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Constitutional Position Of The President And Governor (Relation With The Council Of Ministers)

President is the executive head of India, while the Governor of a State. The position and powers of the two are more or less similar.

Election of the President

The President is elected by an electoral college, in accordance with the system of proportional representation by means of the single transferable vote by secret ballot.' The Electoral College consists of:
  1. Elected members of both Houses of Parliament, and
  2. elected members of Legislative Assemblies of States (Art 54).

Two cardinal principles in this regard are:

  1. There shall be uniformity of representation of the different States at the election and parity shall be maintained between the States as a whole and the Union (Art. 55), and
  2. The vote of the States, in the aggregate, in the electoral college for the election of the President, shall be equal to that of the people of the country as a whole.
A person who has ten proposers and ten seconders. Presidential and Vice-Presidential Elections Act, 1952 can be nominated as a candidate for President's election. President's election cannot be prevented or suspended on the ground that any vacancy exists in the electoral college electing him viz. when a State Assembly has been dissolved under Art. 356 and its members are unable to participate in the election. The term of office of President is 5 years and he is eligible for re-election. Chiefs Justice of India or in his absence the senior-most Judge of the Supreme Court administers oath or affirmation to the President.

Qualifications for Election as President

The Constitution lays down both positive as well as negative qualifications: Positive Qualifications. A person must (Art. 58)
  1. be a citizen of India,
  2. have completed the age of 35 years, and
  3. be qualified for election as a member of the Lok Sabha.

Negative Qualifications: A person should not:

  1. hold any office of profit (other than that of the President and the Vice-President of India, the Governor of a State or a Central or State Minister),
  2. be a member of either House of Parliament or a House of the Legislature of any State.

Powers of the President

  1. Executive Powers:
    1. All executive powers are exercised by him directly or through subordinate officers.
    2. He is ex-officio Supreme Commander of the Defence Forces. He can declare war and make peace.
    3. He makes all important appointments such as those of the Governors, Lt. -Governor, Chief Justice and Judges of the Supreme Court and High Courts, Prime Minister and Union Ministers, Chief Election Commissioner, Comptroller and Auditor-General, Members of the U.P.S.C., Members of Finance Commission and Inter-State Council, Commissioners of SCs/STs/ Backward Classes and Minorities, etc.
    4. He makes rules for the more convenient transaction of business of the Government and allocates among Ministers such business.
    5. He must be informed of all decisions of Council of Ministers.
    6. He governs the Union Territories through the Administrators or Lieutenant Governors. (vii) He has the power to remove his Ministers individually; the Attorney-General of India; the Governor of a State; the Chairman or Members of the Public Service Commission (both Union and State); a Judge of the Supreme Court or of a High Court; or an Election Commissioner.

  2. Legislative Powers
    1. President has the power to summon, prorogue and address the Parliament. He also dissolves the Lok Sabha. He can also summon a joint sitting of both Houses of Parliament in case of a deadlock between them.
    2. He may send messages to either House of Parliament in regard to any Bill or to any other matter.
    3. Laying Reports before the Parliament viz. Annual Financial Statement, Report of the Comptroller and Auditor-General, Annual Report of the U.P.S.C., etc.
    4. There are certain Bills which cannot be introduced in the Parliament without the previous sanction or recommendation of the President:
      1. creation or reorganization of States,
      2. Money Bill,
      3. a Bill involving expenditure from the Consolidated Fund of India,
      4. a Bill affecting taxation in which States are interested, and
      5. a Bill imposing restrictions on freedom of trade and commerce.
    5. No Bill can become an Act without the President's signature. Except for Money Bills, he can return the other Bills for reconsideration of the Parliament. If, however, the two Houses pass the Bill again with or without amendments (suggested by the President) and the Bill is presented to the President, he cannot withhold assent from the Bill. Thus, the veto power' of the President is limited.
    6. When Parliament is not in Session, he may promulgate Ordinances.
    7. The President nominates 12 members to Rajya Sabha from persons having special knowledge of arts, science, literature or social services. He also nominates 2 Anglo Indian members to the Lok Sabha, if, in his opinion, that community is not adequately represented.

  3. Financial Powers
    1. No Money Bill can be introduced in Parliament without President's previous sanction.
    2. He can make advances out of the Contingency Fund of India to meet the unforeseen expenditure (viz. on account of floods, droughts, war, etc.) pending approval of Parliament.
    3. He has the power to determine the State's share of proceeds of the income-tax and the amount of yearly grants-in-aid to certain States
    4. He appoints the Finance Commission.
    5. He causes to be laid before Parliament the Annual Financial Statement (Budget') at the beginning of the financial year.

  4. Judicial and Diplomatic Powers
    1. The President is empowered to pardon offenders or to remit, reprieve, suspend or commute their sentences.
    2. He appoints the Ambassadors and receives the credentials of the foreign diplomatic representatives.

  5. Emergency Powers
    1. When the security of the country is threatened, he can proclaim national emergency.
    2. He also promulgates the President's rule in States.
    3. He can also promulgate financial emergency.

Nature and Extent of Executive Power of President

The Union Executive consists of the President, the Vice-President, the Council of Ministers and the Attorney General. Art. 52 provide that there shall be a President of India. The executive power of the Union shall be vested in the President (Head of the State) (Art. 53). All executive functions are executed in the name of President; authenticated in such manner as may be prescribed by rules to be made by President (Art. 77).

The President has wide administrative powers (to appoint and dismiss officers, ministers, etc.), military powers, and diplomatic and legislative powers. Article 73 provides that executive power of 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 or agreement. Thus, executive power is co-extensive with legislative powers of Union.

In Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549), it was observed:
Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. It is neither necessary nor possible to give an exhaustive enumeration of kinds and categories of executive functions. Executive power is not confined to administration of laws already enacted but it includes determination of governmental policy, initiation of legislation, maintenance of law and order, promotion of social and economic welfare, foreign policy, etc. in short, carrying on the general administration of State.

Position of President: Relation between President and Council of Ministers

The President must exercise powers according to the Constitution. Art. 53(1) which vests the executive power of the Union in the President provides that the power may be exercised by the President either directly or through officers subordinates to him. For this purpose, Ministers are deemed to be officers subordinate to him.

Article 74(1) provides that there shall be a Council of Ministers with Prime Minister at the head, to aid and advise President in exercise of his functions.

Art. 74(2) lays that question whether any, and if so, what advice was tendered by minister to the President shall not be inquired into in any court. Thus, relation between President and Council of Ministers are confidential. Prior to the 42nd Amendment, there was no clear provision in the Constitution that President was bound by ministerial advice.

This amendment amended Art. 74 which make it clear that President shall be bound by the advice of Council of Ministers. However, by 44th Amendment, President has been given one chance to send back advice to the Council of Ministers for reconsideration. However, President shall act in accordance with advice tendered after such reconsideration. Article 75(1) says that Prime Minister shall be appointed by President and other Ministers shall be appointed by President on the advice of Prime Minister.

Art. 75(2) lays that Minister shall hold office during the pleasure of President. Art. 75(3) lays that Council of Ministers shall be collectively responsible to the Lok Sabha. Collective responsibility implies that Council of Ministers is responsible as a body for the general conduct of the affairs of the government.

If a no-confidence motion is passed against any one Minister, the entire Council of Ministers must resign. Clause (1A), added to Art. 75(1) by the Constitution 91st Amendment (2003), provides that the size of the Council of Ministers including the Prime Minister shall not exceed 15 per cent of the total number of the members in the Lok Sabha.

President's Discretion: A Limited One According to Dr. Ambedkar:

Under the Draft Constitution, the President occupies the same position as the King under the English Constitution. He is the head of State but not of the executive. He represents nation but does not rule the nation. His place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known. He can do nothing contrary to the advice of Council of Ministers nor can do anything without their advice.

Alladi Krishna Ayyar, a member of the Drafting Committee of the Constituent Assembly, observed that the word President used in the Constitution merely stands for the fabric responsible to the Legislature. What he means by the term President' is the Union Council of Ministers which is declared to be collectively responsible to the House of People i.e. Lok Sabha. Except in certain marginal cases, President shall have no power to act in his discretion in any case:
  1. Council of Ministers is responsible to Lok Sabha. If the President ignores the advice of Ministers enjoying the confidence in Lok Sabha, it may resign and thus create a constitutional crisis. It is obligatory on the President to have always a Council of Ministers.

  2. If he dismisses any Ministry having support of Lok Sabha, they may bring impeachment proceeding against him, this serves as a deterrent against the President assuming real powers.

  3. Appointment of Prime Minister - President's discretion is limited. Thus, when a single party gains an absolute majority and has an accepted leader, President's choice of selecting Prime Minister is a mere formality.

Similarly, if on the death or resignation of a Prime Minister, the ruling party elects a new leader, President has no choice but to appoint him as Prime Minister. However, if no single party gains absolute or workable majority and a coalition government is to be formed, the President can exercise a little discretion and select the leader of any party who, in his opinion, can command the support of the majority in the Lok Sabha and form a stable government (Shamsher Singh's case).

However, even in such a situation (i.e. the case of hung parliament), the President's action is guided by certain conventions. First, in the case of defeat of ruling party in the lower House by a no- confidence motion, the President should invite the leader of the opposition. Secondly, where none of the parties has attained absolute majority in the Lok Sabha, the President may invite the leader of the single largest party to form the government. Thirdly, if two or more parties form a coalition before the election and secure absolute majority in the election, the leader of such a coalition should be invited. Fourthly, the President should invite the leader of the coalition or alliance formed after the election.

(iv) Dismissal of a Minister/or Cabinet:
Though Ministers hold office during the pleasure of President, but President is bound to exercise his pleasure in accordance with Prime Minister's advice. Thus, it is a power of Prime Minister against his (undesirable) colleagues. (It is, however, necessary to realise the idea of collective responsibility). Collective responsibility' implies that Council of Ministers is responsible (to the Lok Sabha) as a body for the general conduct of the affairs of the government.

The entire Council of Ministers is made collectively responsible to the House and that ensures the smooth functioning of the democratic machinery. The Council of Ministers work as a team and all decisions taken by the Cabinet are the joint decisions of all its members. No matter whatever be their personal differences of opinion within the Cabinet, but once a decision has been taken by it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside. Lord Salisbury explained this principle of collective responsibility thus: For all that passes in the Cabinet each member of it who does not resign is absolutely irretrievably responsible, and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues.

Thus, as soon as a. Ministry loses the confidence of the House or is defeated on any question of policy, it must resign. If a no-confidence motion' is passed against any one Minister, the entire Council of Ministers must resign. If any Minister does not agree with the majority decision of the Council of Ministers, his option is to resign or accept the majority decision. If he does not, the Prime Minister would drop him from his Cabinet and thus ensure collective responsibility. This is a great weapon in the hands of the Prime Minister through which he maintains unity and discipline in his colleagues (Cabinet).

Dr. Ambedkar said:
The Prime Minister is really the endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility. It needs to be clarified that along with the principle of collective responsibility the principle of individual responsibility of each Minister to the Parliament also works. Every Minister has to answer question regarding the affairs of his department in the Parliament. He cannot throw the responsibility of his department either on his officials or another Minister. If the Minister has taken action with the Cabinet's approval the principle of collective responsibility applies and the whole Cabinet should support and defend his action. However, if the Minister has taken action without the Cabinet's approval, the Cabinet may or may not support him.

In case of non-support, the Minister has to go and not the whole Cabinet. But the Cabinet cannot retain the Minister and at the same time contend that the responsibility is all his (Ram Jawaya v. State of Punjab AIR 1955 SC 519). There is no doubt about the President's power to dismiss ministry that has lost the confidence of Lok Sabha. But, can President dismiss such ministry, which though enjoys the confidence of Lok Sabha, but has lost the support of the people. In India, such Ministry enjoying the confidence of Legislative Assembly have been dismissed in various States. It is no violation of constitutional practice if the President dismisses a Ministry when he is satisfied on reasonable grounds that it has lost the support of the people.

The will of the people must in the end prevail and President will be violating the Constitution if he allows discredited government to continue only because it has succeeded in managing to keep the members of legislature in its favour. But the real problem is how to know the will of people (press views, by-elections results, etc., may be used, however these methods are not free from difficulties). Nevertheless, if the President is clear and his decision is based on reasonable and proper grounds, there should be no difficulty in taking the action.

(v) Dissolution of Lok Sabha:
So long as Prime Minister and his cabinet enjoys confidence, the President is bound to dissolve Lok Sabha only when advised by Prime Minister. But, this advice will not be binding on the President, when Prime Minister loses his majority or unable to prove his majority or a vote of no confidence passed against him or when he is not facing the Parliament, but President has proof that ruling party does not have a majority (Shamsher Singh's case).

In the above circumstances, the President must try to find out whether any alternative ministry can be possible.

(vi) Communication with Prime Minister:
Art. 78 provides that it shall be the duty of Prime Minister to communicate to the President all decisions of Council of Ministers relating to administration of affairs of Union and proposals for legislation; to furnish such information relating to administration as President may call for; and if the President so requires to submit for the consideration of Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Cabinet.

This is very necessary for the successful working of the principle of collective responsibility. A controversy regarding the President's position and his relation with Prime Minister raised during the tenure of President Zail Singh and Prime Minister Rajiv Gandhi. The controversy mainly arose due to mistrust created by Prime Minister not meeting the President frequently and keeping him informed about the affairs of Government particularly Bofors gun deal. The President has a right to know what his government is doing or proposes to do.

But the question how much information is to be furnished by Prime Minister to the President is his prerogative. This should be a matter to be resolved by mutual confidence and cooperation between the two.

(vii) The working of the Constitution since 1950 has established that President is a nominal or constitutional or formal Head and the real executive power vests in the Council of Ministers.

Supreme Court's Views
The Supreme Court has consistently taken the view that position of President (and Governors) under the Constitution is similar to the position of Crown under the British Parliamentary system. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. The power of the sovereign (or king) is conditioned by the practical rule that Crown must find advisers to bear responsibility for his action.

This rule of English law is incorporated in our Constitution also. It is the essence of Parliamentary Government that the real executive powers should be exercised by the Council of Ministers responsible to Lok Sabha. The Council of Ministers enjoying a majority in the legislature concentrated in itself the virtual control of both executive and legislative functions.

Ram Jaway v. State of Punjab
(AIR 1955 SC 549), Shamsher Singh v. State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard. Wherever the Constitution requires the satisfaction of President or Governor, for example Article 213, 311(2)(c), 356,360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government. It is the satisfaction of Council of Ministers on whose aid and advice the President or Governor generally exercises all his powers.

Whether the functions exercised by the President are the functions of the Union or the functions of the President, they have equally to be exercised on the aid and advice of the Council of Ministers except those which he has to exercise in his discretion (Shamsher Singh v. State of Punjab AIR 1974 SC 2192).

These few well-known exceptions (according to Krishna Iyer, J. in his separate concurring opinion in the aforesaid case) relate to:
  1. the choice of Prime Minister (or Chief Minister) restricted by the consideration that the Prime Minister (or Chief Minister) should command a majority in the House;
  2. the dismissal of a government which has lost the majority in the House but refuses to quit office; and
  3. the dissolution of the House where an appeal to the country has become necessary, though the better course may be to act in this regard on the advice of the Prime Minister or Chief Minister.
The motivation for taking such an action must be compelled by the peril to democracy, and the appeal to the House or to the country must become blatantly obligatory. In U.N. Rao v. Indira Gandhi (AIR 1971 SC 1002), the Apex Court held: Art. 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers.

Any exercise of executive power without such aid and advice (even after the President has dissolved the legislature) will be unconstitutional in view of Art. 74(1) and Arts. 75(2)-(3). In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed that although the executive power is vested in President or Governor, it is actually carried on by Ministers. The President or Governor means the President or Governor aided and advised by Ministers.'

Conclusions:
India has a President but not a Presidential form of Government, as found in America. Indian President is head of the State but not the Executive. He represents the nation but does not rule the nation, as India has a Parliamentary system of Government. The Supreme, Court has consistently taken the view that position of President (and Governors) under the Constitution is similar to the position of Crown under the British Parliamentary system. It is the essence of Parliamentary Government that the real executive powers should be exercised by the Council of Ministers responsible to Lok Sabha.

Ram Jawaya v. State of Punjab (AIR 1955 SC 549), Shamsher Singh v. State of Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard.

According to Dr. Jain:
the Constitution envisages not a dictatorial but a democratic President who uses his judgment to keep the democratic and representative government functioning and not to thwart or to subvert the same (Dr. M.P.Jian).

Our Constituent Assembly was deeply concerned about concentrating political power in a single office. With no shortage of despotic regimes wherever they turned, Assembly members wanted desperately to avoid paving the way for a future dictator.

According to Dr. Ambedkar, an ideal executive must be both stable as well as responsible to the people who elected it. There was no political system in vogue that satisfied both objectives equally. The American and Swiss presidencies offered greater stability, while British Cabinet. Government seemed-more accountable to the people. The Assembly ultimately settled for accountability over stability i.e. British pattern. It is, however, submitted that it would have never been the intention of the framers of Constitution to make the President a puppet or a passive spectator. In view of the oath which he takes... to preserve, protect and defend the Constitution and law, and that:
....devote myself to the service of people of India', he is duty bound to advise, to guide and exert his influence on decisions taken by the Prime Minister\ Thus the President can exercise a persuasive influence. His role is at best advisory. However, the President can exercise a persuasive influence. His role is at best advisory.

The 44th Amendment recognized this limited but essential role of the President. Being impartial and above the party politics, he exerts his influence on the decisions of Prime Minister. Mr. Nehru, the first Prime Minister of the country observed:
We did not want to make the President just a mere figurehead ... we did not give him any real power but we have made his position one of great authority and dignity.He is also the Commander-in-Chief of the defence forces...

President R. Venkataraman in his autobiography My Presidential Years on page 446 has expressed the view that advice of the cabinet violative of the constitutional provisions is not binding on the President.
Judicial Scrutiny of Advice of Council of Ministers [Art. 74(2)] Art. 74(2) lays down that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Thus, according to Art. 74(2), the courts are barred from enquiring into what advice has been given by the Cabinet to the President. The advice given by the Cabinet or a Minister is confidential and the courts can neither take cognizance thereof nor enquire as to what advice has been given to the President. That would also imply that if the President refuses to act on the advice of the Cabinet, the courts are barred from compelling the President to act according to Cabinet advice. The reasons (or grounds) which may have weighed with the Council of Ministers in giving advice also form part of the advice and are protected from judicial scrutiny.

The notings of the officials which lead to the cabinet note and thus decision also form part of the advice tendered' to the President. The immunity from disclosure to courts, however, is restricted to the actual advice tendered to the President. Art. 74(2) is no bar to the production of all the material (viz. files, records) on which the ministerial advice is based (S.P. Gupta v. President of India Judges Transfer Case, AIR 1982 SC 149). For instance, the correspondence between the Chief Justice of India, the Chief Justice of the concerned High Court and the Central Government (which constitutes the decision to continue or discontinue a High Court Judge) could be inquired into by courts.

If the court decides that the disclosure of documents relating to the advice is not against the public interest of the State interest and orders for disclosure, the order will be binding and its non-compliance will amount to contempt of court (R.K. Jain v. UOI (1993) 4 SCC 119).

Whether Non-member of Either House can be Appointed Minister/Prime Minister.

A well-established convention in all countries having the Parliamentary system of government is that a Minister should normally be a member of either House of Parliament. This is so because their presence in Parliament makes a reality of their responsibility and accountability to Parliament, and, facilitates co-operation and interaction between them and Parliament. But, it is not an absolute rule. In India, even a non-member may be appointed as a Minister but he cannot hold the office for longer than six months without becoming a member of a House of Parliament in the meantime [Art. 75(5)]. The Minister can function effectively even though not a member of any House.

In Harsharan Verma v. UOI, 1987 Supp. SCC 310, the Court upheld the appointment of a non-member as a Minister under Art. 75(5) of the Constitution read with Art. 88 thereof, which article, inter alia, conferred on every Minister the right to speak in, and otherwise to take part in the proceedings of, either House, in joint sitting of the Houses, and in a Committee of Parliament of which he may be named a member, though not entitled to vote. To appoint a non-member of Parliament as a Minister did not militate against the constitutional mechanism nor did it militate against the democratic principles embodied in the Constitution (Harsharan Verma case).

A nonmember can remain a Minister only for a short period of six months and as a Minister he is collectively responsible to Lok Sabha. Further, a person who may be competent to hold the post of a Minister may be defeated in the election. There is no reason why he cannot be appointed as a Minister pending his election to the House. However, if he fails to become a member of the House in the stipulated time, he has to resign.

Then, he cannot be re-appointed as a Minister for another term of six months. Such a practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid. It would be subverting the Constitution to allow such a practice (S. R. Chaudhari v. State of Punjab AIR 2001 SC 2707). In this case, it was held that a non-member cannot be repeatedly' appointed as a Minister for a term of 6 consecutive months without getting himself elected in the meanwhile. Art. 164(4) is in the nature of an exception to the normal rule of only members of the legislature being Ministers, restricted to a short period of 6 months.

This exception must be strictly construed. This is only a one-time privilege. The non-member Minister even during the period of six months' does not have the right to vote or the legislatiye immunity as provided by Art. 494(2), He also cannot draw the benefits of an MLA. The will of the people cannot be permitted to be subordinated to political expediency of the Prime Minister or the Chief Minister.

It may be noted that there is neither any specific provision in the Constitution nor a mandatory convention debarring a member of the Rajya Sabha from becoming the Prime Minister.

For example, Mrs. Indira Gandhi, a Rajya Sabha member, became the Prime Minister in 1966. But she was elected to the Lok Sabha soon thereafter. It is desirable that the Prime Minister should belong to the Lok Sabha because Rajya Sabha lacks contact with the contemporary public opinion as one-third of its members are indirectly elected every two years. Thus, a member of the Rajya Sabha on becoming the Prime Minister should seek election to the Lok Sabha at the earliest opportunity.

Disqualified Member Cannot be Appointed Prime Minister/Chlef Minister In (B.R. Kapoor v State of Tamil Nadu, 2001 (6) SCALE 309), the Supreme Court held that a person convicted of criminal offence and sentenced to more than two years of imprisonment cannot be appointed as Chief Minister. Smt. Jayalalitha despite being disqualified to contest the election (in view; of conviction under the Prevention of Corruption Act) was elected as the leader of her party after the party has gained absolute majority in the Assembly elections The Governor of Tamil Nadu appointed her as the Chief Minister. The Court held that her appointment as a Chief Minister was violative of Art. 164(4) and, therefore, unconstitutional and invalid.

A nonmember who does not possess the qualifications prescribed by Art. 173 or has been disqualified under Art. 191 of the Constitution cannot be appointed as Chief Minister or Minister. Thus, in this case, the Apex Court has read a significant restriction in Art. 75(5) [corresponding to Art. 164(4)] i.e. a person who is not a member of a House of Parliament can be appointed as the Prime Minister or a Minister only if he has the qualifications for membership of Parliament as prescribed in Art. 84 and is not disqualified from the membership thereof by reason of the disqualifications sec out in Art. 102.

Privileges/ Immunities of President (Art. 361)

  1. President shall not be answerable to any court for the exercise of power and duties of his office, except when the President has been placed under impeachment proceedings. Immunity attached to the President will not restrict the right of any person to bring suit against the Government of India.
     
  2. No criminal proceeding whatsoever can be instituted against the President, during the term of his office.
     
  3. No process for the arrest or imprisonment of President shall be issued from any court, during the term of his office.
     
  4. No civil proceeding can be instituted in which relief is claimed against the President during the term of his office, in respect of any act done by him, until:
    1. a notice given to the President,
    2. 2 months have passed after the notice, and,
    3. notice states the nature of proceeding, cause of action, description of party, etc.

Resignation/ Impeachment of President

The President can resign his office before the expiry of his tenure by writing under his hand addressed to the Vice-President. This resignation is required to be communicated by the Vice-President to the Speaker of the Lok Sabha (Art. 56). The President may be removed from his office before the expiry of his term, by the process of impeachment (Art. 56).

The grounds for impeachment are:

Violation of the express provisions of the Constitution as well as violation of convention, usage and spirit of the Constitution by the President.

Art. 61 lays down the procedure for the impeachment of the President as follows:

The charge against the President can be preferred by either House of Parliament via a resolution preceded by at least 14 days written notice. The notice should be signed by not less than l/4th of total number of members of the House and passed by a majority of not less than 2/3rd of the total membership of the House. When one House prefers a charge the other House shall investigate it. The President has a right to appear and be represented at such investigation.

If after investigation, the House finds the President guilty and passes a resolution by a majority of not less than 2/3rd of its total membership declaring that the charge preferred against the President has been sustained, it would have the effect of removing the President from his office from the date on which the resolution is so passed.

Vice President

The Constitution provides for a Vice President who is elected by members of the two houses of Parliament in accordance with the system of proportional representation by means of a single transferable vote and secret ballot.

A candidate for the office of Vice-President must:

  • be a citizen of India;
  • be more than 35 years of age;
  • possess the qualifications prescribed for membership of the Rajya Sabha;
  • not be member of either House of the Parliament or State Legislature;
  • not be person of unsound mind or insolvent; and
  • not hold any office of profit under the Union or State Government or local authority.

The Vice President holds office for a term of five years from the date on which he enters office. He is eligible for re-election. His term can be cut short if he resigns or is removed by the Rajya Sabha through a resolution passed by a two-third majority of its members and likewise agreed to by the Lok Sabha. The Vice-President as the ex-officio Chairman of the Rajya Sabha is entitled to the same salary and allowance which are paid to the Speaker of the Lok Sabha.

Powers
The Vice-President is the ex-officio Chairman of the Rajya Sabha and presides over it meetings. All bills, resolutions, motions or questions can be taken up by the Rajya Sabha only with his consent. He is the chief spokesman of the Rajya Sabha before the President as well as the Lok Sabha. He discharges the functions of the office of the President in case that post falls vacant on account of the death, resignation or removal of the President.

The Vice- President can act as President for a maximum period of six months because fresh elections for the office of President must be held within six months of the occurrence of vacancy. Similarly, if the President is unable to discharge his functions for some reasons (casual vacancy) or remains absent, the Vice-President discharges all his functions. When he does so, he ceases to perform the functions of the Chairman of the Rajya Sabha.

Prime Minister
He is the leader of the majority party in the Lok Sabha. According to Art. 74(1), he is the head of the Council of Ministers. He is primes inter pares (First among Equals') in Council of Ministers. His main function is to aid and advise the President in the exercise of his functions.

In this way, he is the real or chief executive. The Prime Minister's office is his personal secretariat. Under the Allocation of Business Rules, 1961, it occupies the status of a department of the Government of India. Cabinet is the core of the Council of Ministers. The Prime Minister is the Chairman of the Planning Commission. Recently, he has been made the Chairperson of the Tiger Conservation Authority.

A question arises:
Whether a person who is not a member of either House of Parliament (i.e. not an elected representative of the people) be sworn in as the Prime Minister of India. It was held by the Supreme Court: By a parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Art. 164(4) for 6 months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same duration.

Deputy Prime Minister
The post of Deputy Prime Minister is not prescribed in the Constitution. However, seven Deputy Prime Ministers have been made so far (e.g. Sardar Patel - first; L.K. Advani - last). Such appointment depends on the discretion of the Prime Minister and the communication is sent to the President of India. He occupies the position of Prime Minister in assisting him in his absence. His office is meant to reduce the workload of the Prime Minister.

The Governor and Chief Minister
The executive power of the State is vested in the Governor (constitutional Head of the State) and the State Council of Ministers. Art. 153 provide that there shall be a Governor for each State. But the Constitution (7th Amendment) Act, 1956, makes it possible to appoint the same person as the Governor of two or more States, and under this provision, the Governor of Assam has been appointed Governor of Nagaland, Meghalaya, Manipur.

He holds office for a term of five years from the date on which he enters upon his office. He also continues to hold office until his successor enters upon his office. He can be reappointed after his tenure as Governor of the same State or of another State.

The qualifications for appointment of Governor are:
  1. He must be a citizen of India, and
  2. He must have completed the age of 35 years. There is no bar to the selection of a Governor from among the Members of a legislature but if a Member of a legislature is appointed Governor, he ceases to be a Member immediately upon such appointment. The normal term of the Governor can be terminated earlier by
    1. dismissal by the President, or
    2. resignation.

The grounds upon which a Governor may be removed by the President are not laid down in the Constitution. Art 156 (1) provides that the Governor holds office during the pleasure of the President. The expression of displeasure of the President is not justiciable. In the event of death of the Governor, the Chief Justice of the High Court becomes the acting Governor' in the State.

Executive Powers
Art. 162 says that executive power of State extends to matters with respect to which legislature of State has power to make laws. Art. 166 say that executive functions shall be authenticated in manner specified in the rules made by Governor. Clause (3) of Art. 166 provide that the Governor is authorized to make rules for the more convenient transaction of the business of government of State and for its allocation among ministers.

In Shamsher Singh v. State of Punjab (AIR 1974 SC 2192), held that wherever the Constitution requires the satisfaction of President or Governor, for example, in Articles 123, 213, 311(2)(c), 356, 360, the satisfaction is not the personal satisfaction, but it is the satisfaction in the constitutional sense under the cabinet system of government.

In Bejoy Lakshmi Cotton Mill's case (AIR 1967 SC 1145), it was observed the President or Governor means the President or Governor aided and advised by Ministers. The allocation of business is the decision of President or Governor on the aid and advice of Ministers, and allocation is not delegation. The decision of any Minister or officer under Rules of Business made under Art. 77(3) and 166(3) is the decision of President or Governor.

The executive powers of the Governor are:
The Governor appoints the Chief Minister. He also appoints the Council of Ministers on the advice of the Chief Minister. He appoints the members of the State Public Service Commission and Advocate General. The Ministers as well as the Advocate-General hold office during the pleasure of the governor. Although appointed by the Governor, the members of State Public Service Commission cannot be removed by him.

The Governor has the power to nominate members of the Anglo-Indian community to Legislative Assembly of his State, if they are not adequately represented in the Assembly. The Governor has the power to nominate members having special knowledge or practical experience in matters such as literature, science, art and social service, to the Legislative Council of the State.

Legislative Powers
Governor is a part of the State Legislature. He has a right of addressing and sending messages to and of, summoning, proroguing the State Legislature and dissolving the lower House. All bills passed by the legislature have to assented to by him before becoming law. He can withhold his assent to the Bill passed by legislature and send it back for reconsideration. If the Bill is again passed with or without modification, the Governor has to give his assent.

He may reserve any Bill passed by the State Legislature for the assent of the President. He has the power of causing to be laid before the State Legislature the Annual Financial Statement and of making demands of grant and recommending Money Bills. The Governor may issue an ordinance when the legislature is not in session.

Governor's Veto:
When a Bill passed by the State Legislature is presented to the Governor for his assent, he may reserve the Bill for the reconsideration of the President. In some cases this is mandatory for the Governor, for example, when a Bill affected the powers of the High Court's (Art. 200).

This gives the Governor and the President a real veto' on the Bill. When such a Bill is reserved for the assent of the President, he may either declare his assent, withhold his assent or return the Bill to State Legislature with a message. The State Legislature has to reconsider the Bill within six months. Even if the Bill has been passed again with or without modifications, it is not obligatory on the part of the President to signify his assent. Thus, once a Bill is reserved for consideration of the president it cannot become a law unless it is assented to by him.

Relation between Governor and Council of Ministers
It is same as that between the President and his Ministers, except that the Constitution authorizes Governor to exercise powers in his discretion'. Art. 163 (1) says that there shall be a Council of Ministers with Chief Minister at the head to aid and advice Governor except in cases where Governor can act in his discretion. In order that the Central Government performs its duty imposed by the Constitution (Arts. 256, 257, 356, 365), it must have to have its agent in the States, who may act independently, in his discretion, not to be advised by the State Executive, so far as his duty to watch the interests of his masters extends.

The other articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371A(l)(b), 371A(l)(d) and 371A(2)(b) and 371A(2)(f). Art. 200 requires the Governor to reserve for consideration of the President any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution. Here the Governor may act irrespective of any advice from the Council of Ministers.

The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in various Articles. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.

Where the Governor is to exercise his discretion he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not detrimental to the State. Thus, the Constitution vests the Governor with discretionary powers. This departure from the strict principle of parliamentary system was justified in the Constituent Assembly on the ground that the Governor is conferred with dual capacity.

He is not merely the head of the State Government but is also an agent of the Central Government in the State. He is said to serve as the eyes and ears of the Centre and so far to act in his discretion. Article 163(2) says that if any question arises whether any matter... as regards which Governor is to act in his discretion, the decision of Governor shall be final, and the validity of anything done by Governor shall not be called into question.

Though, Constitution doesn't specially mentions discretionary powers, except special responsibility of governor regarding administration of tribal areas in Assam, and when governor also appointed administrator of a Union Territory, there are certain circumstances where the governor will be called upon to exercise his discretion:
  1. Chief Minister (Art. 164)(1):
    when no political party has an absolute majority in the legislature. However, Governors hasn't followed any uniform practice, and it is a matter of great controversy. In Anil Kumar Jha case (2005) 3 SCC 150, the exercise of power under Art. 164(1) by the Governor was in issue.

    The Governor of Jharkhand appointed the leader of party/political alliance, not commanding support of majority of legislators, as Chief Minister. The Supreme Court held it to be an arbitrary and mala fide exercise of the power by the Governor, which is a fraud on the Constitution.

    The court proposed the floor test to determine primacy between contending political alliances and issued other directions to ensure fairness of the floor test. Speaker of the Assembly was directed to have proceedings of floor test video-recorded and a copy thereof sent to Supreme Court.

  2. Dismissal of a Ministry (Art. I64)(2) - lays down that Minister shall hold office during the pleasure of Governor, but this pleasure is exercisable only on Chief Minister's advice. This follows from clause (3) which says that Council of Ministers shall be collectively responsible to Legislative Assembly.

    This means that so long as a Ministry enjoys the confidence of majority in legislature, Governor can't dismiss it. However, the dismissal of Ministry by Governor, on the assumption that it has lost majority in legislature have aroused great controversy e.g. Ministry dismissed without testing their majority in Assembly.

    In Mahabir Prasad v. Profulla Chandra (AIR 1969 Cal. 189), held that this power of Governor is absolute. The Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner. Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government [in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156]. Art. 156 (1) provides that the Governor holds office during the pleasure of the President. The expression of displeasure of the President is not justiciable.

    In Jagdambika Pal v. Union of India (AIR 1998 SC 998), the Chief Minister of the State of U.P. was dismissed and another person sworn in as Chief Minister without holding of floortest. A petition was filed by the dismissed Chief Minister. The Supreme Court directed the convening of special session of Assembly and to have a composite floor-test between the contending parties. The order of the Court was directed to be treated as a notice to all MLAs.

    In Anil Kumar Jha v. UOI (2005) 3 SCC 150, the exercise of power under Art. 164(1) by the Governor was in issue. The Governor of Jharkhand appointed the leader of party/political alliance, not commanding support of majority of legislators, as Chief Minister. The Supreme Court held it to be an arbitrary and mala fide exercise of the power by the Governor, which is a fraud on the Constitution.

    The court pre-poned the floor test to determine primacy between contending political alliances and issued other directions to ensure fairness of the floor test. The Chief Secretary and Director General of Police were directed to see that all elected MLAs attended the Assembly freely, safely and securely without let or hindrances. Pro tern Speaker of the Assembly was directed to have proceedings of floor test videorecorded and a copy thereof sent to Supreme Court.

  3. Dissolution of Legislative Assembly: Where Ministry has lost majority and no alternative stable Ministry is possible.

  4. Emergency power i.e. Advising President under Art. 356 for the imposition of President's rule in the State. Whenever the Governor is satisfied that a situation has arisen in his State whereby the administration of the State cannot be carried on according to the provisions of the Constitution, he can report the fact to the President. On receipt of such report, the President may assume to himself the powers of the State Government and may reserve for the Parliament the powers of the State Legislature.

    Thus, the Governor has been given wider discretionary powers than the President. However, the Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner. Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government [in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156].

    In M.P. Special Police Establishment v State of M.P. (2004) 8 SCC 788, the independent or discretionary powers of the Governor (Art. 163) Were in issue. On facts, the advice of Council of Ministers in relation to the non-granting of sanction for prosecution' of certain ministers was biased and vitiated due to non-consideration of relevant factors. It was held that though in such matters the Governor is normally required to act on aid and advice of the Council of Ministers but where a bias is inherent and/or manifest in the advice of Council of Ministers or, where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right to act in his own discretion and grant sanction.

In Rameshwar Prasad v. UOI (Bihar Assembly Dissolution Case) (AIR 2006 SC 980), the question as to the criteria for appointment of Governors came up. It was observed by the majority that the criteria suggested in the Sarkaria Commission Report should be followed. However it was also recorded that these criteria were observed rather in their total breach by all political parties. However the matter was left to the wisdom of political parties to arrive at a national policy with some common minimum parameters applicable and acceptable to all major political parties.

On the question as to the proper mode and manner of the discharge of the powers and duties, especially the discretionary powers, of the Governor a State, it was held by the majority that the expression required in Art. 163(1) was stated to signify that Governor could exercise his discretionary powers only if there was a compelling necessity to do so. The Governor could not, in exercise of his discretion or otherwise, do anything which was prohibited to be done. It was for the MLAs or the appropriate functionary to decide and not for the Governor to assume disqualification and thereby prevent staking of claim, by recommending dissolution.

Legislative Powers of the Executive (Arts. 123 and 213)

The most important power of President is his ordinance making power (Art. 123). It is the power to legislate, when both Houses of Parliament are not in session, thus it is not possible to have a Parliamentary enactment. The Governor possesses such power under Art. 213 in relation to State legislation. The ambit of this power is co-extensive with legislative powers of Parliament i.e. it may relate to any subject (which Parliament can legislate) and is subject to same constitutional limitations, as the legislation by Parliament. President can withdraw an ordinance at any time.

This power is to be exercised by President (and Governor) on the advice of Council of Ministers (R.C. Cooper v. Union of India AIR 1970 SC 564). The ordinance must be laid before the Parliament when it reassembles and cease to operate at the end of six weeks from the date on which Parliament reassembles; if both Houses pass resolution disapproving of it before the expiry of six weeks, the ordinance ceases to operate on the day of passing of such resolution (Parliamentary safeguards).

Validity of Ordinance Making Power:

The President cannot promulgate an ordinance unless he is satisfied that there are circumstances which render it necessary for him to take immediate action. But, President himself determine whether such a situation has arisen and a court cannot enquire into it i.propriety, expediency, necessity, and motive (behind) of legislative Act. While an executive act can be struck down on the ground of non-application of mind or mala fides, an Act or Ordinance cannot. An Ordinance can be invalidated only on the grounds of contravention of constitutional limitations (test of vagueness, arbitrariness, reasonableness, and public interest).

The validity of Ordinance had been challenged at times and the court has upheld its constitutionality in majority of cases (R K. Garg v. Union of India AIR 1981 SC 2138). An Ordinance stands on the same footing as an Act passed by the Legislature. It cannot be treated as an executive action or an administrative decision. An ordinance has been held to be a law' under Art. 21 of the Constitution (A.K. Roy's case). As the Legislature can repeal an existing enactment or amend it, so also, the President by an ordinance can repeal or amend an existing legislation.

Abuse - In no country, except India, the Executive is vested with legislative power. Such power may be abused by a minority government to enact a measure for a temporary period as not being sure of support in Parliament; by a majority government in order to avoid debate in Parliament and possible amendment, and advising the President to prorogue Parliament at any time having this specific object in mind (mala fides).

The case of D.C. Wadhawa v. State of Bihar (AIR 1987 SC 579) furnishes a glaring example of abuse of ordinance power. 256 ordinances promulgated in the State, and all of these kept alive by re-promulgation without being brought before the Legislature, between 1976-81. The court called it a subversion of democratic process' and colourable exercise of powers' and held that this amounted to a fraud on the Constitution. The Executive cannot usurp the function assigned to the legislature under the Constitution.

Parliamentary safeguards - Besides passing resolutions disapproving of ordinance, Parliament gets a chance to review the measure if government seeks to replace an ordinance by a Bill; and when government seek so, a statement explaining circumstances which necessitated immediate action by ordinance must accompany such Bill. However, no debate on above statement is allowed.

Peculiarity of Governor's power - In comparison to President's power, the Governor can't make ordinance without instructions from the President if:
  1. Ordinance contains provisions which would require sanction of the President for introduction in State legislature,
  2. Governor would have deemed it necessary to reserve a Bill containing the same provision for consideration of President,
  3. An Act of State legislature containing the same provision would be invalid without assent of President (when Bill reserved for President's consideration).

Suggestions for Improvement of Governor's Role

The Governor is the linchpin of the constitutional apparatus of the State', reported the Sarkaria Commission in 1988. His role has emerged as one of the key issues in Union-State relations', and has been criticized for want of impartiality and sagacity' and for being used by the Central Government for its own political ends.

Twenty years previously the Administrative Reforms Commission had expressed the view that the President's authority to appoint and remove Governors departed from the federal principle. Regarding the appointment of Governors, the Sarkaria Commission suggested that effective consultation between the Centre and Chief Ministers should be prescribed by amending Art. 155. Further, a Governor be eminent, come from outside the State of his appointment, be not too intimately connected' with its politics, and not recently have taken too great a part in politics generally.

A politician of the party governing in New D should not be appointed to a State governed by another party. The Sarkaria Commission recommended that the Governor's five-year term should not be disturbed except very rarely and that too, for some extremely compelling reasons. Should a Governor be transferred or his tenure terminated, the Central Government may lay an explanatory statement before Parliament. The Commission also took note of the various inducements (besides pressures) by the Central Government that might affect the independence of Governors (e.g. offers of post governorship jobs in government, such as heading a Commission).

To prevent this, the Administrative Reforms and Sarkaria Commission recommended that an ex-governor should not take part in politics, although the latter thought that a former Governor might run for Vice-President or President. The Commission recommended that incumbent Governors be promised reasonable retirement benefits' to strengthen their capacity to act with due objectivity and impartiality and independence. It is perceived by many State Governments that reservation of Bills by the Governor for Presidential assent' amounted to Central interference in State affairs. The Administrative Reforms Commission said that only in special circumstances' such as patent unconstitutionality' should the Governor act in his discretion.

The Sarkaria Commission declared its view to be that Art. 200 did not invest the Governor... with a geherardiscretion' in reserving Bills. Only in extremely rare cases should the Governor reserve a Bill in his discretion;, and not merely personally, he does not like the policy embodied in the Bill.

To reduce delays in Presidential decision- Commission advocated a series of streamlining procedures such as Presidential disposition of Bills sent for consideration within four months of their receipt.
The President of India appointed a Committee of Governors to study and formulate norms on the role of Governors; its recommendations are:
  1. The test of confidence in the Ministry should normally be left to a vote in the Assembly. The Governor should have waited till the Ministry had been voted out of the office by House itself.
     
  2. A Governor has right to dismiss a Ministry if Chief Minister shirks his primary responsibility of facing the Assembly within the shortest time to test the confidence of legislature in him.
  3. A Chief Minister's refusal to test strength... can well be interpreted as a prima facie proof of his no longer enjoying the confidence in Assembly.
     
  4. If an alternative Ministry can be formed which in Governor's view can command a majority in Assembly, he must dismiss ministry in power and install alternative ministry. If formation of such alternative Ministry is not possible, then President's rule is to be imposed.
     
  5. So far as question of majority is concerned, it does not make any difference whether the coalition partner withdraws support or the majority party government is reduced to minority by defections. The loss of majority by reason of dissolution of coalition should not be equated by Governor with loss of support of a majority in House.

This is a question which was only to be decided in House. Even after this Report, which had laid certain norms, the Governors have continued to exercise their discretionary powers in an arbitrary and partisan manner.

Governor's office (a vestige of colonial power) has been misused and he had been made hand-made of Union government (in view of the Governor's responsibility to the President and latter's power to dismiss him under Art. 156.) Not only the prestige of office has declined, but politics in States became yet more unstable and unprincipled. Improvements - Healthy traditions must be created, with Union government playing a more responsible role. Governors need greater independence vis- i-vis the Centre. He must be an impartial person, capable of holding balance between national and regional interests.

Judicial Powers of the President and Governor Respectively (Arts. 72 and 161) Under Art. 72, the President has power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence to any person convicted of an offence:
  1. in cases where the punishment is by Court Martial,
  2. for offences against laws made under Union and Concurrent Lists - matters to which executive power of Union extends,
  3. for death sentences. Art. 72 further lays down that the power conferred on the President, however, does not affect the power conferred by any law on any officer of the Armed Forces to suspend, remit, or commute a sentence passed by Court Martial, and also the power exercisable by the Governor of State under any law to suspend, remit, or commute a death sentence.

It may be noted that the British King and the U.S. President also possess such judicial powers. Under Art. 161, the Governor has such power only for offences relating to matters to which executive power of State extends; he cannot pardon for (i) and (iii) above. In respect of suspension, remit or to commute death sentence, both President and Governor have concurrent power.
The object of conferring this judicial power (mercy jurisdiction)... is to correct possible judicial errors, for no human system of judicial administration can be perfect.

While exercising his pardoning powers, the President can scrutinize the findings/witnesses on the reco type=""rd and come to a different conclusion both on the guilt of the accused and the sentence imposed on him. In doing so, the President did not amend/modify/supersede the judicial record which remained intact (Kehar Singh's case).

A Pardon - rescinds both the sentence and conviction, and absolves offender from all punishments.
Commutation - from harder to lighter punishments e.g. from death to rigorous imprisonment.
Remission - reduction of amount of sentence without changing its character e.g. from 1 year to 6 months.
Respite - awarding a lesser punishment on special grounds e.g. pregnancy.
Reprieve - a stay or suspension of execution of death sentence e.g. pending a proceeding for pardon or commutation.

The pardoning power can be exercised before, after or during the trial. The power is exercised, on the advice of Council of Ministers. The power cannot be exercised when the matter is sub judice in the Supreme Court.

In Kuljeet Singh v. Lt. Governor of Delhi (AIR 1982 SC 774), held that the exercise of President's power would have to be examined' from case to case. It is submitted that to examine case-to-case implies court's judicial review on a matter which has been vested by Constitution solely in the executive. The question of standards and guidelines for the exercise of the, power by the President under Art. 72 however, were left open by the Court.

In Kehar Singh v. UOI (AIR 1989 SC 653), regarding the assassination of Prime Minister Indira Gandhi, the President rejected the petition on advice of Union government without going into the merits of Supreme Court's decision of death sentence. The court held that a pardon is an act of grace and therefore it can't be demanded as a matter of right. The Court need not spell out specific guidelines for the exercise of power... because this power is of the widest amplitude and can contemplate a myriad kinds of cases with varying facts. The order of President cannot be subjected to judicial review on its merits.

In Epuru Sudhakar v Govt, of Andhra Pradesh (AIR 2006 SC 3385), the Apex Court has held that the pardoning powers of the President under Art. 72, and, the Governors under Art. 161 are subject to judicial review. Pardoning power cannot be exercised arbitrarily on the basis of caste or political reasons. It held that if the pardoning power has been exercised on the ground of political reasons, caste and religious considerations it would amount to violation of the Constitution and the Court will examine its validity.

Pardoning/Clemency; Power not Unbridled In State of Haryana v. Jagdish (AIR 2010 SC 1690), the Apex Court observed and held: The power under Arts. 72 and 161 was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction.

It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets the benefit of a liberalised policy.

The power of the sovereign to grant remission is within its exclusive domain and this responsibility was cast upon executive through the constitutional mandate to ensure fulfilment of some public purpose by grant of remission in appropriate cases.

In Narain Dutt v. State of Punjab (AIR 2011 SC 1216), the Apex Court set aside the order of the Governor of Punjab granting pardon in a case of murder along with other offences, and remanded it for reconsideration. The Court noted that the Governor's order did not contain any reference to the order of conviction and sentence imposed on the accused persons. The Court held that there is limited scope of judicial review on the exercise of power by the Governor under Art. 161.

It is axiomatic that before the power of the Governor under Art. 161 is invoked by any person, the condition precedent is that such person or persons must be convicted of any offence against any law and will be subjected to undergo a sentence. The order of the Governor was therefore really of no consequence.

The Court further noted that the Governor's order also did not contain any reference to the appeals pending against the order of conviction and sentence before he could pass the order. The Court held that probably all relevant facts were not placed before the Governor. The Court then noted that there were some observations in the order of Governor about the guilt or innocence of the accused persons. The Court held that it is well settled that to decide on innocence or otherwise of the accused persons is within the exclusive domain of the Court of law which is essentially a judicial function.

A Governor's power of granting pardon is an exercise of executive function and independent of the court's power to pronounce on the innocence or guilt of the accused. The power of a Court of law in a criminal trial and subsequent right to appeal up to the Supreme Court and that of the President/ Governor operate in totally different arenas and the nature of these two powers are totally different from each other. In the present case, the Governor has exceeded the permissible constitutional limits in exercise of powers.

Privileges of President (Article 361) (Legal Immunities or Protection):

  1. President shall not be answerable to any court for the exercise of power and duties of his office, except when the President has been placed under impeachment proceedings. Immunity attached to the President will not restrict the right of any person to bring suit against the Government of India.
     
  2. No criminal proceeding whatsoever can be instituted against the President, during the term of his office.
     
  3. No process for the arrest or imprisonment of President shall be issued from any court, during the term of his office.
     
  4. No civil proceeding can be instituted in which relief is claimed against the President during the term of his office, in respect of any act done by him, until (a) a notice given to the President, (b) 2 months have passed after the notice, and, (c) notice states the nature of proceeding, cause of action, description of party, etc.

Judicial Review over Immunity to President/Governor:

In Rameshwar Prasad v. UOI (AIR 2006 SC 980), the scope of the immunity granted to Governors and the President under Art. 361 was discussed. It was held that there was a complete bar to the impleadment or issuance of notice to the President or Governor in their personal capacity as they were not answerable to any court for the exercise and performance of the powers and duties of their offices, or for any act done or purported to be done in exercise and performance of those powers and duties. The words purported to be done in Art. 361 were of wide amplitude, and the immunity extended even to charges of mala /ides.

However, the personal immunity provided under Art. 361, did not bar challenges that might be made to their actions. Under law, such actions including those actions where challenges were based on allegations of mala fides, were required to be defended by the Union of India or the State Government, as the case may be. Even in cases where personal mala fides were alleged and established, the Governments could not urge that the same could not be satisfactorily answered because of the immunity granted.

In such eventuality, it was for the respondent State defending the action to satisfy the Court either on the basis of material on record or even by the filing of an affidavit of the Governor/ President. Art. 361 did not bar the filing of an affidavit if Governor or President wished to do so. The bar was only against the power of the court to issue notice to or making the President or Governor answerable.

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