CHAPTER III ROLE OF EXECUTIVE IN INDIA UNDER CONSTITUTIONAL PERSPECTIVE

Transcription

1 87 CHAPTER III ROLE OF EXECUTIVE IN INDIA UNDER CONSTITUTIONAL PERSPECTIVE Executive power of the Union. (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Without prejudice to the generality of the foregoing provisions the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. (3) Nothing in this article shall (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or (b) prevent Parliament from conferring by law functions on authorities other than the President. 3.1 Powers of the President 1 : The executive power of the Union is vested in the President which he may exercise either directly or through officers subordinate to him, in accordance with the Constitution. The expression executive power is nowhere defined in the Constitution. Article 73 merely defines the matters with respect to which the executive authority of the Union extends. Executive authority can be said to be the authority to carry out the executive function of the government. But then, what does the executive function of 1. V.N. Shukla's Constitution of India, 2010, p. 363

2 88 the government mean? It is not possible to frame an exhaustive definition of executive function. Ordinarily, it connotes the residue of the governmental functions that remain after legislative and judicial functions are taken away. Broadly speaking, executive function comprises both determination of policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy; in fact, the carrying on or supervision of the general administration of the State. 2 Broadly speaking the executive function comprises the whole corpus of authority to govern, other than that which is involved in the legislative functions of Parliament and the judicial functions of the courts. 3 Ordinarily, it is one of the functions of the executive to execute the laws. However, it is not always necessary that there should be in existence a prior legislation in order to exercise the executive power such as entering into any trade or business or making of a treaty not affecting the rights of an individual. In the exercise of its executive power, the government may do any act provided it is not an act assigned by the Constitution to any authority or body or it is not contrary to the provisions of any law or it does not encroach upon or otherwise infringe the legal rights of an individual. But under the Constitution, specific legislation may be necessary to incur expenditure on public 2. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC Wade and Bradley, Constitution and Administrative Law, p. 49 (10th Edn., 1985).

3 89 funds or to affect the private rights of a citizen. 4 No legislative action is necessary for acquiring a foreign territory ceded to India. 5 In recent times, the scope of executive function has become extremely wide. It now involves the provision and administration or regulation of a vast system of social services like public health, housing, assistance for the sick and unemployed, welfare of industrial workers, education, transport and so on, as well as the provision of defence, order and justice and finance required therefore, which were the original tasks of organised government. With the rise in the executive functions, the methods of the government have also changed which has necessitated the conferring of powers other than those of purely executive or administrative nature. The executive now exercises the powers of subordinate legislation and of administrative justice. Shah, J. in Jayantilal Amritlal Shodhan v. F.N. Rana 6 said: It cannot, however, be assumed that the legislative functions are exclusively performed by the legislature, executive functions by the executive and judicial functions, by the judiciary alone. The Constitution has not made absolute or rigid divisions of function between the three agencies of the State. To the executive, exercise of functions legislative or judicial are often entrusted. For instance, power to frame rules, 4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC Berubari Union, Re, AIR 1960 SC 845: (1960) 3 SCR AIR 1964 SC 648, 655: (1964) 5 SCR 294.

4 90 regulations and notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly, judicial authority is also entrusted by legislation to the executive authority. In view of the express declaration that the executive power vested in the President is exercisable through officers subordinate to him, which will also include a minister, 7 it will not be possible to say that the President should exercise the power personally which would indeed be physically impossible as well as undesirable. By express injunction in Article 53, the executive power vested in the President is directed to be exercised in accordance with the Constitution. That power is intended to be exercised in aid of and not to destroy constitutional institutions. Thus an order merely derecognising a ruler without providing for continuation of the institution of rulership which was an integral part of the constitutional scheme was held to be illegal. 8 Clause (2) vests the supreme command of the defence forces in the President. There are two important limitation in clause (2) which shall be noted. Firstly, this function of the President is exercisable without prejudice to the generality of the foregoing provision [i.e., Article 53(1)]. This means that the military power of the President is subject to the general executive power of the President vested in him by clause (1) and which is exercisable in 7. Emperor v. Shivnath, AIR 1945 PC Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85: AIR 1971 SC 530.

5 91 accordance with the Constitution. Military power is thus subordinated to civil power. Secondly, the exercise of the supreme command can be regulated by law. Law here obviously means Acts of Parliament. Clause (1), it will be seen, power to exercised in accordance with the Constitution, whereas clause (2) subjects it to laws made by Parliament. Thus, war power vested in Parliament would enable it to give directions to the President as to the exercise of the power of command of the defence forces and the power to carry on a military campaign. Clause (3) makes it clear that from the fact that the executive power of the Union shall be vested in the President, it shall not be inferred that the functions conferred by any existing law on the government of any State or other authorities have to be transferred to the President. Likewise, sub-clause (b) of clause (3) means, that though executive power is vested in the President, It will not prevent Parliament from conferring functions on authorities other than the President. But powers which are expressly conferred on the President by the Constitution cannot be transferred by Parliament to any other authority. 3.2 Functions of the President under Article 53 : Apart from Article 53 of the Constitution, which vests in the President all executive authority, including the supreme command of the defence forces, there are several other provisions in the Constitution which mention specific functions of the President. The Constitution vests in the President the power to grant pardon and remit

6 92 punishments. 9 The executive actions of the Central Government are expressed to be taken in the name of the President. 10 All important appointments will be made by him, including those of the Prime Minister and other Central ministers, 11 Governors, 12 judges of the Supreme Court 13 and the High Courts, 14 Chairman and members of the Union Public Service Commission, 15 the Attorney-General, 16 the Chief Election Commissioner and other election commissioners, 17 and the Comptroller and Auditor-General of India. 18 He also appoints the Finance Commission, 19 National Commission for the Scheduled Castes and Scheduled Tribes 20 and other commissions which would report on the administration of the scheduled areas 21 and investigate the conditions of socially and educationally backward classes 22 and on official language. 23 Wide powers are given to the President in an Emergency 24 including the power to suspend the enforcement of fundamental rights. 25 The legislative power extends to the issuing of ordinances 9. Art Art Art Art Art. 124(2). 14. Art Art Art. 76(1). 17. Art. 324(2). 18. Art Art Art Art. 339(1). 22. Art Art. 344(1). 24. Art. 352 to Art. 359.

7 93 during the recess of Parliament. 26 He can make regulations for the peace, progress and good government of the Union Territories. 27 Every Bill to become law requires his assent. 28 He can refuse his assent to a Bill or send it back for reconsideration. 29 He can dissolve the House of the People, 30 convene joint sessions of both Houses, and address or send messages to either or both of them. 31 No money can be granted unless recommended by the President 32 nor can money Bills be introduced except on his recommendation. 33 Bills passed by the State Legislatures may be reserved for his consideration, and a Bill affecting the powers of the High Courts must always be reserved. 34 State laws relating to certain matters are not to be effective unless assented to by the President. 35 His previous sanction to the introduction of a Bill imposing restrictions on trade and commerce in the State Legislatures is necessary. 36 His assent is also required to the amendments of the Constitution Constitutional position of the President : The legal powers of the President are thus vast. Yet he is intended to stand in relation to the Union administration substantially in the same position as does the King under the English Constitution. He is the nominal or 26. Art Art Art Ibid. 30. Art. 85(2). 31. Art. 86 and Art Art Art Art. 286(3), 288(2). 36. Art. 304, proviso. 37. Art. 368(2).

8 94 constitutional head of the government. His position is not like that of the President of the United States of America who is the real executive head and exercises the powers vested in him under the Constitution on his own initiative and responsibility. In the context of the legislativeexecutive relations established by the provisions of the Constitution, the presidential form of government as prevailing in America is ruled out and it is a parliamentary type of government that is provided by the Constitution of India. In estimating the constitutional position of the President of India the provisions of Articles 53, 74 and 75 may particularly be referred to. Article 53 vests the executive power of the Union in the President, but he is required to exercise his powers in accordance with the Constitution. Article 74 of the Constitution says that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions and he has to act in accordance with such advice. Article 75(3) lays down that the Council of Ministers shall be collectively responsible to the House of the People. There is no provision in the Constitution which mattes the President answerable to the legislature. It will be meaningless to say that the ministers are answerable for the policy and administration of the Union to the House of the People, unless they are recognised to possess the authority to finally decide the affairs relating to the government. The real directing force is, it follows, the Cabinet and not the President.

9 95 The framers of the Constitution had no doubt as to the form of the government they were setting up. They had clearly proposed a parliamentary form of government. Under the parliamentary form of government as embodied in our Constitution, the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. So also is the constitutional position of the Governor in the States. The Supreme Court has consistently taken the view thatthe powers of the President and the powers of the Governor are similar to the powers of the Crown under the British parliamentary system. In Ram Jawaya Kapur v. State of Punjab, 38 Mukherjea, C.J., speaking for the Court, stated that though the executive power is vested in the President, the President is only a formal or constitutional head of the executive. The real power is vested in the Council of Ministers on whose aid and advice the President acts in the exercise of his functions. The executive has the primary responsibility for the formulation of governmental policy and its transmission into law. But it is responsible for all its actions to the legislature and, therefore, it must retain the confidence of the legislature. The basis of this responsibility is embodied in Article 75(3). In U.N.R. Rao v. Indira Gandhi, 39 it was emphasized that our Constitution is modelled on the British parliamentary system. Under this system, the Council of Ministers enjoying a majority in the legislature 38. AIR 1955 SC 549: (1955) 2 SCR (1971)2 SCC 63: AIR 1971 SC 1002: 1971 Supp SCR 46.

10 96 concentrates in itself the virtual control of both executive and legislative functions. Article 74(1) which provides for a Council of Ministers to aid and advise the President in the exercise of his functions is mandatory. The harmonious reading of the mandatory character of Article 74(1) along with Articles 75(2) and 75(3) is that the President cannot exercise executive powers without the aid and advice of the Council of Ministers even after the President has dissolved the legislature. In Samsher Singh v. State of Punjab, 40 the Court was faced with the question whether a member of the subordinate judiciary can be dismissed by the Governor whose position is similar to that of the President personally or in accordance with the rules for the conduct of government business made with the aid and advice of the Council of Ministers. It held that appointment and dismissal or removal of persons belonging to the subordinate judicial service is not a personal function but is an executive function of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. The Court pointed out that the President as well as the Governors are the constitutional or formal head, and whenever the constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the 40. (1974)2 SCC 831: AIR 1974 SC 2192.

11 97 satisfaction of the President or Governor in the constitutional sense in the cabinet system of government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. In this context the decision in Sardari Lal v. Union of India, 41 that the President has to be satisfied personally in the exercise of executive power or function under Article 311(2) proviso (c) was rejected as it was against the established and uniform view of the Supreme Court. The Forty-second Amendment by amending Article 74(1) made explicit what was implied earlier, that is, the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. In Jayantilal Amritlal Shodhan v. F.N. Rana, 42 it has been held by the Supreme Court that Article 258(1) empowers the President to entrust to the State the functions which are vested in the Union, and which are exercisable by the President on behalf of the Union. But it goes on to say that Article 258 does not authorise the President to entrust such power as are expressly vested in him by the Constitution, such as those under Articles 356 and 309 and which do not fall within the ambit of Article 258(1). Thus a distinction was sought to be made between executive functions of the Union and the executive functions of the President. However, in Samsher Singh v. State of Punjab, 43 the Court clarified that such a distinction 41. (1971)1 SCC 411: AIR 1971 SC AIR 1964 SC 648: (1964)5 SCR (1974)2 SCC 831: AIR 1974 SC 2192.

12 98 does not lead to any conclusion that the President is not the constitutional head of government. Under Article 74(1) the President and under Article 163(1) the Governor act on the aid and advice of the Council of Ministers in the exercise of their functions. Therefore, whether the functions exercised by the President are the functions of the Union or the functions of the President, they have equally to be exercised on the aid and advice of the Council of Ministers, and the same is true of the functions of the Governor except those which he has to exercise in his discretion. 44 When the Constitution conclusively contemplates a constitutional President, it is not permissible to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must be to the President as the constitutional head, as envisaged in the Constitution, acting with the aid and advice of the Council of Ministers. The question of appointment or dismissal falls within the ambit of a purely executive function of the President or the Governor, as the case may be. Such a function being ultimately an executive function, the fact that the final order is preceded or accompanied by a quasi-judicial inquiry held by the minister does not affect the character of 44. Even the functions which the Governor exercises in his discretion are exercised by him not in his personal discretion. For such acts of his he is answerable to the President who in turn acts on the aid and advice of his Council of Minister. For further details see comments under Art. 163 below.

13 99 the exercise of that function by the President or the Governor. 45 In Samsher Singh, Krishna Iyer, J., in his separate concurring opinion speaking for himself and Bhagwati, J., stated that the President and the Governor, custodians of all executive and other powers under various articles of the Constitution, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers save in a few well-known exceptions. These exceptions relate to: (a) the choice of Prime Minister restricted by the consideration that the Prime Minister should command a majority in the House, (b) the dismissal of a government which has lost the majority in the House but refuses to quit office, (c) the dissolution of the House where an appeal to the country has become necessary, though the better course may be to act in this regard on the advice of the Prime Minister or Chief Minister. The motivation for taking such an action must be compelled by the peril to democracy, and the appeal to the House or to the country must become blatantly obligatory. Ray, C.J. is silent on this aspect but Krishna Iyer, J. s observations are not only in harmony with the main formulation of Ray, C.J., but also further elucidate that the constitutional position of the President (Governor) in the exercise of his discretion is based on British practice. The Constitutional history and practice since the commencement of the Constitution has also established that except in the matter of appointment of a new Prime 45. Union of India v. Sripati Ranjan Biswas, (1975)4 SCC 699: AIR 1975 SC 1755.

14 100 Minister in critical situations such as in the appointment of Charan Singh after Morarji Desai s resignation in 1979 or of Chandra Shekhar after the resignation of V.P. Singh in 1990 or of H.D. Deve Gowda after the resignation of A.B. Vajpayee in 1996 and of I.K. Gujral after the resignation of H.D. Deve Gowda in 1997, when in fact there was only a caretaker Council of Ministers to aid and advise, the President has always acted on the aid and advice of his Council of Ministers. The President may have exercised his discretion in the appointment of the new Prime Minister after the elections when no party emerged in majority and the choice of the leader of the House was not clear such as happened in 1996 and again in 1998 in inviting A.B. Vajpayee to form the Government. But in this and similar other situation, the President has consistently followed the convention of inviting the leader of the largest party in the Lok Sabha. 46 Power of President to grant pardons, and to suspend, remit or commute sentences in certain cases. (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a 46. Also see the comments on Arts. 74 and 75 below.

15 101 matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor 47 [* * *] of a State under any law for the time being in force. This article defines the power of the President to grant pardons, reprieves, etc. for offences in certain cases. Article 161 deals with the power of the Governor to grant pardons, reprieves, etc. A pardon is an act of grace. It cannot be demanded as a matter of right. A pardon not only removes the punishment but, in contemplation of law, places the offender in the same position as if he had never committed the offence. The effect of a pardon is set out in the following words by Field, J.: A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the 47. The words or Rajpramukh omitted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and Schedule.

16 102 penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 48 A pardon may be absolute or conditional. A pardon is conditional where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event happens. The same is the effect of a pardon in English law. The effect of a pardon under the Great Seal is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction. 49 The pardoning power may be exercised at any time after the commission of an offence, either before legal proceedings are taken or during their pendency or either before or after conviction. 50 Pardon may in general be granted either before or after conviction, but no pardon is pleadable in bar of an impeachment by the Commons. 51 The power to grant pardons is purely an executive function. In Balmukund v. King-Emperor, 52 the Judicial Committee said: 48. Garland, Ex p., (1873)18 L Ed 366. Also see the detailed explanations and rationale of this power in Epuru Sudhakar v. Govt. of A.P., (2006)8 SCC 161: AIR 2006 SC 3385, Halsbury's Laws of England (Hailsham, 2nd Edn.), p Channugadu, Re, AIR 1954 Mad 911, Halsbury s Laws of England (Hailsham, 2nd Edn.), p AIR 1915 PC 29: ( )42 IA 133.

17 103 The tendering of advice to His Majesty as to the exercise of his prerogative of pardon is a matter for the Executive Government, and is outside their Lordships province. From the fact that the granting of pardons is an executive act and not a judicial act, it follows that the exercise of this power would not in any way alter the judgment of the court qua judgment, and that the exercise of such right would not in any way interfere with the course of justice and that the courts are free to adjudicate upon the guilt or otherwise of the person concerned. 53 It carries with it the lesser powers, for the President can also grant the following (i) reprieves, i.e., a temporary suspension of the punishment fixed by law; (ii) respites, i.e., postponement to the future the execution of a sentence; (iii) commutation, i.e., changing a punishment to one of a different sort than that originally proposed; and (iv) remission, i.e., reduce the amount of punishment without changing the character of punishment. The reason why the executive is given power to grant pardons and reprieves, etc. is explained by Taft, C.J. in an American case 54 as follows: Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not 53. Channugadu, Re, AIR 1954 Mad 911, Grossman, Exp., 267 US 87: 69 L Ed 527.

18 104 necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. Section 7(b) of the Representation of the People Act, 1951 disqualified a person sentenced to imprisonment for not less than two years from being a candidate at an election. The appellant in Sarat Chandra Rabha v. Khagendranath Nath, 55 was sentenced to three years imprisonment but the Assam Government remitted the punishment to that already undergone which came to about 16 months. The question for determination was: Is the appellant disqualified from being a candidate at the election? The Supreme Court pointed out that the legal effect of the judicial reduction of a sentence and the executive remission of that sentence are quite different in their nature. Had the Court in exercise of its appellate or 55. AIR 1961 SC 334: (1961)2 SCR 133.

19 105 revisional jurisdiction reduced the sentence passed by the trial court so as to be less than two years, the appellant would not have been disqualified to be a candidate under the Act. In K.M. Nanavati v. State of Bombay, 56 it was held that the power to suspend a sentence by the Governor under Article 161 is subject to the rules made by the Supreme Court with respect to cases which are pending before it in appeal. In that case, the Governor had in exercise of the power under Article 161, suspended the sentence passed against Nanavati pending the disposal of the appeal in the Supreme Court. The order of the Governor was held constitutionally invalid since it conflicted with the rules of the Supreme Court made under Article 145 in regard to criminal appeals. The President can grant pardons and reprieves only in the following cases (i) offences against Union laws; (ii) in all cases where the punishment or sentence is by a Court Martial; and (iii) in all cases of sentence of death.. The scope of the power of the President under Article 72, particularly to commute a death sentence into a lesser sentence has been left open by the Court after observing that whether a case is appropriate for the exercise of power conferred by Article 72 depends upon the facts and circumstances of each particular case. The Court also observed that this power can be exercised only to reduce 56. AIR 1961 SC 112: (1961) 1 SCR497.

20 106 and not to enhance the sentence. However, the constraints subject to which this power has to be exercised, have not yet been judicially laid down. 57 Declining to lay down any guidelines for the exercise of this power in Kehar Singh v. Union of India, 58 the Court has unanimously held: It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. In the same case the Court also held that the President s power under Article 72 is of executive character and the petitioner (condemned person) has no right to insist on an oral hearing before the President. 59 But the Court has reiterated that the scope of Article 72 is judicially determinable and the President was not right in rejecting Kehar Singh s petition on the ground that he 57. Kuljit Singh v. Lt. Governor of Delhi, (1982) 1 SCC 417: AIR 1982 SC 774; Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609: AIR 1988 SC (1989) 1 SCC 204: AIR 1989 SC Kehar Singh v. Union of India, (1989) 1 SCC 204, at p. 217.

21 107 could not go into the merits of his conviction by the courts. Speaking for the Court, Pathak, C.J. said: We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court. Clause (2) saves the power conferred by military law on any officer of the armed forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. 60 Clause (3) lays down that the power of the State Governors to grant suspension, remission or commutation of a sentence of death conferred by any law (e.g., Sections 432 and 433 of the Criminal Procedure Code) shall remain unaffected. By the CrPC (Amendment) Act, 1978 Parliament inserted Section 433-A in the CrPC, 1973 which made a full 14 year term of imprisonment mandatory for two classes of prisoners sentenced to life imprisonment (i) those who could also be punished to death, and (ii) those who were sentenced to death but whose sentence was commuted to life imprisonment under Section 433 of the CrPC, In Maru Ram v. Union of India, 61 it was contended that by the introduction of Section 433-A, Section 432 which empowers the government to suspend the execution of a sentence or remit the whole or any part of it, is excluded for a certain class of lifers and Section 433-A, which empowers the government to commute a sentence of death for any other punishment, suffers eclipse. It was argued that since Sections 432 and 433-A 60. E.g , Air Force Act, 1950; , Army Act, (1981) 1 SCC 107: AIR 1980 SC 2147.

22 108 are statutory provisions and modus operandi of the constitutional power under Articles 72 and 161, Section 433 would, be ineffective because it detracts from the operation of Sections 432 and 433-A which are the legislative surrogates, as it were, of the pardon powers under the Constitution. It was held that although powers under Articles 72 and 161 and that under Sections 432 and 433-A may be similar, but they are not the same or identical. The two powers differ in their source, substance and strength. Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161 which cannot suffer the vicissitudes of simple legislative processes. Krishna Iyer, J. explained that notwithstanding Section 433-A the President and the Governor continue to exercise the power of commutation and release under Articles 72 and 161 respectively. However, this power must be exercised by the President or the Governor in accordance with the aid and advice of their Council of Ministers, and it must be informed by the finer canons of constitutionalism spelt out in R.D. Shetty 62 and V. Punnan Thomas 63 cases, that is, anathematise arbitrariness, and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of power. This may be done by making rules of remission which may be effective guidelines of a recommendatory nature. It was pointed out that the present remission and release schemes may usefully be taken as guidelines under Articles 72 and Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489: AIR 1979 SC V. Punnan Thomas v. State of Kerala, AIR 1979 Ker 81.

23 109 and orders for release passed. But no fault can be found with the government if in some intractably salvage delinquents, Section 433-A is itself treated as a guideline. It may be clarified that the power under Articles 72 and 161 is absolute and cannot be fettered by any statutory provision such as Sections 432 to 433-A of CrPC or prison rules. 64 The jurisdiction of the Supreme Court under Article 137 to review death sentence after having already rejected special leave and review petition in the same matter and Presidential clemency are different in nature although some considerations may overlap. 65 If an application for clemency by way of commutation has been made by the prisoner, and is under consideration of the President, the Supreme Court has no jurisdiction to deal with the petition for stay of death sentence and has no power to pass any order. 66 The rejection of one clemency petition does not exhaust the power of the President; he can reconsider his decision on a fresh petition Judicial Review : In Maru Ram v. Union of India, 68 the Supreme Court expressly stated that the power of pardon, commutation and release under Article 72 (also under Article 161) cannot run riot and must keep sensibly to a steady course and that public power shall never be exercisable 64. State of Punjab v. Joginder Singh, (1990)2 SCC 661: AIR 1990 SC Shiv Mohan Singh v. State (Delhi Admn.), (1977)2 SCC 238: AIR 1977 SC Mohinder Singh v. State of Punjab. (1977)3 SCC 346: AIR 1976 SC G. Krishta Goud v. State of A.P., (1976) 1 SCC 157: (1976) 2 SCR (1981) 1 SCC 107: AIR 1980 SC 2147, 2170.

24 110 arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. Agreeing with Maru Ram in Kehar Singh v. Union of India 69 the Court reiterated: it appears to us clear that the question as to the area of the President s power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judicial review. While these two cases did not call for judicial intervention, relying on the law laid down in them, the Supreme Court invalidated the remission of sentence by the Governor of U.P. in Swaran Singh v. State of U.P. 70 because some material facts were not brought to the knowledge of the Governor under Article 161. Rejecting the argument that Governor s action under Article 161 is beyond judicial scrutiny the Court held: If such power was exercised arbitraily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the byproduct order cannot get the approval of law and in such cases, the judicial hand must be stretched to it. Later in Epuru Sudhakar v. Govt. of A.P., 71 Pasayat, I. has laid down that judicial review under Articles 72 and 161 is available on the following grounds: (a) that the order has been passed without application of mind; (b) that the order is mala fide; 69. (1989) 1 SCC 204: AIR 1989 SC 653, 661. See also Bikas Chatterjee v. Union of India, (2004) 7 SCC 634 in which the court reiterated the position laid down in Maru Ram and Kehar Singh. 70. (1998)4 SCC 75, 79: AIR 1998 SC (2006)8 SCC 161: AIR 2006 SC 3385, 3395.

25 111 (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that the relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness. He also emphasised that for effective exercise of judicial review reasons for the exercise of power under these articles must also be provided. Besides, he held that pardon obtained on the basis of manifest mistake or fraud can also be rescinded or cancelled. Thus the exercise of President s power under Article 72 (also of Governor under Article 161) is subject to judicial review like any other power of the executive. 3.5 Extent of Executive Power of the Union : The executive power of the Centre is not limited exclusively in respect of the matters on which Parliament can make laws. Under sub-clause (b) it extends also to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. It may also be emphasised here that while the executive has no authority to act against the provisions of a law, it does not follow that to enable the executive, to function relating to any matter within the scope of its authority, there must be a law which specifically authorises such action. 72 An administrative instruction or order is not a statutory rule. The 72. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: (1955) 2 SCR 225.

26 112 administrative instructions can be changed by the government by reason of Article 73(1)(a) itself. 73 An agreement to refer the dispute regarding the boundary of the Indian Union involves the ascertainment and representation on the surface of the earth of a boundary line dividing two neighbouring countries, and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary. Ordinarily an adjustment of a boundary which international law regards as valid between two nations should be recognised by courts and the executive can always implement it unless it involves cession of territory in which case parliamentary intercession should be had. However, if in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation. 74 The treaty making power, however, squarely falls within Article Clause (2) is an exception to the rule enacted in clause (1). To understand the object of the exception it is necessary to point out that there are certain subjects which under the Government of India Act, 1935, were under the Provincial List but under the present Constitution have been included in the Union or the 73. Union of India v. Majji Jangamayya, (1977) 1 SCC 606: AIR 1977 SC Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400, , 434: AIR 1969 SC Union of India v. Azadi Bachao Andolan, (2004)10 SCC 1: AIR 2004 SC 1107.

27 113 Concurrent List. 76 The executive power in relation to these matters automatically came to an end with the coming into force of the new Constitution. The object of clause (2) is to avoid the automatic lapse of executive authority of the States and to maintain the status quo until Parliament decides to take over executive power in relation to such matters. 3.6 Conduct of Government Business naem of the President : Conduct of business of the Government of India. (1) All executive action of the Government of India shall be expressed to be taken in the name of the President. (2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules 77 to be made by the President, and the validity of an order or-p instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make rules for the more convenient transaction of the business of the Government 76. E.g., Item 9, List II, Sch. VII, gave exclusive power to the Provincial Legislatures for making laws in respect of compulsory acquisition of land. Under the present Constitution, the power with regard to acquisition or requisitioning of property is a concurrent subject under List II, Entry 42, Sch. VII. See also List II. Entry 18, Government of India Act, 1935 and also List I, Entry 22, Constitution of India. 77. See Notification No. S.O. 2297, dated the 3rd November, 1958, Gazette of India, Extraordinary, Pt. II, S. 3(ii), p. 1315, as amended from time to time.

28 114 of India, and for the allocation among Ministers of the said business. 78 Clause (1) enacts that whenever executive action is to be taken by way of an order or instrument, it shall be expressed to be taken in the name of the President in whom the executive power of the Union is vested. A similar provision is made for the conduct of government business in the States. 79 The provisions of clause (1) are merely directory. 80 Where an order is not issued in strict compliance with the provisions of Article 77(1), it can be established by evidence aliunde that the order was made by the appropriate authority. Explaining clause (1) the Supreme Court has observed: 81 As required by Article 77(1), all executive actions of the Government of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally. That being so, the order carries with it no immunity. Being essentially an order of the Government of India, passed in exercise of its executive function, it would be amenable to judicial scrutiny and, 78. Cl. (4) was inserted by the Constitution (Forty-second Amendment) Act, 1976, S. 14 (w.e.f ) and omitted by the Constitution (Forty-fourth Amendment) Act, 1978, S. 12 (w.e.f ). The omitted clause read as under: (4) No court or other authority shall be entitled to require the production of any rules made under clause (3) for the more convenient transaction of the business of the Government of India. 79. Art Jain Transport Co. v. State of U.P., AIR 1957 Cal Common Cause, A Registered Society v. Union of India, (1999)6 SCC 667,

29 115 therefore, can constitute a valid basis for exercise of power of judicial review by this Court... The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or Article 77(2) of the Constitution. Accordingly an action against a minister in the Court for his illegal act could not be denied on the basis of Article 77(1) read with Article 361. Clause (2) provides that the validity of an order or instrument made or executed in the name of the President, and authenticated in the manner specified in the rules made by the President, shall not be called in question on the ground that it is not an order or instrument made or executed by the President. If an order is issued in the name of the President and is duly authenticated in the manner prescribed in clause (2), there is an irrebuttable presumption that the order or instrument is made or executed by the President. Any non-compliance with the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. 82 Article 77(2) will include the Presidential orders issued under Article 359(1) of the Constitution. 83 It does not prevent courts from inquiring into the correctness of recitals contained in an order or instrument. Nor does it prevent a person from challenging orders of the 82. Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762: (1962) 2 SCR 195; P. Joseph John v. State of Travancore-Cochin, AIR 1955 SC 160: (1955) 1 SCR K. Ananda Nambiar v. Chief Secy., AIR 1966 SC 657.

30 116 government as being bad or invalid or ultra vires. 84 In King- Emperor v. Sibnath Banerji, 85 a case under the Government of India Act, 1935, which contained a similar provision, the Privy Council observed as follows: It is quite a different thing to question the accuracy of recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. Under clause (3) the President is to make rules for the more convenient transaction of government business and for the allocation of the same amongst ministers. A similar provision occurs in Article 166(3) empowering the Governor to make rules for the conduct of government business in the States. In all cases in which the President or the Governor exercises his functions conferred on him by or 84. P.V. Rao v. Ahmed Hazi Noormahomad Latiff, AIR 1949 Bom 125, 126; Ram Krishna Deo v. Collector, AIR 1957 On 263; Bijoya Lakshmi Cotton Mills Ltd. v. State of W.B., AIR 1967 SC 1145: (1967)2 SCR AIR 1945 PC 156: ( )72 IA 241, 261.

31 117 under this Constitution with the aid and advice of his minister, he does so by making rules for more convenient transaction of business and for allocation among ministers of the said business in accordance with Articles 77(3) and 166(3) respectively. Further the rules of business and allocation among ministers of the said business is relatable to Articles 53(1) and 154(1) that the executive power shall be exercised by the President or the Governor directly or through the subordinate officers. Articles 74(1) and 163(1) providing for a Council of Ministers to aid and advise the President and the Governor respectively are the sources of the rules of business. In this context, in Samsher Singh v. State of Punjab, 86 Ray, C.J. observed that the decision of any minister or officer under rules of business made under any of the two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles do not provide for any delegation. Therefore, the decision of the minister or officer under the rules of business is the decision of the President or the Governor. Referring to the holding in State of U.P. v. Babu Ram Upadhya, 87 that the power of the Governor to dismiss at pleasure, subject to the provisions of Article 311, is not an executive power under Article 154 but a constitutional power and is not capable of being delegated to officers subordinate to him, Ray, C.J. observed that it is no longer good law after the decision in Moti Ram Deka v. GM, North East Frontier Rly. 88 The theory that only the 86. (1974)2SCC 831: AIR 1974 SC AIR 1961 SC 751: (1961)2 SCR AIR 1964 SC 600.

32 118 President or the Governor is personally to exercise pleasure of dismissing or removing a public servant is repelled by express words in Article 311 that no person who is a member of the civil service in the Union or the State shall be dismissed or removed by authority subordinate to that by which he was appointed. Thus the pleasure of the President or the Governor is exercised by such officers on whom the President or the Governor confers or delegates power. In Bijoya Lakshmi Cotton Mills Ltd. v. State of W.B., 89 the Supreme Court held that the decision of any minister or officer under the rules of business is a decision of the President or the Governor, as the case may be. The President or the Governor means the President or the Governor aided and advised by the minister. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Although the executive power vests in the President and the Governor respectively, it is carried on by ministers under Articles 77(3) and 166(3). The allocation of business is the decision of the President or the Governor on the aid and advice of ministers. In A. Sanjeevi Naidu v. State of Madras, 90 it was reiterated that the essence of the cabinet system of government responsible to legislature is that an individual minister is responsible for every action taken or omitted to be taken in his ministry; In every administration decisions are taken by civil servants, the ministers lay down the policy and the Council of Ministers settle major 89. AIR 1967 SC (1970) 1 SCC 433: AIR 1970 SC 1102.

33 119 issues. When a civil servant takes a decision, he does so on behalf of the government and not as its delegate. Clause (4) introduced by the Constitution (Fortysecond Amendment) Act, 1976 denying any court or other authority, power to require the production of any rules made under clause (3) for the more convenient transaction of the business of the Government of India, was omitted by the Constitution (Forty-fourth Amendment) Act, Executive Power of State Vested in Governor : (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor. The provisions of this article are similar to those of Article 53 which relate to the executive power of the Union which is vested in the President and exercised by him either directly or through officers subordinate to him. For discussion on the nature of the powers and position of the Governor comments under Article 53 above and under Article 160 below may be noted V.N. Shukla's, Constitution of India, Mahendra P. Singh, Eleventh Edition, Eastern Book Company, p. 539