CONSTITUTIONAL LAW-II Unit-l

Paper III:

CONSTITUTIONAL LAW-II

Unit-l

Q.1. Explain the composition, powers, and functions of the Union Legislature (Parliament) under the Indian Constitution.

The Union Legislature of India, commonly referred to as the Parliament, is the supreme legislative body in the country. It is a bicameral legislature consisting of the President of India, the Rajya Sabha (Council of States), and the Lok Sabha (House of the People). The Indian Parliament derives its powers and structure from Articles 79 to 122 in Part V of the Constitution.

1. Composition of the Parliament:

(a) The President of India

The President is an integral part of the Parliament. Though not a member of either House, the President summons, prorogues, and dissolves the Lok Sabha and gives assent to bills passed by both Houses.

(b) Rajya Sabha (Council of States)

Maximum strength: 250 members (as per Article 80).
Currently: Around 245 members.
12 members are nominated by the President for their expertise in literature, science, art, and social service.
The remaining are elected by the legislative assemblies of the States and Union Territories using proportional representation.
It is a permanent House that is not subject to dissolution; one-third of its members retire every two years.

(c) Lok Sabha (House of the People)

Maximum strength: 552 members (Article 81).
Currently: 543 elected members.
530 are elected from states, 13 from Union Territories.
Members are elected directly by the people through general elections.
The term is 5 years, unless dissolved sooner.

2. Powers and Functions of Parliament:

(a) Legislative Powers

Parliament can make laws on subjects in the Union List and Concurrent List (under the Seventh Schedule).
It can also legislate on State List during a national emergency or if Rajya Sabha passes a resolution by 2/3rd majority that it is necessary in national interest.
Money Bills can only be introduced in the Lok Sabha, with the Rajya Sabha having only a recommendatory role.

(b) Financial Powers

The Lok Sabha has superior financial powers.
Annual budget (Union Budget), demands for grants, and Money Bills must be introduced in the Lok Sabha.
Rajya Sabha can only suggest amendments which may or may not be accepted.

(c) Executive Control

The Council of Ministers is collectively responsible to the Lok Sabha.
Parliament exercises control through questions, motions, debates, adjournment motions, and no-confidence motions.

(d) Amendment of the Constitution

Parliament has the power to amend the Constitution under Article 368, with varying levels of difficulty depending on the type of amendment (simple or special majority, and ratification by States).

(e) Electoral Functions

Parliament participates in the election of the President and Vice-President.
Rajya Sabha members are elected by State Legislatures, while Lok Sabha members are directly elected.

(f) Judicial Functions

Parliament has the power to impeach the President under Article 61.
It can also remove judges of the Supreme Court and High Courts through a prescribed procedure.

Conclusion:

The Union Parliament is the central pillar of India’s democratic structure. It plays a crucial role in law-making, controlling the executive, financial approvals, constitutional amendments, and representing the will of the people. Through its bicameral nature, it ensures a balance between regional and national interests.

Q.2. Discuss the structure and legislative powers of the State Legislature. How does it differ in Unicameral and Bicameral States?

The State Legislature in India is the legislative body at the state level and derives its powers from Articles 168 to 212 of the Indian Constitution. Like the Union Parliament, it is responsible for making laws and overseeing the functioning of the executive within the state. The structure of the State Legislature may be Unicameral or Bicameral, depending on the particular state.

1. Structure of State Legislature:

(a) Unicameral Legislature:

A Unicameral State Legislature consists of only one House – the Legislative Assembly (Vidhan Sabha). The majority of Indian states have a unicameral legislature, as it is considered more economical and efficient.

(b) Bicameral Legislature:

A Bicameral Legislature has two Houses:

Legislative Assembly (Vidhan Sabha) – Lower House
Legislative Council (Vidhan Parishad) – Upper House

As of now, only six states have a Bicameral Legislature: Andhra Pradesh, Karnataka, Maharashtra, Telangana, Uttar Pradesh, and Bihar.

2. Composition of State Legislature:

(a) Legislative Assembly (Vidhan Sabha):

The Legislative Assembly is the primary House in all states.
Members (MLAs) are directly elected by the people of the state.
The maximum strength is 500 and the minimum is 60, though smaller states and Union Territories may have fewer members.
The Assembly’s term is 5 years, unless dissolved earlier.

(b) Legislative Council (Vidhan Parishad):

It is a permanent body, like the Rajya Sabha, with 1/3rd members retiring every 2 years.
Its strength cannot exceed one-third of the Legislative Assembly.
Members are elected through a mix of indirect elections and nominations, including graduates, teachers, local bodies, and members nominated by the Governor.

3. Legislative Powers of the State Legislature:

The State Legislature has the power to make laws on subjects mentioned in the State List and the Concurrent List (Seventh Schedule).

(a) State List:

Exclusive power to make laws on items like police, public order, local government, agriculture, etc.

(b) Concurrent List:

Can legislate on matters like criminal law, education, marriage, etc., along with Parliament.
In case of conflict between State and Union law, Union law prevails (Article 254).

(c) Money and Financial Matters:

Money Bills can only be introduced in the Legislative Assembly, with the Legislative Council having limited powers.
The State Legislature passes the State Budget and authorizes expenditure from the Consolidated Fund of the State.

(d) Amendment of Laws:

State Legislatures cannot amend the Constitution but participate in constitutional amendments that require ratification by states.

4. Difference between Unicameral and Bicameral States:

Aspect	Unicameral	Bicameral
Houses	Only Legislative Assembly	Legislative Assembly + Legislative Council
Decision-making	Faster, simpler	Involves more debate, checks, and balance
Representation	Directly elected representatives	Includes teachers, graduates, and nominated members
Expense	Less costly	More expensive to maintain
States having it	Most states	Only a few (e.g., UP, Bihar, Maharashtra)

Conclusion:

The structure and legislative powers of the State Legislature are designed to ensure democratic governance at the state level. While Unicameral Legislatures are more common and cost-effective, Bicameral Legislatures provide broader representation and act as a check on hasty legislation. Both structures aim to ensure responsible law-making and effective governance within the constitutional framework.

Q.3. Examine the legislative relationship between the Union and State Legislatures with the help of the three lists under the Seventh Schedule.

The legislative relationship between the Union and State Legislatures is a fundamental feature of India’s quasi-federal Constitution. The Constitution has distributed legislative powers between the Union and the States through the Seventh Schedule, which contains three lists: the Union List, the State List, and the Concurrent List. This distribution ensures clarity and efficiency in governance and law-making by both levels of government.

1. The Seventh Schedule – Three Lists:

(a) Union List (List I):

It contains subjects of national importance such as defense, foreign affairs, atomic energy, currency, railways, etc.
Only Parliament has the exclusive power to make laws on subjects in this list.
It originally contained 97 subjects (now slightly modified).

(b) State List (List II):

This list contains subjects of local and state importance like police, public health, agriculture, local government, etc.
Normally, only the State Legislature can make laws on these subjects.
It originally had 66 subjects.

(c) Concurrent List (List III):

This list includes subjects of common interest to both the Union and States such as education, marriage and divorce, criminal law, forests, etc.
Both Parliament and State Legislatures can make laws on these subjects.
However, in case of conflict, Union law prevails as per Article 254, unless the State law has received Presidential assent.

2. Exceptions and Special Provisions:

While the three lists demarcate jurisdiction, the Constitution also provides certain exceptions and special powers to the Union Legislature:

(a) Article 249 – National Interest:

Rajya Sabha may pass a resolution by a two-thirds majority that it is necessary for Parliament to make laws on a State subject in the national interest.
The law remains valid for one year, renewable.

(b) Article 250 – During Emergency:

During a national emergency, Parliament can legislate on any subject in the State List.
Such laws remain in force during the emergency and for six months after it ends.

(c) Article 252 – On State Request:

If two or more states pass resolutions requesting Parliament to legislate on a State subject, Parliament can make laws for those states.

(d) Article 253 – For International Agreements:

Parliament can make laws on any subject (including State List) to implement international treaties or agreements.

3. Doctrine of Repugnancy – Article 254:

In case of inconsistency between a State law and a Central law on a subject in the Concurrent List, the Central law prevails. However, if the State law has received the President’s assent, it will prevail in that State alone, unless Parliament enacts a law overriding it later.

4. Judicial Interpretation:

The Supreme Court has played an important role in interpreting the legislative powers and resolving conflicts through doctrines like:

Doctrine of Pith and Substance
Doctrine of Repugnancy
Harmonious Construction

Conclusion:

The legislative relationship between the Union and State Legislatures is based on a well-structured division of powers under the Seventh Schedule. While it provides autonomy to states, it also ensures that the Union can legislate in broader national interest. This balance of powers helps in maintaining cooperative federalism, where both the Union and States work harmoniously to serve the people.

Q.4. What are the privileges and immunities enjoyed by the members of Parliament and State Legislatures under the Constitution? Are they subject to judicial review?

The privileges and immunities enjoyed by the Members of Parliament (MPs) and State Legislatures (MLAs) are essential to ensure the independent and effective functioning of the legislative bodies in India. These privileges are provided to safeguard the dignity, authority, and freedom of the legislature and its members from external interference, especially from the executive and judiciary.

1. Constitutional Provisions:

The privileges of legislators are mentioned in:

Article 105 – for Members of Parliament
Article 194 – for Members of State Legislatures

These articles grant similar privileges to MPs and MLAs respectively.

2. Types of Privileges and Immunities:

(a) Freedom of Speech in the Legislature:

Members enjoy absolute freedom of speech and expression within the House.
No action (civil or criminal) can be taken against them for anything said or any vote given inside the House.
However, this privilege is subject to rules of the House and provisions of the Constitution (e.g., no hate speech or defamatory statements outside the House are protected).

(b) Immunity from Legal Proceedings:

No member shall be liable in court for anything said or any vote given in the House or its committees.
This immunity also extends to the publication of reports and proceedings authorized by the House.

(c) Exemption from Arrest:

Members are exempted from arrest in civil cases during the session of the legislature, 40 days before and after the session.
This immunity does not apply to criminal proceedings, preventive detention, or contempt of court.

(d) Right to Regulate Internal Proceedings:

The House has the exclusive right to regulate its own internal proceedings, including maintaining order and disciplining its members.

(e) Right to Prohibit Publication of Proceedings:

The House can restrict or ban the publication of its proceedings if it feels such publication is injurious to public interest.

(f) Right to Punish for Breach of Privilege:

Each House has the power to punish for breach of its privileges.
This includes the power to reprimand, suspend, or expel members, and even punish outsiders for contempt.

3. Are These Privileges Subject to Judicial Review?

Yes, though the privileges are meant to provide functional autonomy, they are not absolute and are subject to judicial review in certain circumstances.

(a) Supreme Court’s Stance:

In Keshav Singh’s Case (1965), the Supreme Court held that legislative privileges are subject to the Constitution, especially the fundamental rights. If the exercise of privilege violates Article 21 (right to life and personal liberty) or Article 14 (equality before law), the court can intervene.

(b) Judicial Review on Grounds of Mala Fide:

If the legislature misuses its privileges (e.g., expelling a member arbitrarily or punishing someone for personal motives), courts have ruled that judicial review is permissible.

4. Codification of Privileges:

Although the Constitution mentions that these privileges shall be the same as those of the British House of Commons (until defined by Parliament), India has not codified these privileges in detail. This lack of codification sometimes leads to ambiguity and misuse.

Conclusion:

Privileges and immunities granted to MPs and MLAs are vital to uphold the independence and dignity of legislative bodies. However, they are not above the Constitution. With the judiciary acting as the guardian of the Constitution, any misuse of privilege is subject to judicial scrutiny to maintain a balance between legislative independence and constitutional supremacy. There is a growing need to codify these privileges to bring clarity and avoid arbitrary exercise of power.

Q.5. Explain the Anti-Defection Law under the Tenth Schedule of the Indian Constitution. What are its objectives, provisions, and limitations?

The Anti-Defection Law was introduced to combat the growing issue of political defections that had become widespread in Indian politics during the 1960s and 1970s. It was enacted by the 52nd Constitutional Amendment Act, 1985, which added the Tenth Schedule to the Indian Constitution. The law aims to maintain political stability, uphold the ethics of parliamentary democracy, and prevent elected legislators from switching parties for personal or political gains.

1. Objectives of the Anti-Defection Law:

Curb Political Instability caused by frequent floor-crossing and horse-trading.
Ensure loyalty and discipline among legislators towards the political party on whose ticket they were elected.
Strengthen the foundation of democracy by maintaining the mandate of the voters.
Prevent unethical political behavior and preserve the integrity of legislatures.

2. Key Provisions of the Tenth Schedule:

(a) Disqualification Grounds [Paragraphs 2(1) & 2(2)]:

A member of the legislature can be disqualified if:

Voluntary gives up the membership of the party on whose ticket they were elected.
Votes or abstains from voting in the House contrary to the whip issued by the political party without prior permission.

A nominated member is disqualified if they join a political party after six months of nomination.

(b) Independent Members [Paragraph 2(4)]:

An independent member is disqualified if they join any political party after the election.

(c) Exceptions (No Disqualification):

If a member is elected as Speaker or Deputy Speaker (or Chairman/Deputy Chairman in the Rajya Sabha or State Legislative Councils), they may resign from their party without facing disqualification.
Merger Clause [Paragraph 4]: If two-thirds of the members of a party merge with another political party, the members involved in the merger will not be disqualified.

(d) Authority to Decide Disqualification:

The Speaker or Chairman of the House is the authority to decide on questions of disqualification.
Earlier, the decision of the Speaker was final and not subject to judicial review, but the Supreme Court in Kihoto Hollohan v. Zachillhu (1992) held that such decisions are subject to judicial review on grounds of mala fides, bias, or perversity.

3. Limitations and Criticisms:

(a) Bias and Partisanship of the Speaker:

The Speaker, often belonging to a political party, may act in a biased manner, delaying or hastening disqualification.

(b) Delay in Decisions:

There is no fixed timeline for the Speaker to decide on disqualification, leading to indecisiveness and manipulation.

(c) Undermining Dissent and Debate:

By enforcing party whips even on non-confidence matters, the law curbs free speech and dissent, turning legislators into mere followers.

(d) Ambiguity in “Voluntarily Giving Up Membership”:

The phrase is not clearly defined, and can include even acts like making public statements or attending opposition meetings.

4. Recent Recommendations and Reforms:

The Law Commission and other committees have suggested that the power to decide on disqualification should be transferred to an independent tribunal like the Election Commission.
Setting a time limit (e.g., 3 months) for deciding defection cases has been proposed.

Conclusion:

The Anti-Defection Law under the Tenth Schedule is a landmark legal framework aimed at preventing unethical defections and ensuring political stability. However, its effectiveness is limited due to procedural delays, discretionary powers of the Speaker, and constraints on intra-party dissent. For it to serve its purpose more effectively, reforms are needed to make the process impartial, time-bound, and transparent, thereby strengthening the foundations of Indian parliamentary democracy.

Q.6. Discuss the role, powers, and position of the President of India as the constitutional head of the executive. Is he merely a titular head?

The President of India is the constitutional head of the Indian Republic and is described as the nominal executive or titular head, with real executive power vested in the Council of Ministers headed by the Prime Minister. The President’s role is defined primarily by Articles 52 to 78 in Part V of the Indian Constitution.

1. Position of the President:

The President occupies a position similar to that of the British Monarch under the Westminster system. Though all executive actions are carried out in the name of the President (Article 77), they are done on the aid and advice of the Council of Ministers under Article 74(1). This makes the President the symbolic head of the state, representing the unity and integrity of the nation.

2. Election and Tenure:

The President is elected indirectly by an Electoral College comprising elected members of both Houses of Parliament and elected members of State Legislative Assemblies.
The tenure is 5 years, and the President is eligible for re-election any number of times.
The President may resign voluntarily or can be impeached under Article 61 for violation of the Constitution.

3. Powers of the President:

(a) Executive Powers:

All executive actions of the Government of India are taken in the President’s name.
Appoints the Prime Minister, Council of Ministers, Governors of States, Chief Justice and judges of Supreme Court and High Courts, Election Commissioners, Comptroller and Auditor General, etc.
The President is the Supreme Commander of the Armed Forces.

(b) Legislative Powers:

Summons, prorogues, and dissolves the Lok Sabha.
Addresses Parliament at the beginning of the first session after general elections and at the start of each year.
Can nominate 12 members to Rajya Sabha and 2 members to Lok Sabha (from Anglo-Indian community; now abolished by the 104th Amendment).
No bill becomes law without Presidential assent.
Can withhold, assent, or return a non-money bill for reconsideration (Article 111).

(c) Financial Powers:

No Money Bill can be introduced in Parliament without the President’s recommendation.
Appoints the Finance Commission every five years.
Causes the Union Budget to be laid before Parliament.

(d) Judicial Powers:

Has the power to grant pardon, reprieve, respite, or remission of punishment under Article 72.
Can seek the opinion of the Supreme Court on any legal or constitutional matter under Article 143.

(e) Emergency Powers:

Can declare three types of emergencies:
1. National Emergency (Article 352)
2. President’s Rule (Article 356)
3. Financial Emergency (Article 360)
During emergencies, the President’s powers expand significantly, and the Union assumes greater control over states.

4. Is the President Merely a Titular Head?

While the President is often called a ceremonial or constitutional head, this position is not entirely powerless. The President performs several important formal functions and may exercise discretion in certain situations, such as:

Appointing a Prime Minister when no party has a clear majority.
Asking the Council of Ministers to prove majority.
Returning a bill (except Money Bills) once for reconsideration.
Acting as a neutral guardian of the Constitution during constitutional crises.

However, in most regular matters, the President must act on the advice of the Council of Ministers.

Conclusion:

The President of India is indeed a constitutional and ceremonial head, but not a mere figurehead. Though the real powers are exercised by the Prime Minister and the Council of Ministers, the President plays a vital constitutional role in maintaining the rule of law, preserving the sanctity of the Constitution, and upholding the unity and integrity of the nation. In exceptional situations, the President may exercise limited discretionary powers, making the role more than just symbolic.

Q.7. Examine the powers and functions of the Union Council of Ministers. How does the principle of collective responsibility work under Article 75?

The Union Council of Ministers is the real executive authority in India. While the President is the constitutional head of the State, the Union Council of Ministers, headed by the Prime Minister, exercises the actual powers of governance. The structure, powers, and responsibilities of the Council of Ministers are defined in Articles 74 and 75 of the Indian Constitution.

1. Composition of the Council of Ministers:

The Council of Ministers consists of:

Prime Minister (PM): Head of the Council and the chief adviser to the President.
Cabinet Ministers: Senior ministers heading important ministries; form the core policy-making body.
Ministers of State (Independent Charge): Junior ministers in charge of specific ministries.
Ministers of State (Attached): Assist Cabinet Ministers in specific portfolios.
Deputy Ministers: Help Cabinet or State Ministers but are rare today.

2. Appointment and Tenure:

The President appoints the Prime Minister, and the Prime Minister recommends other ministers.
Ministers hold office at the pleasure of the President, which effectively means as long as they enjoy the confidence of the Lok Sabha.

3. Powers and Functions of the Union Council of Ministers:

(a) Executive Functions:

Formulation and implementation of policies for national governance.
Administration of Union Territories through appointed administrators.
Supervision and coordination of activities of various ministries and departments.
Maintenance of law and order, internal security, foreign affairs, defense, and economic policies.

(b) Legislative Functions:

Initiates the majority of bills and legislative proposals in Parliament.
Responsible for explaining and defending government policies on the floor of the House.
The Prime Minister and ministers answer questions and participate in debates.

(c) Financial Functions:

Preparation and presentation of the Union Budget.
Controls public expenditure and manages the Consolidated Fund of India.
Moves Money Bills, which can only be introduced with prior Presidential approval.

(d) Advisory Role:

The Council of Ministers advises the President on all matters of governance (Article 74).
The President is bound by the advice of the Council of Ministers.

4. Principle of Collective Responsibility – Article 75(3):

A cornerstone of parliamentary democracy, Article 75(3) states:

“The Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha).”

Meaning:

The Council functions as a team, and decisions are binding on all ministers, regardless of personal opinions.
If the Lok Sabha passes a no-confidence motion, the entire Council—including the Prime Minister—must resign.

Implications:

Ensures unity of action and accountability.
Promotes discipline, as ministers must support Cabinet decisions publicly.
If one minister makes a mistake or fails, the entire Council is answerable to Parliament.

5. Individual Responsibility:

Though collective responsibility is the general rule, each minister is also individually responsible to the Prime Minister for the functioning of their department.
The Prime Minister can ask any minister to resign if they underperform or act against policy.

Conclusion:

The Union Council of Ministers is the nerve center of executive power in India. It not only governs and implements laws but also plays a dominant role in legislation and financial policy. The doctrine of collective responsibility under Article 75(3) reinforces democratic accountability by ensuring that the executive remains answerable to the elected representatives of the people. Thus, while the President is the ceremonial head, real power and responsibility lie with the Council of Ministers led by the Prime Minister.

Q.8. Analyze the constitutional position, powers, and discretionary functions of the Governor in the Indian federal structure. Can a Governor act independently of the Council of Ministers?

The Governor is the constitutional head of a state in India, appointed by the President under Article 155 of the Indian Constitution. The Governor acts as the link between the Union and the State governments and plays a crucial role in India’s quasi-federal structure. While the post is largely ceremonial, the Governor is vested with important powers and limited discretionary functions.

1. Constitutional Position of the Governor:

Under Article 153, there shall be a Governor for each state.
The Governor is appointed by the President of India for a term of five years, but holds office at the pleasure of the President.
The Governor is not elected, and this has often raised concerns about the federal autonomy of states.

The Governor, like the President at the Centre, is expected to act on the aid and advice of the Council of Ministers under Article 163, except where the Constitution provides otherwise.

2. Powers of the Governor:

(a) Executive Powers:

Appoints the Chief Minister, and other ministers on the advice of the Chief Minister.
Appoints the Advocate General, State Election Commissioners, and members of the State Public Service Commission.
Administers Union Territories when designated so.
Exercises control over state administration in normal and emergency conditions.

(b) Legislative Powers:

Summons, prorogues, and dissolves the State Legislative Assembly.
Addresses the first session after elections and at the beginning of each year.
Gives assent to state bills or withholds or reserves them for the President’s consideration under Article 200.
Can issue ordinances under Article 213 when the legislature is not in session.

(c) Financial Powers:

Ensures that the Annual Financial Statement (State Budget) is laid before the legislature.
No money bill can be introduced without the Governor’s recommendation.

(d) Judicial Powers:

Grants pardons, reprieves, respites, or remissions for offenses under state laws (Article 161).

3. Discretionary Powers of the Governor:

While the Governor usually acts on the advice of the Council of Ministers, there are specific instances where he/she can act independently or at discretion:

Appointing the Chief Minister when no party has a clear majority.
Dismissing a Council of Ministers if they lose majority and refuse to resign.
Recommending President’s Rule under Article 356 if there is a failure of constitutional machinery in the state.
Reserving bills for the President’s consideration under Article 200.
In Sixth Schedule areas (tribal regions), the Governor has discretionary powers regarding administration.

4. Can the Governor Act Independently?

Yes, but only in the limited areas mentioned above. In all other matters, the Governor is bound by the aid and advice of the Council of Ministers as per Article 163. However, the scope of discretionary power is not precisely defined, leading to conflict and controversy.

Judicial View:

In Shamsher Singh v. State of Punjab (1974), the Supreme Court held that the Governor must act on the advice of the Council of Ministers in all matters except where the Constitution specifically allows discretion.

5. Criticism and Concerns:

The Governor is often seen as an agent of the Centre, especially when different political parties are in power at the state and central levels.
Allegations of misuse of discretionary powers—such as in government formation and recommending President’s Rule—have led to repeated constitutional crises.

Conclusion:

The Governor holds a dual role—as a constitutional head of the state and as a representative of the Union. While the role is largely ceremonial, the discretionary powers grant the Governor a crucial role in times of political instability. However, to maintain the federal balance, it is essential that the Governor exercises discretion within constitutional limits and free from political bias. Judicial scrutiny and recommendations by commissions (e.g., Sarkaria Commission, Punchhi Commission) stress the need for neutrality and transparency in the Governor’s role.

Q.9. Compare and contrast the powers and functions of the President and the Governor under the Indian Constitution.

The President of India and the Governor of a State are both constitutional heads of the executive at the Centre and State levels respectively. While their roles are similar in structure and function, they operate at different levels of government and are governed by separate provisions in the Constitution. The President functions under Articles 52–78, while the Governor functions under Articles 153–167.

1. Similarities Between the President and the Governor:**

(a) Constitutional Head:

Both are nominal executives. They function as ceremonial heads while the real powers are exercised by the Council of Ministers headed by the Prime Minister (at Centre) and Chief Minister (in States).

(b) Appointment:

The President is elected indirectly by an Electoral College.
The Governor is appointed by the President and holds office at his pleasure.

(c) Tenure:

Both have a five-year term, though they may continue until a successor is appointed.
Both can resign or be removed (Governor at the pleasure of the President; President through impeachment).

(d) Aid and Advice:

Both act on the aid and advice of their respective Councils of Ministers under Articles 74 (President) and 163 (Governor), except in certain discretionary situations.

(e) Powers:

Both exercise executive, legislative, financial, and judicial powers, although their scope and extent differ.

2. Differences Between the President and the Governor:

Aspect	President of India	Governor of a State
Level	Head of the Union Government	Head of the State Government
Appointment	Elected by Electoral College	Appointed by the President
Impeachment/Removal	Can be impeached under Article 61	Can be removed at any time by the President
Tenure	5 years (fixed term)	5 years (but serves at the pleasure of the President)
Discretionary Powers	Very limited (e.g., emergency decisions)	More frequent use (e.g., choosing Chief Minister, recommending President’s Rule)
Emergency Powers	Can declare National, State, or Financial Emergency	Can recommend President’s Rule under Article 356
Legislative Role	Summons Parliament, can dissolve Lok Sabha	Summons State Legislature, can dissolve State Assembly
Judicial Powers	Pardoning powers under Article 72 (includes court-martial, death sentences)	Pardoning powers under Article 161 (limited to state laws only)
Ordinance Making Power	Article 123	Article 213
Commander-in-Chief	Supreme Commander of the Indian Armed Forces	No such power

3. Functional Role in Practice:

The President is generally bound by the advice of the Council of Ministers, with limited discretion in rare cases like returning a bill for reconsideration or during a hung Parliament.
The Governor, on the other hand, often exercises discretionary powers in real political situations, such as appointing a Chief Minister when no party has a majority, or reserving bills for the President.

4. Judicial Scrutiny:

The decisions of both the President and the Governor can be subject to judicial review if their actions violate constitutional norms or fundamental rights.
For example, in Shamsher Singh v. State of Punjab (1974), the Supreme Court held that both the President and Governor must act as per the aid and advice of their Councils of Ministers in all but a few discretionary matters.

Conclusion:

While the President and Governor hold similar constitutional positions, their roles, powers, and responsibilities vary based on their respective spheres of governance. The President serves as the ceremonial head of the nation, whereas the Governor acts as the link between the Centre and the State, with a slightly broader scope for discretion in state-level politics. Despite differences, both play crucial roles in maintaining the democratic and federal framework of India.

Q.10. Explain the relationship between the President/Governor and their respective Councils of Ministers. How is real executive power exercised in India?

India follows a parliamentary form of government at both the Union and State levels, where the President (at the Centre) and the Governor (in States) are the constitutional heads or nominal executives, while the real executive power is exercised by the Council of Ministers, headed by the Prime Minister or Chief Minister respectively. This structure is designed to uphold responsible government and democratic accountability.

1. Constitutional Framework:

President and Council of Ministers – Articles 74 & 75:

Article 74(1): There shall be a Council of Ministers with the Prime Minister at the head, to aid and advise the President, who shall act in accordance with such advice.
Article 75(3): The Council of Ministers is collectively responsible to the Lok Sabha, the directly elected house of Parliament.
Thus, the President is bound to act on the advice of the Union Cabinet and cannot act independently in most matters.

Governor and Council of Ministers – Articles 163 & 164:

Article 163(1): The Governor shall be aided and advised by the Council of Ministers headed by the Chief Minister, except in matters where the Constitution requires him to act in his discretion.
Article 164(2): The State Council of Ministers is collectively responsible to the Legislative Assembly of the State.

2. Relationship: Nominal vs. Real Executive:

Both the President and the Governor are ceremonial heads and perform functions on the aid and advice of their respective Councils of Ministers. They act as the face of the executive but not the decision-makers.

President:

Appoints the Prime Minister, and on their advice, other Union Ministers.
Gives assent to bills, summons and dissolves Parliament, but all these actions are based on Cabinet advice.
Can return a non-money bill once for reconsideration, but must assent if it is passed again.

Governor:

Appoints the Chief Minister and, on their advice, other ministers.
Exercises executive powers like summoning the Assembly, assenting to bills, issuing ordinances—mostly on advice.
Has limited discretionary powers in exceptional cases, such as recommending President’s Rule or appointing a Chief Minister when no party has a clear majority.

3. Real Executive Power:

The real power lies with the elected Council of Ministers.
The Prime Minister or Chief Minister leads the Cabinet, frames policies, and controls administration.
All executive decisions are taken by ministers and implemented by civil servants.
The President or Governor acts as a rubber stamp in most cases, formalizing these decisions.

4. Judicial Interpretation:

In Shamsher Singh v. State of Punjab (1974), the Supreme Court held that the President and Governors must act on the aid and advice of their respective Councils of Ministers in all matters, except where the Constitution grants specific discretion.

5. Collective Responsibility:

The Council of Ministers is collectively responsible to the lower house (Lok Sabha or State Assembly).
If the Council loses majority support, the entire Cabinet must resign. This ensures that the real executive remains accountable to the people through their elected representatives.

Conclusion:

The relationship between the President/Governor and their Councils of Ministers reflects the principle of responsible and democratic governance. Though the President and Governor are constitutional heads, they do not exercise real executive power, which is vested in the Council of Ministers, functioning under the leadership of the Prime Minister or Chief Minister. This ensures that governance in India is conducted by those directly accountable to the people, preserving the spirit of parliamentary democracy.