The Executive Power: The Constitutional Law.

By Mr. Y.Srinivasa Rao, Principal Senior Civil Judge, Tirupati.

Introduction:— That branch of the government which puts the laws into execution, as distinguished from the legislative and judicial branches. The body that deliberates and enacts laws is legislative; the body that judges and applies the laws in particular cases is judicial; and the body that carries the laws into effect or superintends the enforcement of them, is executive. The executive authority, in all monarchies, is vested in the sovereign.

According to the historic analysis, the essence of the distinction between legislative power and judicial power is that the Legislature makes new law which becomes binding on all persons over whom the Legislature exercises legislative power: the Judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. Though neither for logic nor in language has the boundary between legislation and adjudication ever been rigidly and clearly drawn, the distinction between the two is well established, Indira Nehru Gandhi v. Raj Narain

I. UNION EXECUTIVE

II. STATE EXECUTIVE

I. UNION EXECUTIVE:—

1. The President of India
2. Powers and Functions of the President: a) Executive Powers; b) Legislative Powers; c) Financial Powers; d). Judicial Powers; e) Emergency Powers; f). Veto Power; and g). Ordinance Making Power.
3. Vice – President of India
4. Prime Minister of India
5. Council of Ministers
6. Attorney General of India

The President of India is the first citizen of India. He is the head of the Indian State. His election will be done by members of an electoral college. An electoral college consists of elected members or both the Houses of Parliament & Legislative Assemblies of the States. His term of office is for 5 years. A brief narration of the powers and functions of the President as as follows:—
Executive Powers:— The president of India is the head of the Union. Being of head of the Executive, he appoints the Prime Minister (P.M) and , with his advice of P.M, the other Ministers of the Union Council of Ministers. He appoints the Governors of the States. He also appoints the Chief Justice of India , the Judges of the Supreme Court and the High Courts. He is the Supreme Commander of the Indian Armed Forces and is entitled to declare war or conclude a treaty.

Legislative powers:— The Parliament means the President of India, Lok Sabha and Rajya Sabha. The Rajya Sabha cannot be dissolved but the President can dissolve Lok Sabha. He can summon or prorogue the these two houses of parliament. In such a prorogation, the house should be summoned within six months. President of India addresses both the houses of the parliament, after general Elections.

Financial Powers:— For every five years, the President of India constitutes a Finance Commission. To introduce a money Bill in the Parliament, prior recommendation of the President is mandatory. To meet any unforeseen expenditure, the President can order for making advances out of Contingency fund. The President of India causes Union Budget to be laid before the Parliament.

Judicial Powers:- The President of India appoints the Chief Justice and Judges of Supreme Court and the High Courts. The President can grant pardon, reprieve, respite and remission of punishment. He can even suspend , remit or commute the sentence or any person who was convicted for any offence by the Court.

Veto Power:— In general , the word “Veto” means a prohibition or the right of forbidding. The President can withhold assent to the Bill passed by the legislature. This is known as Absolute veto power. When a Bill is sent to the President for consideration, such Bill can be over ridden by the President with an ordinary majority. It is called as suspensive veto power. Besides these powers, the President of India has pocket veto power which means taking no action on the Bill that was passed by the legislature.

Emergency Powers:- Article 352 deals with national emergency. Arts. 356 to 365 deal with President’s Rule. Breakdown of the constitutional machinery in a State does gives rise to a situation of emergency. Emergency means a situation which is not normal, a situation which calls for urgent remedial action, S.R. Bommai v. Union of India, (1994) 3 SCC 1.  Emergency also means a situation which is not normal, a situation which calls for urgent remedial action, Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1. The expression “emergency” even if understood in its common parlance would mean an exigent situation; a serious, unexpected and potentially dangerous situation requiring immediate action. Such an emergent case must exist for the purpose of passing a protective or preventive order. This may be termed as an “emergency protective order” or an “emergency preventive order”, Ramlila Maidan Incident, In re, (2012) 5 SCC 1.  Mere apprehension of breach of peace, does not constitute case of emergency, Ashok Kumar v. State of Uttarakhand, (2013) 3 SCC (Cri) 177.

The President of India has ordinance making power. Under 123 of the Constitution, he is empowered to promulgate ordinances during the recess of Parliament. Ordinance is the same effect as an act of Parliament but generally it is the nature of temporary law. As per Art. 76 of the Constitution, Attorney General of India shall be appointed by the President of India. He advises the Government on legal matters.

Vice-President of India:— He will be elected by an electoral college consisting of the members of the both Houses of Parliament. Art. 63 of the Constitution of India explain many about “Vice-President of India”. He holds the office for five years. He is the ex-officio Chairman of Rajya Sabha. In case of dispute or doubt relating to the election process of the Vice-President, the Supreme Court of India has the exclusive jurisdiction to decide the same.

Prime Minister:— He is the head of Council of Ministers as he is the Chief of Government. He leads the Executive branch of the Indian Government. He is the Chairman of the Cabinet. The President of India invites the leader of the majority party to form a Government at the federal level. Federal level is known as Union Government of India. He will be appointed by the President of India. He advised the President. He is the ex-officio Chairman of NITI Aayog. Prime Minister’s National Relief Fund and PM’s National Defence Fund are under the control of the Prime Minister. Article 84 of the Constitution of India explains the qualifications of Prime Minister. He must a member of the Lok Sabha or Rajya Sabha. The remuneration of the Prime Minister is set under Article 75 of the Constitution of India.

Council of Ministers:— The Council of Ministers have to aid and advise the President of India, headed by the Prime Minister of India under Article 74 of the Constitution of India. They are collectively responsible to the Lok Sabha. The Council of Ministers perform their functions with assistance of Government officials.

II. STATE EXECUTIVE :—

1. The Governor
2. Powers and functions of the Governor: a) Executive Powers; b) Legislative Powers; c) Financial Powers; d). Judicial Powers; e) Emergency Powers.
3. The Chief Minister

The Governor is the Constitutional head of the State. He holds the office during the pleasure of the President of India as laid down under Article 156 of the Constitution. The appointment of the Governor is deal in Article 155 of the Constitution. See also Arts. 157 to 158 of the Constitution. The Governor holds his office for a term of 5 years. He vested with Executive, Legislative, Financial and Judicial powers. He has no emergency power to counter external aggression or armed rebellion but he may report to the President of India in case of the State Government is being run unconstitutionally and recommend for the President’s Rule under Art. 356 of the Constitution of India.

The Chief Minister shall be appointed by the Governor under Article 164 of the Constitution. The Governor administers Oath of the Chief Minister. If person, who is not a member of Legislative, is appointed as Chief Minister, he has to get himself elected within six months. If he is not elected as a member of legislature within six months, he will be removed. State Legislature determines the salary and allowances of the Chief Minister. The Governor cannot dismiss the Chief Minister as long as he enjoys the majority support in the Legislative Assembly.

Conclusion:— When Art. 258(1) of Constitution of India is giving power to the President to entrust his functions to the Government of a State or its officers in relation to any matters to which the executive power of the Union extends, the intention is to entrust only executive functions and no other. The word “functions” even though it is not qualified by the word “executive” in Art. 258(1) must take its colour from what follows and if that is so the functions to be entrusted must be of the same nature as the executive power of the Union. It is true that the words following the word, “functions” describe the field within which the functions can be entrusted and this field is to be found in accordance with List I ordinarily; but it is legitimate to hold that the words following the word “functions” when they delimit the field in which the functions can be entrusted also indicate the nature of the functions to be entrusted and this to our mind is clear from the use of the words “executive power” in the clause following the word “functions” and it is only executive functions therefore which can be entrusted by the President under Art. 258(1) to the Government of a State or its officers, Jayantilal Amritlal Shodhan v. F.N. Rana, AIR 1964 SC 648: (1964) 5 SCR 294: (1964) 5 Guj LR 481. Power to frame or enact law for the governance of the country by the supreme body exercising the sovereign power is known as legislative power, Kartar Singh v. State of Punjab, 1994 SCC (Cri) 899.