3.7 The Union and State Executive, the Legislatures & Constitutional Bodies

3.7 The Union and State Executive, the Legislatures & Constitutional Bodies

Sections 3.3 and 3.4 dealt with remedies and the courts. This section completes the constitutional map by covering the two political branches and the independent bodies that stand outside both. For a Maharashtra judiciary candidate there is a direct incentive: the Commission conducting your examination is itself constituted under Article 315, and its constitutional protections are frequently examined.

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The Union Executive (Articles 52-78)

The President (Articles 52-62, 72-78)

• Electoral college (Article 54): the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States, together with those of the National Capital Territory of Delhi and the Union territory of Puducherry (added by the Seventieth Amendment). Nominated members and members of Legislative Councils do not vote.
• Method (Article 55): proportional representation by means of a single transferable vote, the voting being by secret ballot. Article 55 also prescribes the value-of-vote formula that maintains uniformity among States and parity between the States as a whole and the Union.
• Term and removal: five years (Article 56); removable only by impeachment for violation of the Constitution under Article 61 — a charge preferred by either House on 14 days' notice signed by not less than one-fourth of the total members, and passed in each House by not less than two-thirds of the total membership. Nominated members may participate in impeachment (unlike election).
• Pardoning power (Article 72): to grant pardons, reprieves, respites and remissions of punishment, and to suspend, remit or commute the sentence of any person convicted of an offence — (a) where the punishment is by a court martial; (b) where the offence is against a law relating to a matter within the executive power of the Union; and (c) in all cases of a sentence of death.

The Council of Ministers (Articles 74-75)

Article 74(1), as amended by the Forty-second and Forty-fourth Amendments, provides that the Council of Ministers headed by the Prime Minister shall aid and advise the President, who shall act in accordance with such advice; he may require reconsideration, but must act in accordance with the advice tendered after reconsideration. Article 74(2) makes the question whether any and what advice was tendered non-justiciable. Under Article 75(3) the Council is collectively responsible to the House of the People, and under Article 75(1A), inserted by the Ninety-first Amendment, its total strength cannot exceed 15% of the total membership of the Lok Sabha.

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Parliament (Articles 79-122)

• Money Bill (Article 110): a Bill is a Money Bill only if it contains only provisions dealing with the matters listed in Article 110(1)(a) to (g). The decision of the Speaker of the Lok Sabha on whether a Bill is a Money Bill is final (Article 110(3)).
• Joint sitting (Article 108): summoned by the President to resolve a deadlock between the Houses, and presided over by the Speaker. It is available for ordinary Bills, but never for a Money Bill and never for a Constitution Amendment Bill.
• Anti-defection: the Tenth Schedule, inserted by the Fifty-second Amendment, with the Ninety-first Amendment deleting the exception for a split and permitting only a merger of not less than two-thirds of the members of the legislature party.

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The State Executive and Legislature (Articles 153-213)

• Governor: appointed by the President under Article 155 and holding office during his pleasure; the executive power of the State is vested in him (Article 154).
• Article 161: the Governor may grant pardons, reprieves, respites and remissions, and suspend, remit or commute sentences, for offences against laws relating to a matter within the executive power of the State. He has no power over a court martial and no power to pardon a death sentence, though he may suspend, remit or commute one.
• Article 163: the Council of Ministers aids and advises the Governor except where he is by or under the Constitution required to act in his discretion; the question whether a matter is within his discretion is not to be called in question.
• Article 200: on presentation of a Bill the Governor may assent, withhold assent, return a non-Money Bill for reconsideration, or reserve the Bill for the consideration of the President — the route by which a State amendment to a Concurrent List statute obtains protection under Article 254(2).
• Article 213: ordinance-making power when the House is not in session; an ordinance must be laid before the legislature and ceases to operate six weeks from its reassembly.
• Maharashtra is one of the bicameral States: a Vidhan Sabha (Legislative Assembly) and a Vidhan Parishad (Legislative Council) under Article 168, the Council being creatable or abolishable by Parliament under Article 169 on a resolution of the Assembly passed by a special majority.

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Independent Constitutional Bodies

The State Public Service Commission in Detail (Articles 315-323)

This is the provision under which MPSC exists, and the asymmetry between appointment and removal is the classic question:

• Appointment is by the Governor (Article 316(1)); at least one-half of the members must be persons who have held office under the Government of India or of a State for at least ten years.
• Removal is by the President alone (Article 317), and on the ground of misbehaviour only after the Supreme Court, on a reference by the President, has held an inquiry and reported that the member ought to be removed. The Governor may suspend a member pending the President's orders.
• Functions (Article 320): to conduct examinations for appointments to the services of the State, and to be consulted on recruitment methods, promotions, transfers and disciplinary matters. Article 320(3) is directory, not mandatory — non-consultation does not by itself entitle an aggrieved public servant to relief.
• Article 319 restrictions on re-employment: on ceasing to hold office, the Chairman of a State Public Service Commission is eligible for appointment as Chairman or member of the UPSC or as Chairman of another State Commission, but for no other employment under the Government of India or of a State.
• Article 323: the annual report of the State Commission goes to the Governor, who causes it to be laid before the State Legislature with a memorandum explaining any non-acceptance of its advice.