Vishwas Union Executive.docx

UNIVERSITY INSTITUE OF LEGAL STUDIES PANJAB UNIVERSITY

ASSIGNMENT ON UNION EXECUTIVE

Submitted To – Dr. Shruti Bedi

Submitted By – Vishwas Chawla Roll No. – 217/17 Section – D Semester – 3rd Session - 2018-19

Acknowledgement –

I would like to express my special thanks of gratitude to my teacher Dr. Shruti Bedi who gave me the golden opportunity to do this wonderful assignment on the topic “UNION EXECUTIVE’, which also helped in doing a lot of Research and I came to know about so many new things, I am really thankful to them. Secondly, I would like to thank my seniors and friends who helped me a lot in providing resources and finalizing this assignment within the limited time frame.

UNION EXECUTIVE (Articles 52 to 78 and 123) The Union Executive consists of the President, the Vice- President, the Council of Ministers and the Attorney General.1

THE PRESIDENT OF INDIA (Article 52) The President – the Head of Union Executive Article 52 provides that there shall be President of India because Constitution provides this post. This Article, which is first on the Union Executive, clearly states and requires that President of India is a must in the constitutional scheme and structure of India. There is no exception to this rule. Therefore, the operation of the constitutional scheme or structure cannot be envisaged even for a short while without President of India being into office. The office of President came into existence immediately after the Constitution was adopted on 26 November 1949.2 Article 53(1) declares the President to be the head of the Union Executive. It provides that the executive power of the Union “shall be vested with President and shall be exercised by him either directly or through officers subordinate to him”.3 However, he shall exercise this power in accordance with the provisions of the Constitution.

Executive Power-Defined The expression “executive power” is not defined in the Constitution. The expression came to be interpreted by the Supreme Court, in Ram Jawaya Kapoor v. State of Punjab4, commonly known as book-sellers case, wherein the Court held that in the exercise of its

1

In Common Cause, a registered society v. Union of India, AIR 1999 SC 2979, the Supreme Court said that “the Executive consists of the Prime Minister and Ministers who are members of the Cabinet; Ministers who are not of Cabinet rank; and the Civil Service.” 2 Jain, M.P. (2005) Indian Constitutional Law, Lexis Nexis 3 In Emperor v. Sibnath, AIR 1945 PC 163, the Privy Council held that the expression “officers subordinate to the President” would include Ministers. Thus, the President may exercise the executive power of the Union either directly or through the members of the Union Council of the Ministers. 4AIR 1955 SC 549

“executive power”, the State could carry on a trade or business activity even without a legislative sanction. Referring to the expression “Executive power”, the Supreme Court observed that though it was not possible to give an exact definition of “executive power”, ordinarily it connoted the residue of governmental functions which remained after legislative and judicial functions were taken away. Thus, function which did not fall strictly within the legislative or judicial field, would fall in the residuary class and had to be regarded as executive”.5 The executive function, the Court held, comprised both the determination of the policy as well as carrying it into execution. This included the initiation of legislation, the maintenance of the order, the 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.6

Executive May Act Without a Law Though, the Executive Government can never go against the provisions of the Constitution or of any law, but it does not follow that in order to enable the Executive to function, there must be a law already in existence and that the powers of the Executive are limited merely to the carrying out of these laws. However, executive instructions cannot run contrary to the statutory provisions.7 Specific legislation may be necessary if the Executive required certain power in addition to what it possesses under the ordinary law. All executive function which operates to the prejudice of any person or encroaches upon private rights must have authority of law to support it. But, apart from this, it cannot be said that in order to undertake any function, the executive must obtain prior legislative sanction.8 The government, in the exercise of its executive power, cannot legislate, which power is vested with the Legislature. It has held to be a known fact of the Constitutional Law that the legislative power of the State is distinct from its executive power. The Executive, therefore cannot amend or repeal any statute enacted by Legislature by issuing a Notification.9 Likewise, guidelines framed by the Executive do not confer any legal right. These do not per se partake the character of Statute.10

5

Jayantilal v. F.N. Rana, AIR 1964 SC 648, Madhu v. Union of India, AIR 1969 SC 784 Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549 7 G.M. Uttranchal Jal Sansthan v. Laxmi Devi, AIR 2009 SC 3121 8 Hindusthan Times v. State of U.P., AIR 2003 SC 250 9 Smt. Jaikumari v. State of Maharashtra, AIR 2009 (NOC) 1616 (BOM.) 10 Poonam v. Delhi Developmant Authority, AIR 2008 SC 870 6

Referring to the provision Article 162, a Division Bench of the Supreme Court in Indian Medical Association v. Union of India,11 observed that the State Executive had the power to make any regulation or order which would have the effect of law so long as it did not contravene any legislation by the State Legislature already covering the field. In a Constitutional Democracy, with a Parliamentary form of government, the Court said that the Executive might initiate a policy in a legislative bill to be enacted by the Legislature or in the absence of legislative action in a particular field, enact policy that might be akin to law, but the Executive could not set at nought a declared specified and mandated policy legislated by the Legislature, since the Executive had to be answerable to the Legislature. Stating that, in the instant case,12 the Legislature of NCT of Delhi had specifically set out a clear policy with respect to the reservations for Schedule Castes/Tribes and other weaker sections of the population, the Executive’s duty was to implement that policy and not to abrogate it. The State, which is represented by the Departments can only speak with one voice. Therefore, the eligibility certificates for tax exemption, issues by the Department of Industries/Commerce, cannot be cancelled by the Sales Tax Authorities.13

Extent of Union’s Executive Power (Article 73) Article 73(1) provides that the executive power of the Union extend to the matters with respect to the Parliament has power to make laws. It extends to the exercise of such rights, authority and jurisdiction as are exercised by the Government of India by virtue of any treaty or agreement. The power is, however, subjected to the provisions of the Constitution. The executive power of the Union, does not extend to a matter enumerated in the Concurrent List of the Seventh Schedule, unless expressly provided in the Constitution.14 or expressly entrusted by a law made by Parliament15. Therefore, where Parliament has already passed legislation on certain aspects of a concurrent matter, the State would have no power to 11 12

AIR 2011 SC 2365

Indian Medical Association v. Union of India, AIR 2011 SC 2365 M/S. Vadilal Chemicals Ltd. V. State of A.P, AIR 2005 SC 3073 14 Articles 256,257,298,353 & 356 15 Proviso to Clause (1) of Article 73 13

legislate or pass any executive order on those aspects.16 Thus, ordinarily, the executive powers, so far as Concurrent List is concerned, rests with the States. It is only in exceptional cases that Parliament may, by law, entrust such power to the Union Executive. It may thus noticed that a law on a concurrent subject, though enacted by Parliament, shall be executed by the State, except when Parliament has, by law, directed otherwise.17

ELECTION OF THE PRESIDENT Who Elects the President – Electoral College (Article 54) The President of India is not directly elected by the people. Article 54 provides that the President shall be elected by the electoral college consisting of: (a) The elected members of both houses of Parliament and (b) The elected members of the Legislative Assemblies of the States.

The Constitution (70th Amendment) Act,1992 has added a new explanation to Article 54 which provides that the word “State” includes the National Capital Territory of Delhi and the Union Territory of Pondicherry. This means that the M.L.A.’s of the National territory Delhi and Pondicherry will be included in the electoral college of the President.18 It may be noticed that only elected members of the House of Parliament and that of the Legislative Assemblies of the States are the members of the Electoral College. The Nominated Members do not take part in the election of President.19

16

T. Shrilaxmi v. State of Karnatka, AIR 2003 NOC 187 Bishamber Dayal Chandra v. State of U.P. ,AIR 1982 SC 33 18 Pandey, J.N. (2007) Constitutional Law of India, Faridabad, Allahabad Law Agency 19 Kumar, Narender. Constitutional Law of India, Ninth Edition, 2015 , Allahabad Law Agency at P.541 17

SYSTEM OF ELECTION (Article-55(3)) Clause (3) of Article 55 provides that the election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote. The object for adopting this system is to elect that candidate who is found to be more popular among electors. This system is adopted when there are more than two candidates in the election of the President.20 In such a case, if simple majority rule is applied, then a candidate getting less than 50 percent of the votes cast in the election, would be declared elected. While according to the system of proportional representation, the candidate to be declared successful would be that who obtains an absolute majority votes.21

QUALIFICATIONS FOR ELECTION OF PRESIDENT (Article 58) Article 58 lays down down the following qualifications which a person must possess for being eligible for the election as President : (a) He must be a citizen of India (b) He must have completed the age of thirty-five years (c) He must be qualified for election as a member of the House of the People.22 He must, therefore, be registered as a voter in any Parliamentary Constituency.23 (2) He shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said governments.

Explanation attached to Article 58 declares that the purpose of Article 58, a person shall not to be deemed to hold any office of profit by reason only that he is the President or Vice-

20

Lalit Mohan Pandey v. Pooran Singh, 2004 (5) SCALE 267

21

Narendar kuamr

22

Supra note kumar narendar P.543 Section 4 of Representation of Peoples Act, 1951

23

President of the Union or the Governor24 of any State or is a Minister either for the Union or for any State. The expression office of profit is not defined in the Constitution. By a series of decisions the Supreme court laid down the following tests for finding out whether the office in question is an office of profit under a Government : (a) Whether the government makes the appointment; (b) Whether the government has the right to remove dismiss the holder; (c) Whether the government pays the remuneration; (d) What are the functions of the holder? Does he perform them for the Government? and (e) Does the Government exercise any control over the performance of those functions? The question is to be judged in each case in the light of the provisions of the relevant law.25 Further, This Article has nothing to do with the nomination of the a candidate to the office of the President of India. A person who is allowed to contest the election must have 50 proposers and 50 seconders under Section 5(B) and (5)(C) of the Presidential and VicePresidential Elections Act, 1952 as amended in 1997. The subject-matter of these sections is completely covered by the provisions of Article 71(1) and Article 58. Clauses (B) and (C) of Section 5 are not in conflict with Article 14 of the Constitution. They apply to all persons who want to be candidates to the Presidential election.26

CONDITIONS OF PRESIDENT’S OFFICE (Article 59) (1) The President shall not be a member of either House of Parliament or a House of the Legislature of any state, and if a member of either House of Parliament or of a House of the Legislature of any State, and if member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall deemed to have vacated his seat in that House on the date on which he enters upon his office as President. (2) The President shall not any hold any other office of profit.

The words ‘or Rajpramukh or Uparajpramukh’ omitted by the Constitution (Seventh Amendment) Act, 1956, S.29 and Schedule 25 Supra note kumar narender at P.544 26 Babu Rao Patel v. Dr. Zakir Hussain, AIR 1968 SC 904 24

(3) The President shall be entitled without payment of rent to the use of his official residences and shall be entitled to such emoluments, allowances and privileges as are specified in second Schedule (4) The Emoluments and allowances of the President shall not be diminished during the term of his office.27

The preceding article lays down the qualifications which a person must possess to be eligible for the President’s office. This Article specifies conditions which are attached to the office of the President, viz., he will not be a member of any legislature in the country nor will hold any other salaried appointment either under the State or under any other nongovernmental authority. He gets any official residence for rent. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament. The emoluments and allowances of the President shall not be diminished during his term of office.28

OATH OR AFFIRMATION BY TH E PRESIDENT (ARTICLE 60) Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the seniormost Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say“I A.B.,do swear in the name of God / solemnly affirm that I will execute the office of the President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of India.”29

27

Article 59 bare act Supra note Mp jain 29 Vn shkula 28

TERM OF OFFICE OF PRESIDENT (ARTICLE 56) (1) The President shall hold office for a term of five years from the date on which he enters upon his office. Provided that(a) The President may, by writing under his hand addressed to the Vice-President, resigns his office; (b) The President may, for violation the Constitution, be removed from office by impeachment in the manner provided in the Article 61; (c) The President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. (2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the speaker of the House of the People. Article 56 lays down the terms of the office of President. He holds office for a term of five years from the date on which he enters upon his office. But even after the expiration of his term he would continue as President until his successor takes over. His office may be terminated earlier than five years if he resigns or is removed on impeachment for violation of the Constitution. The President’s resignation has to be addressed to the VicePresident, who shall forthwith communicate to the speaker of the House of the People. In Presidential Poll, Re30, a reference was made by the President under Article 143(1) for the opinion of the Supreme Court on the question as to whether the election to fill the vacancy caused on the expiration of the term of the office of President must be completed before the expiry of the term of office of the President must be completed before the expiry of the term of office notwithstanding the fact that the legislative assembly of Gujarat was dissolved. The opinion of the Supreme Court was unanimously in the affirmative. According to R.C. Jay, speaking for the Court, the election to fill the vacancy in the office of the President is to be held and completed having regard to the Articles 62(1),54,55 and the Presidential and Vice-Presidential Elections Act,1952.Article

30

(1974) 2 SCC 33: AIR 1974 SC 1682

56(1)(c) applies to case where a successor has not entered on his office and only in such circumstances can a President whose term has expired continue.31

ELIGIBILITY FOR RE-ELECTION (Article 57) A person who holds, or who has held, office as President shall, subject to the other provisions of the Constitution, be eligible for re-election to that office. Our Constitution not place any bar on the re-election of the same person to the office of the President. He may be elected for any number of terms. The Irish Constitution prohibits re-election for more than two terms. The Constitution of the United States of America, as originally enacted, said nothing about re-election of the terms of the President, though until the Second World War under a well-established convention one person did not hold more than two terms. But the convention was broken when President Roosevelt was re-elected for the third term during World War II.32 Now the U.S. Constitution expressly bars the election of the same person more than twice to the office of the President. Though Article 57 prescribes no limit on the re-election of the President, after the first President of India, Dr. Rajendra Prasad, who was elected twice, all other Presidents have been elected only for one term. (a) a notice in writing has been given to President (b) two months have passed after the service of such notice; and (c) the notice state the nature of proceeding, the cause of action, the name residence and prescription of the party taking the proceedings and the relief claimed.

PROCEDURE FOR IMPEACHMENT OF THE PRESIDENT (Article -61) (1) When a President is impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament. (2) No such charge shall be preferred unless(a) The proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days notice in writing signed by not less than one-

31

Shukla ji

32

The 22nd Amendment to the Constitution of the U.S.A.

fouth of the total number of members of the House has been given of their intention to move the resolution, and (b) Such resolution has been passed by a majority of not less than two-thirds of the total membership of the House. (3) When a charge has been so preferred by either House of Parliament the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation. (4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of revoming the President from his office as from the date on which the resolution is passed.33 Under Article 56, we have seen that the President can be removed from his office for violation of the Constitution by impeachment. Article 61 describes the procedure for impeachment. It embodies the following provisions(i)

The motion to prefer a charge against the President for violating the Constitution may be initiated in either House of Parliament;

(ii)

The motion must have the support of not less than one-fourth of the total number of members of the House;

(iii)

Fourteen’ days notice of the intention to move the motion should have given;

(iv)

The motion must be passed by a majority of not less than two-thirds of the total membership of the House;

(v)

The House which passes the motion to prefer a charge against the President shall not be entitled to investigate the charge; the charge shall be investigated by the other House; and

(vi)

The House which has investigated the charge, if it finds the President guilty, must pass a resolution to that effect by a majority of two-thirds of the total membership of the House. The resolution shall have the effect of removing the President from his officer from the date on which the resolution is passed.34

33 34

ARTICLE 61 MP JAIN Mp jainnnn

DOUBTS AND DISPUTES IN RESPECT OF THE ELECTION OF THE PRESIDENT AND VICE-PRESIDENT (ARTICLE 71) (1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final . (2) If the election of a person as President or Vice-President is declared void by the Supreme Court, acts done by him in exercise and performance of power and duties of the office of President or Vice-President as case may be, on or before the date of the decision of the Supreme Court shall not be invalidated by the reason of the declaration. (3) Subject to the provisions of the Constitution, Parliament may by law regulate any matter relating or connected with the election of President or Vice- President. To this the Constitution (Eleventh Amendment) Act, 1961 had added clause (4) which read: (4) “The election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral collage electing him.” Under his article the Supreme Court has been given the exclusive authority to decide all doubts and disputes connected with the election of the President or the Vice-President. Subject to this and any other provision of the Constitution, Parliament may by regulate any matter connected with the election of the President or the Vice-President. By the Constitution (Thirty-Ninth Amendment) Act,1975 clause (1) was replaced by what in now clause (3) and a new clause (2) was inserted which authorised Parliament to provide by law for any authority to decide the doubts and disputes about the election of the President or the Vice-President. The then existing clause (3) was replaced by a new clause (3) which gave immunity to the law of Parliament referred to in clause (1) as well as to the decision of the authority envisaged under such law from challenge in any court. After this amendment in Charan Lal Sahu v. Neelam Sanjeeva Reddy35, under Section 14 of the Presidential and Vice-Presidential Elections Act, 1952, the petitioner challenged the election of Shri Neelam Sanjeeva Reddy as President of India at the Presidential election held on July19,1977. A question was raised

35

(1978) 2 SCC 500: AIR 1978 SC 499.

whether the petitioner had locus standi to maintain the petition in view of Sections 5-B and 5C of the Act and whether he could challenge the validity of these sections. It was held by Supreme Court that the petitioner was not duly nominated nor was one who could claim to be so nominated and that his nomination paper was rightly rejected by the returning officer as required under the Act. It was pointed out by Beg, C.J. that, unlike in Indira Gandhi case36 where the Supreme Court struck down Article 329-A clause (4) of the Constitution on the ground that it violated the basic structure of the Constitution , clause(3) of the Article 71 did not effect the basic structure. It was held in that case that in the exercise of the powers of the amendment of the Constitution under Article 368, Parliament could not exercise judicial powers for decisions of election disputes pending before the Supreme Court. In the present case impugned amendment only refers to a law by which Parliament may regulate matters connected with the Presidential election include those relating to the election disputes arising out of such an election. It does not take away the jurisdiction of the Supreme Court to decide any matter which may be pending before it. All it does is to provide that the validity of any law falling under clause (1) of this article will not be called in question in tribunal before which election of the President could be questioned. The effect of clause (3) of this article is only to give effect to the general principle that a court or tribunal functioning or exercising its jurisdiction under an enactment will not question the validity of that very enactment which is the source of its power. The Constitution (Forty-Fourth Amendment) Act, 1978 has restored original position w.e.f. 20-6-1979. Clause (4) of this article further provides that the election of a person as President or VicePresident shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him. This clause was introduced by the Constitution (Eleventh Amendment) Act, 1961 to foreclose any challenge of the kind made in N.B. Khare v. Election Commission37, that the Presidential election should be stayed till all vacancies in Parliament and State Legislatures are filled. Though the challenge was rejected by the Supreme Court, the clause put the matter beyond any doubt. Manifestly this provision is of wide amplitude, i.e., existence of any vacancy for any reason whatsoever among the members of the college shall not be a reason to question the validity of the election. If, as a result of dissolution of the legislative assembly of a State, the State will

36

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: (1976) 2 SCR 347.

37

AIR 1957 SC 694

not have any elected member of the Legislative Assembly of a State, the State will not have any elected member of the State Legislative Assembly to qualify for the electoral college.38

PRIVILEGE OF THE PRESIDENT (Article 361) Article 361 of the Constitution guarantees the following privileges to the President (1)

The President shall not answerable to any court for the exercise and performance of

powers and duties of his office or for any act done or purpoting to be done by him in the exercise of those powers and duties. However, the conduct of the President may brought under review by any court, tribunal or body appointed or designed by either Houses of Parliament for the investigation of charge in the impeachment proceedings. Thus, the immunity afforded to the President will not restrict the right of any person to bring suit against the Government of India. (2) No criminal proceedings whatsoever shall be instituted and continued against the President in any court during the term of office. (3) No process for the arrest or imprisonment of the President shall be issued from any court during his term of office. (4) No civil poceedings in which relief is claimed against the President shall be instituted during his term of office in any court in respect on any act done or purported to done by him in his personal capacity whether before or after he entered upon his office until (a) a notice in writing has been given to President b (b)two months have passed after the service of such notice; and (c) the notice state the nature of proceeding, the cause of action, the name residence and prescription of the party taking the proceedings and the relief claimed.39

38

Presidential Poll, Re, (1974) 2 SCC 33: AIR 1974 SC 1682

39

Jn pandey

POWERS OF PRESIDENT The Constitution confers very vast powers on the President. However, these powers have to be read and interpreted in the light of the Parliamentary System of Government which is adopted under the Constitution. This subject is to be discussed under the heading position of the President. This powers of the President are discussed below :-

Executive powers- Article 53(1) declares that the executive power of the Union shall be vested in the President. He may exercise this power either directly or through officers subordinate to him. Article 73 provides that the executive powers of the Union shall extend to the matters with respect to which Parliament has power to make laws. It is, however, subject to the provisions of the Constitution. Thus, the executive power of the President is coextensive with the legislative power of the Parliament.40 Article 77 requires that every executive action of the Union41 shall be expressed to be taken in the name of the President. Orders and other Instruments so executed shall be authenticated shall not be called in question on the ground that that it is not an Order or Instrument made or executed by the President. The President is further empowered to make rules for the more convenient transaction of the business of the Government of India and for allocation of said business among the Ministers.42 In the exercise of his executive powers , the President makes a number of appointments. It is the President who appoints the Prime Minister and other members of the Council of Ministers. All the members of the Union Council of Ministers, hold office during the pleasure of the President.43 Article 76 confers power on the President to appoint the Attorney General for India. The Governors of the States44,the Comptroller and AuditorGeneral for India.45, the Chairman and Members of the Union Public Service Commission46, the Chief Election Commissioner and other Election Commissioners47, are appointed by the

40

J. & K. Public Service Commission v. Narinder Mohan, AIR 1994 SC 1808.

41

Advice given by the Council of Ministers does not crystallise into action of the Union till that advice is accepted by the President. In J.P. Bansal v. State of Rajasthan, AIR 2003 SC 1405 42 The decision of a Minister or Officer, under the Rules of Business, is the decision of the President or the Governor, as the case may be. In State of J. & K. v. M/s Trehen, AIR 2005 J. & K., 13. 43 Article 75(2) 44 45

Article 155

Article 148 Article 316 47 Article 324 46

President. The Judges of the Supreme Court48, and the Judges of the High Courts49, are also appointed by the President in the exercise of his executive power. In the exercise of his executive power, the President also appoints various commissions.50. The President is entitled to be informed of the affairs of the Union and all proposals for legislation. He may require the Prime Minister to furnish information relating to the administration of the affairs of the Union and proposals for legislation. The President may further require the Prime Minister to place before the Council of Ministers, but which has not been considered by the Council. It may stated that “the question whether any and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court.”51 There is a complete bar under Article 74(2) as to the advice tendered by the Ministers to the President Central. In Union of India v. Central Information Commission, 52 the respondent had sought copies of correspondence between the President and the Prime Minister held during the period53 28th February, 2002 to 15th March, 2002, relating to the Gujarat riots. Holding that such correspondence construed as advice tendered by President to the Council of the Ministers, enjoyed complete immunity under Article 74(2), the Delhi High Court.

Military Powers – Article 53(2) lays down that “the supreme commander of Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law” 54He has powers to declare war and peace.. The Parliament is empowered to regulate or control the exercise of the military powers by the President. The Military power of the President is subordinate to its executive power which is exercisable by him on the advice of the Cabinet.55

Diplomatic Powers- As the head of the State, the President sends and receives Ambassadors; and other diplomatic representatives. All treaties and international agreements

48

Article 124 Article 217 50 For Example, Articles 280, 338, 344 5151 Article 74(2) 52 AIR 2013 (NOC) 119 (DEL) 49

53 54545454 55

narendar Jn pandey

are negotiated and concluded in the name of the President though subject to the ratification by Parliament.56

Legislative Powers-The President of India is a component part of the Union Parliament57.He nominates 12 persons, eminent in literature, art, science, or social service to the Rajya Sabha.58 He may also nominates 2 persons belonging to Anglo-Indian community to the Lok Sabha., if in his opinion that community is represented in the House.59 If any question arises as to whether a member of either House of Parliament has become subject to a disqualification mentioned in Article 102, the question is referred for the decision of the President, whose decision is declared to be final. It is the President who is vested with the power to summon the Sessions of the House of Parliament. The time and place of holding the Session is to be determined by him. Again, it is the President who has the power to prorogue the Sessions of the House of Parliament. The President may dissolve the Lok Sabha before the expiration of its term of five years.60 The President may address either House of Parliament or both Houses assembled together, and for that purpose, he may require the attendance of the members. He may send messages to either House of Parliament with respect to a bill then pending in the House. The President address both Houses of Parliament assembled together after every general election and at the commencement of the first session of each year.61 Every Bill passed by both Houses of Parliament, is sent to the President for his assent and become an Act only when it is assented to by him. He may give his assent or withhold his assent. In respect of a non-money Bill, he may also return it for being reconsidered by the Houses with a message thereon. A Bill providing for the formation of new States or alteration of the areas, boundaries, or the name of the existing States, can be introduced in either House of Parliament only with prior recommendation of the President. His recommendation are needed for introducing in the Houses of the State Legislature, a Bill providing for imposing restrictions on the freedom of trade or commerce. Every year, the President causes to be laid before both Houses of the Parliament, the Annual Financial Statement (the Annual Budget),

56

narendar Article 79 58 Article 80 59 Article 331 60 Article 85(2)(b) 61 Article 87 57

the Audit Reports, the recommendations of the Finance Commission62, and Reports of the Union Public Service Commission. All Money Bills and Financial Bills can be introduced in the Lok Sabha, only with prior recommendation of the President. All measures involving expenditure from the Consolidated Fund of India, must have his recommendations.63

Emergency Powers- Article 352 confers power on the President to make a Proclamation of Emergency if he is satisfied that the security of India or any part of the territory of India is threatened by war, external aggression, or armed rebellion. After such a proclamation, the President may by order, suspend the remedy for the enforcement of the Fundamental Rights secured by the Part III of the Constitution. Article 356 confers power on the President to make a Proclamation declaring that a Government in a State cannot be carried on in accordance with the provisions of the Constitution. Thereafter, he may assume to himself, all or any of the functions, of the Government of the State or all any of the powers vested in the Governor of any authority in the State, other than the Legislature of the State. Article 360, the President is vested with the power to proclaim Financial Emergency, if he is satisfied that the financial stability or, the credit of India or any part of India is threatened, by any reason.64

POWER TO GRANT PARDONS CLEMENCY POWER – A pardon is an act of grace. It cannot be demanded as matter of right. A pardon not only removes the punishment but, in contemplation of law, places the offender in the same position as if he had never committed the offence. A pardon may be absolute or conditional. A pardon is conditional where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event happens.65

62

Article 281 Article 113 64 Narendar 65 Vn shukllaaaaaaa 63

The pardoning power may be exercised at any time after the commission of an offence, either before legal proceedings are taken during their pendency or either before or after conviction.66

“Pardon may be in general be granted either before or after conviction, but no pardon is pleadable in bar of an impeachment by the Commons.”67 Article 72 confers power on the President “to grant pardons, reprieves, respites or remission of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence in the following cases(a) In all cases where punishment or sentence is by a Court Martial; (b) In all cases where the punishment or sentence is for an offence against any law relating to which the executive power of Union extends; (c) In all cases where the sentence is a sentence of death”68 However, the power conferred under Article 72 is a Constitutional Power69 and is absolute and cannot be fettered by any statutory provision such as Section 432, 433 and 433A of the Code of Criminal Procedure, 197470 A pardon completely absolves the guilt of the offender. When a convict is granted pardon, he is completely absolved from the punishment imposed on him from all penal consequences and such disqualifications as disentitle him from following his occupation and as are concomitant of the conviction.71 Reprieve means temporary suspension of death sentence, for example, pending a proceeding for pardon or commutation. Respite means awarding a lesser punishment on some special ground.72 In view of the fact that the accused has no previous convictions.73 For example pregnancy of a woman offender.74

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Channugadu, Re, AIR 1954 Mad 911,917 Halsbury’s Laws of England (Hailsham ,2nd Edn.) P.477 68 narendarr 69 The power is also known as prerogative power and the Executive function. In Mohinder Singh v. State of Punjab, AIR 2013 SC 3622 70 State of Haryana v. Jagdish, AIR 2010 SC 1690 71 D.I.G. v. Rajaram, AIR 1960 A.P. 259. 72 Narendar p 556 73 Shukla p 682 67

Commutation of sentence- The power of the President to commute any sentence is not subject to constitutional or judicial restrains except that it can not be used to enhance the sentence.75 It is intended to afford relief from undue harshness of evident mistake. “Commutation” is the essence of alteration of a sentence of one kind into a sentence of less severe kind.The powers of commutation exclusively vests with the appropriate government which means the Central/State government to whose executive power the sentence of order relates.76 For example, Rigorous imprisonment is commuted to Simple imprisonment.77 DIFFERNCE BETWEEN RIGOROUS AND SIMPLE IMPRISONMENT - Rigorous Imprisonment by interpretation means hard labour. Hard labour is not defined either in the Indian Penal Code, or in the Jail Manuals. Rigorous imprisonment as a form of punishment started off in the British era, when it meant breaking rocks and making roads. However, today, Rigorous Imprisonment in India has come to mean 'do some work' as Indian jails do not have enough work inside that can be termed as hard labour. So simple imprisonment is 'doing no work' while rigorous imprisonment is 'doing some work'78 Remission means reduction of the amount of sentence without changing its character. An order of remission does not, in any way, interfere with the order of the Court. A remission of sentence, therefore, does not mean acquittal79 An order of remission has the effect of wiping out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence of the period already undergone. In law, the order of remission merely means the rest of the sentence need not to be undergone, leaving the order of conviction by the Court and sentence passed by it, untouched.80 Exercise of the power- 1. Being an executive power, the power of the President is to be exercised on the advice tendered by Council of Ministers.

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Narendar p 556 Kuljit Singh. V Lt. Governor of Delhi, AIR 1982 SC 774 76 State (GOvt. of NCT Oof Delhi) v. Prem Raj, (2003) 7 SCC 121 77 NARENDAR AT P 557 78 https://www.quora.com/What-is-rigorous-imprisonment-How-rigorous-is-rigorous-imprisonment-Isrigorous-imprisonment-strictly-enforced retrieved on 3,october,2018 79 Ram deo Chauhan v. State of Assam , AIR 2001 SC 2231 80 Budh Singh v. State of Haryana, AIR 2013 SC 2386 75

2. Subject to the above, the President may scrutinise the evidence on record of the criminal case and come to a different conclusion from that recorded by the Court. In doing so the President does not amend or modify or supersede the judicial record. The President acts in a wholly different plan. He acts under a constitutional power, and is entitled to go into the merits of the case.81 If he takes a different view it would not amount to supersession of judicial verdict. 3. Again, the proceedings before the President being, of an executive character, the petitioner has no right to insist on presenting an oral argument. The manner of consideration of the petition lies within the discretion of the President.82 4. It is an absolute power, conferred by the Constitution and is not subject to any statutory provision.83 JUDICIAL REVIEW OF EXERCISE OF PRESIDENT’S POWER (MERCY PETITION)

It has been consistently held that the Court’s power of judicial review of decision taken by the President under Article 72 or by the Governor under Article 161 as the case may be, is very limited. The Court can neither sit in appeal nor can exercise the power of review. The Court, may, however, interfere if it is found that the decision taken without application of mind to the relevant factors or the same is founded irrelevant considerations or in vitiated due to mala fide or patent arbitratiness.84 1. Since the President’s power under Article 72 is a constitutional and is an executive power85 unlike the Court’s statutory and judicial power under ss.432 and 433(a) of the Cr. P.C., the order of the President under Article 72 can not be subjected to judicial review and its merits.86 The power is of the widest amplitude and the Court can not even suggest guideline.87 2. It follows that(a) It must be presumed that the President acted properly and carefully after an objective consideration of all aspects of the matter.88

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Kehar Singh v. Union of India AIR 1989 SC 653 Dd basuuuuuu 83 State of Punjab v. joginder singh AIR 1990 SC 1396 84 Devneder P.S. Bhullar v. State AIR 2013 SC 1975 85 Maru Ram v. Union of India AIR 1980 SC 2147 1 SCC 107 86 Kehar Singh v. Union of India AIR 1989 SC 653 87 Same as above 88 Maru Ram v. Union of India AIR 1980 SC 2147 1 SCC 107 82

(b) No court can ask for the reasons why a mercy petition has been rejected.89 3. But the court has submitted the judicial review on some specified grounds e.g.(a) To determine the scope of President’s power under Article 7290 (b) The Court can interfere where the President’s exercise of power is vitaiated by self-denial on erroneous appreciation of full amplitude of the power conferred by the Article 72, e.g., where the President rejected a mercy petition on the erroneous ground that he could go behind the final decision of highest Court of the land, or where the President’s decision is irrelevant to Article 72, or arbitrary, discriminatory or mala fide.91 4. While an earlier mercy petition has been dismissed by the President, the convict can not obtain an order of staying execution of the death sentence by submitting repeated mercy petition.92 5. The absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order. Since there is a power of judicial review, however, limited, it may be the same can be rendered to be exercise in futility in absence of reasons.. 6. A pardon obtained by fraud or granted by mistake or granted for improper reasons would invite judicial review. The prerogative power is the flexible power and its exercise can should be adapted to meet circumstances of particular case.93

CASE LAWSKuljeet Singh v. Lt. Governor of Delhi, 198294 the Supreme Court had the occasion of analysing the exercise of power conferred by Article 72. In this case, the petitioners, Ranga and Billa, were convicted for committing murder of two innocent children and were awarded death sentence by the Session Court, which was confirmed by the High Court, Their petition for Special Leave under Article 136.against the judgement of the High Court, was dismissed

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State of Punjab v. Joginder Singh AIR 1990 SC 396 2 SCC 661 Kehar Singh v. Union of India AIR 1989 SC 653 91 Basu at p. 685 92 Triveniben v. State o Gujarat (1989) 30 Guj LR 923 93 Basuu p.685 94 AIR 1982 SC 774 (Chopra Children Case) 90

by the Supreme Court. Thereafter, they presented a mercy petition to the President for the grant of pardon, which was also rejected by him, without assigning any reason. On this, the petitioners invoked the jurisdiction of the Supreme Court by a writ petition and contended that power conferred on the President by Article 72 to grant pardons, etc. was coupled with a duty to act fairly and reasonable. The Supreme Court admitted the petition and by a general order stayed the execution of all those convicts, whose mercy petition, against the death sentence, were rejected by the President or Governor of any State. The Supreme Court accepted the contention raised by the petitioners that the power conferred under Article 72 should be exercised fairly and reasonably. The Court further said, as was argued by the petitioners, that they did not know whether the Government of India had formulated any uniform standards or guidelines by which the exercise of the constitutional power under Article 72 was intended to be and was, in fact, guided. The Supreme Court further ruled that the exercise of President’s power under Article 72 would examine from case to case. 95 The Court, however by an order, vacated the stay granted to the petitioners and ordered their execution on the ground that this was not appropriate case in which question of laying down the guidelines would arise. The Court further said that even the most liberal use of power under Article 72 could not have persuaded the President to impose anything less than a sentence of death in the present case and more so, in view of the considerations taken by the Court in its judgement while confirming their death sentence.96 The Supreme Court thus retained the power of the judicial review even in a matter which was vested by the Constitution solely in the Executive. The question of standards and guidelines for exercise of the power, by the President, under Article 72, however was left open by the Court. The Constitution bench laid down that the Presidential order under Article 72 could be subjected to judicial review with the strict limitation defined in Maru Ram v. Union of India 1980,97 In Maru Ram Case, a Constitutional Bench of Supreme Court had observed that the power of pardon, commutation and release, under Articles 72 and 161, though very wide, could not run riot. The Court said, “all public power, including constitutional power, 95

Kuljeet Singh v. Lt. Governor of Delhi, AIR 1981 SC 2239 (Emphasis added) Kuljeet Singh v. Lt. Governor of Delhi, AIR 1982 SC 774 97 AIR 1980 SC 2147 96

shall never be exercise arbitrarily or mala fide and ordinary guidelines for fair and equal execution are guarantors of valid play of power.” The Bench stressed the point that the power to pardon