DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
Session- 2014 - 2015
Subject: Constitutional Law

Final Draft

Executive Power of the Union

and the States
Under The Supervision of:
Submitted By:
Sahil Yadav

Mr. Mahendra Singh Paswan

Assistant Professor (Law)

Enrolment No. 1301011

DR. RMLNLU,

Section- B, Roll No. 103

Semester-IV

Lucknow

ACKNOWLEDGMENT:

Firstly, I would like to thank respected Mr. Mahendra Singh Paswan, for
giving me such a golden opportunity to show my skills and capability
through this project. This project is the result of the extensive ultrapure
study, hard work and labour, put into to make it worth reading. It is my
pleasure to be indebted to various people, who directly or indirectly
contributed in the development of this work and who influenced my
thinking, behaviour, and acts during the course of study. Lastly, I would
like to thank the almighty and my parents for their moral support and
my

friends with whom

I shared my day-to-day experience

received lots of suggestions that improved my quality of work.

Thanking You..

Sahil Yadav

and

CONTENTS
Acknowledgment:.........................................................................................................2
Introduction..................................................................................................................4
Who Are The Executives?............................................................................................5
The Indian Union And State Executives....................................................................6
The Executive Power Of Clemency............................................................................8
Presidents Power To Grant Pardons.........................................................................9
Governors Power To Grant Pardons.......................................................................11
The Executive Power Of Ordinance Making...........................................................12
Presidents Power Of Ordinance Making................................................................13
Governors Power Of Ordinance Making...............................................................15
The Executive Power Of Dissolution Of Legislature..............................................16

INTRODUCTION
The constitution of a country is sacrosanct. It must not be disturbed except according
to due process of law and doing so may spell trouble. Almost every constitution has
been amended from time to time to up pace with the running time and India is no
exception to this.1 As a matter of fact, the will of the people is supreme. If the
subjects wish to change their own constitution handed down to them generation after
generation, pray what can stop them from doing so.
The Indian Constitution is the longest written constitution in the world. It contains
some unique and distinct features as and when compared to the other constitutions of
the world. In its original form, it consisted of 395 Articles and 8 Schedules to which
additions have been continuously made through subsequent amendments. At present it
contains 395 Articles and 12 Schedules, and more than 90 amendments. There were
various intervening factors that lead to such a long sized constitution, one of them
surely being the borrowed provisions form several sources and several other
constitutions of the world by its framers.
As the Chairman of the Drafting Committee Dr. BR Ambedkar puts it, the framers had
tried to accumulate and accommodate the best features of other constitutions, keeping
in view the peculiar problems and needs of our country. Seems cleverness has been in
the blood of lazy Indians since generations. The present Constitution is a reproduction
of Government of India Act, 1935 in case of matters of administrative detail. The
Former Chief Justice of Karnataka High Court, Cyriac Joseph said that The
Legislature, Executive and Judiciary should work in tandem for the success of
democracy. According to him, the Constitution is above all others and these organs
do not have the authority to transgress it or cross the lakshmana rekha drawn by it.
This division is also termed as separation of powers.

1 http://www.merinews.com/article/pillars-of-democracy/15796525.html

WHO ARE THE EXECUTIVES?

In constitutional democracies, executive authority is generally limited in three ways:
by separation of powers, among the national governments executive, legislative, and
judicial branches, with the legislature and judiciary able to check the power of the
executive branch; by the constitutional guarantees of fundamental rights, and by
periodic elections.2 In the modern democracies, the executive authority is commonly
structured in one of the two ways, either parliamentary or a presidential system.
Talking about both of these systems, the parliamentary system is the one where the
majority party in the legislature forms the executive branch of the government,
headed by the Prime Minister. The executive and the legislature are not entirely
distinct from each other in this system since both the Prime Minister and the members
of the cabinet are drawn from the parliament, even though the PM is the national
leader.
By contrast, in the Presidential system, the President is elected separately from the
members of the legislature. Both the legislature and the President in this system have
their own power bases and constituencies, which somehow serves to keep on
checking and balancing each other. Both of these systems have their own pros and
cons and one cannot supersede other on an allover basis.

2 Three Pillars of Government

THE INDIAN UNION AND STATE EXECUTIVES

The president of India is the Union executive. It has been stated in Article 53 (1) of
the Constitution that the executive power of the Union shall be vested in the
President and shall be exercised by him directly or through officers subordinate to
him in accordance with the Constitution. This makes it evident that the President is
the head of the Government. The executive power of the Union extends to all the
matters upon which the Parliament can make laws and also to exercise those powers
that accrue to the government of India from any International treaty or agreement. 3
Another important provision is Article 74 (1) which states that there shall be a
council of ministers with the Prime Minister at the head to aid an advice the President
in exercise of his functions. The President of India is also the supreme commander of
defense forces of the Union. Some of the other powers of President are that he/she
summons, addresses, prorogues, sends message to Parliament and dissolves the Lok
Sabha, promulgates ordinances at any time apart from when both the houses i.e. Rajya
Sabha and Lok Sabha are in session, makes recommendations for introducing
financial an money bills and gives final assent to bills, grants pardons, reprieves,
respites or remissions of punishment or suspends, and remits or commutes sentences
in certain cases.
The President of India holds his/her office for a term of 5 years beginning from the
date of his joining the office. Any time before that he may resign by addressing the
resignation letter to the Vice President of the Country. The president may also be
impeached from his office under the provisions of Article 61 on grounds of violation
of Constitution.

3 http://www.indianetzone.com/45/indian_union_executive.htm

On the other hand, the state executive is the Governor of the concerned state. Usually,
each State has a Governor of its own but it is even possible to appoint a common
Governor for two states as per the provisions of Article 153. Governor is appointed by
the President of India and commands office as per the pleasure of the President.
Though the statutory appointment is for a term of five years, but the tenure could be
relinquished earlier by tendering the resignation to the President.
To qualify for the appointment as a Governor of the State, the person must be a citizen
of India and must have completed age of thirty five years. Also shall not be a member
of either House of Parliament or of the House of the legislature of any State. He shall
also not hold any other office of profit. He has to appoint the Chief Minister as well as
the council of ministers to aid and advise him in the proper discharge of his functions.
He also summons the legislature, addresses it, sends messages, prorogues it and
dissolves the legislative assembly and is empowered to grant pardon, reprieve or remit
the sentence along with commuting the sentence of an offence covered by the
executive powers of the State.

THE EXECUTIVE POWER OF CLEMENCY

The Constitution of India confers this power on the President of India and Governor
of States. There have been numerous views regarding the rationale behind the
granting of pardons to accused individuals. One of the views, which is the Hegelian
view sponsors that the pardons are justified only when they enhance justice. 4 There
may be cases where justice cannot be served without the grant of pardon because of
the excessively harsh nature of the sentence given or because of a wrong sentence
given to an individual. The case of Kehar Singh5 discussed the various grounds on
which the power to pardon can be exercised. In view of the fact that judicial error
cannot be prevented due to human imperfection, recourse from these inaccurate
judgments has been provided in the Constitution in the form of Executives power of
pardoning/clemency.
The concept of power of pardoning is not at all contemporary. This power was
exercised by the monarch, who was the sovereign head of the state during the British
era to safeguard against the judicial errors. This was indisputably accepted by the
Supreme Court as the approach seemed appropriate in the Indian context as well.
Basically, the power to pardon includes the power to commute (when death sentence
is commuted to one of life imprisonment), the power to reprieve (withdrawal of a
sentence for a while thus postponing the execution of the sentence), power to Remit
the punishment, in whole or in part.6
Delving into the actual powers of the Executive wing, President finds the power to
grant pardon under Article 72, whereas the state executive i.e. the Governor finds
power under Article 161 of the Constitution.

4 M. Strasser, the Limits of Clemency Power on Pardons, Retributivists, and the United States
Constitution, 41 BRANDEIS L. JL. 85 (2002).

5 Kehar Singh v. Union of India, (1984) 4 SCC 693

6 Pardoning Power under the Indian Constitution

PRESIDENTS POWER TO GRANT PARDONS

Under the ambit of Article 72(1), the President possesses the power to grant pardons,
respites, reprieves, remissions of punishment or to suspend, remit or commute
sentences of any person who has been convicted of an offence and where punishment
is by a court martial, is for an offence against any law relating to a matter to which the
executive power of the union extends or in where the sentence is a sentence of death.
The next sub-section of Article 72 has to be read in accordance with sub-section (1)
and says that the powers conferred by any law on officers of Armed forces to suspend,
remit or commute a sentence passed by a Court Martial will not be affected by the
power of the President as in Article 72(1)(a). On the other hand, (3) provides for
power of the President to suspend, remit or commute a sentence of death under Article
72(1)(c) would not affect the power of the Governor of a State to suspend, remit or
commute a sentence of death under any applicable law in force.7
The landmark judgment of Maru Ram v. Union of India8 reviewed the power of
pardon under Article 72. The Court while deciding upon the validity of 433A of the
Code of Criminal Procedure in this case examined the power of pardon under Article
72. The Court observed that
Pardon, using this expression in the amplest connotation, ordains fair exercise, as
we have indicated above. Political vendetta or party favoritism cannot but be
interlopers in this area. The order which is the product of extraneous or mala fide
factors will vitiate the exercise.For example, if the Chief Minister of a State
releases everyone in the prisons in his State on his birthday or because a son has
been born to him, it will be an outrage on the Constitution to let such madness
survive.

7 Article 72(3), Constitution of India, 1950

8 Maru Ram v. Union of India 1981(1) SCC 107

The findings were finally summarized by stating that the Considerations for exercise
of power under Articles 72/161 may be myriad and their occasions protean, and are
left to the appropriate Government, but no consideration nor occasion can be wholly
irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the
court examine the exercise.
Another landmark judgment is that of Kehar Singh v Union of India, which, as
already discussed considered the nature of the Presidents power under Article 72
when dealing with a petition challenging the Presidents rejection of a mercy petition
by Indira Gandhis assassin, Kehar Singh.
The Court observed that while exercising powers under Article 72,
The President does not amend or modify or supersede the judicial record. And this is
so, notwithstanding that the practical effect of the Presidential act is to remove the
stigma of guilt from the accused or to remit the sentence imposed on him.

GOVERNORS POWER TO GRANT PARDONS

The power of Governor to pardon under Article 161 runs parallel to that of the
President under Article 72. However, this power of the Governor, dealt with under
Article 161 of the Constitution, is narrower in scope than the power of the President to
grant pardons. The Constitutional provision also empowers the Governor to grant
pardons, reprieves, respites or remissions of punishment, or to suspend, remit or
commute the sentence of any person who has been convicted of an offence against
any law that relates to a matter covered by the executive power of the State.9
In the case of Swaran Singh v. State of U.P10, the Governor of Uttar Pradesh remitted
the whole of the life sentence of an MLA of the State Assembly who had been
convicted of the offence of murder within a period of less than two years of his
conviction. The Supreme Court found that Governor was not posted with material
facts such as the involvement of the accused in 5 other criminal cases, his
unsatisfactory conduct in prison and the Governors previous rejection of his
clemency petition in regard to the same case. Whereas in the case of K.M Nanavati v.
State of Bombay, the reprieve granted by the Governor under Article 161 was held
constitutionally invalid since it conflicted with the rules made by the Supreme Court
under Article 145.11
After the decision to grant pardon is taken by the Executives, the result is again
available for judicial review by the Supreme Court. As in Satpal v State of Haryana12,
the Court quashed the order of Governor to pardon the person convicted of murder on
the ground that the Governor had not been advised properly with all the relevant
materials. The Court held that such an order tends to be arbitrary and irrational. The
case of Bikas Chatterjee v. Union of India 13 restated the principles of judicial review
on the pardon power.
9 Article 161, Constitution of India, 1950
10 Swaran Singh v. State of U.P AIR 1998 SC 2026
11 K.M Nanavati v. State of Bombay (1961) 1 SCR, p. 541.
12 Satpal v State of Haryana 2000 (5) SCC 170

Though the trend towards greater judicial scrutiny of the power of pardon is
undoubtedly a welcome one, the judiciary must leave the executive with a window of
discretion in the exercise of the same. If we do not combine democratic governance
with firm governance, we shall have no one except ourselves to blame for lawlessness
resulting from the abuse of the provisions relating to pardon by criminals guilty of
heinous crime.14

THE EXECUTIVE POWER OF ORDINANCE MAKING

The ordinance-making power of the Executive, needs to be suitably restrained to
create a balance of power between the executive and the legislature in India and to
check the misuse of the same.15
Another constitutional power given to the State and Union Executives is that of
ordinance making. It must be noted that this is not a new feature added in the Indian
Constitution. Under the Government of India Act, 1935, this power was given to the
Governor General in Articles 42 and 43. Members of the Constituent Assembly,
having experience of abuse of such power, were understandably wary of including the
same in the Constitution. Dr BR Ambedkar said that it was very important to
confer upon the President the power to promulgate a law which will enable the
executive to deal with that particular situation because it cannot resort to the ordinary
process of law when the legislature was not in session.
This makes it quite evident that the Constitution framers envisaged this power only
for unforeseen, sudden situations and where the executive required additional legal
sanction to address the situation. However, the executive decided to completely
neglect the requirement of necessity for immediate action. According to data
furnished in the Statistical Handbook of the Ministry of Parliamentary Affairs, more
than 41 ordinances were promulgated during the term of the first Lok Sabha itself.
Indeed, in the pre-Indira Gandhi period, that is, before 1966, more than 75 ordinances

13 Bikas Chatterjee v. Union of India 2004 (7) SCC 634 at 637

14 Pardoning Power under the Indian Constitution
15 Anirudh Barman Ordinance Route

were passed by the Central government. The necessity of taking immediate action by
promulgating ordinances has remained debatable at best through the years.

PRESIDENTS POWER OF ORDINANCE MAKING

Usually, parliament has the powers to make laws and it alone can pass laws on Union
list matters. However there may be some conditions when the parliament is not in
session and it becomes necessary to make laws. In these cases our constitution under
Article 123 gives special legislative powers to President of India by promulgating
ordinance under certain circumstances. Thus if both the houses of parliament are not
in session and it becomes necessary to make laws, then president can make laws
within the powers provided by the constitution of India. In the case of Sat Pal & Co.
vs. Lt. Governor of Delhi,16 it was ruled that the power to issue an Ordinance by the
President is co-extensive with the Legislative power of the Parliament.
The important provisions regarding ordinance making power of President of India17
are:

The President gets the powers only when the Parliament is not functioning.
Even if one house of Parliament is not functioning, the President can pass

on ordinance.
The President has powers to pass ordinance on the matters on which the

Parliament has powers.

The Councils of Ministers should suggest the passing of an ordinance on

such matters.
The President himself should be satisfied about the need for the ordinance

and he cannot be compelled.

Once an ordinance is passed, it should be placed before both the Houses of
Parliament and approved by then within six weeks of their respective dates

of reassembly.
The ordinance lapses if it is not approved within the aforesaid six weeks or
if it is rejected earlier or if the President himself withdraws the ordinance.

16 Sat Pal & Co. vs. Lt. Governor of Delhi 1979 AIR 1550
17 Article 123, Constitution of India, 1950

GOVERNORS POWER OF ORDINANCE MAKING

The State executive i.e. the Governor gets such power from Article 21318. The law
making power in state is inherently vested in the state assembly. But there may be
situations when state assembly is not in session and it is necessary to make laws for
the state. In these circumstances Article 213 of the constitution provides that
Governor of the state can promulgate ordinance. There are some provisions regarding
this:
If at any time, when the legislative assembly of the state is not in session, or where
there is a legislative council in the state, when both houses of legislature are not in
session and the Governor satisfies that it is necessary to make law then he can
promulgate ordinances.
The Governor has powers to pass ordinance on the matters on which the legislative
assembly has powers.
Once an ordinance is passed, it should be placed before Legislative assembly of the
state or where there is a legislative council, before both the houses and approved by
then within six weeks of their respective dates of reassembly.
The ordinance lapses if it is not approved within the aforesaid six weeks or if it is
rejected earlier or if the Governor himself withdraws the ordinance.
But there are certain circumstances when the Governor shall not promulgate any
ordinance without the instructions of the President.19 This includes instances when the
bill contains the same provisions which require the previous sanction of the president,
the Governor would have deemed it necessary to reserve the bill for the previous
consideration of the president or if an act contains same provisions which has been
reserved for the consideration of the president.

18 Article 213, Constitution of India, 1950

19 Ordinance Making Powers of President and Governor

THE EXECUTIVE POWER OF DISSOLUTION OF

LEGISLATURE
President
The Constitution gives the power to the President of India to dissolve the house of
people under Article 85. The upper house i.e. Rajya Sabha can never be dissolved.
The provision is a British one where the king is bound by the advice of the Prime
Minister on dissolution of House of Commons. Article 85 does not require the aid and
advice of Prime Minister to dissolve the house but nevertheless has to be read along
with Article 74. In four occasions, the advice of Prime Minister is not required for
dissolution of the house. First being when the Prime Minister loses his majority in the
house, when he is unable to prove his majority, when no-confidence vote is passed
against him and lastly when he is not facing the Parliament, but Parliament has the
proof that the ruling party has no majority in the house. Dr Ambedkar in the
constitutional assembly debate said that The President of India shall test the feelings
of the house whether the house agrees that there should be dissolution or whether
house agrees that, affairs should be carried on with some other leader without
dissolution. So, the President before going to dissolution should find out any
alternate ministry if possible.
Furthermore, the ministers hold office during the pleasure of the President as provided
in Article 75(2) which makes it clear that the President can dismiss a Minister at his
will. In Dinesh Chandra v. Choudhari Charan Singh20, the Court held that to argue
pleasure could be interpreted in Article 75(2) to mean the President can dismiss any
Minister at any time at his will. Subsequently, in the case of SP Anand v. HD
Devegowda, it was held that since Ministers also include Prime Minister, the
President can dismiss Prime Minister also at his will.

20 Dinesh Chandra v. Choudhari Charan Singh AIR 1980 Del 114

Governor
The Governor has the power to dissolve the Legislative Assembly under Article 174
of the Constitution. However, this provision is neither explicit not any convention has
been developed in this regard. Clause (2)(b)21 merely says that the Governor from
time to time dissolve the Legislative Assembly and no circumstances have been
provided in this regard. Generally, the Assemble is not dissolved till the expiry of
subscribed period of 5 years, nonetheless, in exceptional circumstances; it can be
dissolved by the Governor before expiry of normal period.
M.V. Pylee in this regard opined that it is not a normal practice to dissolve a
Legislature before it has completed its prescribed period of life. Dissolution at an
earlier date with a view to appealing to the electorates and seeking to solve a situation
of political instability is an accepted principle of Parliamentary System of
Government.
The circumstances when the Governor can dissolve the Legislative Assembly are:
i)

Chief Minister enjoys the majority support and advises the Governor to

ii)

dissolve the Legislative Assembly.

Due to the defection of the members of ruling party or by another reason,

iii)

the ruling party comes in minority.

Other party or coalition of parties is not in a position to form the

iv)

government.
On the basis of the report sent by the Governor that the constitutional
machinery of the State has been failed, the President may dissolve the
Legislative Assembly on the recommendations of the Union Cabinet.22

21 Article 174, Constitution of India, 1950

22 Discretionary Powers of the Governor in India