Open Access Research Article
EXECUTIVE AUTHORITY IN COMPARATIVE PERSPECTIVE: A STUDY OF UK, USA AND INDIA
Published Paper
Article Details
1.
Balakrishna
- Presidential Power of Pardon[3] – The article deals with the Presidential power of the Pardon of the
Indian President while contrasting the pardoning powers vested in the Crown.
However, the major drawbacks of this article are that the author has restricted
himself to the powers of the Crown while comparatively analyzing the pardoning
powers of the Indian President, and has taken into account only the historical
circumstances of India while differentiating the prerogatives of the British
Crown and the Indian President.
2.
P
S Ruckman Jr - Executive Clemency in the United States: Origins, Development,
and Analysis (1900-1993)[4]: The major drawback of this Journal article is that it merely reviews
the current literature of the US with its origins and development. Considering
that the pardoning powers’ origin can be traced in the common law system, this
article simply compares the present powers to those powers which were vested in
the Crown.
3.
Margit
Cohn - Non-Statutory Executive Powers: Assessing Global Constitutionalism in a
Structural Institutional Context[5]: The article discusses the increasing unilateral making of measures in
the emergency and foreign affairs without having any authorization to do so by
the POTUS and the British Govt, and the source and nature of such unilateral,
non-statutory executive powers without comparing it with the statutory
executive powers.
4.
Paul
Daly - Executive Power in the United Kingdom[6]: The article discusses in-depth the powers of the Executive, but since,
in the UK Westminster system of Parliamentary government, there is an overlap
between the Executive and the Legislature, overlapping of the topics, i.e.,
powers of the executive and the powers of the legislature, can be noticed.
5.
Sahil
Arora - Executive Power of the Union and the State[7]: The article briefly sums up all the powers which are vested with the
Executive organ of the State. However, had it been compared to the other
jurisdictions, it would have proved more beneficial.
6.
IGNOU
The People’s University - Unit 11: Executive[8]: The Module provided by the University provides an in-depth discussion
on the powers of the Executive in the Indian scenario while mentioning various
examples wherein such powers were used
There exists a distinction between the traditional Westminster form of
Government, Westminster form of Government, and Presidential form of
Government. This project assignment for the course of Comparative
Constitutional Law attempts to point out the similarities and differences in
the powers vested in the Executive organ of the State under these 3 different
forms of Government while comparatively analyzing the powers of the Executive
in the US, UK, and India.
1.
To
comparatively analyze the powers of the Executive in the US, UK, and India.
2.
To
study the origin and development of Executive Powers in India and US while
taking into account the powers which were vested in the Crown.
3.
To
study the difference between powers vested in the Executive under the
Presidential form of Government to that of the powers vested in the Executive
under the Westminster form of Government.
It appears that the scope of powers under the written Constitution is
limited than that of the scope of powers vested in the Executive organ under the
unwritten Constitution. In the case of a written constitution, since the US
follows a Presidential form of government, more powers are vested in the
Executive than the powers vested in the Westminster form of government.
1.
What
are the sources and nature of powers vested in the Executives in the US, UK,
and India?
2.
What
are the commonalities between the powers vested in the Executives on the US, UK,
and India?
3.
What
are the points of distinction between them?
For this research, the researcher undertakes qualitative legal research. The
entire research is purely doctrinal as the study involves a comparative study
of traditional Westminster form of Government, Westminster form of Government,
and Presidential form of Government for which the author has relied on the
qualitative aspect. It is analytic, conceptual, and comparative research by
nature as the researcher tries to understand and analyze various forms of
government and do a comparative study. The researcher shall use the 4th
edition of OSCOLA as a uniform citation method for footnotes and bibliography.
A country's constitution is sacrosanct. It must not be disturbed unless
required by law, and doing so may result in difficulties. Almost every
constitution has been changed at some point to keep up with the times. Executive
authority is generally limited in constitutional democracies in three ways: by
separation of powers between the union government's executive,
legislative, and judicial branches, with the legislature and judiciary able to
check the power of the executive branch; by constitutional guarantees of
fundamental rights; and by periodic elections. In modern democracies, the administrative
authority is generally constituted in one of two ways: parliamentary or
presidential.
When comparing the two systems, the parliamentary system is the one in
which the majority party in the legislature forms the executive branch of
government, led by the Prime Minister. In this system, the executive and the
legislative are not separate because both the Prime Minister and cabinet
members are selected from parliament, even though the PM is the national
leader. In the Presidential system, however, the President is chosen
independently of the members of the legislature. In this system, both the
legislature and the President have their own power bases and constituencies,
which serve to keep each other in check and balance. Both of these systems have
advantages and disadvantages, and one cannot completely replace the other.[9]
Under the doctrine of separation of powers, the governance of a state is
traditionally divided into three branches each with separate and independent
powers and responsibilities: an executive, a legislature, and a judiciary. The
distribution of power in this way is intended to prevent any one branch or
person from being supreme and to introduce “checks and balances” through which
one branch may limit another. According to a strict interpretation of the
separation of powers, none of the three branches may exercise the power of the
other, nor should any person be a member of more than one of the branches.
In reality, however, many nations do not strive for a rigid separation of
powers, instead of aiming for a compromise in which some duties are shared
across state institutions.
Powers Of
The Executive In The US, UK, And India
The Executive Branch is led by the POTUS, who also serves as the
country's head of state and Commander-in-Chief of the armed forces. The
President is in charge of enacting and executing the laws passed by Congress
and chooses the leaders of government agencies, including the Cabinet. The Vice
President is also a member of the Executive Branch, ready to take over the
Presidency if necessary.
The Cabinet and autonomous federal agencies are in charge of enforcing
and administering federal legislation daily. The purposes and duties of these
departments and agencies are as diverse as those of the Department of Defense
and the Environmental Protection Agency, the Social Security Administration,
and the Securities and Exchange Commission.
The American Constitution specifies just three
requirements for the Presidency: The President should be at least 35 years old,
a citizen by the virtue of birth, and have lived in the US for at
least 14 years. And, even though millions of Americans vote in presidential
elections every four years, the President is not directly elected by the
people. Rather, every fourth year, on the first Tuesday after the first Monday
in November, the citizens elect the candidates of the Electoral College. These
Electors are distributed by population to the 50 states, one for each member of
their congressional delegation (with the District of Columbia receiving three
votes), and then vote for President. The Electoral College presently has 538
electors.
1.
Under
Art 2 of the American Constitution, POTUS is responsible for the execution and
enforcement of the laws created by Congress.
2.
POTUS
also appoints the heads of more than 50 independent federal commissions, such
as the Federal Reserve Board or the Securities and Exchange Commission, as well
as federal judges, ambassadors, and other federal offices.
3.
POTUS
has the power either to sign the legislation into law or to veto bills enacted
by Congress, although Congress may override a veto with a two-thirds vote of
both houses. The Executive Branch undertakes diplomacy with foreign countries,
and the President has the authority to negotiate and sign treaties that must be
ratified by the Senate. The President has the authority to issue executive
orders that command executive officials or clarify and expand on existing
legislation.
4.
POTUS
also has the authority to grant pardons and clemencies for federal offenses.
5.
POTUS
can convene Congress for special sessions.
6.
POTUS
delivers the State of the Union address annually to a joint session of
Congress.
7.
Congress
has the authority to declare war. As a consequence, the POTUS is unable to
declare war without their consent. Presidents, as Commander in Chief of the
armed forces, can deploy soldiers to fight without an official declaration
of war. The 1973 War Powers Act intended to clarify when and how the President
can deploy soldiers to fight by imposing rigorous time periods for reporting to
Congress after sending forces to war, among other measures, but it had little
impact.
8.
During the
emergency, the POTUS has nearly unlimited authority to override Congress
and execute executive orders. Abraham Lincoln had used an executive order
to fight the Civil War, Woodrow Wilson issued multiple ones relating to the
United States' engagement in WW I, and Franklin D. Roosevelt used an
executive order to sanction Japanese detention camps during WW II.
9.
Alongside
commanding the armed forces, the POTUS is in charge of U.S. foreign
policy. He is responsible for the safety of Americans overseas and foreign
nationals in the States through the Departments of State and Department
of Defense.
1.
The
main duty of the Vice President of the United States is to be prepared to take
the Presidency at a moment's notice if the President is unable to do so. This
can be due to the President's death, resignation, or temporary incapacity, or
if the Vice President and a majority of the Cabinet determine that the
President is no longer capable of carrying out the functions of the president.
2.
The
VP also acts as the President of the United States Senate, where he or she
votes to break a tie. Except for tie-breaking votes, the Vice President seldom
presides over the Senate. Instead, each day, the Senate elects one of its own
members, generally a junior member of the dominant party, to preside over the
Senate.
3.
The
duties of the Vice President, outside of those enumerated in the Constitution,
are at the discretion of the current President. Each Vice President approaches
the role differently — some take on a specific policy portfolio, others serve
simply as a top adviser to the President.
This office was created by former POTUS, Franklin D Roosevelt
in order to create a body that supports the POTUS to properly govern. The EOP
is in charge of a variety of activities, including expressing the President's
message to the American people and promoting trade interests overseas. Many of
the President's closest advisers have typically been placed in the EOP, which
is managed by the White House Chief of Staff. While certain advisers, such as
the Director of the Office of Management and Budget, must be confirmed by the
Senate, the majority are nominated with complete Presidential discretion.
Since the creation of the EOP, the separate offices that
these advisers manage have increased in size and number. Some were created by
Congress, while most were created when the President required them – they are
continuously altering as each President determines his or her requirements and
priorities.
The Cabinet is a consultative body comprised of the chiefs of
the 15 executive departments. Cabinet members are usually the President's
closest confidants because they are appointed by the President and approved by
the Senate. They run major federal agencies.
In what is now the British Constitution, all authority was consolidated
in the monarch. Nevertheless, with time, such authorities have been
distributed throughout the government. The Glorious Revolution established the
essential premise that Parliament, from its seat at Westminster, is supreme
over the Monarch in the 17th century, an era of immense constitutional
turbulence. The Monarch remains the Head of State, but the monarchy's existence
and powers are subject to oversight, and even abolition, by Parliament.[11] The executive is made up of the Crown and the UK cabinet-style
Government as a whole, including the Prime Minister and Cabinet Ministers. The
Cabinet is chosen by the PM and consists of around 20 ministers, most
of whom are heads of government departments. Government departments and their
agencies, headed by the public service, are in charge of putting government
policy into action. Some UK government offices serve the entire country.
The policy is developed and implemented by the executive. The executive
and legislature are inextricably linked in the United Kingdom and other common
law countries. The PM of the UK and the majority of his or her
ministries are members of the House of Commons (the PM usually being both
heads of the executive branch and leader of the majority party in the
legislature). Furthermore, through the ability to make subordinate legislation,
Parliament may transfer law-making powers to the Government. Although the
legislative and executive are not completely distinct in the UK, the
executive's presence in the legislature is scrutinized, with Ministers often
coming before and answering questions from Members of Parliament. As a means of
checks and balances, the judiciary checks the executive's actions to ensure that
they are within its authority. This entails ensuring that the executive only
acts where it has the authority to do so and that it does so in conformity with
the law. This judicial examination includes ensuring that any legislative
activities carried out by the executive (i.e., the creation of subordinate
legislation) are within the scope of the authorities given by Parliament. As a
result, the courts can call into question the legality of decisions taken by
public entities, including government Ministers, through a process called
judicial review.[12]
The President wields executive authority in the Indian government,
serving as both the ceremonial head of state and the nation's figurehead. The
Indian Constitution, on the other hand, bestows authority and prestige on the
post of President without providing the necessary authorities to rule. Instead,
the President serves mostly as a ceremonial figure. The Prime Minister wields
true executive power. The President is the head of state, but the Prime
Minister is the head of government. Only with the Prime Minister's assistance
and guidance does the President carry out the real tasks of the government.
The President is indirectly elected for a 5-year term and can
be impeached by the Parliament through impeachment procedures. The Constitution
also establishes the position of Vice President, who is indirectly elected and
serves as head of state in the case of the President's incapacity or demise. A
candidate for the position of President of India must be a citizen of India, be
at least 35 years old, and fulfill the other criteria required to become a
member of the Lok Sabha. At the time of his election, he/she shall not occupy
any profit-making post under the Union, State, or local governments, nor should
he be a member of either house of Parliament or a state legislature. In
addition, the candidate must meet any other requirements imposed by Parliament
from time to time.
Powers of the President are:
1.
Article
53[13] deals with the President of India's executive authority. The President's
powers are essentially classified into two types: ordinary and emergency
powers. The President's ordinary powers are classified as executive,
legislative, financial, and judicial. The Union's executive functions are
vested in the President.
2.
Article
75[14] mandates the Prime Minister to notify the President of any Union Council
of Minister's decisions. According to Article 77, the executive functions of
the Union administration must be exercised in the name of the President.
3.
The
President holds both administrative and military power. The President has the
authority to appoint and remove state dignitaries. The President appoints the
Prime Minister and, on his advice, the council of ministers, the
Attorney-General, Supreme Court and High Court judges, members of special
commissions (like the UPSC and the Election Commission), and state
governors.
4.
The
President serves as the Commander in Chief of the Armed Forces. He
appoints the Chiefs of the Army, Navy, and Air Force. He has the authority to
declare war and make peace. However, he must utilize all of these powers
subject to Parliament's approval.
5.
The
President has the authority to call both houses of Parliament, appoint 12 Rajya
Sabha members, address either house or their combined session at any time, and
dissolve the Lok Sabha. All money bills that are proposed in Parliament must
get the President's approval. When a bill is enacted by Parliament, it can only
become an Act with the President's assent. A non-money bill may be withheld or
returned by the President for reconsideration by the Parliament. However, if
the bill is enacted by both houses, with or without amendments, and returned to
the President, the latter is required to sign it.
6.
When
the Parliament is not in session, the President has the authority to issue
ordinances in the interest of the public. Ordinances have the same legal power
and effect as laws approved by Parliament. They must, nevertheless, be
presented to Parliament within 6 weeks after the day of the reassembling of
Parliament. The ordinance will be declared null and void until approved by
Parliament.
7.
Article
254[15] gives the President the authority to remove contradictions between
legislation approved by the Parliament and the state legislatures and the
subjects on the Concurrent List.
8.
The
President of India's judicial powers includes the nomination of SC and
HC judges, as well as the authority to give pardon, reprieve, suspension,
remission, or reduction of penalty or sentence of the court. These pardoning
powers are granted to the President to remove the severe rigidity in criminal
laws and to protect individuals on humanitarian grounds. The President also has
the authority to request the Supreme Court's guidance on significant
constitutional, legal, and diplomatic issues. In 1977, the President sought the
Supreme Court's guidance on establishing Special Courts to try the emergency
excesses.
9.
The
President has the authority to proclaim three sorts of emergencies: a) national
emergencies resulting from war, external invasion, or armed revolt; b)
emergencies resulting from the breakdown of the constitutional machinery in the
states; and c) financial emergencies.
The Union Council of Ministers, with the Prime Minister
as its head, has true executive power under the constitution. The
President is required to act on the advice of the Council of Ministers, which
is accountable in the true sense of the word to the Lok Sabha rather than the
President. On the Prime Minister's suggestion, the President appoints the other
members of the Council of Ministers. A minister can be appointed from either
house and has the right to speak and participate in the proceedings of the
other house, but he can only vote in the house to which he belongs. Even though
a person is not a member of either house of Parliament, he can be appointed as
a minister if he is elected or nominated to either house within 6 months.[16]
US, UK, and India
1.
The
USA follows a Presidential form of Government, whereas India and the UK follows
a Westminster form of Government. The Westminster style is also known as the
Parliamentary form of Government. Although both India and UK follow the
Parliamentary style, India does not follow a strict traditional Parliamentary
form and slight hints of Presidential form can be seen. While the Indian Head
of the State, i.e., the President is elected, the British Head of the State is
the Monarch and enjoys a hereditary position. The British system is founded on
the idea of Parliamentary sovereignty. In India, the Parliament is not supreme
and has limited and restricted powers as a result of a written Constitution, a
federal system, judicial review, and FRs.
2.
In
America, the POTUS is responsible for the execution and enforcement of the laws
and when it comes to India and UK, it is the job of the PMs to come up with
laws with the goal of enacting the legislative agenda of their political party.
3.
More
powers are vested on the President in the Presidential form of government.
Power to sign or veto bills are vested on the President of the US but in case
of India, President is more like a nominal head of the state who works as per
the advice of the Council of Ministers which is headed by the Prime Minister.
This reflects that the major powers lie in the hands of the Prime Minister
4.
In
the UK and India, PM is the head of the Government and leads the Executive. But
in the Parliamentary form of government, President is the State Head.
5.
UK,
being a constitutional monarch, the supreme command authority of the armed
forces has been vested in the monarch. In India and UK, such powers have been
vested on the Prime Minister and the President, respectively. In terms of
authority to declare a war, such powers are vested with the President in case
of US and India. Although Crown is the commander in chief of the armed forces,
the UK Constitutional Convention requires that the declaration of war or
commitment of British armed forced should be authorized by the Prime Minister
on the behalf of the Crown.
6.
Each
wing of the cabinet is headed by a cabinet minister and the executive authority
is vested over the entire council of ministers. The executive is responsible to
the Parliament. Both in UK and India, they are removed by a no confidence
motion. In UK, whenever the cabinet loses its confidence, it resigns or advises
the monarch to dissolve the House of Commons. On the other hand, Executive
office of the POTUS is headed by advisors who are nominated with complete
Presidential discretion, except of few advisors who are required to be
confirmed by the senate.
7.
In
USA as well as India, various powers have been vested on the President and
Prime Minister, respectively, during the period of emergency. They can execute
executive order which will be followed in the Country during such a period.
However, such orders cannot be in violation of FRs.
Conclusion
It is plausible for different nations with the same type of government
to not function in the identical way and will have distinct
characteristics. For example, the United Kingdom adheres to the traditional
Westminster form of government, but India adheres to the Westminster form while
incorporating some powers and functions from the Presidential form of
government.
There are no straitjacket criteria for determining which type of
government is ideal. The various kinds of governments must be thoroughly
researched and analysed in order to determine certain fundamental
characteristics. The choice of government is a critical one, and it must be
approached with caution. The study of various forms gives benefit as well as
drawbacks, which aid in guaranteeing that the country understands what they are
consenting for. The events and conditions that exist in a country also
influence the kind of governance that is chosen.
Although the basic goal of separation of powers is to ensure that each
organ of the state (Legislative, Executive, and Judiciary) works separately and
without interference in their respective domains, several provisions provide
the Executive a broad range of powers. For example, as stated in the Indian constitution,
the Executive has a significant responsibility in all 3 domains. However,
its performance in the other 2 domains demonstrate its dominance
over the other organs, as in the Judiciary, even after the final decision
of the Supreme Court, the President has the power to grant pardon to the
convicted, demonstrating the supremacy of the Executive over the
Judiciary. In the legislative domain, all bills require the President's
assent to be converted into acts, and certain acts require his prior
approval to be presented in parliament. These powers assigned to the Executive
by our Constitution indicates the supremacy of the Executive in our
country.
[1] Research Scholar, University Of
Lucknow
[2] Research Scholar, University Of
Lucknow
[3] Balakrishna, ‘Presidential Power
of Pardon’ [1971] 13 Journal of the Indian Law Institute 103.
[4] P S Ruckman Jr, ‘Executive
Clemency in the United States: Origins, Development, and Analysis (1900-1993)’
[1997] 27(2) Presidential Studies Quarterly 251.
[5] Margit Cohn, ‘Non-Statutory
Executive Powers: Assessing Global Constitutionalism in a Structural
Institutional Context’ [2015] 64(1) International and Comparative Law Quarterly
65.
[6] Paul Daly, ‘Executive Power in the
United Kingdom’ (2021) Ottawa Faculty of Law
accessed 28 November 2021.
[7] Sahil Arora, ‘Executive Power of
the Union and the State’ Lawctopus (20 February 2019) < https://www.lawctopus.com/academike/executive-power-union-state/>
accessed 29 November 2021
[8] IGNOU The People’s University,
‘Unit 11: Executive’
accessed 28 November 2021.
[11] Paul Daly, ‘Executive Power in the
United Kingdom’ (2021) Ottawa Faculty of Law
accessed 28 November 2021.
[12] Law Wales, ‘The Three Branches of
Government’ Llywodreath Cymru Welsh Government
accessed 28 November 2021.
[13] The Constitution of India, 1950.
[14] ibid.
[15] ibid.
Article Information
EXECUTIVE AUTHORITY IN COMPARATIVE PERSPECTIVE: A STUDY OF UK, USA AND INDIA
Authors: ANKIT RAI, TANUSHREE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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