By Sahil Arora, JGLS
Editor’s Note: There exist three pillars of democracy, namely the legislature, the executive and the judiciary. These bodies have well defined functions under the Indian Constitution and cannot overlap into each other’s areas. These three pillars are further divided into Union and States and function according to the powers and roles assigned to them.
The constitution of a country is sacrosanct. It must not be disturbed except according to due process of law and doing so may spell trouble. Almost every constitution has been amended from time to time to up pace with the running time and India is no exception to this.[i] As a matter of fact, the will of the people is supreme. If the subjects wish to change their own constitution handed down to them generation after generation, pray what can stop them from doing so.
The Indian Constitution is the longest written constitution in the world. It contains some unique and distinct features as and when compared to the other constitutions of the world. In its original form, it consisted of 395 Articles and 8 Schedules to which additions have been continuously made through subsequent amendments. At present, it contains 395 Articles and 12 Schedules, and more than 90 amendments. There were various intervening factors that lead to such a long sized constitution, one of them surely being the borrowed provisions form several sources and several other constitutions of the world by its framers.
As the Chairman of the Drafting Committee Dr. BR Ambedkar puts it, the framers had tried to accumulate and accommodate the best features of other constitutions, keeping in view the peculiar problems and needs of our country. Seems cleverness has been in the blood of lazy Indians since generations. The present Constitution is a reproduction of Government of India Act, 1935 in case of matters of administrative detail.
The Former Chief Justice of Karnataka High Court, Cyriac Joseph said that “The Legislature, Executive and Judiciary should work in tandem for the success of democracy.” According to him, the Constitution is above all others and these organs do not have the authority to transgress it or cross the ‘lakshmana rekha’ drawn by it. This division is also termed as ‘separation of powers.’
Who is the ‘Executive’?
In constitutional democracies, executive authority is generally limited in three ways: by separation of powers, among the national government’s executive, legislative, and judicial branches, with the legislature and judiciary able to check the power of the executive branch; by the constitutional guarantees of fundamental rights, and by periodic elections.[ii] In the modern democracies, the executive authority is commonly structured in one of the two ways, either parliamentary or a presidential system.
Talking about both of these systems, the parliamentary system is the one where the majority party in the legislature forms the executive branch of the government, headed by the Prime Minister. The executive and the legislature are not entirely distinct from each other in this system since both the Prime Minister and the members of the cabinet are drawn from the parliament, even though the PM is the national leader.
By contrast, in the Presidential system, the President is elected separately from the members of the legislature. Both the legislature and the President in this system have their own power bases and constituencies, which somehow serves to keep on checking and balancing each other. Both of these systems have their own pros and cons and one cannot supersede others on an allover basis.
The Indian Union and State Executives
The president of India is the Union executive. It has been stated in Article 53 (1) of the Constitution that “the executive power of the Union shall be vested in the President and shall be exercised by him directly or through officers subordinate to him in accordance with the Constitution.” This makes it evident that the President is the head of the Government. The executive power of the Union extends to all the matters upon which the Parliament can make laws and also to exercise those powers that accrue to the government of India from any International treaty or agreement.[iii]
Another important provision is Article 74 (1) which states that “there shall be a council of ministers with the Prime Minister at the head to aid an advice the President in the exercise of his functions.” The President of India is also the supreme commander of defense forces of the Union. Some of the other powers of President are that he/she summons, addresses, prorogues, sends message to Parliament and dissolves the Lok Sabha, promulgates ordinances at any time apart from when both the houses i.e. Rajya Sabha and Lok Sabha are in session, makes recommendations for introducing financial an money bills and gives final assent to bills, grants pardons, reprieves, respites or remissions of punishment or suspends, and remits or commutes sentences in certain cases.
The President of India holds his/her office for a term of 5 years beginning from the date of his joining the office. Any time before that he may resign by addressing the resignation letter to the Vice President of the Country. The president may also be impeached from his office under the provisions of Article 61 on grounds of violation of Constitution.
On the other hand, the state executive is the Governor of the concerned state. Usually, each State has a Governor of its own but it is even possible to appoint a common Governor for two states as per the provisions of Article 153. Governor is appointed by the President of India and commands office as per the pleasure of the President. Though the statutory appointment is for a term of five years, but the tenure could be relinquished earlier by tendering the resignation to the President.
To qualify for the appointment as a Governor of the State, the person must be a citizen of India and must have completed age of thirty five years. Also shall not be a member of either House of Parliament or of the House of the legislature of any State. He shall also not hold any other office of profit. He has to appoint the Chief Minister as well as the council of ministers to aid and advise him in the proper discharge of his functions. He also summons the legislature, addresses it, sends messages, prorogues it and dissolves the legislative assembly and is empowered to grant pardon, reprieve or remit the sentence along with commuting the sentence of an offence covered by the executive powers of the State.
The Executive’s Power of Clemency
The Constitution of India confers this power on the President of India and Governor of States. There have been numerous views regarding the rationale behind the granting of pardons to accused individuals. One of the views, which is the Hegelian view sponsors that the pardons are justified only when they enhance justice.[iv] There may be cases where justice cannot be served without the grant of pardon because of the excessively harsh nature of the sentence given or because of a wrong sentence given to an individual.
The case of Kehar Singh[v] discussed the various grounds on which the power to pardon can be exercised. In view of the fact that judicial error cannot be prevented due to human imperfection, recourse from these inaccurate judgments has been provided in the Constitution in the form of Executives power of pardoning/clemency.
The concept of the power of pardoning is not at all contemporary. This power was exercised by the monarch, who was the sovereign head of the state during the British era to safeguard against the judicial errors. This was indisputably accepted by the Supreme Court as the approach seemed appropriate in the Indian context as well. Basically, the power to pardon includes the power to commute (when the 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.[vi]
Delving into the actual powers of the Executive wing, President finds the power to grant pardon under Article 72, whereas the state executive i.e. the Governor finds power under Article 161 of the Constitution.
President’s power to grant Pardons
Under the ambit of Article 72(1), the President possesses the power to grant pardons, respites, reprieves, remissions of punishment or to suspend, remit or commute sentences of any person who has been convicted of an offence and where punishment is by a court martial, is for an offence against any law relating to a matter to which the executive power of the union extends or in where the sentence is a sentence of death.
The next sub-section of Article 72 has to be read in accordance with sub-section (1) and says that the powers conferred by any law on officers of Armed forces to suspend, remit or commute a sentence passed by a Court Martial will not be affected by the power of the President as in Article 72(1)(a). On the other hand, (3) provides for power of the President to suspend, remit or commute a sentence of death under Article 72(1)(c) would not affect the power of the Governor of a State to suspend, remit or commute a sentence of death under any applicable law in force.[vii]
The landmark judgment of Maru Ram v. Union of India[viii]reviewed the power of pardon under Article 72. The Court while deciding upon the validity of 433A of the Code of Criminal Procedure in this case examined the power of pardon under Article 72.
The Court observed that,
“Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. Political vendetta or party favoritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise….For example, if the Chief Minister of a State releases everyone in the prisons in his State on his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness survive.”
The findings were finally summarized by stating that, “the considerations for the exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.”
Another landmark judgment is that of Kehar Singh v Union of India, which, as already discussed considered the nature of the President’s power under Article 72 when dealing with a petition challenging the President’s rejection of a mercy petition by Indira Gandhi’s assassin, Kehar Singh. The Court observed that while exercising powers under Article 72, “the President does not amend or modify or supersede the judicial record. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him”.
Governor’s power to grant Pardons
The power of Governor to pardon under Article 161 runs parallel to that of the President under Article 72. However, this power of the Governor, dealt with under Article 161 of the Constitution, is narrower in scope than the power of the President to grant pardons. The Constitutional provision also empowers the Governor to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person who has been convicted of an offence against any law that relates to a matter covered by the executive power of the State.[ix]
In the case of Swaran Singh v. State of U.P[x], the Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the State Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. The Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor’s previous rejection of his clemency petition in regard to the same case.
Whereas in the case of K.M Nanavati v. State of Bombay, the reprieve granted by the Governor under Article 161 was held constitutionally invalid since it conflicted with the rules made by the Supreme Court under Article 145.[xi]
After the decision to grant pardon is taken by the Executives, the result is again available for judicial review by the Supreme Court. As in Satpal v State of Haryana[xii], the Court quashed the order of Governor to pardon the person convicted of murder on the ground that the Governor had not been advised properly with all the relevant materials. The Court held that such an order tends to be arbitrary and irrational. The case of Bikas Chatterjee v. Union of India[xiii]restated the principles of judicial review on the pardon power.
Though the trend towards greater judicial scrutiny of the power of pardon is undoubtedly a welcome one, the judiciary must leave the executive with a window of discretion in the exercise of the same. If we do not combine democratic governance with firm governance, we shall have no one except ourselves to blame for lawlessness resulting from the abuse of the provisions relating to pardon by criminals guilty of heinous crime.[xiv]
The Executive Power of Ordinance-making
“The ordinance-making power of the Executive, needs to be suitably restrained to create a balance of power between the executive and the legislature in India and to check the misuse of the same.”[xv]
Another constitutional power given to the State and Union Executives is that of ordinance making. It must be noted that this is not a new feature added in the Indian Constitution. Under the Government of India Act, 1935, this power was given to the Governor General in Articles 42 and 43. Members of the Constituent Assembly, having experience of abuse of such power, were understandably wary of including the same in the Constitution.
Dr. B.R Ambedkar said that it was very important to “…confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law…” when the legislature was not in session.
This makes it quite evident that the Constitution framers envisaged this power only for unforeseen, sudden situations and where the executive required additional legal sanction to address the situation. However, the executive decided to completely neglect the requirement of necessity for immediate action. According to data furnished in the Statistical Handbook of the Ministry of Parliamentary Affairs, more than 41 ordinances were promulgated during the term of the first Lok Sabha itself. Indeed, in the pre-Indira Gandhi period, that is, before 1966, more than 75 ordinances were passed by the Central government. The necessity of taking immediate action by promulgating ordinances has remained debatable at best through the years.
President’s power of Ordinance making
Usually, parliament has the powers to make laws and it alone can pass laws on Union list matters. However, there may be some conditions when the parliament is not in session and it becomes necessary to make laws. In these cases, our constitution under Article 123 gives special legislative powers to President of India by promulgating ordinance under certain circumstances.
Thus if both the houses of parliament are not in session and it becomes necessary to make laws, then the President can make laws within the powers provided by the constitution of India. In the case of Sat Pal & Co. vs. Lt. Governor of Delhi,[xvi] it was ruled that the power to issue an Ordinance by the President is “co-extensive with the Legislative power of the Parliament.”
The important provisions regarding ordinance-making power of the President of India[xvii] are:
- The President gets the powers only when the Parliament is not functioning. Even if one house of Parliament is not functioning, the President can pass on an ordinance.
- The President has powers to pass an ordinance on the matters on which the Parliament has powers.
- The Councils of Ministers should suggest the passing of an ordinance on such matters.
- The President himself should be satisfied about the need for the ordinance and he cannot be compelled.
- Once an ordinance is passed, it should be placed before both the Houses of Parliament and approved by then within six weeks of their respective dates of reassembly.
- The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if the President himself withdraws the ordinance.
Governor’s power of Ordinance making
The State executive i.e. the Governor gets such power from Article 213[xviii]. The lawmaking power in the state is inherently vested in the state assembly. But there may be situations when state assembly is not in session and it is necessary to make laws for the state. In these circumstances, Article 213 of the constitution provides that Governor of the state can promulgate an ordinance. There are some provisions regarding this:
- If at any time, when the legislative assembly of the state is not in session, or where there is a legislative council in the state, when both houses of the legislature are not in session and the Governor satisfies that it is necessary to make the law then he can promulgate ordinances.
- The Governor has powers to pass an ordinance on the matters on which the legislative assembly has powers.
- Once an ordinance is passed, it should be placed before Legislative assembly of the state or where there is a legislative council, before both the houses and approved by then within six weeks of their respective dates of reassembly.
- The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if the Governor himself withdraws the ordinance.
But there are certain circumstances when the Governor shall not promulgate any ordinance without the instructions of the President.[xix] This includes instances when the bill contains the same provisions which require the previous sanction of the president, the Governor would have deemed it necessary to reserve the bill for the previous consideration of the president or if an act contains same provisions which has been reserved for the consideration of the president.
The Executive Power of Dissolution of Legislature
The Constitution gives the power to the President of India to dissolve the house of people under Article 85. The upper house i.e. Rajya Sabha can never be dissolved. The provision is a British one where the king is bound by the advice of the Prime Minister on the dissolution of House of Commons. Article 85 does not require the aid and advice of Prime Minister to dissolve the house but nevertheless has to be read along with Article 74. In four occasions, the advice of Prime Minister is not required for dissolution of the house.
First being when the Prime Minister loses his majority in the house, when he is unable to prove his majority, when a no-confidence vote is passed against him and lastly when he is not facing the Parliament, but Parliament has the proof that the ruling party has no majority in the house. Dr. Ambedkar in the constitutional assembly debate said that. “the President of India shall test the feelings of the house whether the house agrees that there should be dissolution or whether house agrees that, affairs should be carried on with some other leader without dissolution.”
So, the President before going to dissolution should find out any alternate ministry if possible.
Furthermore, the ministers hold office during the pleasure of the President as provided in Article 75(2) which makes it clear that the President can dismiss a Minister at his will. In Dinesh Chandra v. Choudhari Charan Singh[xx], the Court held that to argue pleasure could be interpreted in Article 75(2) to mean the President can dismiss any Minister at any time at his will. Subsequently, in the case of SP Anand v. HD Devegowda[xxi], it was held that since Ministers also include Prime Minister, the President can dismiss Prime Minister also at his will.
The Governor has the power to dissolve the Legislative Assembly under Article 174 of the Constitution. However, this provision is neither explicit not any convention has been developed in this regard. Clause (2)(b)[xxii] merely says that the Governor from time to time dissolve the Legislative Assembly and no circumstances have been provided in this regard. Generally, the Assemble is not dissolved till the expiry of the subscribed period of 5 years, nonetheless, in exceptional circumstances; it can be dissolved by the Governor before the expiry of the normal period.
M.V. Pylee in this regard opined that “it is not a normal practice to dissolve a Legislature before it has completed its prescribed period of life. Dissolution at an earlier date with a view to appealing to the electorates and seeking to solve a situation of political instability is an accepted principle of Parliamentary System of Government.” The circumstances when the Governor can dissolve the Legislative Assembly are:
i) Chief Minister enjoys the majority support and advises the Governor to dissolve the Legislative Assembly.
ii) Due to the defection of the members of the ruling party or by another reason, the ruling party comes in minority.
iii) Other party or coalition of parties is not in a position to form the government.
iv) On the basis of the report sent by the Governor that the constitutional machinery of the State has been failed, the President may dissolve the Legislative Assembly on the recommendations of the Union Cabinet.[xxiii]
Formatted on February 20th, 2019.
[ii] “Three Pillars of Government”
[iv] M. Strasser, the Limits of Clemency Power on Pardons, Retributivists, and the United States Constitution, 41 BRANDEIS L. JL. 85 (2002).
[v]Kehar Singh v. Union of India, (1984) 4 SCC 693.
[vi]“Pardoning Power under the Indian Constitution”
[vii] Article 72(3), Constitution of India, 1950
[viii]Maru Ram v. Union of India 1981(1) SCC 107
[ix] Article 161, Constitution of India, 1950
[x]Swaran Singh v. State of U.P AIR 1998 SC 2026
[xi]K.M Nanavati v. State of Bombay (1961) 1 SCR, p. 541.
[xii]Satpal v State of Haryana 2000 (5) SCC 170
[xiii]Bikas Chatterjee v. Union of India 2004 (7) SCC 634 at 637
[xiv]“Pardoning Power under the Indian Constitution”
[xv] Anirudh Barman “Ordinance Route”
[xvi]Sat Pal & Co. vs. Lt. Governor of Delhi 1979 AIR 1550
[xvii] Article 123, Constitution of India, 1950
[xviii] Article 213, Constitution of India, 1950
[xix]“Ordinance Making Powers of President and Governor”
[xx]Dinesh Chandra v. Choudhari Charan Singh AIR 1980 Del 114
[xxii] Article 174, Constitution of India, 1950
[xxiii]“Discretionary Powers of the Governor in India”