December 3, 2021

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Understanding the Union Executive of India through case laws

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This article has been written by Oishika Banerji of Amity Law School Kolkata. This article provides a detailed discussion on the Union Executive under the Indian Constitution, using case laws. 

Table of Contents

Articles 52 to 78 of the Indian Constitution cover the provisions for the Union Executive of India. These provisions have been incorporated in line with the British Parliamentary System, with the only difference between India and England being that the head of the State is a monarch in the former, while it is the President at the union level and the Governor at the provincial level in the latter. The principal executive functionaries of the Union of India includes;

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  1. The President of India;
  2. The Vice-President;
  3. The Council of Ministers; and
  4. The Attorney General of India.

Article 73 of the Constitution of India makes room for the executive power of the Union which includes;

  1. Parliamentary law-making;
  2. Rights, authority, a jurisdiction that can be exercised by the Indian government under an agreement, or a treaty. 

It is always preferable to understand the provisions covering the Union Executive using case laws, and therefore, the same has been adopted by this article. 

The case laws that have been discussed hereunder are very important as they discuss the relevance of the articles of the Indian Constitution and the underlying purpose of the same. Although these cases are not presenting an exhaustive list of judgments delivered by the Indian courts in concern with the Union Executive, they are significant in themselves. 

S.S. Inamdar v. A.S. Andanappa (1971)

Article 58(2) of the Indian Constitution, which provides one of the eligibility criteria for an individual to hold the designation of the Indian President, states that a person must not be holding any office of profit under the Union or state government to qualify to the position of the President of India. The Supreme Court of India while deciding the case of S.S. Inamdar v. A.S. Andanappa (1971) explained the meaning of the term “office of profit”, which has not been defined anywhere in the Constitution of India or the General Clauses Act. The Apex Court stated that the term signifies an office that would be capable of yielding either pecuniary gain or any kind of material benefit in form of profit. 

N.B. Khare v. Election Commission (1957)

The case of N.B. Khare v. Election Commission (1957) knocked the doors of the Supreme Court of India concerning the time of the election of the Indian President as has been provided under Article 62(1) of the Constitution of India. The article mandates that the election of the President must be held before the term of the former President expires. In the present case, when the term of the then President of India, Dr. Rajendra Prasad was about to expire, and new election dates were fixed, a petition under Article 71(1) by Dr. Narayan Bhasker Khare contended that general elections that were to take place in parts of Punjab and Himachal Pradesh have stayed and therefore the prospective candidates who might have been elected were to be deprived of their right to vote in the Presidential election, was moved to the Apex Court. Rejecting the said petition on technical grounds, the top court held that any application under Article 71(1) of the Indian Constitution could be entertained by the Court only after the election had taken place. 

It was after the decision made in this case, the Constitution (11th Amendment) Act, 1961 was passed, amending Article 71 by inserting a new clause (4) which provided that the President or Vice-President’s election were not to be called for the question based on the existence of vacancies for whatever reasons existing among the electoral college members electing the President. 

In re-Presidential Election (1974)

The question before the Supreme Court of India in the case of In re Presidential Election (1974) was whether, to fill the vacancy that had resulted due to expiry of the term of President’s office, the election must be completed before the expiration of such term or not, taking into account that the Legislative Assembly of the state of Gujarat was dissolved in the present case. While delivering the judgment in the present case, Chief Justice Das had taken reference from the previous case of N.B. Khare v. Election Commission (1957) held that after the amendment of Article 71 of the Constitution, the election was not to be questioned because of vacancies that were created as a result of the dissolution of the Assembly or Assemblies. 

Kehar Singh v. Union of India (1989)

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The issue before the Apex Court of India in the case of Kehar Singh v. Union of India (1989) was whether the President of India can scrutinize evidence or not. In the present case, the petitioner who was convicted for the murder of Mrs. Indira Gandhi presented a petition before the President through his son, who claimed that his father was innocent thereby demanding a personal hearing for him. The President had replied that he could not visit the merits of the case that was already decided by the highest court and therefore rejected the petition under Article 72 of the Indian Constitution. The petitioner’s son had then filed a special leave petition and a writ petition under Article 32 before the Apex Court. The Supreme Court in this present case had observed that it is open to the President of India to scrutinize the evidence on record in a criminal case under Article 72 and therefore come up with a conclusion in the same which would be different from that of the Court. By doing the same, the President would not be modifying, superseding, or amending the judicial record. 

The Court further observed that Article 72 of the Constitution vests constitutional powers on the President which did not fall within the ambit of judicial review on merit, nor could be bound by the guidelines of the Court. Thus a court will not be able to inquire into the President’s action under Article 72 concerning why a mercy petition was rejected by the President. 

Epuru Sudhakar v. Government of A.P. (2006)

The Supreme Court of India laid down the grounds for challenging judicial review of the President or the Governor’s order under Article 72 or Article 161 of the Constitution respectively, in the case of Epuru Sudhakar v. Government of A.P. (2006). In this case, the wife of the convict had made a representation before the Governor for granting pardon to her husband who was implicated in a false case. The Governor had granted remission of the unexpired sentence which made the sons of the deceased convict file a writ petition before the Apex Court on the ground that the remissions were based on irrelevant grounds without taking a note of relevant materials present for consideration. The grounds that were decided by the Court to serve the basis of a challenge have been presented hereunder; 

  1. The order has been delivered without application of mind and reasonable consciousness;
  2. The order is mala fide by nature;
  3. The order has been passed on irrelevant grounds;
  4. While passing the order, the relevant materials were kept out of consideration;
  5. The order is arbitrary in nature. 

State of Rajasthan v. Union of India (1977)

The Supreme Court of India while deciding the case of State of Rajasthan v. Union of India (1977) provided two necessary grounds that could be only invoked while challenging the President’s satisfaction under Article 356 of the Indian Constitution. The grounds are provided hereunder;

  1. If the President’s satisfaction have violated certain constitution provisions;
  2. The President’s satisfaction is mala fide and wholly based on extraneous grounds. 

S.R. Chaudhary v. State of Punjab (2001)

In the case of S.R. Chaudhary v. State of Punjab (2001), the Supreme Court of India observed that without being a Legislature’s member, an individual cannot be appointed in a minister’s post for more than a period of six months during the same Legislative Assembly being in session. This condition will be applicable during the minister’s appointment in the Prime Minister’s office at the Union. 

State of Karnataka v. Union of India (1978)

The Supreme Court of India while deciding the case of State of Karnataka v. Union of India (1978) explained the meaning of the principle of collective responsibility. The Apex Court observed that the principle of collective responsibility has a political origin as it signifies that all the members of the Council of Ministers should be collectively responsible towards the Legislature for any decision that has been taken by them. It is the mechanism using which the Council of Ministers discharges their political responsibilities. The necessity of the principle of collective responsibility can only be felt when the Indian Parliamentary system is functioning. Thus, all the ministers must stand together while deciding on a particular subject matter. 

S.P. Gupta v. President Of India And Ors. (1982)

A bench comprising Justice A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Ali, and V Tulzapurkar of the Supreme Court of India decided on the binding nature of the advice given by the Council of Ministers, in the case of S.P. Gupta v. President Of India And Ors. (1982). The question, in this case, was not as to what was the advice that was provided on the appointment of judges but whether there was a factum of effective consultation between the relevant constitutional authorities who were involved. The top court held that “the life of a Judge does not really call for great acts of self-sacrifice, but it does insist upon small acts of self-denial almost every day”. The Court held that while the counsel provided by the Council of Ministers to the President would be protected from legal scrutiny, the correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected, simply because it was mentioned in the exhortation.

R.C. Cooper v. Union of India (1970)

The issue that came up before the Supreme Court of India in the case of R.C. Cooper v. Union of India (1970) was whether the President’s satisfaction for granting an ordinance be a subject matter of challenge in a court of law or not. Justice Shah who spoke for the majority in this case observed that the clause concerning the satisfaction of the President is to be considered as a composite one as the satisfaction relates to both exercise of circumstances and the need for taking an instant action on the provided circumstances. Such determination by the President of India has not been declared final. The Court went ahead to state that an ordinance is promulgated in the name of the President of the nation and on the reliance his or her satisfaction is a constitutional explanation. 

After the decision made in this case, it was the Constitution (Thirty-eighth Amendment) Act, 1975 that had inserted clause (4) in both Articles 123 and 213 of the Indian Constitution that provided the President’s satisfaction to be final and conclusive by nature and was not to be questioned by any court on any ground. As this clause granted excessive power to the nominal head of the country, the same was omitted by the Constitution (forty-fourth Amendment) Act, 1978

The Union and the State Executive are considered as one of the significant organs of the Indian government. The executive is responsible for executing the laws made by the Indian Parliament thereby ensuring effective implementation of law and order in the Indian State. Therefore, one cannot ignore the role played by the Indian executive in the functioning of the government of democratic India. 

  1. https://nios.ac.in/media/documents/srsec317newE/317EL10.pdf
  2. https://www.toppr.com/guides/general-knowledge/indian-constitution-fundamental-concepts/the-union-executive-and-legislature/
  3. https://www.brainyias.com/union-executive/
  4. https://data-flair.training/blogs/union-executives-of-india/

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