The Union Executive in the Government of India is led by the President, who serves as the ceremonial head. However, the actual executive authority lies with the Prime Minister and the Council of Ministers. The President, elected by an electoral college, has a symbolic role and acts on the advice of the Council of Ministers. The Prime Minister, typically the leader of the majority party in the Lok Sabha, holds the primary executive power and recommends ministers to the President. The Council of Ministers, collectively responsible to the Lok Sabha, oversees the implementation of laws and policies, with specific ministers assigned to various government departments.
Types of Executive
Constitutional Executive: The Constitutional Executive, led by the President of India, encompasses both the head of state and the head of government roles. The President holds several constitutional powers, such as appointing the Prime Minister and the Council of Ministers, dissolving the Lok Sabha, and possessing the authority to veto parliamentary bills. It’s important to note that the President exercises these powers based on the advice of the Council of Ministers.
Political Executive: Heading the Political Executive is the Prime Minister of India. As the leader of the ruling party in the Lok Sabha, the Prime Minister is tasked with appointing the Council of Ministers and spearheading the government. The Council of Ministers operates with collective responsibility to the Lok Sabha.
The President
The President holds the position of Head of the State and is regarded as the foremost citizen of India.
According to Article 52, a President of India is mandated.
Article 53 stipulates that the Executive Power of the Union is vested in the President. This power can be exercised directly or through subordinate offices.
Article 74 establishes the Council of Ministers to aid and advise the President. The President is obligated to act in accordance with this advice. The 42nd Constitutional Amendment Act (CAA) made this advice binding, but the 44th CAA introduced the provision for the President to send bills back for reconsideration.
In essence, the President serves as the Nominal Executive, while the Real Executive power is held by the Council of Ministers, headed by the Prime Minister.
As per Article 56, the President’s term of office is five years. Resignation is addressed to the Vice-President, who communicates it to the Speaker. Removal can occur through impeachment as outlined in Article 61, and the President is eligible for re-election according to Article 57.
Article 58 outlines the qualifications for election as President, requiring citizenship, completion of 35 years of age, qualification for election to the Lok Sabha, and not holding an office of profit.
Article 59 specifies the conditions of the Office of the President, including not being a Member of Parliament (MP) or Legislative Assembly (MLA), and not holding an office of profit. The President is entitled to official residence, emoluments, and allowances, with the assurance that these shall not be diminished.
Article 60 dictates that the oath is administered by the Chief Justice of India or the senior-most Supreme Court judge in their absence.
Election of the President:
- The Electoral College comprises elected members of both houses of Parliament and elected members of state legislative assemblies.
- Proportional representation is achieved through a single transferable vote, conducted by secret ballot.
- The value of votes is determined based on the 1971 census until the first census after 2026 (84th CAA).
- The value of an MLA’s vote is calculated by dividing the total population of the state by the number of elected MLAs in the state Legislative Assembly, multiplied by 1/1000.
- The value of an MP’s vote is determined by the total value of votes of all elected MLAs of all states divided by the total number of elected Members of Parliament.
This implies variations in the value of votes among MLAs of different states and establishes that the value of an MP’s vote is greater than that of an MLA in any state. The cumulative value of votes in the Lok Sabha (MP) is greater than that in the Rajya Sabha (MP).
Article 71 grants the Supreme Court original and exclusive jurisdiction over election disputes of the President, with prior acts in the capacity of President not being invalidated, and vacancy of the Electoral College not being a ground for dispute.
Impeachment of the President (Article 61):
- Impeachment is only for violations of the constitution.
- The procedure involves moving a resolution in either house of Parliament with a 14-day prior notice to the President.
- The resolution must be supported by 1/4th of members before introduction.
- It needs to be passed by 2/3rd of the total membership of the house.
- The second house investigates the charge, and the President has the right to represent their case.
- If passed with a 2/3rd majority, the President stands impeached. Nominated members of both houses can participate, but state legislatures, though involved in the election of the President, are not involved in impeachment.
Vacancy of the Office of President:
- Vacancy can occur due to the expiry of the term, death, resignation, impeachment, or other reasons like a void election.
- In the case of the expiry of the term, the Vice-President acts as the President until an election is held within six months.
Term and Election: The President’s term lasts for five years, and they are not directly elected by the public. Instead, Members of the Legislative Assembly and Members of Parliament participate in the election. This electoral process adheres to the principles of proportional representation and utilizes a Single Transferable Vote system.
Removal: The removal of the President can only occur through a parliamentary process known as impeachment. Impeachment necessitates a special majority in Parliament.
Powers: Formally, the President holds the executive power of the Union. Besides executive authority, the President is endowed with legislative, judicial, and emergency powers. These powers are executed through the Council of Ministers, led by the Prime Minister. In many instances, the President is required to act in accordance with the advice of the Council of Ministers. The President also has the right to be informed about significant matters and decisions made by the Council of Ministers, with the Prime Minister obligated to provide all requested information.
Limitations to Presidential Powers:
- Denial of Advice: The President possesses the authority to reject the advice of the Council of Ministers or request them to reconsider their decisions. However, if the Council reiterates the same advice, the President is obliged to give it due consideration.
- Veto Power: The President holds a veto power, allowing them to refuse or withhold bills passed by Parliament. This capability, often termed a ‘pocket veto,’ permits the President to informally keep a bill pending without any specific time constraints. It’s important to note that this veto power cannot be exercised over money bills.
- Assent to Bills: The President is required to give assent to a bill if it is passed again by Parliament and sent for approval, even if the President had initially withheld assent.
- Role in Prime Ministerial Appointment: In situations where there is no clear majority for a political party in Parliament, the President plays a crucial role in appointing the Prime Minister.
- Dissolution of Lok Sabha: The President holds the power to dissolve the Lok Sabha in specific political circumstances, especially when governments lack stability and coalitions are formed. This authority is exercised when there is no clear majority in the house.
Powers and Functions of the President
The President serves as the executive head according to Article 53, acting on the aid and advice of the Council of Ministers as specified in Article 74. All executive actions are conducted in the President’s name, allowing the formulation of rules for the smooth transaction of the Government of India’s business under Article 77. The President possesses the power to appoint and remove various dignitaries, including the Comptroller and Auditor General of India, Chief Election Commissioner and Election Commissioners, Attorney Generals, members of the Union Public Service Commission, Joint Public Service Commission, and Judges of the Supreme Court and High Courts.
Executive Power:
- Administers Union Territories directly under Article 239.
- Enjoys special powers concerning the administration of scheduled areas.
Legislative Power:
- Functions as an integral part of Parliament, with a bill becoming law only after receiving the President’s assent.
- Plays a role in the sessions, prorogation, and dissolution of Parliament (Article 85).
- Exercises the right to address and send messages to the Houses (Article 86).
- Holds the power of nominating members to the Lok Sabha and the Rajya Sabha.
- Requires prior sanction for the introduction of certain legislations, such as bills for creating new states (Article 3) and certain financial bills (Article 117).
Veto Power:
- Exercises the power to assent, withhold assent, or return bills for reconsideration (Article 111).
- The President’s veto can be absolute, qualified, suspensive, or pocket.
State Legislature and Governor’s Powers:
- Holds veto power over bills passed by state legislatures (Article 201).
- Governors possess the power to assent, withhold assent, send for reconsideration, and reserve bills for the President’s consideration (Article 200).
Joint Sitting of Parliament:
- The President is empowered to convene a joint sitting of both Houses (Article 108).
Ordinance-Making Power:
- The President and Governors have the authority to issue ordinances under Article 123 and 213, respectively.
Legislative Power in Executive Hands:
- Conditions for the exercise of legislative power include recess of Parliament or when one House is not in session.
- Temporary in nature (max 6 months and 6 weeks).
- Subject to judicial review on malafide grounds, as established in the R.C. Cooper Case 1970.
- The 38th Constitutional Amendment Act clarified that the President’s satisfaction is final and beyond judicial review, but the 44th CAA in 1978 repealed this provision.
- The current stance allows judicial review on malafide grounds (D.C. Wadhwa Case, 1987).
Re-promulgation of Ordinances:
- Considered fraudulent and a violation of the Constitution.
- Exceptional powers are expected to be sparingly used, with the Supreme Court reinforcing this principle in the Krishna Kumar Case in 2017.
- Governors possess similar powers under Article 213, with the exception that, for certain legislations, prior approval from the President is required, and prior instructions may be sought before passing the ordinance.
Vice President
Term: The Vice President’s term spans five years.
Appointment: The election process for the Vice President is akin to that of the President, with the exception that members of the state legislative assembly do not participate in the voting.
Termination: The Vice President can be removed through a resolution passed by a majority in the Rajya Sabha and subsequently approved by the Lok Sabha.
Authority: Serving as the ex-officio chairman of the Rajya Sabha, the Vice President holds a significant role. Additionally, in the event of the President’s death, resignation, or impeachment, the Vice President assumes the position of the President until a new President is elected.
Prime Minister
Prime Minister
The appointment of the Prime Minister in India is made by the President, who selects an individual either from the party with a majority in the Lok Sabha or someone capable of gaining the confidence of the Lok Sabha through support from other political parties.
To qualify as the Prime Minister of India, an individual must meet the following criteria:
- Be a citizen of India.
- Be a member of either the Rajya Sabha or Lok Sabha.
- Have reached the age of 30 if a member of the Rajya Sabha, or 25 if a member of the Lok Sabha.
The Prime Minister serves the country by fulfilling various roles, including:
Leader of the Country:
- The Prime Minister serves as the Head of the Government of India.
Portfolio Allocation:
- The Prime Minister has the authority to assign portfolios to Ministers.
Chairman of the Cabinet:
- Acting as the chairman of the cabinet, the Prime Minister presides over cabinet meetings and can make decisive calls in the event of significant differences of opinion among members.
Official Representative of the Country:
- The Prime Minister represents the country in high-level international meetings.
Link Between President and Cabinet:
- Serving as the link between the President and the cabinet, the Prime Minister communicates all cabinet decisions related to the administration of Union affairs and proposals for legislation to the President.
The Prime Minister also holds key positions as the head of the Nuclear Command Authority, NITI Aayog, Appointments Committee of the Cabinet, Department of Atomic Energy, Department of Space, and the Ministry of Personnel, Public Grievances, and Pensions. Additionally, the Prime Minister acts as the chief advisor to the President.
According to Article 74, both the Prime Minister and President are connected with the Council of Ministers. The Council, with the Prime Minister as its head, advises the President on various issues.
Article 75 outlines three crucial aspects:
- The President appoints the Prime Minister, and other ministers are appointed by the President on the advice of the Prime Minister.
- Ministers hold their office at the pleasure of the President.
- The Council of Ministers is collectively responsible to the Lok Sabha.
Article 78 emphasizes that the Prime Minister communicates all decisions made by the Council of Ministers to the President. The President also has the authority to refer issues for the consideration of the Council of Ministers.
The Prime Minister holds a pivotal role in the government of our country, serving as the chief advisor to the President. It is imperative for the Prime Minister to have the support of the majority in the Lok Sabha.
Qualifications:
- Must be a citizen of India.
- Should be a member of either the Lok Sabha or the Rajya Sabha.
- The age requirement is 25 years for a Lok Sabha member and 30 years for a Rajya Sabha member.
Appointment and Termination:
- The President appoints the leader of the party with a majority in the Lok Sabha as the Prime Minister.
- In the case of a coalition government, the most widely accepted leader is appointed as Prime Minister.
- The Prime Minister ceases to hold office when the majority in the Lok Sabha is lost.
Duties of Prime Minister:
- Appointing the Council of Ministers.
- Making critical decisions and formulating government policies.
- Communicating all decisions of the Council of Ministers, related to administration and legislative proposals, to the President.
- Serving as a link between the Council of Ministers, Parliament, and the President.
- Acting as a negotiator in coalition governments regarding policy-making.
Council of Ministers
Appointment:
- Formed after the Prime Minister takes the oath of office.
- The Prime Minister is responsible for selecting ministers, assigning portfolios, and determining their ranks based on seniority and political significance.
- A similar process is followed in states, where the chief minister appoints ministers.
Termination:
- The death or resignation of the Prime Minister results in the dissolution of the Council.
- A vote of no confidence against a single Minister can lead to the resignation of the entire Council of Ministers.
Size:
- The number of ministers should not exceed 15% of the total members in the Lok Sabha.
- Enforced by the 91st Amendment Act in 2003.
Responsibility:
- The Council of Ministers functions as an executive committee representing the parliament.
- It is collectively responsible to the Lok Sabha.
Tenure:
- The Cabinet Ministers have a term of five years, but the Prime Minister has the discretion to make changes within the Council during this period.
Coordination and Communication:
- The Council of Ministers acts as a coordinating body between different ministries, ensuring a coherent approach to governance.
- Communication between the Council of Ministers and the President is facilitated through the Prime Minister, who keeps the President informed about important policy matters and decisions.
Attorney General
Appointment:
- The President of India appoints the Attorney General of India based on the advice of the Union Cabinet of Ministers.
Qualifications:
- The appointed individual must be an Indian citizen.
- To be eligible for the role, a person must meet the qualifications required to serve as a Supreme Court judge. This includes having five years of experience as a judge of a High Court, ten years as an advocate in a High Court, or being recognized as an outstanding jurist in the President’s view.
Role and Responsibilities:
- As the senior law officer of the country, the Attorney General of India is responsible for offering legal advice to the government on issues referred by the President.
Role and Responsibilities (continued):
- The Attorney General serves as the chief legal advisor to the government of India. Their primary duty is to provide legal counsel and opinions to the government on various matters.
- The Attorney General represents the government in legal proceedings in the Supreme Court and has the right of audience in all courts in the country.
- In addition to advising the government, the Attorney General may also be involved in representing the government’s interests in cases of public importance.
- The role requires a deep understanding of constitutional law, administrative law, and other legal aspects crucial to the functioning of the government.
Independence and Accountability:
- While the Attorney General is appointed by the President on the advice of the Union Cabinet, the office is expected to maintain a degree of independence to provide impartial legal advice.
- Despite being a part of the government machinery, the Attorney General is not a member of the Union Cabinet and does not have voting rights.
Tenure and Removal:
- The Attorney General does not have a fixed tenure and holds office during the pleasure of the President.
- The President can remove the Attorney General from office or the Attorney General can resign.
Historical Significance:
- The office of the Attorney General has historical roots and plays a crucial role in upholding the rule of law and ensuring legal coherence within the government. The Attorney General’s advice is instrumental in shaping legal strategies and decisions at the highest levels of governance.
