THE UNION EXECUTIVE, THE PRESIDENT
(ARTICLES 52-78 & 123)
Parliamentary form of Government.-In India, the Constitution establishes a Parliamentary
form of Government as distinguished from the American Presidential type of Government.
The essence of the Parliamentary type of government is that the head of the State is the
constitutional head and the real executive powers are vested in the Council of Ministers. The
Prime Minister is the head of the Council of Ministers. The Council of Ministers is
responsible to the House of the People. Though the executive power is vested in the President
but he exercises this power with the aid and advice of the Council of Ministers. The members
of the Council of Ministers are all elected by the people and they are members of the
Legislature.
The Central Executive consists of the President and the Council of Ministers headed by the
Prime Minister. It is of the parliamentary type in so far as the Council of Ministers is
responsible to the Lok Sabha
The President (Art. 52 r/w 53 r/w 73 r/w 74)
The President is the head of the State and the Formal Executive. All Executive action at the
Centre is expressed to be taken in his name. According to Art. 53(1) : “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 Constitution formally
vests many functions in the President but he has no function to discharge in his discretion, or
in his individual judgment. He acts on ministerial advice and, therefore, the Prime Minister
and the Council of Ministers constitute the real and effective executive.
There shall be a President of India (Article 52). He is the Head of the State. The executive
power of the Union, shall be vested in the President and it shall be exercised by him in
accordance with the Constitution either directly or through officers subordinate to him
(Article 53). The expression "officers subordinate to him" includes a minister also.
James Manor, a professor at the London-based Institute of Commonwealth Studies who has
extensively researched the presidency, says Indian presidents are "not entirely rubber
stamps".
They can ask ministers to reconsider actions, offer them private advice and convey warnings.
They also make public speeches which indicate, at least subtly, "some differences of view
with the government, and which may swing public opinion".
Also, more importantly, after elections, presidents are free to act - and must act - without the
advice of ministers if no party has been able to garner a parliamentary majority. They also
have some freedom to decide whether to accept a prime minister's request for dissolving the
parliament to enable a general election.
,India's first president, Rajendra Prasad, frequently disagreed with prime minister Nehru and
sometimes subtly criticised the government in his public statements.
In what many believe was a shameful low for the presidency, the fifth president. Fakhruddin
Ali Ahmed, readily acquiesced to former prime minister Indira Gandhi's demand for a
declaration to impose a state of emergency - when civil liberties were suspended - in 1975.
The seventh president, Giani Zail Singh, - a former Congress government home minister
who once told the parliament that he admired Adolf Hitler - had a stormy relationship with
the then prime minister Rajiv Gandhi.
In 1987, he withheld assent from a controversial bill passed by the parliament. (The bill was
later withdrawn.) There were reports that Mr Singh, who died in 1994 , had even considered
sacking Mr Gandhi's government over an arms purchasing scandal.
The ninth incumbent Shankar Dayal Sharma returned two executive orders to the cabinet in
1996 because they had been "inappropriately" issued before a general election.
And his successor, KR Narayanan, a London School of Economics-educated former
diplomat and Dalit (formerly known as "untouchable"), was arguably one of India's most
assertive presidents. He delivered speeches which many believed were not vetted by the
government and, in a surprising break from protocol, even gave an interview to a senior
journalist.
Mr Narayanan also sent back a proposal to impose direct rule in the northern state of Uttar
Pradesh to the cabinet, asking the ministers to reconsider it. He bluntly said: "I am not a
rubber stamp."
And he angered many in the government and the media for chiding visiting US president Bill
Clinton at a state banquet, provoking the New York Times to comment that "the tensions
inherent in forging an Indian-American friendship surfaced with Mr Narayanan's speech".
His successor APJ Kalam, one of the most popular Indian presidents, was more restrained,
once returning an office of profit bill for reconsideration. The parliament returned the bill to
him without changes, and he signed it into law.
Prof Manor believes Mr Kovind's predecessor, Pranab Mukherjee, a veteran Congress party
leader and a former senior minister, was "more assertive than nearly all previous presidents".
Although he rejected a record 28 mercy pleas of death row convicts during his tenure, Mr
Mukherjee defied the advice of the government and commuted the death sentences of four
convicts in January. "Mr Mukherjee had the right to refer those cases back to ministers for
reconsideration once, but when they reiterated the advice, he is required to accept it. He
refused to do so," explains Prof Manor.
"That was potentially explosive politically, and might have led to a constitutional crisis. But
the prime minister and cabinet apparently decided not to make an issue of it - because Mr
Mukherjee's term was soon to end, and because a confrontation would have prevented them
from doing other important things."
, Many fear that governments with overwhelming majorities - like the present BJP - could
easily lead to weakening of presidents.
That may not be entirely true. Ruling parties have enjoyed hefty majorities for most of the
period since 1947. "This alone has not led - under Congress or the BJP - to a weakening of
the presidency. When a party or an alliance has a Lok Sabha majority, the president is
supposed to have very limited powers," says Prof Manor.
The expression 'executive power' is not defined in the Constitution. Article 73. however,
provides that the executive power of the Union shall extend to the matters with respect to
which Parliament has power to make laws and includes the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by virtue of
any treaty of agreement. Thus the executive power of the Union which is exercisable by the
President is co-extensive with the legislative powers of the Union. The executive power of
a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of
Punjab (AIR 1955 SC 549), even the Supreme Court also finds it difficult to explain the
context of the executive power. The Court has observed, "It may not be possible to frame
an exhaustive definition of what executive functions mean and imply. Ordinarily, the
executive power connotes the residue of government functions that remain after the
legislative and judicial functions are taken away." It is neither necessary nor possible to
give an exhaustive enumeration of the kinds and categories of executive functions which may
comprise both the formulations of the policy as well as its execution. Under Articles 73
and 163 the executive power is not confined merely to administration of laws already
enacted but it includes determination of the Government policy, initiation of legislation,
maintenance of law and order, 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.
1. Emperor v. Sibnath Banerjee, AIR 1954 SC 156 at p. 163. 2. AIR 1955 SC 549. See also
M/s. Bishambar Dayal Chandra Mohan v. State of U. P.. AIR 1982 SC 33.
In Ram Jawaya Kapur v. State of Punjab,' in pursuance of its policy of nationalising text
books used in the recognised schools in the State, the Punjab Government issued an
executive order acquiring the copyright in selected books from the authors and
undertaking itself the printing, publishing and sale of those books. Private publishing
houses were thus ousted from the text-book business. This order was challenged by the
petitioners on the ground that executive power of the State did not extend to undertaking
trading activities without a legislative sanction. It was, however, held that the executive
power was not confined to matters on which legislation had already been passed. If the
executive formulates a policy to start a trade or business it is not always necessary to
(ARTICLES 52-78 & 123)
Parliamentary form of Government.-In India, the Constitution establishes a Parliamentary
form of Government as distinguished from the American Presidential type of Government.
The essence of the Parliamentary type of government is that the head of the State is the
constitutional head and the real executive powers are vested in the Council of Ministers. The
Prime Minister is the head of the Council of Ministers. The Council of Ministers is
responsible to the House of the People. Though the executive power is vested in the President
but he exercises this power with the aid and advice of the Council of Ministers. The members
of the Council of Ministers are all elected by the people and they are members of the
Legislature.
The Central Executive consists of the President and the Council of Ministers headed by the
Prime Minister. It is of the parliamentary type in so far as the Council of Ministers is
responsible to the Lok Sabha
The President (Art. 52 r/w 53 r/w 73 r/w 74)
The President is the head of the State and the Formal Executive. All Executive action at the
Centre is expressed to be taken in his name. According to Art. 53(1) : “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 Constitution formally
vests many functions in the President but he has no function to discharge in his discretion, or
in his individual judgment. He acts on ministerial advice and, therefore, the Prime Minister
and the Council of Ministers constitute the real and effective executive.
There shall be a President of India (Article 52). He is the Head of the State. The executive
power of the Union, shall be vested in the President and it shall be exercised by him in
accordance with the Constitution either directly or through officers subordinate to him
(Article 53). The expression "officers subordinate to him" includes a minister also.
James Manor, a professor at the London-based Institute of Commonwealth Studies who has
extensively researched the presidency, says Indian presidents are "not entirely rubber
stamps".
They can ask ministers to reconsider actions, offer them private advice and convey warnings.
They also make public speeches which indicate, at least subtly, "some differences of view
with the government, and which may swing public opinion".
Also, more importantly, after elections, presidents are free to act - and must act - without the
advice of ministers if no party has been able to garner a parliamentary majority. They also
have some freedom to decide whether to accept a prime minister's request for dissolving the
parliament to enable a general election.
,India's first president, Rajendra Prasad, frequently disagreed with prime minister Nehru and
sometimes subtly criticised the government in his public statements.
In what many believe was a shameful low for the presidency, the fifth president. Fakhruddin
Ali Ahmed, readily acquiesced to former prime minister Indira Gandhi's demand for a
declaration to impose a state of emergency - when civil liberties were suspended - in 1975.
The seventh president, Giani Zail Singh, - a former Congress government home minister
who once told the parliament that he admired Adolf Hitler - had a stormy relationship with
the then prime minister Rajiv Gandhi.
In 1987, he withheld assent from a controversial bill passed by the parliament. (The bill was
later withdrawn.) There were reports that Mr Singh, who died in 1994 , had even considered
sacking Mr Gandhi's government over an arms purchasing scandal.
The ninth incumbent Shankar Dayal Sharma returned two executive orders to the cabinet in
1996 because they had been "inappropriately" issued before a general election.
And his successor, KR Narayanan, a London School of Economics-educated former
diplomat and Dalit (formerly known as "untouchable"), was arguably one of India's most
assertive presidents. He delivered speeches which many believed were not vetted by the
government and, in a surprising break from protocol, even gave an interview to a senior
journalist.
Mr Narayanan also sent back a proposal to impose direct rule in the northern state of Uttar
Pradesh to the cabinet, asking the ministers to reconsider it. He bluntly said: "I am not a
rubber stamp."
And he angered many in the government and the media for chiding visiting US president Bill
Clinton at a state banquet, provoking the New York Times to comment that "the tensions
inherent in forging an Indian-American friendship surfaced with Mr Narayanan's speech".
His successor APJ Kalam, one of the most popular Indian presidents, was more restrained,
once returning an office of profit bill for reconsideration. The parliament returned the bill to
him without changes, and he signed it into law.
Prof Manor believes Mr Kovind's predecessor, Pranab Mukherjee, a veteran Congress party
leader and a former senior minister, was "more assertive than nearly all previous presidents".
Although he rejected a record 28 mercy pleas of death row convicts during his tenure, Mr
Mukherjee defied the advice of the government and commuted the death sentences of four
convicts in January. "Mr Mukherjee had the right to refer those cases back to ministers for
reconsideration once, but when they reiterated the advice, he is required to accept it. He
refused to do so," explains Prof Manor.
"That was potentially explosive politically, and might have led to a constitutional crisis. But
the prime minister and cabinet apparently decided not to make an issue of it - because Mr
Mukherjee's term was soon to end, and because a confrontation would have prevented them
from doing other important things."
, Many fear that governments with overwhelming majorities - like the present BJP - could
easily lead to weakening of presidents.
That may not be entirely true. Ruling parties have enjoyed hefty majorities for most of the
period since 1947. "This alone has not led - under Congress or the BJP - to a weakening of
the presidency. When a party or an alliance has a Lok Sabha majority, the president is
supposed to have very limited powers," says Prof Manor.
The expression 'executive power' is not defined in the Constitution. Article 73. however,
provides that the executive power of the Union shall extend to the matters with respect to
which Parliament has power to make laws and includes the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by virtue of
any treaty of agreement. Thus the executive power of the Union which is exercisable by the
President is co-extensive with the legislative powers of the Union. The executive power of
a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of
Punjab (AIR 1955 SC 549), even the Supreme Court also finds it difficult to explain the
context of the executive power. The Court has observed, "It may not be possible to frame
an exhaustive definition of what executive functions mean and imply. Ordinarily, the
executive power connotes the residue of government functions that remain after the
legislative and judicial functions are taken away." It is neither necessary nor possible to
give an exhaustive enumeration of the kinds and categories of executive functions which may
comprise both the formulations of the policy as well as its execution. Under Articles 73
and 163 the executive power is not confined merely to administration of laws already
enacted but it includes determination of the Government policy, initiation of legislation,
maintenance of law and order, 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.
1. Emperor v. Sibnath Banerjee, AIR 1954 SC 156 at p. 163. 2. AIR 1955 SC 549. See also
M/s. Bishambar Dayal Chandra Mohan v. State of U. P.. AIR 1982 SC 33.
In Ram Jawaya Kapur v. State of Punjab,' in pursuance of its policy of nationalising text
books used in the recognised schools in the State, the Punjab Government issued an
executive order acquiring the copyright in selected books from the authors and
undertaking itself the printing, publishing and sale of those books. Private publishing
houses were thus ousted from the text-book business. This order was challenged by the
petitioners on the ground that executive power of the State did not extend to undertaking
trading activities without a legislative sanction. It was, however, held that the executive
power was not confined to matters on which legislation had already been passed. If the
executive formulates a policy to start a trade or business it is not always necessary to
