Executives

THE CONSTITUTION OF INDIA and

PROFESSIONAL ETHICS

CIP 81

The Executive

Class # 08 Week :Mar 10-17

Theory of separation of powers

Organs of State

Executive Legislature Judiciary

• Not rigid separation• Doctrine of Constitutional Trust

Advantages of Presidential Systems

• Stability:• Faster decision making• Role of Experts• Party divisions are not prominent• Separation of legislative and executive powers.

Parliamentary form of Democracy

Westminister modelCabinet is part of Parliament. Parliament provides the cabinet. No person can continue to be a minister

for > 6 months unless he is a member of the Parliament (either house}.

Control over the cabinet; Daily answerability; Financial control; Law making functions; Vigilance.

Cabinet is responsible to the Lok Sabha

The Executive

PRESIDENT OF INDIA

ExecutiveCouncil of Ministers

PARLIAMENT

RAJYA SABHAMAX 250 Nos

LOK SABHAMax 552 Nos

ELECTED 236 NOMINATED 12State ≤ 530

≤ 20 UT≤ 2 Anglo (Nomi)

The Executive

• Art 52: There shall be President of India. (Head of the State and also Govt.). of not only political system but also of the National life.The executive authority of the Union is vested in the

President of India • Who exercises it directly or through the officers

subordinate to him.

• Art 53:All Executive Power are vested in him.Exercises this power directly or subordinate officers.Real & not notional Executive.

Cabinet advises him. He is not bound by their advises

The Executive

• Art 54: ELECTION OF THE PRESIDENT (Indirect Election)

Electoral college : College of elected members

Elected Members of both the Houses of Parliament.

Elected Members of Legislative Assemblies of the States.

Except Nominated members and members of Legislative councils.

55(3) Proportional representation by means of a single

transferable vote----secret ballot. ‘transferable vote’ = excess votes( after quota) of a

candidate is distributed amongst the rest of the candidates.

The Executive• 70th Amendment 1995, members of National capital of Delhi and

UT of Pondicherry• Art 55: Manner of election of President.

• Ex: say Karnataka has 50,00,00,000 population And 250 electedmembers in Legislative assembly.

Value of 1 MLA vote=50.00,00,000/(250x1000)=2000Total value of MLA votes in Karnataka =250x2000=500,000

1000

1X

AssyL. the in members elected num Total

Population StateMLA Vote elected 1 of Value

MPs elected of number Total

MLAs the all to allotted votes of number Toal VoteMP elected 1 of Value

1

1 seats of Number

cast votes valid of number TotalQuota

The Executive• The President shall not be a member of either of the

houses of the Parliament.• If an MP becomes President, he is deemed to have

vacated his MP seat and the seat becomes vacant on the day he enters office as President.

• The emoluments and the allowances of the President as decided by the Parliament and can not be decreased during his term of office.

• Rs. 50,000 per month as salary. Rs. 3,00,000 as annual pension (1998).

President’s Term of office• Art.56: 5 years from the date he enters office.• President, is eligible to be re-elected any number of

times under the constitution. • He can resign at any time by addressing the resignation

letter to the Vice President.

Art. 58: Qualifications

Any person who:(i) is a citizen of India,

(ii) has completed the age of 35 years,(iii) is qualified for election as a member of Lok- Sabha,

(iv) does not hold office of profit under Government of India or Government of any State or under any local authority,

can contest election for the office of the President of India.

• However, President, Vice President, the Governor of any State or a Cabinet Minister, whether at the Centre or the State, is not debarred from becoming a

• candidate for contesting the election for the office of the President.

Art 60: oath of office

“to devote himself to the service and well being of the people of India.”compels him “to preserve, protect & defend the Constitution.”

Securing the supremacy of the Constitution.

• Before entering upon his office, the President is required to take an oath in a prescribed form in the presence of Chief Justice or

• the senior most Judge of the Supreme Court of India.

Art.61: Procedure for his Removal (Impeachment)

• He can be removed at any time from his office through the process of impeachment for violation of the Constitution.

For this purpose a charge must be leveled

in either House of the Parliament.

It must be in the form of a resolution

signed by at least one fourth of the total number

of members of that House and

moved only after giving a clear notice of fourteen days.

If the resolution is passed by a majority of not less than two-thirds of the total membership of that House, the matter goes to the other House that investigates it.

IMPEACHMENT OF THE PRESIDENT

HOUSE 1 >25% SIGN RESOUTION

__

PASS RESOLUTION WITH 2/3 MAJORITY

PRESIDENTIF VIOLATES CONSTITUTION

HOUSE 2INVESTIGATES

PRESIDENT HAS RIGHT TO BE PRESENT OR TO BE REPRESENTED

-----------------------------------------------2/3 MAJORITY PASS RESOLUTIONPRES STANDS TO BE IMPEACHED

notice of fourteen days

Art.61: Procedure for his Removal (Impeachment)

• The President shall have the right to appear or to be represented at such an investigation.

• If, as a result of such investigation, a resolution is passed by a majority of not less than two-thirds of the total membership of that House (which investigated the charges), stating that the charge has been sustained, then the President stands removed from his office from the date on which such a resolution has been passed.

•

Executive

power of

president

Administrative power

Military

power

Legislative power

Judicial

power

• President is the head of the executive and administration

• He appoints the PM and other ministers on the advice of PM

•Execution of laws

•Administration of Departments of Government

•Command of the armed forces

•Conduct of war

•Summoning, prorogation etc. of the legislature

•Initiation and assent to legislation etc.

•Granting of pardon, reprieves etc. to persons convicted of crime

Executive Powers• All the executive functions of the Union

government are carried on in the nameof the President.

It is he who appoints the Prime Minister. According to the Constitution he can appoint only such person to the post about whomhe feels that he would be able to command the confidence of the majority of the members of Lok Sabha.

Executive PowersART.77(1): All the executive functions of the Union

government are carried on in the nameof the President.

ART.77(2): The President can make rules specifying the matter in which the orders and other instruments made and executed in his name shall be authenticate.

The validity of an order or instrument which is so authenticated shall not be called in questionon the ground that it is not an order executed by the President. ART.77(2):

ART.77(3): The President shall make rules for more convenient transaction of business of the Government of India, and for allocation among the Ministers, of the said business.

Executive Powers

. Appoints the

Prime Minister and council of Ministers.

Attorney-General of India, and determines his remuneration.

Attorney-General holds the office during the pleasure of the President.

Comptroller and Auditor-General of India,

Chief Election Commissioner,

Other Election Commissioners,

Chairman and members of UPSC

Governors of State,

Chairman and members Finance Commission etc.

Executive Powers

Art. 78(a):

can seek from the PM information relating to the administration of affairs of the GOI.

and proposal for legislation

Art. 78(a):

can require the PM to submit for consideration of the council of Ministers, any matter on which a decision has been taken by a minister but the council has not considered

Art. 338:

Can appoint a commission to investigate into the condition of SC’s & ST’s and other backward classes.

Executive Powers

Can appoint

a inter-state council to promote Center-State and inter-state co-operation.

Art. 239:

Directly administers the Union Territories.

Legislative Powers

President being integral part of the Parliament1) Art 80:

Nominates 12 members to Rajya sabha.Special knowledge or practical experience in

Literature Science Art & Social service2) Art 331: Nominates 2 members to Lok sabha from Anglo-Indian

community, if he is of the opinion that they are not adequately represented in the house.

3) Art 80:The President can from time to time summon or

prorogue either house of the Parliament and dissolve Lok sabha.

Summon or prorogue (Art.85)

• Summon: It is a process to call upon the members of the house to the session.

• Prorogue: The act of bringing a session of Parliament or other Legislative Assembly to an end.

4) Art:86(1)

May address either House of Parliament or

Summon the joint sitting of both Houses of Parliament which is presided over by the Speaker of the Lok Sabha.

5) Art:86(2)

May send message to either House of Parliament, whether with respect to a bill pending in the Parliament or otherwise

Legislative Powers (contd.)

6) Art 87:

May address either House of the Parliament at the commencement of the FIRST session after each general election and at the commencement of the FIRST session each YEAR.

7) Art 91:

May appoint any member of the Rajya Sabha to preside over its proceeding when both offices of the Chairman and Deputy Chairman falls vacant.

(vice-president is the ex-officio Chairman of Rajya Sabha)

(deputy chairman elected by members of Rajya Sabha)


8) Art 95:

May appoint any member of the Lok Sabha to preside over its proceeding when both offices of the Speaker and Deputy Speaker falls vacant.

9) Art 103:

The President has the power to decide on the questions as to disqualification of members of Parliament, in consultation with Election commission and the DECISION of the President is FINAL.


10) Art.111:

When a bill has been passed by both the Houses of the Parliament, it shall be presented to the President,

the President can

i) Give assent to the bill, or

ii) withhold his assent to the bill (veto power), or

iii) Return the bill (if it is not money bill) for reconsideration of the Parliament.

11) Art.123:

Can promulgate ordinances when Parliament is not in session and if he is satisfied that circumstances so exist which demands immediate action.


However such ordinances must be approved by the Parliament within six weeks from its reassembly.

He is also empowered to withdraw such ordinances at any time.

12) Lays the report of the Comptroller and Auditor-General, UPSC, Finance commission and others before the Parliament.

Comptroller : A person in charge of accounts

-- official in charge of NATIONAL Audit Office, whose duty is to examine the accounts of ministries and Government departments , and to advice the Public Accounts Committee.

Financial PowersArt.112: Every financial year the Finance Minister, on behalf of

the President, lays an Annual Financial Statement (estimated receipts and expenditure of GOI) before both the Houses of Parliament.

Art.117:

A Money Bill cannot be introduced ormoved in Lok Sabha except on the recommendation of the President.

Art.113(3):

No demand for a grant can be made except on the recommendation of the President.

Art.267:

A Bill involving expenditure from the Consolidated Fund of India cannot be passed by either House of Parliament unless President has recommended for it to that House.

Financial Powers

Art.148:

Appoints Comptroller and Auditor-General of India, to examine the accounts of Union and State Govt.s

Art.280:

The President constitutes a Finance Commission after every five years to recommend the distribution of taxes between the Centre and State.

The Judicial Powers

Art.124(2): The President appoints the Chief Justice and other

Judges of the Supreme Court.

Art.126:

The President may appoint an acting chief Justice when the office of the chief Justice of India is vacant or he is absent or otherwise unable to perform the duties of office.

Art.143:

The President can seek advice from the Supreme Court on any question of law or fact. Such advice is not binding on the President.

The Judicial Powers

Art.72: The President shall have power to grant

Pardons: (sets free a person from all punishment imposed on him by a court of law for some offence.)

Reprieves: (stay of execution of a sentence for a temporary period )

Respites : (awarding a lesser sentence instead of the penalty prescribed law, )

Remissions (reducing the amount of sentence without changing its character )

of punishment , or to suspend , remit or commute the sentence of any person convicted of any offence…..

The Judicial Powers (……..contd,)

a) In all cases where the punishment or sentence is by Court Martial.

b) In all cases where the punishment or sentence is for an offence against any law relating to matter to which the executive power of the Union extends.

c) In all cases where the sentence is sentence of death.

The Military PowersIs the Supreme Commander of the defense forces of

India.1) In this capacity, he appoints Chief of Army, Navy and

Air-force.2) Can declare war or conclude peace treaties subject

to the approval of the Parliament.

Diplomatic Power / Powers regarding Foreign Affairs

• President is the FIRST CITIZEN of India.• All the diplomatic business is conducted in the name

of the President.• He appoints ambassadors and other diplomatic

agents of India accredited to other countries.

(sends and receives Diplomatic Reps)• Diplomatic agents accredited to India present their

credentials to the President. • All international treaties and agreements are also

conducted in his name but they are to be ratified by the Parliament later on.

Emergency Powers

President can Proclaim

• National Emergency (Art 352)

• State Emergency (Art 356)

• Financial Emergency (Art360)

Powers of the President during National Emergency

1. Art.353 : President can give directions to any state, with regard to the manner in which its executive power is to be exercised.

2. Art.354 : The President can modify the pattern of distribution of Financial Resources between the union and the States.

Powers of the President during National Emergency

3. (Art.358) When proclamation is made on the ground of war or external aggression right to six freedoms can be suspended

4. (Art.358) The President Can suspend the Fundamental rights of citizens except the right to life to personal liberty (Art.21) and The right to protection of convictions for offences(Art.20).

Powers of President during State Emergency

1) The President may assume to himself all or any of the functions of the State Govt and all or any of the powers vested in or exercisable by the Governor or any body or authority in State other than the Legislature of the State [Art.356(a)]

2) The President can declare that the Powers of the State Legislature shall be exercisable by or under the authority of the Parliament [Art.356(b)].

3) Parliament can confer on the President the State Legislature to make laws [Art.357(a)].

Powers of President during State Emergency

4) The President can authorise , when the LokSabha is not in session, expenditure from the Consolidated Fund of the State, pending the sanction of such expenditure by the Parliament. [Art.357(c)]

Powers of President during Financial Emergency

1) The President can give directions to the State to observe the canons of financial propriety [Art.360(3)]

2) The President can issue directions for the reduction of salaries and allowances of all or any class of persons. [Art.360(4)(a)(i)]

Powers of President during Financial Emergency

3) The President can require that all money bills and other financial bills passed by the State to Legislature be reserved for his consideration [Art.360(4)(a)(ii)]

4) The President can issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union, including the judges of the Supreme Court and the High Court. [Art.360(4)(b)]

No financial emergency declared so far in India.

THE VICE-PRESIDENT

• Similarities of the office of the President and Vice-president.

Qualification for Election:Must be a citizen of India.Must have completed the age of 35 years.Must not hold any office of profit under the GOI or of a State of any other authority under the control of either of the Governments.

Election:System of Proportional representation by means of

single transferable vote.Term of office: 5 yearsRe-election : any number of times.

THE VICE-PRESIDENT

Dis-Similarities of the office of the

President and Vice-president.

President Vice-president.

Qualification for Election:

Must be qualified for election of House of People (LokSabha)

Must be qualified for election of House of People (Rajya Sabha)

Election:

Electoral College

a) Both Houses of Parliament

b) Legislative Assemblies of States

Both Houses of Parliament

Removal Impeachment Resolution passed by Council of state (RS) Majority and agreed by House of People (LS)

THE VICE-PRESIDENTDissimilarities of the office of the President and Vice-president.

President Vice-president.

Functions Executive power of the Union vested in him and he exercise it, on the advice of the Council of Ministers of the Union

No special functions

Acting President

Acts as ex-officio Chairman of Council of States (Rajya Sabha)

Central Council of MinistersArt 74(1): The Constitution provides for a Council of Ministers,

with Prime Minister as its head, to aid and advise the President. The President is required to act according to its advice. PM shall be at the head of Council Of Ministers– head of Union Government

Art 75(1): The Prime Minister shall be appointed by the President

first the and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

Art.75(2):Ministers shall hold office during the pleasure of the President.

Art.75(3):The COM shall be collectively responsible to the LS.

(even if some members may be from RS)

Central Council of MinistersArt 75(4):Before a Minister enters upon his office, the President

shall administer him the Oath of office and of secrecy according to the forms set out for the purpose in the THIRD SCHEDULE.

Art 75(5):A minister who for any period of six consecutive

months is not a member of either House of Parliament shall at the expiry of that period shall cease to be a Minister.

The President appoints such a person as Prime Minister about whom he feels that he would be able to get support of the majority of members of Lok Sabha.

If a party commands absolute majority in Lok Sabha and elects its own leader, the President has to appoint him as the Prime Minister.

Council of Ministers.

If no party commands absolute majority but two or more than two parties combine together and form an alliance with a common programme

and that alliance is able to command absolute majority in Lok Sabha, the leader of such an alliance is called upon by the President to assume the office of Prime Minister.

The President then asks the Prime Minister to give a list of persons whom he would like to appoint as members of the Council of Ministers.


• The President has to appoint such persons as Ministers, who have been so recommended by the Prime Minister.

• There are three categories of Ministers–

Cabinet Ministers,

Ministers of State and

Deputy Ministers.

Cabinet is a small body of Ministers who occupy a prominent position in the party and hold important portfolios. Hold weekly meetings

It meets off and on and takes all important policy decisions of the government.


A Cabinet Minister is the head of one or more departments.

The Ministers of State, again, are of two categories.

Some Ministers of State have an independent charge of their Ministry while others act under the supervision of a Cabinet Minister.

Sometimes they may be called to attend meetings of the Cabinet when an important issue pertaining to their department is discussed.

Deputy Ministers work under the supervision

of either a Cabinet Minister or a Minister of State.

Their main function is to assist the Cabinet Minister or Minister of State, as the case may be, in performing their functions.

MINISTRIAL RESPONSIBILITIES

1) Individual Responsibility: Art.75(2):Ministers shall hold office during the pleasure of the President.

Ministers are individually responsible to the Executive Head and shall be liable to dismissal even when they may have the confidence of the Legislature.On the advice of PM of course.

2) Responsibility: Art.75(3):The COM shall be collectively responsible to the

LS. (even if some members may be from RS)COM has Constitutional Obligation to resign on

losing the confidence of the house.Art.74(1):PM shall be at the head of Council Of

Ministers– head of Union Government

POWERS AND FUNCTIONS OF COUNCIL OF MINISTERS

1) LEGISLATIVE FUNCTIONS: The COUNCIL OF MINISTERS Controls the Legislature of the Union Government.It formulates, submits and explains the policy of the Parliament for approval. Ministers

introduce the Legislative Bills before Parliament. 2) Financial Powers: Controls the Financial Policy.

Finance Ministers submits the Budget before the Parliament.

3) Executive Powers: COM is the Executive of the Union. Ministers– preside over various depts. of the Govt. and give directions.

Cabinet – co-ordinate & settle conflicts-- formulate defence and foreign policies of the country.-- execute 5 Year Plans.

• It may be that an individual Minister may differ on a particular decision but he cannot express it publicly unless he first submits his resignation from the Council of Ministers.

The Council of Ministers is collectively responsible to the Lok Sabha. It implies that a censure

motion against one Minister amounts to no confidence against the whole Ministry in which case all the members including the Prime Minister have to go out of office.

• The members of both the Houses of Parliament keep control over Ministers by asking questions and supplementary questions and by moving adjournment motions, call : attention notices, and by appointing various

various committees such as

Public Account Committee,

Estimates Committee,

Committee on Government Assurances,

Committee on Public Undertakings,

Committee on Privileges, Committee on

Subordinate Legislation etc.• The Council of Ministers takes policy decisions on all

matters of administration. • It supervises the execution of all policy decisions.

It prepares Bills and pilots them in the two

Houses of Parliament so that they become laws.

It prepares the Budget and regulates income and expenditure of the Union Government.

It formulates foreign policy and conducts its affairs with other countries.

Position of The Prime MinisterPresident is the Head of the STATE, while the Prime

Minister is the Head of the Government.Art 74(1): The Constitution provides for a Council of

Ministers, with Prime Minister as its head, to aid and advise the President.

The President is required to act according to its advice. PM shall be at the head of Council Of Ministers– head of Union Government.

Lord Morely: ‘Primus inter pares’(First among Equals)

Sir William Vernon: ‘Stellas luna minores’ (“Moon among Stars”).Harold Laski: “The pivot of the whole system of

government.”

Position of The Prime Minister• As a result of these considerations, the choice of the

Ministers for the Prime Minister becomes very limited.

• By and large, it can be stated that about halfthe members of Council of Ministers are there because the Prime Minister wants them,

but about half the members are there because the Prime Minister has no other alternative.

• It is because of these things that the Prime Minister is called primus inter pares which means that he is first amongst the equals.

• The Council of Ministers meets very rarely. • It is the Cabinet that meets frequently. • The Cabinet takes all the major policy decisions.• But the Council of Ministers takes the responsibility

for those decisions.

Position of The Prime Minister• The Prime Minister occupies a unique position

in the Council of Ministers. It is he who chooses other Ministers.

• Whenever there is a conflict between a Minister and the Prime Minister, the Minister has to give way to the Prime Minister.

• The Prime Minister may ask any Minister to resign from his post.

If he does not do so, the President may remove him from Council of Ministers on the advice of the Prime Minister.

• The Prime Minister presides over meetings of Council of Ministers.

Powers & Functions The Prime Minister

Art (78): In relation to President(principle channel of communication)PM communicates to the President all decisions of the Council of Ministers relating to administrative affairs of the Union & proposals for Legislations.

• -do- when President calls for it.Art. 78(a): If President requires the PM to submit for consideration

of the council of Ministers, any matter on which a decision has been taken by a minister but the council has not considered

• Whenever the President wants to communicate to the Council of Ministers, he does so through the Prime Minister.

In relation to Parliament: PM is Leader of LokSabha.1. can Recommend dissolution of LS to president 2. As chief of the Govt. announces policies of the Govt.


on the floor of the House.

• It appears from the above that the Prime Minister is very powerful but actually it is not so.

• While forming his Council of Ministers he has to take a number of considerations such as representation of different sections of society, different geographical regions, different ideological groups in the party etc.

In relation to Council of Ministers:

1. Recommends persons to be appointed as ministers by the President.

2. Allocates & reshuffles various portfolios to ministers.

3. Can ask a minister to resign or advise President to dismiss him.

4. PM presides over meetings of Council of Ministers & influences its decisions.


In relation to Council of Ministers:

5. He guides, directs, controls and co-ordinates the activities of all ministers.

6. He can bring about the collapse of he Council of Ministers by resigning from office.

Miscellaneous Powers:

1. Chairman of Planning Commission, NDC-National Development Council, National Integration Council, and Inter-State Council.

2. He plays significant role in shaping the foreign policy of the country.

3. He is the chief spokesman of the government.

4. He is the crisis manager-in-chief at the political level during emergencies.

5. As a leader of the Nation, PM meets various sections of people in different states and receives memoranda from them regarding their problems, and so on.


Miscellaneous Powers (…contd):

6. Leader of the Party in Power.

7. He is the Political head of State.

Executives

Education

Transcript of Executives