Legislature and executive at the Union and state levels

Detail

1. Three organs, one problem: the cybercrime example

• Organs of government are the three branches that share the work of governing:
• the legislature makes laws;
• the executive carries them out;

• the judiciary settles disputes and punishes people who break the law.

• How a new problem arose:

• Digital payments (UPI, net banking, cards) replaced older tools such as money orders and demand drafts.

• Money moving online gave rise to cybercrime, meaning crime committed through computers or the internet, such as online fraud and hacking.

• How the three organs responded:

• Legislature: Parliament passed new laws, chiefly the Information Technology (IT) Act, 2000.
• Executive: the cyber police investigate cases and enforce the law.

• Judiciary: the courts try the accused, then convict and punish them.

• Lesson: each organ does its own job, but a new problem needs all three to act in turn.

2. The legislature: the law-making organ

• Legislature means an elected assembly of the people's representatives. Its main work:
• it makes, amends and repeals laws (to repeal a law is to cancel it);
• it controls the executive through questions, debates and no-confidence motions;

• it approves spending, because no tax can be collected and no money spent without its consent.

• Parliament's procedures are covered in the parliament note.

Union level: Parliament

• Under Art. 79, Parliament has three parts: the President, the Lok Sabha (House of the People) and the Rajya Sabha (Council of States).

• The President is part of Parliament even though the President does not sit in either House, because a bill becomes law only after the President's assent (formal approval).

• Its members are Members of Parliament (MPs).

State level: the state legislature (Art. 168)

• Every state has a Legislative Assembly (Vidhan Sabha). Its members are Members of the Legislative Assembly (MLAs).
• Some states also have a second house, the Legislative Council (Vidhan Parishad).

• A state with one house is unicameral. A state with two houses is bicameral.

• States with a Council: six, namely Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh (position in 2021) [5].

• Size limit: a Council can have at most one-third as many members as the state's Legislative Assembly [5].
• Councils that were abolished [5]:
• West Bengal in 1969;
• Andhra Pradesh in 1985, then brought back in 2007;

• Tamil Nadu in 1986.

• Bills to create Councils still pending (2021) [5]:

• Assam: bill pending in the Rajya Sabha since 2010;
• Rajasthan: bill pending since 2012.

How a Legislative Council is created or abolished (Art. 169)

Step	Who acts	Majority or rule needed
1	State Legislative Assembly passes a resolution	Special majority: a majority of the Assembly's total membership AND at least two-thirds of members present and voting [4]
2	Parliament passes a law to create or abolish the Council	Simple majority (more than half of those present and voting) [4]
3	Legal status of that law	It is not treated as an amendment of the Constitution under Art. 368, so the amendment procedure does not apply [4]

• Key point: the state starts the process, but the final decision lies with Parliament.
• A state resolution can stay pending for years if Parliament does not act [5].

3. The executive: the organ that carries out laws

• Executive means the organ that implements laws, makes policy and runs the day-to-day administration through ministers and civil servants.
• India has a parliamentary system, so the executive has two layers:
• a nominal head, who holds the title;

• a real executive, which holds the actual power.

• Nominal means "in name only". The office has formal powers, but those powers are used on the advice of ministers.

Nominal heads

Feature	President (Union)	Governor (state)
Executive power vested by	Art. 53	Art. 154
How chosen	Elected indirectly (by elected representatives, not by voters directly)	Appointed by the President (Art. 155)
Advised by	Council of Ministers headed by the PM (Art. 74)	Council of Ministers headed by the CM (Art. 163)
Is the advice binding?	Yes, since the 42nd Amendment (1976). One request to reconsider allowed since the 44th Amendment (1978) [2]	Yes, except where the Constitution allows the Governor to act in his discretion [3]
Special role	Supreme Commander of the armed forces	Can reserve state bills for the President (Art. 200) [8]

• Art. 74(1) as it reads today:
• The President "shall act in accordance with" the advice of the Council of Ministers [2].

• The President may send the advice back once for reconsideration. After that, the President must follow the advice given [2].

• Art. 163 and the Governor's discretion:

• The Governor acts on ministerial advice except in matters the Constitution leaves to the Governor's discretion (own judgement) [3].

• If there is a doubt about whether a matter is discretionary, the Governor's decision is final. No court can question an act on the ground that the Governor should or should not have used discretion [3].

• Courts have kept this discretion narrow:

• Shamsher Singh v. State of Punjab (1974): the Governor is the constitutional or formal head. The Governor uses all powers on ministerial advice, except where the Constitution expressly allows discretion, such as Art. 239(2), paragraphs 9(2) and 18(3) of the Sixth Schedule, and Art. 371A [6].

• Nabam Rebia v. Deputy Speaker, Arunachal Pradesh (2016): the Governor cannot hold powers that would make the office dominate the state executive and legislature [7].

• Governor and assent to state bills (16th Presidential Reference, 2025):

• The President sent 14 questions to the Supreme Court under Art. 143(1) on 13 May 2025 [8][9].
• A five-judge bench gave its opinion on 20 November 2025 [8][9]. It held:
  • Governor's options under Art. 200: give assent; reserve the bill for the President; or withhold assent and return the bill (not for money bills) [8].
  • On these Art. 200 choices, the Governor is not bound by ministerial advice [8].
  • Timelines: courts cannot fix deadlines for assent, and the Constitution, including Art. 142, does not allow deemed assent (a bill treated as approved because the Governor delayed) [8].
• This opinion followed an April 2025 judgment on delays by the Tamil Nadu Governor (2025 INSC 481) [7].

The real executive

• Union: the Prime Minister and the Council of Ministers.
• States: the Chief Minister and the Council of Ministers.

• The Governor appoints the CM, and the other ministers on the CM's advice (Art. 164).

• Collective responsibility: the whole Council of Ministers answers to the elected house (Lok Sabha or Vidhan Sabha). If that house passes a no-confidence motion, the entire ministry must resign.

Correcting a common mistake

• The PM and CM are heads of government, not heads of state.
• Head of state: the formal head in whose name the government acts, namely the President (Union) or the Governor (state).

• Head of government: the leader who actually runs the government, namely the PM or CM.

• (NCERT: the Class 6 text calls the PM/CM a "head of state". This is imprecise.)

The moral weight of a nominal office

• A.P.J. Abdul Kalam was the 11th President (2002–07). A nominal head cannot direct policy, yet he drew great public respect, especially among students and young people.
• Lesson: a nominal office can still shape public life through example and persuasion.

4. Division of work between the Union and the states

• The Seventh Schedule divides law-making subjects into three lists:

List	Who makes laws	Examples
Union List	Parliament	Defence, foreign affairs, atomic energy, communications, currency, inter-state commerce
State List	State legislature	Police and law and order, public health, agriculture, irrigation, local government
Concurrent List	Both	Education (moved from the State List by the 42nd Amendment, 1976), marriage

• When Union and state laws clash (Art. 254): on a Concurrent subject, the Union law prevails to the extent of the conflict.

• Exception (Art. 254(2)): a state law can prevail in that state if it was reserved for the President and received the President's assent.

• Residuary powers (Art. 248): power over any subject not named in the three lists belongs to the Union.

• The full scheme is covered in the federalism-centre-state note.

5. Organs and levels together: the COVID-19 lockdown

• Union level: the Disaster Management Act, 2005 was used to issue nationwide lockdown orders.
• State level: states used the Epidemic Diseases Act, 1897 to impose local rules (public health is a State subject).
• Local level: panchayats and municipalities ran containment zones, testing and the supply of essentials.
• Lesson: laws come from the legislatures, enforcement comes from the executive at each level, and all three tiers act together in a crisis.

Prelims Hooks

• Art. 79: Parliament = President + Lok Sabha + Rajya Sabha. Trap: the President is part of Parliament.
• Art. 74(1): the 42nd Amendment (1976) made ministerial advice binding. The 44th Amendment (1978) allows the President to send it back once for reconsideration [2].
• Art. 169: to create or abolish a Council, the Assembly needs a special majority, then Parliament needs only a simple majority. This is not an Art. 368 amendment [4].
• Six states with Councils (2021): AP, Bihar, Karnataka, Maharashtra, Telangana, UP. Tamil Nadu (1986) and West Bengal (1969) abolished theirs [5].
• A Council's size cannot exceed one-third of its Assembly's strength [5].
• Shamsher Singh (1974): the Governor is a constitutional head bound by ministerial advice, except in express areas of discretion [6].
• 16th Presidential Reference (Nov 2025): no court-fixed timelines and no "deemed assent" for bills under Art. 200 [8].
• Education moved to the Concurrent List by the 42nd Amendment (1976). Residuary power lies with the Union (Art. 248).
• Trap: the PM/CM is the head of government. The President/Governor is the head of state.

Mains Points

• Nominal versus real executive:
• Binding advice (Art. 74 and Art. 163) keeps power with elected ministers who answer to the legislature.
• The Governor's open-ended discretion (Art. 163(2) makes the Governor's own view final) creates friction between the Centre and the states.

• Shamsher Singh (1974) and Nabam Rebia (2016) narrowed this discretion [6][7].

• Delays on assent to bills:

• The 2025 Reference refused to set timelines or allow deemed assent [8].

• This protects the separation of powers. But it leaves states with no remedy when a Governor sits on a bill, which strengthens the case for timelines set by Parliament or by convention.

• Legislative Councils:

• For: they allow a second look at hasty bills and bring in experts, teachers and graduates.

• Against: they cost money, can be bypassed, and depend on politics. Councils have been abolished and revived (AP 1985/2007), and creation bills have stayed pending for years (Assam, Rajasthan) [5].

• The COVID-19 response shows cooperative federalism:

• The Union (DM Act 2005), the states (Epidemic Diseases Act 1897) and local bodies acted together.
• It also exposed a gap: the Epidemic Diseases Act is a colonial-era law with no modern public-health framework.