ON JANUARY 26, 1950, THE TERM “CONSTITUTION OF INDIA” replaced the King-Emperor and his successors on all oaths in India. The supreme authority, to which all Indians pledge their allegiance to is this reverential legal document, the Constitution. It is now settled jurisprudence that the three branches - the Parliament, the President and the judiciary do not act under the authority of a political entity. They are all creatures of the Constitution and derive their authority from that document. The ultimate authority, therefore, in India is the Constitution.
Which is perhaps why in these perilous times, it may be wise to revisit how we, in India, view the concept of a “prerogative power”. Historically the prerogative powers were and still are powers of the British monarch which can be exercised without reference to Parliament, as these are, self-explanatorily, the prerogatives of the monarch. In practice these powers are exercised by a cabinet. In India, the idea that the President of India has the same powers as the British monarch is one that is in vogue as it is an easy way to explain our parliamentary system of government. But there is a critical distinction. While the British monarch “retains” prerogative powers i.e. powers not surrendered to Parliament, the Indian President is conferred explicitly with powers. Rather than a situation of unlimited power constrained by a Constitution, the Indian Constitution is rather explicit in what the President can and cannot do.
The limits of executive power
This is evidenced by the co-terminus nature of the executive power of the Union with the legislative power of Parliament as provided for in Article 73(1)(a). Article 73(1)(b) explicitly speaks of international agreements which is an explicit reference to a prerogative power. No other prerogative power finds reference here. Article 245 explicitly says that Parliament has the power to “make laws”. We further know that the executive power does not extend to law making because of the exception provided for the promulgation of ordinances. These must be ratified by the legislature. This shows that as far as the division is concerned, Parliament is the exclusive authority to make law. But Parliament also has a power over the executive that is again spelt out. It is the power of the “purse”. Under Article 265 no tax or levy can be raised without the authority of “law”. The executive cannot function without funds. Parliament expressly controls how much funding the executive branch gets and can also expressly control what to do with it.
