The Executive power of the Union is vested in the President under Article 53 of the Constitution. The extent of the Executive power is indicated in Article 73. The next Article, namely, Article 74 provides for a Council of Ministers to aid and advise the President. Article 75(3) speaks of the collective responsibility of the Cabinet which provides that the Cabinet shall be responsible to Parliament. Article 77 provides for the conduct of business of the Government of India and clause (3) thereof empowers the President to make rules for the convenient transaction of its business and for allocation amongst Ministers of the said business.
It is in exercise of this power that rules for allocation of business have been framed under which various divisions of work to different Ministries have been indicated.
The functions of the Govt. are carried out in the name of the President by Ministers appointed by him on the advice of the Prime Minister. The Executive consists of:
(a) Prime Minister and Ministers who are members of the Cabinet;
(b) Ministers who are not of Cabinet rank;
(c) The Civil Service.
Since the functions of the Govt. are carried on by the Executive in the name of the President on the advice of Ministers, they (Ministers) alone are answerable to the Parliament. The Civil Service as such has no Constitutional personality or responsibility separate from the duly constituted Govt.
Article 77(1) and (2) provide that whatever executive action is taken by the Government of India, the same shall be expressed to have been taken in the name of the President.
Meaning of Executive powers
Executive power is not defined in the Constitution. Article 73 relating to the Union of India and Article 163 relating to the State deal primarily with the extent of executive power.
In Rai Sahib Ram Jawaya Kapur vs. State of Punjab[1], 1955, the then Chief Justice Mukherjee pointed out: –
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.”
The Extent of Executive Powers
This Judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the Executive functions subject to the control of the Legislature. It is laid down that although the President is the head of the Executive, he acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are all members of the Legislature and since the President has to act upon the advice of the Council of Ministers, the Legislature indirectly controls the functioning of the Executive.
The relevant portions are extracted below: –
“Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State….. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature?
Under Article 53(1), the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Govt. of States; the Governor occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Govt.
In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, ‘a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part’. The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”
This decision was referred to in State of M.P. vs. Thakur Bharat Singh, 1967[2], wherein it was held that if the executive action of the Government affected prejudicially the rights of any citizen, such action could be justified only if it was supported by the authority of law.
The concept and the extent of executive action was also examined by Supreme Court in Naraindas Indurkhya vs. State of M.P., 1974[3], in which the decision in Rai Saheb Ram Jawaya Kapur’s case (supra) was followed and it was laid down that the State Government could prescribe textbooks in the exercise of its executive power so long as it did not infringe the rights of anyone.
This decision was reiterated in Jayantilal Amratlal Shodhan vs. F.N. Rana, 1964[4] and again in Bishambhar Dayal Chandra Mohan vs. State of U.P., (1982)[5].
The whole constitutional position was reconsidered by a Seven-Judge Bench of supreme Court in Samsher Singh & Anr. vs. State of Punjab, 1975[6], in which the decision in B.K. Sardari Lal vs. Union of India (1970)[7] was specifically overruled and it was held that under Article 74(1), it is the function of the Council of Ministers to advise the President over the whole of the Central field and nothing is excepted from that field by this Article. It was also pointed out that the Constitution of India has adopted the parliamentary or the Cabinet form of Government on the British model.
The principle of English Constitutional Law that the King does not act on his own, but on the advice of Council of Ministers is embodied in the Indian Constitution as may be evident from the following words of Justice Krishna Iyer in that case: –
“Not the Potomac, but the Thames, fertilises the flow of the Yamuna, if we may adopt a riverine imagery. In this thesis, we are fortified by precedents of this Court, strengthened by Constituent Assembly proceedings and reinforced by the actual working of the organs involved for about a `silver jubilee’ span of time.”
It was also pointed out in this case that the words “business of the Government of India” and “the business of the Government of the State”, as used in Articles 77(3) and 166(3), include “all executive business”.
M. Seervai in ‘Constitutional Law of India’
Seervai in his treatise “Constitutional Law of India“[8] has, after a critical analysis of the Judgment, extracted the following principles on the “business of the Government of India and allocation of business among Ministers” :-
“(i) The expressions “business of the Government of India” and “the business of the Government of the State” in Arts. 77(3) and 166(3) includes “all executive business”.
(j) “Where the Constitution required the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor as the case may be … the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of government …. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions….”
Arts. 77(3) and 166(3) provide that the President or the Governor shall make rules for the more convenient transaction of the business of government and the allocation of functions among Ministers. Rules of business and the allocation of functions to Ministers indicate that the satisfaction of the Minister or the officer is the satisfaction of the President or the Governor.
(k) Rules of business and allocation of business among Ministers are relatable to Arts. 53 and 154 which provide that executive power shall be exercised by the President and by the Governor either directly or through subordinate officers. The provisions made in Arts. 74 and 163 for a Council of Ministers to aid and advise the President and the Governor “are sources of the business.”
(l) Where the functions entrusted to a Minister are performed by an officer employed in the Minister’s department, there is in law no delegation to that officer because the act or decision of the officer is that of the Minister.”
Whether executive powers are under the scrutiny of Judiciary?
In Common Cause, a registered society v. Union of India (1999), the court after referring above decisions also concluded that,
“though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. Moreover, as required by Article 77 (1), all executive actions of the Govt. 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 Govt. of India, passed in exercise of its Executive functions, it would be amenable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this Court.
The authenticity, validity and correctness of such an order can be examined by this Court in spite of the order having been expressed in the name of the President. 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.”
Reference
Common Cause, a registered society v. Union of India, (1999)
[1] 1955 (2) SCR 225
[2] 1967 (2) SCR 454
[3] 1974 (3) SCR 624
[4] 1964 (5) SCR 294
[5] (1982) 1 SCC 39
[6] 1975 (1) SCR 814
[7] 1970) 1 SCC 411
[8] Silver Jubilee Edition, Fourth Edition, on page 2037