The Executive — President & Governor — Constitutional Law II Notes

The President — Election, Powers and Functions

In 1987, President Zail Singh sat on the “Indian Post Office (Amendment) Bill” and never signed it — a silent “pocket veto” that quietly killed a law Parliament had passed. It was a rare moment when the office showed teeth. For the rest of the time, the President of India signs what the Cabinet puts before him. That contrast — a powerful-looking office that must mostly obey — is the heart of this topic.

A head who acts on advice

Picture the President as the chairman of the board who signs the company’s decisions, while the managing director and his team (the Prime Minister and Council of Ministers) actually run it. That is India’s model: real power lies with the elected ministers; the President is the constitutional head.

Who and why. Article 52 says there shall be a President of India. Article 53 vests the executive power of the Union in the President — but that power is exercised through officers subordinate to him, and, crucially, on the advice of the Council of Ministers. India chose a Head of State who symbolises the nation and keeps the constitutional machinery running, without the danger of one elected person concentrating power.

How he is elected (Articles 54–55). The President is not directly elected by the people. He is chosen by an electoral college of the elected members of both Houses of Parliament and the elected members of the State (and specified Union Territory) Legislative Assemblies. The voting uses the system of proportional representation by a single transferable vote, and votes are weighted so that the States as a whole balance the Centre. He holds office for five years (Article 56) and is eligible for re-election.

Qualifications (Article 58). He must be a citizen of India, at least 35 years old, qualified to be a member of the Lok Sabha, and must not hold any office of profit.

Removal — impeachment (Article 61). The President can be removed only by impeachment for “violation of the Constitution.” The charge may start in either House, must be signed by one-fourth of that House’s members, and needs a two-thirds majority of the total membership of each House. It is a quasi-judicial process — the only ground is violation of the Constitution, and it has never actually been used.

A. The powers of the President

The President’s powers fall into six baskets:

Executive powers. All Union executive action is taken in his name (Article 53, 77). He appoints the Prime Minister, other ministers, the Attorney-General, Governors, judges of the Supreme Court and High Courts, the CAG, and the Chief Election Commissioner.
Legislative powers. He is a part of Parliament (Article 79): he summons and prorogues the Houses, can dissolve the Lok Sabha, addresses Parliament, and gives assent to Bills (Article 111 — he may assent, withhold assent, or return a non-Money Bill for reconsideration).
Ordinance-making power (Article 123). When Parliament is not in session and he is satisfied that circumstances need immediate action, the President may promulgate an ordinance having the same force as an Act. It must be laid before Parliament and ceases to operate six weeks from the reassembly of Parliament unless approved. It is a temporary law-making power for emergencies between sessions — not a way to bypass Parliament (R.C. Cooper, D.C. Wadhwa condemning “re-promulgation”).
Judicial / pardoning power (Article 72). The President may grant pardons, reprieves, respites or remissions of punishment, or suspend/remit/commute any sentence — including in court-martial cases and in all cases where the sentence is one of death.
Financial powers. No Money Bill is introduced without his recommendation; he causes the Union Budget to be laid before Parliament; he constitutes the Finance Commission.
Emergency powers. He proclaims the three emergencies (Articles 352, 356, 360) — studied in Unit V.

B. The key theme — is the President bound by advice?

Yes. Article 74(1) 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.” The 42nd Amendment made the advice binding; the 44th Amendment added that he may ask the ministers to reconsider the advice once, but must then act on the advice tendered after reconsideration. So the President cannot become a dictator — he is a constitutional head who acts on the advice of the elected government, except in a few narrow “real-discretion” situations: choosing a PM when no party has a clear majority; the suspensive veto [returning a non-Money Bill to Parliament for reconsideration under Article 111 — though if the Houses pass it again he must assent]; and the pocket veto [neither assenting nor returning a Bill, but simply keeping it pending indefinitely, since Article 111 sets no time-limit].

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, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice … and the President shall act in accordance with the advice tendered after such reconsideration.”

In Simple Terms: The President must do what the Council of Ministers advises. He can send the advice back once for a re-think, but after that he must accept it. That single rule is why the President cannot rule on his own.

🧩 WORKED EXAMPLE — can the President dissolve a State Assembly?

Facts. The President issues a proclamation dissolving the Legislative Assemblies of certain States and orders re-election. Citizens challenge it, arguing that only the Governor of each State can dissolve that State’s Assembly.

Rule. In normal times, a State Assembly is summoned, prorogued and dissolved by the Governor (Article 174) on the advice of the State Council of Ministers. But once President’s Rule (Article 356) is validly proclaimed in a State, the powers of the State Legislature are exercised by or under the authority of Parliament, and the President is expressly empowered to dissolve or keep in suspended animation that Assembly.

Apply. If the President’s proclamation was made under a valid Article 356 Proclamation (failure of constitutional machinery in those States), his power to dissolve the Assemblies flows from Article 356 itself — the ordinary Article 174 route through the Governor is displaced.

Conclusion. The order is valid if it rests on a validly proclaimed President’s Rule under Article 356; the contention that “only the Governor can dissolve” is wrong once Article 356 is in force. Absent a valid Article 356 Proclamation, dissolution would indeed be the Governor’s function, and the President could not do it directly.

flowchart TD
    ROOT["President of India<br/>(Art 52, 53)"]:::root
    ROOT --> E["Elected by electoral college<br/>(Arts 54-55, STV)"]:::leaf
    ROOT --> P["Powers"]:::leaf
    P --> P1["Executive (Art 53, 77)"]:::leaf
    P --> P2["Legislative + Ordinance (Art 123)"]:::leaf
    P --> P3["Pardon (Art 72)"]:::leaf
    P --> P4["Financial + Emergency"]:::leaf
    ROOT --> A["Bound by advice (Art 74)"]:::leaf
    ROOT --> R["Removal: impeachment (Art 61)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

[C-5] Shamsher Singh v State of Punjab (1974) — the President and Governor are constitutional heads who exercise their powers only on the aid and advice of the Council of Ministers, save in a few well-known exceptional situations.
R.C. Cooper v Union of India (1970) — the President’s satisfaction for an ordinance (Article 123) is that of the Council of Ministers and is not immune from judicial review.
D.C. Wadhwa v State of Bihar (1987) — repeated re-promulgation of ordinances without placing them before the legislature is a “fraud on the Constitution.”
Maru Ram v Union of India (1981) — the pardoning power under Article 72 is exercised on the advice of the government, not the personal whim of the President.

The Governor — Position, Powers and Functions

In 1988, the Governor of Karnataka dismissed the S.R. Bommai government claiming it had lost majority — without letting it prove its strength on the floor of the House. The Supreme Court later called that exactly the wrong way to test a government’s majority. That episode is why every Governor-dismissal problem now has one answer key: the floor of the House decides, not the Governor’s guess.

The President’s counterpart in the State

The Governor is to the State what the President is to the Union: a constitutional head who normally acts on the advice of the State Council of Ministers, but who is also the Centre’s man in the State, appointed by and holding office at the pleasure of the President.

Who and why (Articles 153–156). Every State has a Governor (one person may be Governor of two or more States). He is appointed by the President (Article 155), holds office during the pleasure of the President (Article 156), and serves a term of five years. Because he is appointed by, and removable by, the Centre, the Governor is a key thread in the “strong Centre” design of Unit I.

Qualifications (Article 157). Citizen of India, at least 35 years old.

Powers. The Governor’s powers mirror the President’s, one level down:

Executive (Article 154). The State’s executive power vests in him and is exercised in his name; he appoints the Chief Minister and, on the CM’s advice, the other ministers, the Advocate-General and members of the State Public Service Commission.
Legislative (Articles 174, 200, 213). He summons, prorogues and dissolves the State Legislature, assents to Bills (or reserves a Bill for the President’s consideration under Article 200), and issues ordinances when the Legislature is not in session (Article 213).
Financial. No Money Bill can be introduced in the State Legislature without his recommendation; he lays the State Budget before the House and constitutes the State Finance Commission.
Pardoning power (Article 161). He may grant pardons, reprieves, respites or remissions, and suspend, remit or commute sentences, for offences against laws on matters to which the State’s executive power extends.

A. The discretionary powers — where the Governor acts on his own

Unlike the President, the Governor has some express discretion. Article 163(1) says he acts on the advice of his ministers “except in so far as he is by or under this Constitution required to exercise his functions … in his discretion.” His genuine discretionary functions include:

Appointing a Chief Minister when no party has a clear majority (a “hung” Assembly).
Dismissing a ministry that has clearly lost majority and refuses to resign — but only after the House decides, not on his own guess.
Reserving a Bill for the President’s consideration (Article 200).
Recommending President’s Rule (Article 356) when constitutional machinery has failed.
Special responsibilities under Articles 371–371-J for certain States.

The limit the exam tests. Even the discretion is not a licence for arbitrariness. Whether a government has lost majority is to be tested on the floor of the House by a vote of confidence, not decided in the Governor’s mind (S.R. Bommai, Nabam Rebia, Rameshwar Prasad).

Article 163(1): “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”

In Simple Terms: The Governor normally does what the State ministers advise. The Constitution carves out a few situations — mainly a hung Assembly or a collapse of government — where he may use his own judgment. But even then he cannot simply declare that a government has lost its majority; that must be proved by a vote in the House.

🧩 WORKED EXAMPLE — dismissal without a floor test / a Governor’s pardon

Facts. (a) A Governor dismisses a coalition government without giving it a chance to prove its majority on the floor of the House. (b) A Governor grants a pardon to a person convicted of murder and sentenced to death, and the pardon is challenged under Article 161.

Rule. (a) A government’s majority is tested only by a floor test; the Governor’s subjective satisfaction is not the constitutional method (S.R. Bommai, Nabam Rebia). (b) The Article 161 pardoning power extends to death sentences and is exercised on the aid and advice of the State Council of Ministers, subject to judicial review for arbitrariness or non-application of mind (Maru Ram, Epuru Sudhakar).

Apply. (a) Because the coalition was never allowed a floor test, the dismissal rests on the Governor’s opinion alone — the very defect condemned in Bommai. (b) A Governor can pardon even a death-sentence convict for an offence under a State law, provided he acts on the ministers’ advice and not capriciously; the mere fact that the sentence is death does not oust Article 161.

Conclusion. (a) The dismissal is invalid — a floor test was mandatory. (b) The pardon is valid if granted on ministerial advice and not shown to be arbitrary; it can still be judicially reviewed, but it is not void merely because the crime was murder punishable with death.

flowchart TD
    ROOT["Governor of a State<br/>(Arts 153-162)"]:::root
    ROOT --> AP["Appointed by President;<br/>holds office at his pleasure"]:::leaf
    ROOT --> N["Normal role: acts on CM's advice (Art 163)"]:::leaf
    ROOT --> D["Discretion"]:::leaf
    D --> D1["Appoint CM (hung House)"]:::leaf
    D --> D2["Reserve Bill (Art 200)"]:::leaf
    D --> D3["Recommend Art 356"]:::leaf
    ROOT --> PW["Pardon (Art 161) + Ordinance (Art 213)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

[C-5] Shamsher Singh v State of Punjab (1974) — the Governor is a constitutional head bound by ministerial advice except in his narrow discretionary field.
[C-6] Nabam Rebia v Deputy Speaker (2016) — the Governor’s discretion under Article 163 is limited; he cannot act on his own on matters where the Constitution requires ministerial advice, and majority is tested on the floor of the House.
[C-2] S.R. Bommai v Union of India (1994) — a government’s majority must be tested by a floor test, not the Governor’s subjective satisfaction.
Epuru Sudhakar v Government of A.P. (2006) — the pardoning power (Arts 72/161) is subject to judicial review if exercised arbitrarily, mala fide or without application of mind.

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