Executive Power of the Union

Article 42, Draft Constitution of India 1948

(1) The executive power of the Union shall be vested in the President and may be exercised by him in accordance with the Constitution and the law.

(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of India shall be vested in the President and the exercise thereof shall be regulated by law.

(3) Nothing in this article shall-

(a) Be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority, or

(b) Prevent Parliament from conferring by law functions on authorities other than the President.

Article 53, Constitution of India 1950

(1) 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 in accordance with this Constitution.

⁠(2) Without prejudice to the generality of the foregoing provision, the supreme command or the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.

⁠(3) Nothing in this article shall —

(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or

(b) prevent Parliament from conferring by law functions on authorities other than the President.

Draft Article 42 was debated by the Constituent Assembly on 10 December 1948 and 16 October 1949. The Draft Article placed the executive power of the Union with the President of India.

One member proposed to make it explicit in the Article that the President’s executive power was subject to the advice and help of the Union Government. This would reiterate and make it clear that the Assembly had adopted a parliamentary system of government and not a presidential one.

Another member wanted to include ‘on behalf of the people of India‘ in the first clause to signal that sovereignty and popular will lay with the people. Unlike the Government of India Act 1935, he continued, that enabled the Governor-General to exercise executive power on behalf of the ‘King-Emperor of India’, the Indian Constitution should mention that executive power was exercised on behalf of the people.

There was another proposal that exhaustively listed out all the powers and responsibilities of the President. The member who proposed this argued that for a new nation like India, the President’s powers must be clearly laid out in the Constitution to avoid any ambiguities. Several members opposed this move: a member of the Drafting Committee pointed out that the proposal went against the decision of the Assembly to adopt a parliamentary form of democracy.

The Assembly adopted the Draft Article on 10 December 1948 without any amendments. However, the Constituent Assembly reopened discussions on 16 October 1949.

The Drafting Committee moved a minor amendment which enabled the President to exercise his power even through his subordinates. Some members felt that this amendment was redundant and unnecessary. They argued that it was understood that the President would be exercising his power through his ‘agents’. As one member put it ‘This attempt to clarify things is grossly exaggerating the idea of going into details’. The members of the Drafting Committee responded by highlighting that the President would not really exercise his executive power himself; He would ‘simply exercise them at the dictation of other people who are responsible to the legislature’ and the amendment embodied and clarified this scheme.

The Assembly accepted the amendment and adopted the Draft Article.