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constitutional_law:part-2:union-executive

Union Executive

India is a Democratic Republic. It is a Union of twenty eight States and seven Union Territories. Being a Union of States, it has two levels of governance. The Government at the Centre is called the Central or Union Government and the Government at the State level is called State Government. The Union Government has three organs – the Legislature (Parliament), the Executive. (The President, the Prime Minister, the Council of Ministers), and the Judiciary (Supreme Court). In this lesson, we shall study about the Executive part of the Government at the Centre as well as in the States.

The Union Executive of Indian Government is composed of the President, the Prime Minister and his/her Council of Ministers. This part of the executive is temporary and political because it gets changed with the change in government after every general election. The second and permanent part of the executive is the burcaucracy which is permanently appointed and work regularly and continuously upto a fixed age. The President is Head of both the parts of the executive under the provisions of Indian Constitution; the executive power is vested in the President of India. This power is exercised in him/her name through offices subordinate to his/her. The President stands at the Head of the Union Executive. All the executive actions are formally taken in his/her name. The President is also the Supreme Commander of the Defence Forces of India.

President

As you know that India is a Republic, hence the Head of State i.e. President is elected. The Constitution of India has laid down a procedure to elect the President.

Election of the President

The President is elected indirectly by an Electoral College which consists of the elected members of both the Houses of Parliament i.e. Lok Sabha and Rajya Sabha and also the elected members of all the State Legislatures (28 States), along with the legislatures of National Capital Territory of Delhi and Union Territory of Puducherry. Nominated members of Lok Sabha, Rajya Sabha as well as of Vidhan Sabhas are not entitled to vote for the election of the President. Certain qualifications have been specified in the Constitution of India for the post of President.

Qualifications

The qualifications required for the office of President are:

  1. he/she is a citizen of India;
  2. has completed the age of 35 years;
  3. is qualified to be elected as a member of Lok Sabha and
  4. should not hold any office of profit under the Union Government or any State Government.

However, the office of the President, the Vice President, the Governor or the Ministers of Union or State is not considered as an office of profit.

Election Procedure

The election of the President is held in accordance with the system of proportional representation by means of single transferable vote. Voting at such election shall be by secret ballot. As far as possible there shall be uniformity in the scale of representation of the different States in the election of the President. For the purpose of securing such uniformity among the States as well as parity between the States as a whole and the Union, the number of votes which each elector casts in such election shall be determined by the following manner.

The value of vote of each elected member of Legislative Assembly of a State is =

(Total Population of the State/Number of elected members of the State Legislative Assembly) × 1/1000

For example the population of any State to be considered is 2,45,48,000 and the number of members elected is 120, then the value of vote of each member shall be (2,45,48,000/120)x 1/1000 = 204.54 = 205(Rounded off)

The Population means the population ascertained at the last preceding cencus of which the relevant figures have been published. Similarly, to have parity between the votes of the elected members of Parliament on the one side and the elected members of the Legislative Assemblies of all the States on the other, a system, as given below, has been determined to calculate the value of vote of each Member of Parliament.

Value of vote of each elected Member of Parliament = (Total value of votes of Members of All the State Legislative Assemblies / Total number of elected members of both the Houses of Parliament)

For example, suppose the total value of votes of all the State Legislative Assemblies is 8,44,613 and the total number of elected members of Parliament is 776, then the value of vote of each Member of Parliament shall be: 844613/776 =1088.3 = 1088 (Rounded)

Under the system of election, names of all the candidates are listed on the ballot paper and every voter has to mark his/her preference before the name of the candidate. Voters from the State Legislature Assemblies can cast their vote in their concerned State capital and the Members of Parliament can cast their votes in New Delhi or in their State Capital. Votes are counted in New Delhi and the election is managed by the Election Commission of India. First of all, the first preference votes of all the candidates are counted. The winning candidate must score more than 50% of the total valid votes polled. This amount of votes is called “Electoral Quota”.

Electroal Quota = (Total number of valid votes polled/(1+1)=2) + 1

If no candidate is able to get the quota after the counting of first preference votes, then the second preference votes of the candidate getting the least number of first preference votes are transferred to other candidates and that particular candidate is eliminated.

This system of transfer of preference votes is repeated till a candidate gets the required quota. This system of counting is complicated and is adopted by the experts. Mostly, the result is final after the first counting of first preference votes. In the history of India, only once second preference votes were taken into account.

The Term of Office

Article 56 explains about the term of office of the President.

  1. The President shall hold office for a term of five years from the date on which he/she enters upon his/her office.
  2. A person who holds, or who has held office as President, shall subject to other provisions of the Constitution be eligible for re-election to the office.

Our first President Dr. Rajendra Prasad was elected for two full terms. No other President has been elected for the second term.

Removal of the President

Article 61 of the Constitution lays down the condition for the removal (impeachment) of the President. Although the office of President is of respect and dignity, yet he/she can be removed from his/her office for violation of the Constitution. The resolution to impeach can be moved in any one of the two Houses of the Parliament. This resolution should be moved by at least one fourth of the total members of the House and must be passed by not less than two-third majority of the total members of the House. After being passed in one House, the resolution goes to the second House for investigation.

The charges leveled against the President are investigated by the second House. President may defend him/her personally or through his counsel. If the second House also accepts the resolution by not less than the two third majority of the House, then the impeachment process succeeds and the President stands removed from his/her office on the date when it is passed in the second House. Such a resolution has to be passed by both the Houses. This process of removal of the President is called Impeachment.

Vacancy in the Office of President

Vacancy in the office of President may be caused either due to death or resignation or impeachment. In such a condition, the Vice President of India automatically officiates as President. Election for the President is to be held within India-II six months of the vacancy as the Vice President cannot officiate for more than six months. The President may resign by tendering his/her resignation which is addressed to the Vice President. Resignation of the President is communicated by the Vice President to the Speaker of the Lok Sabha.

Powers of The President

As you know that President is Head of State and also Head of the Union Executive. He/She is the first citizen of India and the Supreme Commander of the defence forces of India. The powers, vested in the office of President, are actually exercised by the Union Council of Ministers in his/her name. Article 74 of the Constitution says that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall in the exercise of his functions acts in accordance with such advice. In accordance with the 44th Amendment, the President may ask the Council of Minister to reconsider such advice, but the President shall be bound to act in accordance with the advice tendered after reconsideration. Hence, the President is the nominal executive head whereas real head of executive is the Prime Minister, who is at head of Council of Ministers. It has rightly been said by Dr. B.R. Ambedkar that the President occupies the same position as the king in the British Constitution.

The powers of the President may be classified as:

Executive Powers

As per Article 53; the executive power of the Union shall be vested in the President and shall be exercised by him/her either directly or through officers subordinate to him/her in accordance with the Constitution. The President appoints the Prime Minister and other ministers on the advice of the Prime Minister. This appointment made by the President is the most important one as the Prime Minister alongwith the Council of Ministers, in the real sense, uses all the powers of the President.

The President appoints the Chief Justice and other judges of the Supreme Court and High Courts. For all such appointments, the Chief Justice of Supreme Court is consulted. But at present, in accordance with the 1993 decision of the Supreme Court as reinterpreted in 1999, the President is bound by the recommendations of a panel of senior most judges of the Supreme Court for all the judicial appointments. This panel of senior judges is called the ‘Collegium of the Supreme Court’. The President also appoints the Attorney General, the Comptroller and Auditor General of India (CAG); The Chief Election Commissioner and other Election Commissioners, the Chairman and other members of the Union Public Service Commission; Governors of all States, Lt. Governors of Union territories, India’s Ambassadors and High Commissioners in other countries. He/she also appoints the Chief of Army, Navy and Air Force. So, the President has the power to make most of the important appointments. All diplomatic work, international treaties and agreements are executed in his/ her name.

Legislative powers

The President is an integral part of the Parliament and enjoys many legislative powers. The President may summon the Parliament at least twice a year with a gap of not more than six months between two consecutive sessions. The President addresses both Houses of Parliament jointly at the first session after every general election and also at the commencement of the first session every year. The President can dissolve the Lok Sabha on the recommendation of the Prime Minister. The President has the power to nominate twelve members to the Rajya Sabha and two members of Anglo-Indian Community in the Lok Sabha. Every bill passed by the Parliament is sent to President for his/her assent to become a law. Without his/her assent, no bill can become a law. The President can issue an ‘Ordinance’ when the Parliament is not in session. This ‘Ordinance’ has the force of law and needs to be approved by both the Houses within six weeks after the commencement of the session, otherwise it gets lapsed automatically.

Financial Powers

The President is the custodian of Contingency Fund of India. This fund is kept by Union Government to meet any unforeseen expenditure. The President has full control over this fund. All money Bills are introduced in the Lok Sabha with the prior approval of the President. Annual budget and Railway budget are introduced only after the recommendation of the President. The President appoints the Financial Commission after every five years. The reports of the Controller and Auditor General of India (CAG) is placed before the President for necessary action.

Judicial Powers

The President of India appoints the Chief Justice and other judges of the Supreme Court and High Courts. The President is entitled to certain privileges and immunities. He/She is not answerable to any Court of Law for the exercise of his/her functions. During his/her tenure, no criminal proceeding can be initiated against him/her in any court of law. He/she can neither be arrested nor asked to be present in any Court of Law. Even for a civil case, a prior notice of two months is required.

The President can pardon a criminal, reduce the punishment or suspend, commute or remit the sentence of a criminal convicted by any High Court or the Supreme Court. He/She can even pardon a person convicted by Court Martial. His/Her power of pardon includes pardoning of a person with capital punishment. But the President exercises this power on the advice and the report of Home Ministry.

Emergency Powers

There are certain emergency provisions in the Constitution of India which give power to the President to proclaim emergency, if some kind of extraordinary situation arises in which normal functioning of the Constitution is not possible. Constitution has provisions under Artcile 352, 356 and 360 to deal with such abnormal and extraordinary situations which are also termed as emergency powers. The Constitution makers had envisaged three types of extraordinary situations. Firstly, when the security is threatened by war or external aggression or armed rebellion. Secondly, when it becomes difficult or not possible for the Government of a State to work or function in accordance with the Constitution or breaking down of constitutional machinery in a State or imposition of President’s Rule and thirdly, when the financial stability of the country is threatened. Let us discuss these provisions and powers of the President under different heads.

Proclamation of National Emergency

Under Article 352, the President is empowered to declare and impose emergency if the Union Cabinet consisting of Prime Minister and other ministers of Cabinet rank recommend in writing that such a proclamation may be issued. Only after getting the written communication, the President may impose emergency which can be recommended by the Cabinet on the basis of threat to the security of the country due to war, external aggression or internal armed rebellion. Declaration of National Emergency is put before the Parliament within a month of the proclamation for its approval. A proclamation so approved shall cease to operate after six months unless approved for the second time before the period of six months. The resolution needs to be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-third of the members of that House present and voting. This type of emergency has been declared in our country three times. First, it was declared on 26th October, 1962 when China had attacked our borders. For the second time it was declared on 3rd December, 1971 when Pakistan had attacked and for the third time on 25th of June 1975 due to internal disturbance. With the declaration of such emergency (National Emergency), the rights of the individuals and the autonomy of the States are affected. The federal character of the Constitution becomes Unitary and the authority and power of the Union Government increases and it can make laws on such subjects which are included in the State List. Secondly, the President of India can issue necessary directions to the States.

During the period of emergency, the President of India can modify the provisions regarding the distribution of revenue between the Centre and the States. Due to declaration of emergency on the basis of war or external aggression, the Fundament Rights or freedoms under Article 19 also get suspended and the Parliament can extend its tenure by one year at a time. So, it shows that the declaration of emergency by the President of India has various effects and adds to the powers of the President.

President’s Rule in the State

Under Article 356, the President of India is empowered to impose emergency in any State on receipt of a report from the Governor of the concerned State that a situation has arisen under which the Government of that particular State cannot be carried on as per the Constitution or break down of the constitutional machinery in the State. It is also called imposition of President Rule in the State. This emergency is also to be approved by both the Houses of Parliament within two months otherwise it shall cease to operate. It remains valid for six months and can be extended by another six months by the reviewed approval of the Parliament.

Under such emergency, the President can assume to himself/herself all or any India-II of the functions of the State Government or he/she may vest all or any of the functions with the Governor or any other executive authority. The President may dissolve or suspend the State Legislative Assembly. He also can authorise the Parliament to make laws for the concerned State or States.

Financial Emergency

Third type of emergency can be declared by the President under Article 360, if the President is satisfied that the financial stability of the country or any of its part is in danger. This type of emergency also needs to be approved by both the Houses of Parliament within two months of its declaration.

Under this emergency, the President may ask the States to reduce the salaries and allowances of its employees, may reserve all the money bills of the State for the consideration of Parliament, may give directions for the reduction of salaries and allowances of the judges of High Courts and the Supreme Court. It is the President who can make such proclamation under the Constitution of India but only on the written recommendation of the Council of Ministers. As President is the Head of Union Executive, so is the Governor as Head of the State Executive. Position of the Governor in State Government is similar to that of the President in the Union Government. Governor is the Head of the State Executive. All the bills passed by the State Legislative Assembly become law only after the assent of the Governor.

The Vice-president

The Vice-President is elected by the members of Lok Sabha and Rajya Sabha in accordance with the system of proportional representation by means of the single transferable vote and the voting shall be by sceret ballot. Certain qualification have been specified for the office of Vice-President. A citizen of India who has completed 35 years of age can be a candidate for the office provided he/she does not hold any office of profit.

Vice President holds the office for a term of 5 years. He/she may resign and leave the office even before completing his/her term or can be removed from his/her office even before completion of 5 years if a resolution to this effect is passed by a majority of members of Rajya Sabha and Lok Sabha separately.

Functions and Powers of the Vice President

The Vice President is the ex-officio Chairman of the Rajya Sabha and his/her functions as Chairman are similar to those of Speaker in the Lok Sabha. He/ She maintains the order of the house, gives time to the members to speak or ask the questions. In case of a tie he/she can cast his/her vote to reach a decision.

In Case of vacancy in the office of President, the Vice President automatically officiates as President for not more than six months. During this period he/she enjoys all the powers of the President. He/she also discharges all the functions of the President if called upon to do the same in case the President is unable to discharge his/her duties due to some temporary reason.

Prime Minister and The Council Of Minister

As discussed earlier the temporary or political part of the executive comprises of Prime Minister and the Council of Minister. The executive powers of the President are actually exercised by the Council of Ministers with Prime Minister. The President is the constitutional head of the State and nominal head of Government but the Prime Minister and his/her Council of Minister is the real head of the Government. As per Constitution of India, the Prime Minister is appointed by the President of India but the person such appointed must have the majority support of the Lok Sabha.

Appointment of the Prime Minister

After the general elections, if any one political party gets a clear majority (more than half of the total elected members) then the President invites the leader of a political party to form the government and appoints him/her as Prime Minister. If the leader of party is not an elected member of the Parliament, then he/she will have to be an elected member of Parliament (Lok Sabha or Rajya Sabha) within six months of his/her appointment. It is possible that no single party is able to get majority, then the President may invite a person who is likely to win the support of majority of members of the Lok Sabha. Once appointed the Prime Minister holds the office so long he/she enjoys the support of the majority of members in Lok Sabha. Usually the Prime Minister is the elected member and leader of the majority party in Lok Sabha; but it is not mandatory. The Prime Minister may not be a member of Lok Sabha and still may hold the office. It has happened in the previous years. Mrs. Indira Gandhi was not a member of Lok Sabha in 1966 when appointed as Prime Minister. Even Dr. I K Gujral was a member of Rajya Sabha and not of Lok Sabha in 1997. Our present Prime Minister Dr. Manmohan Singh is also not a member of Lok Sabha and belongs to Rajya Sabha. Hence, it is very clear that Prime Minister should be an elected member of either of the two houses.

Members of the Council of Ministers are appointed by the President on the advice of the Prime Minister. Prime Minister is free to choose any one to be the members of the Council of Minister. He/She allots the portfolios to the ministers and can change their portfolios as and when desired. If the person appointed, and is not a member of Parliament, then he/she will have to get himself/herself elected from either house of Parliament within six months of his/ her appointment.

At present there are three categories of Minister i.e. Cabinet Ministers, Ministers of State with Independent charges and Ministers of State. Cabinet Ministers are usually more important and attend the meetings of the Cabinet. Minister of States are next to the Cabinet Ministers but assist the Cabinet Ministers. There are some Minister of States with independent charge. All the Ministers are collectively as well as individually responsible and answerable to Lok Sabha.

Power and Functions of the Prime Minister

Prime Minister of India is the real head of executive and government. His/her position is very important and is the Chief Advisor to the President of India. Prime Minister constitutes the Council of Minister and the Ministers hold the office as long as they enjoy the confidence of the Prime Minister. The Prime Minister is head of the Council of Minister and can change the portfolio of any Minister or can recommend the removal of any Minister from his/her office as and when he/she desires.

The Prime Minister presides over the meetings of the Cabinet and Council of Ministers and conducts its proceedings. He/she is also the Chief spokesperson of the Government. He/she is responsible for the policies of the government. He/she is the architect of the foreign policy. All international agreements and treaties are made with the consent of the Prime Minister. Prime Minister is the link between the President and the Cabinet. He/she keeps the President informed about all the decisions and policies of the government/negotiations made at the international forums. He/she is the leader of the ruling party.

The Council of Ministers and the Cabinet

The Council of Minister comprises of all the ministers of all the categories but the Cabinet consists of only the Cabinet rank Ministers. Cabinet meetings are held regularly to take various decisions but it is rare to see a meeting of Council of Ministers. Normally, the policies and programmes of the government are decided in the Cabinet and not in the Council of Minister. A Constitutional Amendment has fixed a limit that the maximum number of Minister be appointed should not be more than 15 per cent of the total strength of Lok Sabha.

Powers and functions of the Cabinet and Council of Ministers

All the executive powers of the President are exercised by the Cabinet/Council of Ministers with Prime Minister. It prepares all the internal and external policies. The Cabinet/Council of Ministers prepares agenda for the session of the Parliament. It prepares the text of the Presidential address. The Cabinet/Council of Ministers is responsible for the issuance of Ordinance at the time when parliament is not in session. Even the sessions of the Parliament are convened as per the advice of the Cabinet/Council of Ministers.

Summary

The Union Government has three organs – the legislature, the executive and the judiciary. The executive is divided in two parts. Temporary executive (Comprising of President, Council of Minister) and permanent executive (Comprising of Government officers and officials). The President of India is the Head of executive and also the Head of the State. All the executive powers of the President are exercised by the Council of Ministers with Prime Minister at the head. The President of India is elected by an electoral college comprising of all the elected members of Parliament, all the elected members of Legislative Assemblies of all the States and the Union Territories of Delhi and Puduchery. India-II The election of the President is held in accordance with the system of proportional respresentation by means of single transferable vote system by secret ballot. The term of office of President is 5 years. The President of India can be removed from office by the process of impeachment. Vacancy in the office of President may be caused due to death or resignation or removal by impeachment. The President of India has legislative, executive as well as judicial powers. He/she makes most of the important appointments such as Chairman and members of UPSC; Attorney General of India, Comptroller and Auditor General of India, Chief Election Commissioner and other Election Commissioners. He/she is a part of Parliament and may summon and prorogue the Parliament. He/She addresses First Session of both the houses jointly every year. The President is the custodian of the Contingency Fund of India. All money bills and budget are introduced in the Parliament with his prior approval. He/She is not answerable to any Court of Law for the exercise of his/her power. The President can pardon a criminal, reduce the punishment of any one convicted. The President of India also has vast emergency powers.

Constitution of India also provides provision for the office of Vice President. The Vice President is the ex-officio Chairman of the Rajya Sabha and is responsible for the smooth functioning and order of the house. In case of vacancy in the office of President he/she acts as President till the elections are held for the President which are held within six months of such a vacancy.

Prime Minister and the Council of Ministers exercise the executive powers of President. Prime Minister is the Chief advisor of the President. He/she is a link between the President and the Parliament. The Prime Minister of India is the real head of executive and the government. His/her appointment is made by the President and he/she is the leader of the majority party or the coalition. The Prime Minister is the Chief spokesperson of the Government and also chief architect of the policies and programmes of the government. Prime Minister can appoint the Ministers, alter their portfolios, and/or can change the Ministers. The Prime Minister keeps the President informed about all the decisions of the Council of Ministers and also about the important happenings in government/ state.

Council of Ministers comprises of three categories of Ministers i.e. Cabinet Ministers, Ministers of State with Independent Charge and Ministers of State. Cabinet Ministers are generally senior leaders of the majority party. Decisions of the Council of Ministers are mostly taken by the Cabinet.

Created on 2021/01/24 18:19 by LawPage • Last modified on 2021/01/25 08:52 by LawPage