This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 13 - Lecture 13 By Prof. (Dr.) Faizan Mustafa Namaskar, welcome to online course on Indian Constitution which is being offered by Inalcer University of Law in collaboration with Ministry of Law and Justice Government of India. After discussing fundamental rights, directive principles and fundamental duties, let us now talk about the Union Executive and the President Prime Minister relationship. You know we had adopted the parliamentary democracy due to our familiarity with the British parliamentary system as we were ruled by the British for about 200 years. Now there are three organs of the Union, Union Executive, Parliament and Union Judiciary. Part five of Indian Constitution deals with the Union and its chapter one provides for the Executive. Chapter two deals with Parliament, chapter three provides for the legislative powers of the President that is audience making powers and then chapter four deals with Union Judiciary. Who is included within Union Executive? Union Executive consists of following President of India, Vice President of India, Prime Minister, Council of Ministers, Attorney Journal. Since we are going to talk about President and Prime Minister and Council of Ministers, let me briefly say few things about Vice President and Attorney Journal. Vice President of India is the ex-official chairman of Rajasabha. He is the only chair of the house who is not the member of the house. Vice President is not the member of Rajasabha, but he is the chairman of Rajasabha. When President is not available, Vice President operates or discharges the duties of the President, when President has to give his resignation, he gives it to the Vice President. Vice President is elected by both the houses of the Parliament. Coming to Attorney Journal, Attorney Journal is the Government of India's lawyer. He has precedence over all other lawyers and advocates in the country. Attorney Journal of India can also participate in the proceedings of the Parliament, but generally the Government discusses legal issues with the Attorney Journal and governments stand in the court is invariably put forward by the Attorney Journal of India. Now why do we have a President? Though we have adopted the British Parliamentary System, but we do not have any queen or king as our head of the state. Monarchy has come to an end in India in 1857, then princely states joined Indian Union, merged themselves into the Indian Union, therefore there is no king or queen anymore in India. For preamble claims India as Republic, which means that we will have a head of the state who will be an elected head of the state. Accordingly the Indian Constitution makes a provision for the President who is elected every five years and who is head of our state. On the other hand, the Prime Minister is the head of the government. So may keep this distinction in mind. The head of the government is Prime Minister, but head of the Indian state is the President of India. How is President of India elected? Article 52 of the Constitution says there shall be a President of India. Article 54 says the President shall be elected by the members of an electoral college consisting of the elected members of both houses of parliament. And the elected members of legislative SMEs of the state, this expression elected is important. Those nominated members either in parliament or in a state as a family, cannot participate in the voting of President of India. And the article 71 of Indian Constitution, all disputes about the President shall be inquired into and decided by the Supreme Court and this will be the final decision. Whatever Supreme Court says shall be the last word. Who is eligible to become President? Article 58 lays down the qualifications which an individual must possess for being elected to the office of President of India. Number one, he must be citizen of India. Number two, he must have completed the age of 35 years. Number three, he must be qualified for election as a member of the House of People, Lok Sabha, which means he must be registered as a voter in any parliamentary constituency. Fourthly, he must not hold any office of profit under the government of India or the government of any state or under any local or authority subject to the control of the government of the union or any state. The President of India cannot hold any office of profit. But for the purposes of this article, a person who is the President of India or who is the governor or a minister in the center or the minister in the state shall not be deemed as holding an office of the President. And therefore, when our current President Ram Nath Kovinji was elected, he was the governor of Bihar. So if I want to contest the election of the President, then I cannot remain an employee of the government. You have to leave your office of profit. What oath or affirmation President takes before entering upon his office? This is a very important provision. Generally, the oaths in our Constitution are given in a separate schedule. Shedul, third, third, Shedul. But for the President, the oath is mentioned in the text of the Constitution. Every President and every person acting as President or discharging the functions of the President shall before entering upon his office make and subscribe in the presence of the Chief Justice of India or in his absence, the senior most judge of the Supreme Court available and oath or affirmation in the following form. That is, I, so and so swear in the name of God or solemnly affirm that I will faithfully execute the office of the President or discharge the functions of the President of India and will to the best of my ability. Preserve, protect and defend the Constitution. Very important expression. Preserve, protect and defend the Constitution and the law. And I will devote myself to the service and well-being of people of India. We would in few minutes discuss the importance of this oath in examining the position of the President and his relationship with the Prime Minister. How President can be removed? Article 61 talks of impeachment of the President. When a President is to be impeached for the violation of the Constitution, so President of India can be impeached only on one ground that he violated the Constitution of India, the charge shall be preferred by either House of Parliament. No such charge shall be preferred unless the proposal to prefer such charge is contained in a resolution which has been moved after at least 14 days notice in writing signed by not less than one fourth of the total members of the House, which wants to move that resolution. The first of all you need one fourth members signing the proposal to impeach the President. And then that resolution must be passed by a majority of not less than two thirds of the total membership of the House. I will explain to you in a minute what are the various types of the majorities under our Constitution. So one President of India can be impeached only for the violation of the Constitution. Two before you move the impeachment resolution 14 days notice is to be given and this should be signed by one fourth members of that House and then this resolution should be passed by two thirds of the total membership of the House. When a charge has been so preferred by either House of Parliament the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation. If as a result of investigation a resolution is passed by the majority of not less than two thirds of the total membership of the House by which the charge were investigated or cause to be investigated declaring that the charge preferred against the President has been sustained. Such a resolution shall have the effect of removing the President from his office as from the date on which such a resolution is so passed. Now remember that for no other provision in this Constitution two third majority of total membership of the House is required. To become the Prime Minister what you need is simple majority and therefore it is important that we understand various types of majorities required by our Constitution. Simple majority which is required to pass most laws which is required to pass no confidence motion or confidence motion of the Prime Minister requires only 50% plus 1. 50% plus 1 of those who are present and voting. Say if the strength of the House is 100, simple majority will mean if say 80 people are present 41 not 51 41 because what is required is majority of those present and voting. Absolute majority means 50% plus 1 of total membership of the House. If you have 100 members absolute majority will mean 51. Ispecial majority means 50% plus 1 of total membership of the House plus 2 third of present and voting. If you want to amend the Constitution we will discuss it in details in our last lecture when we discuss the amendability of Indian Constitution. But try to understand this if you are amending the Constitution what you require is the majority of the House and 2 third of present and voting. When it comes to President of India's impeachment mere simple majority 50% plus 1 of present and voting not sufficient. Absolute majority 50% plus 1 of total membership of the House not sufficient. 2 third of present and voting not sufficient. What you require is total membership of the House. 2 third of the total membership of the House. And therefore this is a unique provision because removal of President of India is a very big step. And therefore you can remove the President only when impeachment motion is passed by 2 third of total membership of the House. What does the Constitution say about the Prime Minister? Prime Minister is the most powerful constitutional authority in our parliamentary democracy. He leads not only the government but also the entire nation. It is the Prime Minister who represents the aspirations of the people. Article 74 says there shall be a council of ministers with the Prime Minister at the head to aid and advise the President. The question whether and if so what advice was given by the Prime Minister shall not be inquired into in any court. How many ministers Prime Minister can have? After the 91st constitutional amendment total number of ministers including the Prime Minister shall not exceed 15% of the total number of members of Lok Sabha. So whatever is the strength of Lok Sabha, 15% of that is the number which will have council of ministers. How is Prime Minister appointed? Very interesting question. Though the Indian Constitution is the lendiest constitution of the world and though the Prime Minister is the most powerful most important constitutional functionary but our constitution does not tell us any details about the appointment of the Prime Minister. Article 75 merely says that Prime Minister shall be appointed by the President and other ministers shall be appointed by the President on the advice of the Prime Minister. How will President appoint? What considerations President will keep in mind when he is going to appoint the Prime Minister? Constitution is silent on this point. This is one of the classical silence of Indian constitution. The Prime Minister and the ministers hold their office during the pleasure of the President and then Article 75 clause 3 says, Council of ministers shall be collectively responsible to the House of People. Now Lok Sabha which is a directly elected House becomes important as House of Commons in England is important. The Council of ministers is responsible to Lok Sabha not to Rajasava. President can appoint anybody as the Prime Minister. Whether he is the member of the House or he is not the member of Parliament is not important. But every Prime Minister after appointment as Prime Minister must within six months become the member of the either House of Parliament. Ideally the Prime Minister should come from Lok Sabha. But Prime Minister Manmohan Singh was a member of Rajasava. Indra Gandhi when she was appointed for the first time as Prime Minister was the member of Rajasava. So how President appoints somebody as a Prime Minister? After Lok Sabha elections as per constitutional conventions the President has to satisfy himself that the person to whom he is inviting to form the government enjoys the confidence of the House which House Lok Sabha. If there is a clear majority for a party, President has no discretion. But if there is a confusion, if there is a hung parliament, if no party gets majority President becomes all powerful because he alone has the discretion in the appointment of Prime Minister. He may call the leader of the single majority party or a leader of the pre-Pole Alliance or the leader of the post-Pole Alliance. What he has to see who is that person who will win the vote of confidence in Lok Sabha and such a person is to be invited to form the government. His Prime Minister just first amongst equals. This is what the classical position of Prime Minister under British Parliamentary system has been. At Prime Minister, vis-a-vis his ministers just first amongst equals. But today to say Prime Minister is merely Prima's Inter-Paris or first amongst equals does not truly reflect the Prime Minister's relationship with his ministers. As a matter of fact Prime Minister has no equals. Why? Because the council of ministers he survives or sings with the Prime Minister. If Prime Minister resigns, it automatically needs resignation of the entire ministry. When Prime Minister enjoys massive majority in Lok Sabha, then he can appoint ministers on his suit will. He can make and make ministers. He can drop anybody from his ministry. As they exercise more independence and assert more autonomy in coalition governments when Prime Minister is weak. Many a times today parliamentary election gets converted into the presidential form and people vote not for the party but for the leader whom they want to see as their Prime Minister. Is President bound by the Council of Ministers advice? Yes. Prior to 42nd Amendment, Article 74 had provided that there shall be a Council of Ministers with the Prime Minister at the head to aid an advice President in the exercise of his functions. 1976 during emergency, Mrs Gandhi brought in 42nd Amendment which laid down that the President has to exercise his functions on the aid and advice of Council of Ministers headed by the Prime Minister. So President will have no discretion. He has to simply go by the advice given by the Council of Ministers headed by the Prime Minister. In 1978, 44th Amendment was passed which provides that President may require the Council of Ministers to reconsider such advice either generally or otherwise and the President shall act in accordance with the advice tendered after such reconsideration. So 44th Amendment slightly reduced the strictness of 42nd Amendment now President of India can ask for reconsideration. If after reconsideration same advice is given then President of India is bound to accept the advice. Very rarely President's seek reconsideration but there have been notable exceptions. President Zal Singh in 1987 had sent the Indian Postal Bill for the reconsideration. Similarly President A.P.J. Kalaam in 2006 had returned the Office of Profit Bill. When the same bill was resummeted to him he had no choice but to sign it. And President K.R. Narayanan in 1997 and 1998 twice had refused to impose President's rule in a state of Uttar Pradesh and Bihar. If Indian President just a nominal head there are two schools of thoughts. One which says President is merely a nominal head or a figure head just like Bhatish Monarch who merely reigns but does not rule. Pandit Nairu and all other Prime Ministers naturally are in this school. But they get lot of support from the Supreme Court because Supreme Court also believes we are a parliamentary democracy and therefore the real power cannot be vested in the President. It has to be with the Prime Minister. The second school of thought believes Indian President is not a mere nominal head but can still higher and fire the cabinet. Dr. Rajendra Prasad and K. Munshi who was a member of Constant Assembly are the main proponents of this school. Now this school refers to certain articles of the Constitution which give an impression that in some situations the President of India may act independently. One of their arguments is while the Prime Minister is the leader of Lok Sabha which is one of the House of the Parliament the President has a wider electoral college because in his election as we discuss few minutes back both the House of Parliament and also state legislative assembly's participate. So his representative character is greater than the Prime Minister. Then they also refer to Article 53 clause 1 which says that 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. But the last expression in this clause is important. It says in accordance with the Constitution. The argument they try to build is like this that Article 53 is saying President may exercise his powers either directly or through officers subordinate to him. But my submission is look at the last few words. It says in accordance with the Constitution. And in accordance with the Constitution will mean generally he has to act on the aid and advice he can merely ask for reconsideration once. Then they also refer to what I told you earlier to Article 60 under which President takes an oath and promises to preserve, protect and defend the Constitution and law and that he will devote himself to the service and well-being of people of India. The argument is like this if President of India has no real power, how can he preserve, how can he defend, how can he protect the Constitution, how can he submit himself to the service and well-being of people of India. Then they also argue that Article 61 says President of India can be impeached only for the violation of the Constitution. The controversy was settled to rest by the Supreme Court in Shamsha Singh versus state of Punjab. In 1974 judgment in with Justice Krishna here observed, we declare the law. Please see this expression. We declare the law because Article 141 of Indian Constitution says law declared by the Supreme Court shall be binding on all courts throughout the territory of India. So Justice Krishna here is saying, we declare the law of this branch of our Constitution to be that that the President and Governor, custodians of all executive and other powers under various articles, shall by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers, save in few well-known exceptional situations. The one exceptional situation is that the Prime Minister loses majority in the house and advises President to dissolve Lok Sabha. The President is not bound to dissolve Lok Sabha on the advice of a Prime Minister who laws the no confidence motion. Though invariably, going by British conventions, the President may accept such an advice, but he is not necessarily bound. Particularly if the Lok Sabha elections are few years away. So now after the Supreme Court judgment in Shamsha Singh, there is simply no doubt that the Indian President has to discharge his functions only on the advice of his Council of Ministers. That brings me to ordinance making powers of the President. Article 123 of Indian Constitution says, if at any time, except when both houses of Parliament are in session, the President is satisfied that circumstances exist, which render it necessary for him to take immediate action. He may promulgate such ordinances as the circumstances appear to him to require. This is executive law making. Any laws are to be made by the Parliament. Parliament is not in session. An emergency situation has come in. Immediate action is required. So Constitution has given President power to promulgate ordinances to meet that immediate emergency. An ordinance promulgated under this article shall have the same force and effect as an act of Parliament, but every such ordinance shall be laid before both houses of Parliament and shall cease to operate at the expirations of six weeks from the re-assembly of Parliament. So President may promulgate an ordinance, that ordinance will remain in operation for six weeks one and a half month. During that period, Parliament must approve the ordinance and if Parliament does not approve the ordinance, then the ordinance would last. What did we learn today? India is Parliamentary Democracy. Accordingly, our President is just a nominal head. He has to act on the aid and advice of Council of Ministers, headed by the Prime Minister. Therefore Indian President, like the British Queen, reigns, but does not rule. In emergency situations, where immediate action is required, President may promulgate ordinances. In the next lecture, we would discuss the Indian Judiciary and the appointment of judges. Thank you very much. Namashkar. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).* **Navigate to other lectures:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] Last updated: 2026-02-21 22:46