1 Powers and Functions of

President in India
The primary duty of the President is to preserve, protect and defend the constitution and the law
of India as made part of his oath (Article 60 of Indian constitution). The President is the common
head of all independent constitutional entities. All his actions, recommendations (Article 3,
Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78 c, Article 108,
Article 111, etc.) over the executive and legislative entities of India shall be used in accordance
to uphold the constitution. There is no bar on the actions of the President to contest in the court
of law.
The President of India is the Head of State. The system of government of India is a cabinet
form of government. The Indian President is, therefore, a constitutional head like the King or
Queen of Britain—that is, all executive powers are constitutionally vested in him, although
those are actually exercised and executed by the cabinet.

In India the powers of the Union government are treated as the powers of the President
because these powers are used in his name in pursuance of the constitutional stipulation
under Article 53 which reads: The executive powers of the Union shall be vested in the
President and shall be exercised by him either directly or through the officers subordinate to
him in accordance with this Constitution.

The constitutional powers and functions of the President of India may be classified into six
principal types.

Executive Functions
1. Head of the Union: The President is at the head of the Union Executive.
Consequently, all executive powers are exercised in his name. The executive power
of the Union to be exercised by the President is extended to the matters with respect
to which Parliament has power to make laws and to conclude treaty and agreement.

2. Appointments: As head of the executive, the President appoints the

Governors of States, the Judges of the Supreme Court and the High Courts, the
Auditor General of India and many other high officials, such as the members of
Finance Commission, Election commission, Union Public commission etc.

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 3. Appointment of the Prime Minister and other Ministers: The President
also appoints the Prime Minister and with his advice the other Ministers of the Union
Council of Ministers. But here too, as in all other appointments, the President can
seldom use his discretion. He is, ordinarily, duty-bound to summon the leader of the
political party which secures an absolute majority in the Lok Sabha to become the
Prime Minister and form the Ministry. He does enjoy some discretionary powers in
the matter only under exceptional circumstances. When no single political party wins
a clear absolute majority and, as a result, no Council of Ministers can be formed
without a coalition of parties the President can exercise his discretion judiciously in
appointing the Prime Minister. Such situations developed in the past.

India has entered into an age of coalition politics. And it may so happen that no single
party will be able to secure an absolute majority, and the President may be required to
exercise his discretionary power for some time to come, in appointing Prime Minister.

4. Can ask to prove Majority in Lok Sabha: Union Council of Ministers

normally remains in office for five years, unless dissolved earlier for any reason. The
President must be satisfied that the Council of Ministers enjoys the confidence of the
majority of the Lok Sabha. In case of any doubt he can ask the Council of Ministers
to prove its majority in the Lok Sabha, as the Prime Ministers Sri H.D. Deve Gowda
was asked by the President after the official withdrawal of support by the Congress
Party from Ministry. The President can also dissolve the Union Council of Ministers
in accordance with Article 75(2) of the constitution, if he finds that the Ministry does
not enjoy the support of the majorities in the Lok Sabha.

5. Supreme Commander: As head of State, the President is the supreme

Commander of the Armed Forces of India and is entitled to declare war or conclude a
treaty.

Legislative Powers and Functions

1. President is a part of Parliament: The Union Legislature or Parliament
consists of the President and two Houses of Parliament. The President is, therefore, an
integral part of Union Legislature. He shall summon from time to time, either
separately or jointly, the Houses of Parliament. The President can prorogue the
Houses or either House of Parliament and, if necessary, can dissolve the lower
Chamber of Parliament, the Lok Sabha. For example, the President solved the twelfth
Lok Sabha in early 1999 when the confidence motion in favour your of the Vajpayee
government was lost in the Lok Sabha.

2. Summons and Addresses Parliament: The President may address either or

both House of Parliament. In such address, at the first session after general election to
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the Lok Sabha and at beginning of a joint session of Parliament each year, he may
place the reasons for summoning it. Apart from addressing Parliament, the
President may also, in case of

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 necessities, send messages to either House, or to both Houses [Article 86(2)].
Normally, the President does not send such a message, unless however, he has a
serious disagreement with the Council of Ministers.

3. Nomination: The President nominates a number of members in both Houses.

The chief purpose of the nomination is to ensure adequate representation in
Parliament of all sections of population which many not always be achieved through
elections.

4. Power in respect of Bills: The President has certain functions in respect of

passing of a Bill. A bill passed by both the Houses of Parliament requires his assent in
order to become an Act. He may give his assent to a bill or can withhold assent when
a bill, after getting approved in both the Houses, is placed before the President. But, if
Parliament, acting on President’s refusal to assent to a bill, passes it again with or
without amendment, for the second time and presents it to the President for his
approval, the President shall not withhold his assent there from under Article 111. In
other words, it becomes obligatory upon him to give his assent.

In certain cases, prior sanction of the President is required for initiating any
legislation. For instance, bill for formation of a new State or altering the boundaries of
the existing State or States is to be placed before Parliament with prior approval of the
President. Money bill is another example where obtaining of such approval of the
President is a constitutional necessity.

5. Bill passed by a State Legislature: A bill passed by a State Legislature may

also be reserved for the consideration of the President by the Governor of that State.
The President enjoys this right in relation to a bill passed by a State Legislature only
in such cases where those are referred to him by the Government of a State under
Article 200.

Power to Promulgate Ordinances

Except when both Houses of Parliament are in session, the President may promulgate
such Ordinances as the circumstances appear to him to require (Article 123). Such an
ordinance can have the same force and effect of an Act of Parliament. Such an
ordinance shall cease to operate unless passed by both Houses of Parliament within
the stipulated period. A.K. Roy vs. Union of India (1982) illustrates the proposition
that the satisfaction of the President must be as to the existence of a situation which
makes it necessary for the President to promulgate such on Ordinance.
The more controversial and debatable legislative power of the President has
always been the Ordinance Making Power. Usually the power to make the laws
rests with the Parliament. However, special power on the President empowering
him to promulgate ordinances when the Parliament is not in session and the
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circumstances are such which

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require immediate action. An ordinance cannot be promulgated when both the houses of
parliament are in session However it may be passed when only one house is in session the
reason being that a law cannot be passed by only one house and thus it cannot meet a
situation calling for immediate legislation. This power granted to the President in the
Indian Constitution is unique and no such power has been conferred upon the executive
in Britain or the USA.
In justification of the inception of the Ordinance Making power in the Constitution Dr
Ambedkar said that there might be a situation of emergency when the Houses of the
parliament are not in session. It is important that this situation should be dealt with and it
seems to me that the only solution is to confer upon the President the power to
promulgate the law which will enable the executive to deal with that particular situation
because it cannot resort to the ordinary process of law because the legislature is not in
session.

Financial Powers and Functions

The President of India also exercises financial powers. No money bill can be introduced in
Parliament without the recommendations of the President. According to the Constitution of
India, the Annual Financial Statement is placed by the President before both the Houses of
Parliament. This statement shows the estimates of revenue and expenditure of the central
Government for the next year. It may be pointed out that the proposal for taxation and
expenditure cannot be made without the approval of the President. . No proposal for spending
money or raising revenues for purposes of government can be introduced in Parliament without
previous permission of the President.

Emergency Powers of the President

1. The constitution of India empowers the President to proclaim three kinds of
Emergencies: National Emergency (Art. 352);
2. Emergency for failure of Constitutional Machinery in a State (Art. 356);
3. Financial Emergency (Art. 360)

1 National Emergency

The President of India may issue a Proclamation of National Emergency when the security of
India or any part thereof is threatened by war, armed rebellion or external aggression. Such a
Proclamation of Emergency may remain in force for an indefinite period. During a Proclamation
of National Emergency, the executive power of the States is to be exercised in accordance with
the directions given by the Central Government. Parliament has the power to make laws on the
subjects enumerated in the State List. The right to freedom of speech and expression, freedom to
form association, freedom to practice and profession, etc., embodied in Article 19 shall remain
suspended.

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2. Failure of State Constitutional Machinery

In Case of failure of Constitutional machinery in a State, the President of India is authorized to

make a Proclamation to that effect. The maximum duration of this type of emergency is three (3)
years. During such an emergency, the President may assume to himself the executive powers of
the State. The powers of the legislatures of the State are to be exercised by the Union Parliament.

3. Financial Emergency

The President may also issue a Proclamation of Financial if he is satisfied that the financial
stability of India is threatened. This type of emergency may continue to remain in force for an
indefinite period. The Central Government may give directions to the States for canons of
financial propriety. All money-bills passed by the State Legislatures are to be reserved for the
consideration of the President.

The President of India grants, pardons, reprieves or remissions of punishment to any person who
has been convicted by a Court of Law.

Diplomatic powers
All international treaties and agreements are negotiated and concluded on behalf of the
President. However, in practice, such negotiations are usually carried out by the Prime Minister
along with his Cabinet (especially the Foreign). Also, such treaties are subject to the approval of
the Parliament. The President represents India in international forums and affairs where such a
function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the
officers from the Indian Foreign Service. The President is the first citizen of the country.
Military powers
The President is the Supreme Commander of the Indian Armed Forces. The President can
declare war or conclude peace,[20] on the advice of the Union Council of Ministers headed by the
Prime Minister. All important treaties and contracts are made in the President's name.[25] He also
appoints the chiefs of the service branches of the armed forces.

Pardoning Powers / Judicial Powers

The President of India grants, pardons, reprieves or remissions of punishment to any person who
has been convicted by a Court of Law. As mentioned in Article 72 of the Indian Constitution, the
President is empowered with the powers to grant pardons in the following situations:

 Punishment is for an offence against Union Law

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  Punishment is by a Military Court
 Sentence is that of death
The decisions involving pardoning and other rights by the President are
independent of the opinion of the Prime Minister or the Lok Sabha majority. In
most cases, however, the President exercises his executive powers on the advice
of the Prime Minister and the cabinet.

OR
Introduction: Article 52 of the Constitution says that there shall be a President of
India. He is the head of the State. The executive power of the Union, Article 53 says,
shall be vested in the President and it shall be exercised by him in accordance with the
Constitution either directly or through officers subordinate to him. It has been held in
Emperor v. Sibnath Banerjee, that the expression ‘officers subordinate to him’
includes a minister also.

The expression ‘executive power’ is not defined in the Constitution. Article 73,
however, provides that the executive power of the Union shall extend to the matters
with respect to which Parliament has power to make laws and includes the exercise of
such rights, authority and jurisdiction as are execrable by the Government of India by
virtue of any treaty of agreement. Thus the executive power of the Union, which is
exercisable by the President, is co-extensive with the legislative powers of the Union.
The executive power of a modem State is not capable of any precise definition. In
Ram Jawaya Kapur v. State of Punjab, even the Supreme Court also finds it difficult
to explain the context of the executive power. The Court has observed, “It may not be
possible to frame an exhaustive definition of what executive functions mean and
imply. Ordinarily, the executive power connotes the residue of governmental
functions that remain after the legislative and judicial functions are taken away.” It is
neither necessary nor possible to give an exhaustive enumeration of the kinds and
categories of executive functions, which may comprise both the formulations of the
policy as well as its execution. Under Articles 73 and 163 the executive power is not
confined merely to administration of laws already enacted but it includes
determination of the Government policy, initiation of legislation, maintenance of law
and order, promotion of social and economic welfare, the direction of foreign policy,
in fact, the carrying on or supervision of the general administration of the State.

Powers Of The President

Executive powers
The Constitution has conferred extensive executive power on the President. The
executive power of the Union of India is vested in him. He is the head of the Indian
Republic. All executive functions are executed in the name of the President,
authenticated

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in such manner as may be prescribed by rules to be made by the President (Art. 77).
He has power to appoint the
• Prime Minister and on his advice other Ministers of the Union,
• the Judges of the Supreme Court, and the High Courts,
• the Governors of the States,
• the Attorney General,
• the Comptroller
• Auditor-General,
• the Chairman and Members of the Public Service Commission,
• the Members of the Finance Commission and Official Commissions,
• Special Officer for Scheduled Castes and Scheduled Tribes,
• Commission to report on the administration of Scheduled Areas,
• Commission to investigate into the conditions of backward classes,
• Special Officer for linguistic minorities;
The above-mentioned officials hold their office during the pleasure of the President.
This means that he has the power to remove them from their post. This power is,
however, to be exercised subject to the procedure prescribed by the Constitution. It is,
however, to be noted that he has to exercise his executive powers on the advice of the
Council of Ministers.

Military Powers

The President is the Supreme Commander of the Defence Forces of the Country. He
has powers to declare war and peace. However the exercise of these powers by the
President is ‘regulated by law.’ The Parliament is empowered to regulate or control
the exercise of the military powers by the President. The military power of the
President is thus subordinate to his executive power, which is exercisable by him on
the advice of the Cabinet.

Diplomatic Powers

As the head of the State, the President sends and receives Ambassadors, and other
diplomatic representatives. All treaties and international agreements are negotiated
and concluded in the name of the President though subject to ratification by
Parliament.

Emergency Powers

Part XVIII (i. e., Articles 352 to 360) of the Constitutions arms the President with
enormous emergency powers. The emergencies envisaged under the Constitution are
of three kinds:
(1) emergency arising out of war, external aggression or armed rebellion,
(2) emergency due to failure of constitutional machinery in the State,
(3) financial emergency.

If the President is satisfied that the security of India is threatened by foreign attack,
armed rebellion or war [Art. 352 (1)] or9 if either on the receipt of report of the
Governor of the
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State or otherwise he is satisfied that a situation has arisen in which the Government
of State cannot be carried on in accordance with the provisions of the Constitution
[Art. 356 (2)] or a situation has arisen whereby the financial stability of India is
threatened [Art. 360 (1)] he may proclaim an emergency. A proclamation of
emergency may be revoked by a subsequent proclamation. Such a proclamation must
be laid before each House of Parliament and ceases to operate at the expiration of one
month unless approved by the two Houses. The President may, during the period of
emergency suspend the right to move the courts for the enforcement of fundamental
rights [Art. 359 (except Arts. 21 and 22)]. He may give directions to any State as to
the manner in which the State should exercise its executive powers.

In the case of emergency arising out of failure of constitutional machinery in the State
the President may assume any of the powers vested in the Governor. The Power of
State Legislature shall be exercised by or under the authority of President. Such a
proclamation ceases to operate at the expiry of two months unless approved by both
Houses of State Legislature [Arts. 356, 357]. Under the proclamation of financial
emergency the Union Government may give such financial direction to the State as it
deems fit. The President may direct the reduction of salaries of any class of State
officials, the Judges of the Supreme Court and the High Court. He may require all
State money Bills to be reserved for consideration of the President.

Legislative Powers

The President of India is a component part of the Union Parliament. In theory he

possesses extensive legislative powers. He has power to summon and prorogue the
Parliament and he can dissolve the Lok Sabha. Article 85 (1), however, imposes a
restriction on his power. The President is bound to summon Parliament within six
months from the last sitting of the former session. If there is a conflict between the
two Houses of Parliament over an ordinary Bill he can call a joint sitting of both
Houses, to resolve the deadlock (Art. 108). At the commencement of each session the
President addresses either House of Parliament of a joint session of the Parliament. In
his address to joint session of Parliament he outlines the general policy and
programme of the Government. His speech is like that of the King in England and is
prepared by the Prime Minister. He may send a message to either House of Parliament
(Art. 86).

Every Bill passed by both Houses of Parliament is to be sent to the President for his
assent (Art. 111). He may give his assent to the Bill, or withhold his assent or in the
case of a bill other than a money-bill, may return it to the House for reconsideration
on the line suggested by him. If the bill is again passed by both the Houses of the
Parliament with or without amendment, he must give his assent to it when it is sent to
him for the second time. A bill for the recognition of a new State or alteration of State
boundaries can only be introduced in either House of the Parliament after his
recommendation [Art. 3]. The State Bills for imposing restrictions on freedom of
trade and commerce require his recommendation (Art. 304). He nominates 12
members of the Rajya Sabha from among persons having special knowledge or
practical experience of Literature, Science,1Art and Social Services [Art. 80 (3)]. He is
authorized by the Constitution to nominate1two anglo-

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Indians to the Lok Sabha, if he is of opinion that the anglo-Indians community is not
adequately represented in that House (Art. 331). The President has to lay before the
Parliament
• the Annual Finance Budget,
• the report of Auditor-General,
• the recommendations of the Finance Commission,
• Report of the Union Public Service Commission,
• report of the Special Commission for Scheduled Castes and Scheduled Tribes,
• the report of the Commission of the Backward Classes
• the report of the Special Officer for linguistic minorities.

Ordinance - making Power of the President - Art. 123

The most important legislative power of the President is his Ordinance-making rower.
If at any time, when both Houses of the Parliament are not in session and the
President is satisfied that circumstances exist which render it necessary for him to
take Immediate action, he may issue such Ordinance as the circumstances appear to
him to require. The Ordinances issued by him shall have the same force as an Act of
Parliament. Such Ordinances, however, must be laid before both Houses of
Parliament and shall cease to operate, at the expiry of six weeks from the date of re-
assembly of Parliament, unless a resolution disapproving it is passed by both Houses
before the expiration of six weeks. The President may, if he likes, withdraw such an
Ordinance at any time. An Ordinance promulgated under Art. 123 is a law having the
same force and effect as an Act of Parliament. It cannot be treated as an executive
action or an administrative decision. The Ordinance-making power has been vested in
the President to deal with unforeseen or urgent matters.

The Ordinance-making power is exercised by the President on his own ‘satisfaction’.

The court cannot inquire into the reasons for the subjective satisfaction of the
President or into the sufficiency of those reasons. The existence of necessity for
promulgating the Ordinance is not justiciable. The validity of an Ordinance cannot be
tested on grounds similar to those on which an executive or judicial action is tested.
The question whether a statute is constitutional or not is always a question of power
of the Legislature concerned depending on the subject-matter of the statute, the
manner in which it is accomplished and the mode of enacting it. The motive of the
Legislature in passing a statute is beyond the scrutiny of courts. The propriety,
expediency and necessity of a legislative act are for the determination of the
legislative authority and are not for determination by the Courts. An Ordinance
passed under Arts. 123 and 213 stands on the same footing. Thus the validity of an
Ordinance cannot be challenged on the grounds of non-application of mind, more so
when it has been promulgated on the basis of a policy decision taken by the
government.

An Ordinance can be issued only when both the Houses of the Parliament are not in
session. It follows from this that an Ordinance can be issued when only one House is
in session because a law cannot be passed 1 by one House alone. It is to be noted
that the 2
satisfaction is not the personal satisfaction of the President. In reality, it is the
satisfaction of the Cabinet on whose advice the President exercises his Ordinance-
making power.

The Ordinance-making power of the President is co-extensive with the legislative

power of the Parliament, that is to say, that it may be related to any subject in respect
of which Parliament has power to legislate. Hence, an Ordinance will be void in so far
it makes any provision which under the Constitution the Parliament is not competent
to make. [Cl. (3)]. Thus an Ordinance cannot violate the fundamental rights.

The power to issue an Ordinance is power of the executive to legislate. The power is
plenary within its field and there are no limitations upon that power except those to
which legislative power of the State is subject to. Therefore, though an Ordinance can
be invalidated for contravention of constitutional limitations it cannot be invalidated
on grounds of non-application of mind or mala fides. An executive act can be struck
down on the ground to non-application of mind, not the Act of a Legislature.

In no country, except India, the Executive is vested with legislative power. The Indian
Constitution expressly confers power to make Ordinances on the President. The
power to make Ordinances is justified on the ground that the President must be armed
with powers to meet with serious situation when the Houses of Parliament are not in
session. It is not difficult to imagine the cases when ordinary law-making powers may
not be able to deal with a situation, which may suddenly and immediately arise. Art.
123 cannot be said to be undemocratic. In such circumstances, the executive must
have power to take immediate action by issuing Ordinances. With all the
constitutional safeguards there is possibility of abuse of the Ordinance-making power
by the executive.

Pardoning Power

Under Article 72 President has power to grant pardons, reprieves, respites or

remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence
(1) by Court Martial;
(2) an offence against any law relating to a matter to which the executive power of
the Union extends;
(3) in all cases in which the sentence is one of death.
THE OBJECT OF CONFERRING THE ‘JUDICIAL’ POWER ON THE PRESIDENT IS TO
CORRECT POSSIBLE JUDICIAL ERRORS, FOR NO HUMAN SYSTEM OF JUDICIAL
ADMINISTRATION CAN BE FREE FROM IMPERFECTIONS.
• A pardon completely absolves the offender from all sentences and punishments
and disqualifications and places him in the same position as if he had never
committed the offence.
• Commutation means exchange of one thing for another. Here it means
substitution of one form of punishment 1 for another of a lighter character, e. g., for
rigorous imprisonment - simple imprisonment.
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• Remission means reduction of the amount of sentence without changing its
character e. g., a sentence of one year may be remitted to six months.

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 • Respite means awarding a lesser punishment on some special grounds, e. g., the pregnancy
of a woman offender.
• Reprieve means temporary suspension of death sentence, e. g., pending a
proceeding for pardon or commutation.

Pardoning Power - subject to judicial review

In a significant judgment in Epuran Sudhar v. Government of Andhra Pradesh, the Supreme

Court has held that the pardoning powers of the President under Article 72 and the Governors
under Article 161 is subject to judicial review. Pardoning power cannot be exercised on the
basis of caste or political reasons. In the instant case a Congress worker was convicted for
murder of a worker of the Telgu Desham. He was awarded death sentence by the Court. He
was granted pardon by the then Governor Mr. Shinde, who is at present Minister of Power
under the U.P.A. Government. The murdered person's son had challenged the constitutional
validity of the Governor's pardoning power in the High Court of Andhra Pradesh. The High
Court had quashed the order of pardoning of the Governor on the ground that it was exercised
on the political ground. The Government of Andhra Pradesh filed an appeal against the
judgment of the High Court in the Supreme Court. The Supreme Court, upholding the
judgment of the High Court, 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.

OR

The President (Article 52):

The first and foremost part of the Executive is the President. Article 52 states that
there shall be a President of India. The President is considered the Executive head of
the country. All the Executive business of the country is carried out in the name of the
President.
So the question arises that if President is the executive head and all actions are in his
name, and the President has to carry out many functions, then can there be the
performance of an act not mentioned in any specific legislation by the Executive?
The same was answered in the case of Ram Jawaya Kapoor v. the State of Punjab, the
Government invited textbooks from authors for approval. When textbooks were
approved, the authors were made to enter an agreement. According to this agreement,
the copyright of these books vested solely in the Government. The authors only got
5% royalty on the sale of the textbooks. The Government took all the publishing,
printing and selling rights of the books in their own hands.
The Court held that these provisions were ultra-vires to the constitutional power. The
government being an executory body did not possess the power to enter into that
activity or trade without specific legislations.
No restriction on the executive powers is defined in the Indian Constitution. The

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Court held that the executive cannot be restricted to mere implementations of
legislations. There is a strict separation of powers but no strict separation of functions.
1. Powers of the President
The President of India is provided with a wide range of power that we will discuss
one by one. Let’s start with the most interesting and important power i.e. the
executive powers.

Executive powers
Article 53 of the Indian Constitution states that all the executive powers of the Union
will be vested in the President of India. President is allowed to exercise his executive
powers through officers subordinate to him, directly or indirectly, in consonance to
the provisions of the Constitution.
Under this article, the President has powers regarding:
 Appointment of the high authorities of the Constitution like the Prime Minister
and the Council of Ministers;
 Right of being informed about all the national affairs;
 Appointment of the judges of the constitutional courts(Supreme Court and High
Courts);
 Appointment of the state Governors, the Attorney General, the Comptroller, and
Auditor General, the Chief Commissioner and members of the Election
Commission of India;
 Administration of Union territories and appointment of the Chief Commissioners
and Lieutenant Governor of the Centrally Administered Areas;
 Removal of the Council of Ministers, the state Governors, the Attorney General.

Military powers
Article 53 also states that the President shall be the Supreme Commander of all the
Armed Forces of the Union of India. It also states that no specific provisions can
reduce the scope of this general principle.
As the Supreme Commander of the Armed Forces of the Union, President has powers
regarding:
 Appointment of all the officers, including the appointment of the chiefs of the forces;
 Wars are waged in the name of the President;
 Peace is concluded in the name of the President.

Diplomatic powers
The President forms the face of Indian diplomacy and helps the nation to maintain cordial
relationships with countries across the globe.
 All the Ambassadors and high commissioners in foreign nations
are his representatives;
 He receives the credentials of the Diplomatic representatives of other nations;
 Prior to ratification by Parliament, the treaties and agreements with other nations,
are negotiated by the President.
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Legislative powers
The President also enjoys certain legislative powers like:
 During the budget session, the President is the first to address the Parliament;
 The President is empowered to summon a joint session in order to break
the deadlock in the legislation process between the two Houses of the
Parliament;
 President sanction is mandatory in cases of provisions relating to:
1. creating a new state;
2. changes in the boundary of existing states;
3. a change in the name of a state.
 Legislative provisions relating to fundamental rights of the citizens of India
require the President’s consent;
 President’s consent is mandatory in cases of money bill originating in Lok sabha;
 President’s consent is necessary for all the bills passed by the Parliament to
become a law;
 President is empowered to promulgate ordinances when the Parliament is
not in session;
 President also nominates the members of both the Houses.

Ordinance making power of the President:

Article 123
Article 123 talks about the presidential powers to promulgate ordinances. An
ordinance can be promulgated if:
 neither of the House of the Parliament is in session;
 and the President feels a need for immediate action.
The ordinance which is promulgated by the President will have the same effect as that
of an act or law of the Parliament.
The essential conditions to be met by an ordinance are:
 It shall be presented before both the Houses of Parliament for passing when it
comes to the session;
 The ordinance shall cease to operate six weeks after the date of reassembling of
the parliament;
 The ordinance may also expire if the resolutions disapproving it are passed by
both the Houses of Parliament;
 It can be withdrawn at any time by the President;
 The ordinance must be in consonance to the Constitution of India else it
shall be declared void.

Financial Roles
 President receives reports of the Finance Commission and acts on its report.
 The Contingency Funds of India are at the disposal of the President.
 He also causes the presentation of audits in the Parliament.

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Judicial powers
The President enjoys the following privileges as his judicial powers:
 He can rectify the judicial errors;
 He exercises the power of grant of pardons and reprieves of punishments;
 President can seek the advice of Supreme Courts on:
1. Legal matters,
2. Constitutional matter,
3. Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the
President. President can grant pardons, respites, reprieves, and remissions of
punishments or remit suspend or commute the sentence given to a person by the court
in the following cases:
 When the sentence is granted through a court-martial;
 When the sentence or punishment is given for offense of violation of any law
relating to matters that fall in the ambit of Union’s executive powers;
 When a death sentence is passed by a court.
Clemency Power not unbridled
Unbridled Ness of the pardoning powers of the president has always been a highly
debated issue. Supreme Court in various cases has laid down provisions for exercising
control over the pardoning powers of the Executive.
In Maru Ram Etc. Vs. Union of India, Supreme Court held that pardoning
power under Article 72 is to be exercised by the President, on the advice of Central
Government and not on his own will and that the advice is binding on the head of the
Republic.
In Dhananjay Chatterjee alias Dhana v State of West Bengal, the Supreme Court
reiterated the same.
Nature of Pardoning Power
Indian Presidents are known for the generous grant of pardons. Pardon is an act of
grace and not a form of a right to be demanded by any person. Unlike the
Constitutional provision, Pardon is granted by the executive as a whole and not by the
President alone. This is done as it is necessary for the President to act on the aid and
advice of the Council of Ministers.
A pardon completely sets free an offender of all his guilt. A full pardon makes the
person innocent in the eyes of law as if he has never committed a crime. It gives him
the identity as that of a new man with a new set of capacities.
The pardoning power comes with discretion on the part of the President. The practice
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to confer the right of pardon on some authority has long existed. It is also practised in
other countries, for example, the U.S. Constitution prescribes for the power of pardon
to the President whereas, In the United Kingdom, the same is conferred to the Crown.
Pardoning Power: subject to judicial review
The question that arises is whether the pardoning power of the president can be
brought under the judicial review. Can the judicial review of such an order be done?
What could be the grounds for judicial review of such orders?
In Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors the court held
that the pardoning powers of the president under Article 72 can be examined
according to the facts and circumstances of each case. The Court has the power of
judicial review even on a matter which the Constitution has vested solely in the
Executive.
The most significant case of Kehar Singh And Anr. Etc Vs. Union of India
And Anr. Dealt with the concept of judicial review of the President’s pardoning
power on grounds of its merit. In this case, the Supreme Court held that - The terms
and history of Article 72 as well as the specific guidelines and case laws relating to
Article 72 clearly indicate that the ambit of Article 72 very wide. The powers under
this article cannot be clearly defined or channelized with specific guidelines. The term
“pardon“ itself signifies it to be discretionary. Hence, the grant or rejection of pardons
cannot be reasoned and the order of President cannot be brought under judicial review
with respect to its merits.
Whereas In Epuru Sudhakar Case, where a Congress activist faced ten years in
prison in connection with the killing of two persons including a TDP activist. His
punishment was remitted by the Governor of Andhra Pradesh. Contentions were
raised regarding the immunity of the pardoning power. The Supreme Court bench
stated that the exercise of pardoning powers would be subject to judicial review by
the court against the maintenance of Rule of Law.
Exercising powers of clemency is a matter of discretion but still subject to certain
standards and not a matter of privilege. The power of executive clemency is a matter
of performance of official duty and not only for benefiting the convict. During
exercising such powers the President must also consider the effect of his decision on
the family of the victims, the society and the precedent it sets for the future.
Thus this judgment settled position of law that immunity from the judicial review can
not be granted to the President for exercise or non-exercise of the pardoning power.
Emergency Powers
Article 352 of the Constitution of India grants President, three kinds of emergency
powers as well:
 When a National Emergency is declared in case of external aggression or internal
armed rebellion, the President holds the powers to declare a state of emergency.
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 Thus the President’s rule gets established in the country. However, the prime
minister and the Council of Ministers must recommend such an emergency;
 When there exists a constitutional or law and order breakdown situation in a state,
the President may declare a state of emergency in such cases. The state would
then come under Governor’s rule;
 Whenever the financial stability of the nation or any country is seriously affected,
the President has the right to intervene and direct the state to check and maintain
public expenditure.

Qualifications: Article 58
After knowing that President is the Executive Head of the entire nation, you might too
aspire to become a president. So let’s analyze the eligibility and all the specific
requirements, you would be needing to become the President of India?
Article 58 talks about the eligibility of a person to become President of India. It says
that a person is eligible for election as President if he:
 is a citizen of India;
 completed the age of thirty-five years;
 is qualified for election as a member of the House of the People.
A person can be disqualified for election as President if he holds any office of profit under
 the Union of India or;
 the Government of any State or;
 under any local or other authority subject to the control of any Government of India.

Condition of President’s Office: Article 59

The eligibility to become the President might seem simple but the conditions his
office are quite strict. Article 59 of the Indian Constitution talks about the conditions
of the President’s office. It says:
 The President cannot be a member of either House of Parliament or of any other
House of the Legislature of any State.
 If he is a member of either House of Parliament or a member of a House of the
Legislature of any State, he will need to vacate his seat in that House on the date
of entering into his office as President.
 The President shall not hold any other office of profit.
 The President shall be authorized to the use of his official residences without rent.
 He shall be also authorized to emoluments, allowances, and privileges
determined by Parliament.
 The emoluments and allowances of the President cannot be diminished or
reduced during his term of office.

Procedure for impeachment of the President:

Article 61
The President of India can be impeached under Article 61, for the violation of the
Constitution, on the basis of charges preferred by either House of Parliament.

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A resolution with the proposal to prefer such charges must be signed by at least one-
fourth of the total members of the house. The resolution also needs to be passed by at
least two- thirds majority of the house.
When the resolution is passed by one of the Houses, the other House must investigate
the charges. The President has been granted the right to be present or to be
represented in such investigations.
When the House investigating the charges passes the resolution by a two-thirds
majority and declares the charges as sustaining, it results in removing the President
from his office from the date of passing of the resolution.
Privileges of the President: Article 361
As President, you also enjoy some degree of immunity. Under Article 361, the
President is protected from being answerable to any court for:
 For exercise and performance of his powers and duties of his office;
 For doing any act or claimed of doing any act in the exercise of those powers and

Position of the President

The position of the President has changed, with respect to his discretion to use his
power, has changed since the inception of the Constitution. The two major changes
came through the 42nd and 44th Amendment Act of the Constitution.

Prior to the 42nd Amendment Act of 1976

Prior to the 42nd amendment to the Constitution, the President was free to make
decisions based on his wisdom. He may also consider the Council of Ministers for
their advice on the action. As the Constitution at that time talks about constituting a
Council of Ministers with a Prime Minister, as its head, to aid and advise the
President in carrying out his duties.

After the 42nd Amendment Act, 1976

Later, the Constitution was amended to add the phrase that the President shall act on
the aid and advice of the council of ministers. But the provision was still ambiguous
whether the advice given by the Council of Ministers is binding on the president or
not.

44th Amendment Act, 1978

This amendment was brought it to swipe off the ambiguity created by the 42nd
amendment. This provision said that:
 President can send back the advice to the Council of Ministers for
reconsideration once;
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  If the same advice is sent again without modifications by the Council then
President is bound to accept it.

2 Powers and Functions of the

Council of Ministers
The 45th Amendment to the Constitution has made it clear that such advice must be passed by a majority in
the Cabinet and rendered to the President in writing. All executive powers have formally been enumerated in
the name of the President. But, as has already been pointed out, ours is a Parliamentary Form of Government.
Therefore, our President is only a nominal head of the State and his powers, in fact, are exercised by the
Council of Ministers. Thus, the Powers of the Council of Ministers of India, headed by the Prime Minister, is
the most powerful institution in the Indian body politic.

The Council of Ministers

Article 74 of the Indian constitution states that:
 There should be a Council of Ministers to aid and advise the president;
 The Council of Ministers must have a Prime Minister at the head to aid and
advise the President;
 The President should exercise his functions and act in accordance with
advice rendered by the Council of Ministers;
 The Council of Ministers should reconsider any advice sent back by the President;
 The President is bound to act in accordance with the advice tendered by the
Council, after reconsideration.

4. U.N. Rao v. Indira Gandhi (1971): The Supreme Court held that the Council
of Ministers continues to hold office even after the dissolution of the Lok
Sabha, emphasizing the mandatory nature of Article 74(1).

Categories of Ministers
 Cabinet Ministers: They are the most important members of the Council of Ministers. They are the
full-fledged ent Ministers who hold important portfolios.
 Ministers of State : They are the second category of Ministers. They may or may not hold an
independent charge of any portfolio. The Prime Minister may or may not consult them.
 Deputy Ministers : They are the third category of Ministers who assist the Cabinet Ministers and
the Council of Ministers.
 Term of Office: Constitutionally, the Prime Minister and his Council of Ministers hold office till the
pleasure of the President’. But the President has little power even in this regard. The Prime Minister
and the Council of Ministers are directly responsible to the Lok Sabha and can remain in office so
long as they enjoy the majority support in Lok Sabha).
Powers and Functions of the Council of Ministers
The functions of the Council of Ministers has two major aspects: Policy-making and Implementation.
1. Policy-making: The Council of Ministers are always the most experienced, the most influential and
the most trusted members of the ruling party. As deciding policy matters is a very crucial
responsibility, it comes under the Powers of Council of Ministers of India. They decide and frame
policies regarding each and every branch of the Government in their meetings. Within the Cabinet
room they have every right to differ on policy matters. But once a decision is made, they are expected
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 to speak in one voice. They cannot criticise such a policy in public. That is why this aspect is known
as the collective responsibility of the Cabinet.
2. Implementation: Once a policy decision is taken on any subject, it is conveyed to the Minister of State
and the Deputy Minister of the concerned Ministry. They chalk out its broad details and hand them
over to the civil servants related to that Ministry to translate them into practice. In this way, the
business of the Government is managed jointly by the Council of Ministers with the help of the civil
servants concerned.
Keshavananda Bharati v. State of Kerala (1973)
 Citation: Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461
 Summary: While primarily a case about the Basic Structure doctrine, it also touched upon the
powers of the Council of Ministers. The Supreme Court held that the Parliament cannot alter
the basic structure of the Constitution, which includes the democratic framework that
empowers the Council of Ministers.

Following are some of the Powers of Council of Ministers of India

1. All the departments of the Government are under the control of the Ministers and it is their responsibility to
run the administration in a good manner.
2. It is the function of the Council of ministers to maintain order and peace in the state.
3. They introduce Bills, participate in the discussion and cast their vote.
4. The budget of the states is prepared by the Council of Ministers.
5. They review the work of planning and the Planning Commission.
6. Managing the foreign tours of the President and other ministers also comes under the functions of the
Council of Ministers
 Samsher Singh v. State of Punjab (1974): The Court reiterated that the President and the Governor
act as constitutional heads and exercise their powers only on the advice of the Council of Ministers.

What is the role of the Council of Ministers ?

The role Council of Ministersof can be enumerated as under:
(1) Formulation, execution, evaluation and revision of public policy in various spheres which the party in
power seeks to progress and practice.
(2) Coordination among various ministries and other organs of the government which might indulge in
conflicts, wastefulness, duplication of functions and empire building.
(3) Preparation and monitoring of the legislative agenda which translated the policies of the government in
action through statutory enactments.
(4) Executive control over administration through appointments, rule making powers and handling of crises
and disasters – natural as well as political.
(5) Financial management through fiscal control and operation of funds like Consolidated Fund and
Contingency Funds of India.
Or
Role of Union Council of Ministers (CoM)
The role of the Council of Ministers can be seen in the following points:
 It is the highest decision-making authority of the Central Government.
 It is the chief policy-formulating body of the Central Government.
 It is the supreme executive authority of the Central Government.
 It is the chief coordinator of the Central Government.
 It is an advisory body to the President.
 It acts as the chief crisis manager in case of emergencies.
 It deals with all major legislative and financial matters.
 It exercises control over higher appointments.
 It deals with all foreign policies and affairs.

Conclusion
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In a parliamentary form of government,the principle of collective responsibility is very important. It means
that the council of ministers is collectively responsible to the parliament. The responsibility of the
government is not of one minister but of all the ministers. If something goes wrong with the policy of only
one minister, the whole council of ministers takes the responsibility. If the parliament rejects the policy of that
minister all the ministers have to resign and not that particular minister alone. Remember all the ministers
swim and sink together.

3 Power and Function of Prime

Minister
Article 75 of the Indian Constitution mentions that a Prime Minister is one who is appointed by the President.
There is no specific procedure for his election or appointment. Article 74(1) states that there shall be a
Council of Ministers with a Prime Minister at the head to aid and advise the President.
Under a parliamentary or semi-presidential system, the prime minister is the leader of the ministry and the
head of the council of ministers in the executive arm of government. The President appoints the Prime
Minister under Article 75 of the Indian Constitution. Article 74(1) establishes a Council of Ministers, led by
the Prime Minister, to assist and advise the President.

The Prime Minister of India

The President is the nominal executive power (de jure executive) conferred by the Constitution underneath
the parliamentary system of government. At the same moment, the Prime Minister is the real executive
authority (de facto executive).
In other words, the President is the head of state, but the Prime Minister is the head of government.
The mechanism for selecting and appointing the Prime Minister is not specified in the Constitution.
Article 75 solely states that the President appoints the Prime Minister.
Parliament sets the Prime Minister’s salary and allowances regularly. They are paid the same amount as
salary and allowances as a member of Parliament.

Is Prime Minister of India elected or appointed?

President of India appoints a person as the Prime Minister who is either the leader of the party which holds a
majority of seats in the Lok Sabha or is a person who is able to win the confidence of the Lok Sabha by
gaining the support of other political parties. All other ministers are appointed by the President on the advice
of the Prime Minister.
Note: President can also appoint Prime Minister on his own discretion but only when no party has a clear
majority in the Lok Sabha. To get the list of Prime Ministers of India, candidates can check the linked article.

Prime Ministerial Post Eligibility

o He must be a citizen of India.
o He must be a member of either the Rajya Sabha or the Lok Sabha at the time of taking the oath or be
a member of either House within six months of appointment.
o He must be 30 years old if he is a member of the Rajya Sabha, but he could be 25 if he is a member of
the Lok Sabha.

Power and Function of Prime Minister

Prime Minister of India serves the country by following various functions. He performs his functions taking
responsibilities as:
 The leader of the Country: The Prime Minister of India is the Head of the Government of India.

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  Portfolio allocation: The Prime Minister has the authority to assign portfolios to the Ministers.
 Chairman of the Cabinet: The Prime Minister is the chairman of the cabinet and presides the
meetings of the Cabinet. He can impose his decision if there is a crucial opinion difference among the
members.
 Official Representative of the country: Prime minister represents the country for high-level
international meetings
 The link between the President and the Cabinet: The Prime Minister acts as the link between
President and cabinet. He communicates all decisions of the Cabinet to the President which is related
to the administration of the affairs of the Union and proposals for legislation.
 Head: The Prime Minister is the head of Nuclear Command Authority, NITI Aayog, Appointments
Committee of the Cabinet, Department of Atomic Energy, Department of Space and Ministry of
Personnel, Public Grievances and Pensions.
 Chief Advisor: He acts as the chief advisor to the President
Like Prime Minister is the head of Union Parliament, the Chief Minister is the head of state parliament.
1. U.N. Rao v. Indira Gandhi (1971)
 Citation: U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002
 Summary: This case emphasized the binding nature of the advice given by the Prime
Minister and the Council of Ministers to the President. The Supreme Court ruled that the
President must act according to the advice of the Council of Ministers, which is headed by
the Prime Minister.

Or
The Prime Minister’s Powers and Functions
The Prime Minister’s powers and functions can be reviewed under the following headings:
In relation to the Ministerial Council
As the chairman of the Union council of ministers, the Prime Minister has the following powers:
 They make recommendations to the President for ministerial appointments. The President can only
appoint ministers who the Prime Minister has proposed.
 They assign and reassign certain portfolios to ministers.
 In a disagreement, they might ask a minister to resign or suggest the President fire him.
 The council of ministers’ meeting is presided over by this individual, and their decisions are affected
by their decision.
 They preside over the council of ministers and affect its decisions.
 They direct, direct, manage and organise the work of all ministries.
 By retiring from office, they can put the council of ministers to an end.
 The Prime Minister is the Head of the Council of Ministers
In Relation to the President
In regard to the President, the Prime Minister has the following authority:
They are the primary point of contact between the President and the Council of Ministers. It is the prime
minister’s responsibility to:
1. All decisions of the council of ministers relevant to the management and legislative initiatives of the
Union should be transmitted to the President.
2. To provide such information about the administration of the Union’s affairs and legislative ideas as
the President may request.
3. If the President so directs, present to the council of ministers any topic on which a minister has made
a decision but has not been reviewed by the council.
They advise the President on key appointments such as with the Attorney General of India, the Chairman and
Members of the UPSC, the Comptroller and Auditor General of India, election commissioners, the Chairman
and Members of the Finance Commission, and so on.
Regarding the Parliament
 The Prime Minister is the Lower House’s leader. As a result, they have the following abilities:
 He counsels the President on the convening and adjourning of Parliamentary sessions.
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  At any time, he can recommend the dissolution of the Lok Sabha to the President.
 He announces government initiatives on the House floor.
Other Powers and Functions
 They are the heads of the NITI Ayog (which succeeded the Planning Commission), the National
Integration Council, the InterState Council, the National Water Resources Council, and a number of
other organisations.
 They have had a massive impact on the country’s foreign policy.
 He is the Union government’s leading spokesman.
 During a crisis, he is the political crisis manager.
 As the nation’s leader, he meets with diverse groups of people in various states and gets memos about
their issues, among other things.
 He is the main face and the leader of the ruling party and the political head of the armed forces.
 Samsher Singh v. State of Punjab (1974)
 Citation: Samsher Singh v. State of Punjab, AIR 1974 SC 2192

 Summary: The Supreme Court reiterated that the President acts on the
advice of the Prime Minister and the Council of Ministers, reinforcing the
principle of collective responsibility.

Who is eligible to be a Prime Minister?

To become an Indian prime minister one has to be
 A citizen of India.
 A member of either Rajya Sabha or Lok Sabha
 He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of
age if he is a member of the Lok Sabha

Position of the Prime Minister

Right from the days of the first Prime Minister Pandit Jawaharlal Nehru, the Prime Minister is treated at a
much higher pedestal. His preeminence rests on his commanding position in the Cabinet, coupled with fact
that he is the leader of the majority party.
All these positions of power when combined in one person make him rank much above an ordinary Minister.
The death or resignation of the Prime Minister automatically brings about the dissolution of the Council of
Ministers. It generates a vacuum. The demise, resignation or dismissal of a Minister creates only a vacancy
which the Prime Minister may or may not like to fill. The Government cannot function without a Prime
Minister but the absence of a Minister can be easily compensated.
1. S.R. Bommai v. Union of India (1994)
 Citation: S.R. Bommai v. Union of India, AIR 1994 SC 1918
 Summary: This case dealt with the imposition of President's Rule under Article 356. The
Supreme Court ruled that the advice of the Prime Minister and the Council of Ministers must
be based on the confidence of the Lok Sabha, emphasizing the accountability of the Prime
Minister.

Duties of Prime Minister

There is actually the presence of many duties that a Prime Minister does generally have. Out of the many, the
major and the most important three tasks or roles of a prime minister are listed down below:
 Meetings: It is the most important and the most crucial duty of a prime minister. The meetings are
generally held by the prime minister in order to have an effective and efficient examination of the
constitutional amendment bills.
 Selection of Members: The Prime Minister of a country has the power in the selection of members
for the cabinet minister of the Union Government. These selected members are later given the

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 position of different ministries of the central government to look after the welfare of the country. The
appointment of the ministers is actually done by the president. The prime minister asks the president
to nominate these specific personalities as the upcoming selected member of the Cabinet Ministry.
 Government Policy: The Prime Minister has the power to decide which policy of the Government is
to be incorporated or selected. The Prime Minister plays an active role not only in the formulation of
the above-mentioned policies but also in successfully implementing these policies into action. The
Prime Minister present in the country of India has been observed to serve many important policies of
the government. This has helped the country of India to grow in the economy and also change in the
livelihood of the countrymen can be ascertained.
 Spokesperson: This can be considered as one of the most important and the most crucial duties of the
Prime Minister. The main reason being this is that a prime minister is generally considered to be the
most important representative of the country towards the world. The Prime Minister also orders the
President in the effective choice of ministers. The Prime Minister addresses the people of the country
about what exactly the Government is planning to do to successfully undertake challenging or critical
situations.

Conclusion
As a result, the Prime Minister plays an essential and critical function in the country’s politico-administrative
structure. Dr. B.R. Ambedkar stated, ‘If any official under our constitution is likened to the US president, it
would be the Prime Minister, not the Union’s leader. The Prime Minister is the Head of the Council of
Ministers.

4 Collective and Individual

Responsibility
The term individual responsibility finds its mention in Article 75 of the Indian constitution. According to
which ministers are individually responsible to the president. The concept of individual responsibility comes
from the Westminster model.

Introduction
Individual Ministerial responsibility is a concept in which the ministers are responsible not only for their own
acts but also for the departments in control. It further provides a basis for accountability for the government
hence the minister is under obligation to answer the parliament for the malpractices.

Definition
The definition of individual ministerial responsibility is given by Sir Ivor Jennings which has two elements.
The first element is that the minister is responsible for both his personal and general conduct and the second
element being that the minister is also responsible for the acts done or not done by the officials of his
department.

Doctrine
The doctrine is a convention to control the arbitrary power of the government. It creates a system of checks
and balances in the government. It further also acts as a watchdog and protects the social interest.

Origin
The concept developed with the coming of political parties. It came into being in the nineteenth century after
the ministers thought to gain dominance over the ministerial department. It originated in the UK mainly
because it has an unwritten Constitution and as no statue was present regarding this convention.

Aspects
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There are three aspects to individual ministerial responsibility-
1. it basically is the misuse of the position for their personal gains.
2. -it concerns with the various ministerial portfolio
3. ‌this minister is responsible for all its arms and departments.
In terms of responsibility of the ministers the constitution tells us about three main responsibilities –
1. Collective responsibility– Collective responsibility (mentioned in Article-75) is the core principle on
which our parliamentary system works. According to this principle the council of ministers are
collectively responsible to the Lok Sabha. This further means that they have joint
responsibility towards Lok Sabha for their being in confidence or commission or not being in
confidence i.e. omission
2. Individual responsibility-It also finds mention in Article 75 of the constitution. It states that the
ministers holds office in the pleasure of the president from which we can infer that the president has
the power to remove the minister even if the council of ministers enjoys majority or confidence on the
floor of the house but there is an important condition to it .As we all know that India has
parliamentary form of government that we have taken from Britain .Since India follows the
Westminster model wherein the president is not the real executive and is mere a rubber stamp it
needs to exercise its power under the real head that is the council of ministers headed by the Prime
minister. According to article 74 of the constitution the president exercises his power under the aid
and advice of the council of ministers headed by the prime minister. Thus, we can conclude the
president can remove the ministers only on the advice of the prime minister.
3. No legal responsibility– In Britain every order is countersigned by the minister and in case of
violation the minister is held responsible while in India there is no such provision of legal
[Link] is not required that a presidential order is countersigned by the minister. Hence in
India we have the system of no legal responsibility.

Difference between individual and collective responsibility

It differs from the concept of collective responsibility since here the accountable minister has to take the
entire blame and resign and the rest of the ministers don’t have to pay for the repercussions of the single
minister. While in the collective responsibility the entire cabinet swim or sink together. Further it is found
that if any case of corruption, misbehavior in ministry or any such case will ultimately cause the minister to
resign even if the minister has no knowledge about it because ultimately the minister is the captain of the
ship of his ministry despite being unaware of the case minister led the accused civil servant or personnel
employed

Criteria for removal

1) In case of poor performance of a minister the Prime Minister can advise the President to dismiss him or
ask the minister to resign
2) in case of difference of opinion or dissatisfaction also the Prime minister can ask the President for removal.
Importance
1. The principle is important since it makes the minister accountable for every decision he takes.
2. It further helps the minister to scrutinize the affairs of his ministry to work effectively.
3. In order to maintain collective responsibility, there is a need for individual responsibility.
Current scenario
It has found that the concept has eroded and lost its significance in the current context. This basically means
that the ministers nowadays use the blame card on previous governments or ministers for any such act also
they have become more ignorant and are not bothered.
Conclusion
Individual responsibility is important as it motivates the minister to do good, it makes it accountable to the
government for its actions and further failing to do so he may have to face the consequences or may have to
resign. Thus, this doctrine is crucial for the effective functioning in the government.

“Collective responsibility” has been an essential principle of the parliamentary government of India.
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Collective responsibility means that the ministers of the council can make decisions for their own department.
It also means that they are held responsible to the parliament in any case of consequences. Therefore,
collective guilt that has also been known as “Collective responsibility” can be differentiated with
fundamental definition and clear estimation.
What is a Collective responsibility?
The definition of “Collective responsibility” can be provided with the perception or idea that involves
individuals of a group to act responsibly in order to fix the damage or harm that has been caused by other
individuals in the society or in the group. To the contrary, collective guilt has been identified with the
conception of individual behaviour that signifies the guilt within them for the harm or damage brought by the
other individuals in the group or society.
In this context, “Collective responsibility” contributes to the fundamental judgments of responsibility that
are correlated with certain other aspects of responsibilities of Councils. “Responsibility of councils” is more
or less associated with perceived entitativity, inference of commission, percept authority and inference of
omission.
Principles of “Collective Responsibility”
The principle of collective responsibility is considered the cornerstone of parliamentary form of the
government. In this aspect that two basic components to the collective responsibility
 The first one is the notion that ministers are able to conduct honest and open conversation before
reaching to the final consensus and thereby the deliberation can be kept private
 The second one is related to the position of cabinet that can be agreed upon by all the ministers that
are required to follow as well as the vote with the government for the position.
“Responsibility of Individual and collective responsibility”
The responsibility is provided with the convention where the individuals associated with the government or
the organisation can be held accountable for the decisions or actions taken by that government or organisation
as a whole. Therefore, “Collective responsibility” is increased by the responsibilities of individuals in the
group to measure their actions and to project that accordingly. It has been precisely constituted in constitution
and convention that “individual and collective responsibility” is to measure the authority and duty for the
actions of other people in the group by ignoring and tolerating them even in case the individuals are not
actively collaborating in the actions. “Collective responsibility”, followed by the “individual and collective
responsibility” has-been addressed in the constitutional convention that has been considered as the
cornerstone of cabinet government ever since the 18th century.
Benefits of “Collective Responsibilities”
 The collective responsibility avoids the contradictions between the Council of Ministers and cabinet.
 It provide benefits to the political loyalty and the party of the Prime Minister
 The collective responsibility helps to make the policy decision as well as the passing legislation.
 The collective responsibility is a consensus building machine among Ministers
Drawbacks of “Collective Responsibilities”
 The collective responsibility curbs the inner part of democracy where the cabinet ministers have to
openly agree with the decision of the prime minister.
 The initiatives of the individual ministers are curved giving away to the initiative of the party.
 On the other hand any urgent attention can be delayed due to the issues of collective responsibility
which is the biggest drawback of collective responsibility.
Conclusion
The following discussion has been addressed by signifying the contribution of “Collective responsibility”. In
order to do so, “Collective responsibility” has been defined with its specific aspects in terms of the
responsibility of individuals and that of the Council. In this context, “individual and collective
responsibility” has emerged with the role of individuals in order to act and conduct an entire organisation in
terms of defining and objectifying the actions and activities imposed by the members of the organisation. In
addition to that, the “Responsibility of councils” has been signified as well with their responsibilities in
terms of the judgement and decision interpreting the further accommodation of Lok Sabha.

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5 aid and advice theory
The “Council of Ministers” with the help of the prime minister, at the head can aid and advise the president
regarding the formation of the Government. In this respect the president can refuse the advice and aid of
the “Council of Ministers” based on the formulation of the constitution. Aid and advice are significant in
order to bind the president to abiding by the advice of their ministers. It also helps to emphasise the
ministerial characteristics of the government regarding their powers based on the legislation of the
constitution. The “State council of ministers” takes a significant role in the grant creation to the president
based on the constitution that can enable the amendment through the aid and advice of the “State council of
ministers”.

What are the collective responsibilities of the “council of ministers”?

The collective responsibility of the “council of ministers” is regarded as fundamental to the work of the
parliamentary government. The strength of the “Council of ministers” lies in the principle behind the
collective responsibilities for the general conduct of the affairs regarding the government. The term collective
means all ministers in the “Council of ministers” work together with the purpose of Government Activities.
The government assumes the responsibilities for the cabinet in terms of making decisions and taking action
for the implementation of rules and regulations at the same. The “state council of ministers” takes a
significant role in making any decision and taking any action regarding the legislation. The principle of
collective responsibility within the “state council of ministers” takes the participation for the formulations
of policies and their responsibility to the legislature concerned.
Therefore the question area of the state is also taken care of by the “council of ministers” and their
enforcement. It can be enforced by the process of the no-confidence motion that can be adjusted by the rule of
198 that discusses the procedure and rules regarding the functioning of LokSabha. In this respect,
the “council of ministers” aids and advises the president in the formation of a majority perspective with a
no-confidence motion.

What is the doctrine of the “aid and advice” of the “council of ministers”?
The “Council of Ministers” with the help of the prime minister is able to aid and advise the president
regarding the functioning and exercise of the states based on the Constitutional powers. In this perspective,
the president of the state may act in accordance with the tenured aid and advice after the reconsideration. The
42nd amendment “Article 74” states that the “Council of Ministers” with the help of the prime minister may
aid and advise the presidents in the exercise of the president’s function. However, there is much ambiguity
whether the advice of the “Council of Ministers” can be binding on the president or not. In addition, the
president can send the advice to the “Council of Ministers” for reconsideration in case the “state Council of
Ministers” and the same advice should be accepted by the president.

What if the “aid and advice” of the “council of ministers” is against the president’s wish?
The term advice does not imply that the advice of the “State council of ministers” must be accepted by the
president. This is simply obligated that the ministers need to tender that is needed to the president with regard
to the amendment and changes of the rules and regulations for the state. There is another factor related to the
suspect that the “constitution” needs to rely on. The interpretation of “Article 74” is significantly based on the
assumption that advice may bind the presidents with obligations based on the “constitutional act”.
The “Council of Ministers” can rely on the formation based on the legislative progression. The Supreme
Court can observe the advice of the ministry that should be followed by the president based on the rules.

Conclusion
Thus, it can be concluded that the position of president is more relevant when the instability and the “majority
perspective” of “council of ministers” advise. The provision regarding the responsibility and maintaining the
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protection of the constitution can be irregular due to the lack of a president. Based on this perspective the
“council of ministers” takes care of the “constitutional act” based on that they advise the Parliament regarding
the amendment and changes of the rules and regulations. It helps to provide a clear description of the
“controversial interpretations of the state” that can be conferred by the power of the “Council of ministers”

Or

The Doctrine of Aid and Advice is a fundamental principle in Indian constitutional law that governs the
relationship between the President of India and the Council of Ministers. This doctrine is primarily derived
from Article 74 of the Indian Constitution, which outlines the role of the Council of Ministers in advising the
President in the exercise of his functions. Below is a detailed explanation of the Doctrine of Aid and Advice,
its implications, and relevant case law.
Doctrine of Aid and Advice
Definition
The Doctrine of Aid and Advice posits that the President of India must act according to the advice given by
the Council of Ministers, headed by the Prime Minister. This means that the President's role is largely
ceremonial, and the real executive power lies with the Council of Ministers.
Constitutional Provisions
 Article 74(1): States that there shall be a Council of Ministers with the Prime Minister at its
head to aid and advise the President in the exercise of his functions.
 Article 74(2): Clarifies that the advice given by the Council of Ministers to the President
shall not be questioned in any court.

Implications of the Doctrine

3. Ceremonial Role of the President: The President acts on the advice of the Council of
Ministers, which means that the President's decisions are not independent but are based on
the recommendations of the elected government.
4. Collective Responsibility: The Council of Ministers is collectively responsible to the Lok
Sabha. If the Lok Sabha passes a no-confidence motion against the Council, all ministers,
including the Prime Minister, must resign.
5. Judicial Review: While the advice of the Council of Ministers is binding on the President,
the courts have the power to review the legality of the actions taken by the Council of
Ministers, especially if they violate constitutional provisions.
6. Political Accountability: The doctrine ensures that the executive is accountable to the
legislature, as the Council of Ministers must maintain the confidence of the Lok Sabha.

Case Laws Relating to the Doctrine of Aid and Advice

7. U.N. Rao v. Indira Gandhi (1971)
 Citation: U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002
 Summary: This case emphasized that the President must act according to the advice
of the Council of Ministers. The Supreme Court ruled that the advice given by the
Council of Ministers is binding on the President, reinforcing the principle of
collective responsibility.
8. Samsher Singh v. State of Punjab (1974)
 Citation: Samsher Singh v. State of Punjab, AIR 1974 SC 2192
 Summary: The Supreme Court reiterated that the President acts on the advice of the
Council of Ministers. The Court emphasized that the advice given by the Council of
Ministers is binding on the President, thereby reinforcing the aid and advice theory.
9. S.R. Bommai v. Union of India (1994)
 Citation: S.R. Bommai v. Union of India, AIR 1994 SC 1918
 Summary: This landmark judgment addressed the imposition of President's Rule
under Article 356. The Supreme Court ruled that the advice of the Council of
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 Ministers must be based on the confidence of the Lok Sabha, emphasizing the
accountability of the Council of Ministers to the elected legislature.

IAT 2
NATURE OF INDIAN FEDERALISM

INTRODUCTION
Federalism is the distribution of power within an organization or, it is a type of government in which, the
power is not only vested in the central government but rather, divided or shared among all the other
governmental units.  In the Indian system, it shows the relation between the Union and the States.  Thus,
sovereignty is split between two territorial levels so as to ensure their independence and equal distribution of
power.  The Constitution of India establishes a federal structure to the Indian government, it to be a "Union
of States" under Article 1.  Indian model of federalism is called the quasi-federal system as it contains major
features of both a federal and unitary government

There are many reasons why federalism was adopted in India.  One of the most important factors were the
vast size and diversity of the nation.  India is a diverse nation in many senses, be it religious diversity,
linguistic, regional or cultural.  Thus, it would pose great difficulties in administration and governance to a
unitary form of government and could eventually lead to a breakdown.  Thus, there was the requirement of
the system so designed to create harmony and prevent any action by the authorities which go beyond the
purview of the constitution, by a system of check and balance.

What is Federalism?
Federalism is a system of government in which power is divided between a central authority and smaller
political units, such as states or provinces. In a federal system, both the central (federal) and regional (state or
provincial) governments have their own areas of jurisdiction, with some powers shared between the two.

Federalism allows for a balance of power, ensuring that the central government can address national issues
like defense and foreign policy, while local governments can handle matters like education, health, and public
safety. This division helps manage the diverse needs of different regions, making it ideal for large, diverse
countries.
In McCulloch v. Maryland (1819), the Supreme Court upheld the power of Congress to establish a national
bank, affirming the doctrine of implied powers. This landmark case also established that states cannot tax
instruments of the federal government operating under valid constitutional authority. Chief Justice John
Marshall's ruling emphasized that while the Constitution lists specific powers, it also allows for implied
powers necessary to carry out those listed powers
The court decided that the Federal Government had the right and power to set up a Federal bank and that
states did not have the power to tax the Federal Government. Marshall ruled in favor of the Federal
Government and concluded, “the power to tax involves the power to destroy."

TYPES OF FEDERATION
In a federation system, there are two seats of power that are autonomous in their own spheres.  A federal
system is different from a unitary system in that sovereignty is constitutionally split between two territorial
levels so that each level can act independently of each other in some areas.
 There are two kinds of federations:
1. Holding Together Federation – In this type, powers are shared between various constituent parts to
accommodate the diversity in the whole entity. Here, powers are generally tilted towards the central authority.
Example: India, Spain, Belgium.

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2. Coming Together Federation – In this type, independent states come together to form a larger unit. Here,
states enjoy more autonomy as compared to the holding together kind of federation. Example: USA,
Australia, Switzerland.

Indian Federalism
India’s federal structure emerged after the country gained independence from British rule in 1947 and adopted
its Constitution in 1950. Unlike the U.S., India did not have a long tradition of decentralised governance.
During British colonial rule, India was largely governed as a unitary state, with significant control exercised
by the central authorities.
The framers of the Indian Constitution were influenced by the need to maintain unity and integrity in a
country with immense cultural, linguistic, and regional diversity. India’s federalism was designed to
accommodate these differences while ensuring a strong central government that could hold the country
together. As a result, Indian federalism has often been described as “quasi-federal” or a system that is federal
in structure but unitary in spirit.

In State of West Bengal v. Union of India, the Supreme Court addressed a dispute between the state and the
Union government regarding the acquisition of coal lands by the Union. The Court upheld the Coal Bearing
Areas (Acquisition and Development) Act, 1957, but ruled that the Union exceeded its constitutional powers
in this specific acquisition, according to Testbook. The case affirmed the principle of federalism, emphasizing
the balance between the Union and state authorities,
OR
The Supreme Court has exclusive and original jurisdiction over any legal disputes that may arise between
states or between states and the Union under a special provision of the Constitution known as Article 131. All
Indian citizens are guaranteed certain fundamental rights, and the court preserves those rights. Any violation
of such rights may be taken before the State’s High Court directly under article 226 or the Supreme Court
indirectly under Article 32 via writs granted by the Constitution. The State Government, however, is not
allowed to sue for the breach of fundamental rights, unlike citizens. As a result, the Supreme Court may
consider the matter in accordance with Article 131 when the State and the Centre differ on how to interpret
the Constitution and the State claims that its legal rights have been violated. The State of Madhya Pradesh v.
Union of India decision[v] from 2011 came to the contrary conclusion in spite of past judgements holding
that Article 131 could be used to evaluate the constitutionality of a law. Federalism is strongly reliant on a
few characteristics. The Union still has power over the states even if each one is allowed to make its own
laws. India can therefore be described as unitary in spirit and federal in nature.

NATURE OF INDIAN FEDERALISM

In a unitary form, the Centre has the sole administrative and legislative powers, whereas the states have very
little autonomy
 On the other hand, in a federal set-up, states which are formed on a linguistic or regional basis, have various
powers similar to that of the central government.

 India doesn't follow a rigid form of the federal system.

 Truly unique in its nature, it is rather a blend of federal form and unitary form of government.

 However, it is important to note that even though the powers of the states are sovereign in nature along with
the union, they do not coordinate with the Centre.

 In other words, it follows what is known as quasi-federalism.

State of Karnataka v. Union of India - The Indian Constitution is not federal in character but has been
characterized as quasi-federal in nature. The State of Karnataka v. Union of India (1977) case dealt with the
Central Government's power to establish a Commission of Inquiry under the Commissions of Inquiry Act,
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1952, particularly in relation to the state's chief minister and ministers. The Supreme Court upheld the validity
of the Commission, ruling that the central government's action was within its constitutional powers and didn't
violate the federal structure of India.

Unlike in other federations, the states in India have no right to territorial integrity.  Union has the power to
make new states or alter the boundaries of existing states.  Union has the power to make laws on state
matters and if both state and union adjudicate on a certain matter, the latter will prevail.  During an
emergency, the central government becomes all-powerful and the states go into total control of the Centre. 
The Governor is appointed by the President. Through him, the Centre exercises control over the states.  The
governor is empowered to reserve certain types of bills passed by the state legislature for the consideration of
the president. The president enjoys absolute veto over state bills
In the landmark Kesavananda Bharati v. State of Kerala case (1973), the Supreme Court established the
"basic structure doctrine," which limits the Parliament's power to amend the Constitution. This doctrine
essentially holds that while Parliament can amend the Constitution, it cannot alter or destroy its fundamental
features or core identity. This case significantly impacted India's federal structure by providing a mechanism
for judicial review of constitutional amendments, preventing potential abuses of power by the legislature.

FEATURES OF Federalism in India

Written Constitution
Both India and the United States have written constitutions that lay out the federal structure of government.
However, there are significant differences in the length, complexity, and flexibility of these documents.
The Indian Constitution, on the other hand, is the longest-written constitution in the world, consisting of a
preamble, 470 articles, 12 schedules, and numerous amendments. It is far more detailed than the U.S.
Constitution, outlining the powers, responsibilities, and functions of the central and state governments in great
detail. The Indian Constitution also includes specific provisions for dealing with emergencies, minority rights,
and special status for certain states.

Division of Powers
A key feature of federalism is the division of powers between the central and state governments. Both India
and the U.S. have clear provisions in their constitutions regarding this division, but the scope and nature of
these powers differ significantly.
In India, the division of powers is more complex and leans heavily toward the central government. The Indian
Constitution divides powers into three lists:
1. Union List: Contains subjects on which only the central government can legislate, such as defence,
foreign affairs, and atomic energy.
2. State List: Contains subjects on which only state governments can legislate, such as police, public
health, and agriculture.
3. Concurrent List: Contains subjects on which both the central and state governments can legislate,
such as criminal law, education, and marriage. In case of conflict, the law enacted by the central
government prevails.
The central government in India has more extensive powers than its U.S. counterpart. It can intervene in state
matters in several ways, including through the imposition of President’s Rule, whereby the central
government takes over the administration of a state if it deems it necessary.

Judiciary and Interpretation of Federalism

The role of the judiciary in interpreting the constitution and resolving disputes between the central and state
governments is crucial in both systems.
Indian Judiciary
In India, the judiciary, led by the Supreme Court of India, also plays a pivotal role in interpreting the
Constitution and resolving disputes between the central and state governments. However, the Indian judiciary
tends to favour the central government in cases of conflict. This is partly because the Constitution grants the
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central government significant powers to ensure national unity and stability.
The Indian Supreme Court has upheld the central government’s authority in cases such as the use of the
President’s Rule in states, and it has interpreted the Constitution in ways that often bolster the power of the
central government over the states.

Dual government structure with a Union government and State government

Evolution of Federalism
In India, the evolution of federalism has been marked by the increasing centralisation of power, especially in
the early decades after independence. The dominance of the Congress Party at both the central and state levels
allowed for strong central control over state governments. However, as regional parties have gained strength
in recent decades, there has been a push for greater state autonomy and a more balanced federal structure.

Constitutional Provisions regarding Centre-State Relations 

The constitution contains elaborate provisions to regulate the various dimensions of the relations between the
Centre and the states  The relations between Centre and state are divided as:

 A. Legislative relations: Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations
between the Centre and the State 

B. Administrative relations : The administrative jurisdiction of the Union and the State Governments extends
to the subjects in the Union list and State list respectively. Articles 257 to 267 deal with administrative
relation

 C. Financial relations : Indian Constitution has made elaborate provisions, relating to the distribution of the
taxes as well as non-tax revenues and the power of borrowing, supplemented by provisions for grants-inaid by
the Union to the States. Article 268 to 293 deals with the provisions of financial relations between Centre and
State

CONCLUSION
The presence or lack of federal flexibility plays a crucial role in shaping democracy. Although our
Constitution establishes a federal state in terms of structure of governments, but it adorns a unitary character
in terms of functions. It must be noted that whatever the structure of the Constitution and resultant
government is – federal, quasi-federal or unitary, its real nature depends on the spirit of ‘co-operative
federalism’ or ‘unitary centralism’. The beauty of the Indian Constitution is that it has been made relatively
flexible so as to showcase its federal or unitary face in accordance with the socio-political situations in the
country. Dr. Ambedkar, one of the architects of the Indian Constitution, rightly remarked, “Our Constitution
would be both unitary as well as federal according to the requirements of time and circumstances”. But
despite all these provisions that aimed at establishing a working balance between the requirements of national
unity and autonomy of the states, the union government needs to invest resources towards facilitating
effective consultation with the states as a part of the lawmaking process. It is critical to establish a system
where citizens and states are treated as partners and not subjects

Distribution of Legislative Powers

1 to 9

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