Constitution test 2

B. Union Executive It is composed of the President, the Prime Minister and the
Council of Ministers. The Executive Head of the Indian Republic is called the
President.
President :The President is the Head of the State and is the first citizen of the
country and represents the nation. The Official Residence of the President is known
as Rashtrapati Bhavan. He / she does not belong to any political party. He / she is
the Custodian of the Constitution and symbol of unity of the nation. He / she is
elected by an Electoral College consisting of Lok Sabha, Rajya Sabha and the
Members of the Legislative Assemblies of various States. No court of law can
question his / her conduct. He / she may be removed for violation of the Constitution
by a process known as Motion of Impeachment.
PRESIDENT Qualifications and Terms He / she must be a citizen of India; must have
completed the age of 35 years; must be qualified for election as a Member of the
Lok Sabha; and term / tenure of the Office is five years and eligible for re-election
(but according to custom, he / she can not contest for more than two terms).
PRESIDENT Powers
Executive Powers: He / she appoints the leader of the majority party or group in the
Lok Sabha as the Prime Minister. He / she also appoints the Ministers recommended
by the Prime Minister. The Governors / Lieutenant Governors of the States /
Territories; Ambassadors; High Commissioners; Consuls; Attorney-General;
Comptroller & Auditor General; Finance Commission; The Chief Election
Commissioner; Chairman & Members of Union Public Service Commission; and
Special Officers for Scheduled Castes & Tribes and Linguistic Minorities are
appointed by the President. He / she is the Commander-in-Chief of the Armed Forces
(Army, Navy and Air force). Wars, if any, are declared in the name of the President.
Legislative Powers: He / she has the power to summon the Parliament. He / she may
address a joint sitting of both the Houses. A Bill passed by both the Houses of
Parliament becomes an Act only after it receives the assent of the President. He /
she has a right to send back the Bills for reconsideration. When the Parliament is
not in session, he / she has the power to legislate on the recommendation of the
Union Cabinet. Such legislation is known as an Ordinance. However, for an early
dissolution, the advice of the Prime Minister is needed.
Judicial Powers: The Judges of the Supreme Court and the High Courts are appointed
by the President. He / she has a right to pardon and reduce the punishment given
by various courts.

Financial Powers: A Money Bill can be introduced in the Lok Sabha only after
obtaining the sanction of the President. The Budget also needs the consent of the
President. 36 Indian Constitution
Emergency Powers: To meet certain types of abnormal circumstances in the
country, he / she has the power to declare National Emergency. This power is
exercised by him / her on the advice of the Council of Ministers. There are three
kinds of Emergencies during which the President can declare Emergency with the
approval of the Parliament and they are: a) When the constitutional machinery has
failed in a State, he / she can declare emergency and can dissolve the legislature or
suspend it; b) When the country is threatened by external aggression; and c) When
the financial condition is in crisis, he / she can declare Financial Emergency.
(So far, Emergency was declared three times in our country. Firstly, in October 1962
when China attacked India; Secondly during Pakistani attack in August & September
1965 and December 1971; and Thirdly during 1975 under the excuse of internal
disturbances)
From past experience, it is felt that there is a need to make following changes in the
Presidential election:
He / she should not be a member of any political party in previous five years
He / she should not have crossed the age of 65 years at the time of election
Only one term to be fixed He / she not have faced any criminal cases anytime in
his / her life
He / she should have a minimum University degree

The mode of election of our President defers from that of the United States of
America or France.
He / she is elected by a body of electors constituting an Electoral College. It consists
of:
The elected Members of the Lok Sabha and Rajya Sabha (Nominated Members of
the Lok Sabha and Rajya Sabha are not electors)
The elected members of the Legislative Assembly of the States (Nominated
Members are excluded)
The Members of the Legislative Assembly of the National Capital Territory of Delhi
and of the Union Territory of Pondicherry (70th Amendment Act, 1st June, 1995)

(NOTE:Our first President Dr. Rajendra Prasad is the only one to have been
President for two consecutive terms
) Emoluments: Emoluments: By passing the Presidents Emoluments and Pension
(Amendment) Act, 1998, Parliament has raised to Rs.50000/- per month. The same
Act provides for the payment of an annual pension of Rs.300000/- to a person who
held Office as President, on the expiration of his term or on resignation, provided he
is not re-elected to the Office. (Rs.10000/- originally, raised to Rs.20000/- in 1990
and to Rs.50000/- in 1998 with effect from 1st January, 1996)
Veto: It is the eto: power of the executive to withhold or refuse assent to legislation.
The purpose is to prevent ill-conceived legislation as well legislations, which may be
ultra vires or unconstitutional. Power and Function of Different Organs of State and
Union Government 37
Vetoes are classified into
Absolute Veto: It is the power to say no to a Bill passed by both Houses of
Parliament. Such a bill never becomes an Act. The power cannot be overridden by
the legislature. The President has his / her power in relation to all Bills except Money
Bills.
Qualified Veto: It is that power to veto which can be overridden by the legislature by
a special majority (in case of United States of America). In India, there is no
requirement of special majority. If a Bill is adopted again by the Houses, the
President cannot withhold assent. Hence, there is no qualified veto.
Suspensive Veto: It is a veto that may be overridden by an ordinary or simple
majority. Our President exercises this veto when he / she returns a Bill for
reconsideration.
Pocket Veto: When a Bill is presented to the President, he / she either gives his / her
assent or refuse to give his / her assent. The Constitution does not prescribe any
time limit within which the President has to declare his / her assent. The President
may simply keep the Bill on his / her table indefinitely. Such action which is neither
negative nor positive is called Pocket veto.
Pardon: It Pardon: completely absolves the offender from all sentences,
punishments and disqualifications. He / she comes to the same position as if he /
she had never committed the crime.
Reprieve: It is t Reprieve:Reprieve: emporary suspension of death sentence
generally pending the proceedings for pardon or commutation.
Respite: It Respite:Respite: means awarding a lesser sentence in place of one
originally awarded e.g., on the ground of pregnancy of a woman offender.

Remission: Remission: It Remission: reduces the length of sentence without

affecting its character i.e. sentence of rigorous imprisonment for two years may be
remitted to one year.
Commutation: Commutation: It Commutation: substitutes one form of punishment
for another of a lighter character i.e. death sentence may be commuted to life
imprisonment. Rigorous imprisonment can be commuted to simple imprisonment,
which in turn may be commuted to fine.

Inter State River Water Disputes

Indias unique federal structure has offered diverse constitutional and political problems for
the judiciary and the executive. A particular headache for the powers that be has been to
resolve issues of inter-state water disputes. The constitutional provision for inter-state water
disputes laid down in Article 262 of the Constitution was derived from Sections 130-134 of
the Government of India Act, 1935. Section 131 of the Act empowered the Governor General
to refer any dispute to a Commission while Section 134 explicitly barred the jurisdiction of
all courts in respect of water disputes covered by Sections 131-133. [1] Article 262 of the
Constitution provides for a specific law enacted by Parliament to adjudicate these disputes
and barring the jurisdiction of all courts, including the Supreme Court, on the same. Apart
from this provision, water, as a subject-matter, occupies Entry 56 and Entry 17 of List I and
List II respectively. While Entry 17 of List II gives the State Legislature exclusive power to
legislate on water-related infrastructural projects [2] like irrigation, drainage, storage and
power; that power is subject to Entry 56 of List I which gives the Parliament exclusive power
notwithstanding anything in the Constitution [3] , to legislate on regulation and development
of inter-state rivers and river valleys as has been declared by law to be in the public
interest [4] . The only legislation dealing with inter-state water disputes is the Inter-state
Water Disputes Act, 1956. In this essay, I will argue that the constitutional provision of
keeping the Supreme Court out of the decision making process, though enacted with cogent
reasoning, is flawed and has not been effective. In Part I, I will give a brief descriptive
analysis of Article 262 with the help of various case laws. In Part II, I will highlight a

particular and quite controversial case, namely the Cauvery Water Dispute and with its help I
will draw attention to the fact that the constitutional provisions and the resulting legislative
undertakings have failed miserably in quick and fair disposal of such cases. In Part III, I
conclude by suggesting how the arrangement in general and Article 262 in particular needs to
be amended to ensure speedy resolution of inter-state water disputes.

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Part I: Arrangement envisaged under Article 262
Clause (1) of the Article lays down a very general provision for adjudicating such disputes.
The words Parliament may by law neither imposes an obligation on the Central legislature
nor does it provide for any sort of a definitive arrangement of dealing with such issues.
Again, it is pertinent to note here that these extra-constitutional arrangements, whatever they
might be, will only relate to disputes regarding the use, distribution or control of the waters
of any inter-state river or river valley [5] . Disputes outside this ambit are not subject to
Clause (1) of Article 262 and therefore the Supreme Court cannot be subject to the limitation
provided under Clause (2). This view was laid down by a 3 judge bench of the Supreme
Court in State of Karnataka v. State of Tamil Nadu [6] when the appellant state raised the
contention that the Supreme Court had no jurisdiction to decide the case as a result of Article
262 read with Section 11 of the Inter-state Water Disputes Act, 1956. [7] Rejecting the
argument, the Court held that the exclusion of jurisdiction was only limited to the use,
distribution or control of the waters of any inter-state river or river valley as envisaged under
Article 262 and in the matter presented the Court was called upon to examine and interpret a
statutory enactment and it was well within the powers of the Court to do so. [8]
It is important to note that states can only raise disputes in certain circumstances [9] . First,
states can complain if a right, acquired either by agreement or by custom, has been infringed.
Secondly, if flood waters from another State are discharged into the aggrieved State causing
nuisance that can be a valid point of dispute. These are the only two cases in which States
can validly raise concerns and ask the Central Government to intervene. [10]
The above discussion calls for a very obvious question which is the reason why Article 262
has been framed the way it has. If it hadnt been for Article 262, states could have
approached the Supreme Court invoking its original jurisdiction under Article 131. There is
an argument that since river water is a fugitive resource; it does not belong to any one state
so effective adjudication on definite property rights is not possible. Furthermore, since the
dispute concerns not just private parties but the benefit of entire States, adversarial litigation
is not feasible. Even though one accepts the premise, it is very difficult to accept the given
solution. The favoured solution has been a friendly discussion between parties keeping the
national interest at heart, which is in effect, a political settlement. This has only led to
intense politicisation of these issues especially with the change in the political scenario of the

respective states [11] . To illustrate, the Cauvery water dispute reached its zenith at a time
when the Centre, the respective states of Karnataka, Tamil Nadu and Kerala were ruled by
different political parties.
Politicisation and scant regard of implementation of tribunal awards was exemplified by the
conduct of the Government of the State of Punjab when it refused to fulfil its obligations in
digging up the Sutlej-Yamuna Link (SYL) Canal and was consequently faced with a suit
filed by the State of Haryana. [12] In that case, the State of Punjab sought to take advantage
of the exclusionary clause of Section 11 of the Inter-State Water Disputes Act, 1956 read
with Article 262 of the Constitution which would have left the State of Haryana without any
recourse to judicial remedy. However, the Supreme Court held otherwise and said that
fulfilment of obligations pursuant to a Memorandum of Settlement signed in 1985 were
enforceable by an order of the Court and this had nothing to do with water disputes per
se. [13] Undeterred, the State of Punjab did not even comply with this order of the Supreme
Court even as its application for a review was rejected. The State of Haryana filed an
application for implementation of the judgement while the State of Punjab filed a suit
praying that the judgement was not enforceable as it was not decided by a Constitutional
Bench under Article 145(3). The Court found in favour of the State of Haryana [14] but the
dispute regarding the Sutlej-Yamuna link canal is far from over.

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Part II: The Cauvery Dispute: An exercise in futility

The Cauvery river dispute was not an unexpected development. The old princely state of
Mysore and the Madras Presidency had been at loggerheads for decades before the
Independence over sharing of the Cauvery waters. Two agreements were hammered out of
intense negotiations between the two entities, one in 1890 and the other in 1924 [15] . After
independence, 26 meetings were held between 1968 and 1990 [16] before the Supreme Court
in Tamil Nadu Sangam v. Union of India [17] directed the Central Government to establish
what is now known as the Cauvery Water Disputes Tribunal by virtue of the Inter-state Water
Disputes Act, 1956. However, some issues which arose in that case laid bare the loopholes in
the Act. The petitioners had filed a writ application praying that the Court issue a writ of
mandamus to the Central Government to establish a tribunal under the Act and prohibit the
State of Karnataka from constructing artificial contrivances to regulate the flow of water. The
Court had to decide whether the Central Government had formed the opinion that
negotiations were not possible and the matter had to be referred to the tribunal.
Consequently, the Court then asked the Central Government and only then did the Court
come to the conclusion that the Central Government had to establish a tribunal. Section 4 of
the Act which empowers the Central Government was therefore totally bent on the will of the
Central Government [18] . If the Centre had declared that it had not formed any such

opinion, such matters could and did, as in the case of Cauvery, go on for years. The main
point of dispute between the states was that Tamil Nadu wanted to go back to the 1890 and
the 1924 agreements while Karnataka argued that those were unfair and had no bearing since
the State of Karnataka had no political existence back then. In 1991, the Cauvery Tribunal
issued an interim order much to the chagrin of the Karnataka Government which promptly
promulgated an ordinance that effectively nullified the Tribunals award. The matter came up
to the Supreme Court through a Presidential reference in In re Cauvery Waters Tribunal [19] .
The State of Karnataka argued that the ordinance was well within its competence by virtue of
Entry 17 of List II. Invalidating this argument, the Supreme Court held that legislation on
adjudication of disputes relating to inter-state water disputes were wholly mandated to the
Act which did not bear any resemblance to either Entry 17 of List II or Entry 56 of List
I [20] . In fact, the Act had its genesis solely from the provisions of Article 262 and no other
constitutional provision was related to it. The ordinance was held unconstitutional because it
adversely affected the jurisdiction of the Act-appointed tribunal and also because it was
beyond the judicial powers of the State as no legislature could pass a law which changed a
decision inter se. Thereafter, the Centre appointed the Cauvery River Authority and a host of
talks were hold before the Tribunal finally delivered its report on the 5th of February,
2007. [21] But the final award did not put an end to the dispute as the States of Karnataka,
Tamil Nadu and Kerala filed appeals against the award in the Supreme Court which are still
pending [22] . If one accepts the premise, that river water disputes are sensitive in nature and
hence adversarial litigation is not feasible, then the question to be asked here is why is the
award appealable. One wonders if the Supreme Court is in any way better positioned to
handle a matter of such legal-technical magnitude as this than a specialised Commission
especially set up for the job. Since the Supreme Court admitted the appeals, the final award
was not gazetted effectively dragging on the dispute further. Barring the jurisdiction all
courts including the Supreme Court comes to nought when states can stall the judicial
process through such means. By the amendment in 2002, the parties could have referred the
appeal to the Tribunal itself and the Tribunal could have disposed of the matter
accordingly [23] . Going to the Supreme Court and hindering every possible solution smacks
of political one-upmanship, characteristic of the country. Indeed, the four entities, Karnataka,
Kerala, Tamil Nadu and Puducherry, could have settled the issue, looking at it from a basinwide perspective as these disputes are mostly collective action problems [24] . The political
will to do that, however, was sadly missing. The Supreme Courts role in admitting the
special leave petitions also helped the cause of the States. Under Article 136, the Supreme
Court has discretion in admitting special leave petitions and it could have exercised that
discretion in holding that the tribunal was the final adjudicator in this regard and resolved the
dispute quickly. [25]

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The reasons why the Cauvery water dispute turned out the way it did can be attributed to a
number of factors, a few of which are given below [26] :
The dispute was often the single-point agenda of political parties contesting elections in both
Tamil Nadu and Karnataka. Intense politicisation of this sensitive issue made conciliatory
measures impossible, with parties often bypassing the jurisdiction of the Tribunal and going
straight to the Supreme Court. [27] Research suggests that in the recent years, all parties,
especially in Karnataka, whether ruling or in opposition, have adopted a no-compromise
attitude in this respect [28] . While this has been crucial in garnering votes as farmers from
the Cauvery district do have an important say in the electoral politics of both states [29] , it
has ruled out all possibility of bringing the warring states to the negotiating table so that an
amicable settlement can yet be worked out.
The Cauvery problem exemplifies the topsy-turvy nature of federal politics. It also illustrates
how and why a strong Central Government is needed so that such disputes are never referred
to a tribunal [30] . Indeed, that is the best-case scenario that all stakeholders should aim at as
protracted litigation would hurt all parties. However, to ensure that such negotiations go on
and the states concerned come to a compromise solution, a determined Central Government
with the will to solve such disputes is needed. Sadly, however, the successive Central
Governments at the helm have proved to be quite ineffectual when dealing with such cases.
In the late 80s and early 90s when the Cauvery dispute reached boiling point, the
Government at the centre was ruled by weak coalition governments, led by V.P. Singh,
Chandrashekhar and then P.V. Narsimha Rao, who could ill-afford to displease coalition
partners and party members who had high stakes in the dispute.
The focus has strangely been on absolute quantities of water which is absurd to say the least
as the quantities would obviously vary due to a number of factors. First, the Cauvery is not a
Himalayan river and therefore it cannot depend on glaciers as its source of water supply.
Secondly, as the river is wholly dependent on the Monsoon, its water flow would obviously
vary through the different seasons. What was required was a percentage allocation of riparian
rights which would keep the allocation constant regardless of the actual flow of water.
Unfortunately, the Tribunal did not consider this problem and awarded a final allocation of
absolute amounts every year which would again give rise to problems if and when the water
flow decreases. [31]
Part III:Suggestions: The way out of this mess
I would deal with this part in two phases; first, I would deal with the legislation itself, that is,
the Inter-state Water Disputes Act, 1956, and then I would deal with Article 262 of the
Constitution.
Before the amendment of 2002, the Central Government could effectively sit on the request
by State Governments for the constitution of a tribunal as no time period had been
mentioned [32] . While the Administrative Reforms Commission recommended a time period
of 3 years, the Sarkaria Commission was more pressing and recommended a time period of
only 1 year by which a Tribunal had to be set up. [33] Accordingly, through the amendment
in 2002, Section 4 of the Act was amended mandating the Centre to set up a tribunal within a

year. Though this indeed is a step in the right direction, the recommendations also spoke
about how the Central Government itself needs the power to constitute tribunal suo motu as
States often prolong these disputes because of electoral politics. The Act does provide for a
single instance in which this case is possible and this is the case of the Ravi-Beas Tribunal
but apart from this, the Centre has no power whatsoever to constitute tribunals on its own
and therefore, an amendment to this effect is necessary. The arrangement created under the
Act does not provide for a foolproof mechanism of enforcement of the awards of the
tribunals. This can be exemplified by the conduct of the State of Karnataka after the interim
awards of the Cauvery tribunal were published. By the amendment in 2002, the award of the
tribunals would have the same force as that of a Supreme Court decree but that has not
helped matters much thanks largely to the Supreme Court itself.

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The purpose of the arrangement envisaged under Article 262 and the Inter-state Water
Disputes Act is to effectively bar the jurisdiction of all Courts including and especially the
Supreme Court so that protracted litigation is avoided at all costs. States, however, have
found ways to work around that bar and have knocked on the doors of the Supreme Court for
relief but the most surprising part is that the Supreme Court has often obliged them. In Tamil
Nadu Sangam [34] , the Supreme Court went to the extent of directing the Central
Government to constitute the Cauvery tribunal. Moreover, the Court also decided, on its own,
that negotiations between the States had proved futile and a tribunal had to set up, clearly, an
executive decision which was well beyond the powers of the Court. A more blatant
interference was made in the State of Andhra Pradesh v. State of Karnataka [35] , where the
issue was whether the raising of the height of the dam on the Krishna River by Karnataka
was justified. The Supreme Court interpreted the award of the Krishna Tribunal and decided
the height of the dam accordingly and in the favour of Karnataka [36] . This clearly
amounted to interference with the award of an independent tribunal and the Supreme Court
could have easily avoided the suit on account of Article 262 and Section 2(c) of the Act
which defined water disputes. The Courts judgement in State of Orissa v. State of Andhra
Pradesh [37] is a curious one. Though the judgement mostly adheres to the line of reasoning
enunciated by the Supreme Court in the recent past and like Tamil Nadu Sangam [38] directs
the Centre to establish a new tribunal, it goes further. The Court holds that the bar envisaged
by the Constitution and the Act would only come into effect once the Tribunal is set up. So,
therefore, in the absence of a tribunal, there is no effective bar on its powers. Two questions
would arise. Would this position also apply to High Courts under Article 226 especially in
cases where High Courts have jurisdiction over two or more states? If a tribunal has not been
set up, would the Supreme Court act as the arbiter between the parties? If that is the case,
then the whole purpose of Article 262 and the Act is redundant. Surely, constituting tribunals
is not the only purpose of the arrangement. One possible way of effectively barring the

jurisdiction of the Supreme Court would be to widen the definition of water disputes given
in Section 2(c) of the Act as well as Article 262.
However, effecting such changes would still be superficial and would not deal with the crux
of the problem. The point is this: the sharing of inter-state waters cannot and should not be a
constitutional-legal problem. By enacting Article 262, the draftsmen went the half way but
not the whole and the Inter-state Water Disputes Act only enhances that problem by making
it a case before a tribunal. The Supreme Court has time and again interfered and such
interference has only showcased the loophole in the article as well as the Act. By virtue of
the present arrangement, sharing of river waters remains a constitutional-legal problem and it
is this characteristic which is the greatest flaw of the arrangement. Some scholars have
suggested that the disputes should be taken out of the purview of all tribunals and all Courts
and this is where I think the solution lies. [39] Inter-state rivers are not state assets; they are
national assets and must be held to be so. By making it a federalized system of distribution of
national resource, the sharing of waters would be the subject of a national commission
empowered to deal with such disputes and allocate the resources on the basis of empirical
data and scientific analysis. The analogy with sharing of taxes is highly illuminating and
rightly so. [40] The Finance Commission is empowered exclusively to deal with the sharing
of taxes between the Union and the States and their recommendations are sent to the
President and the Government has, by and large, accepted most of its recommendations [41] .
Institutions, such as these, headed by technically knowledgeable people should take over the
burden of sharing of river waters and allocate them on that basis. The National Water
Resources Council and the National Water Development Agency were steps in the right
direction but were fundamentally flawed as they had no statutory force. [42] Article 262
could be amended so as to bring in a new institution, making it a constitutional authority,
which would have the power to decide and allocate river water resources on a pan-Indian
scale. Such an institution should have technically knowledgeable people at its helms with the
Secretary, Ministry of Water Resources playing an advisory role.
Conclusion
While the draftsmen of the Constitution had the right intention in framing Article 262 in the
way they did, their hopes were belied as they could not envisage, quite naively one might
add, that states would fight tooth and nail for what they considered their right. The Inter-state
Water Disputes Act, 1956, which Article 262 gives way to opens a new platform for
adversarial litigation which was sought to be avoided. Ironically, the Supreme Court which
should have thought better than to drag itself into this mess, has consistently and without any
caution decided on such issues which has in many ways nullified the principle which Article
262 originally stood for. As mentioned before, I have argued that avoidance of a
constitutional-legal approach is the key and an institutional approach focusing on allocation
of water resources should be the way forward. [43]

Power Of President Under Indian

Constitution
The office of the President is very august and the Constitution attaches to it many privileges
and immunities. The President along with the Council of Ministers headed by the Prime
Minister comprises the Central executive which has been dealt from Article 52 to 78 of the
Constitution.
The President is the head of the state and the formal executive. All executive action at the
centre is expressed to be taken in his name. This power has been granted to him under Article
53(1) which states that the executive power shall be vested in the President and shall be
exercised by him directly or through officers subordinate to him.
The President of India is the head of state and first citizen of India and the Supreme
Commander of the Indian armed forces. In theory, the President possesses considerable
power. In practice, the President's role is comparable to those of a constitutional monarch,
and indeed the office replaced that of the British monarch (represented by the Governor
General) upon India's independence.to help you with your studies. This is not an example of
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The Constitution only formally vests functions in the hands of the President. In reality he has
no function to discharge his discretion and or his individual judgment. He has to act on
ministerial advice and therefore the Prime Minister and the Council of Ministers constitute
the real and effective executive.
It is said that this structure of the central executive closely resembles the British Model
which functions on the basis of unwritten conventions. In India some of these conventions
have been written in the Constitution with regards to tenure, appointment and collective
responsibility of the Ministers. However, still some matters have been left to conventions for
example the accountability of the Cabinet and the Minister for the acts of his subordinates.
The office of the president is created by Article 52 of the Constitution and the matters of
election are dealt from Article 54 to 60 of the Constitution. The President is elected by the
method of indirect election i.e. by an electoral college consisting of elected members of both
Houses of Parliament and of the State legislative assemblies. The method of indirect election
was to emphasize the ministerial character of the executive that the effective power resides in
the Ministry and not in the President as such. Secondly, the method of direct election would
have been very costly and energy consuming. There was also the fear that a directly elected
President may in course of time assume all the power.
The President derives its power from Article 53 which vests in him all the executive
authority including the Supreme Command of the Armed forces. There are several other
provisions in the Constitution which mention specific functions of the President. Briefly the
President has the power to appoint all important offices including those of the Prime Minister
and other Central Ministers, Governors, Judges of the Supreme Court and the High Courts
and even Election commissioners. He even he has the authority to appoint commissions with
respect to the administration of scheduled areas. Most importantly the President is vested
with wide powers during Emergency under Article 352 to 360 of the Constitution including
suspension of Fundamental rights. Moreover every bill comes to him for his assent and can
either refuse to give his assent or send it back for reconsideration.

CHAPTER 1
ELECTION OF THE PRESIDENT
The office of the president is created by Article 52 of the constitution. The president is
elected not directly by the people but my method of indirect election.

1.1 Qualifications For Presidential

Candidate
Article 58 of the constitution lays down that the person to be eligible for the president should
be at least 35 years of age, a citizen of India and should be qualified to be a member of the
Lok Sabha. A person is also not qualified to stand for election as President if he holds office
of profit.
The conditions of the Presidents office are that they cannot be members of any legislature
and if they are such members at the time of their election or appointment they are deemed to
have vacated their seats in such legislature when they enter upon their office. [1]

1.2 Manner Of Election Of The President

The president of India is not directly elected by th epeople. Art 54 provides that the President
shall be elected by an electoral college consisting of the:
a) elected members of both houses of Parliament
b) elected members of the legislative assemblies of the state.
The nominated members of the Houses at the Centre and the states do not have voting rights
in the election of President. The election of President shall be held in accordance with the
system of prportional representation by means of the single transferable vote. The sysytem
adopted for votiong is secret ballot. The constitution provides that as far as practicable there
shall be uniformity in the scale of representation among the states inter-se as well as parity
between the states as a whole and the Union at the election of the President. For the purpose
of securing such uniformity among the states, the parity between the Union and states, the
following formula is adopted:
1) every elected member of the legislative assembly of a state shall have as many votes as
there are multiple of 1000 in the quotient obtained by dividing the population of the state by
the total number of the elected members of the Assembly. If by this division, the remainder is
500 or more, it will be counted as if vote of each member is increased by one. Thus, the
number of votes which a member of legislative assembly is entitled to cast in the presidential
election is based on the ratio of population of the state.to us by a student in order to help you
with your studies. This is not an example of the work written by our professional law writers.

state population x 1
Total numbers of elected members 1000
in the state legislative assembly
2) the number of votes which elected members of Parliament is entitled to cast shall be
obtained by dividing the total number of votes of th elegislative assemblies of all the states
obtained underthe above formula, by total number of the elected members of both Houses of
Parliament. If by this division the reminder exceeds one-half it will be counted as one. This
formula secures parity of votes between the members of Parliament, and of the legislative
assemblies of the state.
Total number of votes assigned to the members of the state legislative assemblies in the
Electoral College
Total number of elected members of the two houses of the parliament

2
1.3 Tenure
Art 56 state that the President shall hold office for a term of five years from the date on
which he enters upon his office. Even after expiry of his term he shall continue to hold
offoce, until his successor enters upon his office. He is also eligible for re-election.
The President of India also enjoyes the freedom of standing/ being re nominated for the post
for any number of times. However, it has never been followed. The President may also resign
from the office before the expiry of his tenure, by writing to the Vice-President. He may also
be removed from his office for the violation of the Constitutuion by the process of
impeachment.

1.4 Impeachment Of The President

Article 61 of the Constitution lays down the procedure for the impeachment ofthe President.
The president can be removed from his office by a process of impeachment for the 'violation
of the Constitution '. The impeachment charge against him may be initiated by either House
of Parliament. The charge must come in the form of a proposal contained in a resolution

signed by not less than one-fourth of the total number of the members of the House, and
moved after giving at least 14 days' advance notice. Such a resolution must be passed by a
majority of not less than two-thirds of the total membership of the House. The charge is then
investigated by the other House. The president has the right to appear, and to be represented
at such investigation. If the other House after investigation passes a resolution by a majority
of not less than two-thirds of the total membership of the House declaring that the charge is
proved, such resolution shall have the effect of removing the President from his office from
the date on which the resolution is so passed.

CHAPTER 2
POWERS OF THE PRESIDENT
The President is the head of the state and also the head of the Central Executive. The central
executive besides the President comprises of the Council of Ministers headed by the Prime
Minister [3] . The Constitution formally vests many functions in the President but he has no
function to discharge in his discretion or his individual judgment. The President cannot
exercise personal discretion in discharge of the functions and the powers but is expected to
do so on the advice of the Prime Minister and the Council of Ministers. Therefore the Prime
Minister and the Council of Ministers is considered to be the real and effective
executive. [4]
The Central Executive exercises very broad and varied functions. It does not only exercise
executive functions but also the power to carry out legislative as well as judicial functions.

2.1 Executive Functions

The exercise of the executive power of the Union is the function of the President.
A primary function of the executive is to administer and execute the laws enacted by the
Parliament and maintain law and order. However executive function cannot be limited to this
and a modern state is not expected to confine itself to a mere collection of taxes, maintaining
law and order and defending the country from external aggression. The executive operates
over a large area and discharges varied and complex functions.
The Central Executive is entitled to exercise executive functions with respect to all those
subjects which fall within the legislative sphere of Parliament besides exercising executive

functions which are exercisable by the Government of India under any treaty or
agreement. [5]
A few provisions in the constitution confer on the president some express executive powers
such as [6] :This essay has been submitted to us by a student in order to help you with your
studies. This is not an example of the work written by our professional law writers.
Power to make important appointments like Prime Minister and other Central Ministers [7] ,
Governor. Judges of the Supreme Court [8] and the High Court [9] , Chairman and members
of the Union Public Service Commission [10] , the Attorney General [11] , the Chief Election
Commissioner and other election commissioners [12] , and the Comptroller and Auditor
General of India [13] .
He also has the power to appoint various Commissions like the Finance Commission [14] ,
National Commission for the Schedule caste and the Schedule Tribes [15]
Power to enter into contracts on behalf of the Indian Union [16]
Power to issue directions to state in certain circumstances [17] .
Besides the above, the executive power of the Union is also vested in the Union in
accordance with Article 53. This executive power may be exercised either directly or through
officers subordinate to him in accordance with the Constitution.
However a dispute exists with regards to this power due to the absence of a definition of the
term executive power in the Constitution. For example in Amritlal v. F.N. Rana [18] by
Shah J where the Honourable Judge remarked that:
It cannot however be assumed that the legislative functions are exclusively performed by
the legislature, executive functions by the executive and judicial functions by the judiciary
alone. The constitution has not made absolute or rigid divisions of function between the three
agencies of the State".
The executive cannot act against a statute or exceed its statutory powers. If there exists a law
on that particular matter the executive is bound to act in accordance with it. In M.P v. Bharat
Singh [19] the Honble Supreme court held that the executive cannot infringe the rights of
private individuals without any legal authority. However in some cases the government may
do any act provided it is not act assigned by the Constitution to any authority or body or it is
not contrary to the provisions of any law or it does not encroach upon the individuals right

without the existence of a prior legislation supporting the same. An example of this would be
the acquiring of a foreign territory ceded to India. [20]
Article 73 defines the ambit of the executive power of the centre which states that
Subject to the provisions of the constitution" the executive power of the Centre extends to
The matters with respect to which the parliament has the power to make laws
The exercise of such rights, authority and jurisdiction as are exercisable by the government
of India by virtue of any agreement or treaty.
The above article implies that the executive power is co-extensive with the legislative power
of the Parliament. However where the parliament and the legislature make laws then the
Centres executive power extend to this area only when either the constitution or a law made
by the parliament expressly provides for.

2.2 Judicial Powers

The central executive is empowered to appoint judges of the Supreme Court and the High
Court under Article 124(2) and 217(1) respectively. The issue of the disqualification of the
member of the parliament is also decided formally by the President.
Another important judicial power vested with the President is the power to pardon under
Article 72. Article 72 lays down the cases when the President has the power to suspend,
remit or commute sentences:
In all cases where the punishment or sentence is by a Court Martial
In all cases where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends
In all cases where the sentence is a sentence of death.
However Pardon should not be regarded as a matter of right. It is an act of grace. A pardon
not only removes the punishment but also places the offender in the same position as if he
had never committed the offence. The effect of the pardon is to clear the person from all
infamy and from all consequences of the offences for which it is granted and from all
statutory or other disqualifications upon conviction.

The scope of the power of the President under Article 72 to commute a death sentence into a
lesser sentence has been left open by the court after observing that whether a case is
appropriate to be sent for the consideration of Presidential Pardon depends on the facts and
the circumstance of each particular case.
The concept of presidential pardon being subjected to judicial review was also discussed in
the case of G Krishna Goud v. State of Andhra Pradesh [21] . In this case two persons were
convicted for committing murder in implementing their ideology of social justice through
terrorist technology and were given death sentence. They filed for Presidential Pardon which
was refused. They then moved to the court under a writ petition arguing that their crime was
political in nature which involved different considerations. The court dismissing the petition
held that the court can only interfere when such power has not been exercised in good faith.
Since, the court had not been shown any demonstrable reason or glaring ground to consider
the refusal of commutation as motivated by malignity or degraded by abuse of power the
court cannot interfere with such power.
Therefore this power of the president can be subjected to judicial review if the court
discovers mala fide intention or political vengeance.

2.3 Legislative Powers

Legislative power of the central executive can be divided into the following heads:
Participation of the executive in the legislative process: The President along with the council
of ministers is both members of the parliament and participates intimately in the legislative
making process. The President has the power to convene and prorogue to dissolve Lok
Sabha. The President has the power to pass a bill and his assent is required for the
transforming a bill passed by the two houses into an act.
The central executives consent is also required in passing of certain types of State legislation
which fall under the ambit of Article 288(2).
Moreover in certain aspects Presidents recommendation is required before the Bill is
introduced before the two houses of Parliament.
Bill relating to the alteration or states of formation of new states(article 3)
A money bill cannot be introduced without the recommendation of the President (Article
117(1))

Bill involving expenditure from the Consolidated fund of India

Any bill affecting any tax in which the states are interested.
Ordinance making power
The more controversial and debatable legislative power of the President has always been the
Ordinance Making Power. Usually the power to make the laws rests with the Parliament.
However Article 123 confers special power on the President empowering him to promulgate
ordinances when the Parliament is not in session and the circumstances are such which
require immediate action. An ordinance cannot be promulgated when both the houses of
parliament are in session However it may be passed when only one house is in session the
reason being that a law cannot be passed by only one house and thus it cannot meet a
situation calling for immediate legislation. This power granted to the President in the Indian
Constitution is unique and no such power has been conferred upon the executive in Britain or
the USA.
In justification of the inception of the Ordinance Making power in the Constitution Dr
Ambedkar said that there might be a situation of emergency when the Houses of the
parliament are not in session. It is important that this situation should be dealt with and it
seems to me that the only solution is to confer upon the President the power to promulgate
the law which will enable the executive to deal with that particular situation because it
cannot resort to the ordinary process of law because the legislature is not in session. [22]
Article 123 empowers the President to promulgate ordinance as the circumstances which
appear to require when [23]
When both houses of the parliament are not in session
He is satisfied that the circumstances exist which render it necessary for him to take
immediate action.

Human Rights Are Rights Inherent

TO WHAT EXTENT HAS GOAL 2 OF THE MILLENNIUM
DEVELOPMENT GOALS PROTECTED AND ENHANCED
INTERNATIONAL HUMAN RIGHTS.
Human rights are rights inherent to all human beings, whatever nationality, place of
residence, sex, national or ethnic origin, colour, language, or any other status. We are all
equally entitled to our human rights without discrimination. These rights are interrelated,
interdependent and indivisible (U.N 2010). International human rights movement was
strengthened when the United Nations General assembly adopted the Universal Declaration
of Human Rights in 1948. It was adopted has a 'common standard of achievement for all
people and nations'. The declaration for the first time spelt out the basic civil, political,
economic and social rights that all human being shall enjoy (United Nations 2010). The
United Nations was compelled to address the issue of human rights violations across the
world during world war one and two and mostly because these lack of essential protection of
human rights brought about this wars in the first place.
In September 2000 at the United Nations headquarters in New York, world leaders came
together after a series of summits and conferences over the decade to adopt the United
Nations Millennium declaration, they set out a series of time-bound targets with the deadline
of 2015 and these goals have come to be known as the Millennium Development Goals, they
are eight and these includes ending poverty and hunger, universal education, gender equality,
child health, maternal health, combat HIV/AIDS, environmental sustainability, Global
partnership. In this essay we are going to look at the goal 2 of the MDGs and examine how it
has enhanced and protected international human rights since its inception.
professional law writers.
Universal education is the schooling mandated for all, it is offered to all children, and adult
by the government, whether national, regional or local, provided by an institution of civil
government and paid for in whole or in part by taxes, all in all it means it is available to
everyone that desires an education. The term is generally applied to basic education,
including kindergarten to twelfth grade or its equivalent around the world. It also referred to
primary and secondary education, it could also include advanced education, universities,
colleges or technical school funded and overseen by the government rather than private
entities.
Across the world many children and adult lack basic education, article 26 of the Universal
Declaration of Human Rights (UDHR) provides that everyone has the right to an education.
Education shall be free, at least in the elementary and fundamental stages. It also states that
elementary education shall be compulsory which brings us to target 1 of goal 2 of the MDGs
which is to ensure that, by 2015, children everywhere, boys and girls alike, will be able to
complete a full course of primary schooling. Girls are more likely not to lack basic education

than boys. Education breaks generational cycle of poverty by enabling children to gain skills
and knowledge, education has been linked to improvement in health, nutrition and improving
their chances of survival in the world, it also helps in making them an active participant in
the society, being able to exercise their civil and political rights.
Article 29 of the Convention on the Rights of the Child (CRC) protects the basic rights of
children to Education. Children around the world are being denied their basic rights to an
education especially children from Asia and Sub-Sahara Africa. What keeps these children
out of school mostly is poverty, most parent and guardians cannot afford to feed, clothe or
even provide adequate shelter for these children let alone send them to school for basic
education. Most kids have to help out their parent in providing for the family, they do this by
helping out on the family farms or spend most of their time hawking, some unfortunate ones
especially girls will be forced into an early marriage or prostitution.
Reaching poorer children who don't have access to education has proved to be a major
challenge, according to the MDGS reports of 2008, survey data from 40 countries shows that
in 32 of them, attendance is higher in urban area than the rural area and in sub-Sahara Africa
the number of children likely to attend school does not depend on where they live, be it rural
or urban areas, children from poorer household are least likely to attend school. Article 32 (1)
of the Convention on the Rights of the Child (ICR) protects children from economic
exploitation and anything that will be hazardous to their education.
Progress is being made to make sure that each state provide free and compulsory education
for its citizens, access to free and compulsory primary schooling is already guaranteed by the
nearly ratified Convention on the rights of child (CRC), article 28 (a) which states that make
primary education compulsory and available free to all. Reports shows that in countries like
Burundi, Malawi, Mozambique, Tanzania, Ghana, Kenya have all abolished school fees and
there has been an increase in the ratio of enrolment in schools, in Ghana enrolment increased
by 4.2million to 5.4 million between 2004 and 2005. Also in Kenya enrolment soared with
1.2million additional pupils in 2003 alone and by 2004 the number climbed to 7.2 million.
This is a great improvement for the rights of children to primary education.
Gender equality is another major obstacle to adequate protection of human rights, the
International Covenant on Economic, Social and Cultural rights (ICESCR) article 3
recognised the Equal rights of men and women to the enjoyment of all economic, social and
cultural rights. It is obvious there is gender disparity between a boy and a girl child. An
example is the case of sexual violence against girls at schools across South Africa, the report
according to the Human Rights watch said that girls of every race and economic group are
encountering sexual violence and harassment that impedes their access to education. School
authority rarely challenges the perpetrator of such acts, these feeling of insecurity has
prompted many girls to drop out of school and has affected them psychologically.

exam.

Article 3 of the UN covenant on civil and political rights (ICCPR) protects the rights of both
men and women to the enjoyment of all civil and political rights. School door has swung
open for girls in nearly all regions, according to the 2008 report. Between 2005 and 2006
many countries have successfully promoted girls education as part of their effort to increase

enrolment in schools. As a result of this, two of three countries have achieved gender parity
at the primary level. Even with these achievements progress is slow in coming because in
some regions like the Sub-Saharan Africa, Oceania and western Asia have the largest gender
gaps in primary enrolment, with the rate gender equality is being tackled, gender parity is far
from being achieved.
Political instability, war, violence and discrimination based on ethnicity are some key issues
keeping children out of school. Article 4 of the ICCPR provides protection for human rights.
A Human rights watch investigation in July and August 2004 reveals that internally displaced
children (children who are forced to leave their home and education behind, either because of
violence or any other factor) and migrant children in Colombia face significant problems in
continuing their education. Even though there is legal provisions available for displaced
children to be registered in the community they arrive in, but there is simply no place for
them when they arrive at the community. In India, the 'Dalit' or the so called 'untouchable'
children face discrimination in education. Most government schools established in the areas
where these children live are deficient in basic infrastructure, classrooms, teachers and
teaching aid. Dalit children often sit at the back of the class and are often unfairly treated by
upper caste teachers and staffs.
In Israel, one quarter of all school children attend a separate and parallel school system. The
unfortunate children in this school system are Israeli citizen of Palestinian Arab origin. The
Israeli ministry of education spends less per student in Arab school than they do in normal
Jewish school. Palestinian Arab student drop out of school three times more than Jewish
students and they are less likely to pass the national matriculation examination, only a few of
them make to university. Article 27 of ICCPR and Article 30 of CRC recognised the rights of
human of different ethnicity and religion. There is still a lot of work to be done in these
mentioned areas because these children's rights are being infringed upon and they are lagging
behind in attaining the best education possible and this is going to have a terrible impact on
their future.
Disability and diseases like HIV/AIDS and other related problems keeps children out school.
Children with disability and those living with HIV/AIDS are more likely to be discriminated
against in school and this infringes upon their rights to an education, Article 13(2 C, D) of
ICESCR recognised the rights of to adequate medical care. Government have failed in SubSaharan Africa to address the barriers to education faced by children who are orphaned or
otherwise affected by HIV/AIDs. An estimated 43 million school age children do not attend
school in countries like Kenya, South Africa and Uganda (HRW 2005). Many of this kids
have lost both parent who can ensure they get the education needed are left to strive for
themselves or left with guardians who cannot afford to send them to school, coupled with
them stigma associated with the disease, most of them drop out without being able to re enrol
again.
The Joint United Nations Programme on HIV/AIDS (UNAIDS), is an organization working
hand in hand with the UN in prevention of discrimination against people living with
HIV/AIDS, it helped in recognising the human rights these individuals. The 2008 reports of
UNAIDS on the global AIDS epidemic showed significant achievement in preventing new

infections of HIV/AIDS. Response to the plight of children has been growing and by the end
of 2007, national plans of actions specifically for children who have been orphaned by AIDS
and other vulnerable children has been developed in 32 countries, 29 of which are in SubSahara Africa. Many countries are formulating policies for children affected by AIDS in
national development plan and policies, especially in the ministry of education and health
(MDGS Reports 2009). Article 23 of CRC protects the rights of disabled children.
Children in detention across the world, including street children have little or no access to
education. Children are being subjected to corporal punishment in schools, this scare away
some children. Article 37 and Article 28(2) of CRC protects them from this violation of their
rights. Some street children have been arrested and detained on the charges of walking
aimlessly around and are often denied access to education while in custody and the few who
have access rarely get the kind of education they deserve. Children in custody in the U.S
have access to no education at all. The United States is one of the two countries who are yet
to ratify the Convention on the Rights of the Child, this is so wrong for the so called
democratic country and a world super power, who cannot even protect the rights of its
citizens. There have been reported cases of intolerance, hatred, ostracization and violence of
students based on their sexual orientation. Gay, lesbian and transgendered student are the
most affected.
Furthermore, it has been stressed that it is not only enrolment the Goals 2 of the MDGS is
particular about, it also has to do with the quality of education offered to children. Many
children go to school without adequate supply of learning materials like, textbooks,
notebooks, writing material, computers, Laboratories. Some cannot afford school uniforms or
appropriate clothing to school. Most of them sit on floors because of lack of sitting
arrangements, some are forced to study under trees or in open areas because there is no
building. Lack of appropriate sanitation system is one of the reasons girls drop out of school,
Article 10(f) of CEDAW recognise the rights of girls. The quality of education also means
that children who attend school regularly must learn basic literacy and numeracy skills
(MDGs Fact Sheet) and also to make sure they finish primary school at the right age. Report
shows that in Sub-Sahara Africa a substantial amount of secondary school age children
attend primary school.
Progress is being made so far because the rate of children in developing countries who have
a completed a full course of primary education rose from 79 per cent in 1999 to 85 per cent
in 2006. And this has helped in reducing the number of over age children in primary school,
making room for a new batch of enrolees to come in. For children to reach their full potential
and to protect their rights under Articles 13(2 B, C) of ICESCR, the success of the MDGs
must be replicated at the secondary school level too.

Bibliography
BELLAMY, C, (1999), STATE OF THE WORLD CHILDREN, UNITED NATIONS
CHILDRENS FUNDS (UNICEF).
http://www.unicef.org/sowc99/sowc99a.pdf,accessed on 5th January 2010.

HUMAN RIGHTS WATCH, (2001), SCARED AT SCHOOL: VIOLENCE AGAINST GIRLS

IN SOUTH AFRICAN SCHOOLS. ISBN, NEW YORK.
HUMAN RIGHTS WATCH, (2005), FAILING OUR CHILDREN:BARRIERS TO THE
RIGHTS OF EDUCATION.http://www.hrw.org/en/reports/2005/09/12/failing-ourchildren,accessed on 3rd of January 2010.
HUMAN RIGHTS WATCH, (2005), LETTING THEM FAIL: GOVERNMENT NEGLECT
THE RIGHT TO EDUCATION FOR CHILDREN AFEECTED BY AIDS, VOL 17,NO 13(A).
UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION:
INSTITUTE OF STATISTICS (UNESCO), (2005), COMPARING EDUCATION
STATISTICS ACROSS THE WORLD, GLOBAL EDUCATION DIGEST.MONTREAL, pp
55.

WEBSITES
ON GOALS 2 OF THE MDGS
http://www.un.org/millenniumgoals/education.shtml,accessed on 4th January 2010.
http://www.mdgmonitor.org/story.cfm?goal=2,accessed on 3rd January 2010
STATISTICS
http://mdgs.un.org/unsd/mdg/Resources/Static/Products/Progress2008/MDG_Report_2008_
En.pdf#page=15,accessed on 3rd January 2010
UNAIDS
http://www.unaids.org/en/PolicyAndPractice/HumanRights/default.asp,accessed on 4th
January 2010.
UNAIDS
http://www.unaids.org/en/KnowledgeCentre/HIVData/GlobalReport/2008/,accessed on 4th
January 2010.
http://www.un.org/millenniumgoals/2008highlevel/pdf/newsroom/Goal
%203%20FINAL.pdf,accessed on 28th Dec 2009.

INTERNATIONAL BILL OF RIGHTS.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
UN INTERNATIONAL COVENTION ON CIVIL AND POLITICAL RIGHTS
COVENTION ON THE RIGHTS OF THE CHILD

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN.