It highlights the balance of power between the Executive and the
Judiciary and sets limits on the amending powers of the Parliament.

Indira Nehru Gandhi v. Raj Narain (1975)

• Significance: A landmark case in the context of the Emergency period in India.
The case led to the declaration of the Emergency being struck down and brought
about significant changes in the electoral laws and practices.
• Relevance: It reflects on the power dynamics between the Union Executive and
the Judiciary and highlights the role of the President during political crises.

Union of India v. Association for Democratic Reforms (2002)

• Significance: This case emphasized the need for transparency in the electoral
process, mandating candidates to disclose their criminal, financial, and
educational background before elections.
• Relevance: It showcases the role of the Judiciary in upholding democratic
principles and the interplay with the Executive in the context of electoral politics.

Maneka Gandhi v. Union of India (1978)

• Significance: This case expanded the interpretation of the right to life and
personal liberty under Article 21 of the Constitution, including the concept of
procedural fairness and due process.
• Relevance: It's crucial for understanding the limits of Executive action and the
protection of fundamental rights.

Shankari Prasad v. Union of India (1951)

• Significance: This was the first case where the Supreme Court dealt with the
power of Parliament to amend the Constitution.
• Relevance: It highlights the evolving nature of constitutional interpretation and
the balance of power between the Legislature and the Judiciary.

19 | P a g e
Comparison Between Union and State Executives

1. Similarities and Differences in Roles and Powers

Similarities:
• Both the Union and State Executives are integral to the governance of the country
and their respective states.
• They are both responsible for implementing laws and policies, and they consist of
a head (President/Governor), a chief executive (Prime Minister/Chief Minister),
and a council of ministers.
• Both are bound by the provisions of the Constitution and are subject to checks and
balances.

Differences:
• The Union Executive has a wider scope in terms of policy-making and governance,
impacting the entire nation. It deals with subjects listed in the Union List and
Concurrent List of the Constitution.
• The State Executive, on the other hand, primarily deals with matters on the State
List and has powers confined to the geographical boundaries of the state.
• The method of appointment and powers of the President and the Governor differ
significantly. The President is elected through an electoral college, while the
Governor is appointed by the President.

2. Interaction and Balance Between the Two

• Discuss the interplay between the Union and State Executives in the federal
structure. Emphasize how both levels of government need to work in harmony for
effective governance.
• Highlight the importance of cooperative federalism, where both the Union and
State Executives collaborate, respecting each other's jurisdictions and roles.

This comparison provides an understanding of how the Union and State Executives
coexist within the framework of Indian federalism, each with its own set of roles and
responsibilities.

Current Issues and Challenges in Union and State Executives

1. Centralization of Power
Issue:
• A recurring concern is the perceived centralization of power in the Union
government. This can lead to a reduction in the autonomy of states, impacting
the federal structure.
Examples:
• For instance, the use of central agencies for investigations in state matters, or
unilateral decisions in areas like agriculture and education reform, can be seen
as encroaching on state powers.

20 | P a g e
2. Federalism Challenges
Inter-State Disputes:
• Issues like river water sharing, boundary disputes, and language policies often
lead to conflicts between states. The role of the Union in mediating these
disputes is critical.

Financial Autonomy:
• The financial dependence of states on the Union for resources, and debates
over GST compensation, are ongoing challenges affecting state autonomy and
fiscal management.

Dr Pragya Mishra
Assistant Professor in Law
University of Allahabad

21 | P a g e