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19. The functions of the Government are carried out in the name of the President by Ministers appointed by him on the advice of the Prime Minister. The Executive consists of:

(a) Prime Minister and Ministers who are members of the Cabinet;

(b) Ministers who are not of Cabinet rank;

(c) The Civil Service.

20. Since the functions of the Government are carried on by the Executive in the name of the President on the advice of Ministers, they (Ministers) alone are answerable to Parliament. The Civil Service as such has no constitutional personality or responsibility separate from the duly- constituted Government.

"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."

23. This judgment also deals with the concept of Cabinet, the Council of Ministers, its collective responsibility and how the Executive functions subject to the control of the legislature. It is laid down that although the President is the head of the Executive, he acts on the aid and advice of the Council of Ministers, headed by the Prime Minister, who are all members of the legislature and since the President has to act upon the advice of the Council of Ministers, the legislature indirectly controls the functioning of the Executive. The relevant portions are extracted below:

The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them."

24. .... .... ....

25. It was also pointed out in this case that the words "business of the Government of India" and "the business of the Government of the State", as used in Articles 77(3) and 166(3), include "all executive business". Seervai in his treatise Constitutional Law of India, Silver Jubilee Edn., Fourth Edn., on p. 2037 has, after a critical analysis of the judgment, extracted the following principles on the "business of the Government of India and allocation of business among Ministers":

Halsbury, Vol. 1, 4th Edn., para 748."

26. In view of the discussion held above, it will be seen that though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. Moreover, as required by Article 77(1), all executive actions of the Government of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally. That being so, the order carries with it no immunity. Being essentially an order of the Government of India, passed in exercise of its executive functions, it would be amenable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this Court. The authenticity, validity and correctness of such an order can be examined by this Court in spite of the order having been expressed in the name of the President. The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or Article 77(2) of the Constitution.