Indian Constitution At Work Chapter 4 Executive

Powers of the Vice-President:

1. He is the ex-officio chairman of the Rajya Sabha.

2. He shall act as acting President in the event of occurrence of vacancy in the office of President on account of his death, resignation, removal or otherwise.

D.

Executive that is dependent on support of the majority in the Parliament

1. Constitutional Monarchy ( in England).

2. Parliamentary Republic (In India).

The tenure of the President is five years from the date of his assuming the office. He can resign if he likes before the completion of his terms of office.

Removal of the President: If he does not work according to the Constitution, the Parliament can remove him from office through an impeachment.

Yes, President is the essential organ of Parliament. Parliament consists of all the three organs: 1. President 2. Rajya Sabha and 3. Lok Sabha.

Qualification for the post of a Governor:

1. He must be a citizen of India.

2. He must be at least 35 years old.

3. He must not be a member of the Parliament or of any State Legislature. If he is, he has to resign such membership.

4. He must not be holding any office of profit at any level of Government.

5. He must not be lunatic or an insolvent.

The Governor of a state is appointed by the President of India. While appointing the Governor the President has to see the qualifications mentioned in the Constitution. Though the formal appointment of the Governor is made by the President, yet actually he is a nominee of the Central Cabinet. In fact, this is a political post and the Prime Minister and the other members of the Cabinet would like to have men of their confidence on such key posts. A wrong system is being set up these days. The party/group in power at the centre are appointing retired or recalcitrant politicians as Governors.

Tenure of the Governor: Normally a Governor is appointed for five years, though he can resign his office before this period also. The President too, if he likes, can remove him from his office. Also, he can extend his office tenure. It must be noted that the State Legislature cannot remove a Governor.

The Governor is the head of the state. All the laws are executed in his name and he is responsible for the maintenance of peace and order in the state. All the important officials of the state are appointed by the Governor. He appoints Chief Minister and other ministers are appointed by him on the advice of the Chief Minister. He has the power to dismiss the Council of Ministers.

The Chief Minister is appointed by the Governor. If no party commands absolute majority in the Legislative Assembly, the Governor can use some discretion in appointing the Chief Minister. But he is to see that the Chief Minister can get the support of the majority in the Legislative Assembly. For example, in May 1982 when no party secured absolute majority in Haryana Legislative Assembly, the Governor G.D. Tapase appointed Congress (I) leader Mr. Bhajan Lal as Chief Minister.

Relation between the Governor and the Legislative Assembly:

1. It is the Governor who calls the sessions of the Legislative Assembly. Again it is he who suspends it and ends the sessions.

2. The Governor can dissolve fresh the Legislative Assembly and call for fresh elections.

3. The Governor can send messages to it.

4. He signs all the bills passed by the Legislative Assembly. Without his sanction, no bill can become a law.

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Relations between the Council of Ministers and the Legislative Assembly:

1. The Chief Minister, the head of the Council of Ministers, is the leader of the majority party/combine in the Legislative Assembly. Other ministers too are members of the Legislative Assembly.

2. The ministers take part in the meetings of the Legislature, move bills before it, discuss them and express their opinions.

3. The sessions of the Legislature are called after the will of the Council of Ministers.

The President is elected for a period of five years. The President can be removed from office by impeachment only. He can be impeached ‘for violation of the Constitution’. The impeachment charge may be initiated by either House of Parliament. If resolution is passed by a two-third majority of the total membership of the House then resolution is sent to the other House. If the other House also passes the resolution by a two-third majority then the President is removed from his office.

The Vice-President of India is elected by an electoral college consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be secret ballot. The two Houses need not sit together for this purpose.

Bureaucracy, generally, means government by the officers and it includes all the government servants who hold office on permanent basis till they retire at a fixed age. Head of the State and ministers determine the policy. Permanent government servants run the administration and enforce the laws according to that policy. There is no effect on them of the change of head of state and the ministers.

Bureaucracy has been derived from the French word ‘bureau’ which means ‘desk’. Thus, bureaucracy is a government which is run by the persons who sit on desks, means officers.

Classification of Civil Services

All India Services:

(i) Indian Administrative Service

(ii) Indian Police Service

Central Services:

(i) Indian Foreign Service

(ii) Indian Revenue Service

State Services:

Sales Tax Office

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Prime Minister and other ministers at the centre while at State level - Chief Minister and his other ministers are the real executive in India.

The President of the U. S. A. is directly elected by the voters in practice whereas according to our Constitution the President of India is elected indirectly by the electoral college.

Advantages:

1. Direct popular election creates an interest in public affairs on the part of masses.

2. It also ensures the election of a chief executive in whose ability and integrity the people have confidence.

Disadvantages:

1. Direct popualr election breeds intrigue and corruption.

2. In this system it is not possible for the voters to know much about the candidate due to large number of voters.

3. Direct popular election increases party feeling and tension.

The President of India is elected by an electoral college consisting of (a) elected members of both the Houses of Parliament, and (b) the elected members of the Legislative Assemblies of the states.

The elected members of the Legislative Assemblies of Delhi and Pondicherry have been authorised to be the part of Electoral college by 70th Amendment of 1992. Qualification for election as the President are:

1. No person shall be eligible to be elected as President unless he:

(a) is a citizen of India

(b) has completed the age of 35 years and

(c) is qualified for election as member of Lok Sabha.

2. If a person holds any office of profit under the Government of India or any state, he shall not be eligible for election as President. However the office of President, Vice-President, Governor or Minister of Union or State shall not be considered as office of profit.

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In the Parliamentary system of government the legislature is formed mainly by the elected representatives. The political party which gets the majority of seats in the parliament, its leader is invited by the head of the state to become the Prime Minister of the country. The Prime Minister forms the Council of Ministers. In the ministry mostly the members of his own party are taken. In the parliamentary system the parliament has many powers. It can even pass the motion of no-confidence against the Prime Minister and the Council of Ministers and remove them from their office, but in fact the executive specially the Prime Minister leads the Parliament. Whenever the Prime Minister wants he can get the House of the People i.e., Lok Sabha dissolved. Therefore, it is leadership of the executive through which the Parliament form of government is run in modern times.

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The President of India has three types of Emergency Powers:

1. Proclamation of Emergency due to War, External Aggression or Internal Disturbances: Under such a situation, the Parliament will have the authority to frame laws for any part of country. The Fundamental Rights of the citizens are also suspended.

2. Proclamation of Emergency due to failure of Constitutional Machinery in a State: In such a situation President's Rule is imposed on a State and the Legislative Assembly of that State is dissolved. All the legislature powers of the State go to the Parliament.

3. Proclamation of Financial Emergency: In a such a situation, the President may decrease the pay and allowances of the Government employees. Moreover, the finances of the States also come under the control of the President.

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Relationship between the President and the Prime Minister:

1. According to the Constitution of India, the President makes the appointment of the Prime Minister. He cannot make this appointment at will. He has to appoint the leader of the majority party as the Prime Minister.

2. All the powers of the President are exercised by the Prime Minister. Therefore, the Prime Minister is the real ruler while the President is only the constitutional head.

3. The Prime Minister serves as a link between the President and the Council of Ministers.

Some scholars of political science and politicians are of the opinion that the Presidential form of government is more suitable to India than its present parliamentary form. They agree that in Presidential form of government, government is strong and stable and can meet emergencies effectively. Since India has multiple party system and their organisation is weak and loose, the defectors cause instability and weakness in the government.

But, in my view, parliamentary form of government is more suitable for India. Under this system government is responsible to the legislature and the people. Relation between the legislature and the executive makes passing of good laws possible. Besides, government can be easily changed according to the changing circumstances. The Parliamentary system has been working successfully in India for the last 56 years. Therefore, the Parliamentary form of government is more suitable for India than the Presidential form.

The executive and administrative functions in the modern society have become highly complex. Their efficient handling requires a close co-operation of the amateur and the expert, i.e., the popularly chosen leaders who are laymen and the trained administrators and specialists. The two elements are often distinguished by referring to the former as the political executive, and the latter as the permanent executive. The tenure of the political executive depends on popular election. Political leaders remain in office in order to formulate policy and give direction to administration as long as they command the support of the electorate of the Legislature. Public service, on the other hand, has now become a carrier so that, having entered service at an early age, civil servants continue in service till they reach the age of superannuation. In short, parties and politicians at the helm of affairs may keep on changing; the civil services people are there to work in co-operation with whichever leaders come into power. But the civil servants are able to do by maintaining political neutrality in the discharge of their officials duties.

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Single executive consist of a person who does not share power with others. The USA President is an example of the single executive. In the UK and other Parliamentary Governments, however, the executive authority is vested in the Cabinet, obviously a plural body but in fact constituting a singular executive. The British Cabinet acts as a unit and goes out of office together. It functions under the leadership of Prime Minister who is said to the linchpin of the Cabinet, or the key-stone of the cabinet into a well knit term.

When the directing authority is exercised not by one single individual for a term but a group of persons having co-equal authority, it is known as ‘Plural’ executive.The best modern example of the plural executive is the Swiss Federal Council which consists of seven councillors who are almost at par as far as executive powers are concerned. The Chairman of the Council is selected only for a term of one year and is merely the first among equals.

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The imposition of the President's rule in a state is possible in the following circumstances:

1. If no political party gets a majority in the Legislative Assembly in general elections and the formation of a Government becomes impossible, the President's rule is imposed on the state on the advice of the Governor.

2. If the President gets information through the Governor or any other quarter that the administration of the State is not being run according to the Constitution, the state is placed under the President's Rule and an emergency is declared.

Role of the Governor under the President's Rule: When the President's Rule is imposed on a state, its Legislative Assembly is dissolved and the entire powers of the Government come into the hands of the Governor. In such a case, the Governor acts as an agent of the President of India and the Legislative Power of the state goes into the hands of the Parliament.

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The Governor can use his discretionary powers in the following situations:

1. In case no party gets absolute majority in the Legislative Assembly: When no party gets absolute majority in the State Legislative Assembly or the majority party fails to elect the leader, the Governor can appoint the Chief Minister of his own choice.

2. Governor's discretion to reserve the bills in safe custody for the approval of the President: If the Governor feels that some bills passed by the State Legislature is contradictory to the Central Government or any law made by the Central Government then it is his discretion to reserve that bill for the approval of the President.

3. In case the constitutional machinery fails in the State or there is a possibility of it: If the constitutional machinery fails in the state, the Governor sends his report independently to the President. He does not consult the Council of Ministers under such circumstances.

4. When the President proclaims emergency in the State: When the President proclaims emergency in the State, the Governor acts in the capacity of the agent of the President and he is not bound to act on the advice of the Council of Ministers.

(a) This news items might have been released by Education Ministry. This ministry would be a ministry of State Government. Because this news item is concerned with the subject of state-list, it is the state government who can execute on such type of news item.

(b) On this news item the Railway Ministry may have released and it is the subject of the Central Government.

(c) The two farmers in Ramayampet Mandal committed suicide this month and the three member sub-divisional committee has found that the farmers have had economic problems due to failure of crops. On this issue the Agriculture Ministry of state government may have released the news.

(a) There is a much political interference in the working of the administrative machinery. It is suggested that there should be more and more autonomous agencies which have no responsibility to answer the ministers. We think this will not make administration more friendly to the people. Because in a democracy, the elected representatives and the ministers are in charge of government. As they are the representatives of the people and the administration is under their control and supervision and hence the administrative officers cannot act in violation of the policies adopted by the legislature. At the same time, the bureaucracy is also expected to be politically neutral. It is the responsibility of the administrative machinery to faithfully and efficiently participate in drafting the policy and implementing them.

(b) If there would be autonomous agencies, it will make administration more efficient.

(c) In democracy, the elected representatives have the right to make the policies but the administration has to implement those policies effectively and more efficiently. So democracy does not mean the full control of elected representatives over administration.

What would happen if there would be the procedure to have an elected administration instead of an appointed administration? It would be harmful. The elected administrators would change the policies. And there would be unstability to implement different policies. The appointed administration is non-partisan. The civil servants are selected impartially on the basis of merit. Thus the welfare policies of the government can be effectively handled. Policies would be implemented without any political interference. The elected administration would have lack of technical knowledge of their departments while members of administration have full knowledge of their departments.Hence they are more successful to implement the policies effectively and efficiently. They will be able to implement and perform the developmental functions. They will be also able to perform the functions of planning and social welfare.

We think that the President is bound to act on the advice of the council of ministers.

Because in a Parliamentary system, the President is the formal head of the government. According to Article 74(1), there shall be council of ministers with the Prime Minister at the head to aid and advise the President, who shall in the exercise of his functions, act in accordance with such advice. provided that the President may require the council of ministers to reconsider such advice.....and the President shall act in accordance with the advice tendered after such reconsideration.

In a parliamentary system, the prime minister is the head of government. Most parliamentary systems have a president or monarch who is the nominal head of the government. In India we have the parliamentary system. The Prime Minister is the head of the government. The executive is responsible to the Parliament. The executive holds power until it enjoys the confidence of the Parliament. The Parliament controls the purse-strings of the executive. To ensure that the government would be sensitive to public expectations and responsible and accountable to their needs and aspiration, it is important that body elected by the people i.e. the legislature controls it.

The President of India is elected by an electoral college consisting of (a) elected members of both the Houses of Parliament, and (b) the elected members of the Legislative Assemblies of states.

The elected members of Legislative Assemblies of Delhi and Pondicherry have been authorised to be the part of electoral college by 70th Amendment of 1992. Qualification for election as President are:

1. No person shall be eligible to be elected as President unless he:

(a) is a citizen of India

(b) has completed the age of 35 years and (c) is qualified for election as member of Lok Sabha.

2. If a person holds any office of profit under the Government of India or any State, he shall not be eligible for election as President. However the office of President, Vice-President, Governor or Ministers of Union or State shall not be considered as office of profit.

Powers of the President:

1. Executive Powers:

(i) Appointment of the Prime Minister and the members of the Council of Ministers: The President enjoys the powers of making appointments of the Prime Minister and the members of the Council of Ministers. In practice he always appoints the leader of the majority party/combine in the Lok Sabha as the Prime Minister.

The President also appoints all other ministers of the Union Government on the advice of the Prime Minister.

(ii) Appointment of the high officials in India: The President appoints the high officials in India. For example, he appoints the Governors of the state and Lt. Governors of the Union Territories, the Attorney General of India, the Comptroller and Auditor General of India, the Chairman and the members of the Union Public Service Commission, the Ambassadors, or High Commissioners in other countries.

(iii) Military powers of the President: The President of India is the Supreme Commander of the Defence Forces i.e., the Army, the Navy and the Air Force. He appoints the Chief of the Army Staff, Navy and Air Force, and they function under his command. The President can declare war and make peace. He is the head of the National Defence Committee. The exercise of military powers of the President is regulated by the Parliament.

2. Legislative Powers:

(i) Powers concerned with the Composition of Parliament: The President of India has the power to nominate 12 persons to the Rajya Sabha. These persons must have distinguished themselves in the field of art, literature, science and social services. He can nominate two persons of the Anglo-Indian community to the Lok Sabha if he feels that the community has not got adequate representation.

(ii) To summon and prorogue the Parliament: The President has the power to summon both the Houses (Lok Sabha and Rajya Sabha) of Parliament. He has the power to prorogue the sessions of the Parliament. If there are some differences on some bill between the Lok Sabha and the Rajya Sabha then the President has the power to summon the joint session of both the Houses of Parliament.

(iii) Power to dissolve the Lok Sabha: The Constitution of India has given the power to the President to dissolve the Lower House (Lok Sabha) of the Parliament before the completion of its term. He has the power to order for fresh election to the Lok Sabha. But only on the recommendation of the Prime Minister.

(iv) Consent of bills passed by the Parliament: No bill passed by the Parliament can become an Act without the assent of the President. He can reject an ordinary bill only once and when passed for the second time, the President is to give his assent. He has no power to reject the Money Bill passed by the Parliament.

(v) Power to issue the Ordinances: During the intervals of the sessions of the Parliament, the President can issue ordinances. These ordinances have the force of laws.

3. Financial Powers:

(i) Presentation of Budget before Parliament: It is the duty of the President to place the budget for the current year before the Parliament. It is to be presented before the beginning of the financial year. Normally the budget is presented to the Parliament by the Finance Minister on behalf of the President.

(ii) Powers concerned with the Money Bills: Money Bills can only be introduced in the Parliament on the recommendation of the President.

(iii) Control over Contingency Fund: The President has full power of control over the contingency fund and he can spend it according to his sweet will even prior to the consent of the Parliament.

(iv) Powers to distribute the share of income-tax among the States: President of India has the power to distribute the share of income-tax among the states.

4. Judicial Powers:

(i) Appointment of the Judges: The President of India appoints the Chief Justice and other judges of the Supreme Court of India. He also appoints the Chief Justice and other judges in the High Courts.

(ii) Powers of Pardon: The Constitution of India gives to the President the power of pardon. By using this power the President can pardon, reprieve or commute the punishment of any criminal about whom he thinks that he deserves pardon.

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Besides the powers in normal times, the President of India has some special emergency powers.

The President can use the emergency powers even when there is the likelihood of an Emergency. The Constitution refers to the three kinds of emergency given below:

I. Emergency arising out of external aggression or internal disturbance or armed rebellion or its possibility. (Article 352): According to Article 352 if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened by war, external aggression or internal disturbance, he may proclaim a state of Emergency. If the proclamation has not been approved within two months by both the Houses of Parliament, it will become ineffective. But by the 44th Amendment this period of two months has been reduced to one month and that such resolution should be by a majority of the total membership of each House and not less than two-third of the majority of the members present and voting.

After the approval of the Parliament emergency continues till the President revokes it by a subsequent proclamation. But it is provided in the 44th Amendment that for the continuance of the emergency the approval by resolution of both the Houses would be rquired every six months.

Effects of this Proclamation:

1. The most significant effect of this proclamation is that the federal form of the Constitution is converted into a unitary form of Government. The authority of Centre is increased till the emergency lasts. But Centre gets the authority to give directions to the states as to the manner in which the executive power of the states is to be exercised. The legislative power of the Centre is also widened.

2. Parliament will have the power to make laws for the whole or any part of India with respect to any of the matters given in the State List.

3. The President, may by an order, modify the provisions relating to the distribution of revenues between the Union and the States.

4. Fundamental Rights given under Article 19 (Six freedoms) are automatically suspended throughout the country. The suspension of Article 19 continues until the Proclamation of Emergency ends.

II. Emergency arising out of the failure of Constitutional machinery in a State. (Article 356).

According to the Constitution it is the Constitutional duty of the Centre to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. If the President, either on the receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provision of the Constitution, the President can issue a proclamation of emergency in that state.

Effects of the Proclamation:

1. The President can assume to himself all or any of the functions of the State or he may vest all or any of those functions of the Governor or any other executive authority.

2. The President can suspend or dissolve the State Legislative Assembly of the state. He may declare the powers of the State Legislative shall be exercisable by or under the authority of Parliament.

3. The President can make any other incidental or consequential provisions necessary to give effect to the objectives of the proclamation.

III. Emergency due to Financial Crisis (Article 360):

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened, he may declare a Financial Emergency under Article 360 of the Constitution. Such a proclamation may be revoked by a subsequent proclamation. The proclamation has to be laid before each House of Parliament. It ceases to operate at the expiration of two months unless it is approved further by a resolution of both the Houses of Parliament. The proclamation in this case also should be approved by Parliament as in other cases of emergency.

Effects of this Proclamation:

1. During the Financial Emergency, the executive authority of the Union shall extend to the giving of directions to any state to observe such cannons of financial propriety as may be specified in the direction or any other direction which the President may deem necessary for the purpose.

2. The President can ask a state to reduce salaries and allowances of all or any class of public servants connected with the affairs of a state.

These powers are used by the President with the advice of the Prime Minister and the Council of Ministers. He acts as a constitutional head. But in special circumstances he can act with his own discretion.

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Appointment of the Prime Minister: The Prime Minister is appointed by the President but while doing so the President is not having a freehand. Only that person can be appointed to the office of Prime Minister who is the leader of the majority party in the Lok Sabha. After the general elections the President invites the leader of the party/ combine which has gained majority in the Lok Sabha to form Government.

If no political party/combine gets an absolute majority in the Lok Sabha even then the President is not free to appoint any body as the Prime Minister. Under such circumstances only that person will be invited to form Government who can seek the co-operation of the majority of members in the Lok Sabha.

Term of Office: The Prime Minister does not have a fixed tenure of office. He remains in office till that time so far as he enjoys the support of the majority party. If the majority of members of the Lok Sabha lose confidence in the Prime Minister, he is to resign the office.

Powers and Functions of the Prime Minister:

1. Formation of the Council of Ministers: His first duty after assuming office is the formation of the Council of Ministers. He prepares a list of ministers according to his volition. He has a free hand in the selection of ministers. No body can be appointed a minister against the wishes of the Prime Minister.

2. Allocation of Portfolios among the Ministers: The Prime Minister distributes portfolios among the ministers. He decides what department is to be allotted to a particular minister. He controls the working of the departments of his ministers. If the Prime Minister is not satisfied with the working of a department, he can change the department of that minister.

3. To preside over the meetings of the Cabinet: The Prime Minister is the leader of the Cabinet. The Cabinet functions under the control of the Prime Minister. He can call the meetings of Cabinet whenever he likes. The Prime Minister prepares the agenda for the meetings as well as controls it. He presides over the Cabinet meetings. All the decisions in Cabinet meetings are taken according to the wishes of the Council of Ministers.

4. Appointment of the High Officials: All the important appointments in the states are made by the Prime Minister. The President makes appointments of the State Governors, Ambassadors and members of the Union Public Service Commission only on the advice of the Prime Minister. The President cannot make any such appointment on his own accord.

5. Link between the President and the Council of Ministers: The Prime Minister is the link between the President and the Cabinet. It is the duty of the Prime Minister to convey the decisions of the Cabinet to the President. No minister can discuss a particular problem with the President without the permission of the Prime Minister. The President can demand information from the Prime Minister regarding the working of administration. The Cabinet can discuss any issue with the President only through the Prime Minister.

6. Leadership of the Cabinet in the Parliament: The Prime Minister leads the Cabinet in the Parliament. The ministers answer the questions put to them by the Members of the Parliament. Whenever a minister is in difficulty, the Prime Minister helps him. The Prime Minister explains the policy and decisions of the Cabinet to the Parliament. All important statements on behalf of the Cabinet are made by the Prime Minister in the Parliament. If the President requires any information regarding the administration of any department, he would demand such an information from the Prime Minister.

7. Leader of the Parliament: The Prime Minister is also the leader of the Lower House. Out of the two Houses the position of Lok Sabha is of greater importance and the Prime Minister is the Leader of the Lok Sabha. The Parliament always depends upon the policy and guidance of the Prime Minister for facing any problem. All the important decisions in the Parliament are taken according to the wishes of the Prime Minister. He can get any law passed by the Parliament because he is the leader of the majority party. He can get the Lok Sabha dissolved by the President.

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D.

Leader of the alliance or party that has the support of the majority in the Lok Sabha.

A.

Rs. 1,50,000 per month.

C.

Dr. Zakir Hussain

C.

Executive that is dependent on support of the majority in the Parliament

In the above said dialogue the position of our President is discussed. In the first argument the President is only a rubber stamp. But it is not true. In the third argument also it is discussed that there is no need of the President. After the elections, the Parliament can meet and elect a persons to be the Prime Minister. This position is also not practicable. There are the instances when no clear majority exists and the President has to use his discretion. The office of President of India is the office of respect and nominal supremacy. He is not the rubber stamp. He can use his discretionary powers at the time of emergency and at the time of appointment of Prime Minister if in the Lok Sabha no single party has a clear majority.

The Council of ministers with the Prime Minister as its head is answerable to the people through the Lok Sabha. As soon as the council loses the confidence of the Lower House, it falls. So there is no need for the President to dismiss the Prime Minister.

The third statement or the statement of Bobby applies most to India. The Prime Minister has to consider the expectations of the party members and other supporters of the government. But after all the Prime Minister has a greater say in policy-making and in selecting the ministers.