Constitutional Law II: The Executive, the Legislature and the Distribution of Powers, the Judiciary, Emergency, Special Provisions and the Election Commission

This chapter takes Unit II's items 2 to 7: the Union and State executive and their interrelationship, the legislatures and the distribution of legislative powers, the judiciary, the emergency provisions, the temporary, transitional and special provisions for certain States, and the Election Commission. The approach is doctrinal. Where a polity course describes how the President is elected, a law course asks what Article 74 binds her to and what Shamsher Singh (1974) held; where it lists the three Lists, a law course asks how pith and substance and Article 254 resolve a conflict. The Article 370 events of 2019 and the Supreme Court's decision of December 2023 are placed where the syllabus puts them, under temporary and special provisions.

1. The Union and State executive and their interrelationship

The executive power of the Union vests in the President (Article 53) and of a State in the Governor (Article 154), but both act on the aid and advice of a council of ministers (Articles 74 and 163). The Forty-second Amendment (1976) made the advice binding on the President; the Forty-fourth (1978) allowed her to return it once for reconsideration, after which she must act on it. In Shamsher Singh v State of Punjab (1974) a seven-judge bench held that the President and Governor are constitutional heads who exercise their powers on ministerial advice save in a few well-known exceptional situations. The Governor's discretion is narrower than it looks: Nabam Rebia v Deputy Speaker (2016) held that Article 163 does not give the Governor a general discretion, only where the Constitution expressly or by necessary implication requires it.

Executive powers and Union–State executive relations
ProvisionWhat it provides
Article 72 and Article 161Pardoning powers of the President (including death sentences and court-martial) and the Governor; exercised on advice and subject to limited judicial review (Kehar Singh, 1989; Epuru Sudhakar, 2006)
Article 123 and Article 213Ordinances when the legislature is not in session; Krishna Kumar Singh (2017, seven judges) held re-promulgation a fraud on the Constitution and ordinances subject to review
Articles 256 and 257States must exercise executive power to ensure compliance with Union laws and not to impede Union executive power; the Union may give directions
Article 365Failure to comply with Union directions allows the President to hold that the State's government cannot be carried on in accordance with the Constitution
Article 263Inter-State Council, constituted in 1990 on the Sarkaria Commission's recommendation
⚠️ Article 74 after 1978
The President is not free to reject advice. She may send it back once; if the council reiterates it, she "shall act in accordance with the advice tendered after such reconsideration". Any option giving her a power to refuse advice indefinitely is wrong, and Article 74(2) bars courts from inquiring into what advice was tendered.

2. The legislatures and the distribution of legislative powers

Article 245 lets Parliament legislate for the whole or any part of India and a State legislature for its State; Article 246 allocates subjects through the Seventh Schedule, with Parliament exclusive in List I, States exclusive in List II and both in List III. Residuary power lies with Parliament (Article 248 and Entry 97 of List I). Parliament may also legislate on State subjects when the Rajya Sabha so resolves by two-thirds in the national interest (Article 249), during an emergency (Article 250), when two or more States consent (Article 252), and to implement treaties (Article 253). A money bill (Article 110) can be introduced only in the Lok Sabha and the Rajya Sabha can only recommend amendments within 14 days; a joint sitting (Article 108) resolves deadlocks on ordinary bills, but not money bills or constitutional amendments.

Doctrines for resolving conflicts between the Lists
DoctrineMeaningAuthority
Pith and substanceA law is classified by its true nature; incidental encroachment on another List does not invalidate itPrafulla Kumar Mukherjee v Bank of Commerce, Khulna (1947, Privy Council); State of Bombay v F.N. Balsara (1951)
Colourable legislationWhat cannot be done directly cannot be done indirectly; the question is competence, not motiveK.C. Gajapati Narayan Deo v State of Orissa (1953)
RepugnancyOn a Concurrent List subject a Union law prevails over an inconsistent State law, unless the State law was reserved for and received the President's assent (Article 254(2))M. Karunanidhi v Union of India (1979)
Harmonious constructionEntries are read so that each has effect, and the Union List prevails only where reconciliation fails (Article 246's "notwithstanding")A settled rule of interpretation of the Lists
ℹ️ The Aadhaar money bill
In K.S. Puttaswamy v Union of India (2018, the Aadhaar judgment) the majority upheld the Aadhaar Act 2016 as a money bill under Article 110. In Rojer Mathew v South Indian Bank (2019) a five-judge bench doubted that reasoning and referred the scope of Article 110 to a larger bench, so the question is open.

3. The judiciary

The Supreme Court (Article 124) has original jurisdiction in federal disputes (Article 131), writ jurisdiction (Article 32), appellate jurisdiction including special leave (Article 136), review of its own judgments (Article 137), power to do complete justice (Article 142) and advisory jurisdiction on a presidential reference (Article 143). High Courts have wider writ jurisdiction under Article 226 ("for any other purpose") and superintendence over subordinate courts under Article 227. Judges of the Supreme Court retire at 65 and of High Courts at 62, and are removed only by an address of both Houses by special majority on proved misbehaviour or incapacity (Article 124(4)), following the procedure of the Judges (Inquiry) Act 1968.

The four Judges cases
CaseHolding on appointments
S.P. Gupta v Union of India (1981), First Judges case"Consultation" with the Chief Justice does not mean concurrence; executive primacy
Supreme Court Advocates-on-Record Association v Union of India (1993), Second Judges casePrimacy of the Chief Justice's opinion, formed collectively; the collegium begins
In re Special Reference No. 1 of 1998, Third Judges caseCollegium of the Chief Justice and four senior-most judges for Supreme Court appointments
Supreme Court Advocates-on-Record Association v Union of India (2015), Fourth Judges caseStruck down the Ninety-ninth Amendment (2014) and the National Judicial Appointments Commission Act 2014 as violating judicial independence, a basic feature
🧠 Order of the Judges cases
Remember the years 1981, 1993, 1998 and 2015 as a pendulum: executive primacy, then judicial primacy, then an enlarged collegium, then the Court's rejection of the commission that was meant to replace it.

4. Emergency provisions

The three emergencies
TypeGround and approvalEffect on rights and federalism
National emergency, Article 352War, external aggression or armed rebellion ("armed rebellion" replaced "internal disturbance" in 1978); written advice of the Cabinet; approval by both Houses within one month by special majority, then every six monthsArticle 358 suspends Article 19 only in war or external aggression; Article 359 lets the President suspend enforcement of other rights, but never Articles 20 and 21 (since 1978); Parliament may legislate on State subjects (Article 250)
State emergency (President's rule), Article 356Failure of constitutional machinery in a State; approval within two months; maximum three years, and beyond one year only with a national emergency and an Election Commission certificateS.R. Bommai v Union of India (1994): the proclamation is judicially reviewable, the floor test decides majority, secularism and federalism are basic features, and the Assembly should not be dissolved before parliamentary approval
Financial emergency, Article 360Threat to financial stability or credit of India; approval within two monthsNever proclaimed; allows reduction of salaries including of judges
🎯 Why Bommai matters so much
Before 1994 Article 356 had been used over a hundred times, often to dismiss governments of opposition parties. Bommai, decided by nine judges, made the President's satisfaction reviewable on the material relied on, and if the proclamation is struck down the dismissed government can be restored. It turned a political weapon into a justiciable power.

5. Temporary, transitional and special provisions; the Election Commission

Part XXI (Articles 369 to 392) is titled "Temporary, Transitional and Special Provisions". Article 370 gave Jammu and Kashmir a special status. On 5 August 2019 the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), applying the whole Constitution to the State, and on 6 August 2019 a declaration under Article 370(3) (C.O. 273) that all clauses of Article 370 would cease to operate except clause (1) as modified. The Jammu and Kashmir Reorganisation Act 2019 divided the State into two Union territories from 31 October 2019: Jammu and Kashmir, with a legislature, and Ladakh, without one. In In Re: Article 370 of the Constitution (11 December 2023) a five-judge bench unanimously upheld the presidential orders: Article 370 was a temporary provision, Jammu and Kashmir did not retain internal sovereignty after accession, and the President could declare the Article inoperative. The Court upheld the creation of Ladakh, did not decide the validity of converting the State into a Union territory in view of the government's assurance that statehood would be restored, and directed Assembly elections by 30 September 2024.

  • Article 371: special responsibilities of the Governor for development boards in Maharashtra and Gujarat.
  • Article 371A (Nagaland) and 371G (Mizoram): no Act of Parliament on religious or social practices, customary law and procedure, or ownership and transfer of land applies unless the State Assembly so resolves.
  • Articles 371B to 371J cover Assam, Manipur, Andhra Pradesh and Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka (371J, for the Hyderabad-Karnataka region, inserted by the Ninety-eighth Amendment, 2012).

The Election Commission (Article 324) superintends, directs and controls elections to Parliament, State legislatures and the offices of President and Vice-President. The Chief Election Commissioner can be removed only like a Supreme Court judge (Article 324(5)); other Commissioners only on the CEC's recommendation. T.N. Seshan v Union of India (1995) upheld the multi-member Commission deciding by majority. In Anoop Baranwal v Union of India (2023) the Court directed that, until Parliament legislated, appointments be made on the advice of a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Parliament then enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, whose selection committee is the Prime Minister, the Leader of the Opposition (or of the largest opposition party) and a Union Cabinet Minister nominated by the Prime Minister. Article 329 bars courts from interfering in electoral matters except by an election petition; Mohinder Singh Gill v Chief Election Commissioner (1978) read the Commission's Article 324 powers as plenary where the law is silent.

ℹ️ Electoral bonds
In Association for Democratic Reforms v Union of India (15 February 2024) a five-judge bench struck down the Electoral Bond Scheme 2018 and the related amendments as violating voters' right to information under Article 19(1)(a).

Key takeaways

  • The President and Governor act on ministerial advice (Articles 74 and 163; Shamsher Singh, 1974); since 1978 advice can be returned once, then binds.
  • Residuary power is with Parliament (Article 248); pith and substance, colourable legislation and Article 254 repugnancy resolve conflicts between Lists.
  • The Judges cases run 1981, 1993, 1998 and 2015; the Fourth struck down the NJAC as violating judicial independence.
  • Since 1978 Articles 20 and 21 cannot be suspended in an emergency; Bommai (1994) made Article 356 proclamations reviewable.
  • Article 370 was rendered inoperative in August 2019 and upheld unanimously in In Re: Article 370 (11 December 2023); CEC appointments now follow the 2023 Act after Anoop Baranwal (2023).

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. Residuary legislative power in India is vested in Parliament by:

    1. Article 253 alone
    2. Article 248 read with Entry 97 of List I
    3. Article 249 read with Entry 66 of List II
    4. Article 254 read with List III
    Show answer

    Answer: B — Article 248 read with Entry 97 of List I

    Article 248 and Entry 97 of the Union List give Parliament exclusive power over any matter not enumerated in the State or Concurrent Lists. Article 249 concerns a Rajya Sabha resolution, 254 repugnancy, and 253 the implementation of treaties.

  2. Which case struck down the National Judicial Appointments Commission?

    1. L. Chandra Kumar v Union of India (1997)
    2. Supreme Court Advocates-on-Record Association v Union of India (2015)
    3. In re Special Reference No. 1 of 1998
    4. S.P. Gupta v Union of India (1981)
    Show answer

    Answer: B — Supreme Court Advocates-on-Record Association v Union of India (2015)

    The Fourth Judges case (2015) struck down the Ninety-ninth Amendment and the NJAC Act 2014. S.P. Gupta is the First Judges case, the 1998 reference the Third, and L. Chandra Kumar concerns tribunals and High Court review.

  3. Assertion (A): During a national emergency, the President cannot suspend the right to move a court for enforcement of Article 21. Reason (R): The Forty-fourth Amendment (1978) excluded Articles 20 and 21 from the scope of Article 359. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: A — Both A and R are true, and R is the correct explanation of A

    Both are true and R explains A. The 1978 amendment was a direct response to ADM Jabalpur (1976), which had held that no habeas corpus petition lay during the Emergency.

  4. In In Re: Article 370 of the Constitution (11 December 2023), the Supreme Court:

    1. Held that Jammu and Kashmir retained internal sovereignty
    2. Struck down C.O. 272 but upheld C.O. 273 by a 3:2 majority
    3. Declared the creation of Ladakh as a Union territory invalid
    4. Unanimously upheld the presidential orders rendering Article 370 inoperative
    Show answer

    Answer: D — Unanimously upheld the presidential orders rendering Article 370 inoperative

    The five-judge bench was unanimous: Article 370 was temporary, there was no residual internal sovereignty, and the President's declaration was valid. It upheld Ladakh's creation and left the question of the conversion of the State to a Union territory undecided in view of the assurance on statehood.

  5. Which of the following did S.R. Bommai v Union of India (1994) hold? Select all that apply.

    1. A proclamation under Article 356 is subject to judicial review
    2. A government's majority should be tested on the floor of the House
    3. Secularism is a basic feature of the Constitution
    4. The President's satisfaction under Article 356 is wholly immune from scrutiny
    Show answer

    Answer: A — A proclamation under Article 356 is subject to judicial review; B — A government's majority should be tested on the floor of the House; C — Secularism is a basic feature of the Constitution

    Bommai held proclamations reviewable, treated secularism and federalism as basic features, and insisted on the floor test. It rejected complete immunity: the material behind the satisfaction can be examined, though the court does not substitute its own judgment.

  6. Under the 2023 Act on the appointment of Election Commissioners, the selection committee consists of:

    1. The Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister
    2. The Prime Minister, the Leader of the Opposition and the Chief Justice of India
    3. The President, the Prime Minister and the Speaker
    4. The Chief Justice of India and the two senior-most judges
    Show answer

    Answer: A — The Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister

    The 2023 Act replaced the interim arrangement of Anoop Baranwal (2023), which had included the Chief Justice of India, with a Cabinet Minister nominated by the Prime Minister.

  7. On a Concurrent List subject, a State law repugnant to an earlier Union law will prevail in that State if:

    1. The Rajya Sabha passes a resolution under Article 249
    2. It was passed by a two-thirds majority of the State Assembly
    3. It was reserved for the President's consideration and received his assent
    4. The Governor certifies it as urgent
    Show answer

    Answer: C — It was reserved for the President's consideration and received his assent

    Article 254(2) saves a reserved State law that has received presidential assent, though Parliament can later override it. Neither a special majority in the Assembly nor a Governor's certificate has that effect, and Article 249 enlarges Parliament's power rather than a State's.

  8. Assertion (A): A money bill can be introduced only in the Lok Sabha. Reason (R): A deadlock on a money bill is resolved by a joint sitting under Article 108. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: C — A is true, but R is false

    A is true under Article 109. R is false: there is no joint sitting for money bills, because the Rajya Sabha can only recommend amendments within 14 days and the Lok Sabha is free to reject them.

  9. Which of the following Articles fall in Part XXI (temporary, transitional and special provisions)? Select all that apply.

    1. Article 356
    2. Article 324
    3. Article 370
    4. Article 371A
    Show answer

    Answer: C — Article 370; D — Article 371A

    Part XXI runs from Article 369 to 392 and includes Article 370 and the 371-series special provisions. Article 356 is in Part XVIII (emergency provisions) and Article 324 in Part XV (elections).

  10. At what age does a judge of the Supreme Court of India retire? Type the number.

    Numerical answer — type the value.

    Show answer

    Answer: 65

    Article 124(2) fixes 65 years for Supreme Court judges; High Court judges retire at 62 under Article 217, raised from 60 by the Fifteenth Amendment in 1963.