This article is written by Puneet Kumar Dhupparh, a student from National Law University, Jodhpur, Rajasthan. In this article, the author describes about the Power and function of Executive in the domain of Judiciary then we will move to Legislature powers and functions of the Executive.

Introduction

Central Executive is the stoutest pillar of our democratic country. However, we know according to the concept of separation of powers in Indian constitution, Central Executive’s powers were separated from Judiciary and Legislature, but still there are numerous instances in which Executive plays certain imperative roles in the turf of Judiciary and Legislature. This article recognizes the fact that the powers provided to executive has a very wide domain, it shows what role Executive play in Judiciary and Legislature domain (the other two pillars of democracy).

India has a parliamentary form of government, which has a clear division of power between the Executive, Legislature and judiciary. Article 52 to 78 (see here) of the constitution deal with Central Executive. The Central Executive consists of President and Council of Ministers headed by Prime Minister. President of India is the head of the state and all the executive actions are taken in his name. According to Constitution of India various powers are vested in the hands of President but he cannot exercise any discretion over these powers or it can be said that President cannot take decisions as par his own judgement. Council of Ministers headed by Prime Minister are appointed to advice President and therefore it is the Prime Minister and Council of Ministers who work as executive or it can be said that they are the on who are actually running the show. Whenever term executive is used, we think that the mere role of Executive in our country is to exercise executive functions with respect to the subjects that fall within the legislative sphere of Parliament. However, this is a very narrowed meaning given to the power and function of Executive. Along with the executive functions, it also performs certain functions in the field of Legislative and Judiciary. This article will explore around all the powers and functions that Executive has and performs.

Judicial function

According to Hon’ble Mr. Justice Satish Chandra, Former Chief Justice, (see here) in ancient times King was the one who was obligatory to decide the cases in open or in courtrooms, but with time things began to change because with time the number of litigation increased and burden of other significant duties of the King made less time for King to provide justice to his people. So, it became difficult for the king to handle all the complaints by himself and he appointed judges to look into the matter, and only the matters of supreme importance or where people were unsatisfied by the justice given by judges were brought to him for justice. Thus, it can be said that he was the most superior in the kingdom, who one can seek for justice. However, this was the basic idea that developed years ago with time Mughals, Britishers and many other dynasties who ruled India developed their own way to provide justice. 

Appointment of Judges 

Similarly, after Independence, according to the Constitution of India there are certain functions and powers vested with the Executive in respect to Judiciary. According to article 124(2) (see here) and 217(1) (see here) of the constitution, the Central Executive appoints the judges of the Supreme Court and the High Court respectively. 

Pardon Power

President of India is vested with the power of pardon (to forgive or to excuse), reprieve (stay of execution of sentence), respite (postponement of execution of sentence) or remission (reduces the amount of sentence without reducing it) or to suspend, remit or commute the sentence of any person convicted of any offence in all cases under article 72 (see here) of the constitution.

  • When the sentence is granted through a court-martial;
  • When the sentence or punishment is given for offense of violation of any law relating to matters that fall in the ambit of Union’s executive powers;
  • When a death sentence is passed by a court

One of the most prominent cases with respect to President’s power of pardon was Kehar Singh v UOI (see here), in this Kehar sigh was convicted under section 120B with section 302 of IPC, for the assassination of the then Prime Minister Indira Gandhi. First his petition of pardon got rejected from President then he filed for a personal hearing which was also rejected on the ground of not being in conformity with the “well established practise in respect of consideration of mercy petitions”. After this a writ petition was filed in Delhi High Court seeking an order restraining the central government from executing the death sentence on the convicted, after the dismissal of this writ petition a special leave application under Article 136 (see here) was filed, the case was heard by a bench of 5 judges on which Chief Justice Pathak on behalf of a unanimous court said:

“In doing so the President does not amend or modify or supersede the judicial record. The judicial record remains intact and undisturbed. The President acts in a wholly different plane from that in which court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding the practical effect of the presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him.”

The court said that President has the power to exercise Pardon, on his own merits of the case notwithstanding the fact that a complete judicial procedure has already been accomplished before. The President has the power to look into the case and decide whether the case deserves to be put under the power of pardon. Chief Justice also said:

“The power of pardon is a part of the constitutional scheme and we have no doubt in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the constitution in the head of the state and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when the occasion arises in accordance with the direction contemplated by the context”

The court adopted this liberal approach because it realised that a person’s life and his liberty is chief important for the well-being of humanity. And there is always a chance imperfection of human judgement even by the most trained mind so to overcome this loophole of justice the accurate remedy provided will be the power of pardon to a superior authority to scrutinise the threat to denial of life or freedom.

According to the Report on Capital Punishment, (see here) The Law Commission of India has also justified the existence of the prerogative of mercy in the executive. The scope of power provided to the President under article 72 is very wide-ranging. It extends to the whole of India. In UOI v Sriharman (see here) it was held that the power under article 72 is to be exercised with great care and is subject to judicial review. 

In State of Punjab v Joginder Singh,(see here) Supreme court said that power under article 72 “is absolute and cannot be chained by any statutory provision such as section 432, 433, and 433A of the Civil Procedure Code, 1973 (see here). This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or prison rules”.

Legislative

Central Executive comprises of President along with Council of Ministers headed by Prime Minister. These members of Central Executive also work in the pitch of legislature. Legislative powers and functions of Executive can be addressed under four heads:

  1. Participation of executive in the legislative process,
  2. Power to make rules under Constitution,
  3. Power to proclaim an Emergency,
  4. Power to make ordinances.

Participation of executive in the legislative process

Council of Ministers are an integral part of Parliament and thus play a prodigious role in legislative process along with which they are also accountable for discharging various duties in relation to Parliament. Executive has power and functions in the turf of Legislature is self-evident from the fact that President himself is a component member of Parliament.

Executive has the power to convene and progue and even to dissolve the Parliament. President’s assent is required for transforming a bill passed by both the houses into an act. Furthermore, in certain provision of the constitution prior recommendation of President is necessary. As for example:

  • Article 3- To introduce a Bill for formation of new states or to alter boundaries or names of existing states (in either house). (see here)
  • Article117(1)- To introduce money bill. (see here)
  • Article117(3)- For consideration of a bill involving expenditure from consolidated fund of India. (see here)
  • Article 274- To introduce any bill that affects any tax in which states are interested. (see here)

 All these articles denote direct role of executive in legislative process. 

Power to make rules under Constitution

According to various provision of Indian Constitution Central executive power to make certain rule, as for example-

  • Article72(2)- Central Executive can do authentication of orders and instruments made and executed in the name of the President. (see here)
  • Article 77(3)- The more convenient transaction of Government’s business. (see here)
  • Article 148(5)- conditions of service for audits and accounts department. (see here)
  • Article 318- Chairman and members of the Union and Joint Public Service Commissions. (see here)
  • Article 98(3)- Secretariat and staff of Houses of Parliament. (see here)
  • Article146(1)- Consultation with the UPSC regarding appointment of officials of the Supreme Court. (see here)
  • Article 10(2)- Dual membership of Parliament and State Legislative. (see here)
  • Article 118(3)- Procedure to be followed at the joint sittings of the Parliament. (see here)
  • Article 309- Regulating the requirements and conditions of service of persons. appointed to services and posts in connection with the affairs of the Union. (see here)

Ordinance Making power

Although the power to make law is in the hands of Union Legislature, but Indian Constitution provides certain provisions under which President is provided with powers to make ordinance to meet unforeseen or urgent situation, when Parliament is not in session. This power of President is provided under Indian Constitution to meet only extraordinary situations. An ordinance is only referred as a temporary law.

According to Article 123 (see here) the situations under which President can make laws are:

  1. Parliament (either houses) is not in session.
  2. President feels that the circumstances exists make it necessary for him to make laws.

In the case of RC Cooper v. UOI (see here) Supreme Court said that:

“The ordinance is promulgated in the name of the President and in constitutional sense on his satisfaction: it is the truth promulgated on the advice of his Council of Ministers and on their satisfaction”

In the case of BA Hasanahba v State of Karnatka (see here) High Court said that:

“An ordinance is an emergency or stop gap measure and the power is required to be used for the purposes of sub-serving conserving and enhancing the constitutional process and should not be and cannot be used for the purposes of bypassing it”.

According to Article 73 of the Constitution Central Executive is entitled to exercise executive functions with respect to all those subjects which fall within the Legislative sphere of Parliament. There are certain executive functions which can be grouped under four heads:

  • Appointment Of various high Officials:
  • Attorney General [article 76(1)], (see here)
  • Comptroller and Auditor General [Article 148(1)], (see here)
  • State Governor [Article 155], (see here)
  • Member of Union Public Service Commission [Article 315-323], (see here)
  • Election Commissioners [Article 324], etc (see here)
  • Appointment of various commission:
  • Inter State Council [Article 263] (see here)
  • Finance Commission [Article 280] (see here)
  • Commission for Scheduled Tribe [Article 339(1)] (see here)
  • Commission for Backward Classes [Article 340(1)] (see here)
  • Official Language Commission [Article 344(1)] (see here)
  • Power to enter into contracts on behalf of the Union [Article 299]
  • “(1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
  • (2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof”.(see here)
  • Power to issue directions to states in certain circumstances [Articles 256, 257, 339(2)] (see here)

Conclusion

Although the main objective of separation of powers in India was to make every pillar of our democracy (Legislative, Executive and Judiciary), work independently in their domain without any interference, but certain provisions of our Indian constitution provide a broad spectrum to Executive as according to our constitution Executive plays an important role in all the three domains. However, its functioning in other two domains show its superiority to other pillars of our Democracy, as in Judiciary even after the final decision of Supreme Court, President has the power to grant pardon to the convicted, this shows the superior nature of Executive to Judiciary. In the domain of Legislature, all the bills required consent of the President for getting transformed into acts, even some acts require his prior approval for being introduced in parliament. These powers granted to Executive under our Constitution shows the superior nature of Executive in our country. Thus, these all provisions are self-explanatory to the fact that Executive is the strongest pillar of our Democracy and is the most significant authority for maintenance of Law and order in the society.  


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