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-1President of India: Qualifications; Manner of Election; Term of

office; Powers and Functions; Position of the President under


Constitution; Impeachment.*
In this Lecture, I shall endeavor to provide you with the Constitutional
Perspectives relating to the Exalted Offices of the President and VicePresident of India and also the Governors of States. The Primary object of
this lecture is to spell out the Manner of appointment of these functionaries,
the Qualifications they need to possess, the Disqualifications that would
render them ineligible to hold these high profile offices, their powers and
functions, the immunities they enjoy and the Constitutional mechanisms or
methods employed to remove them from their offices when the situations so
Initially, I have to make some prefatory observations.
Law and Society are intimately connected. A Civilized society cannot
exist, grow and develop without Law. Law can be a catalytic agent to bring
about social transformation. and for establishing a wel-fare state. As you
are, probably, aware, low is a word very commonly used in our environs.
For example, your university Rules dictate or require you to do certain

*Lectures prepared for e-Learning Centre, Visveswaraya Technological

**B.Sc., LL.M., S.J.D. (U.S.A) Formerly, Dean, Faculty of law,
Karntak University, Dharwad.

-2things and forbid you from doing certain other things. Your parents file
Income Tax Returns because law commands so.

A childs birth or a

persons death is required to be registered because that is demanded by law.

Thus, law governs a persons life from the cradle to the grave. But, what is

It is difficult to capture the essence of law in a simple,

understandable language. For our purpose, we may say that law is a set of
formal rules which regulate human conduct and their violation may lead to
imposition of punishment.
Let us now find out what is Constitutional Law? Because, it is this
Document which provides for the offices of the President, Vice-President,
the Governors, etc.
In a country governed by a written Constitution, the law embodied in
the Constitution is accorded supremacy. It is the paramount law. It is the
fundamental law of the Land. In the words of Dr.B.R.Ambedkar;
The Constitution is a fundamental document. It is a document
which defines the position and power of the three organs of the
State the Executive, the Judiciary and the Legislature. In fact,
the purpose of a Constitution is not merely to create the organs
of the state but to limit their authority, because if no limitation
was imposed upon the authority of organs, there will be
complete tyranny and complete oppression.
Shiva Rac, The Framing of Indias Constitution, A study, p.832.

-3Further, a Constitution may also declare the fundamental principles on

which the Government is established or founded.

For example, our

Constitution seeks to secure for our citizens, justice-social, economic and

political; liberty of thought, expression, belief, faith and worship, Equality
of status and of opportunity and also seeks to promote fraternity among
On nationally important days, like, the Republic Day, the
Independence Day or whenever the Newspapers or Television Channels
report about the visits of foreign Sovereigns or Dignitaries to the
Rashtrapathi Bhawan, we get a glimpse of our President. But many of us do
not know how he has got into Rashtrapathi Bhawan, what qualifications he
should possess, what is his Term of office, what are his duties, functions,
immunities and, more importantly, what is his position under the
Constitution. Let us now try to find out.
In our Constitutional scheme, the Union Executive or the Parliament
cannot be conceived of without there being a President. Because, Article 52
mandates that there shall be a President of India Again, Art 79 Provides:
There shall be a Parliament for the union which shall consist of the
President and Rajya Sabha and Lok sabha . Rajya Sabha is the Council of
states, the Uppen House and Lok Sabha is the House of People, the
Lower House.
Qualification: A person contesting in the election to the office of president
must possess the following Qualifications:


He most be an Indian Citizen;


He must have completed the age of Thirty Five Years;


He must have the necessary qualification to be a Member of

Lok Sabha


He must not hold any Office of profit under the Government of

India or under any state Government or any Local or other
Authority under the control of said Governments. (Art 58),

If the person contesting is already a Member of Parliament or State

Legislature, he shall be deemed to have vacated his Seat on the date
on which he assumes the office of the President. (Art 59),

Election: The President holds an Elective office, He is to be elected from

an Electoral College which comprises of the elected members of the Lok
Sabha, Rajya Sabha and Legislative Assemblies of the States (Art 54)
Here, a few important points have to be noted First, the Constitution
has designed an Indirect Election to the office of the President. Secondly,
since reference is only to elected members of Lok Sabha, etc., by necessary
implication, the nominated members cannot participate and vote in the
Presidential Election. Thirdly, Elected Members of Legislative Councils
also cannot participate and vote.
Since the various states in India are unequal, population wise or as
respects the strength in thin respective Legislarve Assemblies, Constitution
has devised an Election Procedure for securing uniformity in the scale of

-5representation of different States as well as parity between the States as a

whole and the Union. (Art 55)
Voting shall be by secret Ballot held in accordance with the System of
Proportional Representation by means of the Single Transferable Vote.

Oath: Before entering upon his office, the President-Elect shall take an
Oath in the name of God or shall solemnly affirm that he would , inter alia,
(among other things), endeavour to Preserve, Protect and Defend the
Constitution and the law (Art 60)

Term of office: The President shall hold office for a term of 5 Years
from the date on which he enters upon his office. Even after the expiration
of this term, the President shall continue to hold office until his successor
enters upon his office.
The President, through a letter written by him, addressed to the vice
President may resign from his office. When this is done, the Vice-President
shall immediately communicate the same to the Speaker of the Lok Sabha
(Art 61).
The President can be removed from his office for the violation of the
Constitution through the Process of Impeachment.
The President may seek reelection. Art 57.

Powers & Functions:The President is the Head of the Union Executive.

The Executive Power of the union is vested in him and he shall exercise the

-6same in accordance with the Constitution either directly or through officers

subordinate to him. Art. 53.
The Constitution Provides for a Council of Ministers to aid and advise
the President in the exercise of his functions. (Art 74).
The President appoints the Prime Minister and the other Ministers are
appointed by him on the advice of the Prime Minister.(Art 75)
Some of the important appointments made in the name of the
President or under his authority are: Chief Justices of the High Courts and
the Chief Justice of India, Judges of High Courts and the supreme Court
(Art. 124); the Attorney-General (Art.76); the Comptroller and Auditor
General of India (Art. 148); the Governors of Stares (Art 155); the
Chairman, Members of U.P.S.C., Chairman, Vice-Chairman, Members of
the National Commissions for Scheduled Castes and Tribes (Arts. 338,
The President is the Supreme Commander of the Defense Forces. Art.

Legislative Powers: When both Houses of Parliament are not in session

and the President is satisfied that the circumstances prevailing warrant
immediate action, he may promulgate such ordinances as are required.
These ordinances have the same force and effect as on Act of Parliament.
Art 123.
The promulgated Ordinances should be laid before Lok Sabha and
Rajya Sabha. They cease to operate on the expiry of six weeks from the

-7reassembly of Parliament.

They are rendered inoperative if before the

expiry of six weeks Resolutions disapproving them are passed by both

If the Ordinances contain provisions which Parliament is incompetent
to enact under the Constitution, then the Ordinance is void.

Legislative Powers; Incidentally, it may be noted that the President is an

integral part of Parliament and the Legislative Processes there of . Unless he
assents, no Bill passed by Parliament can become law. He can Prorogue
the Houses of Parliament and when the situation so warrants may order the
dissolution of Lok Sabha.
The President may address the Houses of Parliament and may send
messages to either House whether with respect to a Bill pending or other
wise and on receipt of the message the House concerned shall soon
thereafter consider the matter contained in the massage. Art 86.
After each General Election to the Lok Sabha, at the first Session and
at the commencement of the first session each year, the President shall
address both Houses assembled together and inform the Parliament of the
causes of its Summons. Art 87.

-8Emergency Powers:
The Constitution contemplates three kinds of Emergencies which the
President may proclaim in different critical situations. Notional Emergency
due to war, external aggression or internal disturbance, Art. 352,
Emergency due to failure of constitutional machinery in States, Art. 356, and
Financial Emergency, when financial Stability of India or any Part there-of
is threatened . (Art 360).

Presidents Pardoning Power:

A pardon is an act of mercy,

forgiveness, clemency. The age of the

accused, his impeccable past, the circumstances surrounding the commission

of the crime, the number of years he has spent in Jail as an under-trial, his
present physical condition are some of the factors which may guide the
Executive Head while considering the request for pardon which when
granted may be conditional or unconditional.
At this Juncture, the learned Seervais observations are apt:
Judges must enforce the laws, whatever they be, and decide according
to the best of their lights; but the laws are not always just and the lights are
not always luminous. Nor, again are Judicial methods always adequate to
secure Justice. The Power of pardon exists to prevent injustice whether from
harsh, unjust laws or from judgments which result in injustice; hence the
necessity of vesting that power in an authority other than the judiciary has
always been recognized.
Seervai, Constitutional law of India, p.2004

-9The 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.
Under Art.72(1), the President has power to grant Pardons, Reprieves
, Respites, Remissions of Punishments or to suspend, remit or commute
sentence of my person convicted

of an offence where punishment or

sentence 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, in where the
sentence is a sentence of death, Art. 72.

Protection of President:

Art 361 declares that the President is not

personally answerable to any court for anything done by him in the

discharge of duties or functions under the Constitution. The rationale being
that the President, underArt.74(1), must act on the advice of his Council of
Ministers. However, any person aggrieved by executive action taken in the
name of the President can institute appropriate proceedings against the
Government of India.
Further, no criminal proceedings shall be instituted or continued
against the President in any court during his term of office. Nor any process
for arrest or imprisonment shall issue against him during his term.
However, the personal liability of the President for any act done by
him in his personal capacity either before or after assuming office remains
and Civil proceedings can be instituted. But, there are certain conditions
precedent. The person initiating the process must serve a written notice and

-10two months must have expired. Further the Notice should mention nature of

Cause of

action therefore, name, description place of

residence of the person instituting the proceedings.

Position of President under the Constitution:

Constitutional Head, Figure Head are some of the expressions
used when the Executive Head of the Union of India is referred to .
We have noticed the Presidents power to appoint important
constitutional functionaries like the Attorney-General, Judges of the








Emergencies, grant Pardons, etc. Do all these, prima facie, suggest that the
President who holds an elective office, though through an indirect election,
is Constitutionally authorized to act independently.? Does this view get
reinforced when we notice expressions like when the president is satisfied
is of the opinion, thinks fit, in the provisions of the Constitution? Dont
we get the impression that the Presidents action is the result of his personal
satisfaction, opinion, etc.? But we have learnt that the Council of Ministers
has to aid and advise the President in the exercise of his functions and the
President, under Art.75, must ultimately act upon such advice, Would this
not establish that the President is just a Figure Head or Constitutional
The Supreme Court has ruled; Al though the Ordinance is
promulgated in the name of the President and in a constitutional sense on his
satisfaction, it is in truth promulgated on the advice of his council of
ministers and on their satisfaction.

-11It is now established that the President is a Constitutional Head and is

obliged to act on the advice of his Council of Ministers.
Normally, the President is Constitutionally obliged to act on the
advice of his Council of Ministers. But in exceptional circumstances, for
example in his choice of prime Minister or when in a multi-party democracy,
no single party or even the coalition has secured a clear majority, or, when
the prime minister appointed by him loses the confidence of the House and
refuses to resign but asks for the dissolution of Lok Sabha, the President has
to, probably, act independently .

Impeachment of the President: Article 61 Provides for the

Impeachment of the President. The President can be impeached for the
violation of the Constitution does not spell out what acts and omissions on
the part of the President would constitute the violation of the Constitution
Under the Constitution, the charge can be preferred by either House.
The proposal to prefer such charge must be contained in a resolution moved
after at least fourteen days written notice , signed by not less the one-fourth
of the total number of members expressing their intention to move such a
resolution. Such a resolution must be passed by a majority of not less than
two-thirds of the total membership of the House. If the charge has been
preferred, say, by Lok sabha, then , Rajya Sabha will investigate or cause the
charge to be investigated.

The President is entitled to appear or be

represented at such an investigation. Consequently , if in the House that has

investigated the charge, a resolution is passed by a majority of not less than

-12two-thirds of the total membership of the House declaring that the charge
preferred is sustained, then the date on which the Resolution is passed is the
date on which the President is removed from his office.
A few pertinent questions do arise when one reads the Impeachment
Article 61 carefully.
It has been pointed out that in the Indirect Presidential Election, the
Members of the Legislative Assemblies of States. do participate and vote.
Do They have no voice in the Impeachment Process?

Only elected Members of Parliament and Legislative Assemblies have

the right to participate and vote in the Presidential Election. How come the
nominated members who had no role in the Presidential Election acquire a
voice during the Presidents Impeachment Process?
Are there any guidelines for the President in office as to when his act
or omission would constitute the violation of the constitution?
In this coalition era, also, in the era of mushrooming political parties,
what are the chances of a party with two-thirds of majority coming to
power? Does this imply that any President in office need not bother about
the Impeachment Article and worry constantly as to what acts or omissions
on his part would fall under the rubric of violation of the constitution?



The Vice-President of India

Art. 63 declares: There shall be a Vice-President of India.
The Vice-President is the ex-officio Chairman of Rajya Sabha. Art 64.
Should any vacancy occur in the office of the President by reason of
death, resignation or removal or otherwise, the Vice-President shall act as
President until a newly elected President assumes office. Art 65(1)
Again, when the President cannot discharge his functions on account
of absence from office, illness, on other causes, the Vice-President shall
discharge his function until the President resumes office. Art 65(2)
While acting as or discharging the functions of the President, the
Vice-President would have all the powers and immunities of the President.

Qualifications; To be eligible for election as Vice-President, a person

should be a Citizen of India, should have completed the age of thirty five
years and must be qualified for election as a member of the Council of
States. Under Article. 102, a person cannot become a Member of Lok Sabha
or Rajya Sabha if he is , inter alia (among other things), of unsound mind
and a competent court has declared so, an undercharged

insolvent, has

voluntarily acquired the citizenship of a foreign state or if he has been

disqualified under any parliamentary legislation.

A person shall not be eligible for election as Vice-President if he

holds any office of profit Under the union or State, Local or other Authority
subject to the control of the said Governments. Art 66 (4)


Manner of Election: The Vice-President is elected by the Members of

an Electoral College which Comprises or the members of Lok Sabha and
Rajya Sabha. The election, where voting would be by secret ballot, would
be in accordance with the system of proportional representations by means
of a single transferable vote Art.66.
If a member of either House of Parliament or of a House of state
legislature gets elected as Vice-President, he shall be deemed to have
vacated his seat in that House on the day he enters upon his office Art.66(2).

Term of office; It is five years from the date of assumption of office.

Art. 67.
Even after the expiration of the term, the vice-President shall continue
in office until his successor assumes office. Art 67(c)
The Vice-President may resign his office by writing to the President.

Removal: In so far as the removal of the Vice-President is concerned, the

elaborate Impeachment Process as under Art.61, is not contemplated. His
removal is through a resolution in the Rajya Sabha passed by a majority of
all the members of Rajya Sabha and agreed to by Lok Sabha.


Resolution, referred to , cannot be moved unless fourteen days notice has

been given of the Intention to move the resolution.
You may note that the Vice-President, like the President, has no
executive powers, no power to make appointment for High offices, to
promulgate Ordnances or declare Emergencies, grant Pardons .


Comments: The Constitution itself specifies the situations in which the

Vice-President can act as President.

While so acting, the Constitution

declares that the Vice- President would enjoy all the powers and Immunities
of the President. It would have been better if the same Electoral College that
elects the President were to be commissioned for the election of the VicePresident also.
It may also be noted that for Impeachment of the President, the cause
or reason is violation of the Constitution. But for the removal of VicePresident, no cause or reason has been mentioned in the Constitution.


-1Governors of States- Part VI of the Indian Constitution

If the provisions in the Constitution bearing upon the powers and

functions of the President of India and the Governor of a State are gone
through, we would invariably notice many similarities. But a careful study
would establish the Governors discretionary actions in pursuance of certain
constitutional provisions would enable him to act without or inspite of the
aid and advice of his Council of Ministers, for example, when the governor
makes a Report to the President that the constitutional machinery in the state
has failed, the Report need not, rather, ought not to be based on the advice
tendered by his Council of Ministers, We may first refer to the Manner of
Appointment of Governors, Qualifications prescribed, Term of his office,
manner of Removal. Later, we will refer to the similarities and


differences, is any, in respect of the powers and functions conferred on the

President and Governor. Finally, we will examine Position of the Governor
under the Constitution.
Art. 153 mandates that there shall be a Governor for each State. The
proviso thenetc declares that the same person may be appointed as Governor
for two or more States.
The Governors appointment is not the result of any electoral process.
There is

no direct or indirect election involved. He is appointed by the

President and holds office during the Presidents pleasure.

During the

pleasure of the President, the maximum period for which the Governor can
remain in office is five years. However, notwithstanding the expiration of

-2his term, a Governor may continue in office until his successor enters upon
his office A Governor may resign by writing to the President. Art.156
For appointment as Governor, a person must be a Citizen of India and
must have completed the age of Thirty-Five years. Art. 157
He Shall not be a member of Parliament or of a House of the legislature. If,
at the time of appointment, he is already an M.P, M.L.A., M.L.C., he shall
be deemed to have vacated his seat on the day on which he enters upon his
office. He shall also not hold any office of profit. Art. 158.
Before assuming office, the Governor-Designate shall subscribe to an
oath similar to the one administered to the President-Designate. Obviously,
the name of the State would be substituted for India since the Governor is
the Executive Head of a State and not the Union. Art. 159
More importantly, what has to be particularly noted is the Governor,
while taking an oath, would declare that he also inter alia (among other
things) would endeavour to preserve, protect and defend the Constitution
and the law. This should not create an impression that the Governor can
also be impeached for the violation of the Constitution. The Governors
removal, as already stated, is dependent upon the loss of Presidents pleasure
and is not the result of a successful impeachment.

Similarities as regards the Powers & Functions of the

Governor and the President:
As the Executive power of the union is vested in the President, the
Executive power of the State is vested in the Governor. This power can be

-3exercised by him either directly or through officers subordinate to him. It

should, however, be exercised in accordance with the Constitution. Art.154
The Executive power of the Governor extends to matters in respect of which
the States Legislature has power to make laws. Art.162.
As the President appoints the Prime Minister, the Governor appoints
the Chief Minister of the State and other Ministers are appointed by the
Governor on the advice of the Chief Minister. Art.164
A Council of Ministers with the Chief Minister as Head has to aid and
advise the Governor in the exencise of his functions. It should be noted here
that in the discharge of his discretionary functions under the constitution, the
Governor is not constitutionally obliged to rely on the aid and advice of his
Council of Ministers. Art.163
Like the President, the Governor has the right to address and send
messages to the House/Houses with respect to Bill/Bills pending there or
otherwise (Art.175), to make a special address at the commencement of the
First Session after every General Election to the Legislative Assembly and
at the commencement of the First session every year (Arts. 175, 176), can
promulgate Ordinance (Art.213) and has the power to Grant Pardons,
Reprives, Respites or Remissions (Art.161) (to be noted is the Governors
power of pardon cannot be exercised in respect of

punishment orders

passed by Court Martials). Immunities available to the President are also

available to the Governors (Art.361).

As the President appoints the

Attorney- General, the Governor Appoints the advocate- General (Art.165),

As the president appoints the chairman and members of the union public

-4service Commission, the Governor appoints the Chairman and Members of

the State Public Service Commission (Art 316). It may be noted that the
references to similarities are illustrative and not exhaustive.

Governors Position under the constitution:

Initially, it has to be emphasised that the Governors exercise of
power and discharge of functions under the Constitution are ordinarily or
normally would be in pursuance of

the advice tendered by his Council of

Ministers. Just because the Governor is entitled to act in his discretion in

certain situations provided for in the Constitution and his discretionary
actions are unassailable or unchallengeable, no conclusion to the effect that
the Governor, (under all circumstances, would not be found) is not bound by
the advice tendered by the council of Ministers or not obliged to adhere to
such advice should be drawn.

The underlying rationale behind the

Constitution of a Council of Ministers is to aid and advise the Governor in

the exercise of his functions. The Governor, like the President is a formal or
constitutional head of the executive and the real executive powers are vested
in the Ministers and virtually it is the Council of Ministers in each state
that carries on the executive Government. Ram Jawaya v.Punjab A.I.R.
1956 S.c. 549. Generally speaking, the Governor (also President) must act
with the aid and advice of the Council of Ministers except where a contrary
provision is made in the constitution. Samsher Singh v.Punjab, AIR 1974
S.C2192,2198. Neither the President nor Governor exercises the executive
function individually or personally. Executive action taken, in the name of
the President or Governor, is the action of the union or the state Id., at 219798. When a constitutional provision requires the satisfaction of the

-5Governor for the exercise of any power or function, it is the satisfaction of

the council of ministers on whose aid and advice the Governor generally
exercises all his powers.
Having said that normally the Governor is obliged to act with the aid
and advice of his Council of Ministers as the President is required to, we
should note that under the Constitution the Governors Position is a bit
different from that of the President
provisions therin.

in the light of some the express

where conferment of specified discretionary powers

would be obvious.
Under the proviso to Art.74, the President may require the , Council
of Ministers to reconsider (the advice tendered), either generally or
otherwise, and the President shall act in accordance with the advice tendered
after such reconsideration. (Emphasis added). Let us contrast the above
proviso with Art.163 which reads; There shall be a Council of Ministers--- to
aid and advise the Governor in the exercise of his functions, except in to far
as he is under the constition required to exercise his functions in his
discretion(Emphasis supplied) Further, the above article provides that if
any question arises as to whether the matter in respect of which


Governor has chosen to exercise his discretion is or is not the one in respect
of which he is constitutionally required to act in his discretion, the
Governors discretionary decision is final and the validity of any thing done
by the Governor shall not be questioned on the ground that the Governor
ought or ought not to have arted in his discretion.

-6Under Article 356, the Governor can report to the President about the
breakdown of constitutional machinery in his state. Such a report can be
made in the exercise of Governors discretion even against the advice of his
council of ministers because the breakdown may be attributable to the
conduct of the council of ministers itself.
Art.163 makes the Governor the sole and final judge as regards the
question whether any function is to be exercised in his discretion or on the
advice of his Council of Ministers Seervai, p.2036.
Again, Art.200 requires the Governor to reserve (for the consideration
of the President) any Bill which, in his opinion, if it became law would so
derogate from the power of the High court as to endanger the position which
the High court is designed to fill under the constitution Another instance
where the Governor may act irrespective of the advice from the Council of
Ministers Seervai , 2036
When a Bill passed by

the state legislature is presented to the

Governor for his assent, he has four options:


to assent,


to withhold assent,


reserve the Bill for the consideration of the President


return the Bill, if it is not a money Bill, along with his message,
for reconsideration of the Bill, or any specified provision therein or for introducing some amendments. But if the Bill is
passed again with or without amendments and presented to the
Governor, he shall not withhold his assent.

-7As Sarkaria Commission on Centre-state Relations has abserved in

its Report, a Governor is a bridge between the union and the state and can
foster better understanding between them and eliminate misapprehensions
which have strained their relationship. As a live link, it is the Governors
duty to keep the union informed of the affairs of the state Administration,
whenever he feels that matters are not going in accordance with the
constitution, or there are developments endangering the security or integrity
of the county. In this fashion, the centres appointee, the Governor, assists
and enables the union to discharge its responsibilities towards the State.

-1Prime Minister-Manner of Appointment

The Council of Ministers

In our Constitutional Scheme, the formulation of the Governmental

Policy and its transmission into law is the primary responsibility of the
Executive. The Union cabinet that enjoys or commands the support of the
majority in Lok Sabha concentrates in itself the virtual control of both
legislative and executive functions. Ram Jawaya v.Punjab, AIR 1955 S.C.
549. The Constitution. of course, declares that the Executive Power of the
union is vested in the President. Art.53(1).

But, while examining the

position of the President, we have learnt that barring a few extra-ordinary

situations, he has to exercise his functions with the aid and advice of his
Council of Ministers. Can there be a Council of Ministers without there
being a Prime Minister? Art.74 provides the answer. It says: There shall
be a Council of Ministers with the Prime Minister at the head to aid and
advise the President, who shall, in the exercise of his functions, act in
accordance with such advice.
How is this Prime Minister appointed and who appoints him ? Let us
refer to Art-75 (Other Provisions as to Ministers)
The President appoints the Prime Minister.

Other Ministers are

appointed by the President on the advice of the Prime Minister.


Ministers hold office during the pleasure of the President. The President
shall administer to these Ministers before they assume charge, the Oaths of
Office and Secrecy.

Importantly, The Council of Ministers shall be

collectively responsible to the House of People. That is, at the State of

-2formulation of a policy or during its adoption, they may express their views,
apprehensions differences, criticisms, But, once the policy is formally
adopted by the Cabinet and when it is to be transformed into law through the
introduction of a Bill in Parliament, they are required to put up a united front
because it is regarded as a Collective decision.

And the Constitution

requires that the Council of Ministers shall be collectively responsible to the

Lok Sabha.
Although the Constitution says that the President appoints the Prime
Minister, it does not say what factors do or should guide him in making such
an appointment, whether the President should choose a Member of Lok
Sabha or Rajya Sabha, whether he can appoint even a non-member as Prime
Taking into account the enormous expenditure incurred at General
Elections, the voters mandate, the need for a Stable Government, the
concern for national interest and the Parliamentary Conventions, the
President would be justified in appointing the Leader of the Political Party
commanding Majority support in Lok Sabha. It is only after the Prime
Minister is appointed, the other Ministers would come into picture.
Because, the other Ministers are appointed by the President on the advice of
the Prime Minister. The implication is, if a Minister appointed by the
President on the advice of the Prime Minister has to be removed or

on account of inefficiency, non-performance, illness, disability

developed, whatever, the Prime Ministers suggestion should be heeded by

the President. It is the Prime Minister that has to run the show in Parliament

-3and outside. The further implication is a Minister can remain in office or

retain his portfolio during the pleasure of the Prime Minister.
Although it would be a strange act on the part of the President to
appoint a person who is not a Member of Lok Sabha as Prime Minister, this
is possible provided the person being invited is a former Prime Minister who
has been defeated or who did not contest in the General Elections and the
Party which is in Majority in Lok Sabha requests the President to appoint
him as the Prime Minister. But such a person when appointed as Prime
Minister must, within six months after his appointment, get elected to Lok
It is the Prime Ministers Prerogative to allocate portfolios. The Senior most
members are assigned Cabinet ranks. These Cabinet Ministers formulate the
Governmental policies, coordinate the activities of different Ministries,
resolve differences between or among Ministers, play the role of
Conciliators or Mediators.

Then, there are Ministers of State, Deputy

Ministers, Parliamentary secretaries (who have no independent charge and

are appointed to assist Ministers). Rathod, P.B,

Indian Constitution,

Government and Political System Japan, A.B.D. Publishers, 2004).

The real Executive Head is not the President but the Council of Ministers.
At Crucial moments during the deliberative processes, that is Debates in
Parliament, it is for the Council of Ministers to think and decide whether
they should swim or sink together.
To advise the President or a Governor, the Council of Ministers should exist.
Consequently, when the Lok Sabha or the Legislative Assembly is

-4dissolved, the dissolution cannot cause the disappearance of the Council of

Ministers because the President or Governor can always ask the Council of
Ministers to continue until its successor assumes office.

The Role of the Prime Minister

The first principle deducible from the Constitutional Provisions is No
Prime Minister- No Council of Ministers. In the formation of the Council of
Ministers, the primary task of the President is the appointment of the Prime
Minister. Once the Prime Minister is appointed, the Presidents subsequent
tasks are mechanical in the sense that he has to appoint the other Ministers
on the advice of the Prime Minister or drop these appointed on his advice.
The Prime Minister is referred to as Primus inter pares, the first
among equals. This is contested on the ground that the usage of the phrase
would be non-sensical as applied to a potentate who appoints and can
dismiss his Colleagues. Rathod, supra, quoting Ramsay Muir.
The Prime Minister is the Live Link between the President and
Parliament and Parliament. He is the one who is constitutionally obliged to
communiCate to the President the decisions of his Council as regards the
administration of the affairs the Union and proposals for legination, to
furnish the same when the president calls for it and to submit at the instance
of the President, to the consideration of the Council of Ministers any matter
on which a Minister has taken decision but which has not been considered
by the Council. Art.78
Here, a Constitutional Issue may arsise. The Issue being, can the
President dismiss the Prime Minister because of the breach of duties

-5imposed upon him under Art.78? The Constitution does not provide an
answer. On the contrary, the Constitutional Conventions command that the
Leader of Majority Party be appointed as Prime Minister. Only when such
Prime Minister loses the Confidence of

the House of People and other

Parties coming together party is can stable to form a Government, can the
President get rid of the Prime Minister who commits a breach of his
constitutionally assigned Duties.

The Prime Minister has been described as the pivot of the whole
system of Government, by Harold Lask, As the Sun around which the
other planets revolve by Jennings, A noon among lesser stars, by William

A devout Democrat who has a firm grasp of the Constitutional

ethos, dictates, who has genuine concern for the upliftment of the downtrodden, who has masses marching along and behind him would be an Ideal
Prime Minister.

-1Chief Minister; Manner of Appointment; Council of Ministers;

Role of the Chief Minister Under the Constitution.

As the President appoints the Prime Minister, the Chief Minister of a

State is appointed by the Executive Head of the State, namely, the Governor.
Art 163
The Governor, by Parliamentary Conventions would have to invite
the Leader of the single largest party in the Legislative Assembly or if a
coalition of Political Parties have contested in the General Election by
subscribing to a Common Minimum Programme and secured the largest
number of seats, then the Leader of such a Coalition to be the Chief
Minister. The primary factor that should guide the Governor in the
appointment of a Chief Minister is whether the person being appointed
enjoys the confidence of the majority in Legislative Assembly and his party
can provide a Stable Government. The Invitee may be the Leader of the
single largest party or Leader of Coalition or a Leader of a pre-poll alliance.
After the Chief Ministers appointment, the other Ministers are
appointed by the Governor on the advice of the Chief Minister. These
Ministers will hold office during the pleasure of the Governor which, in
reality, means during the pleasure of the Chief Minister. Art 164. They are
also administered Oaths of office and Secrecy by the Governor before they
enter upon their offices. Art 164(3).
In the past, the Councils of Ministers, both at the Centre and in the
States, used to be quite large and appeared unwieldy because the person

-2appointed as Prime Minister or Chief Minister had to acknowledge the

interests of various representative groups in the Assembly and accommodate
their leaders by providing berths in the Council of Ministers, Unscrupulous
members of various Political parties would jump over the band wagon of a
Ruling Party to gain a ministerial berth. The Defections indulged in by
MLAS who were in search of Power and Position and encouraged by a party
in power to consolidate its position and perpetuate itself in power cast a
pernicious effect upon the stability of political parties and posed a
formidable threat to established democratic norms and practices. Now, the
Constitution (Ninety-first Amendment) Act,2003 which came into effect
from 01-01-2004 forbids both the Prime Minister at the Centre and the Chief
Ministers of States from having as many Ministers as they please in their
Councils of Ministers, That is, the Prime Minister or the Chief Ministers
have to heed the ceiling imposed under Arts.75(1A)(1B) and 164 (1A)(1B).
Provisions under Art 75 (1A) & Art.164(1A) are worded almost in identical
The total number of Ministers, including the Prime Minister/the Chief
Minister, in the Council of Ministers shall not exceed fifteen percent of
the total number of members of the House of People or the Legislative
There is a proviso to Art 164 (1A) which says that the number of Ministers
including the Chief Minister in a State shall not be less than twelve.
In may be noted that Arts. 75 (1A) (1B) and 164(1A)(1B) seek to
eliminate the menace of defections.

-3The State Council of Ministers is Collectively responsible to the Legislative

Assembly. Art.164(2).
Like Art.78, which requires the Prime Minister to furnish certain
information to the President, Art.167 requires the Chief Minister of

to the Governor, Decisions of the Council of Ministers

relating to the administration of the affairs of the State and proposals for
Legislation, etc. Provisions in Art.78 & Art 167 are identical. The only
difference being the Prime Ministers Duty to Commnicate to the President
under Art 78 and the Chief Ministers Duty to the Governor under Art.167
Most of the points dealt with under Art 78 retain their relevance here